Cleland brought a Writ of error against Baldock upon a Iudgement given in where the Plaintiff declared that the Intr. Hill 22. Iac Rot. 59â— Defendant in consideration that he would do all his commands honestly and truly for the space of a yeare assumed to pay him 10 l. and further declared that he had done all his honest and lawfull commands and this promise being found by verdict Iudgement was given against Doctor Cleland and thereupon he brought this Writ of error and Greene assigned two errors 1. The Assumpsit is that he shall doe all his commands honestly and truly and he hath declared that he hath done all his lawfull and honest commands and he may honest commands and yet not honestly 2. It is said that Jurator Assident dampna and it is not said occasione transgression predict and it is against all Presidents But Nota that there were these words ex hac parte opposita and therefore the exceptions were disallowed by the Court and the first Iudgement affirmed The same Term in the same Court. Secheverel versus Dale THis Case was sent out of Chancery to this Court â—o know the Law therein and in Trespas the case was this Henry Secheverell the Father seised in Fée levied a Fine to A. and B. in Fee to the use of himselfe for life absque impetitione vasti with power to cut and carry away the trees and to make Leases for 21 yeares or three lives the remainder to the use of John Secheverell his eldest Son for life without impeachment of waste with the same powers Henry the Father made a Lease to one under whom the Plaintiff claims for three lives rendring the ancient Rent excepting all the trees unlesse those which shall be for cropping lopping and fewell Henry the Father dyes John the Son in the next remainder cut certain trees Victorin Secheverell who clayms by the lease made by the Father brings trespas and two Questions were moved 1. Whether Lessee for life without impeachment of waste may make a Lease excepting the trees and it was objected by the Councel of the Plaintiff that he could not because this second Lease ariseth out of the first fine and out of the estate of the Conusor But the Court prima facie was of opinion that he might well make such a Lease with such an exception See Co. lib. 11. Lewys Bowls his Case and Doctor and Student lib. 1. cap. 1. and by Doderidge Iustice the Lease ariseth out of both the estates Jones Iustice suppose the Lessee absque impetitione vasti assigne over all his estate might he cut the trees and it was conceived that he might for by Doderidge he hath power to dispose of the trees as it was resolved in Lewys Bowls his case Jones he hath no propriety in the Trees untill they be cut Crew ch Justice Admit a Stranger cut the trees who shall have them By all the Court the Lessee without impeachment of waste shall have them 2. Point Tenant for life without impeachment of waste with power to cut and carry away the trees and make Leases for 21. years or three lives the remainder for life to J. S. without impeachment of waste c. Tenant for life makes a Lease for thrée lives and dyes whether he in remainder for life without impeachment of waste with power to cut the trées may cut the trées and take them during the Lease for thrée lives and the Court séemed to be of opinion that he might And Leving of Councell with the Plaintiff argued that when tenant for life without impeachment of waste with power to cut the trees and to make Leases for 21. years or three lives makes a Lease for thrée lives excepting the trées that this is a voyd exception because he hath no interest but a bare Authority 27. H. 6. Fitz. Wast 8. Statham tit Wast 1. makes this a Quaere which Statham was once the owner of the Land in question A man makes a Lease for life without impeachment of waste a Stranger cuts trées the Lessée brings trespas he shall recover no Damages for the value of the trees because the propriety belongs to him in the reversion he may dispose of them Quaere Dyer 284. Daunsley and Southwels Case Co. lib. 11. Lewys Bowles case that such a Lessee may take trées which are blown down and 3. H. 6. 45. Mich 41. and 42. Eliz. C. B. Leechford against Sanders in an Action of waste upon a Lease made to Sanders for life with a proviso that the Plaintiff might dispose of the trées during the estate and resolved that the Action lies not for notwithstanding this power the trées are demised to the Lessée also so here when the trées are excepted he hath no interest but only an authority 2. The exception is voyd for another reason because when such a Lessée makes such a Lease this is not his Lease but it hath its operation out of the originall fine and he who makes this hath but the nomination and therefore cannot adde a condition or exception to it And if the second Lease shall have its being out of the estate of the Lessee for life then there shall be an use upon an use as appears Co. lib. 1. 134. and that the Law will not allow 15. H. 7. and Co. Lib. 1. Albanyes Case If a man devise that his Executors shall fell his Land they cannot adde a condition or exception to this sale as an attornment upon a condition subsequent is voyd Co. lib. 2. Tookers case 3. This case may be resembled to the case of Copy-holds which is in Co. lib. 8. 63. b. in Swaynes Case If a Lord takes a Wife and afterwards grants Lands by Copy according to the custome and dyes his Wife shall not be endowed of this Land for albeit her title of Dower was before the Grant yet the title of Copi-hold which is the custome is elder then the title of Dower so in our case the title of the second Lessee is derived out of the estate of the Conuzées and therefore shall not be clogg'd with the Exceptions of Lessee for life without impeachment of waste 4. This priviledge to cut the trées is annexed to the estates and goes along with the estate and therefore shall not begin before the Stranger be in possession 3. E. 3. 44. 45. Idles case 28. H. 8. Dyer 10. And it may be resembled to the cases of 16. E. 4. and 27. H. 8. Tenant in taile sold the trées if he dyes before the Party takes them he shall never have them because he hath stayd out his time But it may be objected that upon such a Lease he may reserve a rent as it is in Whitlocks case Co. lib. 8. to which I will offer this difference Lessée for life with power to make Leases for thrée lives reserving rent makes a Lease for thrée lives reserving rent this reservation is good because it is but a Declaration of the Lease and of the rent
to the West eighteen foot ten inches which Messuage so newly built stood the day of the Writ purchased and yet stands c. And if upon the whole matter the said Demise of the said John Bradley and Anne be and in Law ought to be adjudged the Demise of the said Messuage newly built upon the said part of land where the Messuage of the said John Bradley and Anne stood then the Iury find that the said John Bradley demised to the said Thomas and Iohn Allen the said house newly erected as aforesaid as the Plaintiff hath alledged and if not then they find that he did not demise And upon this Verdict Iudgment was given there and an especiall Writ of Habere facias seisinam awarded of the said Messuage with the Appurtenances viz. 18 foot of it from the North to the South and 12 foot and an half of it from the East to the West upon which a Writ of Error being brought in the Kings Bench it was alledged for Eror by Coke Sollicitor that upon this Verdict Iudgment ought to have been given for the Tenant and not for the Demandant for what was remaining of that which was of the house is not a house but only a peece of a house and therfore it ought to have been demanded by the name of a peece of Land containing so much one way and so much another for a house wasted and utterly drawn away cannot be demanded by a Messuage but by the name of a Curtilage or so much Land of such contents for a Praecipe lies of a peece of Land containing so many feet in length and so many in breadth And also Land built during the possession of him which hath it by Tort cannot be demanded by the name of Land by him which hath right but by the name of a house nor e contra for every demand of Land ought to be made according to the nature of which it is at the time of the Action brought be it a Messuage Land Meadow Pasture Wood c. And if the Walls of a house be made upon the Land without any covering yet it shall be demanded but by the name of Land for he said that it cannot be a house without its perfection to be habitable which he said is not here because it stands upon the Land of the said Anne which hath not the perfection of a house habitable without the remnant But this notwithstanding the first Iudgment was affirmed for it was said by Popham and other Iustices that that which is erected upon the Land of the said Anne shal be said a house as to the right of the Heir of the said Anne for a house may be such to be demanded by the name of a house albeit it hath not all the perfection of a house as if it hath no doors so if it hath part of the side wals not made drawn away or fallen yet the remainder continues to be demanded by the name of an house so if part of the covering be decayed yet it shall be demanded by the name of an house and the rather here because with that which is upon the other Land it is a perfect house And I may have a perfect house although the side Walls belong to another as in London where a man joynes his house to the side walls of his Neighbours he hath a perfect house and yet the side walls belong to another and this commonly happens in London but it is otherwise if it were never covered or if the covering be utterly fallen or drawn away for without a covering a house cannot be said to be a house for the covering to keep a man from the Storms and Tempests over head is the principall thing belonging to a house And further suppose that a man hath a Kitchin or a Hall upon Land to which another hath right he which hath right ought to demand it by the name of a house suppose then that there is adjoyning to this upon other land a Parlor a Buttery a Shop a Closet and the like with Chambers over them this doth not change the form of the Writ that he is to have which hath right although before it was built by the name of a house and yet as to the rent both the one and the other was but a house but as to the demandant it is otherwise for they are severall so here And the Demise which before was made of the house drawn away shall be now upon the matter a Demise as to this part of it a new Messuage for if a man make a Lease for years of a house and the Tetmor pull it down and erect there a new house or if land be demised and the Lessee build a house upon it in an Action of Wast for Wast done in this new house the Writ shall suppose that he did wast in the Houses c. which were demised to him and yet in the one case it is not the Messuage which was demised to him and in the other the house was not demised but the Land only But he hath no term in the house but by the Demise before made And it seems to Popham that Allen the Defendant cannot pull down this part of the house erect upon his own land to the prejudice of the house which Hayes demands if this which is erected upon the land of Allen be of such a necessity that without it the house of Hayes cannot stand for a house but if he dies after that Hayes hath built it then Hayes shall have an Action upon the case against him for the damages which he sustained by it As if a man agree with me that I shall set the outer wall of my house upon his land and I do it accordingly and afterwards the party which grants me this licence breaketh it down if the Grant were by Deed I shall have an Action of Covenant for it and if but by Paroll yet I shall have an Action upon the case against him And here this being done by him which was then Owner and Possessor of the one and the other land it shall be taken as a licence in Law to the benefit of him which hath right which he cannot pull down after it is once made but he shall be subject to Hayes his Action for it or otherwise Hayes shall be at great mischief and prejudice by the Act of him which did the wrong which the Law will not suffer but rather shall turn this to the prejudice of him which did the wrong then to the prejudice of the other which shall have wrong by the doing of it for Volenti non fit injuria As if I am to inclose between my Neighbour and my self and my Neighbour pull down this inclosure or part of it wherby my Cattell escape into the land adjoyning and depasture there I shall be excused of this Trespasse in the same manner as if he had licenced me to have occupied it and whatsoever hapneth to this Land adjoyning
disguised For the wholness and closness of your Garments they do signifie integrity to be used in your advices and secrecy in your councels And in that the Garments being single and unlined it betokeneth that you should be sincere and plain in your advises and not double carrying your opinion to your self one way and you advise it your Client clean another way The two Tongues do signifie that as you should have one Tongue for the Rich for your Fee as a reward for your long studies and labours so should you also have another Tongue as ready without reward to defend the Poor and Oppressed And therin to shew your seves thankfull to God for all that which he hath bestowed upon you And for the Rings you give as Gold is amongst all Mettals the purest so should you be of all others of your Profession the perfectest both in knowledge and in the other Virtues before remembred And in that it is a Ring and round without end it betokeneth that you have made a perpetuall Vow to this your Profession and Calling and are as it were wedded unto it And therfore I heartily wish you may alwaies walk therin according as appertaineth to your Calling And this done the ancienst Serjeant beginneth to recite his pleading and so each after other in order And that done the ancientest kneeleth down before the chief Justice of England and so the rest before the Justices and Barons as they are in ancienty and had severally by the said chief Justice their Coifs put upon their heads and then their red Hoods upon their shoulders and then the Serjeants return to their Chambers and put on their party colourd Garments and so walk on to Westminster the one after the other as they be in ancienty bare-headed with all their Coifs on and so are in their turn presented the one after the other by two of the ancientest Serjeants And after their pleadings recited they give their Rings in the Court by some friends and so are therupon set in their place at the Bar according to their ancienty And all this done they return to their Chambers and there put on their black Gowns and red Hoods and come into the Hall each standing at his Table according to his ancienty bare-headed with his Coif on and after setteth himself upon the Bench having a whole mess of meat with two courses of many Dishes served unto him And in the afternoon they put on their Purple Gowns and then go in order to Pauls where it hath been accustomed that they heard Service and had a Sermon Edwards versus Halinder 4. IN an Action upon the Case by Rice Edwards against Edward Halinder The Plaintiff declared by his Bill that one Edward Banister was seised in his Demesne as of Fee of a Messuage in such a Parish and Ward in London and being so seised did let to him the Cellar of the same house the 23. day of April 32 Eliz. for a week from the same day and so from week to week so long as the parties should please at such a Rent by the week wherby he was possessed And further that the said Edward Banister being seised of the said house as is aforesaid afterwards to wit 29. July in the 32. year aforesaid gave to the said Defendant Officium Anglice the Warehouse of the said Messuage being right over the said Cellar for a week from thenceforth and so from week to week so long as the parties should please paying such a Rent wherby the Defendant was therof possessed accordingly And the Plaintiff being possessed of the said Cellar and the Defendant of the Warehouse as aforesaid and the Plaintiff then having in the said Cellar three Butts of Sack to the value of 40 l. c. The Defendant the 30 day of July in the 32. year aforesaid put such a quantity of weight and burthen of Merchandize into the said Warehouse and therby did so overburthen the floor of the said Warehouse so that by the force and weight of the said burthen the said floor the said 30. day of July was broken and by force therof did fall and that therby the Merchandize that were in the said Warehouse did fall out of the said Warehouse into the said Cellar upon the said Vessels of Wine and by force therof brake the said Vessels of Wine wherby the said Wine did flye out of the said Vessels and became of no value to the Plaintiffs damage of a hundred pound c. To which the Defendant saith That within a small time before the Trespasse committed the floor of the said Warehouse sustained as great a burthen of Merchandize as this was And that the Warehouse was demised to him as the Plaintiff hath alledged to lay in it 30. Tun weight wherby he was possessed and so possessed the said 30. day of July did put into the said Warehouse but 14. Tun weight of Merchandize and that the damages which the Plaintiff had by the breaking of the floor was because the floor at the time of the laying of the merchandise upon it also before the lease made to him therof was so rotten and a great part of the Wall upon which the said floor lyes so much decayed that for default of Reparations and supporting therof by those to whom the reparations did belong before the Lease therof made it suddainly brake which matter he is ready to aver Wherupon the Plaintiff demurred and Iudgment was given for the Plaintiff in the Exchequer upon which a Writ of Error was brought in the Exchequer Chamber and the Error assigned was that the Iudgment ought to have been given for the Defendant because that now it appeareth that there was not any default in the Defendant for he was not to repair that which was so ruinous at the time of his Lease and therfore if it did bear so much lately before it cannot fall by the default of the Defendant in the weight put upon it but by the ruinousnes of the thing demised And yet by the advice of the Iustices the Iudgment was this Term affirmed for the Plaintiff hath alledged expresly that the floor brake by the weight of the Merchandize put upon it which ought to be confessed and avoided or traversed wheras here he answers but argumentatively to wit that it did bear more before therfore that he did not break it by this weight or that it was so ruinous that it brake Ergo not by the weight wheras here it is expresly alledged that it brake by the weight put upon it and if lesser weight had been put it would not have broken And he who takes such a ruinous house ought to mind well what weight he put into it at his perill so that it be not so much that another shall take any damage by it But if it had fallen of it self without any weight put upon it or that it had fallen by the default only of the posts in the Cellar which support the floor with which the
resolved by all the Iustices as he said that it shall passe and he said that himself was of this opinion also And to say that by grant of Land at Common Law the use had been raised out of the possessions of the Land which the Grantor then had and by it passe to the Bargainee and that it shall not be raised and passed to another by grant of Land in consideration of marriage which is a more valuable consideration then money is absurd and against all reason And for the solemnity Vses in such cases in respect of marriage were the cause that they alwaies were left as they were at Common Law and not restrained as the case of bargain and sale is which by Common intendment may be made more easily and secretly then that which is done in consideration of marriage which is alwaies a thing publike and notorious but it is not reasonable that every slight or accidentall speech shall make an alteration of any Vse As if a man ask of any one what he will give or leave to any of his Sons or Daughters for their advancement in marriage or otherwise for their advancement this shall be but as a bare speech or communication which shall not alter or change any Vse But where there is upon the Speech a conclusion of a Marriage between the friends of the parties themselves and that in consideration therof they shall have such Lands and for such an Estate there the Vse shall be raised by it and shall passe accordingly to the parties according to the conclusion which Fennor granted But by Popham If it may be taken upon the words spoken that the purpose was to have the Estate passe by way of making of an Estate as by way of Feoffment c. then notwithstanding the consideration expressed the use shall not change nor no Estate by it but at will untill the Livery made therupon And therfore if a man make a Deed of Feoffment with expresse consideration of marriage although the Deed hath words in it of Dedi Concessi with a Letter of Attorney to make Livery therupon there untill Livery made nothing passe but at will because that by the Warrant of Attorney it appeareth the full intent of the parties was that it shall passe by way of Feoffment and not otherwise if it be of Land in possession And if it be of Land in Lease not untill Attornment of Tenants which was granted by all the Iustices But if a man in consideration of money makes a Deed of Gift Grant Bargain and Sale of his Lands to another and his Heirs by Deed indented with a Letter of Attorny to make Livery if Livery be therupon made before Inrolement there it hath been adjudged to passe by the Livery and not by the Inrolement But by Popham where Land is to passe in possession by Estate executed two things are requisite The one the grant of the said Land the other the Livery to be made therupon for by the bare Grant without Livery it doth not passe as by way of making of an Estate And this is the cause that such solemnity hath been used in Liveries to wit if it were of a Messuage to have the people out of it and then to give Seisin to the party by the Ring of the door of the House and of Land by a Turff and a Twig and the like which may be notorious Yet I agree it shall be a good Livery to say to the party Here is the Land enter into it and take it to you and your Heirs for ever or for life or in tail as the case is And albeit Livery by the View may be made in such manner yet by the sealing of the Deed of Grant upon the Land or by grant of it upon the Land without Livery nothing passe but at will But if therupon one party saith to the other after the Grant or upon it Here is the Land enter upon it and take it according to the Grant this is a good Livery But he ought to say this or somthing which amounts to so much or otherwise it shall not passe by the bare Grant of the Land although it be made upon the Land Clench said That when Thomas said to Eustace Stand forth here I do give to thee and thine Heirs these Lands this amounts to a Grant and a Livery also and by the words of the Reservation of the Estate to himself and his wife for their lives in this the Law shall make an use in the said Thomas and his wife for their lives so that by such means it shal enure as if he had reserved the use therof to him and his wife and so it shall enure to them as it may by the Law according to his intent without doing prejudice to the Estate passed to the said Eustace And afterwards Term Mich. 36 37 Eliz. the Case was again disputed amongst the Iustices and then Popham said That the Case of Baâ—gains and Sales of Lands in Cities as London c. as appeareth in Dyer 6. Eliz. are as they were at Common Law To which all the Iustices agreed and therfore shall passe by Bargain by parole without writing And by Bayntons Case in 6 7 Eliz. it is admitted of every side that an Vse was raised out of a Possession at Common Law by Bargain and Sale by parole and otherwise to what purpose was the Statute of Inrolements and by the same case it is also admitted now to passe by parole upon a full agreement by words in consideration of Marriage or the continuance of Name or Blood For it is agreed there that the consideration of nature is the most forceable consideration which can be and agreed also that a bare Covenant by writing without consideration will not change an Vse therfore the force therof is in the consideration of which the Law hath great respect And therfore the Son and Heir apparant ex assensu patris onely may at the door of the Church endow his wife of his Fathers Land which he hath in Fee and this is good by Littleton although the Son hath nothing in it wherby an Estate passe to the wife which is more then an Vse Nature is of so strong consideration in the Law And therupon after advice Iudgment was given for the Plaintiff the Roll of this appeareth in Banco Regis 1 Hill 35. Eliz. Rot. 355. And upon this Iudgment a Writ of Error was brought and the Iudgment aforesaid reversed in the point of Iudgment in the Exchequer by the Statute of 27 Eliz. Kettle versus Mason and Esterby 6. IN a second deliverance between Joh. Kettle Plaintiff and George Mason Vide this case Coke lib. 1. 146 c. and Francis Esterby Avowants the case appeared to be this Thomas May was seised of the Mannor of Sawters and Hawlin in the County of Kent in his Demesne as of Fee and being so therof seised enfeoffed Thomas Scot and John Fremling and their Heirs
dies and afterwards John his Son and Heir dies without Issue the reversion by this descends to the said Christopher who dies leaving Issue And upon this Case made in the Court of Wards the two chief Iustices Popham and Anderson agreed first That upon the devise and death of the Father the said Christopher and William were Joynt-tenants of the Land and not Tenants in Common notwithstanding the word severally because it is coupled with the said word joyntly But yet they agreed also that by the descent from John to Christopher the Fee-simple was executed in the said Christopher for the Moyety in the same Mannor as if he had purchased the Reversion of the whole or of this Moyety and that it is not like to the Case where Land is given and to the Heirs of one of them in which case for the benefit of the Survivorship it is not executed to divide the Ioynture because the Estates are made at one and the same time together and therfore not like to the case where the Inheritance cometh to the particular Estate by severall and divided means And a Decree was made accordingly Trin. 36. Eliz. In the Kings Bench. 1. IT was agreed by all the Iustices and Barons of the Exchequer upon an Assembly made at Serjeants-Inn after search made for the ancient Presidents and upon good deliberation taken If a man have two houses and inhabit somtimes in one and somtimes in the other if that House in which he doth not then inhabity be broken in the night to the intent to steal the Goods then being in his house that this is Burglary although no person bee then in the House and that now by the new Statute made such an Offender shall not have his Clergy for before the Statutes were made which take away Clergy in case of Burglary where any person was put in fear no mention was made in the Inditements of Burglary that any person was in the House But it was generall that the house of such a one Noctanter fregit and such Goods then there Felonice cepit And the breaking of a Church in the night to steal the Goods there is Burglary although no person be in it because this is the place to keep the Goods of the Parish And in the same manner the house of every one is the proper place to preserve his Goods although no person be there And that the Law was alwaies so it is to be collected by the course of the Statutes therof made for first the Statute of 23 H. 8. doth not take Clergy from any in case of Burglary unlesse some of the same Family be in the house and put in fear And in 5 Eliz. 6. The Offendor shall be ousted of his Clergy if any of the Family be in the house be they sleeping or waking And these Statutes were the cause that it was used of late time to put in the Inditements of Burglary that some person of the Family was then in the house to put them from their Clergy But this doth not prove that it shall not be Burglary but where some person was in the house and by 18 Eliz. Clergy is taken away in all cases of Burglary generally without making mention of any person to be there which enforce the resolution aforesaid and according to it they all agreed hereafter to put it in Execution Finch versus Riseley 2. IN this Term the case betweeen Finch and Riseley was in question before all the Iustices and Barons for this assembled at Serjeants-Inn in Fleetstreet where after Arguments heard by the Councell of the parties upon this point only If the Queen make a Lease for years rendring Rent with a Proviso that the Rent be not paid at the day limited that the Lease shall cease without making mention that it was to be paid at the receit whether the Lease shall cease upon the default of payment before Office found therof And by Periam and some of the Iustices the Lease stall not cease untill an Office be found of the default because it is a matter in Fait which determines it to wit the not-payment And by Gawdy it shall be taken as if it had been for the not-payment that the Proviso had been that the Lease shall be forfeited In which case it is not detennined untill Re-entry made for the forfeiture which in the Queens case ought alwaies to be by Office which countervails the re-entry of a common person As where the Queen makes a Lease rendring Rent and for default of payment a Re-entry albeit the Rent be not paid yet untill Office found therof the Rent continues Popham Anderson and the greater part of the Iustices and Barons resolved that it was cleer in this case that Ipso facto upon the default of payment the Lease was determined according to the very purport of the contract beyond which it cannot have any beeing and therfore there needs no Office in the case But where it is that it shall be forfeited or that he shall re-enter there untill advantage taken of the forfeiture in the one case or untill re-entry made in the other case the Term alwaies continues by the contract And where in the case of a common person there is need of a re-entry to undo the Estate there in the case of the King there needs an Office to determine the Estate for an Office in the Kings case countervails an entry for the King in person cannot make the entry And upon this resolution of the greater part of the Iustices in Mich. Term 31 32 Eliz. the same case was in question in the Office of Pleas in the Exchequer between the said Moil Finch Plaintiff and Thomas Throgmorton and others Defendants and there adjudged by Manwood late chief Baron and all the other Barons unanimously after long argument at the Bar and Bench that the Lease was void upon default of payment of the Rent according to the Proviso of the Lease and this immediatly without Office for the reasens before remembred upon which Iudgment was given a Writ of Error was brought before the Lord Keeper of the great Seal and the Lord Treasurer of England where it long depended and after many arguments the Iudgment given in the Exchequer by the advice of Popham and Anderson was affirmed and that upon this reason for the Proviso shall be taken to be a limitation to determine the Estate and not a Condition to undo the Estate which cannot be defeated in case of a Condition but by entry in case of a common person and but by Office which countervails an entry in the case of the Queen And this Iudgment was so affirmed in Mich. Term 36 37 Eliz. Smiths Case 3 IT was found by Diem clausit extremum after the death of Richard Smith that in consideration of a marriage to be had between Margaret Smith and William Littleton a younger Son to Sir John Littleton Knight and of 1300. marks paid by the said Sir John to the said
Sheriff of another County then where the occasion brought or by Warrant of a Iustice of Peace of another County for matter of the Peace and the like which are not like to the case of Partridge who was beâ—ten in the County of Glocester by Sir Henry Pole for which he brought his Action in London And Sir Hen. Pole would have justified by Assault of the Plaintiff in the County of Glocester with a trâ—verse that he was not guilty in London But it was then ruled in this Court that he could not do it to oust the Plaintiff to sue in London but in such a case he might have alledged that the Assault was done in London because it was also a thing transitory of which they shall take notice there and so help himself if the matter had been true But in the case at the Bar if the speciall matter alledged in the forraign County be false as here the Plaintiff may maintain his Action and traverse the special matter alledged by the Defendant And so a traverse in such a case may be upon a Traverse when falsity is used to oust the Plaintiff of that benefit which the Law gives him Hillary Term 38 Eliz. Wood versus Matthews 1. IN a writ of Error brought by Owen Wood against Griffeth Matthews upon a judgment given in the common Pleas the case was briefly thus The Issue in the Common Pleas was whether one were taken by a Cap. ad satisfaciendum or not and upon the triall therof at the Nisi prius the Jury found for the Plaintiff in this Action to wit that the party was not taken by the said Capias and upon the back of the Pannell entred dicunt per Quer. but on the back of the Postea the Clark of the Assises certified the Pannell thus to wit That the Jury say that no Capias was awarded which was otherwise then was put in Issue or found by the Jury and the Roll of the Record was according to the Postea and upon this Judgment given for the said Matthew then Plaintiff upon which amongst other Errors this variance between the Issue and Verdict was assigned for Error and after deliberation had upon this point and this matter alledged by the Defendant in the Writ of Error and certified out of the Common Pleas the Court awarded as to this point that the Record sent up out of the Common Pleas by the Writ of Error shall be amended according to that which was endorsed on the back of the Pannell for the endorsement upon the Pannell is the Warrant for the certifying of the Postea aâ—d so this Warrant over to him that makes the Entry in the Roll And therfore wheras it was alledged that the Postea was amended in the Common Pleas aftâ—r the Record removed it was holden to be well done there for although the Record were removed by the Writ of Error yet the Nisi prius the Postea and the like remain still there as it is of the Warrant of Attorney and the like And if the Postea had not been amended there but sent up with that which was endorsed upon the Pannel all shal be amended here according to that which was indorsed upon the Pannel and according to this there was a Presidâ—nt shewn Tr. 35. H. 8. between Whitfeild and Wright where the Issue was whether a quantity of Grain were delivered between two Feasts and endorsed upon the Pannel Dicunt pro quaer and yet the Postea certified and the Rolls also made that the delivery was made ad festa and upon this matter alledged in Banco Regis and the Error in this point assigned and certified out of the Common Pleas the Record removed by the Writ of Error was by award of the Court amended and the word Ad razed out and the word Inter written in lieu of it according as it appeareth it ought to have been by the Note upon the back of the Pannel And the like amendment was made lately in the Checquer Chamber upon Error brought there upon a Iudgment given in Banco Regis where the Iudorsment upon the back of the Writ was pro Quer. and the Postea and Roll was that the Plaintiff was guilty and there amended the last Term. Slanings Case 2. NIcholas Slaning of Bickley was seised in his Demesn as of Fee of the Mannor of Bickley and of a Mill in Walkhampton in the County of Devon called a blowing Mill and of another Mill there called a knocking Mill and of an acre of Land there also and of divers other Mannors and Lands in the said County of Devon the said Mills and acres of Land in Walkhampton then being in the possession of one Peterfeild and Atwill of an Estate for divers years then to come and being so seised he with Margaret his Wife levied a Fine of the said Mannor of Bickley and of other Lands omitting the said Lands in Walkhampton to certain Câ—nuzees who rendred the same back again to the said Margaret Slaning for her life with the remainder over to the said Nicholas and his Heirs After which the said Nicholas by Indenture daied 30. Octob. 21 Eliz. gave and enfeoffed all the said Mannors and Premisses to John Fits and others and the Heirs of the said Fits to the Vses Provisoes and Limitations mentioned in the said Indenture which was to the use of himself and the Heirs Males of his body by any other Wife the remainder to Nicholas Slaning of Newton Ferries and the Heirs Males of his body with divers remainders over with this Proviso to wit Provided and it is the intent of these presents and of the parties therunto that the said John Slaning and the Heirs Males of his body or the said Nicholas Slaning of Newton-ferries and the Heirs Males of his body in whomsoever of them the Inheritance in tail of all the Premisses shall happen to be by force of these presents shall pay to Agnes the Daughter of the said Nicholas Slaning of Bickly 200 l. or so much therof as shall be unpaid at the time of the death of her said Father according to the intent of his last Will with a Letter of Attorney to it by which he ordains John Hart and Robert Fort joyntly and severally his Attorney to enter into the said Mannor of Bickley Walkhampton c. and all other the Lands Tenements and Hereditaments in the said Indenture mentioned and possession for him to take and after such possossion taken for him and in his name to deliver full possession and seisin of the Premisses to the said John Fits c. according to the form and effect of the said Indenture wherupon possession and seisin was given of all but that which was in possession of the said Peterfield and Atwill And the said Pererfield and Atwill nor either of them never attorned to the said Grant After which Nicholas Slaning of Bickly made his last Will by which devised to the said Agnes his Daughter 200 l. to be paid in form following
it shall not be taken by intendment that the Messuages had such a Curtilage to it if it be not specially named Fennors Case 5. IN Trespasse brought by Fennor in the common Bench against for breaking his Close in c. the Defendant pleads a Bar at large to make the Plaintiff assign the place in certain where he supposeth the Trespasse to be done the Plaintiff therupon alledgeth that the place where he complaineth is such c. and sheweth in certain another then that in which the Defendant justifies the Defendant avers that the one and the other are all one and known by the one name and the other and therupon the Plaintiff demurs and adjudged there for the Plaintiff because that in such a case upon such a speciall assignment it shall be taken meerly another then that in which the Defendant justifies in as much as the Plaintiff in such a case cannot maintain it upon his evidence given if the Defendant had pleaded not guilty to this new Assignment that the Trespasse was done in the place in which the Defendant justifies although it be known by the one and the other name and that the Plaintiff hath good Title to it because that by his speciall Assignment saying that it is another then that in which the Defendant justifies he shall never after say that it is the same in this Plea for it is meer contrary to his speciall Assignment And upon this a Writ of Error was brought in the Kings Bench and the Iudgment was there affirmed this Term for the same reason Quod nota Scot versus Sir Anthony Mainy 6. IN Debt upon an Obligation of 200 l. brought by John Scot Gent. against Sir Anthony Mainy Knight the Condition wherof being to perform the Covenant comprised in an Indenture of Demise made by the said Sir Anthony to the said Plaintiff of his Capitall Messuage in Holden with the Lands to it belonging c. amongst which Covenants one was that wheras by the same Indenture he had demised it to him for 21. years that the said Sir Anthony covenanted with the said John Scot that the said Sir Anthony from time to time during the life of the said Sir Anthony upon the surrender of this Demise or any other Demise hereafter to be made by the said Sir Anthony of the said Messuages and Lands and to be made by the said John Scot his Executors or Administrators and upon a new Lease to be made ready ingrossed to be sealed and offered by the said John Scot his Executors or Administrators to the said Sir Anthony for the like tearm and number of years in the aforesaid Indenture comprised for the same Rent c. to seal and deliver to the said John Scot his Executors and Administrators And the said Sir Anthony as to this Covenant pleaded did not surrender nor offer to surrender to him the said Demise nor offer to him any new Demise of the Premisses ready engrossed for to seal it for the like Term c. as it is in this Covenant And for the other Covenants he pleads performance of all To which the Plaintiff replies that the said Sir Anthony after the Obligation and before the Action brought had rendred the said Messuages and Lands by Fine to one Walter Savage and William Sheldon their Executors and Assigns for eighty years from the Feast of Easter next before the Fine which was Pasch 36 Eliz. wherby he said that the said Sir Anthony had disabled himself to renew his Lease according to the Covenant upon which it was demurred in the Commen Bench and the Iudgment given for the Plaintiff as appeareth Trin. 37. Eliz. Rot. 2573. And upon this Iudgment a Writ of Error was brought in the Kings Bench and agreed this Term. And it was moved that the Iudgment given was erroneous in as much as the first act was to be done by John Scot before the new Lease was to be made to wit the surrender of the former Lease and the drawing of the new one ought to have been done by the Plaintiff which not being done on his part the said Sir Anthony is not bound to make the new Lease And also it was moved that as the case is here the said John Scot might surrender to the Defendant notwithstanding the intervening of this Lease between the Lease of the Plaintiff and the Inheritance of the Defendant as if a man make a Lease for years in possession and afterwards make another Lease to a stranger to begin after the end of the former Lease this shall not hinder but that the first Lease may be surrendred to him who was the Lessor notwithstanding the said Term intervening To which it was answered by the Court that the Plaintiff here need not to make any offer of the surrender of his Term to the said Sir Anthony in as much as the said Sir Anthony hath disabled himself to take the Surrender or to take the Lease according to the purport of the Condition and by this disabling of himself the Obligation is forfeited Come per 44 E. 3. 8. and by Littleton also If a man make a Feoffment upon condition to re-enfeoff him this is not to be done untill request therof be made by the Feoffor yet if in the mean time the Feoffee suffer a fained recovery of the Land grant a Rent charge acknowledgeth a Statute taketh a Wife or the like the Feoffor may re-enter without request made to re-enfeoff him and the reason is because that by any of these the Feoffee hath disabled himself to perform the Condition in the same plight as he might have done at the time of the Feoffment in the same manner here for by this render by the Fine the Reversion passe in right so that the Termor in possession attorning to it they shall have the Rent reserved upon the first Lease and therfore the Plaintiff cannot now surrender to the said Sir Anthony but to the Grantees of the Reversion and therfore there shall be no prejudice to the Plaintiff because the Defendant was the cause of disabling the Plaintiff to make the Surrender to him And suppose it be but a Term to begin at a day to come yet by this the Obligation is forfeited because the Obligor hath therby disabled himself to perform the Condition in such a plight as he might have done it when the Obligation was made wherby the Obligation is presently forfeited albeit the Plaintiff never surrender nor offer to do it And therfore the Iudgment there was affirmed Mounson versus West 7. IN an Assise brought in the County of Lincoln before Gawdy and Owen by Thomas Mounson Esquire Demandant against Robert West Tenant for Lands in Sturton Juxta Stu. The Defendant West pleaded Nul Tenant del Frank-tenant named in the Writ and if that be not found then Nul tort nul Disseisin And the Assise found that the said Defendant was Tenant of the Tenements now in Plaint and put in view to the Recognitors of
the Assise in manner and form as the Writ supposeth And further that the said West therof disseised the said Mounson namely of the Tenements in the will of one Mounson And did not find either the words of the Will nor the Will it self what it was c. And the Iustices of Assise upon this Verdict upon advice with the other Iustices gave Iudgment that the Plaintiff shall recover c. upon which a Writ of Error was brought in the Kings Bench where it was moved that the Iudgment was erroneous First because the Iury have not found that the Defendant was Tenant of the Free-hold agreeing with the form of the Plea for the Writ of Assise doth not suppose him to be Tenant of the Free-hold and therfore the Verdict in this point not fully found The second Error is that the Seisin of the Plaintiff is not required of according to the charge given to them as well as the Disseisen for the charge was that they should enquire of the Seisen of the Plaintiff c. But to both these the Court answered that the Verdict is well enough notwithstanding these exceptions for every Assise brought supposeth that there is a Disseisor and a Tenant named in it then this Assise being brought against a sole person supposeth him to be a Disseisor and Tenant also and therfore the Verdict saying that he was Tenant as the Writ supposeth is now as strong in this case as if they had found that he was Tenant of the Free-hold for the Tenant of the Free-hold ought to be named in the Writ But if the Assise had been brought against two or more such a Verdict had not been good for it sufficeth if any of them be Tenant of the Freehold and then the Writ doth not suppose one to be Tenant more then another but supposeth one Tenant to be named in the Writ And therfore in such a case the finding ought to be speciall to wit that such a one is Tenant of the Free-hold or that there is a Tenant of the Free-hold named in the Writ But where one only is named in the Writ to be Disseisor and Tenant it is sufficient to find as here for by this it is certainly found that he is Tenant of the Free-hold And for the other point although it be a good direction for the Iudges to the Iury wherby they may the better perceive that there ought to be a Seisin in him or otherwise there cannot be a Disseisen by the other yet in Deed he cannot be a Disseised who was not then seised But the Assise having found the Disseisen the Seisen in Law is found included in the Disseisen But for the point moved that the Verdict was not perfect in as much as they found the Disseisen with a Nisi it seemed to Gawdy that the Iudgment upon this Verdict was erronious as where a Verdict in another Action is imperfect a Venire facias de novo shall be awarded to try the Issue again And if Iudgment be given upon such a Verdict it is error so here the Verdict in this point being incertain there ought to have been a Certificate of Assise to have this better opened But the three other Iustices held as the case is that the Verdict in this point is certain enough for that which cometh before the Nisi as it is placed is meerly nugator as in the case of the Lord Stafford against Sir Rowland Heyward the Iury found Non assumpsit but if such Witnesses say true as they believe they did Assumpsit c. it was but a meer nugation But it seemed to Popham that if the Verdict had been if the words of the Will do not passe the Land then that he disseised and if they passe then that he did not disseise there if the words of the Will be not found the Verdict had been all imperfect but here the Verdict is full and perfect before the Nisi c. and therfore the Iudgment was affirmed Holme versus Gee 8. A Formedon in Descender was brought by Ralph Holme Demandant against Henry Gee and Elizabeth his Wife Tenants and the Case wâ—s thus Ralph Langley and others gave two Messuages and a Garden with the Appurtenances in Manchester to Ralph Holme the great Grandfather of the Demandant and to the Heirs of his body begotten after which the same great Grand-father by Deed indented dated 20. September 14 H. 7. enfeoffed Iohn Gee of one of the said Messuages and of the said Garden rendring yearly to the said great Grand-father and his Heirs 13 s. 4 d. a year at the Feasts of S. Michael and the Annunciation by equal portions after which the said Iohn Gee died seised of the said Messuages and Garden and it descended to Henry Gee his Son and Heir after which the said great Grand-father by his Indenture bearing date 6. Martii 12 H. 8. enfeoffed the said Henry Gee of the other Messuages rendring also to him and his Heirs yearly 13 s. 4 d. at the said Feast aforesaid by equal portions after which Holme the great Grand-father died Stephen Holme being his Son and next Heir who was seised of the Rents aforesaid and afterwards also died seised Robert Holme being his Son and Heir after which the said Henry Gee died seised of the said two Messuages and Garden and they descended to Eliz. his Daughter and Heir who took to Husband one Richard Shalcroft and had Issue the said Elizabeth wife of the said Henry Gee Tenant in the Formedon after which the said Richard Shalcroft and his wife died after which and before the marriage had between the said Henry Gee and Elizabeth now Tenants in the Formedon the said Elizabeth enfeoffed one Richard Greensearch of the said Messuages and Garden after which to wit at the Feast of the Annunciation of our Lady 3 Eliz. the said Henry Gee husband to the said Elizabeth paid 13 s. 4 d. for the said Rent reserved as is aforesaid to the said Robert Holme after which to wit on Munday next after the Assumption of our Lady at Lancaster before the Justices there a Fine was levied with Proclamations according to the Statute between Thomas Aynsworth and Thomas Holden then being seised of the Tenements aforesaid Complainants and the said Henry Gee and Eliz. his wife Deforceants of the Tenements aforesaid wherby the Conusance was made to the said Thomas and Thomas who rendred them to the said Henry Gee and Eliz. his wife and to the Heirs of their bodies the Remainder to the right Heirs of the said Henry the five years past after the Proclamations in the life of the said Robert Holme after which the said Robert died and Ralph his Son and Heir brought the Formedon upon the Gift first mentioned and the Tenants plead the said Fine with Proclamations in Bar and the Demandant replyed shewing the severall discontinuances made by the great Grand-father as aforesaid and the acceptance of the said Rent by the said Robert by the hands of
the now Tenant Henry Gee as is before alledged and that the said Henry was then seised of the said Tenements in Fee in right of the said Eliz. then his wife and although that he alledge the said severall Feoffments to be made by Deeds indented with the reservation as aforesaid yet it is not mentioned in the Replication that he shews forth the Deeds wherby the reservation was made To which the Tenant by way of Rejoynder shew the Feoffment made by the said Eliz. Shalcroft to the said William Greenditch wherby he was seised at the time of the payment of the said Rent at the said Feast of the Annunciation of our Lady and traverse Absque hoc that the said Henry Gee was therof then seised in right of his wife in manner and form wherupon it was demurred in Law and adjudged by the Justices of Assise at Lancaster that the Plaintiff should be barred wherupon the Tenants have now brought their Writ of Error And by Popham and Clench the Iudgment is to be affirmed First because that the acceptance of the said Rent had been by the hands of one who was to pay it to wit the Tenant himself yet this shall not bar the right of Intail in the said Robert Holme as a release of his right should do but this acceptance shall only foreclose him of his Action to demand the Land during his life and therfore the right which the said Robert had being barred by the Fine the Son is without remedy for the Son shall never have remedy upon the Fine levied in time of his Father the five years after the Proclamations being passed But in case where the right begin first to be a right in the Son and not where there was right in the Father And further it seemed to them that the payment of him who had not any thing in the Land at the time of the payment as here shall make no conclusion to him who accept it because this payment is as none in Law And by them the Rejoynder of the Traverse Absque hoc that Henry Gee was seised at the time of the payment in Fee in right of his said Wife in manner and form as in the Replication is ailedged is good enough for he traverseth that which the Demandant hath specially alledged to destroy the Bar and contrary to that which is alledged it shall not be intended that they had other particular Estate at the time of the payment which may make the payment to be good And albeit the Traverse had been Absque hoc that the said Henry was seised in right of his said Wife Modo forma prout the Demandant hath alledged without saying in Fee as it is pleaded here yet the Iury shall be put to find it if he were seised in Fee In jure Uxoris and not of any other particular Estate as in 12 E. 4. 4. A Feoffment is pleaded by Deed the other makes Title and traverseth Absque hoc that he enfeoffed Modo forma not shewing forth the Deed yet he who pleads the Feofment by Littleton shall give no other Feoffment in evidence then that which is pleaded by the Deed. And by 18 E. 4. 3. In Trespasse the Defendant justifies the entry and sowing of Corn because that M. was seised in Fee and sowed the Land and the Defendant as his Servant entred and cut it the Plaintiff saith that it was his Free-hold at the time of the sowing Absque hoc that it was the Free-hold of the said M. and per Curiam it is not good for such matter was not alledged by the Defendant but he ought to traverse the Seisin in Fee which was alledged and good and so it is good here But it seems to Clench that the Replication is not good because he doth not say by the Writing upon which the Reservation was made which concludes Robert by his acceptance Hic in Curia prolat as by Hill 15. E. 4. 15. If a man will bar a woman of her Action for her Land after the death of her Husband by Feoffment made by the Baron and Feme during the Coverture by Deed rendring Rent by reason of acceptance of the said Rent after the death of the husband he ought to shew the Deed and say Hic in Curia prolat or otherwise the Plea is not good because that in such a case albeit it were a Gift in Tail the wife shall not be concluded by her acceptance unlesse that the Gift were by Deed. Popham True it is in case the party will demur upon it but suppose in this case the Tenants had expresly acknowledged the said Feoffments and then concluded afterwards as they have done here shall they afterwards take advantage of not shewing the Deed I think that not no more here where they admit it and plead the other matter to avoid the conclusion for if a double Plea be pleaâ—ed if the other party demur upon it he shall take the advantage of the doublenesse But if he passe it over and they proceed in pleading upon another point the doublenesse is gone And Fennor said that the right which is intended to be saved within the first branch of the Statute of 4 H. 7. is that upon which the party may pursue his Action or enter for his remedy the which the said Robert could not do in when the Fine was levied because he had accepted the Rent but the first right which was in such a case was that in the Demandant Stroud versus Willis 9. IN Debt upon an Obligation of 40 l. by William Stroud Plaintiff against John Willis Defendant the Condition wherof was If the said Willis his Heirs Executors or Assigns should pay or cause to be paid yearly to the said William Stroud the Rent or summ of 37 l. 10 s. of lawfull money at the Feasts of S. Michael and the Annuntiation by equall portions according to the Tenor true intent and meaning of certain Articles of agreement indented made between the said parties of the same date that the Obligation was that then the Obligation shall be void and the Defendant shews the Articles which were thus to wit that the said William Stroud had demised to the Defendants all such Tenements in Yeatminster of or in which the said William then had an Estate for life by Copy Anglice Copie des except according to the custom of the Mannor of Yeatminster from the Annunciation of our Lady then last past for forty years if the said William should so long live rendring yearly to the said William 37 l. 10 s. of lawfull money at the Feasts of S. Michael and our Lady by equal portions under the East-gate of the Castle of Taunton in the County of Somerset c. with divers things comprised in the said Articles To which points the Defendant pleaded that at the time of the making of the said Articles the Plaintiff had not any Estate in the Tenements in Yeatminster aforesaid for tearm of his life by Copy
Anglice Copie des except according to any custom of the said Mannor of Yeatminster and that the Obligation was made for the payment of the same Rent reserved by the said Articles and demands Iudgment c. wherupon the Plaintiff demurred in the Common Bench and there Iudgment was given that the Plaintiff should recover his Debt and Damages as appeareth there Mich. 36 37. Eliz. Rot. 312. upon which a Writ of Error was brought in the Kings Bench and there moved that the Iudgment was erroneous in as much as upon the matter he ought to have been barred of his Action for if an Action of Debt had been brought upon the Demise by the Articles the Defendant might have pleaded as here and the Plaintiff should be cleerly barred As if a man be bound to make an Estate or to assure to another all the Lands which he hath by descent from his Father or all the Lands which he hath by purchase from such a one or the like And of this opinion Gawdy was saying in as much as the Obligation is that he shall be paid according to the true intent of the Articles the intent of them is not that the Rent shall be paid if any Land be not passed by them for it should be paid as by 22 H. 6. if a man be bound to pay a Rent which is reserved upon a Lease made to him he ought to pay it at his peril But if it be to pay it accordingly to the Lease there he said it is not payable but upon the Bond and is to be paid as a Rent And if the Land be evicted in the interim before the day of payment the Obligor shall help himself by pleading of it upon such an Obligation to discharge the Bond so here But it seemed to Popham that the Iudgment was well given and yet he agreed the Cases that were put but he said there was a diversity where the Obligation goes in the generality and where it tends to a speciality for as by 2 E. 4. If a man be bound to be Non-suit in all Actions which he hath against such a one or to assure to another all his Lands in Dale he may say that he hath not any Suit or that he hath no Land in Dale But if it be that he shall be Non-suit in a Formedon depending or to enfeoff him of White acre there it is no plea because he refers to a special point And by 18 E. 4. If a man be bound to another to pay him 10 l. for which a stranger is bound to the said Obligee it is no plea for him to say that the stranger is not bound to pay him 10 l. for when the Condition refers to such a speciall matter this cannot be denied of him who is bound And therfore in this case the Defendant cannot say that there were not any such Articles contrary to that which is specially comprised in the Condition as by 28 H. 6. A man was bound to perform the Covenants comprised in a certain Indenture of Covenants he shall not say that there was not any such Indenture because it resorts to a speciall So I think if a man be bound to pay the Rent of 10 l. a year reserved upon an Indenture of Demise made of Lands in D. payable at such a Feast he shall not say against it that there was no such Demise made nor no such Rent reserved upon the Demise but is estopped of the one and the other And in Hill 3. Eliz. A man was bound thâ—t he shall pay to A. or the Obligee all such summs of mony as T. S. deceased stands bound to pay by his Obligation to the said A. and of one R. P. to the behoof of the Children of such a one according to the Will of the said party and in Debt upon this Obligation he saith that the said T. S. was never bound by any such Writing Obligatory to the said A. and R. P c. to pay c. Pro usu filiorum c. as in the Condition and per Curiam adjudged no good Bar because he is estopped to deny the speciall matter which is matter of Writing and not a bare matter in Deed. Kirton versus Hoxton and others 10. IN an Appeal of Mayhem brought by Kirton Plaintiff against Appeal of Mayhem Rob. Hoxton Esq and divers other Defen the one of the Defen plead Nul tiel in rerum natura as another of the Appellees and if it be not found then as to the Felony and Mayhem not guilty Agreed by the whole Court that such a manner of pleading is not to be suffered in an Appeal of Mayhem because no life is put in danger by the suit And yet it was objected that there are presidents that such form of pleading hath been admitted in Appeals of Mayhem But the Court had respect to it that the reason in all the Books of Law in which it hath been admitted in an Appeal of death and the like is that it stands in Favorem vitae and therfore it is admitted to be good or otherwise by the Books it shall not be admitted to be so for the doublenesse of it But no life is to be put in â—eâ—pardy in this case and therfore such a plea shall not be admitted but the Not guilty shall stand by which the other plea is waived Hillary Term 38 Eliz. Henry Earl of Pembrook versus Sir Henry Backley IN an Action upon the Case between Henry Earl of Pembrook Plaintiff See this Case Coke lib 5. 76. a. and Sir Henry Backley Knight Defendant the case upon the pleading appeareth to be thus The said Earl was seised in his Demesn as of Fee of the Mannor of Stocktrift in the County of Somerset to which Mannor the Office of the custody of the Forest of Selwood in the same County belongeth and also that there was before time of memory an Office within the same Forest called the Lievtenant-ship or Custody of the said Forest belonging to the said Mannor of which also the said Earl was seised in his Demesn as of Fee And that there was one part of the said Forest called the West part of the said Forest in which there were two Walks or Bayliwicks the one called Staverdale walk and the other Brewick walk And that the said Lievtenant had the charge of the Deer and the disposition and appointment of the Keepers of the said Forest And that the said Earl being so seised by his Writing bearing date 5. Novemb. 12. Eliz. reciting that his Father had granted the Office of Lievtenant-ship and Deputy-ship of the said West part of the said Forest Cum vadiis c. quando acciderit and the Keeper-ship of Brewick-walk aforesaid to the said Sir Maurice Barkley Knight and the Heirs Males of his body and instituted and ordained him and the Heirs Males of his body Lievtenant and Deputy therof to the said Earl and his Heirs confirmed the Grant aforesaid And further by the
est rerum omnium vendendarum mensura Bracton 117. 18 E. 3. Hollinghead 109. 50 E. 3. Rot. Pat. Memb. 7. And for transportation 17 E. 3. 19 E. 3. Rot. Pat. 24. De monetis non transportandis 19 R. 2. Rot. Pat. The Dutches of obtained licence to melt Coin to make Plate And divers of the Defendants were within the Kings generall pardon but in as much as they pleaded it in their Rejoynder and not in their answer as it ought to be the Court over-ruled their Plea so that they could have no advantage therby But in as much as they were strangers and not coâ—usant of our Laws and relyed only upon their Counsell the Court had consideration therof in their censure Hillary 17 Jac. In the Kings Bench. Serle versus Mander SErle brought an action upon the case against Mahder for these words to Words I arrest you upon Felony wit I arrest you upon Felony and after Verdict for the Plaintiff it was moved in Arrest of Iudgment by Richardson that the words were not actionable for he doth not say that the Plaintiff had committed Felony But it was rescived by the Court and so adjudged that the action lieth The same Term in the same Court A Iudgment was obtained against one of the Servants of the Lord Hay Iudgment against a Defendant when beyond Sea with an Ambassador reversed Viscount Doncaster when he was Ambassador in Bohemia and attending upon him there And this matter being disclosed to the Court by the Counsell of the Defendant they would not suffer the Plaintiff to have execution upon the said Iudgment but ordered the Plaintiff to declare De novo to which the Defendant should presently answer Memorand It was said to be against the course of the Court to have an Imparlance Imparlance before the Declaration entred The same Term in the same Court The King against Briggs A Quo warranto was brought by the King against Briggs for exercising A Subject cannot have a Forest of certain Priviledges who justified by virtue of a Forest granted to him And by Bridgeman this is the first Quo warranto which he knew that had been brought against any Subject for a Forest for a Subject cannot have a Forest but he may have a Chase which peradventure may passe under the name of a Forest And there are divers incidents to a Forest which a Subject cannot use nor have there ought to be a Iustice of a Forest which a Subject cannot have and such a Iustice ought to be a man of great Dignity 2. There ought to be Verderors who are Iudges also and by 34 E. 1. Ordinatio Forrestae ought to be by Wait but a Subject cannot award a Writ Also there are three Courts incident to a Forest 1. A Court of Attachments which may be without Verderors 2. The Swanimate Court 3. The Iustice seat and this appeareth in 1. E. 3. cap. 8. 21 E. 4. cap. 8 But by the Statute of 27 H. 8. cap. 7. There are some other incidents to a Forest 2. Admits that a Subject may have a Forest yet it fails in this case because he hath shown the exemplification and not the Letters Patents and see Co. lib. 5. Pains case that neither an exemplification or constat are pleadable at Common Law and Co. lib. 10. Dr. Leyfeilds case The same Term in the same Court Sir William Webb versus Paternoster THe case was this Sir William Plummer licensed Sir William Webb to lay his Hay upon the Land of the said Sir William Plummer untill he could conveniently sell it and then Sir William Plummer did make a Lease of the Land to Paternoster who put in his Cattell and they eat up the Hay And it was two years between the license and the putting in of the Cattell and yet Sir William Webb brought an action of Trespasse against Paternester for this Mountague chief Iustice 1. This is an Interest which chargeth the Land into whosoever hands it comes and Webb shall have a reasonable and convenient time to sell his Hay 2. The Lessee ought to give notice to Notice Sir William Webb of the Lease before he ought to put in his Cattell to which Haughton Iustice agreed in both points But Doderidge Iustice said that Sir William Webb had no certain time by this license yet he conceived that he ought to have notice But it was resolved that the Plaintiff had Convenient time a convenient time to wit two years for the removing of his Hay and therfore Iudgment was given against him But admit that there had not been a convenient time yet the Court was of opinion that the Plaintiff ought to have inclosed the Land at his perill for the preservation of his Hay And it was agreed that a license is countermandable although it be concerning A license whether for profit or pleasure countermandable profit or pleasure unlesse there be a certain time in the license as if I license one to dig Clay in my Land this is evocable and may be countermanded although it be in point of profit which is a stronger case then a license of pleasure see 13 H. 7. The Dutches of Suffolks case for a license The same Term in the same Court SIbill Westerman brought an action upon the case against Eversall and had Error Sibell for Isabell Iudgment and in the entry of the Iudgment she was named Isabell 1 Ass and 3. Ass A Fine was levied by Sibill when her name was Isabell and it was not good for it doth not appear to be the same party so in the case at the Bar And for this the Iudgment was reversed The same Term in the same Court JEne as Executor of brought an action upon the case against Chester An Infant chargable for necessary Apparrell because the Defendant made request to the Testator of the Plaintiff to buy for him certain silk Stuffs for Apparrel and to make him a Cloak the Defendant pleaded that he was within age and George Crook said that the Defendant should not be charged because it is not shewn that the Apparrell was for the Infant himself but he was over-ruled in this for it is sufficiently expressed to be for him And it was agreed by the Court that it ought to be shewn that it was Pro necessario vestitu and it ought to be suitable to his calling and as Doderidge said that there was a case adjudged in this Court between Stone Withipole that where Withipole had taken of Stone certain Stuffs for Apparrel being within age and afterwards he promised payment if he would forbeare him some time and the Assumpsit adjudged not good because he was not liable for the Debt at first for the reason aforesaid Trin. 17. Jac. In the Common Bench. Gilbert de Hoptons Case AN action upon the case was brought for those words viz. Thou art a Words Thou art a Theef and hast stoln my Furze Theef and hast stoln
Iudgement for the Plaintiff The same Term in the same Court NOta by Doderidge and Jones Iustices that upon the principall Iudgement reversed the outlawry is also Ipso facto reversed Also if an Outlawry reversed upon revers all of the principall judgement outlawry be awarded if it be not per Judicium Coronator unlesse it be in London the outlawry is voyd It was demanded by the Iustices when the outlawry and Iudgement are affirmed how the entry is And it was answered by Broome Secondary that the entry is generall Quod judicium affirmetur in omnibus and this sufficeth But if the Iudgement be affirmed and the outlawry reversed then the entry is Quod judicium affirmetur Utlagario cassetur The same Term in the same Court Calfe and others versus Nevil and others AScire facias was brought by Joseph Calfe and Joshua Executors of A. against Nevil Davyes and Bingley and the Case was this they became bayle to one Hall who was condemned in an Action to the Testator of the Plaintiff that the said Hall should either render his body to Prison or that he should satisfie the Iudgement the Defendents Plead that after the Scire facias returned and presently after the Iudgement the said Hall brought a Writ of Error in the Exchequor Chamber hanging which the said Hall reddidit se prisonae in exoneratione manucaptorum suor and there dyed and the Plaintiffe demurred upon this Plea because it was double and Calthorp argued for the Plaintiff that it was double or rather treble 1. That Reddidit se prisonae 2. That he was imprisoned 3. that he dyed in Prison And to prove the Piea double in this Case he cited 13. H. 8. 15. 16. 4. E. 4. 4. 21. H. 7. 10. The second matter that he moved against the former was that pendant the Writ of Error reddidit se prisonae and doth not conclude upon the Record hoc peratus est verificare as he ought to have done and for this he cited 7. H. 8. Kelleway 118. If J. S. bee bound in a Recognizance that A. shall appeare such a day before the Kings Iustices at Westminster if his appearance be not recorded hee shall not have any averment by Bricknell and Conisby and in 30. Eliz. It was one Wicks Case which is ours in effect in case of baile Dyer 27. 6. E. 4. 1. 2. For the matter the Plea is nought 1. Because by the Writ of Error brought the Scire facias against the baile is not suspended because the Bayle is a distinct record and upon this he cited the Case of the Ambassador of Spain against Captaine Gifford which was Trin. 14. Jac. That by the Writ of Error brought the baile was not suspended and he said that it was so resolved also in Goldsmith and Goodwins Case 2. For the render of the principall to prison it is not good because it doth not appear upon Record and for this he cited one Austin and Monkes Case which was in 14. Jac. In Scire facias against the baile it is pleaded that the principall had rendered himselfe to prison and upon the matter it appeared that the render was upon Candlemas day which is not Dies juridicis and so the Court this day had no power to commit him to prison for which the Plea was adjudged voyd 3. For the death it is no Plea the baile by it is not discharged because he hath not rendered himselfe in due time and for this he cited Justice Williams and Vaughans Case which was Mich. 3. Jac. where in Scire facias against the baile they pleaded that the principall was dead and thereupon the Plaintiff demurred and in this Case two points were resolved 1. There was no Capias mentioned to have issued against the principall and yet resolved that a Scire facias would lye against the Baile 2. That the Plea in Bar is not good because it may be that the principal dyed after the Capias awarded or after the return thereof because it appeareth that there was once a default in the principal and so the baile forfeited and no Plea afterwards would discharge it and upon this he put this Case A Prisoner escape out of Prison the Goaler makes fresh suit and before he hath taken him the Prisoner dies this is the act of God and yet because it was once an escape an Action of Escape lyes against the Goaler Jermy for the Defendent and he remembred a Case which was Hil 20. Jac. Cadnor and Hildersons Case that by the Writ of Error the bayle is suspended Nota that it was agréed by the Court in this case that by the Writ of Error brought in the bayle was not discharged because it is incertain whether the Iudgement shall be reversed or not Also it was agreed that if the principal dies before a Capias awarded against him that the bayle is discharged It was also agreed by the Court that the Plea was not double for the first matters are but an inducement to the last and yet by Doderidge if severall matters are pleaded in Bar and there be not any dependency on them the Where a Plea is double and where not Plea is double although none of them be materiall but one Jones Justice cited one Hobs and Tadcasters Case which was 43. Eliz. in B. R. where after a Writ of Error brought a Scire facias issued against the Bayle and upon Nihil returned the Plaintiff in the Scire facias brought in an Audita Quaerela and there the matter came in question whether upon the Iudgement the Principall ought presently render himself to prison or that he should stay until a Capias awarded against him and there it was resolved by Popham and all his Companions that the Principal is not bound to render himselfe to Prison untill a Capias be taken out so that if he dies after the Iudgement and before the Capias awarded against him the Bayle is discharged And in the principal Case here it was resolved that a Scire facias does not lye against the Bayle until a Capias be awarded against the Principal because no Capias in this case was awarded against the Principal which could not be by reason of the Writ of Error before his death And also the Plaintiff in his Declaration ought to have averred and shewn that the Capias was awarded against the Principal for these reasons Iudgement was given quod quaerens nil capiet per Billa The same Term in the same Court. Reynor versus Hallet IN an Action upon the Case for these words viz. Reynor is a base Gentleman Words Reynor is a base Gentleman he hath foâ—â— childâ—en by his seâ—vant Agnes and he hath killed or caused them to be killed he hath four children by his Servant Agnes and he hath killed them all or caused them to be killed and after a verdict for the Plaintiff it was moved in arrest of Iudgement by Jermy that the words were not actionable For 1.
but if there were no such clause of reserving rent then I conceive it were otherwise But admitting all this were against me yet the justification of the Defendant is not good for by the exception out of the exception the Lessor cannot take the benefit of the bodies of the trées because he will thereby deprive the Lessée of the croppings and loppings c. as in 28. H 8. Dyer Maleverell and Spynkes case Mylward of Lincolnes Inne for the Defendant And first he conceived that the Lessée for life without impeachment of waste might dispose of the trées in the same manner as Tenant in fée might doe with this difference that the disposall thereof ought to be in his life time and so it is resolved in Lewys Bowles case Co. lib. 11. 46. 2. The second matter in the case is whether the Lessée for life without impeachment of waste c. hath only an authority or an interest in the trées and I conceive that he hath an interest for his power is to make Leases of it or of any part for 21. years or 3. lives and that the Conuzors shall be seized to the use of such Lessées now when he makes a Lease excepting the trées the trées are not demised so that he remains still tenant for life without impeachment of waste for the trees 3. Excepting all Timber-trées but for fencing cropping and lopping it hath béene objected that this exception hath no forme It is a generall rule that if a man makes a Grant and in the close thereof except all that which was granted before the exception is voyd and this appears by 34. Ass Pl. 11. A Will was granted salvo stagno molendini so here the last exception takes away all that which was granted before 38. H. 6. 38. in a Quare impedit 28. H. 8. Dyer 19. by Mountague the cropping and lopping of trées belong to the Lessee like to the Duke of Norfolks case in 12. H. 7. 25. and 13. H. 7. 13. and 18. E. 4. 14. and albeit every grant shall be taken most strongly against the Grantor yet it shall have a reasonable intendment for the benefit of the Grantor and this appeares by 7. E. 4. 22. 17. E. 3. 7. 9. E. 4. 2. 21. E. 3. 43. so here the Exception shall have a reasonable intendment that he shall onely have such loppings and croppings as shall be bestowed upon the Park and no other Doderidge Iustice I conceive that by the words without impeachment of waste he hath interest in the trees as long as the estate continues 2. That when he makes a lease by the second power given to him this is derived out of the Fine and shall be good against him in the remainder 3. Because he hath power to dispose of the trées I conceive that when he makes a Lease excepting the trees this is a good exception 24. Eliz. C. B. A man made a Lease for years now he hath the wast of the trees if he assign over his estate excepting the trées the exception is voyd but in our case the Lessée hath not parted with his whole estate 4. So the sole question is whether he in remainder may cut the trées during the estate of thrée lives made by Henry Secheverell and he conceived that he might and so concluded for the Defendant Jones Iustice agréed that the Lessee for life without impeachment of wast hath interest in the trées but this interest is concomitant with his estate and determinable with it 2. I conceive that the exception is good Such things which a man hath by the Law he cannot resign to himselfe upon his assignment as the cropping and lopping of trées as if tenant in taile after possibility c. who is dispunishable of wast by fréedome of the Law assign over his estate reserving the trees he cannot cut the trees but here the Lessee hath a larger liberty then the Law gives to him and he by vertue of this may give away the trees but I conceive that if he had assigned over all his estate then he could not have excepted the trees but here he hath not granted over all his estate for he hath a remainder and may have an estate in possession afterwards and upon this Lease for three lives hee may reserve a rent to himselfe 3. I conceive that this Lease is derived partly out of his owne estate and hee hath not the meere nomination and partly out of the first Fine and therefore such Lessees shall be subject to all charges made by the Tenant for life who made the Lease as Statutes Recognizances c. to wit during the life of the first tenant for life 4. When he dyes who made the said Lease for three lifes whether he in remainder may cut the Trees during the said Lease and he conceived yet not without some doubt that he had no power during the lives of the sayd Lessees Whitlock Iustice agreed with the rest so that it was agreed by all 1. That it is a good exception 2. That the second lease is drawn out of the Fine And the question now is whether he in remainder without impeachment of waste with power to cut the trees hath power to cut them during the lives of the said three Lessees and the Councell was commanded to speake to this point only upon another day The same Term in the same Court. Foster and Taylers Case ERror was brought upon a Iudgement given in C. B. and after the Record was certified into this Court the Common-pleas amended a rasure of the Record which was there and now Bramston Sergeant movâ—â— for the Def. that the Record might be amended here Jones Iustice I doubt whether an inferior Court can amend after the Record is certified here for then it is but a piece of Parchment with them Bramston It is resolved that it may in Blackamores case Co. lib. 8. Doderidge the doubt is whether it may be amended after error assigned in the same Court for this takes away the benefit of the Law from the Plaintiff in the Writ of error Jones at another day said that if in nullo est erratum had been pleaded it could not have beene amended And as it is it cannot be amended because now it is assigned for error and the Plaintiffe was once intitled to his Writ of error which shall not be taken away from him afterwards and in 11. Jac. there was such a case moved by Yelverton the Kings Solicitor and agreed that it could not be amended And Pasch 17. Jac. one Abbingtons case upon a rasure as our case is it was doubted whether it could be amended and by Broom Secondary in the said case it was amended Doderidge in this case it may be amended albeit it be after error brought because it is only the error of the Clerk and it is amendable although the error be assigned in the same point and so was the opinion of the whole Court and therefore it was amended The same
case for there by the word Felony it was manifest what Felony he intended by the circumstances of the speech to wit that he ment such felony for which he might lose his life But the words here being generall of Felony it may be intended as well of a Mayhem aâ— of any other Felony for in an appeal of Mayhem he is arraigned as Felo Domici Regis 40. Ass and the other case of 44. Eliz. I do arrest him of flat Felony is not consonant with the reason of this case for there by the arrest his liberty is taken away but in this case there is no restraint and it is very hard to make these cases agree together for words are as variable as the faces of men c. Jones Justice agreed and he took it for a generall rule that where words carry a double sense and there is nothing to guide the sense more one way then another there the words are not actionable for finis est legis dirimire lites And therefore if one faith of another that he hath the Pox because the sense is ambiguous it shâ—ll be interpreted in mitiori sensu and therefore the words are not actionable to if one sayes of another that he hath stolen his Apples or his Corn because they may be Apples from the tree or Corn in the field the taking whereof is no felony but it was adjudged in the Common-Pleas when I was there that these words viz. Thou art a Thief and hast stolen my Corn are actionable by reason of the addition of the word Thiefe So that the speaking of words of a double sense are not actionable unlesse ex antecedentibus or consequentibus it can be collected that the words were spoken in pejori sensu Then the words in this case I charge you with Felony peradventure intend such a Felony for which he shall recover damages only which is Mayhem and therefore no action will lie These words Thou art forsworn are not actionable because forswearing may be in ordinary communication or in a Court of Justice and it shall be taken in mitiori sensu but if he sayes Thou art forsworn in a Court of Record it is actionable and if in this case he had charged him with Felony and sayd further that he had stolen c. they would have been actionable but here he only charges him with Felony which is an ambiguous word and also it is no direct affirmation and therefore not actionable and Iudgement was given Quod quaerens nil capiat per Billam The same Term in the same Court Goods Case GOod and his Wife brought a Writ of Error upon a Judgement given in the Court of the Castle of Windsor in an Action of Debt there which was entered Trin. Mich. 2 Car. Rot. 119. 120. and two Errors were assigned 1. Because the Judgement there is given in these words ideo consideratum ad judicatum assessum est whereas it ought to be onely by the word consideratum and the Judgement being the act of the Court the Law is precise in it and therefore it hath been resolved that a Judgement given by the word concessum is not good but it ought to be by the word consideratum 2. The costs ex incremento are not said to be given ad petitionem quaerentis aâ— it ought to be for beneficium nemini obt ruditur and therefore it hath been resolved in this Court that an alien born shall not have medietatem linguae if he does not request it and as to this it was answered of the other side that costs ought alwayes to be assâ—ssed ex petitione quaerentis and albeit here the request of the Plaintiff was not precisely put to increase of the costs yet at the beginning of the Judgement it is said Ideo ad petitionem quaerentis consâ—â—eratum c. And that costs shall be given ex in cremento so that this request goes to all the Sentence and by the unanimous opinion of all the Court the Judgement was reversed for both the Errourrs for 1. Ideo considerat adjudicat c. is not good the Judgement being the Act of the Court and the Law hath appointed in what words it shall be given and if other words should be suffered great incertainty and confusion would ensue and needâ—esse verbosity is the mother of difficulty 2. The increase of costs ought to be given ad petitionem quaerentis and the words ad petitionem quaerentis being misplaced will not supply this defect and Dammages ex incremento is alwayes given ad petitionem quaerent for as Bracton saith Omne judicium est trinus actus trium personarum judicis actoris rei and if in this case the usuall form should not be observed all would be in a confusion and in as much as the words are misplaced it is as if they had not been put in at all and therefore void like to a case put in Walsinghams case in Plowden where an averrement misplaced is as if there were none In this case the Judgement was reversed and Trin. 3 Car. in B. B. intr Hill 2 Car. Rot 849. a judgement was reversed because it was Ideo concessum consideratum est FINIS THE TABLE OF THE PRINCIPALL MATERS Contained in this BOOK A. ACceptance 113 Of a second Lease determines the first 9 Action 179 Where the Master shall be charged in an Action for the act of the Servant e contr 143 Action upon the case for words 35 36. 139. 140. 128 129. 148. 150. 177. 180. 184. 187. 207. 210. Action upon the case 116. 144. for pulling down a house 15 Against an Officer for his neglect 27 For laying too much waight wherby goods in another mans possession are lost 46 For stopping of a Water-course 166 Accessaries 107 Adjournment 33 Administration  not avoided by Averment 37. granted by a Lay-man 160 Administrators  Of the Wise shall have a Lease setled on the Wife not the Husband 106 Admittance 125 What the Heir may do before admittance 39 upon a surrender by a Disseisor 71 Addition  Of matter of Ornament shall not avoid a grant 57 Advowson 23 Agreement 134 construed according to the intention of the parties 182 Where to be joynt where severall 204 Alien  Where he may purchase where not 36 Amendment 21. 128. 203 204. Of the Postea and made according to the Pannel and the Record 102 Of a Record after the Record removed and Errour assigned 196 Annuity 87. 86 Pro consilio 135 Appropriation 144 145 Appeal  Of Mayhme 115 Plea in it 115 Assesment  by the major part of Parishoners shall bind the rest 197 Assumpsit 148. 182 183. 193. 206 against an Executor of an Assumpsit in the life of the Testator 30 31 32. generall indebitat Assumpsit 31 without consideration is nudum pactum 178 What shal be a good consideration to ground Assumpsit 183 184. Assise 111. Assets where a Lease for years to a Copyholder in the hand of
Harrison Erringtons case 202p Hebborns case 206p I JEne and Chesters case 151p Jenningâ— Maystâ—â—â— case 102b Jorden Ayliffs case 168b Jenkin and Vivians case 201p K. Kettle and Masons Case 50p King and Berys Case 57p Kellies Case 104p Kirton and Hoxtons case 115p The King and Brigs case 150p Kebles case 18â—b Knights case 187b King Merricks case 2o L Lee and Browns case 128p Lewes and Jeofferies case 153p Lemasons and Dicksons case 189p Laurking and Wylds case 126p Leechford and Saunders case 194b Liverel and Rivets case 206b Lathams case 210b M MIchels case 8b Morgans case 52p Morgan and Tadcastles case 55p Montague and Jeofferies case 108p Mounson and Wests case 110p May and Kets case 129p Middletons case 131p May and Samuels case 134p Mingies case 135p Sir Arthur Mannarings case 145p Morley and Sir Richard Molineuxs case 1â—5p Millen and Fandries case 161p March and Fandries case 161p March and Newmans case 163p Mayor of Maidstons case 180p Mills and Parsons case 199b O OAks and the Lord Sturtonrs case 65b Overton and Sydalls case 120p Old and Estgreens case 160b Owen Wards case 187b P PIgots case 94p Porramor and Veralds case 101p Pollard and Lutterells case 108p Sir John Pools case 128p Powels case 139p Pack and Metholds case 160p Probe and Maynes case 192b Petit and Robinsons case 203p Ployden and Symes case 205p R ROper and Ropers case 106b Robinson Walkers case 127p Rawlinson and Greens case 127p Rones case 133p Richardson and Cabells case 142p Sir George Reynalds case 165p Ryman and Bickleys case 129p Reynor and Hallets case 187p Rochester and Rickhouse case 203p Rosse and Harvies case 206b Risley and Hains case 209p S STocks case 37p Smiths case 53p Southwell and Wards case 91p Sawyer and Hardies case 99p Stainings case 102p Scot and Mainys case 109p Strowd and Wyllis case 114p Southern and Howes case 143p Silvesters case 148p Stone and Withipoles case 152p Sary and Pigots case 166p Sharp and Rasts case 181p Snaggs case 187b Sherry and Richardsons case 15p Smithers case 169b Scheverel Dales case 193p Sanders Meritors case 200p Staple Kings case 206b Savile Wortleys case 207p Sparman Sherwoods case 222p T THompson Traffords case 8p Taunton Raries case 106p Tailours case 133p Thurman Coopers case 188p Talbot and Sir Walters Lacens case 146p Turner and Dennis case 169 V VAughans case 134p W WOod and Downings case 10p Webly and Skinners case 85p Wood and Matthews case 102p Westcot and Cottons case 130p Wrenhams case 135p Wootton and Byes case 136p Wards case 144p Webb and Paternosters case 151p Westermans case 151p Wales case 160p Welden and Bâ—sies case  Wicks case 186b Williams and Vaughans case 186b Willers case 197b Whelhorseys case 208p Woodroof and Vaughans case 210q CASES Reported by S R. JOHN POPHAM Knight Lord chief Justice of ENGLAND In the time of Queen ELIZABETH and written with his own hand in French and now faithfully done into English to which are added some remarkable CASES Reported by other Learned and Judicious Pens since his death Fenner versus Fisher Mich. 34. and 35. Eliz. Reginae in the Kings Bench IN Trespasse brought by Iustice Fenner against Andrew Fisher for a Trespasse done in the Parsonage house of Cravfords in the County of Kent 30. Maij 34. of the Queen the Defendant pleaded that one 〈…〉 was seised of the same Messuage in his Demesne as of see and being so seised the 〈…〉 day of in the same year did demise it to the Defendant for two years from such a Feast then last past by virtue of which he entred and was possessed untill the Plaintiff claiming by colour of a Deed made of the sayd Wrighâ— where nothing passed by the Deed upon which the Defendant entred c. The Plaintiff replies by protestation that the sayd Wrighâ— was not seised as the Defendant hath alledged And for Plea saith that the sayd Wright did not let it to the Defendant as the Defendant hath alledged upon which being at Issue and found for the Plaintif Ackinson moved that Iudgment ought not to be given for the plaintiff because that he hath not made any Title by his Replication for by 9 E. 4. 49. In Trespasse the Defendant pleads in Bar and gives colour to the Plaintiff it is taken for a Rule that the Plaintiff ought to make Title Cook answered that he needs not to make Title in this case but that it sufficeth to traverse the Bar without making a Title and sayd that in 22 E. 4. Fitzh Trespass It is adjudged that in Trespasse the Plaintiff may traverse the Bar without making Title in his Replication and here in as much as it is acknowledged by the Defendant that Wright did demise it to the Plaintiff and that this is a Lease ta will at the least not defeated by his own shewing but by the Lease made to Defendant this being traversed and found against the Defendant The Plaintiff by the acknowledgment of the Defendant himself hath a good Title against him to enter into the Land and by it the Defendant by his Re-entry is become Trespassâ—â— to the Plaintiff and he sayd that in 2 E. 4. fol. In Trespasse where the Defendant pleads that he let the Land to the Plaintiff for another mans life and that he for whose life it was was dead upon which he entred and it is adjudged that it sufficeth for the Plaintiff to maintain that Cestuy vie was yet living without making any other Title And yet these reasons Cleoch and Gawdy held the Replication good to which Popham sayd that we as Iustices ought not to adjudge for the Plaintif where a good formall bar is pleaded as here it is But wherby the Record it self which is before us we cannot see that the Plaintiff hath good cause of Action And therefore I agree that in Trespasse in some cases the Plaintiff may traverse the Bar or part of it without making any other Title then that which is acknowledged to the Plaintiff by the Bar but this alwaies ought to be where a Title is acknowledged to the Plaintiff by the Bar and by another means destroy by the same Bar for there it sufficeth the Plaintiff to traverse that part of the Bar which goeth to the destruction of the Title of the Plaintiff comprised in the Bar without making any other Title but if hee will traverse any other part of the Bar he cannot do it without making an especiall Title to himself in his Replication where by the Bar the first possession appeareth to be in the Defendant because that although the Traverse there be found for the Plaintiff yet notwithstanding by the Record in such a Case the first Possessions will yet appear to be in the Defendant which sufficeth to maintain his Regresse upon the Plaintiff and therefore the Court hath no matter before them in such a Case to adjudge for the Plaintiff unlesse in cases
such Estates that the Law allows them to be good against the Lords themselves they performing their Customs and Services and therfore are more commonly guided by the guides and rules of the common Law and therfore as appeareth in Dyer Tr. 12. Eliz. Possessio fratris of such an Estate facit sororem esse haeredem And to say that Estates of Copyhold Land are not warranted but by custom and every Custom lies in Vsage and without Vsage a Custom cannot be is true but in the Vsage of the greater the lesser is alwaies implyed As by Vsage three lives have been alwaies granted by Copy of Court Roll but never within memory two or one alone yet the grant of one or two lives only is warranted by this Custom for the use of the greater number warrants the lesser number of lives but not è converso And so Fee-simples upon a Limitation or Estates in tail are warranted by the equity of the Statute because they are lesser Estates then are warranted by the Custom and these lesser are implyed as before in the greater and none will doubt but that in this case the Lord may make a Demise for life the Remainder over in Fee and it is well warranted by the Custom and therfore it seems to them that it is a good Estate tail to John Gravenor and a good Remainder over to Henry his Brother and if so it follows that the Plaintiff hath a good Title to the Land and that Iudgment ought to be given for him And for the dying seised of Elizabeth they did not regard it for she cannot dye seised of it as a Copyholder for she had no right to be Copyholder of it And by the dying seised of a Copyholder at common Law it shall be no prejudice to him who hath right for he may enter But here in as much as she cometh in by admittance of the Lord at the Court her Occupation cannot be fortious to him and therfore no descent at common Law by her dying seised for it was but as an Occupation at Will But if it shall not be an Estate tail in John Gravenor as they conceive strongly it is yet for the other causes alledged by Gawdy and Clench Iudgment ought to be given for the Plaintiff and the Remainder which is not good shall not prejudice the Fee-simple conditionall granted to John which is no more then if the Surrender had been to the use of Iohn Gravenor and his Heirs the Remainder over because that we as Iudges see that this cannot be good by Law and therfore not to be compared to the case where the Custom warrants but one life and the Lord grants two joyntly or successively there both the one and the other is void And this is true because the custom is the cause that it was void and not the Law and also it is a larger Estate then the Custom warrants which is not here and upon this Iudgment was given that the Plaintiff shall recover And by Popham it hath been used and that upon good advice in some Maâ—nors to bar such Estates tails by a common Recovery prosecuted in the Lords Court upon a Plaint in nature of a Writ of Entry in the Post 2. JUlius Cesar Iudge of the Admiralty Court brought an Action upon the Case for a Slander against Philip Curtine a Merchant-stranger for saying that the said Cesar had given a corrupt Sentence And upon not guilty pleaded and 200. marks Damages given it was alledged in arrest of Iudgment where it was tryed by Nisi prius at the Guildhall by a partiall Inquest because that upon the default of strangers one being challenged and tryed out a Tales was awarded De circumstantibus by the Iustice of Nisi prius wheras as was alledged a Tale could not have been granted in this case for the Statute of 35 H. 8 cap. 6. which give the Tales is to be intended but of commontryals of English for the Statute speaks at the beginning but of such Iuries which by the Law eught to have 40 s. of Free-hold and wills that in such cases the Venire facias ought to have this clause Quorum quilibet habeat 40 s. in terris c. which cannot be intended of Aliens which cannot have Free-hold And it goes further that upon default of Iurors the Iustices have authority at the Prayer of the Plaintiff or Defendant to command the Sheriff or other Minister to whom it appertaineth to make a return of such other able persons of the said County then present at the same Assises or Nisi prius which shall make a full Iury c. which cannot be intended of Aliens but of Subjects and therfore shall be of tryals which are onely of English and not of this Inquest which was part of Aliens And further the Tales was awarded only of Aliens as was alledged on the Defendants part but in this point it was a mistake for the Tales was awarded generally de circumstantibus which ought alwaies to be of such as the principall Pannell was But Per Curiam the exceptions were disallowed for albeit the Statute is as hath been said yet when the Statute comes to this clause which gives that a Tales may be granted by the Iustices of Nisi prius and is generally referred to the former part of the Act for it is added Furthermore be it enacted that upon every first Writ of Habeas Corpora or Distringas with a Nisi prius c. the Sheriff c. shall return upon every Juror 5 s. Issues at the least c which is generall of all And then it goes further And wills that in every such Writ oâ— Habeas Corpora or Distringas with a Nisi prius where a full Jury doth not appear before the Justices of Assise or Nisi prius that they have power to command the Sheriff or other Minister to whom it appertains to nominate such other persons as before which is generall in all places where a Nisi prius is granted and therfore this is not excepted neither by the Letter nor intent of the Law And where it is said such persons by it is to be intended such as the first which shall be of Aliens as well as English where the case requires it for expedition was as requisite in cases for or against them as if it were between other persons And Aliens may well be of the County or place where the Nisi prius is to be taken and may be there for although an Alien cannot purchâ—se Land of an Estate of Free-hold within the Realm yet he may have a house for habitation within it for the time that he is there albeit he be no Denison but be to remain there for Merchandise or the like And by Gawdy where the default was only of strangers the Tales might have been awarded only of Aliens as where a thing is to be tryed by Inquest within two Counties and those of the one County appear but not those of the other the
not properly said an Use untill that it be said in Esse to take the Profits themselves But I am to turn this Argument against him who made it for if it be so the Use can never be in suspence and iâ— so it follows that no Possession by means of any such Use can be in suspence but staies where it was before to be executed when the Use happens to be in beeing But as to that that a Reversion or Remainder may be of that which we call an Use so also may such a Use be in suspence in the same manner as the Possession it self but not otherwise And as to Cramners Case formerly put the Law is so because nothing appeareth in the case to be done to the disturbance of this contingent Vse in the interim before it happen But upon the Case put of the Lady Bray upon which it hath been so strongly relied it was thus The Lord Bray made an assurance of certain Lands to the use of certain of his Councell untill the Son of the said Lord Bray should come to the age of 21. years for the livelyhood of the said Son and of such a Wife as he shall marry with the assent of the said Councell and then to the use of the said Son and of the said Wife and of the Heirs of the body of the said Son The Father dies the Son was become in Ward to the King after which one of the said Councellors dies the King grants over the Wardship of the said Son after which the said Lord Bray by the assent of his Guardian and of the surviving Councellors marries the Daughter of the then Earl of Shrewsbury after which the Husband aliens the same Land to one Butler and dies and upon Action brought by the said Lady against the said Butler for the same land she was barred by Judgment and upon what reason because she was not a person known when the Statute was made which must be in every case of a Freehold in Demesne as well in case of an Use as in case of a Possession And therfore a Lease for years the Remainder to the Heirs of I. S. then living is not good and the same Law of an Vse And so it was agreed by all the Iustices very lately in the case of the Earl of Bedford but in these Cases it remaineth to the Feoffor and because it doth not appear at the time of the assurance who shall be the Wife of the said Son so that there was not any to take the present Free-hold by name of the Wife of the Son she takes nothing by the assurance but this reason makes for our side to wit That if there were none to take the Free-hold in Demesne from the Use when it falleth he shall never take it The other reason in this Case was because she was not married by the consent of all the Counsellors for that one was dead nor according to the power given by the agreement but by the authority of the Guardian that the power which the Father had upon his Son was ceased And Nota That by a Disseisin the contingent Use may be disturbed of his Execution but there by the regresse of the Feoffee oâ— his Heirs when the Contingent happen it may be revived to be executed But by the release of the Feoffee or his Heirs the Contingent in such a case by Popham iâ—â—â—â—red oâ— all possibility at any time to be executed And to that which hath been said that the generall and universall Assurances of men throughout all the Realm at this â—ay arâ— by means of Vses and that it shall be a great deal of danger and inconvenience to draw them now in question or doubt and that it now trembleth upon all the Possessions of the Realm and therfore it shall be too dangerous to pull up such Trees by the roots the Branches wherof are such and so long spread that they overshadow the whole Realm Popham said That they were not utterly against Uses but only against those and this part of them which will not stand with the publike Weal of of the Realm and which being executed shall make such an Estate which cannot stand with Common Law of the Realm or the true purport of the Statute and therfore he said that it was but to prune and cut off the rotten and corrupt branches of this Tree to wit that those which had not their substance from the true Sap nor from the ancient Law of the Realm nor from the meaning of the Statute and so to reduce the Tree to its beauty and perfection The same reason he said might have been made in the time of Edw. 4. against those Arguments which were made to maintain the common Recoveries to bar Estates-tail But if such a reason had been then made it would have been taken for a bare conceit and meer trifle and yet Vses were never more common then Estates-tail were between the Statute of Donis conditionalibus and the said time of Edw 4. But the grave Iudges then saw what great trouble hapned amongst the people by means of Intails and what insecurity happened by means therof to true Purchasors for whose security nothing was before found as we may see by our Books but collaterall Warranty or infinite delay by Voucher and thus did the Iudges of this time look most deeply into it wherupon upon the very rules of Law it was found that by common Recovery with Vouchers these Estates-tail might be barred which hath been great cause of much quiet in the Land untill this day that now it begins to be so much troubled with the cases of Vses for which it is also necessary to provide a lawfull remedy But he said plainly That if the Exposition made on the other side shall take place it will bring in with it so many mischiefs and inconveniencies to the universall disquiet of the Realm that it will cast the whole Common-wealth into a Sea of troubles and endanger it with utter confusion and drowning And to that which was said That a Remainder to the right Heirs of I. S. or to the Heirs of the body of I S. or to the first Son as here are so in the custody of the Law that they cannot be drawn out that therfore no forfeiture can be made by the Feoffment made by him who hath the particular Estate To that he said That a Disseisin made to the particular Estate for life draws out such Remainders to the right Heirs as is proved expresly by 3 H. 6 where it is holden that a collaterall Warranty bars such a Remainder in obeyance after a disseisin And by Gascoigne 7 H. 4. If such a Tenant for life makes a Feoffment in Fee it is a Forfeiture but he conceived that in the life time of I. S. none can enter for it but this is not Law and when by the Feoffment the particular Estate is quite gone in possession and in right also the remainder shall never take
in his custody and offered to the said Sheriff to put him in the Indenture amongst his other Prisoners delivered to the new Sheriff but would hâ—ve had the said old Sheriff to have sent for the said new Sheriff to have taken him into his custody but the new Sheriff refused to receive him unlesse Dabridgecourt would deliver him into the common Gaol of the County which was in the Town of Warwick wherupon afterwards the Prisoner escaped And Dabridgecourt was charged with this Escape and not the new Sheriff for he is not compellable to take the Prisoners of the delivery of the old Sheriff but in the common Goal of the County and the old Sheriff remains chargeable with the Prisoner untill he be lawfully discharged of him and if the Sheriff dies the party shall be rather at a prejudice then the new Sheriff without cause charged with him And in such a case the party who sued the execution may help himself to wit by the remaining of the body by a Corpus cum causa wherby he may be brought to be duly in execution and this under a due Officer And Anderson Periam and other Iustices were also of opinion that the said Skinner and Catcher are to be charged with the escape in the principall case wherupon Iudgment was given for the Plaintiff which was entred Hillar 34 Eliz. Rot. 169. in the B. R. Fulwood versus Ward 2. IN a Writ of Annuity brought in the Common Pleas by George Fulwood Plaintiff against William Ward Defendant the Case was thus The Queen was seised of a Barn and Tithes of Stretton in the County of Stafford for the life of the Lord Paget and being so seised demised it by Letters Patents dated 21. June 29 Eliz. to the said William Ward for 21. years wherupon the said Ward by Writing dated 30. Iune 29 Eliz. granted to the said Plaintiff an Annuity or yearly Rent of 10 l. out of the said Barn and Tithes for 15. years then next ensuing payable yearly upon the 8. day of November with clause of Distresse The Lord Paget died the first day of March 32 Eliz. and for the Arrearages after his death the Plaintiff brought this Writ of Annuity and for the difficulty therof in the Common Pleas the Case came this Term to be argued before all the Iustices and Barons at Serjeants-Inn in Fleetstreet where it was agreed by Walmsley Fennor and Owen that the Annuity was gone by the determination â—â— his Estate in the Land who made the Grant for they said that presently upon the Grant made as before it was a Rent-charge for by such a Rent granted in Fee the Fee shall be in his Heirs albeit the Grantee dies before any Election made and such a Rent is payable from the beginning at the Land as appeareth by 12 E. 4. And by grant of Omnia terras tenementa hereditamenta such â— Rent will passe ergo it is a Rent-charge and not an Annuity untill the Election made and by the determination therof in the nature of a Rent the Election is gone as by Babington and Martin 9 H. 6. by the recovery of Lâ—nd charged with such a Rent by elder Title the Annuity is gone as it seeâ—s by their opinion and by them and by Littleton upon a Rent-charg◠〈◊〉 with Proviso that he shall not charge the person of the Grantor 〈…〉 exclude the charge of the person which proves that the Land is charâ—â—â— Originally and not the person for otherwise the Proviso would be void for the repugnancy And if so whensoever the Land is discharged as by 〈…〉 â—â—â—cent or the like the person therby is also discharged and therfore â—he Iuâ—gment here shall be that the Plaintiff shall be barred But by the chief Iustices chief Baron and all the other Iustices and Barons the Plaintiff ought to have Iudgment in this case to recover the Annuity for the Law gives him at the beginning an Election to have it as a Rent or an Annuity which matter of election shall not be taken from him but by his own Deed and folly as in case where he purchase part of the land charged in which case by his own Act he hath excluded himself of his Election But if a Feoffee upon condition grant a Rent-charge and presently break the Condition wherupon the Feoffor re-enter shall not the Feoffee be charged by Writ of Annuity surely it shall be against all reason that he by his own act without any folly of the Grantee shall exclude the Grantee of his Election which the Law gives at the beginning And they denied the opinion of 9 H. 6. to be Law But if the Disseisor grant a Rent-charge to the Disseisee out of the Land which he had by the Disseisen by his re-entry before the Annuity brought the Annuity is gone for this was his own act yet in effect all of them agreed that Prima facie it shall be taken as a Rent-charge of which the Wife shall be endowed as hath been said which passe by grant of Omnia hereditamenta and which is payable at the Land but the reason is because it is expresly granted out of the Land and also for the presumption of Law that it is more beneficiall for the Grantee to have it in such a degree then in the other But neither the presumption of Law nor the expresse Grant therof as a Rent shall not take away from the Grantee the benefit of his Election where no default was in him but that upon his Election he may make it to be otherwise as ab initio And therfore by Popham If a Rent-charge be granted in tail the Grantee may bring a Writ of Annuity and therby prejudice his Issue because that then it shall not be taken to be an Intail but as a Fee-simple conditionall ab initio And if a Termer for two years grant a Rent-charge in fee this as to the Land is but a Rent charge for two years and if he avow for it upon the determination of the Term the Rent is gone but by way of Annuity it remains for ever if it be granted for him and his Heirs and assets descend from him who granted it And if a Rent-charge be granted in fee and doth not say for him and his Heirs if the Grantee brings his Writ of Annuity the Heir shall never be charged therwith yet if he had taken it as a Rent-charge the Land had been charged with it in perpetuity And by him the cause why the Proviso that he shall not charge the person of the Grantor upon the grant of a Rent-charge is good is because the person is not expresly charged by such a Grant but by operation of Law But in such a case a Proviso that he shall not charge his Land is meerly void for the repugnancy because there the Land is expresly charged by precised words and therfore if it be expresly comprised in such a Grant that the Grantee may charge the Land or the person of the
given for the Defendant The same Term in the same Court. Laurking and Wildes Case THe Rector of the Church of livelled in the spirituall Court for the Tithes of a riding Nag where the case was That a man let his Land reserving the running of a Horse at some time when he had occasion Tithes for a riding Nag to use him there The Defendant shewed this matter in the Court by his Counsell and prayed a Prohibition and avers that for the same Land in which the Horse went he paid Tithes And by the Court nigh London a man will take a 100. or 200. Horses to Grasse now he shall pay Tithes for them or otherwise the parson shall be defeated But in this case if the Defendant alledge and prove that it was a Nag for labour and not for profit a Prohibition lies The same Term in the same Court. Havergall versus Hare IN an Ejectione firmae brought by Havergal against Hare the Case was thus Afterwards fol 55. A Rent of 20 l. per annum was granted out of Green acre to one and his Heirs to be paid at Michaelmas and the Annunciation of our Lady by equall portions and the Grantor covenants that if the Rent of 20 l. be arrear by the space of twenty daies that the Grantee may distâ—ain and that if there be not sufficient distresse upon the Land or iâ— there be a Rescous Replevin or Pound-breach that then it shall be lawfull for the Grantee and his Heirs to enter and retain the Land to them and their Heirs untill the 20 l. be paid 10 l. for one half years Rent was in arrear and for it an entry was made Mountague chief Iustice and Doderidge Iustice there can be no entry made when 10 l. only is behind for the words of the Deed are that if the Rent of 20 l. be behind that the Grantee and his Heirs may enter and if he shall enter now he shall retain the Land for ever for the 20 l. shall never be paid Crook and Haughton Iustices contrary for if 10 l. be arrear the Rent of 20 l. is arrear for Haughton said In an Assise of Rent of 40 l. where part is arrear yet he ought to bring his Assise for the whole Rent of 40 l. for the Writ ought to agree with the Deed. Doderidge agreed with him in the case of an Assise but not in the principall point And for the second point it was agreed by them all that upon the entry of the Grantee he shall have a Fee-simple determinable admitting the entry for the 10 l. to be good The same Term in the same Court and it is entred 14 Jac. Rot. 1484. Robinson versus Walter RObinson brought an Action of Trover and Conversion against Walter and upon the whole matter the case appeared to be this A Stranger took the horse of the Plaintiff and sent him to a common Inn and there he remained for the space of half a year at which time the Plaintiff had notice where his Horse was and therupon he demanded him of the Inn-keeper who answered that a person unknown left the Horse with him and said that he would not deliver the Hoâ—se to the Plaintiff unlesse he would pay for his meat which came to 3 l. 10 s. for all the time and also would prove that it was his Horse upon which the Plaintiff demurred in An Inn-keeper may detain a Horse untill he be satisfied for meat albeit he be left by a stranger Law And it was resolved by Mountague chief Iustice Crook and Doderidge Iustices Haughton Iustice dissenting that the Defendants plea was good for the Inn-keeper was compellable to keep the Horse and not bound at his peril to take notice of the Ownder of the Horse And by the custom of Lond. if a horse be brought to a common Inn wher he hath as it is commonly said eaten out his head it is lawfull for the Inn-keeper to sell him which case of the custom implies this case And there is a difference where the Law compels a man to do a thing and where not As if the Lievtenant of the Tower brings an Action of debt for Dyet against one who was his Prisoner in this case the Defendant cannot wage his Law because the Law compels the Lievtenant to give Victuals to his Prisoner otherwise if another man brings an Action of debt for Dyet and in the case at the Bar the Inn-keeper was compellable And Doderidge said that if the Law were as the Plaintiff would have it it were a pretty trick for one who wants a keeping for his Horse And Mich. 6 â—ac in the Kings Bench between Harlo and Ward the like was resolved as was cited by Barkesdels of Counsell with the Defendant Mich. 14. Jac. In the Kings Bench. Rawlinson versus Green A Copyholder surrendred out of Court according to the custom of the Mannor which at the next Court was presented and entry therof made by the Steward Scilicet Compertum est per homagium c. but no admittance Afterwards Cestuy que use surrenders before admittance and the first Copyholder surrenders to the Plaintiff And in this case there were two questions 1. Whether he may surrender before admittance 2. Who shall have the Land whether the first Copyholder or the Lord Haughton Iustice held that he could not surrender before admittance and the entry of the surrender doth not make an admittance for this being the A â—urâ—ender of Copyhold cannot surrender before admittance sole act of the Steward shall not bind the Lord and it is not like to the usuall foâ—m of an admittance for that is Dat Domino de fine fecit fiâ—elitatem admissus est inde tenens Doderidge Iustice agreed and said that in Hare and Brickleys case the admittance of a Copyholder was compared to the induction to a Benefice which gives the possession Hillary 14. Jac. In the Kings Bench. Sir John Pools Case Three Executors brought an Action of Debt and one only declared and they were ready for a triall in the Country and now it was moved that the Declaration might be amended and the names of the other Executors incerted but per Curiam this cannot be without the assent of the parties Pasch 15. Iac. In the Kings Bench. Cooper versus Smiths AN Action upon the Case was brought for these words viz Waterman Action for these words Thou hast killed thy Masteâ—s Cook and thou Innuende the Plaintiff hast killed thy Masters Cook Innuende c. and I will bring thee in question for thy life And after Verdict for the Plaintiff it was moved in Arrest of Iudgment by the Counsell of the Defendant that the words were not actionable for the incertainty inasmuch as it doth not appear who was his Master nor that his Master had a Cook Mountague chief Iustice said that the words were actionable and albeit Inâ—uendo cannot maâ—e a thing that is uncertain certain an Innuendo cannot make a
thing that is uncertain certain but shall serve as a Predict yet the words import that he had a Master and that his Master had a Cook to which all the Court agreed and Iudgment was given for the Plaintiff And another Action was brought for these words Scil. Thou hast sacrificed Thou hast sacrificed thy child to the Devill thy Child to the Devill and adjudged that the words were actionable Mich. 15. Iac. In the Kings Bench. Lee versus Brown IN an Ejectione firmae brought by Lee against Brown the Case was this Whether copyhold Lands may be intailed Tenant in Tail of Copyhâ—ld Land surrendred the same into the hands of the Lord to the use of I. S. wherupon two points did arise 1. Whether Copyhold Land be within the Statute of Donis conditionalibus so that iâ— may be intailed 2. Whether the Intail may be cuâ— off by the surrender Doderidge Iustice said as to the first point that it hath been a great doubt whether it may be intailed but the common and better opinion was that by the same Statute co-operating with the custom it may be intailed and with this agrees Heydons case in my Lord Cokes 3. Report and so was the opinion An Intail of copyhold lâ—nd nâ—t to be cut off by â—urrender unlesse by speciall custom of the Court. And for the second point their opinion also was that it could not be cut off by surrender unlesse it were by speciall custom and they directed the Iury accordingly And it was said to maintain this custom it ought to be shewn that a Formedon had been brought upon such a Surrender and Iudgment given that it doth not lye yet it was agreed that it was a strong proof of the custom that they to whose use such Surrenders had been made had enjoyed the Land against the Issues in Tail And it was said by the Counsell of the Defendant that there was a Verdict for them before in the same case which they could prove by witnesses but the Court would not allow such a proof because it was matter of Record which ought to be shewn forth In the same Term in the Common Pleas. May versus Kett. AN Action upon the Case was brought for these words viz. Thou hast Words Thou hast stoln my Corn out of my Earn stoln my Corn out of my Barn And it was moved in Arrest of Iuâ—gment because he had not said how much he had stoln and perhaps it was of small value and yet it was adjudged that the Action would lye for it is at least petit Larceny But if he had said that he had stoln his Corn generally it had not been actionable for it might have been growing and then it had been but a Trespasse The same Term in the Star Chamber Riman versus Bickley and others IOhn Riman exhibited a Bill in the Star Chamber against Thomas Bickley and Anne his Wife Dr. Thorn Mr Goulding and others Defendants the said Anne was first married to Devenish Riman the Plaintiffs Son and between them were many â—ars and disâ—greemâ—nts and the said Devenish was much given to drinking and other Vices and divers times did beat and abuse his Wife and was also jealous of the saiâ— Thomas Bickley and his Wife being at a certain time at Supper with Dr. Thorn Goulding and others spake such words as these having communication thâ—t her Husband did beat and abuse her to wit That she heard that his Father had that quality and being once whipt for it was the better ever after and that if she thought it would do her Husband any goâ—d she would willingly bestow 40 s. on some body to give him a whipping wherupon Gâ—ulding said that he would give him a Medâ—cine for his Mâ—lâ—dy and within two daies after he came in the night in womâ—ns apparrell with a Weapon under his Cloak and with a Rod and wenâ— into the House and Chamber of the said Devenish and would have whipped him and in striving together there was some hurt done on either side but Gâ—ulding not being able to effect his purpose fled and this was conceived to be by the procurement of Anne his wife And not long after Devenish fell sick and sent to his said wife for certain necessaries which she would not send him and presently after Devenish died and she refused to come to his buriall And although it were much disliked that Devenish should abuse his Wife in such uncivill manner as to strike and beat her and as Coke late chief Iustice said it is not lawfull by the Act Military for one man to strike another in the presence of Ladies yet it was resolved by the whole Court that it was a great misde meanor in the Wife and uncivill and undutifull carriage in her to do so to her Husband as they use to do to Children or fools to wit to give them the Whip and so to disgrace and take away the good name of her Husband which viz. A mans good name and his Childrens are the two things which make a man live to Posterity as was said by Sir Francis Bacon Lord keeper and the Court fiâ—ed the Wife 500 l. and it was said that Thomaâ— Bickley her noâ— Husband well deserved to pay this Fine because he was too familiar with her in the time of his Predecessor and as the Bishop of London said Devenish Rimon lay upon her hands and Thomas Bickley upon â—eâ— heart And to aggravate this matter a Letter was shown whiâ—h Devenish Rimon wrote to his Wife in which he called her Whoor and told her somwhat roundly of her faults and she wrote back to him in the Margeâ—t that he lyed and wished him to get a better Scribe for his next Lâ—â—ter for he was a Fool that wrote that wherin she called him Fool by craft And Goldings offence was accâ—vnted the greater because he was a Minister so that he was fined 500 l. also And Coke said that the course of this Court was that if any were fined who is not able to pay it Respondeat superior he that is the principall and chief agent therin must answer it for otherwise poor men might be made Instruments of great mischief who are not able to answer and the greater Offenders shall escape which the Lord Keeper confirmed And as to Doctor Thorn he was acquitted by all And the Bishop of London said that they had thought to have troad upon a Thorn and they gat a Thorn in their foot And by Coke if Devenish Rimon had died upon it it had been capitall in the Wife who procured it for it was an unlawfull Act. The same Term in the Kings Bench. Wescot versus Cotton THe case was this An Infant Executor upon an Action brought against Where an Infant Executor may declare by Attorney but not defend by Attorney but by Guardian him appeared by Attorney where he ought to appear by Guardian and it was resolved by the Court that this was Error for this
doth much concern the Infant in as much as by his false plea he shall be bound to â—nswer of his own Goods if he hath no Goods of his Testator and therfore in a 11 E. 4. 1. he hath remedy against his Guardian for pleading a false Pâ—ea And by Doderidge if he hath no Guardian the Court shâ—ll appoint him a Guardian And if an Infant bring an action as Executor by Attorney and hath Iudgment to recover this is not erronious because it is for his benefit so per Curiam the difference is where he is Plaintiff and where he is Defendant And there is another difference where he is Executor and where not for being Executor his Plea might have been more prejudiciall to him and Coke lib 5. Russels case was agreed for good Law for an Infant may be Executor and may take money for a Debt and make a Release and give an Acquittance but not without a true consideration and payment of the money The same Term in the same Court. Thomas Middletons Case THomas Middleton alias Strickland was condemned for a Robbery at the Where a Felon is condemned and elcapeth and is re-taken upon confession that he is the same party execution may be awarded The Sheriff of Middlesex fined for not attending the Court. Assises in Oxford after which he made an escape and being taken again he was brought to the Bar and upon his own confession that he was the same party who did the Robbery and that he was condemned for it the Court awarded execution And Mountague chief Iustice said thâ—t was no new case for it had been in experience in the time of E. 3. and 9 H. 4. and 5. E. 4. that the Court might so do upon his own confession And because the Sheriff of Middlesex did not give his attendance upon the Court in this case nor came when he was called the Court fined him 10 l And Mountage said that it shall be levied by proces out of the Court and also all other Fines there assessed and not estreated into the Exchequer for then the party might compound for a matter of 20 s. and so the King be deceived The same Term in the same Court. Gouldwells Case IOhn Gouldwell seised of Land in Socage Tenure devised them to his Wife for life the Remainder to John Gouldwell his Son and his Heirs upon Condition that after the death of his Wife he shall grant a Rent-charge to Steven Gouldwell and his Heirs and if John Gouldwell dye withâ—ut Heirs of his body that the Land shall remain to Steven Gouldwell in Tail the Wife dieth John Gouldwell grants the Rent accordingly Stephen Gouldwell grants the Rent over John Gouldwell dies without Heir of his body and the second Grantee distrains for the Rent arrear and Stephen Gouldwell brings a Replevin And it was urged by the Counsell for the Plaintiff that this Rent shall not have continuance longer then the particular Estate and cited 11 H. 7. 21. Edriâ—ks case that if Tenant in Tail acknowledge a Statute this shall continue but during his life and Dyer 48. 212. But it was agreed per Curiam that the Grantee was in by the Devisor and not by the Tenant in Tail and therfore the Grant may endure for ever But for the second point this being to him in Remainder the intent of the Demisor is therby explained that he shall have the Rent only untill the Remainder come in possession for now the Rent shall be drowned in the Land by unity of possession 3. It was agreed and resolved that by the granting of the Kent over this was a confirmation And Mountague said that it was a confirmation during the Estate Tail and shall enure as a new grant afterwards And Haughton and Doderidge said that they would not take benefit of the grant over by way of confirmation for as Haughton said this enures only ought of the Devisor and he hath power to charge the Land in what manner he pleaseth and it is like to an usuall case as if a man makes a Feoffment in Fee to the use of one for life the Remainder over with power to make Leases and after he makes a Lease this is good against Tenant for life and him in the Remainder also And I have considered what the intent of the Devisor should be in granting of this Rent and it seems to me that in as much as the Land is limited in Tail and the Rent in Fee that by this the Grantee shall have power to grant or dispose of the Rent in what manner he would but if the Land had been in Fee I should have construed his intent to have been that the Grantee should have the Rent only untill the Remainder fall to which Doderidge agreed who said that we are in the case of a Will and this construction stands with the intent of the Devisor and stands with the Statute which saies Quod voluntas Donatoris est observanda The same Term in the same Court. Baskervill versus Brook A Man became Bail for another upon a Latitat in the Kings Bench and before Iudgment the Bail let his Lands for valuable consideration Difference between baile in the Kings Bench and the Common Pleas. And how a bail shall relate And afterwards Iudgment was given for the Plaintiff And now it was debated whether the Land Leased shall be liable to the Bailment and it was said by Glanvill of Councell with the Lessee that it ought not to be liable and he put a difference between a Bailment in this Court and a Bailment in the Common Pleas for there the Suit cometh by originall and the certainty of the debt or demand appeareth in the declaration and therfore then it is certainly known from the begining of the Bailement for what the Bail shall be bound But in this Court upon the Latitat there is not any certainty untill Iudgment given before which the Land is not bound and now it is in another mans hands and therfore â—ot liable and he puts Hoes case Co. lib. 5. 70. where iâ— was resolved that where the Plaintiff releaseth to the Bail oâ— the Defendant upon a Suit in the Kings Bench before Iudgment all Actions Duties and Demands that this Release shall not bar the Plaintiff for there is not any ceâ—tain duty by the Bail before Iudgment and therfore it cannot be a Release and he citeâ— the case of 21 E. 3. 32. upon an account and said that it was like to a second Iudgment in that which reduceth all to a certainty and therfor c. But it was said by Mountague and Crook that the Lessee shall be bound for otherwise many Bailments and Iudgments shall be defeated which will bring a great Inconvenience And Mountague said that it was like to the case of a bargain and sale of Land which after it is Inrolled within six moneths shall relate to the beginning of the Bargain so upon the Iudgment given relation is made from the time
demurred upon the Avowry And Andrews argued for the Plaintiff 1. The Defendant ought to have alleadged certainly that they were seised in Fee for Littleton saith that in Counts and pleadings a man ought to shew how he is seised 8 E. 3. 55. 13 Eliz. Dyer 299. Pl. 31. An Inquisition was found upon an extent of a Statute-merchant and doth not shew how the Conusor was seised but only that he was seised and the Inquisition holden void But it may be objected that if Land be given to a Dean and Chapiter that they have fee 11 H. 7. 12. I confesse it But the constant use of pleading hath alwais been in case of a Bishop Colledge c. to say that they were seised in Fee as appears in Hill and Granges case and Co. lib. 6. the Dean and Chapiter of Worcesters case and Co. lib. 11. 66. Magdalen Colledge case and it appeareth by 20 H. 7. in the Abbey of S. Austins case that an Abbey may have a Lease Prae auter vie and so perhaps here the Dean had a Lease but Prae auter vie and therfore ought to have alledged that he was seised in Fee if the truth were so And he moved other exceptions as 1. That the Defendant intitled himself to a Lease as Executor and doth not plead Literas testamentarias 2. That the Defendant entitles himself to a Rent part of which was due in the time of the Testator and part in his own time and doth not shew when the Testator died and therfore the Avowry not good Jermy for the Defendant that the Avowry is good and it cannot be otherwise intended but that they are seised in Fee 11 H. 7. Lands given to a Major and Comminalty is Fee-simple but otherwise of an Abbot and Parson Plow 103. and Dyer 103. A Seisin in Fee is implied by Seisin In jure Collegii and because it hath been objected that he may be seised Prae auter vie this is but a forraign intendment for a Fee is alwaies intended Seisin in Fee-simple For the second objection because Non profert literas testament true it is if he entitle himself meerly as Executor he ought to bring in Literas testamentar but our case is not so for here we are Defendants and we endeavour only to excuse a Tort 36 H. 6. 36. Where a man is Plaintiff he ought to show Literas testamentar that so the Court may see that he hath cause of action but here it is only by way of excuse For the third that the death of the Testator doth not appear is not materiall for if any part be due to him it is due as Executor Doderidge they ought to have pleaded that they were seised in Fee true it is that Land given to a Major and Comminalty is Fee-simple and the reason is because they are perpetuall and if the Estate be not limitted they shall take according to their continuance 11 H. 4. 11 H. 7. and 27 H. 8 Dockrayes case they may be seised Prae terme dauter vie but if they had pleaded that they were seised to them and their Successors this pleading is good Prima facie 17 E. 3. 1. Crew chief Iustice all the authorities are that ther were seised in Fee Injure Collegii and it is good to admit a new way of pleading Jones Iustice Tenant Prae auter vie makes a Lease for years and cestui que use dies he cannot have an action of Debt against Lessee for years for years for he is now Tenant at sufferance But for the first point it seems to him that the pleading is not good for although in point of Creation they take a Fee by a Gift to Dean and Chapiter yet in pleading they ought to alledge their Estate specially for they may have an Estate Prae auter vie And this is in an Avowry which shall be taken strickly And by Crew chief Iustice the Defendant here ought to shew Literas testamentar for he is an especiall Actor in the Avowry And by Doderidge Longissimum vitae tempus est 100. years Co. lib. 10 50. Lampets case and therfore in pleading if the Defendant had said that a Dean and Chapiter were seised and made a Lease for 200. years this implies a Seisin in Fee because a man cannot have so long a life but here the Lease is but for 89. years and it is common to let for 89. years if A. shall so long live yet this is but a slip and the Title is apparant The same Term in the same Court. Hodges versus Moore IN Debt for marriage money the case was this A man was bound to Hedges to pay him a 1000 l. after that he had married his Daughter and afterwards he married her and brought Debt upon this Obligation and it was not averred that he had given notice to him of the marriage but demanded the money And this was moved by Noy in Arrest of Iudgment but quaere if request afterwards doth not implynetice And Doderidge Iustice put this case A man is bound to pay a 100 l. two Where notice is requisite before action and where not moneths after A. return from Rome he ought to give notice of his return before that he can have an action upon this Obligation for he may land at Newcastle or Plymoth where by common intendment the Obligor cannot know whether he be returned or not and this was agreed by the chief Iustice and Jones And Serjeant Davies argued for the Plaintiff that there need not precise notice to be given and he cited 1 H. 7. 18 E. 4. and Co. lib. 8. Where the Obligor shall take notice at his perill and so here because he takes upon him â—or to pay it And it was said that one Blackamores case was adjudged in the point and he conceived also that this request afterwards is a sufficient notice But Noy for the Defendant said that he ought to give notice or otherwise this mischief would ensue that if he had not married her and yet had demanded the money he ought to pay it and he said that where an act is to be done by a stranger the Plaintiff or Defendant ought to take notice therof at his perill as the case E. 4. where a man was bound to stand to the Award of I. C. he ought to take notice of the Award at his perill but where it lies properly in the Conusance and notice of the Plaintiff there he ought to give notice therof to the Defendant Co. lib. 5. Mallories case If a Reversion be bargained and sold to J. S. the Bargainee shall have the Rent without Attornment but if a penalty be to be forfeited he ought to give notice to the particular Tenant of the Grant or otherwise he shall not take advantage therof and he cited a case which was in 17 Eliz. Stephen Gurneys case Lessee for years the Reversion is granted over for years by way of future Interest to begin upon the death forfeiture or determination of the first Lease
was given this day The same Term in the same Court. Goodwin versus Willoughby GOodwin brought an action upon the case against Joane Willoughby wife of Thomas Willoughby and upon non Assumpsit pleaded it being found for the Plaintiff it was moved in Arrest of Iudgment 1. That the Plaintiff shews that Thomas Willoughby was indebted upon account and doth not shew that Joane Willoughby is Executrix or Administratrix and yet that she promised to pay wheras in truth she hath no cause to pay for there is no consideration and so Nudum pactum Jermy for the Plaintiff for the first because it doth not appear for what cause he accounted I answer that this is but a meer conveyance And for the second that she does not suppose that the Feme is executrix c. But here is a good consideration which is that she shall not sue or molest and that he gave day for payment this is a sufficient consideration But Stone of counsell with the Defendant said that the first is the ground of the action and therfore he ought to shew for what he accounted Crew chief Iustice two exceptions have been taken 1. For the alledging the manner of the account which I conceive is good enough and he need not shew the cause of the account And as to the second because it doth not appear that she is Executrix or Administratrix and so no consideration and so no Assumpsit But here she assumes to be Debtor and makes a promise to pay which is an acknowledgment of the Debt by inference and therfore he conceived that the Assumpsit was good Doderidge Iustice for the first it is good enough yet Cum indebitatus existit is no good Assumpsit but here he shows a speciall way of Debt and it would be long and tedious to describe his account For the second there is no cause of action because it doth not appear that she is Executrix or Administratrix or Executrix of her own wrong If I say to one do not trouble me and I will give you so much this is not actionable for there ought to be a lawfull ground and for this cause the Declaration Where forbearance without cause of action is no ground of an Assumpsit is void for it is only to avoid molestation Give me time c. this is no good Assumpsit for forbearance is no ground of action where he hath no cause to have Debt Jones Iustice agreed in the first with them because a generall action upon the case sufficeth and in truth it is but an inducement to the action but for the other part he doubted and he cited one Withypools case an Infant within age promised to pay certain money he makes an Executor and dies within age the Executor saith to him to whom the promise is made forbear and I will pay you and there an action upon the case did lye against the Executor upon this promise and yet it was a void Contract but there was colour of action forbear till such a time now the other hath lost the advantage of his Suit But he gave no opinion Crew It is a violent presumption that he is indebted But by Doderidge here is no colour to charge her but only by inference that she is Executrix If a stranger saith forbear such a Debt of J. S. and I will pay it it is a good consideration for the losse to the Plaintiff and in this case it appears not that there is any cause and Broom Secondary said that Withypools case before cited was reversed in the Exchequer Chamber Jones If an Infant makes a promise it is void and he may plead non Assumpsit which Doderidge did not deny But upon his Obligation he cannot plead Non est factum for he said that he shall be bound by his hands but not by his mouth The same Term in the same Court Drope versus Theyar IN Debt by Drope against Theyar an Inne-keeper upon Issue joyned and a Verdict for the Plaintiff Bolstred moved in Arrest of judgment for the Defendant and the matter was that one Rowly who was servant to Drope lodged in the White Heart at S. Giles and there had certain Goods of his Masters which were stoln from him in the night and Drope the Master brought an action therupon and it was moved by Bolstred that the Plaintiff was without remedy 1. Because it was in an Inne in London for the Register 105. is Quando quis depraedatus euns per patriam which as he said could not be extended to an Inne in London 2. It ought to be an Inne as Inne-keeper 3. He ought to be as a Guest lodging and this appeareth in Culeys case in 5 Jac. in Celly and Clarks case which was entred Pasch 4. Jac. Rot. 254. It was adjudged that where the Guest give his Goods to his Host to deliver to him three daies after and the goods are lost that an action is not maintainable against the Inne-keeper for them and this was in an Inne in Uxbridge And in one Sands case where the Guest came in the morning and his Goods were taken before night he shall have an action against the Inne-keeper 4. The Goods ought to be the Goods of the party who lodgeth there for the words are Ita quod hospitibus damna non eveniunt and here the Master who brought the action was not Guest But admit the Master shall have the action yet he ought to alledge a custom that the Master shall have the action for the Goods taken from his Servant Trin. 17 Jac. Rot. 1535. Bidle and the Master brought an action for Goods taken from the Servant and there it was resolved that he ought to conclude that Pro defectu c. and apply the custom to him being Master Sec Co. Book of Entries 345. And that a custom that for other mens Goods in the custody of Guests the Owner shall have an action against the Inne-keeper if they be stollen Ob. This is the Common Law and therfore ought not to be alledged Answ Where a man takes upon him to shew a custom he ought to shew it precisely he cited Heydons case Co. lib. 3. 28 H. 8. Dyer 38. And it was said for the Plaintiff that Goods are in the possession of the Master which are in the possession of his Servant and so here the Master might have had action well enough 8 E. 4. my Servant makes a Contract or â—â—ies Goods to my use I am liable and it is my act By the Court an Inne in London is an Inne and if a Guest be robbed in such an Inne he shall have remedy as if he were Enns per patriam But the cheife point was whether the master shall have the action in the case where the Servant lost the goods and by Jones Justice in 26 Eliz. in C. B. upon the Statute of Hue and Cry it was resolved that if the Servant be robbed the Master may have the Action and so by him
one he would pay it where good where not this he may implead him presently Mich 12. Jac Kebles Case A man promiseth to pay so much in consideration of a Lease at Will and it was holden no good consideration for by the same breath that he creates it he may defeat it Pasch 8. Jac. Austins Case A man promise that in consideration he would forbear another he would pay it and no time was limited and therefore it was holden no good consideration Trin. 38. Eliz. Rot. 523. A man promise quod non implacitabit and avers quod non implacitavit and because of the uncertainty it was holden no valuable consideration Doderidge Justice If there be no consideration at the time or no cause of Action the forbearance afterwards will not make it actionable and he said that it had been adjudged in this Court that a consideration to forbear for a little time is not good but by some to forbear for a reasonable time is good But in the principall Case upon the hearing of the Declaration read it appeared that it was that he should never implead him upon the said obligation so that if the Plaintiff brings an Action upon the obligation the Defendant here may have an Action upon the Case against him Also it was non implacitabit and this shall be taken indefinitely quod nunquam implacitabit and therefore the Iudgement was affirmed for otherwise the Plaintiff shall both take advantage of this promise and of the bond also and here he hath in a manner forsaken the benefit of his bond and hath betaken himselfe to the benefit of this Assumpsit By Jones and Whitlock Iustices if A. be bound to me and I enter into bond to him that I will not sue this Obligation I cannot sue him upon the first Obligation without forfeiture of my bond and by Doderidge if an Obligation be forfeited and I say to the Obliger do not sue the Obligor or do not implead him an Action upon the case lies against me The same Term in the same Court. Arnold versus Dichton IN an Action upon the Case and Non-Assumpsit pleaded it was found for the Plaintiff and Noy mooved in arrest of Iudgement that there was no consideration to maintain this Action the Case being thus Arnold having married the Daughter of the Defendents Testator the Testator promised to give him 40 l. and meat â—nd drink for a year and a Featherbed and Bolster and afterwards the Testator in consideration that the Plaintiff would Assumpsit forbear to sue him all his life for it promised that he should have as good a portion at his death as any of his children and the Plaintiff declares that he gave to one Tho. P. one of his Sons 200 l. and that he left him at the time of his death but 30 l. but when he gave to Tho. P. the 200 l. appeares not peradventure it might be in his life time and this promise doth not extend to that which he had given before as if a man be bound to keep a Goale and that no prisoner shall escape this only extends to a future keeping and future escapes and not to other escapes which were before True it is that sometimes the Law will alter the sense as in the Case of 32. H. 6. where a man is bound that his Feoffees c. And at another day Doderidge said that the first promise was but an inducement to the second and the Defendant hath pleaded Non Assumpsit to the last promise and then comes the Plaintiff and shews that he gave to such a one 200 l. and doth not shew when this was given and this may be before the promise and therefore I conceive the Declaration is not good Jones agreed that the Declaration is not good for admit that in this case he had given to all his children but one great portions before the said promise and had given a small portion to one after the promise the Plaintiff now shall have but according to the said promise and it is alledged here that he gave to such a one 200 l. which may be before the promise and therefore the breach not well laid Whitlock contra and that the Plaintiff shall have according to the best gift in this case whether it were before or after the promise and that upon the intention of the promise for the intention is that the Plaintiff should have as good a marriage or portion with his Daughter as any other of his children should have But by Doderidge this construction cannot be made without offering violence to the words for then daret should be for dedisset and for any thing which appeareth he had a portion before and this was but a superaddition Jones put this case I am bound to enfeoff J. S. of so much Land as I will enfeoff J. D. this extends not to a Feoffment which I have made to J. D. before but only to a Feoffment which I shall make to him afterwards which was not denied by Whitlock and it was adjourned The same Term in the same Court. Barker versus Ringrose BArker brought an Action upon the Case against Ringrose and declared that whereas he was of good fame and exercised the Trade of a Wool-winder the Defendant spake these scandalous words of him that he was a Words Thou art a bankrupt Rogue Bankrupt Rogue and it was moved in arrest of Iudgement that those words were not actionable for the words themselves are not actionable but as they concern an Office or Trade c. and it appeareth by the Statute of 27. E. 3 that a Wool-winder is not any Trade but is but in the nature of a Porter so that the Plaintiff is not defamed in his function because he hath not any also it is not averred that he was a Wool-winder at the time of the words speaking Jones Justice If one saith of a Wool-winder that he is a false Wool-winder action upon the Case lieth and it was demanded by the Court A Wool-winder wâ—at he is what a Wool-winder was and it was answered that in the Countrey he is taken to be a Wool-winder that makes up the fleece and takes the dirt out of it and a Wool-winder in London opens the fleeces and makes them more curiously up and in London they belong to the Mayn of the staple Doderidge If one saith of a Sher-man that he is a Bankrupt Action lyes and so it hath been adjudged of a Shoo-maker and note that if one saith of any man who by his Trade may become a Bankrupt within the In what case to call a man Bankrupt is actionable Statutes that he is a Bankrupt an Action lies as of a Taylor Fuller c. And the Court seemed to incline that in this case being spoken of a Wool-winder in London the Action lies But Mich. 3. Car. the Case being moved again the Court was of opinion that the Action could not lye and would not give
should be an exchaÌ„ge between them of the said Mannors because the Mannor of Gadmaston was the better Stroud covenanted with the Father and the Son to pay 1200 l. to the Father for the Demesnes of the said Mannor and Advowson and that at Michaelmas next insuing there should be a mutuall entry into the said Mannors and that in the mean time either of them should take the profits of their own MaÌ„nors and that they should deliver each to other their evidences and that Assurances should be made as Councel should advise the Plaintiff declare that they had performed all the Covenants which were to be performed on their part and that the Defendant had not paid the 1200 l. and that thereupon this action of Covenant was brought The Defendant protestando that the Plaintiff had performed the Covenants and had not produced their edidences c. for Plea saith that the Plaintiff after Michaelmas bargained and sold the Mannor of Gadmaston to J. S. and his Heirs upon which the Plaintiff demurs and he conceived that notwithstanding the sale after Mich. yet an action of Covenant lies for the 1200 l. but otherwise it had been if he had sold it before Mich. But it hath been objected that the money by the Covenant is to be payd pro the Mannor and therfore because the Defendant cannot have the Mannor he shall 〈◊〉 pâ—y the Money and for this 9. E. 4. 20. and 24. E. 3. 21. have been cited that pro implies a condition as pro servitio pro maritagio but these Cases do not resemble this case in reason because the fact to be done here rests upon an indiffinite time and the Defendant is to do the first Act the Defendant is bound to a certain time for the doing of this Act. For the first it is agreed that the Defendant shall pay 1200 l. and the Plaintiff agrees to make Assurances for this Mannor and that the Assurances should be made as Councel should devise and I conceive that the Defendant ought to procure the Councel to devise for mutuall Assurances ought to be made and either party ought to appoint what Assurances he would have and the one ought not to be a Carver to the other neither can one know what councel the other will have and upon this reason is the case 9. E. 4. 3. 4. and Plow 15. b. the Case of the Bell it shall be weighed by him who is to have the profit peradventure if it were in case of an Obligation to perform covenants there he ought to procure the Counsel for saving the penalty of the obligation but it is otherwise here in case of a Covenant Co. lib. 5. 22. b. 18. E. 3. 27. and 4. E. 3. 29. If a man be bound to be ready to levy a Fine such a day yet the other ought to bring the Writ of Covenant against him before that day for otherwise he cannot levy a fine But now the Law is altered for now fines are levied Writs of Covenant are sued out afterwards 17. E. 4. 2 per Pigot If I am bound to you in 20 l. to enfeoff you at such a day of such Land if you please to take the Feoffment you are bound to let me know your pleasure and here the Assurance is for the benefit of the Defendant and he cited Co. lib. 5. 23. and 7. E. 4. 13. 2. For the time this Assurance ought to be devised by Councel before Mich. or otherwise the Plaintiff shall be enforced to keep his Mannor all his life and shall be hindred of the sale of it for payment of his debts or other necessaries whatsoever And 17. E. 3. 1. liking ought to be shown in convenient time And it appears by the Articles that the time intended was before Michaelmas for every thing to be done by the Articles was to be done before Michaelmas Hill 37. Eliz. Rot. 99. B. R. between Mills and Parsons A man covenanted in consideration of 42 l. rent to be granted to him payable at Mich. and Lady day yearly to levy a fine of a Mannor to the use of c. and the assurance of the Rent is not made before Michaelmas and it was resolved that the Covenant was not performed for the grant of the Rent ought to be before Mich. for otherwise he could not have the benefit intended and cited also Dyer 347. and 20 Eliz. Dyer 361. and in this case there could be no execution of other Articles if the Councel did not devise them before Mich. But it hath been objected that the Plaintiff have not fully shown the performance of the Covenants of their part but only by implication albeit they have performed and they have not averred that the Defendant hath not devised Answ To which I answer that this is good enough but where I covenant to do an act upon a future contingent act to be done by another there I ougt to show it particularly but otherwise in this Case and this is for the benefit of the Defendant and therefore he ought to shew it and to this purpose is 3. E. 3 Fitz. Det. 157. and 18 E. 3. 4. c. Jones Iustice Suppose the Defendant had demanded the assurance after Mich and before the sale what shall be done Noy nothing can be done after Michaelmas and it was adjourned The same Term in the same Court. Sanders and others versus Meryton IN an Action of Covenant the case was this Amongst other Covenants in a certain Indenture made between Sanders and others to the Lessees and his two Lessors the Lessors covenant to discharge them of all Incumbrances done by them or any other person and the Plaintiff assign for breach that one of the Lessors had made a Lease and thereupon they brought this Action And Goldsmith moved in arrest of Iudgement that the breach was not well layd because it is onely layd to be done by one of them and the Covenant is to discharge them of incumbrances done by them which shall be intended joynt incumbrances Doderidge Iustice the Covenant goes aswell to Incumbrances done severally as joyntly for it is of all incumbrances done by them or any other person and so was the opinion of the other Iustices and therefore the exception was over-ruled The same Term in the same Court. Dickar versus Moland IN Replevin the case was thus A man made a Feoffment to the use of himselfe for life the remainder to his Son in taile which remainder over to the Defendant made conusance as Bayliff to the Son for 4 s. Rent due to him before the sayd time in which c. to wit 1. Jan. 18. Jac. which time was before the death of the Feoffor whereupon it was moved for the Plaintiff that the Avowry could not be good and Roll argued for the Defendant that it is good enough for the Ante predictum tempus quo c. is good enough and the scilicet is voyd for by this it appears that the Rent is due to
another 20. H. 6. 15. And a scilicet is but an Exposition of that which is once before and it shall not destroy the precedent matter but if it be contrary to it it is voyd Co. lib. 5. Knights case A scilicet shall not make an alteration of that which went before 15. Jac. B. R. Desmond and Iohnsons Case In a Trover and Conversion the Plaintiffe declared that he was possessed of the said goods 1 Jan. 15. Jac. and that Postea scil the first day of May hee in the yeare aforesaid lost them and that they came to the hands of the Defendant and upon issue joyned it was found for the Plaintiffe and this was moved in arrest of Judgement and by the Court the scil was agreed to be void and the Postea good and the like case was 17. Jac. in Debt The second Question is a man makes Conusance for Rent for him in remainder in taile and does not alledge the precise time when the Lessee for life died but onely that he died and I conceive that it is well enough 1. Because an Avowry which is in lieu of an action is a reall action and in reall actions no precise day need to be alledged 2. Because he avows for 4 s. rent due and the arreare to the remainder which implies that the Lessee for life is dead See 14. Eliz. Dyer The case of a person in one Arundalls case a man was Lessee for ninty years if the Lady Morley should so long live in an action brought by him as Lessee for years in his Declaration he did not averre that the Lady Morley was alive and yet awarded good Trin. 12. Jac. in Hord and Paramores case the defendant avowed as Heir of Sir John Arundell and alledged no time incertaine of the death of Sir John Arundell and yet awarded good for the reason aforesaid and therefore he prayed Judgment for the Avowant The same Terme in the same Court. Jenkin versus Vivian IN trespas Jermy for the Plaintiff took some exceptions to the Plea of the Intr. Hill 1. Car. Rot. 331. Defendant 1. That the Defendant claim common in Trigemore Moore ratione Vicinagii and doth not say a tempore cujus contrarium memoria hominum non existit 2. The Defendant alledgeth that he and all his Occupiers of Down-close had used to have common in the said Tridgemore Moore c. whereas he ought to have shown what estate they had in Down-close who have used to have this coÌ„mon Rol. there néed no prescriptioÌ„in this case no more then in a coÌ„mon appendant which case of a coÌ„mon appendaÌ„t was agreed by the whole Court for it is mixt 6. E. 4. 55. Co. lib. Intr. 625. tit trespas For the 2. exception I agree that if it be by way of prescription then it is not good as it is alledged here but if it be by way of custome as here it is then it is good for a custome goes to Land and a Prescription to persons Hill 11. Jac. Higgs brought an Action upon the Case for erecting of a new Mill and alledged a Custome that he and all the Inhabitants c. an exception was taken to it and it was there ruled that it was good because alledged by way of custome Co. lib. 6. Gatewards case and also Mich. 14. Jac. it way be alledged by way of custom as our case is and 15. E. 4. when it is by way of discharge it may be alledged in all Occupiers Jermy for the Plaintiff It cannot be a custom here for as it is in 23. Eliz. Dyer A custom cannot extend to a particular place and this was agreed by the whole Court But there is another exception he clayms common in Tridgemore Moore for cattle levant and couchant in Down-close and does not aver that these beasts were levant and couchant upon Down-close and per totam Curiam this ought to be averred and it was also agreed that in this case he ought to have prescribed But for the exception of all occupiers it was doubted but for the other exceptions Iudgment was given for the Plaintiff The same Term in the same Court. Chambers Case IT was said in this case that in debt upon a Recognizance acknowledged in Chancery or in any other Court the Defendant cannot demand Oyer of the condition for the Recognizance is not in Court as an obligation is when debt is brought upon it But if Debt be brought upon a Recognizance acknowledged in this Court then the Defendant may demand Oyer of the Recognizance The same Term in the same Court Harison versus Errington IN Error to reverse an Inditement of rescous and Riot taken in the County Palatine of Durham Bankes assigned the Errors whereof one was therâ— was a Warrant to three conjunctim divâ—sim to arrest the sayd Harison and two of them arrest him and therefore the Arrest was not well done for it ought to have been by one or all three and the reason is because it is a ministeriall act otherwise if it had been a judiciall act 14. H. 4. 34. 2. The Inditement of Riot was against three and the Iury found only one of them guilty of the â—â—â—ot this is a voyd verdict for one alone cannot make a riot like to the case in 11. H. 4. 2. Conspiracy against two and only one of them is found guilty it is voyd for one alone cannot conspire And at another day in the same Term Noy took other exceptions 1. Because the Inditement is Jurator pro Domino Rege presentant c. and doth not say that 12. Iurors presentant and peradventure but 11. did present 2. The names of the Iurors ought to have been certified for peradventure they are not probe legales homines but Villains and Outlawes 15. H. 4. 41. 3. It is sound that Rolson the Sheriff by vertue of a Writ directed to him came c. and upon this rescous was made by Harrison c. and it doth not appear what manner of Writ it was scilicet Elegit Capias ad satisfaciend on c. and if there were no Writ there can be no rescous and albeit he had a Writ yet if execution were done by vertue of another Writ which he had the Party may disobey it as if upon an habere facias seisinam the Sheriff makes a Warrant as upon a Capias the party is not bound to obey the Bayliffe if hee bee not a Bayliffe knowne but in case it appeares they were only Bayliffs pro hac Vice Nota that an Inditement before Coronâ—rs which found that the Earl of B. was felo de se was quasht because it did not appear that it was per sacramentum probor legal hominum And in the case of Sarum this Term an Inditement was quasht for the same cause The same Term in the same Court. Rochester versus Rickhouse IN a writ of Error to reverse a Judgement given in Ejectione firmae in Newcastle Banks assigned these errors 1. The Plaintiffe declares of
there ought to be a dislike of the Father also and in the Declaration it is also said that she dis-agreed Doderidge agreed with Jones that â—he Declaration is not good and that it is not warranted by the Covenant and that the breach is not well assigned The case is grounded upon the second covenant which consists upon a contingency which contingency is if there happen any discord between the Father and the Son c. the words are joynt and all ought to disagree True it is that in some cases a conjunctive shall be taken for a disjunctive but this is according to the matter and circumstances of the fact but in our case it shall not be taken disjunctively If the Father the Son and the Wife had disagreed then it is cleer that an Action of covenant lies but this is casus omissus and no provision for it Also it is only alledged in the Declaration that she disagreed whereas a mutuall disagreement between all ought to be alledged and therefore Judgement was given Quod quaerens mil. capiat per bellam But all agreed that the Wife might have boarded with Tooker the Father if she would but her new Husband could not AT thowe Sergeant took divers exceptions to an Inditement of forcible entry upon the Stat. of 8. H. 6. against Ployden and others for expelling one Syms from his Copi-hold and the principall exception was because disseisivit was not in the Inditement and in truth it cannot for albeit the Stat. of 21. Jac. cap. 15. gives power to Iudges and Iustices of Peace to give restitution of possession to Tenants for yeares and Copy-holders in which there shal be an entry or detainer by force yet the Stat. does not give an Inditement of forcible entry of copy-hold Noy a Copy-holder shal now have an Iditement of forcible entry but disseisivit shal not be in it for no Iury will find that because it is not possible because a Copy-holder hath no Frée-hold and yet a Copy-holder shall have a Plaint in nature of an Assize against a stranger but not against the Lord And at last the opinion of the Court was that the Inditement was good UPon a Capias directed to the Sheriff of London to take the body of J. S. the Capias was returnable die Jovis which was the day of All-souls and thereupon the Sheriff took the party but he returned that because the return of the Writ was upon a day that was not Dies Juridicus he suffered the party to go at large And the return was holden insufficient for by Doderidge the Writ was good and the taking and detaining of the party by vertue thereof was lawfull but yet he could not have the party there at the sayd day and therefore the Sheriff was compelled to bring the party into Court which the same day he did accordingly The same Term in the same Court A Man granted a Rent charge of 12 l. to one of his Sons out of the Mannor of D. by Déed and died the Grantée lost his Deed the Land is extended to I. D. by vertue of a Recognizance acknowledged by the eldest Son of the Grantor the Grantée sue for his Annuity before the Councell of York to be relieved in equity for that in respect of the losse of the Déed he could not have remedy at the common-Law and J. D. the Conuzée obtained a prohibition out of this Court upon this surmize that although the Councel of York should make a Decree that he should pay the said Annuity yet it should be no discharge for so much against the Conuzor because their Decrée was no legall eviction Now came Smith of the Temple and prayed a Precedendo for the Grantée to the Councel of York and the opinion of the whole Court was that a Decrée there being no legall eviction shall not be a discharge for so much against the Conuzor Doderidge the Grantée of the Rent-charge having now lost his Déed can have no remedy in equity for in this case Equitas sequitur legem and of the same opinion were Jones and Whitlock but by Doderidge which was not denied if the Grantee had lost the Deed by a casuall losse as by firâ— c. in such a case he shall have remedy in equity and he sayd that in the beginning of King James when Egerton was Lord Chancellor there was such a Case in Chancery A Grantee of a rent-seck had seisen of it so that he might have an assize and he devised it to J. S. the Devisée sued in Chancery to have his Rent and seizen of it and he could have no remedy for it in Chancery And this was one Malleryes case The same Term in the same Court ONe Hebborne was indited for stopping a way c. and it was mooved that the inditement was insufficient because it is not layd that it was communis via but only that it was a way to the Church and per Curiam it was good enough and by Jones Iustice the Inditement is good enough although there wants vi armis because he who is supposed to stop the way is owner of the Land The same Term in the same Court AN Action upon the Case upon a promise was brought in the Town of Northampton and the Consideration alledged was that if the Defendant here in the Writ of Errour would discharge Bagnot of Execution c. that then the Plaintiff here in this Writ of Errour promised to pay him eleven pounds and there the Defendant pleaded quod exoneravit illum de Executione relaxavit And Bolstred for the Plaintiffe moved this for Errours that the Plaintiffe in the inferiour Court did not shew by what manner of release it was nor that it was by writing for this being the Consideration upon which the Action is grounded ought to be put in certain Mich. 15. Iac. Staple and King Execution of a consideration ought to be shown 35 H. 6. 19. a discharge ought to be shown in certain 22 E. 4. 43. the Lord Lisles Case and Mich. 16. Iac. in this Court Liverel and Rivets Case which was entred Trin. 16. Iac. Rot. 32â— in an Action upon the Case upon a promise upon issue joyned it was found for the Plaintiffe and it was moved in arrest of Judgement because the Consideration was that the Plaintiffe should discharge one Ogle and he declares that he did discharge him and thereupon he brought this Action and because he declared but generally quod exoneravit the Judgement for that very cause was stayed and 36 Eliz. one covenanted to make an assurance and pleaded generally that he had assured and resolved that it was not good and in Rosse and Harvies Case this Term which was entred Trin. 2 Car. Rot. 1408. In Covenant the Defendant covenanted to give security the Defendant pleaded that he offered security and resolved that it was not good per que c. Jermy for the Defendant that the plea is good enough for a Release by Peroll is sufficient I
my Furze And after Verdict for the Plaintiff it was moved in Arrest of Iudgment thâ—t these words were not actionable But it wâ—s said on the other side that to say thou art a Theef is actionable and the subsequent words are in the Copulative and enure as a confirmation of the precedent words But if it had been for Thou hast stoln my Furze this had been â—n explanation of the precedent words and therfore in that case the action would not have been And it was answered and resolved by the Court that the word and in some cases shall be taken as the word for and so it shall be in this case and therfore adjudged that the action lies Mich. 22. Jac. In the Star Chamber TWo men came Ore tenus into the Star Chamber for stealing of the Kings Deer and were fined a 100 l. a peece and three years Imprisonment unlesse it would please he King to release them sooner and before Fines in the Star Chamber for killing the Kings Deer they should be released of their Imprisonment to be bound to their good behaviour And it was observed by the Attorney-generall that the offence was the greater in regard that the King had but one darling pleasure and yet they would offend him in that And it was said by some of the Court that it was a great folly and madnesse in the Defendants to hazard themselves in such a manner for a thing of so small value as a Deer was The Lord President said that Mr. Attorney was the best Keeper the King had of his Parks in regard he brings the Offenders into this Court to be punished The Lord Keeper said that the Defendants in such a case being brought Ore tenus â—re not allowed to speak by their Counsell and yet these men have had their Counsell but it was Peters Counsellors meaning their sorrow and contrition at the Bar which much moved him so that if his vete might prevail he would set but 20 l. fine upon them In the same Term in the same Court THe Lord Morley and Sir Richard Mollineax being beyond Sea their Sollicitor in their names exhibited a scandalous Bill in the Star Chamber against the Bishop of Chichister and after their return this continued so for three years without any disclaiming therof by them and now the matter being questioned they said that it was not done with their privity But because they had not disclaimed the Fact before they were fined a 100 l. to the King and a 100 l. to the Bishop for Damages and the Bill was to be taken of the File The same Term in the same Court. Lewes Plaintiff versus Jeoffreys and others Defendants THe Plaintiffs Brother had been a Suitor to a woman which matter proceeded to a Contract and afterwards the Defendant Jeoffreys hapned to be a Suitor to her also wherupon being Rivalls they fell out and the Plaintiffs Brother called the Defendant Jackanapes which was taken very ill by the Defendant being a Iustice of Peace in the County of Worcester and the other being but a mean man in respect of him so that he told him that if he would meet him on Horse-back he would fight with him afterwards one of the Sons of the Defendant went to the said Brother being upon his own Land and gave him a mortall wound wherupon a friend on the behalf of the party wounded came to the Defendant being a Iustice of Peace and brought him a peece of his Skull to the end that his Son should be forth coming at the next Assises declaring to him the danger of death the man was in wherupon the Defendant took a Recognisance of 10 l. of his Son and of his sureties of 5 l. a peece to answer this at the next Assise And in the mean time the party died of the said wound and the Son did not appear at the Assises and the Iudges of Assise fined the Defendant 100 l. for taking such slender security for the appearance of his Son which was paid and yet notwithstanding the Defendant was fined 200 l. more for this offence and also 200 l. for his misdemeanor in his challenge albeit the Defendant A Challenge fined in the Star Chamber was of the age of 63 years and so it seems that he intended to fight with him But he being a Iustice of Peace who is Conservator pacis he did against his oath to do any thing which may tend to the breach of the Peace And for the other matter it was said by the Court that the Defendant being Father to the offendor it had been better for him to have referred this matter to another Iustice of Peace or at least to have had the assistance of another And the party being in such great danger of death his son was not bailable Hillary 1. Car. In the Kings Bench. Bowyer versus Rivet THe case was thus Sir William Bowyer 12. Jac. recovered against Sir Thomas Rivet in an Action of debt Sir William made his wife his Exceutrix and died the wife made Bowyer her Executor and died then Sir Thomas Rivet died Bowyer brought a Scire facias to have execution upon the Iugment against Sir Thomas Rivet the younger as Heir apparant to the Land to him descended from Sir Thomas Rivet who pleaded Riens per descent from Sir Thomas Rivet and it was found that he had two acres and a half of Land by discent and it was prayed by Goldsmith that Iudgment might be given against Sir Thomas Rivet generally for he said that this false Plea shall charge him and his own Lands and cited Plowden 440. where in debt against an Heir upon his false Plea his own Lands shall become liable to the debt and Co. lib. 3. 11. b. Sir William Herberts case where the case was upon a Scire facias against the Heir as it is in this case But on the other part it was argued by Richardson the Kings Serjeant Banks and all the Iustices that Execution shall be awarded in no other manner against the Heir then it should be against his Ancestor or other Purchasor to wit of a Moyety of that which he had by discent for as much as in this case he cannot be to this purpose charged as Heir but he ought to be charged as Ter-tenant and as a Purchasor and a Purchasor shall never hurt himself but his false Plea And Banks argued that the Heir in this case is charged as a Purchasor and the false Plea of a Purchasor shall never charge himself 33 E. 3. Fitz. Execution 162. and 6 E 3. 15. and that in this case he is charged as Ter-tenant appears by three reasons 1. Debt will not lye against an Heir but where he is bound as Heir but in this case Execution is to be sued against him as another Ter-tenant Dyer 271. 11 E. 3. 15. and in 27 H. 6. Execution 135. and Co. lib. 3. 12. b. That in Iudgment upon Debt or Recognisance the Heir is charged and