Baron answered that he should have them of right see Bartues case in Dyer but the Lord Treasurer said that he saw no reason to satisfie himself thereof Doillie against Joiliffe DOillie Plantiff against Joiliffe in an Action upon the case for false imprisonment of the Plantiffs wife the case was that Leonard Lovies was formerly Plantiff in an action in the Common Pleas against Julian Goddard a feme sole and in this action the Plantiff and Defendant were at issue and a venire facias was awarded and before the return thereof the said Julian took to husband Doillie now Plantiff and after upon a special verdict found in the suit judgement was given in the Common Pleas for the said Julian against th◠said Leonard upon which judgement Leonard brought error in the Kings Bench and a scire facias was awarded against Julian by the name of Julian Goddard as a feme sole and she appeared by Attorney as a feme sole and this as the Defendant said in his answer was by the consent of her husband now Plantiff and after judgement was given to reverse the judgement in the Common Pleas and the entrie of that judgement as it was pleaded by the Defendant here was quod praedict Leonard Lovies recuperet c. versus praedict Julianam c. and costs and damages were taxed c. upon which judgement the said Lovies sued a Capias ad satisfaciendum against Julian Goddard and by vertue of that writ the Defendant here the Sheriff or Devon took the said Julian being the Plantiffs wife and imprisoned her until the Plantiff paid 10. l. which was the cost taxed by the Kings Bench for her deliverance upon which imprisonment the husband only hath brought his action against the Defendant being Sheriff Davenport of Grayes Inne argued for the Defendant and first he thought that between the parties to the error and the first action in the Common Pleas there is an estoppel and admittance that the said Julian continued a feme sole for the process in all the proceedings ought to be as it was in the Original and he vouched 18. Assise pla 16. by which book it appears that if a man bring an assise for lands in the Countie of O. and the Tenants plead a Common recovery of the same land in the Common Pleas this doth conclude the partie to say that the lands did lie else where c. also if an original be depending and before the first Capias or process awarded the Defendant intermarrieth and after a capias issueth against her as a feme sole this is well awarded lib. 5. E. 4.16 and also 5. E. 3. fo 9. and 10. also he said that such a thing as is done between the plea and not after the judgement is not material to alter the proceedings in that course it was begun for the same partie against whom judgement is given shall error have against him for whom the judgement is given except she had married after the judgement for then he agreed that the writ of error shall be brought by the husband and wife in case judgement had been given against the wife while she was sole 35. H. 6. fo 31. and 12. Assise pla 41. and it also appears by 18. E. 4. fo 3. if Trespas he brought against a married wife as against a feme sole and she appears as a feme sole and judgement is given and execution accordingly this is good until it be reversed by error and the Sheriff in such case never ought to examine if it be evil or nor no more then if Trespas be brought against A. my servant by the name of B. and A. is taken in execution the Master shall not take benefit of this misnaming admitting that A. should punish the Sheriff for it also he vouched one Shotbolts case 10. and 11. Eliz. Dyer and 15. Eliz. Dyer 318. in the Earl of Kents case which prove that the Sheriff is to be excused for taking me by a false name and if the Iudges admit this false name yet this judicial writ ought not to be examined by the Sheriff and it was adjourned Shoftbey against Waller and Bromley SHoftbey brought an action upon the case against Waller and Bromley and declared that the Defendants conspired that the said Bromley should commence a suit against the Plantiff and that the Plantiff was then worth 5000. l. and that he was then dwelling in Middlesex and that the Defendants knowing thereof maliciously and falsely agreed that the said Bromley should lay his action in London and prosecute it until the Plantiff were outlawed in the said suit to the intent that his goods should be forfeited to the King and after in performance of the agreement aforesaid the Plantiff suggested that he was dwelling in London and laid his action here which was prosecuted until the Plantiff here was outlawed to his damage c. Tanfield chief Baron thought that if the suggestion was by Bromley to make the process into a wrong County it seemed that the Action should lie against him only but in regard it is shewed in the Declaration that the said suggestion was made by him in performance of the precedent agreement that the action lieth against both which the Court granted Godfrey in this action moved in arrest of judgement and that for two causes the action lieth not upon the matter here it appears by the 4. Eliz. Dyer 214. that a man may say his action wherein an outlawry lies in London and then by the Statute of 6. H. 8. cap. 4. proclamation shall issue into the Countie where he dwelleth therefore the suing of him in another Countie is no such act wherefore an action should be brought no more then if before the Statute of W. 2. cap. 12. a man had brought an appeal Maliciosè yet no remedy before the said Statute as appears in the 13. H. 7. in Kellawaies case because it was lawful to bring an appeal and so notwithstanding the said Statute no action did lie against him who brought an appeal if it abated 9. H. 5. cap. 1. also the Statute of the 18. H. 6. provideth remedy for false appeals or judgement in another Countie maliciosè c. by action of the case whereby it appeareth that in such case the Common Law allowed no action also the Statute of the 18. H. 6. provideth another remedy then that Statute and therefore no action lies against us no more then in the case aforesaid at the Common Law Secondly here is no issue joyned if the Defendants be guiltie of the execution of this practice but only if they be guiltie of the agreement and this is found for the Plantiff but clearly such agreement without execution giveth no cause of action and the word Practizatione comprehends only the going about and not the executing of this conspiracy and therefore the issue should have been general if the Defendants be guiltie or not and therefore he prayed judgement might be stayed and he cited Owen
Slade and Morleys case a case was put which proves it to be according Snig Baron agreed that Iudgement ought to be given for the Plantiff and by Tanfield if I take your goods and detain them until I have caused you to pay me 10. l. a general Action of Trespass lieth and not an Action upon the case and it is cited 7. H. 4. or 7. E. 4. to be accordingly but yet he agreed that judgement should be entred and so it was appointed to be done but then Chibborn for the Defendant said that here is a mistrial for if this trust be not material because it is not effectually shewed in the Declaration as you have argued then the Venue shall come only from the parish where the Wares were laid upon the land and not from the parish also where the appointment or trust was made by the Plantiff and therefore the trial also being from both parishes is a mistrial and the Court agreed that this is a mistrial upon that reason for now the appointment or Trust is but an inducement and therefore needs not to be shewed within what parish it was made and therefore a new Venire facias was granted and upon that a new trial and damages more then before and judgement was given accordingly Arden against Darcie NOta a good case of Attornament which was decreed in the time of Baron Manwood betwixt Arden and Darcie and it was this one Arden was seised in fee of divers lands in the County of c. and made a lease for years and after made a feofment with words of Grant of those lands to A. and B. to the use of the feoffor and his wife for their lives the remainder to Arden his son in tail and after the feoffor said to the Lessee that he had conveyed his land which the Lessee held in lease to the uses aforesaid and the Lessee said I like it well and after he paid his rent to the feoffor generally and it was decreed in the Exchequer Chamber that this is no Attornament because the Attornament ought to be to the feoffees and it appeareth not that the Lessee had notice of the names of the feoffees and therefore it cannot be said to amount to an Attornament but notwithstanding that Decree Arden the same to whom the remainder was limited had his Action depending in the Kings Bench to trie the point again as he said to me also this Term a point concerning the said Decree was in question upon another Bill exhibited in the Exchequer Chamber by Sir Edward Darcie against Arden and the case was as followeth Sir Edward Darcie exhibited his Bill here in the nature of a scire facias against Arden to shew cause wherefore the said Edward Darcie should not have execution of a Decree made in the time of Baron Manwood and the Defendant shewed that Darcie in his first suit supposed by his Bill that he had a grant of the land then and now in question from Queen Elizabeth rendring rent as it appears by the letters Patents and in facto there was no rent reserved upon the Patent and that the Defendant gave answer to the said Bill and admitted the Iurisdiction of the Court and after a Decree was made against the Defendant and the Defendant now having shewed this special matter demurred upon this Bill in respect that by his pretence the Court had not jurisdiction to hold plea in the first suit and here it was shewed that the first decree was made upon a matter in Law not properly examinable by English Bill and that in facto the Law was therein mistaken and therefore the Defendant prayed that the decree may be re-examined Tanfield chief Baron it is usual in the office of Pleas that if an action be brought as a debtor of our Lord the King this is good although that de facto no suggestion be made thereof if it be not shewed on the other side and therefore a writ of Error for this falsity shall not cause the judgement to be reversed as it was resolved in a case in which I was of Councel and so here as it seemeth Altham Baron here we are in equity wherein we are not tied to so strickt a course as if it were in the office of pleas Brock of the Inner Temple for the Defendant in a Court of equity it is in the discretion of the Court to deny Execution of a decree if good cause be shewed and in 18. E. 4. fo 1. judgement was given against a married wife by the name of a feme sole and reversed although she did not shew in the first suit that she was married and in 8. E. 4. judgement was given in the Kings Bench in a suit and by writ of error was reversed although the Defendant had admitted the Iurisdiction of the Court and the chief Baron and all the Court inclined that Arden may exhibit a Bill to reverse this Decree made against him and may shew what point in Law the Iudges mistook in the Decree or otherwise we should not do as Law and Iustice requireth for it is not expedient to be examined by way of Bar to this Bill in the nature of a scire facias and after Arden according to the Decree of the Court and their direction did exhibit his Bill in the nature of a writ of error Comprising how the first decree was erroneously made and prayed that the said decree might be reversed and in his Bill he shewed the point in Law which was decreed and that upon divers long conveyances appears to be thus and so it was agreed by Councel on both parties that Arden the father was seised of the Mannor of Cudworth in the County of c. and was also seised of the Mannor of Parkhal in the same County and of Blackclose c. which was parcel of the Mannor of Cudworth but lying neer unto Parkhal and alwayes used and occupied with it and reputed parcel thereof but in truth it was parcel of Cudworth and that Arden the father made a Conveyance of the Mannor of Parkhal and of all the lands thereunto belonging and reputed as parcel thereof or occupied with it as part or parcel thereof and of all other his lands in England except the Mannor of Cudworth to the use of Arden his son that now is Plantiffe here and if Blackclose will pass to the son by this conveyance or if by intendment it shall be excepted by the exception made it was the question here and was decreed in the time of Baron Manwood that it is excepted by the exception but all the Barons now thought it to be a strong case that Blackclose is not excepted by the exception of the Mannor of Cudworth and so the first decree was upon a mistake out of the Law and Tanfield chief Baron said that the point is no other but that I infeoffe you of Blackacre parcel of the Mannor of D. exceyt my Mannor of D. this doth not except the King
by express terms quaer if in this case there was any land occupied with Parkhal which was not parcel of Cudworth nor of Parkhal for if so then it seems that Blackclose will be within the exception in regard that the words and lands occupied therewith viz. Parkhal are well satisfied Harris Serjeant said that the case is to be resembled to the point in Carter and Ringsteeds case concrrning the Mannor of Odiam where a man was seised of of a Mannor within which the Mannor of D. did lie and is parcel thereof and he by his will devised the Mannor of D. excepting the Mannor of Odiam where the Mannor passeth by the devise and is not excepted Snig and Altham Barons agreed that this proves the case in equity but by the chief Baron Tanfield because this is a rare case that we should reverse or undo a decree made by our predecessors in the very point decreed by them it is good to be advised and therefore they directed Arden to finde presidents if he could by search made for them in the said case and therefore the Attorney general who was of Councel for Darcie had demurred upon the Bill which was exhibited by Arden and that he being not present day was given until another term to hear Councel on both parts at which day the Attorney said that he conceived it a strange case and without president that a Court should impeach and reverse the decrees given in the same Court and that if it should be suffered the subjects would be vexed and troubled without any end or quiet and this stands with the gravity of every Court to maintain their own judgements and therefore several Statutes were made to reverse judgements upon erroneous proceedings and judges of other Courts constituted to examine them which proveth that before the Statutes aforesaid and without aid of them the Iudges would not reverse their own Iudgements and so here Harris to the contrary it is not without presidents that in a Court of equity one and the same decree in the same Court hath been reversed by decree of the same Court upon some consideration had of the erroneous misprisions of Law and it is no dishonour to a Court of justice so to do for matter in Law but otherwise it were for matter of fact for then that betrayeth an Ignorance in the Iudges which would be a dishonour to the Court but for Law men are not Angles and for that point there may be errour to prove that the Court of equity may do so he vouched the Book of 27. H. 8. fo 15. Martin Dockwraies case which is our very case ruled in the Chancery and so he said that in this Court 3. Jac. a decree made in the time of Baron Manwood was reversed upon the like reason and Tanfield chief Baron said to Serjeant Harris that if it appear by your president that if the same matter in Law which was decreed was reversed in the same point in Law then this proveth for you but if it were for matter of fact otherwise it is and therefore we will see your president Kent and Kelway KEnt and Kelway entred Hil. 6. Jac. Rot. 722. in the Exchequer in the case between Kent and Kelway which was debated Pasc 8. Jac. the Iudges pronounced in the Exchequer Chamber that judgement ought to be affirmed notwithstanding their opinion before to the contrary as it appeareth and therefore I demanded of Mr. Hoopwel Clark of the Errors what was the reason of their opinions and he told me that the case was debated by them this Term at Serjeants Inne and then they resolved to affirm the Iudgement and the reasons as he remembred were as followeth and he also delivered unto me the case as he had collected it out of the Records and delivered it to the Iudges which was that the Plantiff in the Kings Bench declared that one Benjamin Shephard was indebted to him in 300. l. and that he sued out of the Kings Bench an Alias Capias directed to the Sheriffe of N. to the intent to compel the said Benjamin Shephard upon his appearance to put in Bail according to the custome of that Court for the Recovery of his debt which writ was delivered to John Shaw Sheriffe of the said County to be executed the Sheriffe made his warrant to the Bailiffe of the liberty of the Wapentake of Newark and the Plantiffe himself delivered it to James Lawton Deputy of the Lord Burley the Kings chief Bailiâ—e of that liberty to be executed and the Deputy Bailiffe by vertue of the said warrant arrested the said Benjamin Shephard whereupon the Defendant with others made an Assault and rescued the said Benjamin Shephard out of the custody of the said Deputy Bailiffe whereby he lost all his debt and damages were assessed at 172. l. and cost 10. l. and in this case the Iudges agreed that notwithstanding the Defendant had rescued the said Benjamin Shephard out of the hands of c. when the said Benjamin Shephard was arrested upon an Alias Capias out of the Kings Bench which writ is only in nature of a plea of Trespass yet the party who rescued him shall answer in this action damages for the debt because the Plantiffe by this means had lost his debt And yet it is not shewed that the Rescuer knew that the Plantiffe would declare for his debt but if in this case the Sheriffe or Bailiffe had suffered a Negligent escape they should be charged only with the damages in the same plea as the writ supposeth and no for the debt and so a diversity also they agreed that the Declaration is good enough to say that he was rescued out of the hands of the Deputy Bailiffe and the course in the Kings Bench was alwayes so upon the return of a rescue notwithstanding the Book of the 7. Eliz. Dyer fo 241. also it was resolved that the Declaration was good saying that he sued an Alias Capias without mention of any latitat before sued also it was agreed that the arrest was good made by the Deputy Bailiffe by vertue of a warrant delivered to the Sheriffe but quere if they should not examine if the Bailiffe had a power given to make a Deputy by his Patent for this appears not in the case Bently and others against Leigh in Trespas Hill 45. Eliz. Rot. 1231. Trin. 7. Jac. in the Exchequer TPe Iudges affirmed a Iudgement this Term between Leigh Plantiffe in a writ of Error and one Bentley and others Defendants and the matter assigned for Error was because the Trespass was brought in the year 45. Eliz. for a Trespass made in the 42. Eliz. and the judgement upon the verdict was against the Defendant and the Margent of the Roll it was entred quod Defendens capiatur where it ought to be pardonatur as he pretended for the general pardon which was in 43. Eliz. had pardoned the fine to the King for the Trespass and this is a thing whereof the Iudges
impedit praesentare to the Church of D. the Defendant saith that there is no such Church 22. E. 4. fo 34. an action was brought against I. S. Maior of D. and he Traversed that there is no such Corporation Tanfield chief Baron said that if in an action of Trespass the Defendant saith that I. S. was seised in fee and infeoffed him without that c. and the Plantiff saith that I. S. was seised in fee and infeoffed me without that that there was any such person as I. S. in being this is no good Traverse Hern Baron seemed that this Traverse is good in the principal Case but he was once of Counsel with the Plantiff and it was moved that the Case should be Compounded An Information against Page IN an Information against Page and another upon the Statute of 3. 4. E. 6. cap. 21. for buying of Butter and selling of the same by retail contrary to the form of the Statute upon not guiltie pleaded the Iury found one of them only guiltie both of buying and selling and the other not guiltie and it was moved that no judgement may be given in this Case in asmuch as the action is conceived upon a joynt buying by two and it appeareth that this is but by one but it was argued that judgement ought to be given for it cannot be intended in Law as to this purpose a joynt buying for the wrong is several and in proof thereof was cited 36. H. 6. fo 27. the 11. H. 4. Dyer fo 194. or 195. accordingly also this action is for a wrong done to the Common-wealth which is a several wrong by either and to this purpose was cited 40. E. 3. fo 35. 36. H. 6. cited before and 5. H. 5. fo 3. where an action de malefactoribus in Pareis was brought against three and one only was found guiltie and judgement was given against him and there is no difference as to this purpose between this Case and an action of debt upon a joynt contract made by two as appeareth by 21. H. 7. and Partridges Case in Plowden where it is said that the bargaining is but matter of conveyance to the action and according unto this was cited 33. H. 8. Brook tit issue and also 28. H. 6. fo 7. and 36. H. 6. fo 29. and a Case was adjudgeed in Mich. 35. 36 Eliz. in the Kings Bench which proves the same also where an information was brought supposing the Defendant to have bought Cattle of two contrary to the form of the Statute and it was found that he bought them but of one and yet judgement was given Hitchcock to the contrary and he argued that no judgement ought to be given for he said that if an information be brought against two upon the Statute of usury and one only is found guiltie yet no judgement may be given in this Case to which the Court agreed and he cited Dyer 160.5 Ma. where two sued in the Court of Admiraltie one for an offence triable within the bodie of the Countie contrary to the Statutes of 13. 15. of R. 2. and an action was brought against one of them only and good and he vouched also 22. Eliz. Dyer fo 370.2 R. 3. fo 18. where three brought an account against one he pleads he was never their receiver and the Iury found c. and he cited a case to this purpose an information was brought against two for buying of Cattle of one B. and for selling of them contrary to the form of the Statute and in this Case the Iury found the Defendant not guiltie for the buying them of B. but that he bought them of one P. and upon an attaint of the Iury the opinion of the Court was in this case that though the verdict was affirmed yet no judgement ought to be given thereupon and this was the true Case of Lidwood and Pearpoint cited before on the other side as George Crook said York and Allein A Man recovered damages in an action upon the Case against B. who at the time of the judgement was joyntly seised in fee with C. and that after B. and C. aliened the partie who recovered is outlawed the King eight years after this outlawry extends the moitie of this land for these damages recovered against B. and it was moved if he shall have them in extent for them or not also if he shall have it without a scire facias and the Barons were clear in opinion that he shall have it in extent for it was liable to the extent of the partie outlawed before the Alienation and then when it comes to the King by the outlawry although it be after the Alienation it continueth extendible for the King although the Alienation was before the outlawry It was admitted by all the Barons that if a Coppiholder surrender to the use of a younger son and dies that this younger son cannot bring an action until admittance but if the Copihold had descended to the heir he may have an action before admittance see Cook Coppihold Cases lib. 4. fol. 22. and also it was said that all Coppiholders of the Kings Mannors may now have admittance into their Coppihold estates well enough and the order for the stay of their admittances which was made heretofore is now dissolved and quashed Dennis against Drake DEbt was brought by Dennis against Drake Sheriff for an escape a man had judgement in the Kings Bench and a writ of error was brought within the year and after the year passed the judgement was affirmed in the Exchequer Chamber and within a year after the affirmation a Capias issued to the said Drake the Sheriff who took the partie and suffered him to escape and this being the Case upon the declaration in this action the Defendant demurred and all the Barons said that there is no question but a Capias may well issue within the year after judgement affirmed without a scire facias though it be more then a year after the first judgement and it seemed to them that there was no difference though that the writ of error was not brought untill after the year of the first judgement given although in such case there be an apparant neglect in the partie who had not sued his execution within the year and therefore he was enforced to a scire facias thorough his neglect whereas if error had been brought within the year he had never been driven to his scire facias in this Case yet for asmuch as when the judgement is affirmed this is all one as a new judgement they conceived it made no difference and Tanfield chief Baron said that it had been often so judged in the Kings Bench. It was said here that if a man be instituted to a benefice he ought to pay the first fruits before induction by the Statute but by the Common Law it was otherwise for he is not to have the temporalities until induction and therefore he could not pay the first fruits
demurrer joyned George Crook for the King conceived that the lease made in the 26. Eliz. is good first he said that although the Queen cannot take an inheritance of freehold without matter of Record yet she may take Chattels upon a surmise made that they were granted unto her and therefore he vouched 21. H. 7. fo 19 that an Obligation may be granted to the King without inrolment of the grant and 40. Assise pl. 35. Brook tit suggestion pl. 5. it appears that the King shall have a Chattel by a demise by parol upon a suggestion made thereof in the Exchequer without a Record and in the 15. H. 7. fo 15. the Kings Baylie who is not of Record may be compelled to accompt upon a suggestion made Brooks suggestion pla 31. and in the 37. H. 6. fo 7. 18. if the King gives goods with his hands this is good although no record be made thereof because it is but a Chattel and by the same reason he inferred that he may also accept of Chattel without a Record but admitting that he cannot take without a Record it seemeth that here is a thing well enough Recorded to intitle the King after the return made by the Commissioners for the Commissioners are officers of Record to this purpose and they endorse the prayer of the partie to have it Recorded and this being after the return is a sufficient Record to intitle the King and he vouched the 2. H. 7. fo 10. where the servant of Iustice Catesby after the death of the Iudge made a return and this was good and the 8. H. 4. a Record certified by a Iudge after he was displaced and 43. Assises if a Coroner makes his Rols and dies before he certifie them they may be certified after his death and so here this acknowledgement and prayer being certified may at any time after be inrolled and although it seemeth by the Book in the 19. Eliz. Dyer fo 355. that a grant being made to the King and acknowledged before one of the Masters of the Chancery and inrolled in the time of another King maketh not the Grant good yet he said that it was adjudged for another grant made to the King by the Duke of Somerset and acknowledged before one of the Masters of Chancery and inrolled in the time of another King was good enough to perfect the grant and this was by a grant made by the Duke of Bozoms Inne in London and he said that it is not reasonable that the Law should adjudge otherwise for it may be that the Clark will not inroll it untill such a time viz. a moneth within which time the King may die should it now be reasonable that it should not be inrolled at all he said it was unreasonable and he said that it appeareth by the 37. H. 6. fo 10. that a deed delivered at the Kings Coffers is good enough to avoid his lease made in the 44. Eliz. for although that it be true that a grant of a reversion shall never operate to the destruction of a right of a third person yet it seemeth that an Act commenced may be confirmed well enough to the destruction of a mean interposed Act and it seemeth that the inrolment here is but a confirmation of a precedent lease and not a relation to make a thing which was not before and therefore to examine what thing an inrolment is and it seemed to him that it is no matter of Record as it appears 24. E. 3. and 29. H. 8. fo 15. and therefore it appears by Wymacks Case Cook L. 5. that a deed inrolled ought to be pleaded hic in Curia Prolat which proveth that the deed and not the inrolment thereof is the thing which passeth the estate and therefore he vouched the case in the 6. E. 6. Brook title faits if one joynt Tenant sells all his land in D. and after his companion dieth and then the deed is inrolled yet a moitie only shall pass and 41. Eliz. Cook Perimans Case lib. 5. if a man make a feofment of lands and inroll the Deed within the Mannor as by the custome it ought to be yet the inrolment shall pass nothing and therefore it is there said the inrolment may be good enough after the death of the parties so by the same reason aforesaid it is put in the same Case of Perimon and also in Butlers and Bakers Case Cook lib. 3. that if a man deliver a writing as an escrow to be his Deed upon certain conditions performed and after the Obligor and the Obligee die and then the Conditions are performed the Deed is good for there was traditio inchoata in the life of the parties and this being after consummated takes his effect by force of the first delivery and acknowledgement and therefore also he said that it was lately adjudged that if two men are mentioned to be bound by one Obligation and the one seals at one day and the other at another day this is as good as if it had been at one day and therefore he said that there is no doubt but if a lease be made to the King by a Bishop and after another lease is made also of the same land or if the Bishop die yet if after the first lease be inrolled this is good and therefore also he cited a case to be adjudged in Banco Regis 41. Eliz. between Collins and Harding that if a man be seised of freehold and Coppihold land and makes a lease of both for years with licence rendring rent and after he grants the reversion of the freehold and makes a surrender of the Coppihold to the use of the same person and an attornment is had for the freehold and the presentment of the surrender for the Coppihold is not made untill a year after yet he in reversion shall have an action of debt for all the rent for the presentment of the surrender is but a perfection of the surrender before made also he cited the case as I observed him to this effect in the 9th of Eliz. in the Abbot of Colchesters Case where he said that the Abbot of Colchester committed treason and after made a lease for years and then he surrendred to the King all his lands and after an office found the treason and it was holden the lease is good against the King who took by the surrender and not by the treason committed before but as Walter said the case was adjudged that the King should avoid the lease for now he is in by the treason paramount the surrender Phillips against Evans IN an Ejectione firmae brought up three acres in the forrest of Kevington in the Countie c. the Defendant pleaded not guiltie and the Venire facias was awarded de vicineto of the forrest and the Defendant moved in arrest of judgement because the Venire facias de vicineto of the forrest was not good for as Stephens for the Defendant said that a forrest and the name thereof is but
the profit and comoditie of his Master the Plantiff and it is shewed that he intended to deceive his Master and the Queen also and where a wrong is made to another in my name whereby I am damnified there I shall have an Action and if in this case the Defendant had left the goods in the ship then the Plantiff had suffered no loss and therefore his taking them out of the ship is the cause which occasions the loss to the Plantiff and therefore it is reasonable that he should render us damages and he vouched the writ of deceipt in F. N. B. and divers cases therein put and 21. E. 4. that if a man bring an Action in London and the Defendant to delay my Action brings a writ of priviledge be shall have an Action upon the case and he vouched the like case to be adjudged in the Kings Bench 40. Eliz. between Byron and Sleith upon an Action of the case brought by the Defendant because he sued a scire facias against a Bail in a Court where he ought Bromley Puisne Baron said that the Plantiff shall have judgement First it shall be intended that the Plantiff was beyond the Seas at the time in respect of the Minute of time between his departure and the landing of the goods Secondly he said that it needs not be expressed that the Master had left moneys wherewith to discharge the custome for it shall be intended in this case because the Defendant had taken upon him to meddle according to the appointment of the Plantiff wherefore c. and so he departed to the Parliament Altham second Baron agreed that the Statute for the paying of custome appointeth that if the goods of any man be laid upon the land the custome not paid that then the goods shall be forfeited and therefore here he shall not lose his goods by reason of this Act made by the Defendant so that if the Defendant be a meer stranger to the Plantiff without question an Action of Trespass lies for this taking then in the principal case by reason of this trust an action of the case lies and if a stranger drives my Cattle upon your land whereby they are distrained by you I shall recover against the stranger for this distress by you in an action against him for by reason of this wrongful Act done by him I suffer this loss and he vouched 9. E. 4. fo 4. a case put by Jenney Snig third Baron to the contrary I agree that if a stranger put in my Cattle to the intent to do hurt to me a Trespass lieth but here is an Action upon the case and that lies not because it appears not sufficiently that the Defendant was servant to the Plantiff to Merchandise but generally his servant and therefore an Action of Trespas rather lieth generally for in an Action upon the case he ought to hit the bird in the eye and here it is not shewed that the goods were for the same voyage nor that the Defendant is a Common servant in this imployment also the Declaration is not good because he doth not shew that the Defendant had moneys or means from the Master to pay the custome and he is not compellable to lay out money of his own besides he cannot dispose of the goods until the custome be paid wherefore c. Tanfield chief Baron there are two matters to be considered in the case First if here you charge the Defendant as your special servant or if as a stranger Secondly if as a stranger then if an Action upon the case or a general Action of Trespass lieth and as to the first if in this case you have shewed him to be such a servant as a Bayliff or Steward and he hath misbehaved himself in such a thing which belongs to his charge without any special trust an Action upon the case lieth but if he be taken to be your general servant then he is to do and execute all Acts and lawful commands and against this general servant if his Master command him to do such a thing and he doth it not an action upon the case lieth but yet this is with this diversitie viz. if the Master command him to do such a thing which is in his convenient power or otherwise not and therefore if I command my servant to pay 100. l. at York and give him not money to hire a horse an Action lieth not for the not doing of this command but if I furnish him with ability to do it and then he doth it not an action lieth well against him and in the principal case it is shewed that the Plantiff appointed the Defendant being his servant generally to receive c. and to pay all customes c. then it is examinable if the Plantiff sufficiently inabled this Defendant to do this command and the woâ—ds of the command seem to be all one as if he had commanded the Defendant to receive the Wares paying the custome and therefore the Defendant needs not to receive them if he had not money to pay for the custome and so it is not within the Plantiffs command to receive the Wares and then if he doth receive them not paying for the customes this is another thing then the command anâ— therefore it is no misfeazance as my particular servant but being my general servant he had done another thing then I commanded him whereby I receive some damage and by consequence is in case of a stranger for if my general servant who is not my horse keeper take my horse out of my pasture and ride him this is a thing which he doth not as a servant but as a stranger then as to the second matter the Defendant being as a stranger if an action upon the case or a general action of Trespass lieth for this is as if my general servant take my horse and rides him without my appointment a general action of Trespass lieth but if by reason of his riding my horse die an action upon the case lieth and so it is in the case here the Defendant had laid the goods upon the land by reason whereof they were forfeited it is collourable that an Action upon the case lieth but if a man take my goods and lay them upon the land of A. a Trespass or an Action upon the case lieth against him who took them by the better opinion but it is good to be advised and it was adjourned and at another day Altham Baron said that an Action upon the case or a Trespass generally did lie well enough and he vouched F. N. B. that if a Bailiff arrest one without any warrant I shall have Trespass generally or an Action upon the case at my election and so in the like case 18. E. 4 fo 23. Trespass or Action upon the case lies also by F. N. B. if Executors be outed by the Testators Lessor there they may have an Action upon the case if they will or Trespass generally and in
purpose as to the avoiding of the Benefice but his want of privitie availeth to excuse him of being Simoniacus yet because he is Simoniace Promotus the presentation is void and the King shall have it by the expresse words of the Statute and therefore as it seems if in this Statute there had been an expresse saving of the interest of the Incumbent by reason of his innocency yet such a saving of Interest had been void and repugnant in respect that it was expresly given to the King before as it is in Nichols case in Plowden upon the Stat. of 1. H. 7. See 1. Mar. Dyer and 7. Eliz. Dyer 231. such a saving doubted if it be void and in Cook lib. 1. Altonwoods case a saving Repugnant to the expresse words of the Premisses is void and so in our Case the Presentation is given to the King expressely and therefore if there were a saving in the words subsequent this were void much more in our Case where there is no saving And to prove that by the Symonie in the Patron that the Patron shall be prejudiced he vouched 42. E. 3. fo 2. It goods be given to B. by A. this is by fraud in A. to the intent that he may defraud another although B. is not knowing of this friend yet the gift is void as to him 34. E. 1. Title Garranty accordingly and Burrells case Cook lib. 6. upon the Statute of 27 Eliz cap. 4. to the same purpose To the second matter it seems that by the Queens death her Presentation is determined cleerely and so in case of a common person for if an Admission c. should follow after the death of the Presentor this is without any Authority of the instrument of Presentation for although there were no Admission there is no Presentation and he said that the Presentation passeth no interest but is as a Commendation and therefore he compared it to the Case of Say and Fuller in Plowden Com. If a Lease be made for so many years as a stranger shall name there ought to be certainty of years appointed in the life of the parties or otherwise it will be void and in 38. E. 3.3 If a Bishop present and die before c. Now the King shall present anew and also there it appears that the King may present by Paroll well enough and so it is said in 34. E. 3.8 tit Quare impedit 11. That a Presentment made by the Bishop becometh null and void by his death and therefore it appeareth in Fitzh Office of Court 29. that licence to alien granted to the King is void by the Kings death there needeth no actual Repeal or recital of the new presentation yet I agree that the King may make an actual repeal if he will as it appears by divers cases which have been cited before but that is of necessity to be done and as it seems the words of the Statute 6. H. 8. prove that before this Statute a second Grant made the first void without actual repeal in case where the thing passed by the Grant and by 38. E. 3. fo 3.4 it appears that a second Presentation made by the King was good without a repeal of the first and by Gascoigne 7. H. 4.32 if the King make a Presentation to one and then presents another without recitall or repeal of the first yet the Bishop ought to receive the latter Presentee for it is good without actual repeal wherefore judgement ought to be given for the Plaintiff Snig Baron said that as the Action is brought judgement ought to be given for the Plaintiff but if the Plaintiff had brought a Quare impedit peradventure I should have been of another opinion And as to the point of Symonie by the Civill Law it was punishable by deprivation and the guilt of the Patron should prejudice the Parson as to matter of Commodity in the Parsonage and at the Common Law if the Parson will pleade such Presentment he should be prejudiced as appears by our Books and hereby the incumbency the words of the Statute will not be satisfied for then the Queen should not Present if an usurper present and the Presentee is in by six moneths this gives Title of Presentation to the King against the rightfull Patron also it seemeth That if I. S. hath an Advowson and A. purchase the next avoidance to the intent to present B. and the Church becomes void and A. presents B. this is Symonie by averment as by good pleading the Presentation of B. shall be adjudged void To the second Point in respect that the Plaintiff had the possession by induction it is no question but he may retaine a possessorie Action for the Titles But if it were in a Quare impedit it would be materiall whether a Repeal should be in the case or not according to the Presidents in the Booke of Entries fo 303 304 305. for if a Licence be Granted to purchase in Mortmaine this may well be executed after the death of the Queene as it appeareth by Fitzherberts natura brevium expresly and so in Dyer a license of Transportation doth not cease by the Kings death 7. H. 4. in the Countess of Kents case it appears when the King makes a grant which is void yet there shall be no new grant without an actual repeal but it seems we are out of the intent of the Statute of 6. H. 8. because the words during his pleasure are not in the grant or Patent and so upon the whole matter judgement shall be given for the Plantiffe Tanfield accordingly the case is that the Defendant had prioritie of the possession of the Corn for which the action is brought and yet it seems judgement ought to be given for the Plantiffe and first as this case is here is Simonie by the Civil Law and the partie had his benefice by Simonie although he be not conusant thereof Secondly admit that here was not Simonie by the intendment of the Civil Law yet the Statute hath made an avoidance of the benifice in this case although it be not Simonie for the Statute speaks not one word of Simonie throughout the Act and yet by express words it doth avoid such presentations as this is and as to the Civil Law such benefice is to be made void by sentence declaratorie but it is not void ipso facto as it seems in the case where a common person was consenting to the Simonie but the text of the Civil Law sayes expresly that the Church ought not to be filled Corruptivè or by corruption and the Civil Law expresseth such a person as is in our case by Simoniace promotus and calls him who is particeps criminis Simoniacus and he who is Simoniacus is by the Civil Law deprived not only of the benefice ipso facto but also is deprived to be a Minister and adjudged guiltie in Culpa et poena Petrus Benefieldus a late writer of good authoritie saith that if a friend
Woods case in Cook lib. 4. Tanfield chief Baron it is true that the issue should be better if it were general not guiltie of the Trespass aforesaid but yet it is good enough in this case for the special words comprehend as much as the words not guiltie of the practice and agreement aforesaid c. and the word Practizatione comprehends aswel the subsequent Acts of execution as the precedent combination and therefore Tantamounts a general issue and it was good by the Court and as to the action Altham Baron conceived that it lieth although it be for a lawful cause for the Law abhoreth fraud and conspiracy as if two conspire to vex me for my land by suit an action lieth F. N. B. yet it is lawful for every man to sue me without title and he vouched 16. Assise and here it is laid that the Defendants indeavoured to make the Plantiff forfeit his goods which are worth 5000. l. and this is reasonable that it should lie and 9. E. 2. Fitz. discents 52. is our case directly upon the matter and therefore it seemeth to me that it lies Tanfield chief Baron said that 9. E. 2. crosseth this case in part and yet he thought that the action lies to which Snig agreed and it seemed the cases of appeal put by Godfrey did lie well enough without aid of the Statute of W. 2. if there be such a conspiracy Tanfield chief Baron accordingly if it be legally thought without cause yet if without conspiracy the action lieth not for it as it appears in Owen Woods case Cook lib. 4. and in all cases where strangers have nothing to do with the suit brought for the conspiracy and yet combine with the Plantiff in the suit an action upon the case lieth for this vexation and judgement was entred for the Plantiff by the Court. An inquisition for the King was returned here and it was found that Fleet-wood the Kings debtor for his office of receiver for the Court of Wards did purchase a certain Term and interest of and in the rectory of Yeading for divers years then to come and that being so possessed he became indebted to the King and that this term is now in the hands of the Lady Edmonds and by colour of this inquisition the land is extended for the Kings debt Harris Serjeant moved that this inquisition is insufficient to extend the land but good to sell a term and he vouched Palmers case Cook lib. 4. to which the Court inclined but it was adjourned If a Bishop becomes indebted to the King for a subsidie and dieth his successors shall not be charged upon the lands of the Bishoprick but the executors of the predecessor or his heir and if they have nothing the King shall lose it as chief Baron Tanfield said which the Court granted upon the motion of Bridgman for the Bishop of Saint Davids Trallops case A Scire facias issued against Trallop the father and Trallop the son to shew cause wherefore they did not pay to the King 1000. l. for the mean profits of certain lands holden by them from his Majesty for which land judgement was given for him in this Court and the mean rates was found by inquisition which returned that the said mean profits came to 1000. l. upon which inquisition this scire facias issued whereupon the Sheriff returned Trallop the father dead and Trallop the son now appeared and pleaded that he took profits but as a servant to his father and by his commandment and rendred an accompt to his father for the said profits and also the judgement for the said land was given against his father and him for default of sufficient pleading and not for the truth of the fact and he shewed the Statute of the 33 H. 8. cap. 39. which as he pretended aided him for his equitie whereupon the King demurred Hitchcock for Trallop seemed that the Statute did aid him by equity and he moved two things the one that if here be such a debt that the Statutes intends to aid it the other if the Defendant hath shewed sufficient matter of equitie within the intent of the Act and he thought that it is such a debt as the Statute will aid for although that here be au uncertainty of the time of the judgement given for the King that being reduced to a certainty by the inquisition after it shall be within the intent of the Statute for id certum est quod certum reddi potest and the words of the Statute are if any judgement be given for any debt or duty c. and here although that there was no certainty unto how much these mean rates extended at the time of the judgement given yet it is clear that it was a duty at the time of the judgement and then it is within the Statute also he said that the words in the proviso of that Statute explain that the intent of the makers of the Act was so for the words are for any thing for which the partie is chargable and the mean rates are a thing for which he is chargable see Cook lib. 7. fo 20. and the Lord Andersons case there fo 22. as to the point of equitie there seem to be two causes First he shewed that he was but a servant to his father and had given an accompt to him Secondly the judgement was given against him upon a point of mispleading Tanfield chief Baron said that the matter in equitie ought to be sufficiently proved and here is nothing but the allegation of the partie and the demurrer of Mr. Attorney for the King and if this be in Law an admittance of the allegation and so a sufficient proof within the Statute it is to be advised upon and for that point the case is but this a scire facias issueth out of this Court to have Execution of a recognizance which within this Act ought by pretence and allegation of the Defendant to be discharged for matter in equitie and the Defendant pleads his matter of equitie and the King supposing this not to be equity within this Statute demurreth in Law whether that demurrer be a sufficient proofe of the allegation within the Statute or not and it was adjourned Trin. 7. Jac. in the Exchequer Doillie and Joiliffs case again Trin. 7. Jac. in the Exchequer CRessey for the Plantiff said that the Plea in Bar is not good because the Defendant justified by force of a Capias ad satisfaciendum and pleads no return thereof and moved that it is not justifiable without returning of the writ but the Court seemed the plea to be good notwithstanding that but if it were a mean process then it ought to be pleaded to be returned see Cook lib. 5. Hoes case fol. 19. according to this diversitie Tanfield chief Baron thought that the Plantiff shall recover for first the writ of error here is not a writ but a commission and therefore false lattin shall not abate it as it hath been
adjudged in the Exchequer chamber and in this case the scire facias ad audiendum errores and all the writ and this scire facias in our case ought to have been made against the said Julian as against a married woman and the writ of execution which is the warrant to the Sheriff is not in such words as the judgement in the Kings Bench is upon which it is founded viz. that he should take the aforesaid Julian c. but that he take the said Julian Goddard then the Sheriff shall not say in his defence that all the proceeding in the writ of error was against the person and aided himself by entrie in the roll of the Court viz. quod praedict Julianum capiat c. but he ought to rely only upon the writ and if in this case he would save himself then he should have inquired upon the delivery of the writ unto him by Lovies who was that Julian Goddard and if thereupon Lovies had informed him that it was Julian Doillie then the Sheriff should have an action upon the case against Lovies upon this false information viz. if A. prosecute a replevin to replevy his Cattle and thereupon he cause the Sheriff to deliver unto him the Cattle of B. for this here B. hath his remedy against the Sheriff and the Sheriff against A. for this false information also he said that if a fieri facias cometh to make execution of the goods of B. if the Sheriff take others goods in execution a Trespass lieth and therefore to secure himself he ought to impannel an inquest to finde if they be the goods of B. or not and then as he conceived it is good but the opinion of the Iudges in the Kings Bench in Mich. 5. Jac. in Trespass between Rookwood and Beal was to the contrary for there a Trespass was brought by Rookwood and the Defendant justified the taking and so forth as Sheriff by vertue of a fieri facias as of the goods of Edward Rookwood father of the Plantiff and upon the execution of this writ the Defendant impannelled a Iury who found the goods to be the goods of the said Edward Rookwook for which c. the Plantiff in the replication Traversed that they were his goods absque hoc that the Iury found that they were the goods of Edward Rookwood c. whereby it seemeth that the finding of the Iury in this case is not material and so the Court then conceived therefore quaere the opinion of Tanfield chief Baron in that point and see the 17. E. 2. pl. 373. and 31. E. 3. Assise pla 378. and 7. H. 4. fo 27. Trespass pla 279. what acts a Sheriff may justifie by reason of a commandment and authoritie from the Court which commanded him Snig Baron seemed that the action did lie for the writ of capias ad satisfaciendum maketh no mention that Julian Doillie is the same person against whom judgement was given in the Kings Bench by the name of Julian Goddard and although that the entrie in the Roll is against the said Julian c. yet the writ is directed that he should take Julian Goddard and then the Sheriff had not done according to the writ in the taking of Julian Doillie and he said that if A. binde himself by the name of I. and judgement is given against him by the name of I. without appearing in person and execution is granted against him by the name of I. in this case an action lies against the Sheriff if he take the said A. in execution for it appears not to him that it is the same person but for the other cause it seemeth that the Plantiff shall not have judgement for the Sheriff is no such person who ought to be priviledged here and therefore the Plantiff should have his remedy else where and he said that such a case hath been reversed in the Exehequer Chamber for error for the under-Sheriff is but an Attorney for a partie priviledged that is for the Sheriff but all the Clarks of the Court and the other Barons were against him in that and also all the presidents Altham Baron had never heard it argued before and therefore he respited his opinion till another day at which day he said that the arrest is not justifiable and so for the matter an action well lieth for by him the arrest ought to be in this case with a special recital that whereas judgement was given and so forth as in the 1. and 2. H. 6. if an Abbot hath judgement to recover and after he is deposed a scire facias lieth not against him as Abbot to reverse this judgement and see 10. E. 4. a capias against A. the son of R. c. see the 19. of H. 6. fo 12. Summons against Iohn S. c. see 18. H. 8. fo 1. a replevin was brought in the Countie Palatine against A. widdow and after she married D. and the plaint was removed into the Common Pleas mentioning her marriage c. and so here the scire facias ought to mention all the special matter and thereupon the writ of execution upon the reversal of the judgement ought to be against Iulian Doillie and not being so the Sheriff is punishable c. but it seemed to him that in this action the wife ought to have joyned with her husband for the false imprisonment or at the least if the husband had brought the action alone there ought to have been a special mention of the loss which the husband particularly had sustained as per quod consortium uxoris suae amisit or otherwise clearly it lieth not for the husband alone and he resembled this case to the cases in the 9th of E. 4. fo 51.22 Assise pla 87.46 E. 3. fo 3. where husband and wife ought to joyn in an action or at the least the declaration ought to be special as aforesaid and so are the books of the 20. H. 7. and Kellaway to be intended and for this cause he thought the Plantiff shall not have jugement here Tanfield chief Baron as I conceived said unto him that the writ ought to have been with a special averment but a surmise ought to have been made against Iulian Doillie as she now is for as the writ is the Sheriff may safely return she is not to be found and thereupon c. quaere if he intended the writ of scire facias ad audiendum errores or the writ of execution awarded upon the judgement in the Kings Bench for he did not mention any particularity of the writ but it seemeth that he intended the writ of execution and then the surmise whereof Tanfield spoke ought to be made upon the roll of the judgement given upon the writ of error and Tanfield chief Baron said as to the joyning in action that clearly for a battery made upon the wife the husband and wife ought to joyn in the action as the books are cited before by Baron Altham and so
be construed to be conditionall because the consideration intended is executed viz. that he hath assumed c. Dyer 76. and 44. Eliz. in the Kings Bench Sir William Lees case in consideration that he had assumed to make a release another promised to pay him 10 l. an action may be brought for the 10 l. without averment of making the release because the consideration is a thing executed viz. the Assumpsit c. but if Executory then the Grant is conditionall as 9. E. 4.19 15. E. 4.9 If an Annuity be granted pro concilio impendendo this makes the Grant conditionall and void for not giving counsell but otherwise it is if it be pro consilio impenso 4. But admitting that here it was conditionall yet the Queen cannot avoid it without Office and so the Plaintiff had no title to enter for an avoidance which was before his grant and so the lease is in esse at the time of the Grant made to the Plaintiff your Grant is without recitall thereof and therefore is void see Knights case Coo. lib. 5. If there be a condition to re-enter for non-payment an Office ought to be found but if it be upon condition to cease for non-payment then it is void to the King without Office as it was agreed in this Court in Sir Moyle Finches case and he vouched Cook lib. 1. Altonwoods case to prove that the lease ought to be recited in the Grant of the reversion or future interest and here although there be a non abstante in your Patent this doth not aid you because it is not found in the speciall Verdict Also for another cause the Plaintif shall not have judgement here for it is not found that the Queen died seised neither that it came to the King that now is and so it cannot come to the Plaintiff and although a fee-simple shall be intended to continue in the same person yet without shewing it shall not be intended to come to the heir 7. H. 7. 3. and so he prayed judgement for the Defendant Tanfield chief Baron said that the case here is by Verdict therefore we ought to intend such circumstances if they be not expressed to the contrary also the seisin of the Queen is shewed to be in Jure Coronae and therefore the intendment that it may be devised by disseisin or abatement between common persons holdeth not here Carew against Braughton Mich. 7. Jacobi in the Exchequer THomas Carew Exequetor of William Carew brought debt against Morgan Broughton Sherif of the County of Cardigan and the case was that John Wyner was in execution upon a Iudgement for William Carew and that after William Carew dyed and that John Wyner brought an Audita querela against Carew Executor of William Carew and upon that Writ he had a venire facias against Thomas Carew and thereupon as the Stat. apoints of 11. H. 6. cap. 10. he put in baile by recogni-zance in the Chancery to the said Thomas Carew and one of the parties for his baile was Thomas Wyner and after upon the Audita Quaerela Iudgment was given against the said Wyner and a Scire facias awarded issued against Thomas Wyner as Bail and after the said Thomas Winer was in execution upon this Recognizance as Bail to the said Thomas Carew and the said Morgan Broughton being Sheriff suffered him to escape upon which escape Thomas Carew brought debt against the Sherif in the debet and detinet and had a verdict to recover and now in arrest of judgement it was moved by Jefferies that the action ought to be brought in the detinet only and he said that if an Action be brought as Executor this alwaies ought to be in the detinet only and he vouched Hitchcock and Browns case remembred at the end of Hargraves case lib. 5. where the case was that one Anthony Brown Executor brought debt against one Lister and that Lister being in execution the wife entermarried the said Lister escaped the Husband and Wife brought debt for his escape in the debet and detinet and there it was resolved that it ought to be in the detinet only and so here and see the custome to plead mentions that the Recognizance acknowledged was to the use of the Executor and not to the use of Thomas Carew by his name but Wild of the Inner Temple prayed judgement and said that the Action is well brought in the debet and detinet and he vouched 9. H. 6. and 20. H. 6. if an Executor recover and after upon the Iudgement he brings debt it ought to be in the detinet but if an Executor sels goods of the Testator and takes an Obligation in his name as Executor yet here the Action upon this Obligation ought to be in the debet and detinet because it is upon his own contract and 1. E. 3. Brooke Executor pla 287. although it appears there and so by 9. H. 6. fo 11. That is good either way and 41. E. 3. Brook pla 545. that if a debt be brought against the Executor upon a contract made by them it ought to be in the debet and detinet or otherwise the Writ shall abate and as 9. H. 6. is at his pleasure to name him Executor or not and therefore c. Snig the second Baron if the Executors bring an Action of goods carried away in the life of the Testator c. and hath judgement to recover 20 l. and dammages for them and upon this judgement he brings debt this shall be in the detinet Altham 3. Baron if an Executor sells the goods of the Testator and an Obligation is made to him for the money for which they were sold without doubt this action shall be in the debet and detinet for the action concerns him in his person and so if he with his own money redeem goods which was pawned by the Testator c. and the Stat. of the 11. H. 6. cap. 10. is that upon an Audita Querela the party who sueth it shall put in Bond to the party c. and the Testator is not party at the time of this Audita Querela but Thomas Crew who is the Executor and it is not as a Proces of execution pursuant c. but is a new thing and so for his opinion suddenly it is good in the debet and detinet Bromley the 4. Baron seemed cleer that if a Bond be made to an Executor upon a simple Contract made with him for the goods of Testator there the action ought to be brought in the debet and detinet but this account is conceived upon a dependency of a duty to the Testator and therefore it ought to be detinet only Tanfield chief Baron the case is doubtfull and therefore it is good to be advised but for this time it seemeth there is a diversity where the Recognizance is Legally forced and where it is voluntary for in our case the Law compels this Recognizance upon the suite which the
was in a Formedon in remainder and it was moved now by Serjeant Harris if the partie against whom it was given may sue in the Exchequer Chamber by Bill or petition to the King in the nature of a writ of false judgement for the Reversal of that judgement Tanfield seemed that it is proper so to do for by 13. Rich. 2. if a false judgement be given in a base Court the partie grieved ought first to sue to the Lord of the Mannor by petition to reverse this judgement and here the King being Lord of the Mannor it is very proper to sue here in the Exchequer Chamber by petition for in regard that it concerneth the Kings Mannor the suit ought not to be in the Chancery as in case a Common person were Lord and for that very cause it was dismissed out of the Chancery as Serjeant Harris said and Tanfield said that he was of Councel in Pettishals case in the time of the Lord Bromley where it was debated at large if such a judgement ought to be reversed by petition in the Chancery in case where a Common person was Lord and at last it was decreed that it should be as in that case of Patshal and for the same reason here the King being Lord and therefore day was given till the next Term to shew their errours and Serjeant Harris said that the errors are in effect no others then were in the case 9. Eliz. Dyer fo 262. and in Godmanchesters case and it was adjourned Scot and his wife against Hilliar SCot and his wife Plantiffs against Hilliar for these words spoken of the wife viz. she would have cut her husbands throat and did attempt to do it Hutton Serjeant in arrest of judgement said that these words are not actionable for the will or attempt is not punishable by our Lawe and he vouched Cockains case Cook lib. 4. cited in Eaten and Allens case but by the Court an Action lies for the attempt is a cause for which the husband may be divorced if it were true and it is a very great slander and Baron Snig said that in the same Term a judgement was given in the Kings Bench and was affirmed in the Exchequer Chamber upon a writ of error for these words He lay in the high way to rob me and therefore let judgement be entred for the Plan̄tiffe but it was adjudged in the principal case that for the words she would have cut her husbands throat no Action would lie Gooches Case A Coppyholder surrenders into the hands of the Customary Tenants to the use of Anne his Wife and after before any Court the said Coppyholder surrenders the Land into the hands of other Customary Tenants to the use of the said Anne for her life the remainder to Percie in Fee upon condition that he in remainder his Heirs should pay 20. s. per annum at Michaelmas for ever the first payment to commence immediacely after the death of the said Anne viz. at the next feast of St. Michael and this to be paid in the Church Porch or D. to the Church Wardens of D. in the presence of four discreet Parishioners or otherwise that a stranger should re-enter and at the next Court both these surrenders were present and the Steward admitted the said A. according to the second surrender and she dyed and now upon pretence that the rent of 20. s. was not paid by the Heirs of him in remainder the Heir of Gooch who made the surrender had entred and thereupon an Action was brought and upon the evidence the Jury to the County of Bedford now at the Bar These matters were moved by Serjeant Nichols That a surrender into the hands of Customary Tenants cannot be Countermanded and therefore the second surrender void and the admittance shall work to such uses as the first surrender was made as in Anne Westwicks Case Cook Lib. 4. And to prove that a surrender into the hands of Customary Tenants is not countermandable he said that it is not countermandable by death nor surrender Cooke lib. 4. in his Coppyhold Cases That a presentment in the Court may be after the death of the surrenderer and the admittance thereupon is good and he compared it to the Case of the delivery of a Deed as an Escroll which may be delivered as his Deed after the death of the Maker as it is in Jennings and Braggs case Cook lib. 3. which was not denyed by the Court Serjeant Dodderidge said that when a surrender is made upon condition that he shall pay a summe of money to a stranger these words make an estate conditionall and give power implyedly to the Heirs of the party who did surrender to re-enter for non-payment and the words which give power to a stranger to re-enter are meerely void neverthelesse the precedent words shall stand and make the estate conditionall Tanfield Littleton saies that such a re-entry is void for a re-entry cannot be limited to a Stranger Nichols Serjeant said that if a surrender be made that he shall pay so much money that this makes the estate conditionall and gives a re-entry to the Heirs of him who did surrender But when it goes further and doth not leave the condition to be carried by the Law in such case all the words should be void because it cannot be according to the intent as in the case of a reservation of rent the Law will carry it to the Reversion but if it be particularly reserved then it will go according to the reservation or otherwise will be void and so here Tanfield Admit that here was a conditionall estate by vertue of the Surrender last made and this condition is also to be performed to a stranger which generally ought to be taken strictly yet as it is here he who will take advantage thereof ought to prove a voluntary neglect in the party in the not performance of the Condition and inasmuch as there is no certain time appointed when the payment of this Annuall rent should be made but generally at Michaelmas next after the death of the said Anne thereby in this case the Chuch-wardens ought to notifie the death of the said Anne before the first day of payment by reasonable space or otherwise the condition is not broken and also it is appointed here to be paid in the presence of four discreet Parishioners by the party who should perform the condition yet by intendment he hath no notice who are discreet or who are not especially he being an Infant as in our case he is and therefore although the condition is to be performed to a stranger which generally ought to be performed strictly according to 12. E. 3. Yet this is to be intended only in such cases where the party had certain notice of all circumstances requisite for payment thereof and therefore he directed the Iury that for want of knowledge of such circumstances they should give a Verdict that the condition was not broken And Dodderidge
declares the use to be to himself for life and after to T. B. with power of revocation and to limit new uses and if he revoke and not declare then the use shall be to the use of himself for life and after to Henry Becket with power in that indenture also to revoke and limit new uses and that then the fine shall be to such new uses and no other and after 42. Eliz. by a third Indenture he revoked the second Indenture and declared the use of the fine to be to the use of himself for life and after to Hen. Becket in taile the remainder to I. B. c. R. B. dies and T. B. his brother and heire is found a Recusant and the lands seised and thereupon comes H. B. and shews the matter as above and upon that the Kings Atturney demurreth Bromley and Altham Barons that the Declaration of the uses made by the third Indenture was good and he having power by the first to declare new uses may declare them with power of Revocation for it is not meerly a power but conjoyned with an interest and therefore may be executed with a power of Revocation and then when he by the third Indenture revokes the former uses now it is as if new uses had been declared and then he may declare uses at any time after the Fine as it appears by 4. Mar. Dyer 136. and Coke lib. 9. Downhams case and in this case they did rely upon Diggs case Cooke lib. 1. where it is said that upon such a Power he can revoke but once for that part unlesse he had a new power of Revocation of Vses newly to be limited whereby it is implyed that if he had a new power to appoint new uses he may revoke them also Snig Baron to the contrary and said that he had not power to declare 3. severall uses by the first contract which ought to Authorise all the Declarations upon that Fine and then the Revocation by the third Indenture is good and the limitation void and then it shall be to the use of R. B. and his heirs and so by the death of R. B. it doth descend to T. B. the Recusant and also he said that such an Indenture to declare uses upon uses was never made and it would be mischievous to declare infinite uses upon uses Tanfield held that the uses in the second Indenture stand unrevoked and the new uses in the third Indenture are void and then H. B. ought to have the Land again out of the Kings hands The power in the second Indenture is that he may revoke and limit new uses and that the Fine shall be to those new uses and no others and then if there be a Revocation and no punctuall limitation he had not pursued his Authority for he ought to revoke and limit and he cannot doe the one without the other Also he said that after such Revocation and limitation the fine shall be to such new uses and no other then if there be no new uses well limited in the third Indenture the former uses shall stand void Nota it seemeth that if a man make a Feoffement and declare uses and reserve a power to revoke them without saying moe he cannot revoke them and limit new for the use of the Fine being once declared by the Indenture no other use can be averred or declared which is not warranted thereby for he cannot declare the fine to be to new uses when it was once declared before Cook lib. 2.76 That no other use can be averred then that in the conveyauce Cooke lib. 9 10 11. Although that the first uses are determined as if a man declare the use of a Fine to be to one and his Heires upon condition that he shall pay 40. l. c. or untill he do such an Act if the first use be determined the Fine cannot be otherwise declared to be to new uses And therefore it seemes that all the uses which shall rise out of the Fine ought to spring from the first Indenture which testifieth the certain intention of the parties in the leaving thereof and then in the Case above the second Indenture and the limitation of new uses thereby are well warranted by the first Indenture and in respect that this is not a naked power only I conceive that they may be upon condition or upon a power of Revocation to determine them But the power to limit the third uses by a third indenture after revocation of the second uses in the second indenture hath not any Warrant from the first Indenture and without such Warrant there can be no Declaration of such new uses which were not declared or authorised by the first Indenture which Note for it seems to be good Law FINIS AN EXACT TABLE of the Principall Matters contained in this BOOKE A. AN Action of false impriprisonment for taking his wife in execution she appearing as a Feme sole 48 52 An Action upon the Case for conspiring to outlaw a man in a wrong County 49 Amerciament for a By-law 55 An Action upon the Case where against a Servant for breach of trust much good matter 65 66 67 68 Amerciament where well levied by the Sheriff 74 Action by an Executor against a Sheriff in the debet and deâ—â—net where good 80 81 Authority in fact and authority in Law abused a difference 90 Action for these words against I. S. spoken of the Plaintifs wife she would have out her husbands throat and did attempt to doe it 98 C. Custome for Pirates goods if payable 15 Coppy hold surrendred to the use of a younger Sonne he can have no Action before admittance 20 Churchwardens if elected by Vestry-men where good and capable to purchase Lands 21 Conspiracy see Action Collector of a fifteenth leviable upon one Township 65 Commissioners of inquiry and their power 83 84 D. DEbt against the Sheriff for an escape a good Case 20 Distresse for a By-law upon the Kings Tenant he must bring his Action in the Exchequer 55 Devise to the wife until the issue accomplish 18. years endeth not by death of the issue before 56 57 Decree where execution thereof may be stayed 68 69 E. ERror a Writ directed to an inferiour Court ought to be executed without fee paid or tendered 16 Elegit the party who sued it dieth no scire facias for the Heire 16 Equity where releviable in the Exchequer 54 Estreats where they may be discharged for insufficiency in the Indictment or not mentioning the offence 55 Estoppell in the Kings case 65 Exception in a Grant 69 Escape a difference where caused by a rescous and where by the Sherif or Bailif 70 71 Executor see Action 80 81 Erroneous judgement given in the Kings Mannor reversed in the Exchequer by Petition 98 F. A Feoffement to the use of the Husband and Wife for their lives and after to the heirs of the body of the wife begotten by the Husband what estate 17 First fruits ought