the Case was That he did reject and eject his Wise without giving of her Alimony for which she had Sentence in the High Commission-Court and the Defendant took those Goods for the Alimony of the Wife And Justice Barckley said That the Defendant might plead Not guilty Lister against Hone in Trover and Conversion for a Hawk 32. JUdgment was given for the Plaintiff but it was moved in arrest of Judgment because it was not said in the Declaration that it was a tame Hawk Dyer 13 Eliz. 306. b. and 43 E. 3. Acc. And here it was said That the words of the Declaration shew that it was a wild Hawk for the words are For taking Accipitricem suum Anglicè vocat ' a Ramish Fawlcon and it was said that Ramish is as much as to say inter ramos agens but that was denied for a Ramish Hawk is a Fowl Hawk by which the contrary is implied that it was tame And here it was farther said for the Defendant that if reclamato be omitted de bonis suis propriis will not help it But it was said in affirmation of the Judgment that although reclamato be omitted yet that de bonis suis propriis will help it and Justice Barckley with all the Justices except the Chief Justice who was absent did agree very strongly That the Judgment should be stayed because that a Hawk is ferae naturae and although it be tamed yet if it fly away and hath not animam revertendi then occupanti conceditur Vide 27 Hen. 8. And for the words de bonis suis propriis they do nothing for the Party had but a Right of Possession and not of Property and if it be it is but a qualified Property as 7 Rep. 17. b. He agreed that if a man hath a wild Hawk in his possession and another man takes it out of his possession Trespass will lie but if it fly away then Capiat qui capere potest And thereupon Judgment was stayed Parkinson against Colliford and others Executors of a Sheriff 33. THe Case was That Judgment was given against another man at the Plaintiffs suit in Debt in the Common Pleas and upon that a Writ of Error was brought in the Kings Bench and the Judgment affirmed and upon that a Fieri facias directed to the Sheriff who levied the Mony and died the Writ being not returned and thereupon Debt was brought against his Executors and these exceptions were taken 1. That the Writ of Fieri facias was not returned and therefore the Sheriff should not be charged in Debt but otherwise if it had been returned 2. That no Debt lieth against the Sheriff although it had been returned 3. Admit that it would lie against himself yet it will not lie against his Executors because it is a Personal wrong and dieth cum Persona 4. That the Fieri facias was awarded out of this Court and it doth not appear whether it were awarded after the Record removed into this Court or not Justice Barckley with whom all the other Judges did agree was of Opinion That Debt would lie against the Sheriff where he sells goods upon a Fieri facias for now he is Debtor in Law and the Defendant discharged against the Plaintiff and â—â—e may plead it and therefore it is reasonable that the Defendant should be answerable to the Plaintiff and he took the difference betwixt Seisin of goods only and where the Sheriff seiseth and selleth them for till Sale no Debt will lie against him And it was said that Accompt will lie against him and if Accompt by the same reason Debt As to the return of the Writ he said that the Sheriff is not compellable to make it and therefore it 's nothing to the purpose and the difference stands where the Sheriff returns a Jury where not in case of Elegit the Writ ought to be returned but not in case of Fieri facias as is 1 H. 7. Clerk of the Hampers Case Farther I conceive that it will lie against the Executor and it is not like the Cases which are Personal where the action moritur cum Persona but here the goods came to the Executors and therefore it is reason to charge them And it is not like the Case in Dier 10 Eliz. 271. a. where it is said An Action of Debt will not lie against the Executor of a Keeper nor an Escape for there the body comes not to the Executor And this very difference may be collected out of Dier in the place aforesaid and the difference will stand where there is a personal wrong done to him and where not And for the Exception That it doth not appear whether the Fieri facias was brought after the Record removed or not To that they said una voce that it appeareth that it was upon these words of Record viz. That the Record was brought hither and here remained and it is not needful to shew that Errour was brought c. Justice Iones I conceive that Debt will lie against the Sheriff because the Sheriff had it delivered to him to deliver over And if I deliver mony to deliver over Debt will lie for him to whom it ought to be delivered So in this Case And because also the Defendant is discharged and may plead the same and therefore there is reason to charge the Sheriff Farther I conceive also that it will lie against the Executors And I shall take this difference where the wrong is ex maleficio for there it dieth with the person and where ex contractu for there it doth not die with the person If I deliver goods to a man and he diâ—th an Action of Trover will lie against his Executors And here the Sheriff could not have waged his Law for the Debt is brought upon matter of Record upon which wager of Law lieth not but upon simple contract And the Sheriff hath here made himself Debtor in Law upon Record Justice Crook It is reason to charge the Sheriff because the Defendant is discharged and may plead that his goods were taken in Execution by the Sheriff in satisfaction of the same Debt And the Executors may be charged because no wager of Law lieth because the Debt is here brought upon matter of Record And he agreed with Justice Iones in the difference betwixt maleficium and contractum And therefore they did all conceive that the Action would lie And in Spekes Case in the Common Pleas it was voted that the Action would lie against the Sheriff 34. In a Habeas Corpus the Case was thus A man would erect a Tavern in Birchin-lane and the Mayor and Communalty for his disobedience because he would not obey them but would erect a Tavern there against their wills they knowing the same to be an unfit place did imprison him And the Opinion of the Court was That he should be remanded because that the Mayor and Communalty had authority over him and they might appoint him a place in which he might
breach in non faciendo and saith that he is ready to do the thing which he promised but that the other refused to accept of it Notwithstanding the breach is well laid and the Action well lieth for it was idle and more than the Plaintiff was compelled to do to shew that paratus est to do the thing which he promised So that if there were a breach upon the part of the Defendant it is sufficient and if there was a breach on the Plaintiffs part the Defendant ought to bring his Action for it And the difference was taken by Bramston Where the promise is conditional and where absolute as in our case And agreeing with this difference it was said at the Bar and Bench That it was adjudged 115. Hutton moved to quash certain Presentments because they were taken in a Hundred-Court which is not the Kings Court and therefore coram non Iudice It was said by Justice Iones That a Hundred may have a Leet appendant to it and then they were lawfully taken Barckley and the whole Court answered because it doth not appear to the Court whether there was so or not that the Presentments were void 116. Concerning damage clear It was agreed that it was hard that the Plaintiff should be stopt of his Judgment until he had paid his damages clear For perhaps if the Defendant be insolvant the Plaintiff should pay more for damages clear than he should ever get And therefore the Court was resolved to amend it This damage clear is twelve pence in the pound of the damages given to the party in this Court and two shillings in the Common pleas See the Register where is a Writ for damage clear Harris against Garret 117. IT was agreed by the whole Court that it is no good plea to say That such an one was bound in a Recognisance and not to say per scriptum obligat ' and to conclude that it was secundum formam Statuti doth not help it But in a Verdict it was agreed to be good And according to this difference it was said by the Court That it was adjudged in Goldsmiths case and Fulwoods case 118. It was agreed by the Court that upon a Certiorari to remove an Indictment out of an Inferiour Court that the Defendant shall be bounden in a Recognisance to prosecute with effect viz. to Traverse the Indictment or to quash it for some defect And if he doth not appear an Attachment shall issue out against him Iustice Crooks Case 119. IT was agreed by the Court That although a Bill be preferred in the Starchamber against a Judge for Corruption or any other for any great misdemeanour yet if the Plaintiff will tell the effect of his Bill in a Tavern or any other open place and by that means scandalize the Defendant that the same is punishable in another Court notwithstanding the suit dependant in the Starchamber And so Iones said that it was adjudged in a Bill in the Starchamber against Justice Crooke which was abated because it was brought against him as Sir George Crooke only without addition of his Office and Dignity of Judge Trinit 16º Car ' in the Common Pleas. 120. AN Apothecary brought an Action upon the Case upon a promise for divers Wares and Medicines of such a value and shewed them in certain The Defendant pleaded in Bar that he had paid to the Plaintiff tot tantas denarior ' summas as these Medicines were worth and doth not shew any sum certain And the plea was holden to be no good plea wherefore Judgment was given for the Plaintiff 121. A Contract was made betwixt A. and B. Mercers That A. should sell to B. all his Mercery Wares and take his Shop of him In consideration of which A. promised that he would not set up his Trade in the same Town And adjudged a good Assumpsit in the Kings Bench as Littleton Chief Justice said But if one be bound that he will not use his Trade it is no good Bond. 122. Rolls moved this Case A Writ of Error was brought upon a Judgment given in Yarmouth and the Case was thus A. and B. were bound to stand to the Arbitrament of I. S. concerning a matter which did arise on the part of the wise of B. before coverture I. S. awarded That A. should pay to B. and his wife ten pounds at a place out of the Jurisdiction And thereupon upon an Action brought upon the Bond a Breach was assigned for not payment of the mony at the place And here it was objected That it was Error because it was there assigned for Breach the not payment of the mony at a place out of Jurisdiction and for that cause the Judgment was not well given Secondly because that the Award was That payment should be made to B. and his wiâ—â— which was out of the Submission But notwithstanding Judgment was affirmed by the whole Court. For as to the 〈◊〉 issue could not be taken upon payment or not payment oâ— of the Jurisdiction because it was not Traversable As 〈◊〉 the second the Controversie did arise by reason of the wiâ—e and therefore the Award was within the Submission beiâ—â— made that the payment should be to both 123. It was said by the Court that it was one Kellway Case adjudged in this Court That a Promise made to an Atturny of this Court for Solliciting of a Cause in Chanceâ—â— was good and that it was a good consideration upon whiâ—â— the Atturny might ground his Assumpsit For it was resâ—â—ved That it was a lawful thing for an Atturny to Sollicite 124. The Court would not give way for Amendments Inferiour Courts 125. By Iones and Barckley Justices If there be an insufficient Bar and a good Replication after a Verdict theâ—â— shall be a Repleading Contrary where there is no Verdict Smithson against Simpson 126. A. And B. were bound to stand to and observe suâ—â— Article Agreement Order or Decree as thâ— Kings Council of the Court of Request should make A brought an Action upon the Bond against B. and pleaded that the Kings Councel of the Court of Request made such Order and Decree and that the Defendant did not observe it The Defendant pleaded That the King and his Council did not make the Decree and adjudged by the Court that the Plea was not good 127. Sir Matthew Minkes was Indicted of Manslaughter and found Guilty And it was moved by Holâ—orne of Counsel with Sir Matthew that the Iudictment was insufficient because there was dans c. without adtunc ibid. according to Presidents as also because it was plagam sen contusionem which is incertain as also that the party killed languebat à pred' 15 die usque decimam sextam And he said That there was no time between those two days but it ought to have been That he languished from such an hour till such an hour and that he said were the ancient Presidents And he said That an Indictment that A.
three years it did not give Lapse without notice for it was avoidance in Law not in Fact vid. Stat. 9. Eliz. for Excommunicating a striker in the Churchyard c. This Statute of 31 Eliz. differs from the Statute of 1 Eliz. for not reading of the Articles Those Statutes say that it shall be void ipso facto but not so in our Case And the Cases cited for Authority in the point are betwixt party and party and not in case of a third person as our case is 18 Eliz. Dyer A meer Lay-man is presented it is not ipso facto void without Sentence So it is of one within the age of nine years for he cannot govern others Trinit 4 Iac. in the Common Pleas Cooke and Stranges case The King Presents and before Institution Presents another it is good but in the interim the King ought to repeal his first presentment and that is a revocation vid. Dyer 292. a. where it is a Quere Whether he need not to alledge that a Repeal was brought and shewed c. The King grants and afterwards makes a second Grant of the same thing There are many Examples in Brooke and Fitzherbert that it is not good without a Repeal But this Case viz. of 6 H. 8 9. extends only to â—and and not to an Advowson c. But it was resolved by all the Judges That the Church was void by the Statute of 31 Eliz. to all purposes and to all persons as to the Pâ—râ—shioners as to a stranger who brings Trespass or Ejectione firme as to the King as to him who Presents and that without deprivation or Sentence declaratory in the Ecclesiastical Court And accordingly Judgment was given Hichcocke against Hichcocke 140. THe Case was this The Vicar did contract with a Parishioner to pay so much for encrease of Tithes and died and his Successor fued in the Ecclesiastical court for them And a Prohibition was prayed and granted by all the Justices And here it was said That a real Contract made by the Parson and confirmed by the Ordinary could not be altered in the Spiritual Court And by Serjeant Mallet a real accord though it be between Spiritual Persons and of Spiritual things yet it is only questionable at the Common Law 20 E. 3. Annuity 32. 38 E. 3. 6. 8 19. And by Serjeant Clarke Real composition by a Parson who claims not any encrease of the endowment to the Parsonage shall not binde his Successor The words of the Contract here were inter se convenerunt and that is no real Composition although that the Bishop call it so realis Compositio and his calling of it so doth not alter the nature of it but it remains a Personal agreement and so shall not bind the Successor although it be confirmed by the Bishop A Parson cannot do any thing to the damage of his Successor The Vicar took Oath That they were not for encrease of Tithes the Ordinary being a stranger to the Composition is not made a party by his Confirmation nor is the Composition altered by it Littleton Sect. 335. The Lord confirms the Land to the Tenant the same doth not alter the Tenure nor prejudice the Lord. The power of the Bishop augendi minuendi the Portion of the Vicar is by the Common Law for general Cure of Souls The Parson and Vicar have privity betwixt them 40 E. 3. 28. 31 H. 6. 14 16 Ass Annuity 32. 2 Rep. 44. Plow Com. 496. 21. E. 3. 5. 10 H. 7. 18. Dyer 43 84. 141. A Prohibition was prayed to the Court of Requests and the Case was thus A Feme sole possessed of a Term conveyed the same over in Trust for her and Covenanted with I. S. whom she did intend to marry that he should not meddle with it and for that purpose took a Bond of him They intermarried he may intermeddle with it but he shall not have it and by Equity he cannot assigne it by reason of the Covenant before marriage A Feme sole conveys a Term in Trust and then marrieth the husband assignes it the Trust not the Estate shall pass by Reeve and Foster But by all the Judges a Prohibition shall not be for it is matter only for Equity But if they direct Demisit or non demisit Assignavit or non c. then they exceed their Jurisdiction and a Prohibition heth 142. A woman brought a Writ of Dower and recovered and upon a suggestion made upon the Roll that the husband died seised a Writ of enquiry of Damages issued forth And before the Retorn thereof a Writ of Error was brought and it was by Steward against Steward and two things were moved 1. Whether Error would lie before the Retorn of the Writ of Enquiry or not 2. Whether the Writ of Error be a Supersedeas to the Writ of Enquiry And by Taylor and Rolls Serjeants That Error doth not lie before Judgment upon the Writ of Enquiry And this case they compared to Medcalfes case 11 Rep. 38. But by Serjeant Bacon it is well brought Dower is by the Common Law and damages are given by the Statute of Merton and that is the main Judgment 5. Rep. 58 59. And the very case is put in Medcalfes case 11 Rep and distinguished from other cases And it was argued by another Serjeant That the Error was well brought because that in Dower the Judgment doth determine the Original and therefore at the Common Law Error will well lie And the damages are given by the Statute of Merton but that doth not alter the Judgment or the nature of the Action It differs from the case of Judgment in an Ejectione firme and Accompt for after such Judgments Noâ—suit may be but not so in the case of Dower in which Judgment is quod recuperet c. A Precipe is brought against two one pleads to issue the other an insufficient Plea upon which Judgment is given No Error lieth before Judgment be given for the other for the whole matter is not determined But in several Precipes against two it is otherwise 34. H. 6. 18. Fitz. Scire facias 11 Rep. 39. a. b. In case of Ejectione firme it is a Quere if Error may be brought c. And Bankes Chief Justice said That it had been adjudged both ways but that differs from our case for in that damages are given by the Common Law Judgment is in a Quare impedit Error may be brought before c. which is like to our case for damages in both cases are given by Statute And where it was objected That thereby damages should be lost He answered No. For the Kings Bench may award a Writ of Enquiry of Damages And the 11 Rep. is express Authority 2. The Error is no Supersedeas c. 11 Iac. in Tincke and Brownes case it was ruled and resolved That a Writ of Error brought was not a Supersedeas to the Writ of Enquiry of damages But it was resolved by all the Judges that the Error
the Corporation spake these words of the Plaintiff to his Brethren of the Corporation He praedict the Plaintiff innuendo is an ignorant man and not fit for the place and he said that by reason of speaking of these words that they refused to elect him Steward and whether these words were actionable or no was the Question This case was argued twice in Trinity-Term by Callis and Gotbold Serjeants and the Judges seemed to incline to opinion That the words were Actionable but yet no judgment is given Selden against King in Common Pleas Trin. 17 Car. Regis 218. IN a Replevin the Case was thus A man granted a rent out of certain Lands and limited the same to be paid at a house which was another place off the Land and in the grant was this clause that if the rent were behind and lawfully demanded at the house that then it should be lawful for the grantee to distrein the Rent was afterward behind and the grantee distreined and upon traverse taken upon the demand whether this distress upon the Land which had been good in Law if there had not been a special limitation of demand at a place off the Land be a good demand as this Case is was the point Mallet Serjeant the distress is a demand in it self and there needs not any other demand although the rent be to be paid off the Land as here And it was adjudged in this Court about 3 years past that the distress was a sufficient demand but I confess that a Writ of Error is brought in the Kings Bench and they incline there to reverse it and there is no difference where the rent is payable upon the Land where not and so it was adjudged Trin. 3 Car. Rot. 1865 or 2865. betwixt Berriman and Bowden in this Court and he cited also Fox and Vaughans Case Pasch. 4 Car. in this Court and Sir Iohn Lambes case Trin. 18 Car. Rot. 333. in this Court both adjudged in the point and he cited many other Judgments Iermyn Serjeant contrary that the distress is no sufficient demand as this Case is he ought to demand it at the place appointed by the grant for it is part of the grant and the words of the grant ought to be observed 28 H. 8. Dyer 15. and in the Comment 25. a. it is said that Modus legem dat donationi and therefore by the same reason that the grantor may appoint the time and place of payment as here he hath done by the same reason he may appoint a place for the demand and that he shall make that demand before he distrein for the same is neither repugnant nor impossible nor against the Law and therefore good and by consequence ought to be observed and then he answered the Cases which were cited to be adjudged against him In Symmons Case in the Kings Bench there it was resolved that a distress was a demand in Law and a demand in Law is as strong as a demand in fact as it was said by Justice Barckley in debate of that Case But note that in that Case there was no time in certain limited and further in that Case the Rent was payable upon the land and therefore in that Case I agree that a distress will be a good demand because that the demand is to be made upon the land but it is not so in our Case In Sands and Lees case Trin. 20 Iac. in this Court there also the rent was payable upon the land Berriman and Bowdens Case Trin. 3 Car. cited before I agree was our very Case in point but there Judgment was given upon Confession and therefore doth not rule our Case and in Sir Iohn Lambes Case there was no Judgment given and therefore that doth not rule our Case but Melsam and Darbies case M. 6 Car. Rot. 389. in the Kings Bench a Case in the point where Judgment was reversed upon a Writ of Error there brought for want of demand and Selden and Sherleys case in that Court a Case also in the point was reversed Mich. 16 Car. in the Kings Bench upon a Writ of Error brought for want of demand wherefore I conclude that there ought to have been an actual demand at the house according to the grant in our Case and therefore the Traverse in this Case taken by the grantor is well taken Note that Justice Crawley said that Lambes Case was adjudged that there needed no demand and he said that there were three Judgments accordingly in this Court but Rolls Serjeant said that Darbies Case was reversed in the Kings Bench for want of a demand But note that Foster and Reeve Justices did incline that there should be a demand and so Bankes Chief Justice for he said that it is part of the contract and like a condition precedent for as in a condition precedent a man ought to perform the condition before he can take any thing by the grant so in this Case the grantee ought to make a demand to enable him to distrein for before the demand he is not by the manner of the grant which ought to be observed entitled to a distress wherefore he give direction to the Counsel that they would view the Records and shew them to the Court and further he said to them that where it appeareth that the Rent was demandable upon the land that those cases were not to the purpose and therefore wished that they would not trouble the Court with them Levet and Sir Simon Fanshawes Case in Common Pleas Trin. 17. Car. Regis 249. LEvett brought debt against Sir Simon Fanshawe and his Wife as Executrix of another and sued them to the Exigent and at the return of the Exigent the Defendant Sir Simon Fanshawe came in voluntarily in Court and prayed his Priviledge because he was an Officer of the Exchequer and whether he should have his priviledge in that case or not was the question and that rests upon two things First because he is sued as this case is meerly for conformity and necessity-sake and in the right of another viz. in the right of his wife as Executrix And secondly because he demands his priviledge at the Exigent Whitfield Serjeant that he ought to have his priviledge and he cited Presidents as he said in the point as Pasch. 44 Eliz. in the Exchequer Iames Ashtons case sâ—rvant to the Treasurer and Pasch. 23. Iac. Rot. 131. Stantons case also in the Exchequer in both which cases he said husband and wife were sued in the right of the wife and the husband had his priviledge But he cited a Case which was nearer our Case and that was Hill 8. Iac. in the Exchequer Wats and Glovers case where husband and wife were sued in the right of the wife as Executrix and he said that it was over-ruled that the husband should have his priviledge 22 H. 6. 38. and 27 H. 8. 20. in those Cases the husband and wife were sued in the right of the wife and yet the husband
help it 12. pl 32. A man brought Trespass for fishing in seperali â—â—sâ—eria sua and declares that the Defendant â—â—â—es ipsius câ—pit and good for that he had a qualified property in them ratione privilegii 48 pl. 77. If a Ship be taken by Letters of Mart and is not brought infra prâ—â—siâ—ia of the King who granted them the property is not altered 110 pl. 118. Quilibet potest renunciare juri pro se introducto AN Orphan may waive the Court of Orphans and sue in Equity for it is a priviledge which the Orphan hath quilibet potest renunciare c. 107. pl. 185. Recital WHere a false Recital shall not avoid a grant 31. pl 66. Grants of the King need not to recite Leases not of Record nor Copyholds 206. pl. 246. Recognizance It is no good plea to say that such a one was bound in a Recognizance and to conclude that it was secundum â—ormam statuti but he ought to say per scriptum obligatorium 76. pl. 117. Records An Order of the Sessions of peace is a Record and therefore the plea of nul tiel Record of Sessions of peace is a good plea. 121. pl. 200. Relation If a man be living at the day of Nisi prius and dies before the day in Bank the writ shall not abate so if a man be living the first day of Parliament and dies before the last yet he may be attainted for that they are but one day by relation 65. pl. 101. Releases Release to a bargainee before inrolment is not good 70. If divers recover costs joyntly in the Ecclesiastical Court and after one of them releases this is no bar to the others in a 〈◊〉 there for their costs so where a baron and feme recover costs there in the right of the wise and the baron releases this shall not bar the wife 73. pl. 112. See Title Prohibition Two men are bound joyntly and severally to a third who sues the bond against both and after appearance enters a Retraxit against one whether this shall amount to a Release so that it shall discharge the other or not quaere 95. pl. 165. Remainder and Reversion The King may grant an office in reversion but not a common person nor a Bishop without Custom 42 43. Remover of Records A. and B. were indicted for a murder B. flies A. brings a Certiorari to remove the Indictment into the Kings Bench whether all the Record be removed or but part quaere 112. pl. 190. Writ of Errour bearing Teste before the plaint entered is naught and the Record is not removed by it otherwise where is bears Teste before Judgement 140. pl. 212. Reparations The inhabitants of a Parish are bound by the Common Law to repair the high-wayes within the Parish except prescription binde any particular persons to it 26. pl. 62. A man is compellable in the Ecclesiastical Court to repair a way which leads to the Church but not a highway 45 pl. 70. Repleader Where there is an insufficient bar and a good Replication after a Verdict there shall be a Repleader contrary where no Verdict 78. 125. Replevin Replevin lies of a Ship 110 pl. 188. Requests A. is bound to B. to deliver to him two hundred weight of Hops and B. to chuse them out of 24 bags c. whether B. is bound to request A. to shew the bags for him to make his election or not quaere 74. pl. 113. Rescous For a Rescous upon mean process no Action lies against the Sheriff otherwise in case of Execution 1. pl 1 Restitution Clerk of a Parish is put out by the Parson without cause no writ of Restitution lies 101. pl. 174. Barrister of one of the Temples was expelled the house whereupon he prayed his writ of Restitution and denied because that there is no body in the Inns of Court to direct unto they being no body corporate 177. pl. 235. Retorn of a Sheriff Sheriff in retorn of a Rescous saith that he was in custodia ballivi itinerantâ—s and that Rescous was made to him the retorn is naught because the Law takes no notice of the Baylie itinerant 92. pl. 153. Revocation The King presents and before institution presents another whether this be a Revocation of the former presentation or not quaere 86. Scire Facias UPon a Judgement in the Kings Bench there ought to be two Scire Faciases one against the principal the other against the Bayle but one only suffices in the Common Pleas and two Nihils retorned amount to a Scire feci 3. pl. 4. A man acknowledgeth a Statute and after grants a Rent the Statute is satisfied the grantee of the Rent may distrain without suingâ—a Scire Facias 124. pl 203. 159. pl 230. 207. pl. 247. Sequestration No Sequestration ought to be granted by a Court of Equity until all the process of contempt are run out the sequestring of things collateral is illegal 81. pl. 130. For sequestring of collateral things a prohibition was granted to the Court of Requests 99. pl. 151. Sewers Divers Exceptions taken to the proceedings of the Commissioners of Sewers upon Certificates of them 123. pl. 202. 191. pl. 241. Resolved upon question and debate that a Certiorari doth lie to remove the proceedings of the Commissioners of Sewers 192. pl. 241 Supersedeas Writ of Errour brought here to reverse a Judgment given in Ireland is a Supersedeas to the Execution 10. pl. 27. A Writ of Error is no Supersedeas of it self without notice 54. pl. 81. Writ of Error is a Supersedeas to the Writ of Enquiry of Damages 88. pl. 142. Tenant at will WHether a bargainee before inrolment or entry shall be a Tenant at will or not quaere 62. pl. 97. 69. 108. Tender The defendant upon an award was to pay to the plaintiff 8 l. or 3 l. costs of suit expended in an action of Trespass betwixt the plaintiff and defendant as should appear by a note under the Attornies hand of the plaintiff c. the plaintiff is not tyed to cause his Attorney to tender the note to the defendant but the defendant ought to seek the Attorney and request it of him 108. pl. 186. 156. pl. 225. Traverse A man pleaded the descent of a Copyhold in see the Defendant to take away the descent pleads that the ancestor surrendred to the use of another absque hoc that the Copyholder died seised the Traverse is naught 21. pl. 48. A man was bound to pay money at such a place in debt brought against him he pleaded that he payed the money at the place this is not traversable 77. pl. 122. Trespass An action of trespass lies upon the Statute of 2 E. 6. against any man that takes the Tythes 21. pl. 49. Trespass for fishing in sâ—perali piscaria of the Plaintiff 48. pl. 77. Trover conversion Trover and conversion lies of a Ship 110. pl 188. Tythes A Vicar cannot have Tythes but by dotation
imply an affirmative will bear an Action 19. It was said to a Merchant That he was a cousening Knave And the Opinion of the Court was the chief Justice and Justice Crooke being absent that the words were not actionable because he doth not touch him in his Profession for the words are too general But it was said That to call him Bankrupt was actionable And mall Cases where a man is touched in his Profession the words are actionable But to call a Lawyer a Bankrupt is not actionable Justice Iones said that Serjeant Heath brought an Action for these words One said of him That he had Vndone many and it was adjudged actionable because he touched him in his Profession 20. Kingston upon Hull is a Particular and Limited Jurisdiction and they held Plea of a Bond which was made out of their Jurisdiction and thereupon a Capias was awarded against the Obligor who was arrested upon it and suffered by the Sheriff to escape And the Opinion of the Court was clear That no escape would lie against the Sheriff upon the difference in the case of the Marshalsea That if the Court hold Plea of a thing within their Jurisdiction but proceed erroneously that it is avoidable by Error but if they have not Jurisdiction of the cause all is void and coram non Iudice 11 H. 4. and 19 E. 4. Acc. So in the principal Case for they held Plea of a thing which was out of their Jurisdiction and therefore the whole proceeding being void no Action can lie against the Sheriff for there was no Escape 21. Where a man is Outlawed and the Outlawry reversed notwithstanding the Original doth remain and the cause that the Original was determined was the Outlawry and now Cessante causa cessat effectus 22. A man made a Lease for years with exception of divers things and that the Lessee shall have conveniens lignum non sâ—â—ccidendo c. vendendo arbores c. Now the Lessee cut down Trees and the Lessor brought an Action of Covenant and the Opinion of the Court was That the Action would lie and that it is as a Covenant on the part of the Lessee because the Law gives him reasonable Estovers and by this Covenant he abridgeth his Priviledge 23. Justice Iones said and so it was agreed by the Court In what case soever there is a Contract made to the Testator or the Intestate or any thing which ariseth by Contract there an Action will lie for the Executor or Administrator but Personal Actions die with the Testator or Intestate 24. The Administrators of an Executor shall not sue a Scire facias upon a Judgment given for the Testator because the Testator now died Intestate because there is no privity And so it hath been many times adjudged 1 Rep. 96. a. 5 Rep. 9. b. The Earl of Oxford and Waterhouse Case in a Writ of Error to reverse a Fine 25. WAterhouse levied a Fine the Earl of Oxford pleaded that he was beyond Sea at the time of the Fine levied Waterhouse replied That he came here into England in August within the five years and upon that they were at issue The Jury found that he came over in Iuly And notwithstanding the Opinion of the Court was clear That the Writ of Error did not lie For although the Jury have found that he came over in Iuly yet the substance of the matter is that he was in England so as he might have made his Claim and therefore the Fine should bar him And Justice Barckley compared it to the Case of 10 Eliz. Dyer 271. b. which Case is a Quaere in Dyer but Resolved in the 6 Rep. 47. a. A man brought Debt against an Heir who pleaded that he had nothing by Descent The Plaintiff pleaded that he had Assets in London and the Jury found Assets in Cornwal and good for the substance is whether he had Assets or not 26. If a Nobleman who is not a Baron or Earl of this Realm in an Action brought against him or by him be named Knight and Earl of such a place it is good because that although he cannot be sued or sue another by the name of Earl Baron c. yet by the name of Knight he may and that is sufficient 27. Writ of Error was brought here to reverse a Judgment given in Ireland it is a Supersedeas to the Execution for although the Record it self is not sent over for fear of losing the same in the water or otherwise yet a transcript is made thereof which is all one And Justice Barckley compared it to the Case where a Writ of Error is brought in this Court to reverse a Fine in the Common Pleas there the Record it self is not sent but a Transcript thereof because we have not a Cirographer to receive it but the Transcript is all one Sir John Compton's Case upon the Statute of Winchester 13 Ed. 1. and 27 Eliz. of Robberies 28. SIr Iohn Compton Knight brought an Action against the Hundred of Olison or the like name for a Robbery done upon Red-hill in the County of Surry within the aforesaid Hundred and the Robbery was done upon his man and five hundred and ten pounds was taken from him And in this Case it was agreed by the Justices That although there be a remisness or negligence in the party who was robbed to pursue the Robbers or that he did refuse to lend his Horse to make Hue and Cry yet this doth not take away his Action nor excuse the Hundred if notice be given with as much convenient speed as may be as the Statute of 27 Eliz. speaks for them to make Hue and Cry And although the Party who was robbed doth not know the Robbers at the present time and thereof takes his Oath before a Justice of Peace as the Statute of 27 Eliz. hath provided and afterwards comes to know them and so he affirm yet this doth not take away his Action And it was resolved also that notice given in one Hundred five miles from the place where he was robbed is sufficient and the reason is because that the party who is a stranger to the Country cannot have conusance of the nearest place or Town Chief Justice That notice given at one Town and Hue and Cry levied at another is good And the Jury found for the Plaintiff And thereupon a Quaere was made by one who was of Counsel with the Hundred Whether such persons who become Inhabitants after the Robbery and before the Iudgment whether they should contribute And Justice Barckly said That all who are Inhabitants at the time of the Execution should pay it 29. A Vicar cannot have Tithes but by Gift Composition or Prescription For all Tithes de jure do appertain to the Parson 30. A man was bound to the Good Behaviour for Suborning of Witnesses Plowden against Plowden 31. PLowden the Son brought Trespass against Plowden the Father for taking the Plaintiffs Wife cum bonis viri And
choose their Church-wardens and they chose two the Parson chose a third The Official of the Bishop gave Oath to one of them chosen by the Parish but refused to swear the other and would have sworn the party chosen by the Parson but the Parish was against it upon which the Parson Libelled in the Ecclesiastical Court And a Mandat was here praid That the Official swear the other who was chosen by the Parish and a Prohibition to stay the Suit in the Ecclesiastical Court. Upon the Mandat the Justices doubted and desired that Presidents and Records might be searched and at length upon many Motions Presidents and Records shewed a Mandat was granted But there being Suit in the Ecclesiastical Court bâ— the other whom the Parson chose a Prohibition was granted without any difficulty But at first the Counsel prayed a Prohibition for not swearing the other which the Court refused to grant because there was no proceeding in the Ecclesiastical Court and a Prohibition cannot be granted where there is no proceeding by way of Suit Vaughan against Vaughan in Action upon the Case upon Assumpsit 51. THe Defendant did promise that he would make such a Conveyance of certain Lands and pleaded That he had made it but did not shew the place where it was made And the Court was clear of Opinion that he need not for it shall be intended upon the Land And so in case of performance of Covenants it is not needful to shew the place where c. Norrice and Norrices Case 52. COpy-holder for life where the custome is That if the Tenant die seised that he shall pay a Heriot The Lord granted the Seigniory for 99 years if the Tenant should so long live And after that he made a Lease for 4000 years Tenant for Life is disseised or more properly ousted and died Here were two Questions 1. Whether there were any Heriot to be paid and admitting there were yet who should have it whether the Grantee for 99 years or he who had the 4000 years And the Court was clear of Opinion in both points without any argument 1. That a Heriot was to be paid not withstanding that the Tenant did not die seised because he had the estate in right and might have entred although he had not the possession And Justice Barckley compared it to the Case in C. 3. Rep. 35. a. in Butler and Bakers Case where a man hath one acre of Land holden in Capite and a hundred acres of Socage Land and afterwards he is disseised of the Capite Land and afterwards makes his will of all his Socage Land in that case he is a person having of Capite Land as the Statute speaks And yet that right of Capite Land shall make the devise void for the third part for notwithstanding the disseisin yet he is Tenant in Law And as to the second point the Court was clear of Opinion also That he in remainder or he that had the Estate for 4000 years for note the Action was brought by him in the Remainder for the Heriot should not have it And their reason was because the Tenant for life was not the Tenant of him who had the future interest of 4000 years but of him who had the interest for 99 years But they were not clear of opinion that the Grantee for 99 years should have the Heriot Justice Barckley was that the Grantee for 99 years should have it But Justice Iones there being then none in Court but they haesitavit And the reason of the doubt was because that eo instante that the Tenant died eodem instante the estate of the Grantee for 99 years determineth Justice Iones put this Case A Seigniory is granted for the life of the Tenant the remainder over in fee the Tenant dieth Who shall have the Ward Justice Barckley said he who is Grantee of the particular estate but Iones seemed to doubt it Vide 44 E. 3. 13. Lewes against Jones in a Writ of Error 53. JUdgment was given for Iones against Lewes in an Action brought in the Common Pleas And Lewes here brought a Writ of Error and assigned for Error That he was an infant at the time of the Action brought against him And that he appeared by Attorney whereas he ought to appear by Guardian or procheine amy The defendant pleaded in avoidance of this Writ of Error That there was no Warrant of Attorney The Plaintiff allegando shewed the Error before And the Defendant pleaded in nullo erratum est And the Judgment was reversed But the Opinion of the Court was That the better way had been for the Plaintiff to have demurred in Law for there being no warrant of Attorney there was no appearance at all and so are the Books 38 E. 3. and 14 E. 4. 54. In Vtburt and Parhams Case it was agreed That a man may be Non-suit without leave of the Court but he cannot discontinue his Suit without consent of the Court. Davis and Bellamies Case in Attaint 55. THe Defendant brought Attaint and the Verdict was affirmed and Costs prayed upon this Rule that where the Plaintiff shall have costs there the Defendant shall have costs But they were denied by the Court for that ought to be taken in the original Action and not in case of Attaint But upon the restituatur there costs shall be given but that is in the original Action 56. If two joynt-tenants be of a Rectory and one sueth for Tithes by himself only it is nâ— cause of Prohibition So if a Feme Covert sue solely upon a desamation a Prohibition shall not be granted 57. The Sheriff of a County made a Warrant Balâ—ivis suis to arrest the body of such a man and the Bayliffs of the Liberâ—y return a Rescous And Exception was taken to it because that the Warrant was Ballivis suis and the Return was made by those who were not his Bayliffs and it was adjudged for the Liberty might be within his Bayliwick and so are all the Presidents And there was another Exception because the place of the Rescous was not shewed and for that the Book of 10 E. 4. was cited for there the Rescous was adtunc ibidem and did not shew the place To that it was answered by the Court and agreed that adtunc ibidem is altogether incertain if the place be not shewed but in the principal Case the place was shewed at the first and always after that tunc ibidem only without naming of the place and adjudgâ—d good For that tunc ibidem throughout the Declaration hath reference to the place first shewed and it was adjudged good 58. Outlawry was reversed for this Error because that the Exigent was Secund exactus ad Com' meum ibidem c. 59. A Hundred may prescribe in Non decimando and it is good for it is the custome of the County which is the best Law which ever was But a Parish or a particular Town cannot prescribe in Non decimando And
thereupon a Prohibition was granted And a Prohibition was granted in this Court upon this surmise That the Custome was that Tithes should not be paid of Pheasants 60. If there be no Venire facias it is not Error but it is helped by the Statute But if there be a Venire facias and it is erroneous it is not holpen by any Statute Trinity-Term 15º CAROLI in the Kings Bench. 61. A Man indicted others at the Sessions-house in the Old-Baily who were acquitted and the Defendants Counsel did remove the Indictment into the Kings Bench and prayed a Copy thereof to the end they might bring a Conspiracie or have other remedy for the wrong done unto them And it was denied by the whole Court unless the Recorder will say That there appeared malice in the prosecution For a man shall not be punished for lawful prosecution upon just ground without malice although the parties be acquitted by Law The King against the Inhabitants of Shoreditch 62. MAster Keeling Clerk of the Crown in the Kings Bench did exhibit an Information against the Inhabitants of Shoreditch for not repairing the High-way And the Issue was Whether they ought to repair it or no And it was said by the Court That by the Common Law the Inhabitants of a Parish ought to repair all High-ways lying within the Parish If prescription did not bind some particular person thereto which was not in this Case And in this Case some of the Inhabitants would have been Witnesses to prove that some particular Inhabitants lying upon the High-way had used time out of minde to repair it but were not permitted by the Court because they were Defendants in the Information wherefore the Jury found That the Inhabitants ought to repair the way 63. Two men and their wives were Indicted upon the Statute of Forcible Entry who brought a Certiorari to remove the Indictment into the Kings Bench. Some of them did refuse to be bound to prosecute according to the Statute of 21 Iac. c. 8. and therefore notwithstanding the Certiorari the Justices of Peace did proceed to the trial of the Indictment and here it was resolved That whereas the Statute is The parties Indicted c. shall become bound c. That if one of the parties offer to find Sureties although the others will not yet that the cause shall be removed for the denying of one or any of them shall not prejudice the other of the benefit of the Certiorari which the Law gives unto them And the Woman cannot be bounden And it was farther resolved that where the Statute saith That the parties Indicted shall be bound in the sum of ten pounds with sufficient Sureties as the Justices of the Peace shall think fit that if the Sureties be worth ten pounds the Justices cannot refuse them because that the Statute prescribes in what sum they shall be bound Like to the Case of Commission of Sewers 10 Rep. 140. a. That where the Statute of 3. H. 8. cap. 5. enables them to ordain Ordinances and Laws according to their wisdoms and discretions that it ought to be interpreted according to Law and Justice And here it was farther resolved that after a Certiorari brought and tender of sufficient Sureties according to the Statute all the proceedings of the Justices of Peace are coram non Iudice The Argument of the Lord Chief Iustice in the Case between James and Tintny in a Writ of Error to reverse Iudgment given in the Common Pleas for Tintney Defendant in a Replevin brought by James the Case was thus vis 64. STowel was Lord of a Mannor and Iames one of the Tenants and there the custome was That the Steward of the Mannor might make Laws and Ordinances for the well-ordering of the Common And the custome was also to Assess a penalty or a pain upon those who brake those Laws and Ordinances And also to prescribe to distrain for the penalty The Steward made an Ordinance That he who put his Cattle beyond such a bound that he should pay 3 s. 4 d. Iames offended against this Ordinance upon which the penalty was assessed and a distress taken by Tintny Defendant in the Replevin Plaintiff and Baily of the Lord of the Mannor And Judgment was given for him in the Common Pleas and damages assessed Upon which a Writ of Error was brought In this Case it was agreed by the whole Court that the Custom was reasonable And the difference taken where the Law or Ordinance takes away the whole profit of the Commoners and where it abridgeth it only or adds limits or bounds to it as in this Case And farther it was agreed That the Commoners are bound to take notice of these Ordinances But in this Case the Erâ—or which was assigned was this That damages were given for the Defendant where no damages ought to have been given And of that Opinion was the Lord chief Justice that no damages ought to have been given and with him agreed Justice Iones but Justice Crook and Justice Barckley è contra It is clear that at the Common Law the Defendant shall not have damages although as to some intent the Avowant be as it were a Plaintiff and Actor 21. H. 6. 2. 6. H. 4. 11. 35 H. 6. 47. Then the Question ariseth only upon these two Statutes viz. 7. H. 6. cap 4. 21. H. 8. c. 19. And first whether our Case be within the Letter of these Laws Admitting that not Whether within the mischief so as that it shall have the same remedy And I conceive it is not within the Letter or Equity of these Statutes Not within the Letter for they speak Where a man distrains for Rents Customs and Services or damage â—easant And in our Case he doth not distrain for any of them for it is manifest that he doth not distrain for Rents Services or Damage feasant And it is as clear that he doth not distrain for Customs for he distrained for a penalty assessed by Custom 1. In Alcocks case it was here resolved That where a prescription was alledged to distrain for an Estray and found for the Avowant that no damages should be in that case For it was here resolved that the Customs intended in 21 H. 8. cap. 19. are Customs which are Services 2ly I hold it not within the Equity for the mischief at the Common Law was That damages were not to be recovered for such Rents Services c. And this penalty is no Service And I conceive clearly That it was not the meaning of the Makers of the Act of Parliament to extend to such penalties And here I further take the difference which is in Pilfords case in the 10 Rep. 116. In all cases where a man at the Common Law cannot recover damages If a Statute give damages there he shall recover no costs for the same is an Act of Creation which gives remedy where none was given before But where there is an Act of Addition which increaseth the damages at the
be at one time customary and go according to the custom and at another guildable And the whole Court Crooke only being absent were against him that the custom was good Hicks against Webbe 83. IN Trespass for a way the Defendant did justifie and said that he had a way not only ire equitare averia sua fugare but also carrucis carreragiis carriare The Plaintiff traversed it absque hoc that he had a way not only ire equitare c. in the words aforesaid and thereupon they were at issue and found for the Plaintiff Glynn moved in arrest of Judgment that the Issue was ill joyned because it was not a direct affirmative but by inducement only And the whole Court was against him And Justice Iones said That if I say that not only Mr. Glynn hath been at such a place but also Mr. Iones without doubt it is a good affirmative that both have been there But they all agreed that the pleading was more elegant than formal 84. In the Case betwixt Brooke and Boothe Justice Barckley said that it is a Rule That if there be two things alledged and one of necessity ought to be alledged and he relies on-only upon the other it is no double Plea As if a man plead a Feoffment with Warranty and relieth upon the Warranty it is not double 85. Justice Barckley said That the Court of the Exchequer they may make a Lease for three Lives by the Exchequer-Seal Clarke against Spurden 86. IN a Writ of Error to reverse a Judgment given in the Court of Common Pleas the case was shortly thus A. wife of I.S. intestate promiseth to B. to whom Adnistration was committed that if he shall relinquish the Administration at the request of C. and suffer A. to Administer that A. will discharge B. of two Bonds In Assumpsit brought by B. in the common Pleas he alledged that he did renounce Administration and suffered A. to Administer and that A. had not discharged him of the two Bonds And it was found for the Plaintiff And thereupon Error was brought because B. doth not shew that he did renounce the Administration at the request of C. And Rolls for the Plaintiff in the writ of Error did assign the same for Error Justice Barckley all the other Justices being absent held that it was Error for consideration is a thing meritorious and all ought to be performed as well the request on the part of C. as the permission of the part of B. which ought to be shewed For perhaps B. was compelled to relinquish it in the Ecclesiastical Court as it might be for of right the wife ought to Administer And therefore it ought to have been averred that it was at the request of C. And therefore if it had been that he should renounce at the charge of C. it ought to be averred that it was at the charge of C. And it was adjourned 87. A man Libelled in the Spiritual Court for Tithes for barren cattle and it was moved for a Prohibition upon this suggestion viz. That he had not other cattle than those which he bred for the Plough and Pale and thereupon Barckley being alone there granted a Prohibition And the same Parson also Libelled for Tithes of Conies and for that also he granted a Prohibition for they are not Titheable if not by custome And here Barckley said That if Land be Titheable and the Tenant doth not plough it and manure it yet the Parson may sue for Tithes in the Ecclesiastical Court North against Musgrave 88. IN Debt upon the Statute of 1 2 Phil. Mar. c. 12. the words of which Statute are That no man shall take for keeping in pound impounding or poundage of any manner of distress above the sum of four pence upon pain of forfeiture of five pounds to be paid to the party grieved And the Plaintiff shewed that his Cattle were distreyned and impounded and that the Defendant took of him ten pence for the poundage And thereupon the Plaintiff brought an Action for the penalty of five pounds and found for the Plaintiff And the Judgment was That he should recover the five pounds and damages ultra praeter the mony taken for the poundage And thereupon a Writ of Error was brought and three things assigned for Error First because the Action was brought for the penalty of five pounds only and not for the six pence which was taken above the allowance of the Statute which ought not to be divided Which was answered by Justice Barckley all the other Justices being absent That notwithstanding it is good for true it is that he cannot bring his Action for fifty shillings part of the penalty because it is entire but here are two several penalties and he may divide and disjoyn them if he will or he may wave the six pence For quilibet potest renunciare juri pro se introducto The second was That he doth not demand that which is ultra praeter the four pence given by the Statute and yet the Judgment is given for that which is not good To which Justice Barckley said That the Judgment was good For no judgment is given for that which is ultra praeter the four pence but only for the four pounds because he doth not demand it And we cannot judge the Judgment to be erroneous by Implication The third Objection was That Costs and Damages are given which ought not to be upon a penal Law For he ought not to have more than the Statute giveth and therefore upon the Statute of Perjury no Costs are given so upon the Statute of Gloucester of Wast the Plaintiff shall recover no more than the treble value But Rolls who was on the contrary said That there are many presidents in the common Pleas that Damages have been given upon this Statute But Barckley and Iones who afterwards came and seemed to agree with Justice Barckley in the whole was against it That no Damages ought to be given and desired that the Presidents might be viewed But here Rolls offered this difference Where the penalty given by the Statute is certain as here upon which he may bring Debt there he shall recover Damages but where the penalty is uncertain as upon the Statute of Gloucester for treble damages the Statute which giveth the treble value and the like there because it is incertain he shall have no more Barckley asked Mr. Hoddesdon If the Informer should recover Damages And he and Keeling Clerk of the Crown answered No but said Damages should be given against him and it was adjourned 89. Skinner Libelled in the Ecclesiastical Court for thâ— Tithes of Roots of a Coppice rooted up And Porter prayed Prohibition And it was said by Iones and Barckley Justiceâ—â— no other Justice being present That if cause were not shewed before such a day that a Prohibition should be awarded because it is ad exheredationem and utter destruction of 〈◊〉 And the Opinion was that the
harmless and doth not shew how as he ought to have done but he ought to have pleaded non damnificatus and that had been good without any further shewing which he hath not done and therefore the Plea was not good and it was agreed that the same was not helped by the Demurrer because the same was matter of substance but the Plaintiff might take advantage of it notwithstanding and therefore Judgment was given for the Plaintiff 201. In Debt Judgment was given against the principal whereupon a Scire facias issued forth against the Bail and Judgment upon Nihil dicit was given against them whereupon a Writ of Error was brought and Error assigned that there was no warrant of Attorny filed for the Plaintiff and upon debate whether the warrant of Attorny ought to be filed or on the Court seemed to incline their opinion upon these differences but gave not any Judgment First where it may appear to the Court that there was a warrant of Attorny and where not If there was not any warrant of Attorny there they cannot order the making of one but if there was one they conceived that they might order the filing of it Second difference Where the warrant wanting were of the part of the Defendant and where of the part of the Plaintiff in the Writ of Error if it be of the part of the Plaintiff such a warrant of Attorney shall not be filed because he shall not take advantage of his own wrong the last thing was where the Record by the lachess of the Plaintiff in the Writ of Error is not certified in due time there the warrant of Attorny shall be filed And the Books cited to warrant these differences were 2 H. 8. 28. 7 H. 4. 16. 2 Eliz. Dyer 180. 5 Eliz Dyer 225. 1 2 Phil. Mar. Dyer 105. 15 Eliz. Dyer 330. 20 Eliz. Dyer 363. and 6. El. Dyer 230. Note that it was said by Crawley That it is all one wheâ—e there is no warrant of Attorney and where there is and he said there are many Presidents accordingly and that the same is holpen by the Statute of 8 H. 6. cap. 1 2. But Bankes Chief Justice contrary That it is not helped by the Statute of H. 6. and so it is resolved in the 8 Rep. 162. And he caused the Proâ—onotharies so search Presidents but yet he said they should not sway him against the printed Law because they might pass sub silentio And the Chief Justice observed also that the same is not holpen by the Statute of 18 Eliz. for that helps the want of warrant of Attorny after Verdict only and not upon Nihil dicit as this case is or upon wager of Law or upon confession or non sum informatus And the Court said That it shall be a mischievous case that Attornies should be suffered to file their warrants of Attorny when they pleased and therefore they gave warning that none should be filed after the Term and willed that the Statute of 18 Eliz. cap. 16. should be put in execution Mich. 17º Car. in the Kings Bench. 202. ACertiorare was directed to the Commissioners of Sewers who according to the Writ made a Certificate to which Certificate divers exceptions were taken by Saint-Iohn the Kings Sollicitor First that it appeareth not by the Certificate that the Commission was under the Great Seal of England as it ought to be by the Statute of 23 H. 8. cap. 5. Secondly the Certificate doth not express the names of the Jurors nor shew that there were twelve sworn who made the prâ—sentment as by the Law it ought to be but only quod praesentatum fuit per Iurator ' so that there might be but two or three Thirdly it appears by the Certificate that it was presented by the Jury That the Plaintiff ought to repair such a Wall but it is not shewed for what cause either by reason of his Land prescription or otherwise Fourthly they present that there wants reparation but doth not shew that it lies within the Level and Commission Fifthly there was an Assesment without a presentment contrary to the Statute for it is presented that such a Wall wanted reparation and the Commissioners assessed the Plaintiff for reparation of that Wall and another for which there was no presentment Sixthly the Tax was laid upon the person whereas by the Statute it ought to be laid upon the Laâ—d Seventhly there was no notâ—ce given to the Plaintiff which as he conceived ought to have been by reason of the great penalty which folâ—ows for non-payment of the Assesment for by the Statute the Land ought to be sold for want of payment These were the Principal exceptions taken by the Sollicitor Lane thâ— Princes Attorney took other exceptions First because they assess the Plaintiff upon information for they said that they wâ—re credibly informed that such a Wall wanted reparation and that the Plaintiff ought for to repair it whereas they ought to have done it upon presentment and not upon information or their private knowledge Secondly that they assessed the Plaintiff and for not payment sold the distress which by the Law they ought not to do for that enables them only to distrein and it was intended by the Statute that a Replevin might be brought in the Case for it gives Avowâ—y or Justification of a distress taken by reason of the Commission of Sewers and there ought to be a Replevin otherwise no avowty and if Sale of the distress should be suffered then that priviledge given by the Parliament should be taken away which is not reasonable Keeling of the same side and he said that it was adjudged Pasch. 14 Car in this Court in Hungers case That the certificate of the Commissioners was insufficient because that it was not shewed that the Commission was under the Great Sâ—al of England as by the Statute it ought to be and the Judges then in Court viz. Mallet Heath and Bramston strongly inclined to many of the exceptions but chiefly to that that there wanted virtute Literarum Paten But day was given to hear Counsel of the other side 203. A man acknowledgeth a Statute and afterwards grants a Rent-charge the Statute is afterwards satisfied Whether the grantee of the rent may distrein without suing a Scire facias was the Question which was twice or thrice debated at the Bar but because it was before that Mallet the puisne Judge was Judge the Court gave order that it should be argued again Thornedike against Turpington in the Common Pleas. 204. IN Debt upon a Bond the Defendant demanded Oyer of the Condition and had it which was that the Defendant should pay so much in a house of the Plaintiffs at Lincoln The Defendant pleaded payment at Lincoln aforesaid upon which they were at issue and the Venire facias was De Vicines civitatis Lincoln and found for the Plaintiff And now it was moved in arrest of Judgment that it was a mis-trial because the Venire
by that to discharge themselves which the Defendant here should lose if the Obligation should stand in force as to him only 8 Rep. 136. Sir Iohn Needhams case If a woman Obligee taketh one of the Obligors to be her Husband the same is a discharge to the other Two commit a trespass the discharge of one is the discharge of both yet it is there joynt or several at the will of the party who releaseth But it may be objected that it is a Casual act here and therefore shall not be so prejudicial to the Plaintiff here To that he answered That that shall not help him because it is his own lachess and default and the same Objection might have been made in Piggots case where the Obligation is altered in a material place by a stranger without the privity of the Obligee and yet there it was resolved that the same shall avoid the deed Besides if the Obligee had delivered the same over to another to keep and it had been eaten with Rats and Mice yet that would not excuse him and by the same reason shall not help the Plaintiff here Matthewsons Case C. 5 Rep. differs much from this case because there the Covenants are several and not joynt as in this Case and therefore if the Covenanâ—ee doth release to one of the covenanters that shall not discharge the others For the Cases of 14 H. 8. and Piggots Case they differ much from our Case for there the covenants or conditions against the Law are void ab initio by the construction of the Law and no alteration as in our case by the Act or default of the party by matter ex post facto and therefore those Covenants or Conditions against the Law cannot vitiaâ—e those which were good and according to Law because they took not any effect at all So if a Monk and another be bound the Bond is void as to the Monk and good as to the other because there is no subsequent alteration by the party but the same is void by construction of law ab initio and upon the same reason stands the Case of the Fine put of the other side For which causes he prayed Judgment for the Defendant Note the Court viz. Foster Reeve Crawley and Bankes Chief Justice did strongly incline that Judgment ought to be given for the Defendant and their reason was That if the Obligee by his Act or own lachess discharge one of the Obligors where they are joyntly and severally bound that the same discharges them all but gave day for the further debating of the Case for that this was the first time it was argued 207. By Justice Foster and Bankes Chief Justice a Trust is not within the Statute of 21 Iac. cap. 16. of Limitations and therefore no lapse of time shall take away remedy in Equity for it but for other Actions which are within the Statute and the time elapsed by the Statute there is no remedy in Equity and that they said was always the difference taken by my Lord Keeper Coventry but Justice Crawley said that he had conferred with the Lord Keeper and that he told him that remedy in Equity was not taken away in other Actions within this Statute 208. It was said by the whole Court that they never grant an Attachment without an Affidavit in writing 209. The Case before of the warrant of Attorney was betwixt Firburne and Cruse and was entred Trinit 17 Car. And now it was resolved upon reading of Presidents in Court that no warrant of Attorney shall be made or filed because that it is an error and not helped being after judgment in Nihil dicit that none of the presidents came to our case The greatest part of presidents were these viz. the first was 1 Car. Taylor against Thellwell the same appeared to be upon demurrer and no Judgment given Another was Mich. 3 Car. Peasgrove against Brooke and in that Case it did not appear that any Writ of Error was brought Another was Paseh 5. Car. Tayler against Sands Another Hill 6. Car. Smith against Bland in that it was conceived to be amendment only and it was agreed for Law that where there was a warrant of Attorney it might be amended for any defect in it as where there is a misprision of the name or the like as it is resolved Br. amendment 85. and so is 1 and 2 Phil. and Mar. Dyer 105. pl. 6. expresly where Alicia for Elizabetha in the warrant of Attorney was amended and that after a Writ of Error brought by construction of the Statute of 8 H. 6. and so is 9 E. 4. Br. amendment 47. And Justice Reeve said it cannot appear to us by any of the said Presidents whether there was a warrant of Attorney or not and perhaps upon examination it might appear to the Judges that there was a warrant of Attorny which is helped by the Statute of 8 H. 6. and that might be the reason which caused them to order that it should be filed but that doth not appear to us and therefore the presidents were not to the purpose Besides it doth not appear by any of them whether judgment were given or not and before judgment it may be amended as the Book is 9 E. 4. 14. br amendment 47. Besides in one of them the Plaintiff did neglect to remove the Record which is the very case in Dyer and that was the reason that the warrant of Attorney was filed but in this Case there appearing to be no warrant of Attorney it is not helped by the Statute of 8 H. 6. and after a Judgment and that upon Nihil dicit which is not holpen by the Statute of 18 Eliz and there is no Lachess in removing of the Record by the Plaintiff and for these reasons the whole Court was against the Defendant in the Writ of Error that it was Error and therefore ought not to be amended Note that in this Case it was moved that the warrant of Attorney might be filed in this Court after Error brought in the Kings Bench but observe that if it had been a thing amendable that had been no impediment to it for things amendable before Error brought are amendable after and if the inferior Court do not amend them the superior may and so it is adjudged 8 Rep. 162. in Blackmâ—res case and so is the Case express in the point 1 and 2 Phil. and Mar. Dyer 105. pl. 16. Where a warrant of Attorney was amended in Banco after Error brought and the Record certified This is only my own observation upon the Cale Mich. 17º Car. in the Kings Bench. 210. AN information was brought for the King against Edgerley Carrier of Oxford because that where by the custom of England no Carrier or other person ought to carry above two thousand weight and that with a Waggon having but two wheels and but four horses that the Defendant had used for the space of a year last past to drive Quoddam gâ—statorium
time or not The first hath been granted that there ought to be assent for the great inconvenience which might happen to Executors if Legatees might be their own carvers and so are all our Books except 2 H. 6. 16. and 27 H. 6 7. which seem to take a difference where the Legacie is given in certain and in specie there it may be taken without assent but where it is not given in certain there it cannot but he held clearly the Law to be otherwise that although it be given in certain yet the Legatee cannot take it without assent of the Executor for so the Executor should be subject to a Devastavit without any fault in him or any means to help himself which should be very inconvenient Then the second thing here to be considered is Whether there be an assent or not It is clear that if an Executor enter generally he shall be in as Executor and not as Legatee for that is best for him to prevent a Devastaviâ— and it is as clear that if he declare his intention to be in as Legatee that then he shall be so then the Question here is Whether the words in our Case be a sufficient declaration of the mind of the Executor to take the same as Legatee in the right of his wife or not and I hold that it is He agrees that the second words are not so weighty as the first but he held the first words are sufficient of themselves to make an assent and when he saith that then it remains to the Holloways that proves that he took notice thereof as a Legacie and that he would have it in that right although in truth the devise by Iohn Holloway was void so as it could not remain to them For the third he held that the assent came in due time otherwise it might be very prejudicial to Legatees for else by that means they may be many times defeated of their Legacies for put Case that an Executor will not assent and the Legatee dieth before he can compel him to assent or that the Legatee dieth in an instant after the devisor in the 5 Rep. Princes Case it is resolved that an Infant under 17 may not assent to a Legacie nor the administrator Durante minori aetate then put case that the Legatees die during the administration durante minori aetate in whose time there cannot be an assent It would be a vâ—ry great mischief if that in any of these Cases the Legatees should be defeated of their Legacies when by possibility they could not use any means to get them wherefore he held clearly that the assent of the Executor after the death of the Legatee came in good time and therefore he concluded for the Plaintiff Bramston Chief Justice also for the Plaintiff For the first point he held that there is a good assent and he said that Mannings Case hath the very words which our Case hath but my Lord Cooke did not speak of these words in the Report of the Case because he conceived that the payment of the money was a sufficient assent to the Legacie but further I conceive that it differs fully from Mannings Case for there it is found expresly that the Executor had not Assets and therefore it should be hard to make him assent by implication thereby to subject himself to a Devastavit for as I conceive an Executor shall never be made to assent by implication where it is found that he hath not Assets but there ought to be an express assent by reason of the great prejudice which might come unto him but in our Case it is not found that Lowe had not Assets an Infant cannot assent without Assets but if there be then it shall bind him and perhaps that was the reason that my Lord Coke did not report any thing of these words whether they were an assent or not and his passing over them without saying any thing of them seems partly to grant and agree that they did not amount to an assent A man deviseth unto his Executor paying so much and he payeth it it is a good assent to the Legacie so is Matthew Mannings case 8 Rep. and Plowden Comment Welâ—den and Elkingtons case and he said that an assent is a perfecting act which the Law favours and therefore he said that it was adjudged that where an Executor did contract with the devisee for an assignment of the Term to him devised that it was a good assent to the Legacie For the second point also he held clearly that the assent came in due time for otherwise it should be a great inconvenience for by that means it should be destructive to all Legacies for of necessity there ought to be an assent of the Executor and if he will not assent and the Legatee dieth before he can compel him to assent or if the Legatee dieth immediately after the Devisor before any assent to the Legacie in the first Case it should be in the power of the Executor who is a stranger to prejudice me and in the latter Case the Act of God should prejudice me which is against two Rules of Law that the Act of a stranger or the act of God shall not prejudice me wherefore without question the assent comes in due time Besides If a Legatee dieth before assent to a Legacie the same shall be assets in the hands of his Executors and the Legatee before assent hath an interest demandable in the Spiritual Court An Executor before probate shall not have an Action but he may release an Action because that the right of the Action is in him so in this Case although that the Legatee before assent hath not an interest grantable yet he hath an Interest releasable A man surrenders Copyhold-Land to the use of another and the surrenderee dieth before admittance yet his heir may be admitted and this Case is not like those Cases put at the Bar where there is but a meer possibility and not the least Interest as where the grantee of a reversion dieth before Attornment or the devisee before the devisor in those Cases the parties have but a meer possibility and therefore countermandable by death but it is otherwise in our Case as I have shewed before and therefore I conclude that here is a good assent and that in due time and therefore that the Ejectione firme brought by the Plaintiff well lieth Dale and Worthyes Case 212. DAle brought a Writ of Error against Worthy to reverse a Judgment given in the County-Palatine of Chester and the Writ of Error bore Teste before the Plaint there entred and whether the Record were removed by it or not was the Question and the Court viz. Mallet Heath and Bramston were clear of opinion without any solemn debate that the Record was not removed by that Writ of Error because that if there be not any plaint entred at the Teste of the Writ how can the Processus according to the Writ be removed
when there is no Processus entred and that failing all fails and besides it is meer for delay of Justice and they agreed that a Writ of Error bearing Teste before Judgment is good as is the book of 1 E. 5. 4. because that there the foundation stands good and it is the usual course of practise for the preventing and superseding of Execution Tuder against Rowland 213. AN Ejectione firme was brought and in the Writ was vi armis but it wanted in the Declaration and whether it were Error or not or whether it were amendable or not was the Question and Shaftoe for the Plaintiff held clearly that it was not Error but the Court did not hear it at that time the Case was Entred Pasch. 16 Car. Rot. 333. 214. Bolstrood prayed a Prohibition to a Court-Baron as also an Attachment against the Steward for dividing of Actions to bring the same within their Jurisdiction to defeat the Common Law as also for refusing to suffer the Defendant to put in any other Attorney for him than one of the Attorneys of that Court and the Court awarded a Prohibition and the Steward Darey of Lincolns-Inn then at the Bar the Court ruled that he stand committed until he had answered to interrogatories concerning that misdemeanor and they said That an Attorney at Common Law is an Attorney in every inferiour Court and therefore ought not to be refused Rudston and Yates Case entred Hill 15 Car. Rot. 313. 215. RVdston brought an Action of Debt upon a Bond against Yates the Defendant demanded Oyer of the deed and condition thereof and upon Oyer it appeared that the Bond was conditioned to perform an award to which the defendant pleaded that the Arbitrators made no arbitrament upon which they were at issue and the Jury found this special Verdict that the Defendant Yates and one Watson submitted themselves to Arbitrament and found that the Arbitrators made an Award and found the Award in haec verba but further they found that Watson was within age at the time of the submission and whether upon the whole matter the Arbitrator had made any award or not the Jury left it unto the Court so as the Question is no other but whether an Infant may submit himself to an award or not for it was agreed that if the submission were void that the award was void and by consequence the Bond void and note that the Case was that Yates bound himself that Watson who was an Infant should perform the Award and the Condition recites that where Watson who was an Infant had submitted himself to an award that the Defendant binds himself that he should perform it c. So then if the Submission be void all is void no submission no award and so no breach of the Condition and therewith the Books agree 17 E. 4. 5. 19 E 4. 1. 28 H. 6. 13. 5 Rep. 78. 10 Rep. 131. b. And by Justice Mallet the submission is void and void in part void in all for a submission is an entire thing and therefore cannot be void as to the Infant and stand good as to the man of full age There are but two Books express in the point 14 H. 4. 12. 16 H. 6. 14. and none of those are of any authority in the first there is no debate of the Case And the second is a flat quere and as I conceive the better Opinion is that the award is void for where it is there objected that it may be for the avail of the Infant Br. tit Coverture and Infancie 62 says Quere of that for it may be that the recompence given by the award may be of greater value than the Law would give in the Action and therefore by possibility it may be a disadvantage unto him and the Case betwixt Knight and Stone Hill 2. Car. in this Court Rot. 234. where this very point was in question it was resolved that if the Infant had been bound to perform the award that the Obligation had been void Further it was agreed that if it appear afterwards to be to his prejudice that that shall make the award void but the principal point was not adjudged because that the parties agreed But whereas it was then and now also objected That if an Infant cannot submit himself to an Arbitrament that thereby he should be in a worser case than a man of full age for he may have done a Trespass which subjects himself to damages by suit in Law which if he cannot discharge by this way he should be in a worse condition than a mâ—n of full age for he should lose that advantage To that he answered that if an Infant should be permitted to that he might have loss thereby for he hath not discretion to chuâ—e a compâ—tent Arbitrator and an Arbitrator might give greater damages than the cause did require and he is worse than a Judge of the Court is he is not sworn a Judge is Besides an Inâ—ant hath divers priviledges which the Court would allow but an Arbitrator not If an Infant make default the same shall not bind him so if he confess an Action the same shall not bind him and therefore he is in better Case without submission than by it and if an Infant cannot chuse an Attorney much less a Judge for an Arbitrator is a Judge an Infant cannot bind himself Apprentice although it may be pretended to be for his benefit so 21 H. 6. 31. he cannot chuse a Bayliff yet that is for his benefit he cannot give an acquittance if he do not receive the money 5 Rep. Russels case but if it be apparent for his benefit it may be good as a Lease of Ejectment to try a title made by an Infant is good because it is apparent for his benefit an Infant is in custodia Legis and therefore we are bound by Oath to defend him Besides an Infant hath not power to dispose of his goods himself and then how can he give such a power to another For which reasons he conceives the submission void and if no submission no award and therefore he gave Judgment against the Plaintiff Quod nihil capiat per â—illam Justice Heath also against the Plaintiff True it is that in this Case a stranger is bound that the Infant shall perform the award but that recites the submission by the Infant and the issue is whether they made any award or not so as the ground is whether there be any submission or not for no submission no award that so by consequence Judgment ought to be given against the Plaintiff and he held clearly that the submission is void that an Infant cannot submit himself to an Arbitrament the Judgment of Arbitrators provided that they keep themselves within their Jurisdiction is higher than any Judgment given in any Court for if they erre no Writ of Error lieth to reverse their Judgment and there is not so much as equity against them and therefore it should be a hard
not traversable because that the seism is not material 7 E. 4. 29. Com. 94. 8. Rep. 64. Fosters Case Secondly where the Seigniory is not in question there no traverse of seism so it is in Case of Writ of Escheat Cessavit Rescous c. and therewith agree the Books of 22 H. 6. 37. 37. H. 6. 25. 4. Rep. 11. a. Bevills Case Thirdly where the Lord and Tenant differ in the services there no traverse of the seism but of the tenure but where they agree in the services there the seism may be traversed and therewith agree the Books of 21 E. 4. 64. 84. 20 E. 4. 17. 22 Ass. p. 68. 9 Rep. 33. Bucknells Case and therefore the traverse here is not good First because it is a general traverse of the seism per manus the tenure not being admitted as it ought to be by the fourth rule in Bucknells Case and therewith agreeth 23 H. 6. Avowry 15. Besides it is a Rule in Law That a man shall never traverse the seism of services without admitting of a tenure and in this Case he took the tenure by protestation and therefore the traverse here is not good and therewith agreâ—â— 15 E. 2. Avowry 214. Further the traverse here is not good because he hath traversed a thing not in demand which is the rent for he ought to have traversed the seism of the fealty only for which the distress was taken and not the rent as here he hath done and therewith agreeth 9 Rep. 35. a. and 26 H. 8. 1. But as this Case is he could not traverse the fealâ—y only because that seism of rent is seism of fealty and therewith agreeth 13 E. 3. Avowry 103. 3 E. 2. Avowry 188. 4 Rep. 8. b. Bevills Case and therefore he ought to traverse the tenure True it is as it was objected by my Brother Foster that seism of Rent is not an actual seism of fealty as to have an assise but is a sufficient seism as to avow And we are here in Case of an avowry and therewith agreeth the 4 Rep. 9. a. Bevills Case wherefore I conclude that Judgment ought to be given for the avowant Here note that it was resolved by all the Judges of the Common Pleas that a traverse of seism per manus generally without admitting of a tenure is not good and therefore see 9 Rep. 34. b. 35. a. which seemeth to be contrary Hill 17º Car in the Kings Bench. Hayward against Duncombe and Foster 234. THe Case was thus The Plaintiff here being seised of a Mannor with an advowson appendant granted the next avoidance to I. S. and afterwards bargained and sold the Mannor with the advowson to the Defendants D. and F. and a third person and covenanted with them that the Land is free from all incumbrances Afterwards the third person released to the Defendants who brought a writ of Covenant in the Common Pleas and there Judgment was given that the Action would lie Whereupon Hayward brought a Writ of Error in this Court The point shortly is this Whether the Writ of covenant brought by the Defendants without the third person who released were good or not and that rests only upon this Whether this Action of covenant to which they were all intitled before the release might be transferred to the other Defendants only by the release or not And it was objected that it could not because it is a thing in Action and a thing vested which cannot be transferred over to the other two only by the release but that all ought to joyn in the Action of covenant notwithstanding Rolls contrary because that after this release it is now all one as if the bargain and sale had been made to those two only and now in an Action brought against them two they may plead a seoffment made to them only without naming of the third who released and so it is resolved in 33 H. 6. 4 5 6 Rep. fol. 79. a. Besides this covenant here is a real covenant and shall go to assignees as it is resolved in 5 Rep. Spencers Case and here is as violent relation as if the seoffment had been made to them two only It was objected by Justice Heath What if the other died It was answered perhaps it shall there survive because that it is an Act in Law and the Law may transfer that which the Act of the party cannot because that Fortior est dispositio legis quam hominis c. Booremans Case 235. BOoreman was a Barrister of one of the Temples and was expelled the house and his Chamber seised for non-payment of his Commons whereupon he by New digate prayed his writ of restitution and brought the writ in Court ready framed which was directed to the Benchers of the said Society but it was denied by the Court because there is none in the Inns of Court to whom the writ can be directed because it is no body corporate but only a voluntary Society and submission to Government and they were angry with him for it that he had waived the ancient and usual way of redress for any grievance in the Inns of Court which was by appealing to the Judges and would have him do so now Bambridge against VVhitton and his wife 236. IN an Ejâ—ctione firme upon Not Guilty pleaded a special Verdict was â—ound the case upon the special verdict this A Copyhold Tenant in fee doth surrender into the hands of two Tenants unto the use of I. W. immediately after his death and whether it be a good surrender or no was the question Harris that the surrender is void Estates of Copyholds ought to be directed by the rule of Law as is said in 4 Rep. 22. b. 9 Rep. 79. 4 Rep. 30. And as in a grant a grant to one in ventre sa mier is void so also in a will or devise and as it is resolved in Dyer 303. p. 50. so it hath been adjudged that the surrender to the use of an Infant in ventre sa mier is void and as at Common Law a Freehold cannot begin in futuro so neither a Copyhold for so the surrenderer should have a particular estate in him without a donor or lessor which by the rule of Law cannot be and he took a difference betwixt a Dâ—vise by Will a Grant executed in a devise it may be good but not in a grant executed and here he took a difference where the Grant is by one intire clause or sentence and where it is by several clauses 32 E. 1. taile 21. Dyer 272. p. 30. Com. 520. b. 3 Rep. 10. Dowties Case and 2 Rep. Doddingtons case For instance I will put only the Case in Dyer and the Comment A Termor grants his Term habendum after his death there the Habendum only is void and the grant good but if he grant his Term after his death there the whole grant is void because it is but one sentence So I say in our
do so it is void And for that he cited Clegat and Batchellers Case before that the obligation in such Case is void and he said that the reason which was given by one why the Bond should be void was grounded upon the Statute of Magna Charta cap. 29. which wills That no freeman should be ousted of his Liberties but per legem terrae and he said that the word Liberties did extend to Trades and Reeve said that by the same reason you may restrain a man from using his Trade for a time you may restrain him for ever And he said that he was confident that you shall never find one Report against the Opinion of Hull 2 H. 5. For the other part of the difference he cited Hill 17 Iac. in this Court Rot. 1265. and 19 Iac. in the Kings Bench Braggs case in which Cases he said it was adjudged against the Action upon a Bond but with the Action of the Case upon a promise that it would lie But note that all the Judges viz. Foster Reeve and Crawley Bankes being absent held clearly that if the condition be against the Law that all is void and not the condition only as was objected by Evers and it was adjorned Apsly against Boys in the Common Pleas in a Scire facias to execute a Fine upon a Grant and Render Intrat Trin. 16 Car. Rot. 112. 239. THe Case upon the Pleading was this A fine upon a Grant and Render was levied in the time of E. 4. upon which afterwards a Scire facias was brought and Judgment given and a Writ of seisin awarded but not executed Afterwards a fine Sur coâ—usans de droit come ceo c. with Proclamations was levied and five years passed and now another Scire facias is brought to execute the first fine to which the fine Sur conusance de droit come ceo is pleaded so as the only Question is Whether the fine with Proclamations shall bar the Scire facias or not Serjeant Gotbold for the Plaintiff it shall not bar and his first reason was because not executed 1 Rep. 96 97. and 8 Rep. 100. If a disseisor at the Common Law before the Statute of Non-claim had levied a fine or suffered Judgment in a Writ of Right until Execution sued they were no bars and a fine at Common Law was of the same force as it is now and if in those Cases no bar at Common Law until Execution that proves that this interest by the fine upon grant and render is not such an interest as can bar another fine before execution Besides this Judgment by the Scire facias is a Judgment by Statute and Judgment cannot be voided but by error or attaint Further a Scire facias is not an Action within the Statute of 4 H. 7. and therefore cannot be a bar 41 E. 3. 13. 43 E. 3. 13. Execution upon Scire feci retorned without another plea and it is not like to a Judgment for there the party may enter but not here Besides it shall be no bar because it is executory only and in custodia legis and that which is committed to the custody of the Law the Law doth preserve it as it is said in the 1 Rep. 134. b. and he compared it to the Cases there put and a fine cannot fix upon a thing executory and the estate ought to be turned to a right to be bound by a fine as it is resolved in the 10 Rep. 96. a. 9 Rep. 106. a. Com. 373. And the estate of him by the first fine upon grant and render is not turned to a right by the second fine Lastly the Statute of 4 H. 7. is a general Law and in the affirmative and therefore shall not take away the Statute of West 2. which gives the Scire facias and in proof of that he cited 39 H. 6. 3. 11 Rep. 63. 68. and 33 H. 8. Dyer 15. I agree the Case which hath been adjudged that a fine will bar a Writ of Error but that is to reverse a Judgment which is executed but here the Judgment is not executed and therefore cannot be barred by the fine wherefore he prayed Judgment for the Plaintiff Note that it was said by the Judges that here is no avoiding of the finâ— but it shall stand in force but yet notwithstanding it may be barred and they all said that he who hath Judgment upon the Scire facias upon the first fine might have entred and they strongly inclined that the Scire facias is barred by the fine and doth not differ from the Case of a Writ of Error but they delivered no opinion Taylers Case 240. THe Case was thus The Issue in Tail brought a Formedon in Descend and the Defendant pleaded in Bar and confessed the Estate Tail but said that before the death of the Tenant in Tail I. S. was seised in fee of the lands in question and levied a fine to him and five years passed and then Tenant in Tail died whether this plea be a bar to the Plaintiff or not was the Question and it rested upon this Whether I. S. upon this general Plea shall be intended to be in by disseisin or by feoffment for if in by disseisin then he is barred if by feoffment not and the opinion of the whole Court was clear without any debate that he shall be intended in by disseisin and so the Plaintiff is Bar as the Books are 3 Rep. 87. a. Plow Com. Stowels Case and Bankes Chief Justice said that it shall not be intended that Tenant in Tail had made a feoffment to bar his issues unless it be shewed and it lies on the other part to shew it and a feoffment is as well an unlawful Act as a dissâ—isin for it is a discontinuance Commins against Massam in a Certiorare to remove the proceedings of the Commissioners of Sewers 241. THe Case upon the proceedings was thus Lessee for years of Lands within a level subject to be drowned by the Sea covenanted to pay all assessments charges and taxes towards or concerning the reparation of the premisses A wall which was in defence of this level and built straight by a sudden and inevitable Tempest was thrown down one within the level subject to be drowned did disburse all the mony for the building of a new wall and by the order of the Commissioners a new wall was built in the form of a Horshooe afterwards the Commissioners taxed every man within the level towards the repaying of the sum disbursed one of which was the lessee for years whom they also trusted for the collecting of all the mony and charge him totally for his land not levying any thing upon him in the reversion and also with all the damages viz. use for the mony Lessâ—e for years died the lease being within a short time of expiration his executor enters and they charge him with the whole and immediately after the years expired the executors brought this
therefore I did not stick upon the Certiorare because what was done was by consent consensus tollit errorem if any be Now for the points as they arise upon the proceedings of the Commissioners and for the first I hold that the covenant doth well extend to this new wall and the making of it in the form of a horshooe is not material so as it be adjoyning to the land as it here was for that may be ordered according to their discretions it is a rule in Law that the covenant of every man ought to be construed very strong against himself and although that in this Case the new wall be not parcel of the premisses as it was at the time of the covenant because that the wall then in esse and to which the covenant did extend was a straight wall yet according to the words of the covenant this tax is towards the reparation of the premisses and if it should not extend to this new wall the covenant should be idle and vain and clearly the meaning of the parties was that it should extend to all new walls For the second point I hold the covenant although it be a collateral thing within their Jurisdiction true it is as it is said in 28 H. 8. that contracts are as private Laws betwixt party and party but you ought to know that their Commission gives them power to charge every man according to his tenure portion and profit and he who is bound by custom or prescription to repair such walls is not within the words of their Commission yet it is resolved in the 10 Rep. 139 140. in Kighleys case that the Commissioners may take notice of it and charge him only for the reparations where there is default in him and the danger not inevitable and by the same reason you may exclude this covenant to be out of their Jurisdiction you may exclude prescription also I agree that where the covenant is meerly collateral as if a man who is a stranger covenants to pay charges for repairing of such a wall that that is not within their Jurisdiction because he is a meer stranger and cannot be within their Commission but in our Case it is otherwise for the covenantor is occupier of the land and it hath been adjudged that if lands or chattels are given for the reparation of a Sea-wall that it is within their Jurisdiction and they may meddle with it that is as collateral as the covenant in question wherefore I hold that the covenant is within their Jurisdiction For the third point I hold that they may well charge the executor for the executor here hath the lease as executor but it was objected That the term is now determined and peradventure the executor hath not assets To that I answer that it is admitted that he hath assets for the Commissioners cannot know whether he hath assets or not and therefore he ought to have alledged the same before the Commissioners and because he hath not done it he hath lost that advantage and it shall be intended that he hath assets by not gain-saying of it Fourthly for the damages I first chiefly doubted of that but now I hold that it is within their Jurisdiction Put case that one in extreme necessity as in this Case disburse all the money for the reparations or the wall or Sea-bank if the Case had gone no further clearly he shall be repaid by the tax and levy after and I conceive by the same reason they have power to allow him damages and use for his mony for if it should not be so it would be very inconvenient for who would after disburse all the money to help that imminent danger and necessity if he should not be allowed use for his money and the Lessee here is only charged with the damages for the money collected which he had in his hands and converted to his own use and therefore it is reasonable that he should be charged with all the damages Besides they having conusans of the principal have conusans of the accessory as in this Case of the damages and he urged Fitz. 113. a. to prove that before the Statute of 23 H. 8. they had a Court and were called Justices but he held as it was agreed before That no Writ of Error lieth after this Statute but yet he said that the party grieved should be at no loss thereby for he said that where the party cannot have a Writ of Error nor Audita querela there he shall be admitted to plead as in 11 H. 7. 10. a. Where a Recognisance of debt passed for the King upon issue tried and afterwards the King pardons it the party after Judgment may plead it because Audita querela doth not lie against the King and where a man is not party to a Judgment there he cannot have a Writ of Error but there he may falsifie so I conceive that he may in this Case because he cannot have a Writ of Error and I conceive as it hath been said before that after the Statute of 23 H. 8. the Commissioners of Sewers have a mixt Jurisdiction of Law and equity For the Certiorare I will advise hereafter how I grant it although I conceive as I have said before that a Certiorare lies after the Statute and is not taken away by the Statute and I conceive in some clearness that it may be granted where any fine is imposed upon any man by Commissioner which they have authority to do by their Commission as appeareth by the Statute to moderate it in Case that it be excessive But as I have said before because that the parties by agreement voluntarily bound themselves by Recognisance to stand to the judgment of this Court upon the proceedings as they are certified that made me at this time not to stand upon the Certiorare wherefore I do confirm the decree 242. Rolls moved this Case A. did suffer B. to leave a trunk in his house Whether B. might take it away without the special leave of A. was the Question Justice Mallet leave is intended but Rolls conceived that he could not take it without leave Hammon against Roll Pasch. 18. Car. in the Common Pleas. 243. IN an Action upon the Case upon Assumpsit the Case upon special verdict was this A. and B. were bound joyntly and severally in a Bond to C. who released to A. afterwards there being a communication betwixt B. and C. concerning the said debt B. in consideration that C. would forbear him the payment of the said mony due and payable upon the said Bond till such a day promised to pay it c. C. for default of payment at the said day brought this Action upon the Case B. pleaded the general issue and thereupon the whole matter before was found by the Jury Serjeant Clarke here is not any good consideration whereupon to ground an Assumpsit because by the release to one obligor the other is discharged and then there being no
well lie Bramston Chief Justice for the Avowant that 〈◊〉 may well distrâ—in and cannot have a Scire facias but if he may have a Scire facias yet he may distrein without it There is no authority in the Law directly in the point in this Case I agree that if there be any prejudice to the conusee there it is reason to have a Scirâ— facias It was objected that it is a constant course to have a Scire facias in this Case But I believe you will never find a Scire facias brought by the Grantee of a rent or other profit apprender Besides the best way to judge this Case is to examine what the Scire facias is which ought to be brought and what the Judgment is which is given upon it whether he may recover the thing in demand or not vid. 32 E. 3. Fitz. Scire facias 101. 47 E. 3. 11. which are brought to have account and to shew cause wherefore he should not have the land see Fitz. Scire facias 43. v. The old Entries the Judgment which is given thereupon and the demand there is quod tenement praed redeliberatur and may the grantee in this Case have the land and thing in demand certainly not and that gives sufficient answer to the Cases objected by my Brother Heath where the second conusee shall have a Scire facias against the first Besides you shall never find in all our Books that a man shall have an attaint or a writ of error but he who may be restored to the thing lost by the judgment or verdict 2 R. 3. 21 Dyer 89. 9 Rep. the Lord Sanchars Case so in debt and erroneous Judgment upon it wherewith agreeth Doctor Druries Case 8 Rep. 12. 18 E. 3. 24. the feoffee shall have a Writ of Error because he shall have the land and see 32 E. 3. Scire facias 101. And the grantee shall not have a Writ of Error in this Case upon erroneous Judgment and for the same reason he shall not have a Scire facias and the grantee cannot have a Scire facias for want of privity and therefore I conclude that he cannot have a Scire facias for if he might certainly it would have been brought before this time either for this cause or for some other profit apprender It was objected that he shall not be in better condition than the conusor that is regularly true as to the right but he may have another remedy It was objected that the reason why that a Statute without a Scire fatias shall not be defeated is because he is in by Record and therefore shall not be defeated without Record but that is not the true reason but the reason is because the conusee ought to have costs and damages besides his debt as is Fullwoods Case 4 Rep and 15 H. 7. 16. is that the Chancellor shall judge of the costs and damages But 47 E. 3. 10. 46 E 3. Scire facias 132. by all the Judges that they lie in averment But here an inconvenience was objected that great arrerages should be put upon the conusee for a little mistaking to that he said that of a small mistake the Court shall judge and it shall not hurt him but if he hold over being doubly satisfied it is reason that he pay the arâ—erages and he put this Case A man acknowledgeth a Statute and afterwards makes a lease to begin at a day to come the lâ—ssee shall have a Scire facias for where remedy doth fail the Law will help him for which cause he concluded and gave Judgment for the avowant Trin. 18 Car ' in the Kings Bench. Paulin against Forde 248. AN Action upon the Case brought for words the words were these Thou art a thievish Rogue and hast stolen my wood innuendo lignum c. Gardiner the words are not actionable because it shall be intended wood standing or growing and not wood cut down and so he said it had been adjudged so if a man says of another that he hath stollen his Corn or Apples the words are not actionable because they shall be intended growing Bramston Chief Justice that the words are actionable because that wood cannot otherwise be meant but of wood cut down because it is Arbor dum crescit lignum dum crescere nescit for which cause he conceived that the words were actionable and it was adjorned Chambers and his wife against Ryley 249. ACtion upon the Case for words the words were these Chambers his wife is a Bawd and keeps a Bawdy-house for which words the Action was brought and the conclusion of the Plea is ad damnum ipsorum Wright the words are not actionable because it is not the wife that keeps the house but the husband and therefore the speaking the words of the wife cannot be any damage to him but admit the words were actionable the husband only ought to bring the Action because the speaking of the words is only to his damage Bramston Chief Justice the wife only is to be indicted for the keeping of a Bawdy-house and therefore she only is damnified by the words and the husband ought to joyn in the Action but that is only for conformity and the conclusion of the Plea is good for the damage of the wife is the damage of the husband and therefore ad damnum ipsorum good And here it was agreed that to say that a woman is a Bawd will not bear an Action but to say she keeps a Bawdy-house will Porter who was for the Action cited a Case which was thus One said of the wife of another that she had bewitched all his beasts and she and her husband joyned in an Action and upon debate it was adjudged good and there the conclusion also of the plea was ad damnum ipsorum Rickebies Case 250. RIckebie was indicted in Durham for Murder and afterwards the Indictment was removed into the Kings Bench where he pleaded his Pardon which Pardon had these words in it viz Homicidium feloniam felonicam interfectionem necem c. seu quocunque alio modo ad mortem devenerit And note there was a Non obstante in the Pardon of any Statute made to the contrary and whether these words in the Pardon were sufficient to pardon Murder or not was the Question Hales for the Prisoner said that the Pardon was sufficient to pardon Murder and in his argument first he considered whether Murder were pardonable by the King at the Common Law or not and he argued that it was the King is interessed in the suit and by the same reason he may pardon it It is true that it is Malum in se and therefore will not admit of dispensation nor can an appeal of Murder which is the suit of the Subject be discharged by the King but the King may pardon Murder although he cannot dispense with it see Bracton lib. 3. cap. 14. And the Law of the Jâ—ws differs from our Law
paid may inforce a Distribution or not quaere 65. pl. 102. 93. pl. 158. Double Plea Where two things are alleadged and the one of necessity onely or by way of inducement and the party relies onely upon the other that is no double Plea 55. pl. 84. 74. pl. 113. Ejectione Firme Ejectone Firme de uno repositorio nought for the incertainty 96 pl. 166. Ejectione Firme de tanto unius messuagii c. qâ—aâ—tum â—â—at super ripam is nought for the incertainty and so where the Tâ—over of the Jury is such it is nought 97. pl 168. Elegiâ— Upon an Elgit there needs no Liberate otherwise upon a Statute Note the Elegit excepts averia Caruâ—â— 117. pl. 194. Equity Certain special Cases where there shall be remedy in Eqâ—ity where not pa 83. pl. 1â—8 88. pl. 141 90. pl. 145. 93. pl. 159. 99. pl 1â—1 102 pl. 175. 105. pl. 182. 106. pl. 183. 129. pl. 207. Errors In Error to reverse a Judgement in Debt upon an Arbitrament Judgement was reversed first because that in the reference to the Arbitrament there was no word of the submission Secondly because that the entry of the Judgement was considâ—ratum est and per Curiam omitted 7. pl. 16. In an Actâ—on for words Judgement was reversed because that it was averred that the words were spoken inter diversos ligeos and doth not say Cives of the place where they have such an acceptation as also for that the Judgement was Consideratum est and per Curiam Omitted 15 pl 37. In Trespass the Defendant justifies by a special Custom by Vertue of which he did it and doth not say quae est eadem transgressio for which Judgment was reversed 16. pl. 38. Judgment was reversed for want of Pledges 17 pl. 40. Outlawry was reversed because it did not appear where the party outlawed was inhabitant as also for that it did not appear that Proclamations were made at the Parish-church where c. 20. pl. 46. Judgement reversed for the appearance of an Infant by Attorney 24. pl. 53. Oâ—tlawry reversed because the Exigent was Secund. exact ' ad Com' Meum â—bm ' c. 25. pl. 58. A. Wife of I. S. intestate promises to B. to whom Administration was committed that if he would relinquish Administration at the request of C. and permit A. to Administer that A. would c. in Assumpsit by B. he shewed that he renounced Administration and permitted A. to Administer but doth not shew that it was at the request of C. by Barkley Just. it is Error 55. pl. 86. Judgement ought not to be judged erroneous by implication 56. pl. 88. 61. pl. 95. A Writ of Error upon Dower well lies before the Retorn of the Writ of Enquiry of damages but whether a Writ of Error lies in an Ejectione firme before Judgment given upon the Writ of Enquiry quaere 88. pl. 142. Want of Warrant of Attorney for the Plaintiff after Judgment upon nihil dicit is Error and not amendable 121. pl. 201. 129. pl. 209. Writ of Error bearing Teste before the Plaint entered is nought otherwise where is bears Teste before Judgment 140. pl. 112. In an Ejectione firme the Writ was 〈◊〉 armis but it wanted in the Count and whether this is error or amendable or not quaere 140. pl. 213. Escape Upon mean Process if the Sheriff retorn a Cessi and Rescous no Action lies against him for the escape otherwise in case of Execution 1. pl. 1. Estoppel Morgager makes a Lease for years by Deed indented after performs the condition and makes a Feoffment in â—ee the Feoffee claiming undeâ— the Estoppel shall be bound by the Lease 64. pl. 99. If a man bind himself to deliver any thing he is estopped to say that he hath it not 74. pl. 113. Estoppel binds only parties 105. pl. 180. Evidence to an Inquest upon Issues joyned Depositions taken in the Ecclesiastical Court cannot be given in evidence at Law though the parties were dead 120. pl. 198. Executions prayer in execution A second Execution cannot be granted before the retorn of the former 47. pl. 73. Where a man is imprisoned for the Kings Fine and upon a Habeas coâ—pus it is retorned that he is in Execution also for the Damages of the party it ought to be intended at the prayer of the party 5a pl. 80. Executor Administrator An Executor or an Administrator may maintain an Action for any Coâ—tâ—â—ct made to the Testator or Inâ—estate or for any thing which riseth ex contractu 9. pl. 23. Administrator of an Executor shall not sue a Scire Faâ— ' upon a Judgement given for the Testator 9. pl. 24. A Sheriff levies moneys upon a Fâ—â—ri Fas ' and dies Debt will lie against his Executors 13. pl 33. Whether the Executor of a Phâ—llizer shall have the profits of the Writs which are to â—e subscribed with his name or his Successor quaere 90. pl. 147. Expositors of Statutes The Judges are the sole Expositors of Acts of Parliament though they concâ—rn Spiritual matters 90 pl. 148. Extinguishment and Suspension Three covenant joyntly with two severally after one of the covenantors marries one of the covenantâ—es whether the covenant be good or not 103. pl. 176. Fine to the King IF a Carrier spoil the High-ways by drawing a greater weight than is warrantable by the Custom of the Realm he is â—inable to the King 145. pl. 210. Fines of Lands Disseisee levies a Fine to a stranger this doth not give the right to the Disseisor 105 pl. 180. Tenant for life the Reversion to an Ideot an Uâ—cle Heir apparant to the Ideâ—â— levies a Fine and dies Tenant for life dâ—eth the Ideâ—t dies whether the Issue of Uncle who levied the Fire â—â—albe barred by this or not quaere 4. pl. 164. 146. pl. 216. Forcible Entry Restitution cannot be awarded to the Plaintiff if it doth appear that he hath seisin yet the King shall have his Fine and if the Indictment be adtunc adhuc the Defendant keeps the possession forcibly where the Plaintiff was in possession Re-restitution shall be awarded 6. pl. 12. Forgery To forge a Will in writing though without a Seal is forgery within the Statute of 5 Q. ca. 14. Freehold What shall be said a grant of a Freehold to commence at a day to come what not 31. pl. 66. Gardeins of a Church WHere the Custom is for the Parishoners to chuse the Churchwardens the Person by colour of the Cannon cannot chuse one and if the Minister of the Bishop refuse to swear one of them chosen by the Parish a Mandat lies to inforce him to it and if the Parson thereupon doth Libel in the Ecclesiastical Court a Prohibition lies 22. pl. 50. 67. pl. 104. The Gardeins of a Church in London are a Corporation and may purchase Lands to the use of the Church and in the Country they are a Corporation capable to purchase Goods to the
Common Law there notwithstanding he shall recover costs also So in our Case these being Acts of Creation which give remedy where there was no remedy before shall be taken strictly according to the Letter and shall not extend to such penalties as in our case And upon this difference he cited the Cases in Pilfords case and especially the Case upon the Statute of 5 E. 6. of Ingrossers the Plaintiff shall not recover costs but only the penalty given by the Statute grounded upon 37 H. 6. 10. I agree That there be many Presidents in the Common 〈◊〉 That damages have been allowed in our very Case but that is the use of the Clerks and passed sub silentio without any solemn debate or controversie Vide Greislies case and the first Case of the Book of Entries Presidents and Judgments in this Court Pasch. 33 Eliz. Rot. 292. Halesworth against Chaffely A Judgment of the Common Pleas was reversed for this very point M. 36 Eliz. Ruddal and Wilds Case M. 44 45 Eliz. Rot. 22. Shepwiths Case Avowry for relief a stronger case Judgment was reversed because damages was assessed Hill 14 Iac. Rot. 471. Leader against Standwell in a Replevin Avowry was made for an Amercement in a Leet and found â—or the Dâ—fendant and damages assessed But the Entry upon the Record was thus Super quo nullo habito respectu c. The Plaintiff was discharged of the damages because nulla damna debent esse adjudicanda per Legem terrae but he shall have his costs But it was objected by Justice Crook That by the Statute of 4 Iac. c. 3. which giveth costs and damages to the Defendant in certain Actions there specified where the Plaintiff shall recover damages and that where the Plaintiff is Non-suit or verdict pass against him That Demurrer hath been construed to be within that Statute Notwithstanding that it is an Act of Creation I agree that and answer that Demurrer is within that Statute and the mischief of it but it is not so in our Case for in our Case there is no such mischief For there is no colour to extend it beyond the words of the Statute For which cause I conclude that the Judgment in this case ought to be reversed 65. A Clerk of the Court dwelling in London was chosen Churchwarden and prayed a Writ of Priviledge which was granted And it was agreed by the whole Court That for all Offices which require his personal and continual attendance as Churchwarden Constable and the like he may have his Priviledge but for Offices which may be executed by Deputy and do not require attendance as Recorder and the like from which the Justices themselves shall not be exempt for them he shall not have his Priviledge And where he hath his Priviledge for the not obeying thereof an Attachment lieth Swift against Heirs in Debt upon the Statute of 2 E. 6. for setting out of Tythes 66. THe doubt in this Case did arise upon two several Indentures found by special verdict which were made by the Vicar and Subchauntors Corrols of Lichfield one 2 E. 6. the other 2 3 Phil. Mar. The Question upon the Indenture of 2 E. 6. was Whether the Grant upon the Habendum be a grant of a Freehold to begin at a day to come or not The chief Justice Justice Crooke and Justice Barckley were clear of Opinion That it was a grant of a Freehold to begin at a day to come And for that the Case is thus In the Indenture of 2 E. 6. there is a recital of a former Lease for years And by this Indenture in 2 E. 6. another Lease was to begin after the first Lease determined the remainder in Fee to another And upon that the three Justices before were clear in their Judgments That it was a Grant of Freehold to begin at a day to come which without doubt is void 8 H. 7. 39 H. 6. and Bucklers case 3 Rep. And in 8 H. 7. the difference is taken betwixt the grant of a Rent in esse and Rent de novo A Rent de novo may be granted in futuro but not a Rent which is in being But Justice Iones in this Case was of Opinion That here is not any grant of a Freehold to begin at a day to come because in this case the Lease doth begin presently because the Lease recited is not found by the Jury and therefore now it is all one as if there had been no Lease at all contrary in the case of the King because it passeth a good estate of Inheritance to the Grantee And therefore if I make a Lease for years unto a man after the expiration of such a Lease where in truth there is no such Lease in being the Lease shall begin presently The Question upon the Indenture of 2 3 P. Mar. was no more but this The Vicar and Subchauntors of Lichfield made a Grant of all their Tithes in Chesterton and name them in certain and in specie as Tithe-wool Tithe Geese Pigs Swans and the like and that in a distinct clause with especial Exception of four certain things After which came this clause All which were in the Tenure of Margaret Pâ—toe And the Jury sound that none of these Tithes were in hâ—r Tenure And whether that Grant were void or not was the Question And resolved by the whole Court nullo contradicente That the Grant notwithstanding this fallâ— reciâ—al was good For these reasons But first it was resolved That where they grant all their Tithes in Chesterton that it is a good grant and hath sufficient and convenient certainty 13 E. 4. and â—â—â—lands Case There are two Generalities 1. Absolute 2. Genâ—â—al in particular â—o here And in our Case it is as câ—râ—ain that demand in an Action may be for them by the name of all their Tithes in Chesterton So in the like manner an Action of Ejectione firme will lie For an Ejectione firme will 〈◊〉 for Tithes as it hath been adjudged here If the King grant all his Lands it is altogether incertain and void but if the King grant all his Lands in Dale or which came to him by the dissolution of such an Abby it is good because it is a generalâ—y in particular And it was agreed that convenient certainty is sufficient And therefore it was said by Justice Iones That if I grant all my Rents in Dale which I have of the part of my Mother that he conceives the same to be good The first reason wherefore this grant shall be good notwithstanding the false recital was this because the words here All which c. are not words of denotation or restriction but of suggestion or affirmation and therefore shall not make void the Grant And here the difference was taken between the Case of a common person and of the King Suggestion which is false in the Case of the King makes the Patent void but contrary in the case of a common person And
that it was his own horse but quendam equum and for that reason by the whole Court the Judgment was affirmed More of the Case of Leake against Daweâ— 108. SErjeant Mallet for the Plaintiff That the Scire faâ—â—â—s is good notwithstanding the exceptions for these reasons First because it is not a Declaration but a Writ which is not drawn by Counsel and it is to declare the matter briefly but if it were in a Declaration yet I hold it good because he saith that it was modo adhuc seisitus existit which as I conceive helps it and besides it is not his title but the title of his Adversary which he is not bound to plead so exactly as his own title See for that 14 Eliz. Dyer 204. 2 Car. beswixt Green and Moody in Audita Querela he shewed that there was Debt brought upon a Lease for years to begin at a day to come and did not shew whether the Lessee entred before the day or not so as he might be a disseisor and yet notwithstanding it being in Audita querela which is an equitable Action it is good Hil. 1 Iac. betwixt Blackston and Martin in this Court a Scire facias was brought to avoid a Statute and it was shewed that the Defendant was Tenant but doth not shew how Tenant but it said ad grave damnum which could not be if he were not lawful Tenant and therefore adjudged good notwithstanding that general allegation See new Book of Entries Mollins case 98 99. a strong case to this purpose Besides he said That here issue was taken upon another point Whether he bargained or not and therefore he conceived in this Scire facias that it is not hâ—râ— needful to shew the Inrolment and for these reasons prayed Judgment for the Plantiff Serjeant Wild for the Defendant That the shewing of the Inrolment is not helped by the Issue joyned being matter of substance for he saith that virtute cujus and of the Statute of 27 H. 8. of uses that the Defendant was seised and we ought not to intend an Estate by any other means or seisin than himself hath alledged And thâ—refore it ought to be adjudged upon his own pleading whether the Defendant hath any estate without inrolment or entry by force of the Statute of Uses And I conceive he hath not True it is that all circumstances ought not to be pleaded but the substance viz. the Inrolment and therefore it ought to be pleaded as Fulmerston and Stewards case is in the Commentaries and 2 Eliz. Dyer And no estate passeth without Inrolment not a Fee-simple for then there ought to be Inrolment according to the Statute and no estate at will can pass without Entry for that is as opposit ' in objecto that a man shall be tenant at will against his will for his Entry proves his intent to hold at will For Littleton saith By force whereof he is possessed so that there ought to be possession to make an Estate at will And in case of a Lease for years although it be true that he is a Lessee for years to many purposes before Entry yet an Entry ought to be pleaded And Dyer 14. is non habuit non occupavit is no good plea in a Lease for years contrary in the case in a Lease at will which is a strong proof that he is not Lessee at will before entry 3 Iac. betwixt Bellingham and Fitzherbert 5 El. Dyer 10 Eliz. Mockets case Mich. 15 Iac. betwixt Coventry and Stacie resolved that a release to the Bargainee before Inrolment is not good And by consequence he hath not an estate at will before Inrolment or Entry made for if he had the Release should be good 18 H. 8. the Lord Lovells case that no estate at Will Lastly Parrolls font plea and the case of a man shall not be taken to be otherwise than he hath pleaded it and he having pleaded that virtute cujus and of the Statute of Uses that the Defendant was seised he shall be concluded thereby 5 H. 7. A man shewed that another licenced him to enter into his land and occupy for a year it is not good but he ought to plead it as a Lease Besides the virtute cujus is not traversable as the 11 Rep. Pridle and Nappers case is Rolls accord and he said That if it shall be construed That the Conusee shall have an estate by Disseisin the Plaintiff ought to plead it that the Defendant was seised by way of disseisin And where it was objected That this is a Writ and not a Declaration he answered It is a Writ and Declaration also and therefore he ought to declare his case at large and the defect of the Conveyance viz. the want of Inrolment is not supplied by the virtute cujus And he having made that his Title you ought to judge upon it and not otherwise But the whole Court viz. Bramston Ch. Just. Crooke Iones and Barckley Justices That the Scire facias was good for it was said that the Defendant perquisivit sibi heredibus suis and concludes virtute cujus and of the Statute of Uses he was seised which is a good averment that he hath a Fee and it was not material how he hath it and he need not shew his Title so fully being a stranger to it And this being an equitable Action if the Court upon this Writ shall conceive sufficient matter upon which the Plaintiff may bring his Action it is good and the Court ought to give Judgment for him for being but matter of form it is not material unless a Demurrer had been special upon it And wheresoever there is damnification there the Court ought to give Judgment for the Plaintiff notwithstanding a defect of form in the Writ And Barckley said That if a man be seised of Bl. acre and Wh. acre and acknowledgeth a Statute and afterwards makes a Lease for years of Wh. acre the remainder over in Fee then the Conusee purchase Bl. acre and extendeth the land of the Lessee for years he held that he in the remainder should have an Audita querela or a Scire facias for the damnification which came to his interest And he held that he who had but interesse termini should have an Audita querela That one jointly only might have an Audita querela and that the death of one of them should not abate the Writ And he held that Cestui que use before the Statute might have an Audita querela all which proves it to be but an equitable Action upon which the Law doth not look with so strict an eye as upon other Actions And as to the Objection which was made by Râ—lls that he ought to shew That the Conusee had an estate by disseisin Iones was against that for that no man is bound to betray his Title And for these reasons it was adjudgâ—d by the whole Court That the Judgment should be affirmâ—d 109. A Writ of
it then a Prohibition shall be granted And note that it was said by Bankes Chief Justice that before the Statute of 1 Eliz. the Ecclesiastical Court might punish any person for not coming to Church pro reformatione morum salute animae 163. Where there are several Modus alledged there several Prohibitions shall be granted but where divers are sued joyntly and they alledge one Modus only there they shall have but one Prohibition by Reeve and Foster Justices the others being absent Pasch. 15º Car in the Kings Bench. Edwards and Rogers Case 164. THe Case was thus Tenant for life the Reversion to an Ideot an Unkle heir apparent of the Ideot levied a Fine and died Tenant for life died the Ideot died the only Question was Whether the Issue of the Unkle who levied the Fine should be barred or not Iones that it should his chief reason was because the Son must make his conveyance by the Father and as to him he is barred As in a Writ of Right he ought of necessity to name his Father and that by way of Title so here But Crooke and Barckley contrary and their reason was because that here the Issue of the Unkle doth not claim in the right line but in the collateral Secondly because the naming of the father here is not by way of Title but by way of pedigree only Note that Serjeant Rolls in the Argument of the Serjeants case which was the very point said that this case was adjudged according to the Opinions of Crooke and Barckley viz. that the fine should not bar the Issue The Serjeants Case aforesaid was Trin. 17 Car. 165. Payne the elder and Payne the younger were bound joyntly and severally in an Obligation to Dennis who afterwards brought Debt upon the Bond against both And after appearance Dennis entred into a Retraxit against Payne the younger and whether this were a discharge of the elder also was the Question And this Term it was argued by Maynard for the Defendant that it was a discharge of Payne the elder also for it doth amount to a Release and it is clear that a release to one shall discharge both Rolls contrary that it goeth only by way of Estoppel and not as a release and therefore shall not bar Barckley Justice that it amounts to a Release and therefore shall discharge both 7 E. 4. Hickmots case in the 7 Rep. the Plaintiff shall not have judgment where he hath no cause of Action And here by his Retraxit he hath confessed that he hath no cause of Action and therefore he shall not have judgment Further a Retraxit is not an Estoppel but a Bar of the Action besides here he hath altered the Deed and it is not joynt as it was before like as where he interlines it or the like there the Deed is altered by his own act and therefore the other shall take advantage of it Crook Justice contrary for it is not a Release but quasi a Release and if the Obligâ—e sueth one and covenanteth with him that he will not further sue him the same is in the nature of a Release and yet the other shall not take advantage of it So in this case 21 H. 6. there ought to be an actual Release of which the other shall take advantage and therefore in this Case because it is but in the nature of an Estoppel the other shall not take advantage of it Sprigge against Rawlenson 166. IN a Writ of Error to reverse a Judgment given in the Common Pleas in an Ejectione firme the Case was R. brought an Ejectione firme against S. and declared of an Ejectment de uno mesuagio uno repositorio And the Jury found for the Plaintiff and assessâ—d damages entire upon which a Writ of Error was brought here and the Error which was largely debated was that Rep. sitâ—rium which was here put for a Ware-house is a word uncertain and of divers significations as appeareth by the Dictionary And therefore an Ejectione firme de uno repositorio is not good and by consequence the damages which are joyntly assessed are ill assessed And in an Ejectione firme seism shall be given by the Sheriff upon a Recovery as in a Precipe quod reddat and therefore the Ejectment ought to be of a thing certain of which the Sheriff may know how to deliver seifin otherwise it is not good Barckley and Crook Justices were that the Judgment should be affirmed and that it was certain enough but Iones and Bramston Chief Justice contrary that it was utterly uncertain For that is Repositorium in which a man reposeth any thing and an Ejectione firme de uno tenemento is not good because there are several â—enements So here because there are several Repositories and the Sheriff cannot tradere possessionem and afterwards Barckley released his Opinion and judgment was given that the Judgment given in the Common Pleas should be reversed Trinit 17º Car ' in the Common Pleas. 167. A Man having a Legacie devised unto him out of a Lease for years which Indenture oâ— Lease was in the hands of a Stranger The Legatee suâ—d the Executors in the Spiritual Court to assent to the Legacie And Evars Serjeant prayed a Prohibition because they order that the Lease should be brought into Court which they ought not to have done being in the hands of a stranger But the Prohibition was denied by the whole Court for they may make an executor assent to a Legacie out of a Lease and therefore may order that although that the Lease be in the hand of a third person that it shall be brought in to execute it For the Order although it be general binds only the Defendant and it was agreed by the Court that assets or not assets is triable by them Juxon against Andrewes and others 168. IN an Ejectione firme the Defendants pleaded not guilty the Jury found them not guilty for part and guilty in tanto unius messuagii in occupatione c. quantum stat super ripam and whether this Verdict were sufficiently certain so as the Court might give judgment upon it and execution thereupon might be had was the question And by Whitfield Serjeant the Verdict is certain enough it hath been adjudged that where the Jury find the defendant guilty of one Acre parcel of a Mannor that it was good so of the moiety of a Mannor which is as uncertain as in this case And it is as certain as if they had said So many feet in length and so many in breadth for if the certainty appeareth upon the view of the Sheriff who is to deliver the possession it sufficeth and Clark Serjeant who was of the same side said that it is a Rule in Law Quod certum est quod certum reddi potest and this may be reduced to certainty upon the view of the Sheriff and therefore it is certain enough Besides it is the finding of the Jury who are lay gents M. 8. Iac. in
the Kings Bench an Ejectione firme was brought for the Gate-house of Westminster and the Jury found the Defendant guilty for so much as is between such a room and such a room and adjudged good and here it is as uncertain as in our case Mich. 19 Iacobi Smalls case in Hobarts Rep. The Jury in an Ejectione firme found the Defendant guilty of a third part and good Mallet Serjeant that the Verdict is uncertain and therefore not good And it is not sufficient that the certainty appear to the Jury for it behooveth that certa res deducatur in judicium Institut 227. a. 3. E. 3. 23. b. 18 E. 3. 49. 40 E. 3. 5 Rep. Playtors case Secondly here is no certainty for the Sheriff to give execution for so much in length or in breadth that is quod stat super ripam doth not appear And thirdly thereupon great inconvenience will arise that no attaint will lie upon such uncertain Verdict so as the defendant shall be without remedy and the whole Court except Justice Crawley Banks Reeve and Foster did resolve that the Verdict was insufficient for the incertainty and all agreed That there is great difference betwixt Trespass and Ejectione firme for such Verdict in Trespass may be good for there damages are only to be recovered but in an Ejectione firme the thing it self And their reason in this Case was That although the certainty may appear to the Jury yet that is not enough for they ought to give judgment oportet quod certa res deducatur in judicium And they agreed that if they had found him guilty of a Room it had been good and so the Cases on the Acre of Land and of the third part of a Mannor is good for those are sufficiently certain for of them the Law takes notice The Opinion of Crawley wherefore the verdict should be good was because the demand here was certain although the Jury found it in tanto c. And where there may be certain description for the Jury it is good enough and the rather because the Verdict is the finding of lay gents and he compared it to the case of the Gate-house aforesaid but he agreed that if the Writ of Ejectione firme had been brought de tanto unius messuagii c. quod stat super ripam that it would not have been good but the Verdict is good for the reason aforesaid But Justice Reeve said that that which is naught in the demand is naught in the Verdict and therefore naught in the judgment and therefore the Court would not give judgment and therefore a Venire facias de novo was prayed and granted by the Court. 169. Couch libelled against Toll ex officio in the Ecclesiastical Court for Incontinencie without a Citation or presentment and for that the Defendant was excommunicated and Gotbold prayed a Prohibition which was denied by Crawley and Reeve Justices the others being absent and it was said by Reeve That where they proceed ox officio a Citation is not needful but put case it were yet they said that no Prohibition is to be granted as this case is because that where the Ecclesiastical Court hath Jurisdiction although they proceed erroneously yet no Prohibition lieth but the remedy is by way of Appeal and there he shall recover good costs and it was said by Crawley That if the party be retorned cited and he is not cited That an Action upon the case lieth 170. A woman libelled in the Arches against another for calling of her Iade and a Prohibition was prayed and granted because the words were not defamatory and do not appertain unto them And Reeve said that for Whore or Bawd no Prohibition would lie but they doubted of Quean 171. Bacon Serjeant prayed a Prohibition to the Court of Requests upon this suggestion That one Executor sued another to accompt there and an Executor at the Common Law before the Statute of West 2. cap. 11. could not have an accompt for cause of privity and now by that Statute they may have an accompt but the same ought to be by Writ and therefore no accompt lieth in the Court of Requests Secondly they have given damages where no damages ought to be given in an Accompt And lastly they have sequestred other Lands which is against the Law and for these reasons he prayed a Prohibition Whitfield Serjeant contrary 1. It is clear that an accompt by Bill lieth for an Attorney in this Court and so in the Kings Bench and Exchequer and as to damages it is clear that in an accompt a man shall recovâ—â— damages upon the second judgment but as to the sequestâ—â—ion he could not say any thing but further he said That it was not an accompt but only a Bill of discovery against Trustees who went about to defeat an Infant and upon the reading of the Bill in Court it appeared that the suit was meerly for the breach of a trust and for a confederacie and combination which is meerly equitable Wherefore a Prohibition was denied because it was no accompt but as to the Decree for sequestring other Lands the Prohibition was granted Trin. 17º Car ' in the Kings Bench. 172. EAste brought an Action upon the Case upon an Assumpsit against Farmer because that where the Plaintiff had sold to the Defendant so much wood the Defendant in consideration thereof did assume and promise to pay so much money to the Plaintiff and to carâ—â— away the wood before such a day the Defendant pleaded thâ— he paid the money at the day aforesaid but as to the carrying of it away before the day he pleaded non assumpsit and the Jury found that he did not pay the money at the day but as to the other they found that he did assume and promise as aforesaid and it was moved in Arrest of judgment that the finding of the Jury was naught for being but one Assumpsit and the same being an intire thing it could not be apportioned and therefore they ought to find the intire Assumpsit for the Plaintiff or all against him And the Court agreed all that and awarded that there should be a Repleader and the Chief Justice Bramston said That for the reason given before the Defendants plea was not good and therefore the Plaintiff might have demurred upon it which he hath not done and therefore they agreed that the Verdict was naught for the reason aforesaid 173. Williams was indicted at Bristow upon the Statute of 1 Iac. cap. 11. for having two wives and upon not Guilty pleaded the Jury found a special Verdict which was thus That the said Williamt married one wiâ—e and was afterwards divorced from her causa adulterii and afterwards married the other and if that were within the Proviso of that Statute which provides for those who are divorced was the Question And it was resolved without argument by Bramston Chief Justice and Heath Justice the other being absent That it is within the Proviso for the
done was murder he would not have pardoned it and the words Ex certa scientia shall not make the Grant good where the King is deceived by false suggession of the party See Altonwoods Case 1 Rep. 46. a. 52. b. 9. E. 4. 26. b. is an authority in the point by Billing Charter of Pardon ought to make express mention of murder or otherwise it will not pardon it and 22 H. 7. 91. b. Keilway Pardon of all felonies will not pardon murder Br. Charter de pardon 10. there ought to be express words of murder in the pardon See the Old Entries 455. 2 H. 7. 6. by Ratcliffe objected that the King may pardon murder with a Non obstante that I agree but if ought to be by express words See Stamford Pleas of the Crown fol. 103 104. and 19. a. Where it is said that a pardon of all felonies doth not extend to murder Besides I conceive that a Non obstante cannot dispense with the Statute of 13 R. 2. I agree that where there is a penalty only given by the Statute there the King may dispence with it I agree the Book of 2 H. 7. 6. there it was a penalty only I agree also that the King may dispense with the Statute of Quia emptores â—errarum as the Book is N. B. 3. 211. f. But when a Statute is absolute and not Sub modo there he cannot dispense with it See 18 Eliz. Dyer 352. and 8 Rep. 29. Princes Case Institut 120 a. and Hobarts Rep. 103. The King with a Non obstante cannot dispense with the Statute of Simony because it is a positive Law and not Sub modo and this Statute of 13 R. 2. is for the common good It was objected that the King may pardon murder by the Common Law and that the Statute of 13 R. 2. takes away the inquiry only further it was objected that the Statute of 2 E. 3. did allow that the King might pardon murder but not so easily and the Statute of 13 R. 2. is saâ—â—ng our Regality by which was concluded that his Prerogative is saved Bracton fol. 133. a. saith that the Kings pardoning of murder was contra justitiam and Register fol. 309. Se defendendo and per infortunium only are pardonable and that well expounds the Statute of 2 E. 3. cap. 2. which enacts that Charters of Pardon shall be only granted where the King may do it by his Oath that is to say where a man kills another Se defendendo or per infortunium And for the saving of the Regality which is in the Statute of 13 R. 2. to that I say that the Judges ought to judge according to the body of the Act and that is express that the King cannot pardon murder 5 E. 3. 29. and Kelway 134. there it is disputed but yet it came not to our Case for that is only of a pardon of the Kings suit and for these reasons he prayed that the pardon might not be allowed Keeling for the King that the pardon is not sufficient to pardon murder The Kings pardons ought to be taken strictly and so is the 5 Rep. The Question here is not whether the general words shall extend to murder but whether it ought to be precisely expressed in the Pardon or not and he held that it ought and hâ— held that the King cannot dispense with the Statute of 13 R. 2. by a Non obstante the Books of 2 R. 3. 2 H. 7. 6. 11. Rep. 88. That the King may dispense with a Penal Law he agreed but he said that this Act of 13 R. 2. binds the King in point of Justice and therefore the King cannot dispense with it and Institutes 234 the King by a Non obstante cannot dispense with the buying and selling of Offices contrary to the Statute because it toucheth and concerneth Justice Wherefore he prayed that the Pardon might not be allowed FINIS THere is lately Reprinted Mr. March's Actions for Slanders and Arbitrementâ—â— Sold by Mris Walbanck at Grays Inn-Gate in Grays-Inn-Lane An Exact TABLE to these REPORTS Alphabetically composed by the Author Abatement of Writ See Title Writ Acceptance WHere a Witness hath not a reasonable sum delivered to him for Costs and Charges according to the distance of place as the Stat. of 5 Q 9. saith yet if he accept it it shall binde him See Tit. Witnesses 1. Accompt For what things a Husband who is administrator to his Wife shall be accomptable in the Ecclesiastical Court for what noâ— pa. 44. pl. 69 Where an accompt by Bill lies for an Attorney of the Common Bench Kings Bench or Exchequer and where iâ— an accompt a man shall recover Damâ—mages upon the second Judgement 99 100 pl. 171. In Debt upon an accompt it sufficeth to say that the Defendant was indebted to the Plaintiff upon an accompt pro diversis mercimoniis without reciting the particulars 102. pl. 175. Action upon the Case Where if a man sue another in the name of a third person without his privity an Action upon the Case will lye against him where not 47 pl. 76. Where oâ—e who is not of the Jury cauâ—seth himself to be sworn in the name of one returned of the Jury and gives his Verdict either party may have an Action upon the Case against him 81. pl. 132. A man retorned cited in the Ecclesiastical Court where he was not cited shall have an action upon the case 99. pl. 169. Action upon the Case for words What words shall be actionable and what not pa 1. pl. 3. pa. 7. pl. 17 18 19. pa. 15. pl. 37. 19. pl. 44. 20. pl. 45. 58. pl 90. 59. pl. 91 93. 76. pl. 119. 82. pl. 135. 107. pl. 184. 109. pl. 187. 113. pl. 191. 115. pl. 192. 116. pl. 193. 119. pl. 197 146. pl. 217. 62. pl. 96. 211. pl. 248. 212. 149. Actio personalis moritur cum persona What shall be said to be an Action personal and to dye with the person what not 9. 13 14. Alimony Where a man puts his Wife from him he is compellable by the Ecclesiastical Court to allow her Alimony 11. pl. 31. The High Commission Court had not power to allow Alimony 80. pl. 129. Amendment Where amendment may be in the inferiour Court after Errour brought where not 72 pl. 109. No amendments allowed in Courts below 78. pl. 124. No amendment after a Verdict without 〈◊〉 82. pl 133. A Declaâ—ation cannot be amended in substance wiâ—hout a new Original otherwise o◠〈◊〉 93. pl. 161. A Warrant of Attorney may be amended after Errour brought 121. pl. 201. 129. pl. 209. In an Ejectione firme vi arms was in the Writ but wanted in the Count whether it be amendable or not quaere pa. 140. pl. 113. Appendant Leet may be appendant to a Hundred 75. pl. 115. Apportionment Where a Debt or other duty may be apportioned and several Actions brought where not 57. 61. Assumpsit being an entire
say per scriptum obligatorium and to conclude that it was secundum formam statuti will not help it but in a Verdict it was agreed to be good 76. pl 117. Apothecary brought an action upon the case upon a promise for divers wares medicines of such a value the Desendant pleads in bar that he payed to the Plaintiff tot tantas denariorum summas as the medicines were worth and shews no sum in certain and therefore naught 77. pl. 120. A. and B. were bound to stand to and observe such order and decree as the Kings Counsel of the Court of Requests should make A. brought an action against B. and pleaded that the Counsel of the King of the said Court made such order and decree and that the Defendant did not observe it the Defendant pleaded that the King and his Counsel did not make the decree which is naught 78. pl. 126. Where a bad plea shall be made good by Verdict See Title Verdict 2. If a man plead an affirmative plea as that he hath saved the Plaintiff harmless and doth not shew how it is naught otherwise of a negative plea as non damniâ—icatus c. 121. pl. 200. What shall be said to be an argumentative plea what not 207. pl. 247. Pleas of the Crown Bayliffs endeavour to break open a house to serve an Execution upon the owner who not desisting upon his threats he shot and killed one of them it is not murder but man-slaughter 3 pl. 7. Many notable resolutions upon the Statutes of Winchester and 27 Q. of Robberies 10 pl. 28. Pledges Judgement reversed for want of Pledges 17. pl. 40. In a Replevin brought in an inferior Court and no Pledges de retorno habendo taken by the Sheriff according to the Statute of W. 2. ca. 2. upon the plaint removed into the Kings Bench that Court may find Pledges and that any time before Judgement 46. pl. 72. Presentments in Courts Presentments taken in an Hundred Court were quashed because that it is not the Kings Court and therefore coram â—on judice 75. pl. 115. Priviledge If the Clerk of a Court be elected into any office which requâ—res his personal constant attendance as Churchwarden or the like he shall have his priviledge otherwise not as for watching and warding and the like 30. pl. 65. Ordered by the upper House of Parliament 16 Caroli that onely menial servants or such as tend upon the person of a Knight or Burgess should be priviledged from arrest 92. pl. 157. Debt against a husband and his wife as executrix who are sued to the Exigent and at the retorn of it the husband being an officer in the Exchequer came into Court and demanded his priviledge and whether as this case is he shall have it or not quâ—ere 149. pl. 219. Prohibition A man libelled in the Ecclesiastical Court against one for these words Thou art a drankard and usest to be drunk thrice a week upon which a Prohâ—bition was prayed and granted 6. pl. 11. 66. pl. 103. If the Ecclesiastical Court proceed upon a Canon which is contrary to the Common Law Statute Law or Custom a Prohibition lies 22. pl. 50. 67. pl. 74. Two joynt Tenants of Tythes the one sues in the Ecclesiastical Court without the other or a Feme Covert solely for deâ—amation this is no cause of Prohibition 25. pl. 26. pa. 47. pl. 112. See pa. 93. pl. 112. Upon a Petition to any Ecclesiastical Judge without suit there no Prohibition lies 45. pl. 70. A man is compellable in the Ecclesiastical Court to repair a way which leads to the Church but upon a Libel there to repair a highway a Prohibition lies 45. 70. Tenant in Taâ—l levyed a Fine to the use of himself for life the Remainder in see to I. S. and died the Counsel of the Marches wou'd settle the possession upon the Heir of the Tenant in Taâ—l against the purchasor upon which a Prohibition was granted 51. pl. 79. Libel for Tythes for barren Cattle upon a suggestion that the party had no cattle but for plough and pale Prohibition was granted the same Parson libelled for Tyth of Coneys upon which a Prohibition was also granted 58. pl. 87. No Prohibition after sentence in the Ecclesiastical Court 73. pl. 111 92. pl. 156. Many men recover Costs in the Spiritual Court one of them releases the others sue there for their costs this is no came of Prohibition Baron and Feâ—â—e recover costs there for defaming the wife the Baron releases this will not baâ— the wife 73 pl. 112. See pa 25. pl. â—6 pa. 4â— pl. 〈◊〉 Contract betwixt the Vicar and a 〈◊〉 shiâ—ner to pay so much for 〈…〉 Tythes the Vicar dies his 〈…〉 in the Ecclesiastical Court for them 〈◊〉 on which a Prohibition was granted by reason of the real contract which is a temporal thing 8â— l. 1â—0 Libel in the Ecclesiastical Court for these words 〈…〉 upon which a Prohibition was granted 89. pl. 144. Where the Ecclesiastical Court hath conâ—sance of the cause though they proceed erroneously a Prohibition will not lie 92. pl. 152. See pa. 98. pl. 169. 〈◊〉 The Ecclesiastical Courts may hold plea of an excuse for not going to Church and no Prohibition lies 93. pl. 162. Where there are several Moâ—â—ses there several Prohibitions shall be granted where one Moaâ—s onely though divers parties all shall have but one Prohibition 94. pl. 163. If the Ecclesiastical Court proceed against a man without Citation where they have Jurisdiction no Prohibition lies the remedy is by way of Appeal 98. pl. 169. See pa. 92. pl. 152. 〈◊〉 Legatee may sue an executor in the Spâ—ritual Court for to assent to a Legacy Assets or not Assets may be tried by them and no Prohibition lies 96. pl. 167 A woman Libelled against another for calling of her lade upon which a Prohibition was granted but for Whore or Eawd no Prohibition lies quaere whether or not for Quan 99. pl. 1â—0 If a man be sued in the Court of Requests to account there a Prohibition lies See Title Sâ—â—â—â—stratica 1. 2. A man exhibited a 〈◊〉 in the Court of Requests for moneys due upon an account upon which a Prohibition was granted for that it is no 〈◊〉 than Debt upon an account further they referred the 〈…〉 the 〈◊〉 to â—â—â—ers which 〈…〉 of Prohibition 102. pl. â— 5 〈…〉 If a Ship â—e taken at Sea whether b Letters of Mart or by â—itacy if it be sold infra coâ—pus conitatus and the party Libels against the vendee in the Admiralâ—y a Prohibition lies 110. pl. 188. Upon deciding of Actions in an inferiour Court a Prohibition lies 141. pl. 214. Property In Trover and Conversion for a Hawk if he doth not say that it was reclaimed the Action will not lie for that it doth not appear he had a property in it and to say that he was possessed of it ut de bonis suis propriis will not
Error was brought to reverse a Judgment given in the Common pleas and after a Certiorari and Errorâ— assigned they in the Common pleas did amend the Record And by the whole Court Crooke only absent they cannot do it for after a transmittitur they have not the Record before them And Barckley said That the difference stands betwixt the Common Pleas and the Kings Bench and betwixt the Kings Bench and the Exchequer For the Record remains always in this Court notwithstanding a Writ of Error brought in the Exchequer-chamber and therefore we may amend after Wherefore the Court said that if the thing were amendable that they would amend it But the Court of Common Pleas cannot Sewel against Reignalls 110. THe case was thus Husband and Wise did joyn in an Action of Debt in the right of the Wife as Administratrix to I. S. And the Defendant being arrested at their suit did promise to the Husband in consideration that the Husband would suffer him to go at large that he would give him so much The husband and wise did joyn in an Action upon the Case upon the promise made to the husband alone And upon Non assumpsit pleaded it was found for the Plaintiff Porter moved in arrest of Judgment that the promise being made to the husband only that they ought not to joyn in the Action Barckley the Action is well brought for the husband is Administrator in the right of the wife for otherwise the consideration were not good For if he were not Administrator then he could not suffer him to go at large and then if he be Administrator in the right of his wife the promise which is made to the husband is in judgment of Law also made to the wise and they ought to joyn in the Action But Crooke Iones and Bramston Chief Justice contrary That â—â—e Action will not lie because the promise is of a collateral thing and not touching the duty due to the wise as Executrix for then perhaps it would have been otherwise And they said against the Opinion of Barckley that this sum received should not be assets in their hand And Bramston said that it is not like the case where a man promiseth to the father of Iane Gappe in consideration of a marriage to be had betwixt his daughter and him that he would make her a Joynture there as well the daughter as the father may bring the Action And it was adjourned 111. A Parson Libelled in the Ecclesiastical Court for Tithes And after Sentence Rolls moved for a Prohibition upon the Suggestion of a Modus decimandi but it was not granted because too late But Rolls took this difference and said that so had been the Opinion of the Court where the party pleads the Modus and where not for if he plead it there notwithstanding a Sentence Prohibition hath been granted contrary where he doth not plead it But notwithstanding the Court refused to grant a Prohibition 112. The Parishioners of a Parish together with the Parson sued the Churchwardens in the Ecclesiastical Court to render Accompt and recovered against them and Costs taxed Afterwards the Parson released the Costs and notwithstanding the Parishioners sued for the Costs and thereupon a Prohibition was prayed because that the Costs are joyntly assessed and the release of one would bar the others But the Opinion of the whole Court that a Prohibition shall not be granted For the costs recovered there an Action might be sued in the Ecclesiastical Court and therefore although that in our Law the release of one shall bar the others yet the Action being sued there and they having conusance thereof the same is directed according to their Law And therefore it hath been adjudged that if the husband and wise sue in the Ecclesiastical Court for the defamation of the wife and Sentence be given for them and Costs taxed and afterwards the husband releasâ—th the costs in the suit commenced in the Ecclesiastical Court it shall not bar the Wife for the reasons given before Brooke and Booth against Woodward Administrator of John Lower 113. IN Debt upon a Bond the Defendant prayed Oyer of the Condition which was entred in haec venba The Condition of this Obligation is such That if the Obligor did deliver to the Plaintiffs two hundred weight of Hops in consideration of ten pounds already paid and fifty five pound to be paid at the delivery and the Plaintiffs to chuse them out of twenty four Bags of the Obligors own growing and to be delivered at F. at a day certain Provided that if the Plaintiffs should dislike their Bargain that then they should lose their ten pounds and if they liked they should give ten pounds more c. Upon Oyer of which the Defendant pleaded that the Plaintiffs non elegerunt And upon that the Plaintiffs did Demur in Law and shewed for special cause of Demurrer that the Plea was double Withrington for the Plaintiffs that the Plea is double in that the Defendant hath alledged that he was ready and that the Plaintiffs non elegerunt which are both issuable pleas and each of them of it self admitting no request of the part of the Defendant requisite is sufficient in bar of the Action Besides he conceived as this case is that the first act ought to be done by the Defendant for he ought to shew the bags and request the Plaintiffs to make election And he compared it to the case in 44 E. 3. 43. and also to Hawlins case 5 Rep. 22. Farther he conceived that the Defendant ought to have alledged that he had twenty four bags and twenty four bags of his own growing for if he have not them it was impossible for the Plaintiffs to make choice and by consequence the condition broken Twisden contrary That the plea is not double for the alledging himself to be ready was but inducement to the subsequent matter quod non elegerunt And he relied only upon their election and in proof thereof he relied upon the Books 1 H 7. 16. and 24 E. 3. 19. Farther here no notice is requisite not he ought not to aver that he had them for he being bound to deliver them he is estopt to say that he hath them not 19 Eliz. Dyer 314. and 3 Eliz. Dyer As to the shewing of them we ought not to do it for the Plaintiffs ought to do the first Act viz. Request the Defendant to shew thâ— bags for them to make choice of And the whole Court strongly enclined against the Plaintiffs for the reasons before given and they advised them to waive the Demurrer and plead de novo which they did Thorps Case 114. IN an Action upon the Case upon Assumpsit it was agreed by the whole Court That where there is a mutual promise viz. A. promiseth to B. that he will do such a thing and B. promiseth to A. that in consideration thereof that he will do another thing If A. bring an Action against B. and alledge a