Plaintiff SMith versus Bolles Sheriff of London Pasc 9. Jac. rotulo 1353. In case for that the name of the Sheriffs were omitted on the venire fac And for that cause one Judgement given for the said Smith was reversed by Writ of Error And for that Misprision Smith brought such Action of the Case HArris versus Adams If thou hadst had thy Right thou hadst been hanged for breaking of Paches House the words not actionable Thou art a Thief thou hast stollen the Town-beam meaning the Town of Wickham Serjeant Hutton of opinion the Action would lie STephens Attourney versus Battyn for words Thou hast cozened M. Windsor of his Fee and I will sue thee for it in the Star-chamber for that thou didst not come for Windsor Judgement for the Plaintiff Trin. 11. Jac. BRadley versus Jones Trin. 11. Jac. rotulo 3390. The Plaintiff brings his Action upon the Case for unjust vexation The Defendant had exhibited Articles against the Plaintiff to have the good Behaviour against him and took his Oath before Doctor Cary one of the Masters of the Chancery and afterwards the Defendant ceased prosecution there and obtained from the Kings Bench a Supplicavit to have the good Behaviour there And the Court was of opinon that the Action would lie because he prosecuted in the Kings Bench and not in the Chancery But the Court said that if he had prosecuted in the Chancery though the Articles had been scandalous yet no Action would have lyen for a man shall not be punished for mistaking the Law for he may be misadvised by his Counsel BRooks versus Clerk Pasch 11. Jac. rotulo 307. Action brought for these words His Son Brooks hath deceived me in a Reckoning for Wares And his Debt-book which he keepeth for Sale of Wares in his Shop is a false Debt-book and I will make him ashamed of his Calling Hubbart and Nichols against the Plaintiff and Warburton for the Plaintiff Pasch 11. Jac. rotulo 2147. Action of the Case brought for a Nusance for building the Defendants House so near the Plaintiffs that a great part of it superpends And the Plaintiff in the conveying his Title shews a Lease for years made to him if the Lessor should so long live and doth not aver the Life of the Lessor but saith that by vertue of the Demise the Plaintiff hath been and then was thereof possessed and adjudged sufficient MOrton versus Leedell Hill 10. Jac. rotulo 1783. Action of the Case for these words He meaning the Plaintiff is a lying dissembling Fellow and a mainsworn and forsworn Fellow And Judgement for the Plaintiff after divers motions THomas Attourney versus Axworth Pasch 11. Eliz. rotulo 352. Action of the Case for these words This is John Thomas his writing and he hath forged this Warrant meaning a Warrant made by Buller Sheriff of that County upon a Capias prosecuted out of the Court of Common Pleas by M. H. against the Defendant and directed to the Sheriff ROw versus Alport Mich. 11. Jac. rotulo 1527. Action upon the Case brought for suing in the Admiral Court for a thing done upon the Land and not upon the high Sea BRay versus Ham Trin. 13. Jac. rotulo 1994. Action of the Case for these words Thou art a cozening Knave and thou hast cozened me in selling false Measure in my Barley and the Countrey is bound to curse thee for selling with false Measure and I will prove it and thou hast changed my Barley which I bought of thee And the Plaintiff sets forth in his Declaration that he was Bayliff to W. C. and H. C. of certain Lands in P. for three years and during the said time had the care and selling of divers Corn and Grain growing upon the same Land and after Triall and Verdict for the Plaintiff it was moved in Arrest of Judgement that the Action would not lie but the Court were of a contrary opinion and Judgement was given for the Plaintiff BRown versus Hook Pasch 13. Jac. rotulo 234. Action of the Case for these words Brown is a good Attourney but that he will play on both sides And it was moved in Arrest of Judgement that those words would not bear an Action but the Court held they were actionable but did not give Judgement because the Plaintiff did not shew in his Declaration that the words were spoken of himself STober versus Green Mich. 11. Jac. rotulo 1â—91 Action of the Case for these words Thou didst keep and sell by false Weights and in 24. s. bestowing thy Weights were false two Ounces and thy Man will be a Witness against thee and I will prove it The Defendant pleaded that the Plaintiff occupied one Shop and kept unlawfull Weights and by such Weights sold by reason whereof he said these words Videlicet Thou didst keep and sell by unlawfull Weights and in 24. s. bestowing thy Weights were false an Ounce and three quarters and thy Man c. And traversed the words in the Declaration and it was adjudged a naughty Traverse for that the words in the Bar and justified by the Defendant are actionable AGar versus Lisle Mich. 11. Jac. rot 318. Action of Trover brought in York-shire the Defendant justifies for Toll at Darnton in Durham and traverse c. The Court doubts of his Traverse being onely for the County of York whereas it ought to be any where else generally And Hobart said the Bar was nought because in the justification no conversion was sufficiently alleadged And note that if a man doth a thing which is allowable by the Law as to distrain Cattle and impound them that is no conversion but if he work them it is a conversion AVstin versus Austin Trin. 10. Jac. rotulo 3558. In Troyer the Defendant pleads that before the time that the Plaintiff supposes the Goods to come to the Defendants hands one S. A. was possessed of the Goods and amongst other Goods sold them to the Defendant but kept them in his own hands and afterwards sold them to the Plaintiff by reason whereof the Plaintiff was possessed and afterwards looses them and they came to the Defendants hands who converts them as it was lawfull for him to do The Plaintiff demurs and it was held a naughty Bar for it amounts to a Non cul And Cook doubted whether the Court should compell the Defendant to plead Non cul or award a Writ of Injury And a Writ of Inquire was awarded ALlyns versus Sparkes al. Trin. 8. Jac. rotulo 1606 Action of the Case brought for stopping up the Plaintiffs way and the Plaintiff declares that one H. B. was seised of the Mannour of M. of which two Acres were customary Land and that the Lord of the Mannour had for himself and his customary Tenants for the said two Acres a certain high-way in by and thorow c. And that the Lord of the Mannour granted the said two
matter of form For if the Jury finde a prior grant of the Queen to the Plaintiffs Lessor although it be at another Court it is sufficient and so by consequence the day is not materiall in substance which mark But Williams Justice and the rest held the traverse to be naught for by that the Jury should be bound to finde the Copy such a day by such a Steward which ought not to be and that it was matter of substance not helped by the Statute of 18 Eliz. DArby versus Bois Hill 5. Jacobi An Ejectment brought for an House in London and upon not guilty pleaded The Jury found a speciall Verdict And the case was Tenant in tail of divers Messuages in London 7 January 44 Eliz bargains and sels the said Houses to J. S. and delivers the Deed from off the Land the 8. of January the same yeer Indentures of Covenants were made to the intent to have a perfect recovery suffered of those houses and the ninth of January after a Writ of right is sued in London for those Messuages returnable at a day to come And the tenth of January the same yeer the Tenant in tail makes livery and seisin to J. S. of one of those Houses in the name of all And the other Messuages were in Lease for yeers and the Lessees did not atturn And the question was if the Messuages passed by the bargain and sale or by the livery And it was adjudged that they passed by the bargain and sale And Yelverton took a difference between severall Conveyances both of them Executory and where one of them is executed presently as in Sir Rowland Heywoods Case where divers Lands were given granted leased bargained and sold to divers for yeers the Lessees were at election whether they would take by the bargain and sale upon the Statute of 27 H 8. or by the demise at the Common Law But otherwise it is if one be executed at first for then the other comes too late as it is in this Case for by the very delivery of the bargains and sale the Land by the custome of London passes without inrollment for London is excepted and this custome was found by the Verdict And therefore it being executed and the Conveyance being made perfect by the delivery of the Deed without any other circumstances the livery of sesin comes too late for it is made to him that had the Inheritance of the Messuage at that time And the possession executed hinders the possession executory for if a bargain and sale be made of Land and before inrollment the bargain takes a deed of the said Land this hinders the inrollment because the taking of the livery did destroy the use which passed by the bargain and sale which was granted by the Court. And another reason was given because it appeared that the intent of the parties was to have the Land passe by the bargain and sale because it was to make a perfect Tenant to the Precipe as appears by the subsequent acts as the Indentures Covenant and the bringing the Writ of Right c. All which will be made frustrate if the livery of seisin shall be effectuall and when an Act is indifferent it shall be taken most neer to the parties intents that may be if a man hath a Mannor to which an advowson is appendant and makes a Deed of the Mannor with the appurtenances And delivers the Deed but doth not make livery of seisin yet now although the Deed in it self was sufficient to passe the Advowson yet because the party did not intend to passe it in Posse but as appurtenant if the Mannor will not passe no more shall the Advowson passe alone as it was agreed 14 Eliz in Andrews Case Which mark And the whole Court gave Judgment accordingly that the Defendant who claimed under the bargain sale should enjoy the Land CHalloner versus Thomas Mich. 6. Jacobi A Writ of Error was brought upon a Judgement given in Ejectment in the Courâ— of Carmarthen and Yelverton assigned the Error because the Ejectment was brought de aquae cursu called Lothar in L. and declares upon a Lease made by D. de quidam rivulo aquae cursu And by the opinion of the whole Court the Judgement was reversed for rivulut seâ— aque cursus lye not in demand nor doth a precipe lye of it nor can livery and seisin be made of it for it cannot be given in possession but as it appears by 12 H. 7. 4. the Action ought to be of so many Acres of Land covered with water but an Ejectment will well lye by if a stang for a precipe lies of them and a woman shall be indowed of the third part of them as it is 11. E. 3. But if the Land under the water or River do not pertain to the Plaintiffe but the River onely then upon a disturbance his remedy is onely by Action upon the Case upon any diversion of it and not otherwise Which observe VVIlson versus Woddell Mich. 6. Jacobi The Grand-father of the Plaintiffe in an Ejectment being a Copy holder in fee made a surrender thereof to L Woddell in fee who surrendred it to the use of Margery I. for life who is admitted c. But L Woddell himself never was admitted The Grandfather and Father dye the Son who is Plaintiffe was admitted and enters upon the Land Margery being then in possession and the Defendant then living with her as a servant in those Tenements and this was the speciall verdict And Judgment was given for the Plaintiffe And the Court was of an opinion that the Defendant was found to be a sufficient Trespassor and Ejector though he be but a Servant to the pretended owner of the Land because the Verdict found that the Defendant did there dwell with Margery And in such case he had the true title and had made his entry might well bring his Action against Master or Servant at his election And perhaps the Master might withdraw himself that he could not be arrested And secondly it was adjudged that the surrender of J. S. of a Copy-hold is not of any effect untill J. S. be admitted Tenant And if I. S. before admittance surrender to a stranger who is admitted that that admittance is nothing worth to the estranger For J. S. had nothing himself and so he would passe nothing and the Admittance of his grantee shall not by implication be taken to be the admittance of himself for the admittance ought to be of a Tenant certainly known to the Steward and entred in a Roll by him and it was held that the right and possession remained still in him that made the surrender and that is descended to his Heir who was the Plaintiffe And they took a difference between an Heir to whom the Copy descended for he may surrender before admittance and it shall be good because he is by course of the Law foe the custome that makes him Heir
elect him See the Statute of 25 H. 8. That a Canon against Common Law confounds the Roiall Prerogative of the King or Law of God is void and Custome of the Realme cannot be taken away but by act of Parliament See 21 Ed. 4. 44. the Abbot of Saint Albones hath a Charter of the King to be discharged of Collection of tenthes granted by Parliament or Convocation The Clergy grants tythes in Convocation there is a clause in the grant that no one of them who shal be chosen to be collector shal be discharged of collection by colour or force of any Letters Patents and after they return the Abbot of St. Albones Collector who pleads his Letters Patents in discharge of Collector and resolved by the Court that the clause in the grant of tenthes doth not take away the exemption of discharge by the Letters Patents granted And it was resolved that if the Parish clark misdemene himselfe in his office or in the Church he may be sentenced for that in the Ecclesiasticall court to Excommunication but not to Deprivation And after Prohibition was granted by all the court and held also that a Prohibition lyeth as well after sentence as before Trinity 8. Jacobi Common Bench. ON was cited to appear in the Prerogative Court of Canterbury which was out of the Diocesse of Canterbury and upon that he praied Prohibition upon the Statute of 32. H. 8. Which willeth that none shall be cited to appeare out of his Diocesse without assent of the Bishop and Prohibition was granted And yet it was said that in the time of H. 8 and Reigne of Mary that the Arch Bishops of Canterbury had used to cite any man dwelling out of his Diocesse and within any Diocesse within his Province to appeare before him in the Prerogative Court and this without the assent of the Ordinary of the Diocesse But it was resolved by the Court that this was by force of the power Legantine of the Arch-Bishop that as Lynwood saith ought to be expressed in the Prohibition for the Arch-Bishop of Canterbury York Pisa and Reymes were Legati nati and others but Legates a Latere Hillary 1610. 8. Jacobi in the Common Bench. Beareblock against Reade IN an Action of Debt brought by Beareblocke against Reade Administratrix to her Husband upon a Judgement given in this Court The case was this the Plaintiffe had Judgment against the Husband and after sued him to an Vtlagary and upon that he brought a Writ of Errous and removed the Record into the Kings Bench and reversed the Judgement for the Vtlagary But the first Judgment was affirmed and then the Husband acknowledged a Statute and dyed And the Wife took out Letters of Administration and then the Statute is extended against the Wife and all the goods which shee had of the Intestates taken in execution After which Beareblock in the Kings Bench sueth a Scirefacias upon the said Judgment against the said Administratrix to have execution and shee pleads upon that the said Statute in Barre and the extent of that and that more then that shee hath nothing to satisfie and this was adjudged a good plea. And then the Plaintiffe being not satisfied he hrought an action of debt upon the said Judgment in this Court and in Barr of that the Wife pleaded all this matter in Barr as aforesaid upon which the Plaintiffe demurred in Law and the Judges seemed to incline that this was no Barr for though that the Wife hath not any means to aide her selfe or to prevent the extent of the Statute yet it seemed to them that this should not prevent the execution upon the Judgement and that the Wife might have Audita quaerela against the Connusee of the Statute and so to make the extent void It was not argued at this day but the point only opened see 3. Eliz. Dyer 7. H. 6. See Pasche 9. Jacobi the Residue Petty against Evans IN an Ejectione firme brought by the Lessee of a Copy-holder it is sufficient that the count be generall without any mention of the License if the Defendant plead not guilty then the Plaintiff ought to shew the Lycense in Evidence But if the Defendant plead specially then the Plaintiff ought to plead the License certainly in his replication and the time and place when it was made and in this case the Plaintiff replied that the copy-holder by License first then had of the Lord did demise and did not shew what estate the Lord had nor the place nor time when it was made and all the Justices agreed that it is not good For the License is traversable for if a copy-holder without License of the Lord make a Lease for yeares The lessee which enters by calour of that is a Disseisor and a Disseisor cannot maintain an Ejectione Firme and the Defendant cannot plead that the Plaintiff by license did not demise for this is a pregnant negative also it ought to appeare what estate the Lord had for he cannot give license to make a lease of longer time in the Tenancy then he hath in the signiory And for that if he be Lessee for life of a Mannor and he licenses a copi-holder to make a Lease for 21. yeares of a copy-hold and then the Lessee for life dies the license is for that determined though that the copy-holder be of Inheritance for the Inheritance of the Lord is bound by that And for that the Plaintiff replies that the copy-holder by license of the Lord first therefore had made the Lease that is not good by Coke and Walmesley expresly and though that the Defendant confesse the Replication by Implication by pleading Yet this shall not ayd the Plaintiff for that it is insufficiently pleaded which note Hillary 8. Jacobi 1610. in the Common Bench. IN action upon the case upon an Assumpsit the Plaintiff counts that when he such a day at the speciall instance and request of the Defendant lent to the Defendant the same day ten pound And that the Defendant the same day in consideration thereof assumed and promised to the Plaintiff to pay the same summ of ten pound at an other day to come And it was moved in arrest of Judgement that the consideration was too generall and for that the action not maintainable and all the Justices but Foster seemed the consideration was good but Foster it seems was in some doubt of that but Judgement was entred for the Plaintiff according to the verdict And Coke cheife Justice said that such a like action was maintained against Kercher his Chaplain as Executor of his Father and it seems for good Law Legates Case ONe Legate was committed to Newgate Prison for Arrianisme for denying of the Trinity by the high Commissioners and it was moved on the behalfe of Legate to have a habeas Corpus and it was granted and it was said by Coke cheife Justice that the Statute of 5. H. 4. Chapter 10. Inhibits Justices of peace to commit any man to
is penal Law and for that shall have strict opposition and not by equity but he saith that this rule failes as to the interest of the Common-Wealth that is when the Common-Wealth is intervenient and to the Objection that this is a thing invented after the making of the statute he answered that with the case of Saint-John 5 Coke 71. b. Which inhibits Hand-Guns and it is there adjudged that Dags and Stone-Bowes which are of later Invention shall be within the statute for they are their invention and their form of the things which are inhibited and so Vernons case 4 Coke if he to whose use infeoffs his Son and Heir this shall be taken within the statute of Marlebridge and yet he to whose use cannot make a Feoffment nor uses were not known till many yeares after the making of this statute and Baker furthers the Meale for the use of man and for that he may sell it in Bread without any punishment and then he sayd it was the Office of a good Judge to suppresse the mischeife and to advance the remedy as the Lord Anderson sayth in Brownes Case 3. Coke And so he concluded and prayed Judgment for the King and the Informer And note that this case was solemnly argued by all the Justices of this Court and it was adjudged that this was ingrossing within the statute by Warburton Foster and Winch. But the Lord Coke agrued the contrary Walmesley being absent that Tearme The same question was argued the same Tearme in the Exchequer upon an Information there exhibited by one Collins an Informer and it was there argued by Hitchcocke of Lincolnes Inne for the Defendant and he argued that the Starch was not the same thing which was bought no more then if it had been made in Bread and he cyted the Booke of 5 H. 7. 15. 16. Where it is agreed that if a man takes Barley and makes Malt of that that he from whom it was taken could not take the Malt for that that there the thing is altered in another nature and he intended that the Starch is not the same in number nor quality but he agreed that if wheat be only grownd that this notwithstanding is within the Statute but if it be made into Bread then sold it is not within the Statute for then it is another Body and other things added to it and the forme is also altered and the forme gives the being and the name and if Water be turned into Wine it is no Water though it be by miracle so if a Parson be made Bishop he is not the same person for Honours change Manners and this is his reason that the Writ shall abate for it is newly created as of nothing 7 H. 6. 15. 22 R. 2. Bre. 93. b. 2 R. 3. 20. Also the Statute of 21 H. 8. Which provides that the party from whom any Goods are stolne after that the Felon is indicted shall have restitution of the same goods but if Corn be stolne and converted into Meale the Owner shall not have restitution for it is not the same which was stolne but if Plate be stolne and altered in other forme yet the owner shall have restitution of that as he sayd which was adjudged for the King 40. Eliz. But where restitution upon a Writ of Errour where the Judgment is the same thing shall be restored that if yet tearm be sold by fieri facias and after the Judgment is reversed by Errour he shall not be restored to the Tearm but shall have the money for which it is sold also he saith it is not the same in number and substance for the 1 thing was corrupt and the corruption of that was the beginning of the new and the Wheate is the matter of which and also Water is and fire and the heat of the Sun and after that it is made in Starch it will not be dissolved and made into victuall no more then Bread and the worst Wheat will make the best starch also he intended that it is not in the same condition nor similitude also he objected that Ligamen which is the word contained in the Count is no Latine word at all but Legumen is the latine word and that is latine for Pulse and that not being any latine word the english which is added will not help it and so he concluded and prayed Judgment for the Defendant Dodridge the Kings Serjeant for the King and for the Informer argued that the starch is the same Numero in number quality and substance not in likenesse and that the statute is no law of explanation but of difinition of three severalls which make dearth without want and the fore-stalling prevented the punishment of Law before the making of this Statute but now these are in severall degrees that is forestalling is commonly ingrossing and regrating and Ingrosser is alwayes Regrator and that the Defendant in this case is Ingrosser of Victualls that is victualls which is the staffe of mans health and the want of that is more greivous then the want of all other things and the dearth of that is the most pinching dearth which may be and the gain of that is a base gain and they which basely buy of Merchants that they may straightways sell not any thing unless they may get great gains or save in the measure they are called Regrators as Grators of the faces of the People and if this Statute had been executed this had prevented many Dearths and to the objection that it is a penall Law and for that shall be taken strictly and there is a generall rule and as true as it is generall but it is true if it be not within the exception that is if publick good doth not intervene and here it concerns the Common-VVealth as much as the lives of men and many other penall Statutes have been taken by Equity as the Statute which makes that to be petty Treason if the Servant kill his Master and in the 19 H. 6. It is agreed that if the Servant after he is departed out of the service of his Master kill him upon any malice conceived during the time that he was in his Service this shall be taken within the Equity of the statute and so the statute of 33 H. 8. Was made precisely against Hand-Guns and Daggs are taken to be within the Equity of that notwithstanding that they were invented after the making of that Statute and were not known at the time of the making of that for they are the same in intention as it is resolved in Streches Case in Coke 71. b. And to the words of the Statute who shall sell the same it intends that starch is the same in all but only in similitude for a thing which is of the same similitude is not the same but like the same for no like is the same Also he intended that it is the same both in number and form and he agreed that forme gave the being for that is
awarded good because it comes in Lieu of Goods which they had as Executors and shall be Assets in their hands as the Goods should have been and for that it is well brought in the Detinet only And they said that in the principall case it shall be mischeivous if the Action shall be brought in the Debet and Detinet for it may be the Rent reserved is of more worth then the Profits of the Land will amount unto and that the Executors or Administrators have no other Assets now shall be the Executor or Administrator be charged with his own proper Goods which shall be mischeivous and the case of 10. H. 7. 5. and 6. that is direct in the point was often times cited and all these three things which were of councell with the Defendant informed the Court that they were of Councell with Hargrave when the Judgement given in the Kings Bench was reversed for Error in this very point and for this cause because the Action was brought in the Debet and Detinet where it should be in the Detinet only And so they praied that the Judgement should be hindered But by the whole Court except Yelverton And so it was adjudged that the Action was well brought as it is and especially for the reasons given in Hargraves Case 5. Coke 31. And to that which hath been said by Yelverton Justice that in all cases where Executors are charged by the name of Executors or Administrators that there the Action shall be against them in the Detinet only Flemming cheife Justice answered that â—rue it is in all personall things where they are named as Executors Action shall be in the Detinet But as it is an Action of Debt for Rent reserved upon a Chattell reall and an Executor is as an Assignee in Law and so charged as privy in Estate and not meerely as Executor and if he have no more Assets then the Rent which he is to pay he may plead nothing in his hands against all the World and to that that hath been said that the Executor hath been charged of his own Goods If the profits be not more then the Rent or the Rent more then the profits to this he said that in this case where the Executor hath the Tearme and hath not any other Assets that they may wave this Tearme And in Action of Debt brought against him for the Rent may plead to the occupation and that recover The reason of the diversity between this case and the case of 28. H. 8. Dyer 14. is plain for in an Action of Debt against the Termor himselfe Non habuit nec occupavit is no Plea for there was a contract between them and for this privity of contract is the Lessee charged though he did not occupy But in the case of an Executor the privity of the contract is gone and so may be a difference But yet it seemes if he have Assets sufficient to pay the Rent he cannot wave it And to the case 14. H. 4. 28. that hath been cited that doth speake nothing how the Action should be brought And the Justices have seen the record of Hargraves case and the Reversall of that And they said the same error which was in Hargraves case is in this case and for that bring your Writ of Error in the Exchequer chamber if you will for we so adjudge And then it was moved that the Lord Rich was Tenant in Tayle of part of the reversion and Tenant in Fee-simple of the other part and so it seemes that he ought to have two Actions because he hath as two reversions But it was resolved by all the Court that if a man have a reversion of part in Fee-simple and of the other part in tayl and makes a Lease for yeares rendring a Rent he shall have but one Action both being in the hands of one But otherwise it had been if the reversion had been in severall hands they should not Joyne in Debt and for that Fenner put this case two Coparceners are of a reversion and they make partition now the Rent is apportioned and they shall sever in Debt But if one dies without Issue and the part discends to the other Parcener now he shall have but one Action of Debt againe and so it is if a man makes a Lease of two Acres rendring Rent and after grants the reversion of one Acre to J. S. and of the other Acre to J. N. now they shall sever in Debt for this Rent but if J. S. and J. N. Grant their reversions againe to the first Lessor he shall have but one Action of Debt and so the exception dissalowed by all the Court and the Judgement given for the Plaintiff according to the Verdict Yates and Rolles THe case was this J. S. covenants by Indenture with J. N. I. D. and A. B. to enter Bond to pay ten pound to J. N. and J. N. dies and his Administrator brings a Writ of covenant and the question was insomuch that this ten pound was to be paid to J. N. if his Administrator shall have Action of Covenant or if the Action shall survive to the other two and it was moved by Stephens that the Action shall be well brought by the Administrator for this shall be taken as a severall covenant and this now is in nature of a Debt and enures only to him which shall have it also the payment of the money which is the effect of the covenant shall be to him only Ergo the Damages for the not performing of it shall goe to him also and by consequence to his Administrator But it was adjudged insomuch that this was a joynt covenant that this shall survive to the others and not well brought by the Administrator So also resolved that insomuch that the words are that he would enter Bond and doth not say to whom that this shall be intended to the Covenantees and though that the Solvendo is but to one of them yet that is very good as an Obligation made to three Solvendum to one of them is good by Fenner and by Williams Obligation to two Solvendum ten pound to one and ten pound to another both ought to joyne in Debt upon this Obligation and Judgement for the Defendant Sammer and Force THe Case was this The Lord of a Copy-hold Mannor where Copy holders are for life grants Rent-charge out of all the Mannor one Copy-hold Escheats the Lord grants that againe by Copy the question was If the Grantee shall hold it charged or not and by the whole Court but Fenner he shall not hold it charged because he comes in above the Grant that is By the custome the same Law of Statutes Recognizances or Dowers but the 10. of Eliz. Dyer 270. by the whole Court that he shall hold it charged but this hath been denyed for Law in a Case in the Common Bench between Swaine and Becket which see Trinity 5. Jacobi But to Coke Justice it seemed that
and fees c. And further granted the Herbage and Paunage and have not found that this was granted by the same Letters Patents and then if this be not granted by the same Letters Patents then there is not any grant of this to the Earle of Rutland because there is no receitall of the Patent by which the Herbage and Paunage was granted to Markham The fourth errour was that they have erred in point of Law and to that the point is but this the King grants the Herbage and Paunage of a Park to one for life and after reciting that grant and that the Patentee is alive grants that to another and doth not say when that shall begin and it seems to them that the Argument for the Plaintiffes in the Writ of errour that this was a voyd grant and so the Judgment erronious but I have not the Report of the Arguments of the Conncellors at the Barr but only of the Judges which moved two other errours in the case not moved by the councell at the Barr and Crooke Justice rehearsed the case as before And to the first errour he conceived that this is no errour and that for two reasons First He tooke a difference betweene a thing which abates the Writ by Plea as if a man brings an Assise against another and mesne between verdict and Judgment the Plaintiff dies this matter shall abate the Writ without Plea and for that if Judgment be given upon such verdict the Judgment is erronious but in our case an entry doth not abate the Writ without pleading that and now as this case is this cannot be pleaded being between Verdict and Judgment and for that it shall not be assigned for Errour see 19 Assise 8 Where this difference is taken and agreed Secondly Admit that this entry might have abated the Writ in Facto without Plea yet there is no such entry alledged which might abate the Writ in Facto without Plea for the entry is alledged that the Earl of Rutland entred to hunt and kild a Buck and took a shoulder of that for his fee and it seems that this is no such entry that shall abate the writ for he hath now entred to another purpose to hunt the which he could not do but the entry ought to have been alledged that he entred to keep for in every entry the intent of the Entry is to be regarded and to this purpose he cited the case of Assise of Freshforce Com. 92. and 93. Where entring into the Seller hanging the Assise of that to see the Antiquity of the House there was no Entry to abate the Writ and the case of 26 Assise 42. where the Disseisee hanging the Assise comes and sets his foot upon the Land but takes no profits and adjudged that he should recover notwithstanding so in this case the intent is not shewed that is that he entred to keep possession but to hunt nor was it such entry which should abate the writ and to that which is sayd that he kild a Buck and took the shoulder of that for his fee this doth not help for if that had been a Buck which he might to have kild by vertue of his Office he ought to have shewed his warrant for otherwise a Parker cannot kill a Buck if not that it be for his fee and then he shall have the Buck and not a shoulder only also it is alledged that he took a shoulder and doth not say the best shoulder or the right shoulder and this ought to be shewed in certain And so for he first Errour he couceived that this is no cause to reverse the Judgment and to the challenge he sayd that he would speake to that at the last and for that he now spake to the errours supposed in the grant And first to Markhams Grant where the Jury found the Queen Eliz. granted to him the keeping of the Park and by the same Letters Patents grant the fees and Wages and further granted by her Letters Patents and doth not say Easdem the Herbage and Paunage it seems to him that this is very well for two reasons First insomuch that there is a copulative which is this word Et and also a Relative which is this word Vlterius and this word conjoynes the matter precedent with the subsequent and the word Vlterius hath necessary relation to the same Letters Patents and so Ex precedentibus subsequentibus the Iury hath well found the matter Secondly these words are supplied in the second Patent for there the Jury have found that the Queene hath granted that to Marham by the same Letters Patents and so for these two reasons he concluded that this is no Error to reverse the Judgement And to the Patent made to the Earle of Rutland it seemes to him also that this is very good and all that he said in effect was that in construction of the Patents of the King such exposition is to be made that if any reasonable meaning may be conceived they shall not be defeated but shall stand good And so he said in our case that it is necessarily intended that this was also to begin after the Estate of Markham determined and for that good And he said that a man ought not to make a curious and captious interpretation of the Kings Patents for Talis Interpretatio injure Reprobatur And to the challenge that seemed unto him a principall challenge and this not being allowed where it ought to be allowed this is an error as it is said 8. of Assises 23. and for this error it seemes to him that the Judgement shall be reversed and to that he said he relied much upon the book of 11 H. 4. 25. which takes a difference between Debt and Trespasse for battery for the booke saith that a man may demand his Debt without giving occasion of any malice But Battery is an evill Action and there the book is resolved that it shall be a principall challenge and so he saith in Trespasse this being with force and Armes that c. And in 8. H. 5. in a Assise the Tenant challenges the array because he had an Action of Trespasse hanging against the Sheriff And there the array was affirmed because it appeares that the Defendant had brought this Action by Covin against the Sheriff which case proves as he said that if there be not any Covin this is a principall challenge and 38 H. 6. 7. accordingly and the case 28. Assise 11. where the Defendant in Assise challenged a Juror because he had an Action of Trespasse hanging against him and was outed by award and in 21. Ed. 4. 12. it is said where there is an apparent favour or apparent displeasure there shall be principall challenge and certainly though the Law may intend that a man may lawfully demand his right and without malice yet it appeares that the nature of men is perverse and froward and few Actions are begun without apparent displeasure especially
Actions of Trespasse Pedibus Ambulando and vexation plainly appeares when Actions are begun upon such slight occasions and in Actions of Trespasse there issueth a Capias for a Fine and so the Defendant shall be Fined and Imprisoned and sure to be deprived of his liberty is a thing distastefull And it cannot be but that displeasure shall be between them which endeavour to restraine one the other of their liberty and so he concluded that this was a principall challenge and not being allowed this is error and so for this cause he reversed the Judgement Also it seemed to him as this case is there is no seisin found of the Paunage for the Jury have found that the Earle of Rutland hath put in two Horses and it seemes to him that Horses cannot take seisin of Paunage which is properly meate for Hoggs and so for this reason also insomuch that there is no seisin found of the Paunage and the Jury ought to find of necessity a Seisin and Desseisin it seemes to him that this is error and so the Judgement ought to be reversed and at the same day Williams Justice rehearsed the case as before and in his argument he spake First to Grants Secondly to the challenge Thirdly to the abatement of the Writ And it seemes to him that none of these matters were sufficient to reverse the Judgement but yet he conceived for two other causes that the Judgement shall be reversed And first concerning Markhams Patent that the Jury have found very good though that they have not said by the same Letters Patents but he said that it had been more proper if they had found that the King had granted that by the same Letters Patents and for that he cited the case of Information of Mines in the Com. And the pleadings before the case there the Letters Patents of the King are pleaded and where the King grants divers things it is there said that the King by the same Letters Patents granted and so the case of Grendon against the Bishop of Lincolne where the King by his Letters Patents granted to a Deane and Chapter that they should hold an Advowson to their proper use and further granted by the same Letters Patents c. And so he said in this case that this had been more properly found if it had been found that the King Per Easdem Litteras Patentes granted yet this is very good as it is and this as he said by the Intendment for it cannot be otherwise intended and for that he cited the book of Entries in Title Covenant That where a man brings a Writ of covenant and counts upon an Indenture that is that the Defendant covenanted to do such a thing and further covenanted and doth not say by the same Indenture yet this is very good because it cannot be otherwise intended but when that is by the same Indenture and where things shall be taken by Intendment he cited the case of 5. Assis 2. Where in Assise of Common the Plaintiff made him Title that is that he was seised after the Coronation of King H. this shall be intended H. 3. See Brooke Limitation 4. and the Case of 17. Eliz Dyer 342 Where these Letters H. R. A. F. shall be intended Henricus Rex Angliae Franciae c. And he cited the case of 21. H. 7. 32. Where a man pleads a release made in Villa de West the County of Middlesex and doth not say secondarily In Predicta Villa And there these Justices held that good and it shall be intended the same Town so he said in this case this shall be intended that Grant by the same Letters Patents though that Easdem be left out And to the Grant to the Earle of Rutland he held that good also though that it is not expressed as concerning the Herbage and Paunage when that should begin and he said that this is also for the intent and also he said that this is not in prejudice of the King nor in deceit of the King nor to the double Intendment and for that good And he put the case where the King made a Lease for one and twenty years rendring Rent and doth not shew when that shall begin That shall begin from the Date of the Letters Patents because it cannot be otherwise intended so in the principall case the grant of the Herbage and Paunage depends upon another Grant That is the custody of the Parke which was to begin after death surrender or c. of Markham and having relation to that by this word Vlterius that shall be necessarily intended to begin at the same time and he well agreed the bookes of 3. H. 7. fol. the last and 6. H. 7. 14. 8. H. 7. 1. 9. Eliz. 259. 7. Ed. 6. Dyer 80. That there is no reversion of an office But yet the King may grant an office after the first Grant determined and this shall be good And so shall be in our case of the Herbage and Paunage and he cited the case of 8 H. 7. 12. 13. where the King was Founder of an Abbey and he had granted a Corody to another for life and after he released that and granted it to the Abbot this shal not be a good release presently because another hath the possession for present of it but this shall be good after the death of him which hath this granted for his life And he cited the case of the Lord Chaundois 6. Coke where the King grants the Mannor of Dale in tayl and after grants the Mannor to another this shall passe the reversion for this is all that the King can passe So he said in this case this shall passe in such manner as it may passe by which he concluded the Grant to the Earle of Rutland good Also to the challenge it seemed to him it is no principall challenge and for authority he cited the case in 11. H. 4. That hath been cited of the other part which was for him as he said for this takes the difference between Debt and Battery and 38. H. 6. a. Juror was challenged because one of the parties had an Action of Trespasse hanging against him and this was not any principall challenge unlesse it be Trespasse of Battery and to the booke of 20. Assis 11. Where a Juror was challenged because he had Trespasse against him before the Assis he said it did not appeare by the book what Trespasse that was So it shall be intended Battery and he concluded with this difference that if such an Action be hanging which tends to the utter undoing of him against whom it is brought then if the Defendant in such Action make the array this shall be a principal challenge but if it be but such an Action in which a man shal recover but his Debt or Damages or such lawfull duties there to say that such Action is hanging between them at the time of the array made shall be no principall challenge And for that he
cited the book of 24 Ed. 3. Where a Tales was returned by the Sheriff of Middlesex and the party challenged the Jury because he sued the Sheriff for the death of his Servant and this was a principall challenge for in such case his life was in question the same Law in case of Maintenance and Champerty for the Law hath inflicted great punishment upon such Offences so these matters tend to utter subversion of his Estate and life but otherwise in Actions of Trespasse and so he concluded no principall challenge To the abatement of the Writ it seemes no Error First he conceived that there is no entry and for the reason that Crooke had given before that is because he entred to hunt and not to keep possession and hath not shewed any Warrant to kill the Buck and he cited the book of the 5. of Ed. 4. fol. 60. Where Babington brought an Assise of the house of the Fleete and hanging the Assise Babington came to the Jury within the house when they had the View with his Councell to shew Evidence for the view and this was not any entry to abate the Writ and so the entry to hunt is an entry for another purpose then an entry to keep possession not being by warrant as it is not found and for that no entry to abate the Writ But admitting that this had been an entry to abate the Writ yet being a thing which doth not abate the Writ without Plea and that cannot be pleaded as the case is he conceived was no Error but if it had been a thing which abated the Writ in Facto without Plea then to give Judgement upon a Writ abated is Error As if the party die hanging the Writ or if a woman sole brings an Assise and takes a Husband hanging the Assise or if the Plaintiff in a Assise be made Judge of Assise as the 15. of Assise in all these cases the Writ is abated in Facto without Plea But entry shall not abate the Writ without Plea and so it seemes to him no error But he conceived that there were two other errors for which he reversed the Judgement The first was that this Assise was de Libero Tenemento in Clepson and the plaint was of the keeping of the Park of Clepsom and of the Herbage and Paunage of the Parke aforesaid called Clepsom and made his Title for Herbage and Paunage of the Park of Clepsom and so he conceived that there is variance between the Plaint and the Title and Park of Clepsom and Clepsom cannot be intended one without speciall averment and for that he conceived it to be errour And to that he cited the case of twelve Assises two Where in attaint the first originall was of the Mannor of Austy and the Attaint was of the Mannor of Auesty and yet for that that the Attaint is founded upon the Record and not upon the Originall and the Record was of the Mannor of Auesty this was very good but the Booke saith that this variance between the Originall and the Record was sufficient to reverse the Record for errour and the case in 42 of Ed. 3. Where Scire facias was brought of Tenements in Eastgrave and the Fine was of Tenements in Deepgrave and for the variance the Writ abated and in the case of 5 Coke 46. Formedon was brought of the Mannor of Isfeild and the Tenant pleads in barr a recovery of the Mannor of Iffeild and this shall not be amended unlesse it appear that this is a misprision of the Clark or by other averment he cited also the case of 3 H. 4. 8. Scire facias upon garnishment in a Writ of Detinue of writings the Originall name John Scripstead and the Scire facias was made Iohn Shiplow and therefore agreed that he shall sue a new Scire facias so he said in the Principal case the Plaint being of Herbage and Paunage of Clepson Parke aad the title being at Clepsom Parke these shall not be intended to be the same Parke without averment and there in no averment in our case and for that such variance is such errour that shall reverse the Judgment The second errour for which he reversed the Judgment was that which was moved by Justice Crook that the Jury have not found any seisin of the Paunage for it seemed to him that a Horse could not take Seisin of paunage and for that he defined paunage and he sayd that Linwood title-Tithes saith the Paunagium est pastus Porcorum as of Nuts and Akornes of trees in the wood and Crompton saith that this is Pastus Porcorum and he saith that Paunagium is either used for Paunage or the Paunage it self and the Statute of Charta de Foresta saith that every Freeman may drive his Hoggs into our royall Wood and shall have there Paunage but he doth not say Horses or other Beasts but he conceived that if the Earle of Rutland had right in the Park that this had been sufficient seisin of Herbage and Paunage also for Hoggs will feed upon grass as well as upon Akornes and he cited the Book of 37 H. 6. saith that Seisin to maintain an Assise ought not to be of a contrary nature to the thing of which seisin is intended to be given but in one case only and that is where the Sheriff gives seisin of a Rent by a Twig or by a Clod of Earth and this is in case of necessity for the Sheriff cannot take the Money out of the purse of the Tenant of the Land and deliver seisin of that and for that he cited the case in 45 Ed. 3. Where Commoner comes to the Land where he ought to have Common and enters into the Land and the Lord of the Waste or the Grantor of the Common outs him he cannot have an Assise of his Common upon this outing for this was not any seisin of the Common so it is in this case the Horses cannot take Seisin of the Paunage and so there is no seisin or disseisin found by the Jury and then no Assise and this being after Judgment no abridgment may be of the Plaint and so for these last reasons he reversed the Judgment And at another day the case was rehearsed again and argued by Yelverton and Fenner Justices but I did not hear their Arguments insomuch that they spake so low but their opinions were declared by the cheife Justice and Yelverton affirmed the Judgment in all First he held that this entry shall not abate the writ Secondly admit that it is abated yet being between Verdict and Judgment shall not be assigned for errour Thirdly he held that no principall challenge Fourthly he held both the grants good Fifthly that Clepsam and Clipsam are all one and not such variance that shall make Errour And lastly that a Horse may well take Seisin of Paunage and Fenner agreed in all but he held that this was a principall challenge and not being allowed this
a man off an action of a higher nature 219 Vsage its exposition 222 Usitatum whom it doth advantage ibid Variance what 239 Valuable consideration out of the statute 102 Vnity of possession 26 Uoluntas donatores how to be taken 77 Vexation unjust remediable how 100 Vniversity of Oxford was removed for a certain time 244 Vniversity not locall ibid Variance what 245 W WAles councell and presidents Jurisdiction 29 Wast 46 150 168 Wittall who 37 Westminster 2 chap 35 expounded 92 93 94 95 Writs 147 Warrantia chartae 169 Warranty to a tenant pur view 191 Warrantia chartae not upon two deeds 56 Writ of error 137 208 Wife joyn with her husb in feoff what shall bind 141 Wager of law 255 FINIS Case for words You are a Bastard tried by the Countrey Judgement arrested because the Plaintiff did not averr that he was an Attonrney at the time of the words spoken Case for words which dâ—d amount to but petty Larceny For calling one Witch no Action will lie If Felony be committed good cause to arrest one for it but not to speak words to defame one A Feme covert cannot convert Action upon the casebrought upon a collateral consideration and good Judgement reversed by Writ of Error because Sheriffs name was omitted on the venire fac Case for words not actionable Gase for words A man shall not be punished for mistaking the Law Case for words The like The like for Words Judgement arrested because the Plaintiff omitted to shew in his Declaration the words were spoken of himself The Defendants Justification adjudged naught because he justified for words that were actionable To do a thing allowable by Law is no conversion The Defendants Justification amounted but to Noguilty and adjudged naught Judgement arrested for want of certainty in the Count. Judgement arrested for that the consideration was not valuable Case forwords for calling an Attourney Bribing Knave Judgement arrested being mis-tried An inuendo will not maintain an Action Difference between a promise executory and executed quod nota Non cul pleaded where Non assumpsit should have been pleaded and adjudged a good Issue Action of case for words upon the statute of 1. Jac. against Invocation of Spirits Ehe Imparlannce role supplied by the Issue being perfect Judgement arrested for not shewing the Letters of Administration Judgement arrested for that the Communication did not appear but by the Inuendo Action of the Case for calling a man mainsworn fellow Moved in Arrest of Judgement because no Demand alleadged but not allowed Judgement arrested for incertainty in the Declaration By a general Pardon both Punishment and Fault taken away Promise upon condition notice not necessary Nota. Judgement arrested for incertainty in the Count and for that the promise was made by an Infant Justification for calling a man perjured dis-allowed because he was t convicted Action of the Case will not lie for calling a Currier Barretor For this word Papist no Action will lie unless spoken of a Bishop Nota. Action of the Case for double prosecution of a fieri sac Upon a non est invent returned upon an Outlary where the party escaped the Plaintiff hath his Election where to bring his Action Judgement arrested for want of an Averment Judgement arrested for the incertainty of the Count. For collateral matters which are not Duties a Request is necessary The word Witch will not bear an Action An implied promise where it is upon the reality will not lie except upon a collateral cause An Indebitat assumpsit for money ruled good without expressing for what Action against the Sheriffs of London for discharging one who was arrested coming to defend a suit depending there The Court cannot discharge one arrested except he be arrested in the face of the Court. Judgement stayed for variance between the Count and Writ to inquiry Release by the Husband pleaded in Bar to an Action brought by the Wife after his Death for money to be allowed her after his Death and adjudged no Bar. Action for calling an Attourney Champertor The Roll mended after the Record was certified by Writ of Errour it being the Clarks misprision He is a forging Knave spoken of an Attourney actionable Implyed words will not beare an action Trover brought by Administrator as of his owne goods and adjudged good Demand and demall makes a Conversion The Sheriff justifies by vertue of a Process out of the Exchequer to levy of the Occupiers of S. Lands 59. s. arrear upon the said Lands Common appurtenant cannot be divided Mis-triall the Venn being mistaken Judgement arrested for a mistake of the Jury In consideration the Plaintiff would agree the Testators son should marry the Plaintiffs daughter adjudged a good consideration Rents arrear no Plea in Covenant Difference between Covenant and Debt to bring an Action Difference between Covenant and Debt to bring an Action Breach assigned in default of the Party that never sealed the Indenture of Covenants Covenant lies against the first Lessee upon breach of Covenant made by the Assignee Difference between Covenant and Debt Covenant upon a void Lease is good Action would not lie because if the Covenant was not performed Piracy is no excuse to perform a Covenant Judgement arrested for default in the Declaration A Covenant in Law shall not be extended to make a man do more then he can A Suit in Chancery no Disturbance Judgement arrested for defects in the Declaration Breach that one entred and shews not by what Title and naught Release cannot be given in Evidence upon a Plea that the Defendant was never a Receiver of the Plaintiffs Money In Account the Process are sum Attaint and Distress In Account two Judgements and upon a Nichil Process of Vlamy lies Account against a Baily local The Defendant may wage his Law if the Receit be per manus proprias Nota. In Account the Writ abates the Death Nota. Nota. Nota. Matter in discharge of the Actions shall not be pleaded in Bar. Nota. Nota. Judgement in Account upon a special Verdict Misprision of the Clerk amended after Verdict No Tenant at the time of the Writ purchased nor afterwards and if c. no Disseisin Note upon the Kings Grant View to be there where the Office is performed Another Writ brought and hanging a good Plea in abatement Assise taken by default against Harvey and the other Tenant pleaded in abatement of the Assise that there was a Quare impedit depending Nota. The King cannot create an Office to the Queen who may bring an Assise No Costs in a non-suit in Assise The Court was denied a Supersedeas the surmise being onely matter in suit Nota. A Writ of Covenant brought against more then acknowledged and prayed to be amended and denied Lease made to one during the life two if one die the Lease is ended Nota. A case of Jointure Nota bene Difference between Tenant at will and sufferance Joynt Debt and Contract cannot have several Pleas. Nota. Nota.
lie by the Heir for pulling down the Coat-Armor c. of his Ancestors set up in the Church A Pew cannot belong to a House Fraud shall never be intended except it be apparent and found and that conveyance which at the time of the making was good shall never by matter ex post facto be adjudged to be fraudulently made for before primo Eliz. at the Common Law A conveyance made for natural affection without valuable consideration is not to be avoided none shall avoid it but such as come in upon valuable considerations Lands devised to one in Tail upon condition that he shall not alien and for Default of such the Remainder to R. in Tail this is a Condition and no Limitation by the whole Court and the Heir at the Common Law may enter for the Alienation Matters of instance which are between party and party as for Tithes and Matrimony are not to be dealt withall by the high Commissioners if they proceed inverso ordine that cannot be holpen in the Common Pleas but by superior Magistrate if they be Judges of the cause If one in Norfolk come within another Dioces and commit Adultery in another Dioces during the time of his residence he may be cited in the Dioces where he committed the Offence although he dwell out of the Dioces by Cook Warburton and Winch. If the King grant Lands to A. and his Heirs Males and doth not say of his Body he is but Tenant at will Tamen quaere A Deputy of an Office for Bribery cannot make his Master be punished corporally but pecuniarily equity shall not barr me of the benefit of Law Note the Probate of Wils and Administrations did not belong to the Ordinary originally but to the Common Law If two Aliens be at Issue the Inquest shall be all English but if between an Alien and Denizen that Inquest shall be de medietate Linguae 21 H. 6. 4. A Judgement given against a dead person is not void but Error 28. Ass 17. A Juror was committed to the Fleet For making his Companions stay a whole Day and a Night having no reason for it and without the Assent of any of the rest of his Fellows and after was bailed but not untill the Court was advised 8 E. 3. 75. In a Writ of Estate Probanda every Juror ought to be of the Age of 42. years If I grant Land to one and his Heirs in the Premises of the Deed Habendum to him and the Heirs of his Body he shall have the Land in Tail and the Fee-simple after the State in Tail when the Estate is certain in the Premises the Habendum shall not controll it If one make two Executors one of seventeen years of Age and the other under Administration during the minority is void because he of seventeen years old may execute the Will of Administration during the minority in such case be granted and the Administrator brings his Action the Executor may well release the Debt Pigot and Gascoins case If a Record go once to Triall and warning given if the first Attorney be alive the Plaintiff is not tied to give warning again but if the Attorney be dead he is If no place of Payment be in a Will which appointeth Money to be paid there must be a Request to pay the Money for he is not bound to seek all England over for him otherwise it is if it were by Bond. In every case where the Plaintiff might have Judgement against the Defendant there if the Plaintiff be non-suit the Defendant shall have his Costs if the Plaintiff be non-suit TRin. 11. Jac. In cases of remitting causes from the inferior Judge the Arch-deacon cannot remit the cause to the Arch-bishop but he must remit it to his Bishop and he to the Arch-bishop It was held by the Court that one might distrain for a Legacy In a special Verdict the Plaintiff must begin to argue first OLive versus Hanmer A Writ of Error was brought upon a Judgement by Nil dicit for want of a Warrant of Attorney and the Record certified and a Certior are to the Clerk of the Warrants and Error assigned for want of a Warrant And the Court was moved that a Warrant might be filed and it was granted and a Warrant filed accordingly Pasch 12. Jac. An Action was brought against Baron feme and an Attorney appeared for the Husband alone and the Court held it was the Appearance of Baron feme in Law PAsch 12. Jacobi Sheriff versus Whitsander One Judgement was confessed in Trin. 42. Eliz. rotulo 504. And afterwards in Trinity Terme 43. Eliz. the Defendant brought a Writ of Error bearing Date the 12. of May Anno 43. and upon that Writ the Record was certified 25. May and afterwards Error was assigned in the upper Bench for want of a Warrant of Attorney by the Defendant And Mich. 43. 44. Eliz. the Warrant of Attorney was received and entred upon Record by Order of Court of Common Pleas. And the like was Pasch 2. Jac. rotulo 1956. Int. Bathgrone and Smith and the like Mich. 1. Jac. rotulo 1306. Inter Smith Kent CRane versus Colpit Question was whether the Attornement of an Infant be good or not and by the whole Court it was held good by three Reasons First he gives no Interest Secondly it is to perfect a thing Thirdly he is a Free-holder IT was held in the case of Gage an Attorney who as an Administrator brought an Action of Priviledge that his Priviledge ought not to be allowed And after a Bill was filed against Drury an Attorney as Executor and held that the Bill would not lie but in both cases the Suit should be by Original BEarbrook versus Read The name of Confirmation must stand for Sir Francis Gawdy was christened Thomas and confirmed Francis by that name he must be called SIr Henry Compton was sued for Cloathes of his Wife bought without his command or privity and the whole Court were of opinion that if the Wife should buy Merchandises and thereof make Cloathes and wear those Cloathes although the Husband know nothing of them yet he shall pay for them PAsch 10. Jac. The Court was moved to know whether the Wife of a Bankrupt can be examined by the Commissioners upon the Statute of Bankrupt and they were of opinion she could not be examined For the Wife is not bound in case of high Treason to discover her Husbands Treason although the Son be bound to reveal it therefore by the Common Law she shall not be examined An Infant shall not be examined If an Administration be granted to one during the minority of two Infants and one of them dieth the Administration continueth still Actions of Debt LOvelace versus Cocket Mich. 6. Jac. rotulo 1001. Action of Debt brought upon an Obligation for the Paiment of Money at a
Fawden an Attorney of the Common Pleas and he pleads in Barr an Outlary against the Administrator and adjudged no Plea MIch 4. Ed. 4. rotulo 144. An Action of Debt was brought against J. R. de W. in Com. L. Chapman the Defendant appeared by his Attorney and offered to wage his Law and essoyned and at that Day the Plaintiff appeared and the Defendant being solemnly required one J. R. came to answer the Plaintiff as Defendant in that Action in his proper person and offered to wage his Law the Plaintiff said that J. R. now appearing to wage his Law ought not to be admitted because the said J. R. is not that person which the Plaintiff prosecutes because this I. R. appearing is I. R. de W. in Com. L. Jun. Chapman and he who the Plaintiff prosecutes is I. R. de W. in Com. L. Sen. Chapman both of them at the purchasing the Plaintiffs Writ living at W. and that he agreed with the Defendant so to do therefore because I. R. de c. hath not appeared to wage his Law prayes Judgement the Defendant confesses such matter and sayes that he beleiving that the Writ was prosecuted against him appeared by his Attorney and offered to wage his Law and prayes to be discharged of the Debt and the other I. R. being exacted appeared not and the Court would advise but no Judgement for the Plaintiff HIll 26. Eliz. rotulo 420. The Lessor makes a Lease by Indenture for years and the Lessee grants over his whole Terme and the Lessor grants over the Reversion and it was adjudged that the Grantee of the Reversion should have an Action of Debt for the Arrears of Rent against the Assignee of the terme and not against the first Lessee HIll 43. Eliz. Pasch 41. Eliz. rotulo 425. An Action of Debt brought against an Executor in the Debet detinet for Rent due in the time of the Executor upon a Lease made to the Testator upon a Judgement given in the upper Bench and that Judgement was reversed in the Exchequer because it was not in the Detinet alone but afterwards in the upper Bench. Int. dominum Rich. Frank Administrator for Arrears due after the Death of the Intestate it was adjudged good in the Debet detinet and also in the Common Pleas Trin. 11. Jac. rotulo 2013. MIch 30. 31. Eliz. rotulo 907. An Action of Debt brought to which the Defendant pleads an Outlary against the Plaintiff in its force the Plaintiff replies the general Pardon granted by Parliament the Defendant demurrs and Judgement that he should answer over MIch 40. 41. Eliz. Ralph Rogers brought an Action of Debt upon an Obligation of 400. l. and Judgement was entred by the Clerk upon a Nichil dic that the said Roger should recover c. and for that Default the Defendant brought his Writ of Error to reverse the Judgement given for Ralph and when the Record was certified the Judges of the then Kings Bench would not proceed And afterwards the Judges of the Common Pleas upon a motion and before another Writ of Error brought amended the Mistake of the Clerk And Justice Walmsley would have committed Keale the Clerk to the Fleet for his carelesness but afterwards the Amendment was withdrawn by the Court and upon further advice the Roll made as it was before An Action of Debt was brought upon a single Bill for Payment of Money upon Demand and the Plaintiff declares generally that he often had requested c. and Serjeant Harris demurres to the Declaration and the opinion of the Court was that he ought to plead yet if the Defendant had demanded Oyer of the Bill and upon that have demurred it had been a good Demurrer because one special Demand was in the Bill and no special Demand alleadged in the Count. MIch 3. Iac. Burnell versus Bowes Action of Debt brought upon a Bond and the Plaintiff in the Imparlance Roll had counted upon a Bond made the tenth of March and an Imparlance thereupon untill the next Terme and in the next Terme he declared as of a Bond made the tenth of May and the Defendant pleaded per Dures and it was entred of Record and the next Terme after Entry thereof the Plaintiff moved that that Mistake might be amended and at first it was denied to be amended because the Defendant had pleaded to it and by that Amendment his Plea should be altered as if he had pleaded that it was not his Deed and the cause of his pleading that Plea was the the Mistake and if that Mistake should be amended he would be trised and overthrown and upon the first motion it was denied to be amended but afterwards granted to be amended by the whole Court for the Imparlance was entred Hillar first of James and the Issue was Pasch second of James but the Defendant was admitted to plead a new at his pleasure MIch 3. Jac. rotulo 2575. Fitch versus Bissie An Action of Debt brought upon an Obligation with a Condition to pay Money yearly according to the forme and effect of the Indenture made between the Plaintiff and Defendant the Defendant pleads that there was not any such Indenture made between the Plaintiff and Defendant as is in the Condition supposed and the Plaintiff demurrs upon that Plea for that the Defendant is estopped to plead that Plea KIng and his Wife Executrix of J. Wright Plaintiffs brought a Scire facias after the said Executrix came to full Age against Death and his Wife Administratrix of W. D. to have Execution of a Judgement had by J. D. and H. E. Administrators during the minority of the Executrix upon a Bond entred into to the Testator and whether a Scire facias lay by the Executrix or no was the Question and by the better opinion of the Court it did not lie MAyor and Burgesses of Linn Regis in Norfolk Mich. 10. Jac. rotulo 2413. brought an Action of Debt upon a Bond against one Pain and it was Ad respondendum Majori Burgensibus de Linn Regis in Comitatu Norfolciae Pain pleads that it was not his Deed and a special Verdict was found that the Mayor and Burgesses were incorporated by the name of Majores Burgenses Burgi de Linn non per aliud And whether the omission of this word Burgi should barr the Plaintiffs was the Question and Judgement was given by Cook Warburton and Nichols for the Plaintiff for Cook said that if the essential part of the Corporation was named it was sufficient and in this case the Mayor and Burgesses was one essential part and Linn Regis is another essential part and those two were duly expressed and sufficient to maintain the Action and Cook said that those words Et non per aliud shall be intended to be Non per aliud sensum non literae and of the same opinion were the other Judges there NIchols versus Grimwin Mich.
12. Jacobi rotulo 1609. or Hill in the same year rotulo 3027. The Plaintiff brought his Action upon a Bond the Condition whereof was performance of an Award for and concerning all matters Causes Suits and Demands whatsoever had moved or depending c. so as the said Award be made c. The Defendant pleads no such Award made the Plaintiff by Reply sets forth the Award it was made De praemissis to wit that the said I. should clearly depart with and avoid out of her House in which she then lived and that the said I. should carry away all the Hay c. The Defendant re-joynes and sayes no such Award and a Verdict for the Plaintiff the Defendant moved in Arrest of Judgement for that the Award was made but of one part and so void but Judgement was given for the Plaintiff for though the Award be made but of one part yet if the Defendant may plead it in Barr of the other Action brought against him for the same cause in all such cases the Award is good But my Lord Hubbart and Nichols took this Difference upon these words so that for then the Arbitrators must make their Award of all such things which are in Controversie and in such manner as the Condition prescribes but if the Parties put themselves by Parroll if the Arbitrement be made of one part it is good And Hubbart said that in all Arbitrements whether by Bond or Parroll they ought to be reciprocal and to be made in such manner that it may make an end of all Controversies between the Parties For if a man be bound in a single Bill and put it to Arbitrement and the Arbitrators order that the Obligor pay to the Obligee a summ and do not award that the Obligee shall seal a Release or that the Money paid shall be in Discharge of the said Bill the Award is void But in Barpools case the Submission was by Parroll for Money due before the Submission and the Award was that he should pay such a summ for the same Debt and good for the Award shall inure to a Dischage See Paschals case 8. Rep. STutfield Plaintiff Grony Defendant in Trinity Terme 13 Jacobi rotulo 859. The Defendant pleads to a Bond taken by the Sheriff for his Appearance in the Kings Bench Die Sabbati proximum post Oct. Martini that he appeared at the Day and the Court of Common Pleas gave him a Day to bring in the Record of his Appearance by Mittimus issuing out of the Chancery the Record was certified Videlicet that he appeared Lunae post xv am Martini which was after the Day yet it was adjudged good for if the Appearance was the same Terme it is good though it be not the same Day SErle against Harris Trinity Terme 9. Jacobi rotulo 1321. Judgement is there entred by Non sum inform against Harris Harris brings a Writ of Error upon that Judgement and assignes for Error that the Record was Fr. Harris de Brownton and the Original filed to warrant that Judgement was Fr. Harris de Browton and there reversed for that Variance HAmond versus Jethrell Mich. 8. Iacobi rotulo 2354. Hamond brought his Action of Debt upon a Bill obligatory for the Payment of Money and no Day limited in the Bill for the Payment thereof but after the words In witness whereof c. these words were written Nevertheless it is agreed that the said Jethrell shall not be hereby compelled or required to pay the said 30. l. untill the said Jethrell have recovered against B. Hudson the summ of 30. l. or more upon a Bond of 40. l. wherein the said Hamond c. The Defendant demands Oyer of the Bill and hath it Memorandum that J. W. J. c. and demurrs in Law and shews that the Plaintiff had not alleadged any Day of Payment nor when it was requested and the Declaration adjudged good notwithstanding and my Lord Cook held that whatsoever comes after these words In witness c. is no part of the Bill but words after In witness c. may be a Condition and must be pleaded and not demurred upon and 21 Henry the sixth direct in this point and so the third Report An Action of Covenant brought upon words of Covenant in Indenture after In witness c. and above the Seal and held good and maintainable SAaint-John versus Cracknell Mich. 12. Jacobi rotulo 1153. An Action of Debt was brought upon the Statute of the 24. of Henry the sixth for 40. l. for Election of Burgesses in Parliament and it was tried and a Verdict for the Plaintiff And Serjeant Moor moved the matter insuing in Arrest of Judgement First the Statute directs the Sheriff to issue out his Warrant to the Mayor if there be one and if no Mayor then to the Bailiff and it appeared by the Court that the Sheriff made his Warrant to the Bailiff and do not shew that there was no Mayor there and the Exception disallowed for if there was a Mayor the Defendant ought to shew it by Plea Secondly that the Plaintiff doth not alleadge that the Warrant made to the Bailiff was under the Sheriffs Seal as the Statute directs and the Court held the Count good notwithstanding because the Declaration was that the Sheriff by vertue of a Writ to him directed made his Warrant to the Bailiff and if it was by vertue of the Writ it shall be intended to be under his Seal HOpe versus Holman Mich. 10. Jacobi rotulo 3612. Debt upon an Obligation the Defendant pleads a forreign Attachment in London and the Plaintiff demurrs and the Exceptions were first that the Defendant had attached the Moneys in his own hands by way of Retainer and so the Custome unwarrantable Secondly it appeared that Judgement was given in the Mayors Court by the Default of him in whose hands the Money was attached and it appeared that the Defendant which brought the Action in London and he in whose hands the Attachment was made and that made Default was the same person and it is a contrariety that the same person should appear and not appear and a Prescription for that is naught and the Custome is in London that the Recoveror in London ought to finde Sureties that if the Debt be discharged within a Year and a Day then to pay the Money and did not appear by the Record that he found Sureties which was an incurable Fault and so adjudged by the Court. POtter versus Tompson Hill 14. Jacobi rotulo 3449. To one Obligation with Condition to make Assurance of Lands to such Uses therein expressed the Defendant pleads that he made a Feofment of the same Lands to other Uses which the Plaintiff accepted the Plaintiff demurrs and it was adjudged a naughty Plea for he ought not to vary from the Condition HIggenbotham versus Armot Hill 8. Jac. rotulo 906. Action of Debt brought upon a Retainer in the Office of an Husbandman for one year and so from
whole Court for they said that the Demand must be made at the place of payment although it be of the Land FIeld versus Hunt Mich. 5. Jacobi Hunt in VVorcester Court obtained a Judgement after a Verdict in Debt upon a Contract for twenty Sheep and after it was removed by a Writ of Error into the Kings Bench and generall Errors assigned but upon opening the Errors it was shewed the Court that there was no Declaration in VVorcester Court for the Declaration was thus Raphael Hunt complains against H. Field of a Plea that he render to him twenty pounds which he owes unto him and unjustly detains and whereof the same Plaintift by M. his Attorney whereas the said Defendant c. and by Fennor VVillams and Cook it is no Declaration for Default of this word Dicit and the sense is imperfect and although Yelverton objected that a Declaration is sufficient if it be good to a common intent and Quer. being writ short it may be Queritur and then it is and whereof the same complaines but the Court held that would not help for it is not certain to whom the word Idem should refer whether to the Plaintiff or Defendant and of the two it should rather refer to the Defendant which is the next Antecedent and the Court held it matter of substance which is wanting and therefore naught but if it had been 4. and whereof the same Raphael quer being writ short it had been good for because the party Plaintiff is certainly named and then Quer. could have no other sense then Queritur and Judgement reversed which mark HArrison versus Fulstow Mich. 5. Jacobi The Plaintiff brought Action of Debt for fourscore and six pounds in the Common Pleas against T. Harrison and the Capias was continued accordingly against T. Harrison but the Plur. capias was against William Harrison which was the very name of the Defendant and that was but for fourscore and five pounds which varied from the first Entry and William Harrison appeared upon the Exigent and the Plaintiff declares against William and he pleads and they are at Issue by the name of William and a Verdict for the Plaintiff and Judgement accordingly against William and upon a Writ of Error it was assigned for Error that the Original did not maintain the Proceedings for the Original is against Tho. and the Proceedings against William and the Plaintiffs Counsel would have excused it because the Judgement being against William and the Original against Tho. as it is certified it cannot be the Original against William and so the Judgement against William being without Original it is aided by the Statute after a Verdict but the Court held it to be Error for there is great Difference between no Original and a naughty Original for the want of an Original is helped but not a vitious Original and Judgement was reversed for upon Diminution alleadged that this Original was certified as the Original in that Suit or else there was no Obtulit at all LOthbury versus Humfrey Mich. 5. Jacobi Lothbury and his Wife Administratrix of VV. R. brought an Action of Debt as Administrator upon an Obligation of forty Marks dated 4. April 38 Eliz. made by the Defendant to the Intestate 1. the Defendant pleades that Ridge the Intestate October the first Jacobi made his Will and made the Defendant his Executor and devised the Obligation and the Money therein contained to one H. Son of the Defendant and died after whose Death the Defendant takes upon him the burthen of the Executorship and administers divers Goods of Ridges and that he is ready to aver this to which Plea the Plaintiff demurrs generally and adjudged for the Plaintiff for the Defendants Plea is not good without a Traverse that Ridge died intestate For the Action is brought as Administrator and they count upon a dying intestate and that being the ground of the Action ought to be traversed as it is 9 H. 6. 7. Debt brought against one as Administrator of J. and counts that J. died intestate the Defendant pleads that J. made his Will and made him Executor and held no Plea without a Traverse and the same Law 7 H. 6. 13. Debt brought against one R. Executor of R the Defendant pleads that R. died intestate at such a place and held no Plea for if the Plaintiff maintain that R. made the Defendant Executor and the other say that R. died intestate at such a place this makes no Issue and therefore the Defendant ought to traverse that R. died intestate without that that he made him Executor and 4 H. 7. 13. the very Case in question is adjudged that such a Plea in Barr is not good without a Traverse to wit to say without that that R. died intestate according to the 3 H 7. 14. and this was agreed by the whole Court without Argument CHeyney versus Sell Mich. 5. Jac. Cheyney as Executor of Cheyny brought an Action of Debt upon an Obligation against Sell the case was that the Testator had put himself as an Apprentice to Sell for seven years and Sell bound himself to pay to his Apprentice his Executors or Assignes 10 l. at the time of the end or determination of his Apprentiship the Apprentice serves six years and then dies and it was moved by Towse that the Money was due at the time of his Death because then his Apprentiship ended for he said if a man make a Lease for one and twenty years to another and oblige himself to pay to the Lessee ten pounds at the end and expiration of his Term and within those years the Lessor infeoffes the Lessee so the term expires and the ten pounds should be paid instantly but Cook denied that Case because the Lessee hastened the end of his terme but he said that if a man lease Land to another for seven years if the Lessee should so long live and the Lessor oblige himself to pay ten pounds at the end of his terme and he die within seven years there he was of opinion the Money was presently due upon his Death but in the principal case the whole Court held the chief Justice being absent that the Obligation was discharged and that the Money should notbe paid WIllot versus Spencer Mich. 9. Jacobi The Plaintiff brought an Action of Debt for Tithes of Wood upon the Statute of 2 E. 6. and Forster argued that Judgement ought not to be given for the Plaintiff because the Plaintiff did not shew in his Plaint that he was Parson for he ought to bring his Action according to that name that he claimed the Tithes by and this ought to be expressed in the Queritur and therefore if a man bring his Action to recover any thing as Heir Executor or Sheriff he ought to name himself so in the Queritur 30 H. 6. 9 H. 4. but Towse said the same Exception was taken between Merrick and Peters and disallowed Fleming Justice said
that if it had been by Writ he must have shewed it but need not it being by Plaint if the truth appear in that and if a man bring his Action as Assignee he need not shew it in his Plaint if the truth appear in the Declaration but it is otherwise in an Original and a Plaintiffe in Kings Bench as an originall but not in all things and if the Plaint be incertain the Defendant in that Court shall plead in Abatement of the Plaint as to an Original in the Common Pleas and at last two Presidents were shewen one between Champion and Hill and the other between Merrick and Wright that were allowed without naming of the Plaintiff Rector in the Queritur and Judgement was given for the Plaintiff by the whole Court Note it was agreed by all the Court of Kings Bench Mich. 5. Jac. and hath many times been ruled that if a man sell his Tithes for years by word it is good but if the Parson agree that one shall have his Tithes for seven years by word it is not good by the opinion of Fleming Cheif Justice because it amounts to a Lease and he held strongly that Tithes cannot be leased for years without a Deed. COb versus Hunt Hill 5. Jac. Cob sued a Prohibition in the Common Pleas against Hunt Parson of D. in Kent and suggests a Modus demandi as to part of the Tithes demanded against him in the Spiritual Court and as to the residue suggests a Contract executed and performed between him and the Parson in satisfaction of the residue and because he proved not his Suggestion within six Moneths Hunt the Parson had a Consultation and Costs assessed by the Court to fifty shillings and Damages fifty shillings by the Statute of the 2 E. 6. they shall be doubled but in truth no Judgement was given to recover them because these words Videlicet Ideo considerat fuit qd recuperet was omitted yet Hunt thinking that all was certain and perfect brought an Action of Debt in the Common Pleas for the Costs c. and declared of all the matter above and that the Damages were assessed upon which it was adjudged that he should recover c. and that the Costs were not paid Per quod Actio c. And had a Judgement against Cob by Non sum informat and thereupon Cob brought his Writ of Error as well in the Record and Processe c. of the Prohibition as of the Record and Processe in the Action of Debt for the Costs and assigne the general Error but Yelverton assignes two Errors in special first that there was no Judgement in the Prohibition for Recovery of the Costs but onely an Assessement of Costs without any more which is not sufficient for the Assessement of Costs onely is but matter of Office in Court but no Judgement of Court to binde which was confessed by the whole Court The second Error was that no Costs ought to be assessed or adjudged in the Cause above because the Prohibition is grounded solely upon the Modus decimandi which needs proof and upon the Contract between the parties which requires no proof and the Suggestion being intire and part of it needing no proof they could not give any Costs for that is onely where the whole matter in the Suggestion needs proof and therefore the mixing the Contract with the manner of Tithing priviledges the whole as to the matter of Costs but they might grant a Consultation as to that part of the Suggestion which concerned the manner of Tithing but not for the rest which was granted by the whole Court and so both the Judgements were reversed which mark MArkham versus Mollineux Hill 1. Jac. Mollineux sued out an Original in the Common Pleas in an Action of Debt upon a Bond against Markham by the name of John Markham Alderman de D. and all the mean Processe are continued against him by the name of Alderman Markham he appeared and the Plaintiff declared against him by the name of Markham of D. Esquire and afterwards the parties were at Issue and it was found for the Plaintiff and Judgement entred and it was reversed by Writ of Error because it did not appear that that Markham was the same Markham against whom the Original was prosecuted and the Processe continued but it seemed rather that he was another person by reason of his severall Additions of Alderman and Esquire which mark OLiver versus Collins Pasch 6. Jacobi The Plaintiff brought an Action of Debt upon the Statute for not setting forth of Tithes and shews that he is Parson of the Parish Church of Little Lavar in Com. Essex and that the Defendant had so many Acres within the Parish of Little Lavor sowed with Wheat whereof the tenth severed from the ninth part came to eight and twenty pounds and shews that the Defendant at Little Lavor aforesaid took and carried away the Wheat without setting forth the Tithes contrary to the Statute by reason whereof he forfeited threescore Pounds and upon Nil debet pleaded it was found for the Plaintiff and moved in Arrest of Judgement first that the Statute was mis-recited for whereas the the Plaintiff declared that the 4. Novemb. 2 E. 6. it was inacted it was said that there was no such Statute for the Parliament commenced 1 E. 6. and continued by prorogation untill the 4. Novemb. 2 E. 6. and therefore the Plaintiff was mistaken in that but that Exception was not allowed for there were an hundred Presidents against it and in respect of the continual use in that form as the Plaintiff had declared the Court said that they would not alter it for that was to disturb all the Judgements that were ever given in that Court. And secondly it was objected that the matter was mis-tried and there ought to be a new Triall because the Venire facias was of Parva Lavar whereas by their pretence it ought to have been of the Parish of Little Lavar to which Yelverton made Answer that the Triall was well enough for by that Action no Tithe is demanded nor recovered but the Defendant is onely punished for his Contempt against the Statute in not setting forth his Tithe and the wrong done to the Plaintiff complained of is laid onely in the Village of Little Lavor and not in the Parish for all the places in the Declaration where the Parish is named are onely matter of Conveyance and inducement to the Action and not of the substance for the substance is onely that where the wrong and grievance is done to the Plaintiff and that arises onely in Parua Lavor which was granted by the whole Court upon a grand Debate at severall Dayes and Judgement was given for the Plaintiff and the like Judgement was given between Barnard and Costerdam in an Action upon the same Statute upon the last point for the Venn and this hath been twice adjudged but in Costerdams Case which concerned the Earl
to the breach if it had been assigned yet the Court ought to be satisfied that the Plaintiffe had good cause of Action to recover otherwise they should not give Judgement and although a Verdict is given for the Plaintiff yet this imperfection in the Replication is matter of substance and is not helped by the Statute by the opinion of the whole Court except Justice Williams BArwick versus Foster Mich. 7 Jacobi Action of Debt brought for Rent the cause was thus the Plaintiff leased certain Lands to the Defendant at Mich. 1 Jacobi for five years yielding and paying Rent at our Lady Day and Mich. yearly or within ten dayes after and for rent behind at the last Mich. the Plaintiff declares as for Rent due at the Feast of Saint Michael and prima facie it seemed to the whole Court but Crook that the Action would not ly but that the Rent for the last quarter was gone for it was not due at Michaelmas as the Plaintiff had declared for his own shewing it is payable and reserved at Michaelmas or within ten dayes after although the Lessee might pay it at Michaelmas Day yet it is not any Debt which lies in demand by any Action untill the ten dayes be passed and the reservation being the Lessors Act it shall be taken most strongly against himself and although the end of the Term is at Michaelmas before the ten dayes untill which time the Rent is not due and because at that time the Term is ended the Lessor shall loose his Rent as if a Lessor die before Michaelmas Day the Executor shall not have the Rent but the Heir by discent as incident to the Reversion and if the Lessee should pay the Rent to the Lessor at Michaelmas day and the Lessor should dye before the tenth Day his Heir being a Ward to the King the King shall have it again for of Right it ought not to be paid untill the tenth day according to the 44 E. 3. but this Case being moved again in Hillary Term Fleming Fennor and Yelverton changed their opinion and held that the Lessor should have the Rent for it was reserved yearly and the ten dayes shall be expounded to give liberty to the Lessee within the Term for his ease to protract the payment but because the ten dayes after the last Michaelmas are out of the Term rather then the Lessor shall loose his Rent yearly the Law rejects the last ten dayes MOlineux versus Molineux Hill 7 Jacobi An Action of Debt brought against Mo. upon an Obligation as Heir to his father the Defendant pleads that he hath nothing by discent but twenty Acres in D. in such a County the Plaintiff replies that the Defendant had more Land by discent in S. to wit so many Acres and upon this they are at Issue and found for the Defendant that he had nothing by discent in S. by reason of which the Plaintiff could recover and had his Judgement to have Execution of the twenty Acres in D. upon which Judgement in the Common Pleas the Defendant brought his Writ of Error and assigned for Error a discontinuance in the Record of the Plea from Easter Term to Michaelmas Term after and whether this were helped by the Statute of 18 Eliz. because it was after a Verdict was the question and adjudged to be out of the Statute and that it was Error for the Judgement was not grounded upon the Verdict but onely upon the confession of the Defendant of Assetts and the Verdict was nothing to the purpose but to make the Defendants confession more strong and therefore the Statute of the 18 of Eliz. is to be intended when the triall by Verdict is the means and cause of the Judgement which mark and therefore the Judgement was reversed the Law seems to be the same if the Plainiiff brings an Action of Debt for forty pounds and declares for twenty pounds upon a Bill and twenty pounds upon a non tenet and the Defendant confesses the Action as to the money borrowed and they are at issue as to the money demanded by the Bill which Passes also for the Plaintif by reason wherof he hath Judgement to recover the forty pounds demanded and the Damages assessed by the Jurors and Costs intire in which Case if there be a discontinuance upon the Roll it seems that all shall be reversed notwithstanding the verdict for the verdict is not the onely cause of the Judgement but the Confession also and the Costs assessed intirely for both but yet inquire of this It was adjudged by the whole Court that in those Cases where an Executor is Plaintiff touching things concerning the Testament and is non-suited or the verdict passes against him that he shall not pay Costs upon the new Statute of 4 Jac. for the Statute ought to have a reasonable intendment and it cannot be presumed to be any fault in the Executor who complains because he cannot have perfect notice of what his Testator did and so it was resolved also by all the Judges of the Common Pleas. GOodier versus Jounce Trin. 8 Jacobi Jounce recovered in the common Pleas a hundred and thirty pounds against Goodier in Crastino Animar 6 Jacobi and the eight and twentieth of November the same Term being the last Day of the Term the Plaintiff proved an Elegit against Goodier to the Sheriffs of London where the Action was laid and to the County Palatine of Lancaster returnable Crastino Purificationis after which was granted by the Court and by the Elegit to the County Palatine it appeared that it was grounded upon a Testat returned by the Sheriffs of London that Goodier had nothing in London where in truth they never made such a Return and upon that Elegit by a Jury impannelled before the Sheriff of Lancaster a Lease of Tithes was extended for fifty nine years then to come at the value of a hundred pounds which the Sheriff delivered to J. the Plaintiff as a Chattell of Goodiers for a hundred pounds and returned it and that Goodier had no more Goods c. and thereupon Goodier brought a Writ of Error in the upper Bench and assigned for Error that no Return was made by the Shetiffs of London nor filed in the common Pleas as was supposed in the Elegit and it was adjudged Error for although the Plaintiff might have an Elegit as he desired in the common Pleas immediately both into London and Lancashire but seeing he waived the benefit thereof and grounded his Execution upon a Testatum which was false it was Error in the Execution for as it appears 18 H. 6. 27. and 2 H. 6. 9. that a Testatum is grounded upon a former Return filed that the party had nothing in the County where the Action was brought and because it appeared upon Record that the prayer of the Elegits was made the eight and twentieth of November the last day of the Term and by the Testatum it is supposed
the Judgement it is made to be by the Coroners yet it is not helped in this Case for the warrant of the Roll is the Clerk of the Assises Certificate and thus is that the Tales was returned by the Sheriff and the Court cannot intend it to be otherwise then is certified and thirdly the name of the Juror in the Tales which is Gregory is made in the Entry of the Judgement to be George and although the will shall be amended in this point according to the Certificate of the postea then in the other point of the Return of the Tales by the Sheriff it is not amendable and so it is error every way and the Judgement was reversed by the whole Court BRidges versus Enion Hillar 9 Jac. The Plaintiff declares how that he and the Defendant February tenth Anno 7. submitted themselves to the Award of S. R. Bodenham who awarded they should be friends and that the Defendant should pay the Plaintiff ten pounds at Miasummer following at such a place and the ten pounds being unpaid the Plaintiff brought his Action the Defendant pleads in Barr a release made by the Plaintiff to him of all demands which was made the tenth of April before Midsummer when the Debt was to be paid and the release was of all demands from the beginning of the world untill the tenth of April and shows the Release to the Court to which the Plaintiff demurres and adjudged against the Plaintiff for although the sum of Money awarded is not grounded upon any precedent Debt or contract between the parties yet by the opinion of the Court it lies in demand presently and the Plaintiff might assign it by his will and the Executor should have it and by the spirituall Law Administration may be granted of it before the day of payment if the Plaintif dye before yet it is not recoverable before Midsummer nor will any Action ly for it but it is a duty presently by the Award and as the award is perfect presently as soon as it is pronounced so are all the things contained in the Award if they be not made payable upon a condition precedent on the part of one of the Parties as if an award be made that if the Plaintif shall give to the Defendant at Midsummer one load of Hay that then upon the Delivery of the Hay the Defendant should pay the Plaintif ten pounds in this case the ten pounds cannot be released before the Day for it rests meerly in a possibility and contingency for it becomes a Duty upon the Delivery of the Hay onely and not before and therefore it is like the Case 5 E. 4. 42. of a Nomine pene waiting upon the Rent which cannot be released untill the Rent be behinde for the not paying the Rent makes the Nomine pene a Duty and the Case in question is like the Case Littleton 117. where a man is bound to pay Money at a Day to come for a Release of Actions before the Day cuts off the Duty because by 7 H. 7. 6. it is a Duty presently and the Case is stronger here because the Release is of all Demands which observe MOrgan versus Sock Pasch 10. Jacobi Sock brought an Action of Debt upon an Obligation of fourteen pounds entred into by Ar. Morgan Anno 1. Jac. against Tho. Morgan his Administrator the Defendant pleads that after the Death of Arth. and after Administration was to him committed to wit the 16 of September Ann. 6. the Plaintiff brought his Original against him of which he had no notice nntill the 24. of February Ann. 6. before which Day the Defendant was upon the Exig for not appearing which Exig was returnable Tres Pasch after and that the 17. of Febr. which was before the notice his Letters of Administration were revoked by the Archbishop and granted to Rich. M. the Brother of Arth. which Rich. is now Administrator and that he at the time of revoking the Administration had divers Goods of the Intestates in his hands and shews them what they were to the value of two hundred pounds and that he after the Administration revoked and before notice of the Suit had delivered them over to Rich. to wit the 22. of February 6. Jacobi and that he at the time of the Administration revoked had fully administred all the Goods of the Intestates besides the Goods delivered to Rich. c. The Plaintiff replied that the Administration was revoked by Covin between the Defendant and Rich. and upon that they are at Issue and the Jury found it to be Covin by reason whereof the Plaintiff had a Judgement to recover the Debt and Damages of the Goods and Chattels of the said Arth. at the time of his Death being in his hands to be levied and upon that Judgement he brought a Writ of Error and assigned for Error that the Judgement ought to be conditional to wit to recover the Debt of the Goods of the Intestate if so much remain in his hands and not absolutely But the Judgement was affirmed by the whole Court for where the Judgement may be final and certain there it shall never be conditional And because it appears by the Defendants Plea that he had two hundred pounds in his hands of the Intestates Goods it would be in vain to give Judgement against him if he had so much in his hands seeing he himself hath confessed by his Plea that 〈◊〉 more in his hands then would satisfie that Debt and if 〈…〉 could not levy the Debt in the Defendants hands he may upon the Defendants 〈…〉 Damage return a Devastavit and this by the opinion of the whole Court and then there was shewed to the Court a President in the Common Pleas to that purpose DOnghty versus Fawn Mich. 11. Jacobi The Plaintiff declares upon an Obligation of an hundred and twenty pounds dated 2. Novemb. 43. Eliz. And the Condition was that one Edw. Astle by his last Will in writing of such a Date had disposed the Wardship of the Defendant whereof the Defendant was possessed c. if therefore the Defendant do save and keep harmlesse the Plaintiff c. from all Charges and Troubles c. which may happen to the Plaintiff c. for or by reason of the last Will of the said Ed. A. or from any thing mentioned in that touching or concerning one M. Fawn or any Legacy or Bequest to her given or bequeathed or otherwise from Ed. A. to her due then the Obligation c. The Defendant pleads that the Plaintiff was not damnified The Plaintiff replies that after the Obligation made one M. Smith in the behalf of Jo. and Ed. A. Sons of the said Ed. A. named in the Condition did exhibite a Bill against the Plaintiff as Administrator of A. in the Chancery for the payment of the Portions of the said Sons to which Bill the Plaintiff by way of Answer pleaded fully administred and for the making good thereof sets
Writ of Error against Matthew upon a Judgement given in a Quare impedit against the King in the Common Pleas of the Church of A. and the Question was whether a double usurpation upon the King doth so put him out of Possession that he shall be forced to his Writ of Right and it was adjudged in the Common Pleas against the opinion of Anderson that he was put to his Writ of Right but a Writ of Error being brought upon that Judgement in the Common Pleas the Judgement was reversed by the opinion of Popham Yelverton Williams and Tamfeild Fennor being of a contrary opinion and they alleadged two Reasons first because the Right of Patronage and the Advowson it self being an Inheritance in the Crown upon Record the Law will so protect it that no force or wrong done by a Subject it shall be devested out of the King for there is a Record to intitle him but there is no matter of Record against him for a Presentationby a Subject is but matter in fait the which Act although it be mixed with the judicial Act of the Bishop to wit Institution yet it shall not prejudice the King being onely grounded upon the wrong of a Subject and the second Reason was because no man can shew when the Usurpation upon the King should commence and begin for it is not to be doubted but that the King after six Moneths passed if the Incumbent cy might have presented for plenarty is no plea against him and Nullnm tempus occurrit Regi and after that Usurpation upon the King the Court doubted not but that the Patronage was still in the King and Popham said that a Confirmation being made by the King to such a Presentee is good to establish his Possession against a Recovery in a Quare impedit by the King afterwards but that it should not inure to any purpose to amend the Estate of the Usurper for he gaines no Posaession by the Presentation against the King but the Release to him made by the King is void as to so much as is in posaession and during the life of the first Presentee the whole Court did not doubt but that the King might present and then the Death of the Incumbent could not make that to be an Usurpation which was not an Usurpation in his life for his Death is a Determination of the first wrong which will rather help then injure the King and Tanfeild said that so it had been resolved in the Common Pleas 23 24 Eliz. in one Yardleys Case for in that Case there was not any Induction for which reason Judgement was not entred but they were all of the same opinion as the Court then was and onely 43 E. 3. 14. 14 E. 3. and 18 E. 3. are against it and Popham said that a Quare impedit was by the Common Law but it was onely upon a Presentment to wit Induction but if the Incumbent was to be inducted then at the Common Law a Writ of Right of Advowson onely lies DIgby versus Fitzch Trin. 14. Jacobi rotulo It was said in this Case by Justice VVarburton that the Presentment is the Posaession in a Quare impedit as in Rent the receiving and in common the taking of the profits and in a Quare impedit one ought to shew in his Title a Presentation either by himself or one of those under whom the Plaintiff claimes as in a Writ of Right of an Advowson one must shew a Presentation in himself or in his Ancestors whose Heir he is plenarty in a Quare impedit shall be tried by the Bishop for the Church is full by Institution onely in common persons Cases but in the Kings Case the Church is not full untill the Clerk be inducted but whether a Church be void or not shall be tried by the Countrey for of Voidency the Countrey may take notice Actions upon Replevins IF the Cattel be distrained the party that owes them may have a Replevin either by Plaint or Writ at his pleasure and if it be by plaint in the countrey and the Bailiff return to the Sheriff that he cannot have the view of the Beasts to make deliverance then the Sheriff ought to inquire of that by Inquest of office and if it be found that the Beast be not to be had then he ought to award a Withernam and if the Sheriff will not do it then an Attachment shall issue against the Sheriff to the Coroners and after that a Distresse and if a Withernam be granted and a nihil returned upon the Withernam he shall have an alias plures and so infinitely and a second deliverance lies after a Withernam and note that sometimes a Withernam lies after a Withernam as when the Plaintiff is non-suit and after a Return habend and that the Beasts are not to be found that the Beasts of the Plaintiff are taken in Withernam and the Plaintiff appears and alleadges that the Defendant had the cattel first taken and prayes Delivery And if the Defendant when the Sheriffe comes to make replevin of the cattel claims property then at the return of that writ another writ de proprietate probanda shall issue to the Sheriff by which writ the Sheriffe is commanded that taking with him custodibus placitorum c. he shall enquire of the property And if it be found that the property was to the Plaintiff then a redeliverance shall be made the Plaintiff and an Attachment against the Defendant to answer for the contempt in taking and unjustly deteyning the cattell of the Defendant appear upon the plures withernam he shall gage deliverance presently And if the Defendant in Court claims the property and it be found against him the Plaintiff shall recover the value of the cattell and his dammages And if the Defendant plead in abatement of the writ that the property is in the Plaintiff and one other c. and the Plaintif confesse it by which the writ shall abate by an award upon the Role and a return habend be awarded to the Defendant yet the Plaintif shall have a new replevin and the return shall not be irreplegiable for the Statute of Westm the second doth not help a false writ or abatement of a writ but the Plaintif may have a new writ from time to time but it helps non-suits in replevin for if he be non-suit he shall not have a new replevin but a writ of second deliverance And if the Defendant upon the return habend adjudged for him cannot have the return of the Beasts and the Sheriff returns upon the return habend that the cattel first taken are dead he may have a Scire facias against the pledges and upon a nihil return upon that he may have a Scire facias against the Sheriff for insufficient pledges are no pledges and the party may relinquish his withernam and fall upon the pledges or the Sheriffe And if cattell be put into a Castle or Fortress the Sheriffe
village is in question or could come in Issue yet it was resolved by the whole Court but him that those of the village of Bail might well know whether the Plaintif being an inhabitant within the village in which the Leet was were a chief Pledge at the Court or no for to have cheif pledges doth properly belong to a Leet which Leet is within the village and therefore they of the Mannor cannot have so good knowledge of the matter as they of the Mannor and village together and therefore they all ought to have been of both as in the Case of Common or a way from one village to a house in another village this ought to be tried of both villages and so also of the Tenure of Land in D. held of the Mannor of Sale the triall must be as well of the village where the Land lies as of the Mannor of which the Land is holden as it was adjudged Hill 45. El. in the then Queens Bench in the Case between Lovlace and and Judgement was reversed and see 6 H. 7. and Arundels case in my Lord Cooks Reports BVrglacy versus Ellington Burglacy brought a Replevin against Ellington for the taking of his cattell c. the Avowant pleads that one W. B. was seised of the place in which c. in his Demesne as of Fee and being so seised died by reason whereof the Land descended to one Crist. his Daughter and Heir who took to Husband the Avowant the Plaintiff in his Barr to the Avowry confesses that W. B. was seised and that it descended to C. who took to Husband the Avowant but he further said that the 16 of April primo Jac. the Husband and Wife by their Deed indented and inrolled did bargain and sell the same Land unto one Missenden and a Fine levied by them and that M. the 30 of James bargained and sold it to F. M. in Fee and he being so seised licensed the Plaintiff to put in his cattell the Avowant replies if in the said Bargain and Sale made by the Husband and Wife a Proviso was contained that if the said Ellington should pay one hundred pounds a year after then c. and pleaded the Statute of 13 Eliz. of usury with an averment that the profits of the Land were of the value of twelve pounds by the year the Plaintif rejoyned that true it is there is such a clause in the Indenture but he further said that before the sealing of the Indenture it was agreed by word that the said Ellington should have and receive the profits and not the Plaintif and thereupon the Avowant demurres and the Case was thus Ellington bargains his Land to M for the payment of one hundred pounds a yeare after to be paid and that the Bargainee should have the profits the bargainor enters as upon a void Sale because of the statute of usury for by the Proviso â—he is to have the hundred pounds and ten pounds for the forbearance and by the Law he is to have the profits and the which did amount above ten pounds by the hundred the bargainee to avoid the usury pleaded an agreement by word before the sealing of the Bargain and Sale and the question arising upon this was if the Bargainee might plead this verball agreement for the avoiding of the Deed which did suppose the contrary and Moore of Lincolns â—nne counsell was of opinion that he could not put that maxime that every thing must be dissolved by that by which it is bound and his whole argument depended upon that and he cited divers Cases as 1 H. 7. 28. 28 H. 8. 25. 1 Eliz. Dier 16. 9. Rutlands Case 5 Rep. and Cheyney 6 Case there but the whole Court without any argument were of opinion that he might plead the verball agreement and avoid the usury and first they all agreed that when a Deed is perfected and delivered as his Deed that then no verball agreement afterwards may be pleaded in destruction thereof as it is in the Cases put but when the agreement is parcell of the Originall contract as here it is it may be pleaded and secondly otherwise it would bring a great mischief being the custome so to do by word but if it had been expressed within the Deed that the Bargainee should have the profits and that it was delivered accordingly that no agreement or assignment of the profits could now avoid it for it is an usurious contract and therefore the whole court gave Judgement for the Plaintif that he might well plead the agreement Actions of Trespass and Battery JOhnson versus Turner Trin. 44 Eliz. Trespasse brought for breaking the Plaintifs house and the taking and carrying away his goods the Defendant justifies all the Trespasse the Plaintif as to the breaking of the House and taking the goods and the matter therein contained demurres upon the Defendants Barr the Defendant joins in demurrer in this form to wit because the Plaintif aforesaid as to the breaking of the House and taking the goods is sufficient demands Judgement and Judgement given in the Common Pleas for the Plaintiff and a Writ to inquire of Damages upon which Damages are assessed for the breaking of the House and taking the goods and whether the subsequent words to wit and the matter therein contained go to the whole matter in the Barr to wit to the carrying of the Goods away also for when the Defendant joyned in Demurrer with the Plaintiff he joyned specially to wit to the breaking of the House and taking the Goods but nothing of the carrying them away and so as to the carrying of them away nothing is put into Judgement of the court yet the Writ to inquire is for the whole and the Judgement also and the carrying of the Goods away being parcell of the matter and for which greater Damages are adjudged and that being not put into the Judgement of the Court by the Demurrer therefore the Judgement is erronious for there is a discontinuance as to the carrying of the Goods away which is part of the matter and this businesse concerned Mr. Darcy of the privy chamber concerning his patent for Cards PVrrell versus Bradley Pasch 1 Jacobi The Plaintif declares in Trespass wherefore by force and Arms such a day the Defendant did assault him and one Mare price six pounds from the person of the Plaintiffe then and there did take and Yelverton moved for the Defendant in arrest of Judgement and the Declaration was not good for the Plaintif did not shew any property in the Mare for he ought to have that it was his Mare or the Mare of the Plaintif for as it is laid in the Declaration the words may have two intendments that the property of the Mare was to the Defendant and then the taking was lawfull or that the property was in the Plaintif and then the taking was wrongfull and it being indifferent to whether it shall be taken most strongly against the Plaintif for his
his house which he could not do for the entring is one act done and ended at the going out again And therefore if he re-enter it is a new Trespass and the continuando is only alledged for the aggravation of damages 2 R. 3. 15. 10. E. 3. 10. 16. E. 3. 24. That a continuando cannot be for breaking the House but Doddridge and Haughton Justices the rest being silent were of opinion that it might be alledged that a continuando for although it might be that if hee went forth and re-entred it should be a new Trespass but if upon his first Entry he continued divers dayes it might be alledged with a continuando And see for that Mich. 38. El. in the Common Pleas fol. 118. If a Disseisee re-enter he shall have an Action of Trespass against the Disseisor with a continuando And so is Fitzherberts Nabrevium 91. L. that a continuando may be laid as well for breaking a House as eating the Grass and so is 10. E. 3. 10. and 20. H. 7. 30. by the opinion of Gapley GEush against Mynne Pach. 11. Jacobi An Action of Trespass brought wherefore by Force and Armes the Close of the Plaintiff did break c. The Defendant justified by reason there was a report that a Vermine called a Badger was found there to the great damage of the Inhabitants by reason whereof he uncoupled his Beagles in the place where c. and hunted there and found the Badger and pursued him untill he Earthed in the place where c. by reason whereof he digged the ground and took the Badger and killed him and afterwards hee stopped up the Earth again which is the same Trespass and demands Judgment whereupon the Plaintiff demurs And upon reading the Record Scamber of the Inner Temple was for the Demurrer and that the Defendant could not justifie as this case was And first he was of opinion that the Common Law warrants hunting such noysome Beasts although it be in the Lands of another because it is good and profitable to the Common-wealth that such hurtfull Beasts should be extirpated according to the 8. E. 4. 15. And Fishermen may justifie their Nets upon anothers Land 13. H. 8. 16. 22. H. 6. 49. A man may justifie entring into a house to serve a Subpaena 3. H. 6. 336. A man may justifie the entring into anothers Land with the Sheriff to help him to distrain but otherwise it is for things of pleasure as 38. E. 3. 10. B. You cannot justifie the Entry when your Hawk hath killed a Pheasant in anothers Land and so for hunting of Hares or Conies in the Free-hold of another but although the Law allows and permits such Entries as aforesaid yet the Law requires that such things shall be done in an ordinary and usuall manner as 12. H. 8. 2. A Commoner cannot digge the Land to make Trenches although it be for the benefit of another and this is confirmed and explained by the Statute of 8. Eliz. cap. 15. For although that Statute gives reward for the killing of Vermins yet the Statute further saies that it must be with consent and with reasonable Engines and Devices 2. R. 2. Barr. 237. Grant of Fish in the Pond one cannot dig the Land and make a Sluce but must take with them Nets And so if a man grant to me all his Trees in such a place I I cannot grub up the roots out of the earth if there be any other way to take them but if there be no other way then it is otherwise as 9 Ed. 4. 35. a. A grant to put a Pipe in my Land and afterward it is stopped I may dig to mend it by the opinion of the Court and therefore there being an Ordinary course to wit hunting to kill the Badger the digging for that is unlawfull and the Action will well ly Mich. 36. and 37 Eliz. 60. Nicholas Case expressely for a Fox and Fenner held it was not lawfull to break a Hedge in the pursuit MIles against Jones Pasch 11 Jac. Miles brought an Action of Trespasse against Jones wherefore by force and Arms his goods c. The Defendant pleads that the Plaintiff 5 Jacobi acknowledged a Recognisance of 100. l. at Mich. at which day he did not pay it and that two years after the Recognisance was extended upon his goods because the monies were not satisfied at the day nor at any time after the Plaintiff replies that they were paid in the sixth year of James and desires this that it may be inquired onely by the Countrey and the Defendant likewise and upon the Triall it was found for the Plaintiff and it was new moved in arrest of Judgement by Goldsmith that there was no Issue joyned for an Issue ought to be joyned upon a thing alledged by the party DOyly against White and Webb Trin. 11 Jacobi Doyly brought an Action of Assault Battery and imprisonment of his wife against White and Webb The Defendant pleads a speciall Justification to wit that in November 2 Jacobi an Action of Trespass was brought in the Common pleas by one A. against Julian Goddard and upon the generall Issue it was found for J. G. and Judgement given for her and afterwards and before Execution J. G. takes to Husband the now plaintiff and afterwards brings a Writ of Error in the Kings Bench and upon a Scire Facias against the said Julian the Judgement in the Common pleas was reversed and costs given to A. the plaintif in the Writ of Error and aftewards a Capias ad satisfaciend was directed to the now Defendants to take the said I. G. by Force of which the said Defendants took the woman of the now plaintif with an averment that the said I. G. and the Wife of the now Plaintif were one and the same person and the plaintif demurres upon this plea and Yelverton moved that this justification was not good for divers causes first when the Sherif is to execute a process he is to do it duly and upon the right person at his perill and for that see 11 H. 4. 90. b. If the Sherif take the goods of another in Execution he is a trespassor 5 E. 4. 50. a. If a Capias be to take I. S. and there be two of the same name he ought to look to take the right man at his perill and as he ought to take notice so he must pursue his authority and for this see 10. E. 4. 12. b. if a Capias issue out against I. S. the Son of A. and he take I. S. the Son of B. false imprisonment lies against him and in a Case when his Warrant is against I. G. there is no such J. G. for by her marriage with the Plaintiff she had another name and he is therefore a Trespassor for the taking of J. Doyly and his averment cannot help him because it agrees not with his Warrant and so cannot be intended to be the same person but if the variance was
of Parent 42 Imparlance what plea after 42 Judgment Arrested 2 Judgment reversed because the Sheriff was not named in the Venire facias 3 Iudgment arrested 5 Justification not good where 5 Justification amounting to a not guilty naught 5 Innuendo will not help the action 7 9 Imparlance Roll supplyed by the issue 9 Juror committed 44 Judgment upon a By-law 48 49 Judgment pleaded in Bar by Executor 49 Judgment against Executors 53 Imparlance amended 53 Judgment arrested for improper words Sans Anglice 82 Jeofaile the statute not helping where 82 Judgment reversed by Error in the disjunctive 88 Intendment upon a Will 89 Judgment reversed in an inferiour Court why 97 Judgment reversed for Errour in the judgment 99 Judgment reversed for changing the Defendants addition 100 Judgment priority considerable 102 Judgment reversed for not shewing in what Court a deed was enrolled 115 Judgement reversed for want of words in the Tales 115 116 Implication not allowed of in a surrender where 128 Judgment in an Eject firmae 129 Interest what 136 Judgment reversed by Writ of Error non obstante a verdict the Statute of 18. Eliz. 106 Imparlance what is pleadable after 138 Joynture what 139 Interest in possession and in future the difference 148 Implication not intended where 153 Judgment arrested for that the plea was naught 172 Jurors name mistaken was amended upon constat de persona Iudgment arrested for not shewing in what place the Messuage did lie to which Common did belong 188 Iury challenge 194 Iudgment it 's nature as to the Plaintiff and Defendant 194 Issue helped by the Statute of Jeofailes where 200 Iudgement reversed because the writ of Enquiry was before a wrong Officer 203 Imprisonment justified by the commandment of the Maior of London naught where 204 Justice of Peace cannot command his servants to arrest in his absence without Warrant 205. Iustification in Trespass for a way 212. Iustification not good where 218. Iustification speciall pleaded in Battery 226. Issue of things in severall places 229. K. KIngs Title not lost 164 Knight ought to be returned in the Pannell where 193. L. LAw Gager lies not if the except be per manus proprias 25 Lease to two determined upon the death of one where 30. Lease of a Reversion sans Attornament where good 30. Legacy of Land not suable for in Court Christian 32. Legacy of a Chattell suable for in Court Christian 34. Locallity not to be made transitory 35. Limitation is taken strictly grant aliter 39. Lessee at will cannot grant over his Estate 43. Law mistaken where it is hurtfull 41. Letters of Administration ought to be shewed 9. Law waged where 53. Law wager by a false party 55. Letter of an attorny where naught 94. 95. Law Gager lies not in debt for sallery 60. Law Gager where 70. 65 Lessee at will if he determine his Will Devis au yet shall pay the intire Rent 90. Lease to try a Title of Lands in the hands of many 129. Lease to be executed by Letter of an Attorney how 129. Lease made to three for their lives with a Covenant that the Land should remain to the survivor for 90 years is a good Interest in the Survivor 136. London how houses passe without inrollment 141. 142. Liberty to make Leases 169. Lease for life to three where it was naught 175. Lord of Parliament not appearing shall forfeit 100 l. 193. Lunatick where an Action ought to brought in his name 197. Levant and Couchant is certainly fufficient 198. M. MIstryall the Ven. fac mistaken 17 Mistake of the Iury 18 Misprision of the Clerk amended 26 Monasteries dissolved onely those Regular 39 Mistake by the Court no prejudice 42. Mistriall 7. Missworn fellow Actionable 9. Medietas Linguae where 45. Master chargeable where 64 Misprision of the Clerk amended after tryall 88. Mannor by that name what will passe 155. Mistake of a day of an Act by way of Bar not prejudicial 196. Marshalsey hath no authority to hold plea of Debt except one party be of the houshold 199 Marshalsey no Iurisdiction 199. 200. Master cannot have an Action for the loss of Service if the Servant die of the beating 205. N. NOtice not necessary 10 Non est inventus where the party did escape 12 Nusance where it lyeth 4. Non damnificatus pleaded 7 Noverint for non assumpsit 8. Notice where needfull 46. Nul tiel Record pleaded to a Plea of Outlawry 84. Non damnificatus pleaded 118. Nisi prius amended by the Roll 133 Nonage tryed where it is alledged not where the Land lies 150. 151. Non-tenure pleaded 153. Nisi prius the Record amended upon motion 156 Nullum tempus occurrit Regi 166. Negativum praegnans 172. Non residency the Statute 13 El. a generall Law 208. New Asignment where not good 217. Bar to it 236. Nihil dicit 237. 238. Non omittas 240. O ORdinary cannot make a division 32. Ordinary his power 45. Outlawry no Plea where 55. Outlawry in the Testator 55. Originall want of it after verdict no Error 97. Obligation discharged why 98. 99. Originall against four count against three without a Simulcum adjudged naught 130 Ordinary and Patron their severall Rights 202. P. PArdon generall de effect 10. Promise by an Infant not good 11 Papist to a Bishop actionable 12. Proviso implicit where good 14. Perjured knave actionable 15. Proviso 18 19. Pyracy no excuse in an Action of Covenant 21. Plea in abatement 27 in Assise 28. Premunire in a Parson 30. Pleas severall cannot be in a joint debt or contract 30. Proof how far extendible 33 Where required and where not 34. Pardon crimen legitur non tollitur 34. Priviledge from Arrest where not to be allowed 84 Prender and Render the difference 34. 35. Prescription where good 35 Property not altered upon a Scire facias 41. Punishment corporall not to be imposed for the default of a deputy where 45. Proviso Executory and executed the difference 8. Priviledge respective 47 Payment where peremptory 49 Plea made good by verdict 52 Payment when upon demand 52 Pardon generall pleaded 56. Plea to a Bond taken by the Sheriff 58. Payment to the Heir and not to the exceutor where good 64. Priviledge of an Vniversity where not to be allowed 75. Plene adm nistravit no Plea where 77 78. Proprietor sufficient 88. Priviledge of Parl. pleaded 92 Plea naught for want of traverse 98. Primo deliberat shall not be pleadded sans traverse 105. Propriety of goods cannot be in abeyance 132. Prescription and custome do differ how 132. Processe misawarded where helped by the Statute 134. Plea where it shall be in discharge but not in Barr of an obligation 109. Partition Processe in it 156. For whom it lies 157 Partition error in the first Judgement 157. Partition in another Writ was pleaded Presentment of a Clerk by words good 162. Patrons 6 moneths 165. Proprietate probanda 167. Plea naught 173. Pannell of hab corp
Statute and if the Words do not extend to that then the Equity of the Statute shall not extend to that and he said that Copy-hold is not within any of the Statutes which are made in the same yeare as the Statute which gives Elegit and such like and to Littleton that an Estate by copy is where Lands are given in Fee-simple Fee-taile and that Formedon lies for that with which agrees 10 Ed. 2. Formedon 55. It seems that the Estate taile here mentioned shall be intended Fee-simple conditionall at the Common Law and the Formedon in Discender which was at the Common Law for alienation before Issue And so Littleton shall be intended For the Estate is within time of memory see Heydons case that a Copy-hold Estate is an Estate in being within the Statute of 31 H. 8. And Manwood there said that insomuch the Estate of that is created by custome and the Estate taile is created by Statute yet it shall not be within the Statute and he said that the case of 15 H. 8. B. Copy of Court 24. is repugnant in it self in the words of Formedon for he saith though that Formedon was given by Statute and was no otherwise in Discender yet now this Writ lies at the Common Law and it shall be intended that this hath been a custome there time out of minde c. And so he concluded and prayed Judgment for the Plaintiff Pasche 9. Jacobi 1611. in the Common Bench. Yet Bearblock and Read SEE the beginning before Hillary 8. Jacobi this Case was argued by Hutton Serjeant that the Plaintiff in the Action of Debt ought to Recover for if Executor may pay Debt due by the Testator by Obligation before Debt due by Judgement this shall be a Devastavit as it is resolved in Trewinyards Case 6. and 7. Edward 6. Dyer 80. 53. And he shall be charged for the Iudgement with his owne goods And so it was adjudged between Bond and Hales 31. Eliz. that Judgement at the Common Law shall be first satisfied before the Statute which is but a Pockett Record and Medium redditer in invitum Also it was adjudged in Harrisons Case 5. Coke 28. b. That Debt due upon an Obligation shall be first payd before Statute with Defeasans for performing of Covenants the which Defeasens is not broken and also it is adjudged between Pemberton and Barkham here cited that Judgement shall be satisfied before Statute Merchant or Staple or Recognizance though that the Statute be acknowledged before the Judgement had by the Testator See this Case in Harrisons Case 5. Coke 28. b. and in 4. Coke 60. a. Sadlers Case upon which he infers that if an Executor first satisfie a Statute or a Recognisance before a Judgement that this shall be a Devastavit as well as if he satisfies an Obligation first as in Trewynyards Case and that when the Plaintiff which hath Judgement the Executor may aid himselfe by Audit a querela by this matter subsequent Quere of Doctor Druryes Case as in 7 H. 6. 42. in Detinue against Gamishe and Judgment had for the Plaintiff If the Judgement be reversed restitution shall be made to every one which hath losse So here by Audita Querela if the Executrix hath not more then was taken in execution by the Statute and it seemes to him that the Judgement in the Scire Facias shall not be a Barr in this Action for the Judgment remaines Executrix and the Plaintiff may have Action of Debt upon that But of the contrary if the Plaintiff had brought Action of Debt upon the Judgement and had been barred then shall be barred in Scire Facias also But the Plaintiff this notwithstanding may have Scire Facias upon surmise that there are new assets come to the hands of the Executor and so he concluded and praied Judgement for the Plaintiff Nicholls Serjeant for the Defendant relies only upon the Judgement had upon the Scire Facias and that till that he Defeated the Plaintiff cannot maintaine Action of Debt for the Action of Debt is nothing but demanding of Execution and for that till the first Judgement be Defeated the Plaintiff hath no remedy at the Common Law All things which barr the Execution of the Judgement in Scire Facias these shall be Barrs in an Action of Debt as in Baxters Case here last adjudged in an Action upon the Case for slanderous words the Defendant pleads that he had justified the speaking of these words at another time in another Action brought against him and had a verdict and Judgement upon that and so demands Judgement and adjudged a good Plea till the first Judgement is reversed for Judgement is the saying of the Law and 13. Eliz. Dyer 299. 34. in Debt for Costs recovered in a Writ of entry the Defendant pleads that the Plaintiff hath sued an Elegit which was Executed and a good Barr in an Action of Debt and so 1. and 2. P. and M. Dyer 107. 24. In Debt for Dammages recovered in Assise the Defendant pleads in Barr that after the verdict given and before Judgement the Plaintiff entred into the Land and there no Judgement is given But it seemes if the Plaintiff fayl of Course that the Common Law prescribes that then he shall not have Execution for of those things which rightly are Acted let there be Executions but if the Defendant in the first Action had pleaded a release and Judgement was given upon that against him he cannot plead that againe for it runs into the thing Judged 34. Ed. 3. in Debt against an Executor and part of the assetts found the Plaintiff cannot have new Scire Facias without Averrment that there are new assetts and 34. H. 6. Action with averment that there are assets and Judgement good both waies and presidents shewed of both Courts And he intended that the Executor could not have helped himselfe by Audita Querela unlesse he feares to be impleaded but after Execution he cannot have Restitution and so concluded and praied Judgement for the Defendant Coke cheife Justice that there cannot be a Devastavit in the Wife unlesse that it be voluntary payment by her for the Statute of 23. H. 8. gives present Execution of a Statute Staple without Scire Facias So that the Wife had no time to plead the Judgement and for that this unvoluntary Act shall not be a Devastavit for she is no agent but only a sufferer And at the Common Law if the Plaintiff hath Judgement in an Action of Debt after the yeare he hath no remedy but new Originall and this mischeife was remedied by the Statute of Magna Charta which gives Scire Facias in place of new Action But it seemes to him that the Barr in the Scire Facias shall remaine good Barr till it be reversed as in 2 Rich. 3. A man hath election to have action of Detinue or action of Trespasse and he brings his action of Detinue and the Plaintiff wages his Law and after
Mannor held in cheife and of other Mannors and Lands held of a Common person in socage and had Issue foure Sonns Thomas William Humphrey Richard And by his Deed 12 Eliz. covenants to convey these Mannors and Lands to the use of himself for his life without impeachment of wast and after his desease to the use of such Farmors and Tenants and for such Estates as shall be contained in such Grants as he shall make them and after that to the use of his last will and after that to the use of VVilliam his second sonn in tayle the Remainder to Humphrey his third Son in tayle the Remainder to Richard the fourth Sonn in tayle the Remainder to his own right Heires with power of Revocation and after makes a Feoflment according to the covenant and after that purchases eight other acres held of another common person in socage and after makes revocation of the said Estates of some of the Mannors and Lands which were not held by Knights service and after that makes his Will and devises the Land that he had purchased as before and all the other Land whereof he had made the Revocation to Thomas his eldest son the Heirs Males of his body for 500. years provided that if he alien and dye without Issue that then it shall remaine to William his second sonne in tayle with the like proviso as before and after dyed and the Jury found that the Lands whereof no revocation is made exceeds two parts of all his Lands Thomas the eldest sonne enters the 8. Acres purchased as before and dyes without Issue male having Issue a Daughter of whom this Defendant claimes these eight Acres and the Plaintiff claims them by William the second Son And Dodridge the Kings Serjeant argued for the Plaintiff intending that the sole question is for the 8. acres purchased and if the devise of that be good or not by the Statute of 34. H. 8. And to that the point is only a man which hath Lands held in cheife by Knights service and other Lands held of a common person in Socage conveys by act executed in his life time more then two parts and after purchases other Lands and devises those if the devise be good or not And it seems to him that the devise is good and he saith that it hath been adjudged in the selfe same case and between the same parties And this Judgment hath been affirmed by writ of Error and the devise to Thomas and the Heirs males of his body for 500. years was a good estate tayle and for that he would not dispute it against these two Judgments But to the other question hee intended that the devise was good and that the Devisor was not well able to doe it by the Statute of 34. H. 8. And hee intended that the statute authoriseth two things 1. To execute estates in the life time of the party for advancement of his Wife or Children or payment of his debts and for that see 14. Eliz. Dyer and that may be done also by the common Law before the making of this statute But this statute restrains to two parts and for the third part makes the Conveyance voyd as touching the Lord But the statute enables to dispose by Will a parts where he cannot dispose any part by the Common Law if it be not by special Custome but the use only was deviseable by the common Law this was altered into possession by the statute of 27 H. 8. and then cometh the statute of 32. and 34. H. 8. and enables to devise the Land which he had at the time of the devise or which he purchased afterwards for a third part of this Land should remain which hee had at the time of the devise made and if a third part of the Land did not remain at the time of the devise made sufficient should be taken out of that but if the Devisor purchase other Lands after hee may those wholly dispose And for that it was adjudged Trin. 26. Eliz. between Ive and Stacye That a man cannot convey two parts of his Lands by act executed in his life time and devise the third part or any part so held by Knights service and also he relyed upon the words of the statute that is having Lands held by Knights service that this shall be intended at the time of the devise as it was resolved in Butler Bakers Case That is that the statute implies two things that is property and time of property which ought to be at the time of the devise But here at the time of the devise the Devisor was not having of Lands held by Knights service for of those he was only Tenant for life and the having intended by the statute ought to be reall enjoying and perfect having by taking and not by retaining though that in Carrs Case cited in Butler and Bakers Case rent extinct be sufficient to make Wardship yet this is no sufficient having to make a devise void for any part Also if the Statute extend to all Lands to be after purchased the party shall never be in quiet and for that the Statute doth not intend Lands which shall be purchased afterwards for the Statute is having which is in the Present tence and not which he shall have which is in the Future tence and 4. and 5 P. and M. 158. Dyer 35. A man seised of Socage Lands assures that to his Wife in joynture and 8. years after purchases Lands held in cheife by Knights service and devises two parts of that and agreed that the Queen shall not have any part of the land conveyed for Joynture for this was conveyed before the purchase of the other which agrees with the principall case and though to the Question what had the Devisor It was having of Lands held in Capite insomuch that he had Fee-simple expectant upon all the estates tayl he intended that this is no having within the Statute but that the Statute intend such having of which profit ariseth and out of which the K. or other Lord may be answered by the receipt of the profits which cannot be by him which hath fee-simple expectant upon an estate tayle of which no Rent is reserved and also the estate tayle by intendment shall have continuance till the end of the world and 40. Edw 3. 37. b. in rationabili parte bonorum it was pleaded that the Plaintiff had reversion discended from his Father and so hath received advancement And it seems that was no plea in so much that the reversion depends upon an estate tayle and upon which no Rent was reserved and so no advancement So of a conveyance within this Statute ought such advancement to the youngest sonne which continues as it is agreed in Binghams Case 2 Coke that if a man convey lands to his youngest sonne and he convey that over to a stranger in the life time of his father for good consideration and after the Father dies this
of Norfolke and Marshall and their Authority and Jurisdiction was absolute and their Judgements not reversable unlesse by Parliament and this appeares by the Statute of 5. Ed. 3. chap. 2. that they might hold Plea of things which did not concerne them of the household and also the words of the Statute of Articuli super chartas chap. 3. 28. Ed. 1. provides that the Marshalsey shall not hold Plea of free hold of covenant nor of any other contract made between the Kings people but only of Trespasse made within the Kings house or within the Verge and of such Contracts and Covenants which one of the honse made with another of the house and within the house and in no other place where Trespasse is Limited to the Kings house or within the Virge but no restraint that the parties shall be of the Kings House or otherwise it shall not be intended which shall be only those which are of the Kings House insomuch that the Trespasse is limited to be made within the Virge also he sayd it was a statute made 30 Ed. 1. which provides that if any causes arise amongst the Citizens of London only that this shall be tryed amongst the Citizens but if it be between them of the House it shall be tryed by them of the House by which it appears that they may hold plea between Citizens of London where none of the parties are of the Kings House also the statute of 6 Ed. 3. chapter 2. provides that in Inquests they shall be there taken by men of the Country adjoyning and not men of the Kings Houshold if it be not betwixt men of the Kings Houshold if it be not for Contracts Covenants and Trespasses made by men of the Kings Houshold of one part and that the same House which referrs to the statute of Articuli super chartas before cited and this expounds and so the Statute of 10 Ed. 3. chapter 2. provides that in Inquests they are to be taken in the Marshalsey that the same inquests shall be taken of men the Country thereabouts and not by People of the Kings House if it be not of Covenants Contracts or Trespasses made by people of the same House according to the Statute made in time of the Grand Father of the said now King and according to that the use hath been that is if none of the parties of were the Kings house then the tryal had been by the men of the country adjoyning And if one of the parties be of the house and another not then the tryall is by party Juries and if both the parâ—ies be of the house then all the Jury hath used to be of the house and if the Cause be between Citizens of London then the tryall hath used to be by Citizens of London and in the Book of Entries the same plea was pleaded in false Imprisonment 9 10. and the Register fol. 1 1. A. in action upon escape in Trespasse and to the Books of 7 H. 6. 30. 10 H. 6. Long 5 Ed. 4 19 Ed. 4. 21 Ed. 4. He saith that none of these Books are in action of Trespasse but one onely and that is mistaken in the principall point and so may be mistaken in one by case And the Booke of 10 H. 6. 30. is directly in the point but Brooke in abridgement of that saith that the practise and usage of the Court was otherwise But it may be objected that this is Indebitatus assumpsiâ— which is in nature of an action of debt and founded upon contract he said that Fitzherbert in his Natura Brevium said that there are two sorts of Trespasses that is General and upon the Case and Trespasse is the Genus and the other are the Species and that the action is founded upon breach of promise which is the Trespasse as for not making of a thing which he hath promised to doe and it is Majesteale breve and not breve formatuâ— and so is an action of Trover and Conversion or Assumpsit are Writs of Trespasse but admit that no yet action of false Imprisonment doth not lye for hee ought not to dispute the authority of the Court for the duty of his Office is only to be obedient and diligent for otherwise he should be judged of the Judg And who by the appointment of the Judge doth any thing doth not seem to do it deceitfully because it is of necessity he should obey and 14 H. 8. 16. a Justice of Peace awarded a Warrant to arrest a man for suspition of Felony where his Warrant was void and yet the party to whom it was directed justifies the making of the Arrest by force of that And 12. H. 7. 14. Capias was awarded to the Sheriff without original yet it was a sufficient Warrant to the Sheriffe and 22 Assis 64. Court awarded a Warrant where they had no Jurisdiction and yet it was a sufficient Warrant for him to whom it was directed And so in Mansells case if the Sheriffe execute an habere facias sesinam awarded upon a void Judgement this is a sufficient Warrant for him So in this case allowing that the Court hath no Jurisdiction yet the Plaintiff cannot be retained by this action but is put to his Writ of Error or to his action upon the Statute and so he concluded and prayed Judgment for the Defendant Hutton Serjeant for the Plaintiff argued to the contrary and hee intended that Judgment should be given for the Plaintiff for the matter and also for the Parties and that the Judgement and all other proceedings in the Marshalsey were meerly void and he denyed that they had originally such absolute jurisdiction as Fleta pretended for originally that was only for the preservation of the peace as it appears by the stile of the Court and also by the diversities of the Courts and that Criminall causes which require expedition are there only tryable and that civill causes are incroached of later times and it was necessary to be restrained and reformed by Parliament And it appears by the Statute of Articuli super Chartas that they have encroached to hold plea for free-hold and for that the Court which is mentioned in Fleta cannot be otherwise intended then the Kings Bench which then followed the Kings Court And also that they have not incroached only upon matters as to hold plea for Free-holds but also to persons and place where Contracts and Trespasses were made and this was the cause of the making of the said Statute And to this action of Trespasse for indebitatus assumpsit there begun he intended that it is for another thing of which they could not hold plea and it might be criminall for Civill is that which begun by contract and it is part of the commutative Justice for which is recompence given by one party to another and is not founded upon the Contract but is translated to an action of Trespass which manner of Trespass is not within the Statute and so he intended that
for the matter it is not within the Statute and then for the persons also he intended that it is not within the Statute and this appears by the words of the Statute of 28. Edw. 1. Articuli super Chartas and to that 10. H. 6. 130. it is adjudged that Judgement in such case there given is void and Coram non Judice so 7 H. 6. 30. expresses the cause to be insomuch that none of the parties are of the houshold of the King 4 H. 6. 8. 19 Edw. 4. 8. 5. Edw. 4. 32 H. 6. Rot. 27. And he cyted also Michelburns Case to be adjudged upon a Writ of Error in the Kings Bench 38 Eliz. That they could not tender a Plea in Trospasse for Trover and Conversion if none of the parties were of the Kings house and further he said that when a Court hath Jurisdiction and errs in matter of proceedings or in Law there the Execution made by force of their Process shall be lawfull But where the Judgement is void by default of Jurisdiction as in this Case there it is otherwise as 10 H. 6. 13. Recovery of Land in the Spirituall Court is void so Formedon commenced Judgment given upon that before the Judges of Assises void So 36 H. 6. 32. Recovery of Land in Wales in this Court is void and 8 Edw. 4. 6. Recovery of Land in ancient demesne is avoidable by Writ of Deceipt But in the other cases before the Judgment and Recovery is absolutely void and Coram non Judice for default of Jurisdiction So in 9 H. 7. 12. b. Recovery of Land in Durham Chester or Lancaster here is void for the same cause And in this case also the said Statute makes that void by expresse words see the statute of Articuli super Chartas Chap. 3. And to the case of 14 H. 8. before cyted of Warrant awarded by Justice of Peace he agreed that insomuch that the Justice of Peace had Jurisdiction of causes of Felony and erred only in the forme and manner of his proceedings and so in all the other cases which were put of the other part And also hee agreed that a Writ of Error may be well maintained if such Judgement which is void as it was in Michelburns case for the party may admit the Judgment to be but voidable if he will And to the exceptions to the pleading that is that the authority is not prosecuted 1 Postea that is such a day which was before the Judgment and yet it seems good and that in the first the authority was very well prosecuted in the 2 Postea was sufficient and the other words that is such a day is but surplusage and so he concluded and prayed Judgment for the Plaintiff and it was adjourned Michaelmas 1611. 9. Jacobi In the Common Bench. Peto against Checy and Sherman and their Wives Triâ— 9. Jacobi Rot. 1151. IN Trespasse and Ejectione firme the Defendants pleaded that one of the Defendants made agreement with the Plaintiff for the said Trespasse and Ejectment with satisfaction and demands Judgment if action upon which the Plaintiff demurred in Law and it was argued by Nicholls Serjeant for the Plantiff that the agreement was no plea though it be said by Keble in the 11. H. 7. 13. That though it be a Plea in Ravishment of Ward quare Impedit and quare ejecit infra terminum insomuch that they are actions personall But Wood denyed that insomuch that Inheritance is to be recovered and in Ejestione firme tearm shall be recovered and for that it shall not be spoken and of this is Wood expresly in the 13. H. 7. 20. b. That in Ejectione firme agreement shall not be a plea insomuch that the tearm is to be recovered which is the thing in demand And there also it is agreed that in Waste brought against Lessee for yeares in the Tenet agreement is good plea and so Vavasor intended if it be in the Tenet but not if it be brought against Lessee for life And also he intended that by Recovery in Ejectione firme more shall be recovered then the tearm only for by that the reversion shall be also reduced and for that the Inheritance is drawn in question and it is said in 11. H. 7. 13. that it shall not be a plea in Assise insomuch that there the Free-hold is to be recovered and by the same reason hee intended that shall be no plea insomuch that more is to be recovered then in Assise for there the Tenant only shall recover the free-hold and his damages but here the Tearm and the Inheritance also are reduced and revested And this is the reason also which is given in 11. H. 7. 13. b. by Fisher That if a man make a Lease for years rendering Rent and after brings Debt for the Rent behind the Defendant cannot wage his Law notwithstanding that the action is personall But this is more high in his nature as it is there said and yet there nothing shall be recovered but only damages for which a man may have satisfaction Also he intended that it was not well pleaded that is that such agreement was had between the Plaintiff and one of the Defendants and betwixt those shall be intended those two only and also Ipsum and Alios by his commandâ—ment and doth not shew that this was made by the other two by his commandement and so he concluded and prayed Judgment for the Plaintiff Shirley Serjeant for the Defendant that the Plea is good and that the nature of the Action is only Trespasse by force and arms and differs from a Quare ejecit but Ejectione firme differs from predict infra terminum and lyes against the immediate Ejector but Quare ejecit lyeth against him which hath title as he in reversion 7 H. 4. 6. b. Ejectione firme was brought by Executors of Land let to their Testator for years upon outing of the Testator by the statute of 4 Edw. 3. Chap. 6. which gives action for the Executors of goods taken out of the possession of their Testator and it seems to him also that proces of Outlawry lyes in an Ejectione firme but in Quare ejecit infra terminum only summons So it is 11. H. 7. 13. There is a great difference between Waste and this for there the Process is Distress and other speciall Process But so is it not here but only the Process which is in other generall actions of Trespasse and so is the expresse opinion of Keble in 11. H. 7. 13. That in ravishment of Ward Quare Impedit and quare ejecit infra terminum that agreement is a good plea and yet all these trench upon the Realty and in ejectione firme if the tearm expire hanging the action this shall not abate the Writ but the Plaintiffe shall have Judgement for his damages otherwise in a Quare ejecit infra terminum And it was resolved 20 Eliz. That if an ejectione firme be brought at the common Law of Lands in
executed for then it would be too late for then the Estate is transferred to another as it was in the cases put by Anderson in Corbetts Case But here all the Estate limited to him which made the forfeyture shall be determined and also he intended that the Reason that the Replication containes that the parties being in actuall possession are only to satisfie the words of the Condition And so he concluded and praied Judgement for the Plaintiff In dower the Demandant recovered Dower of tenths of Wool and Lamb and how execution shall be made was the question And the Justices intended that the Sheriffe might deliver the tenths of every 3 yard land and assign the Yard Lands in certain Bâ—t after it was conceived that this would be uncertain and unequall and for that the Sheriffe was directed to deliver the third part of all in generall and yet the first was agreed to be good but onely in respect of Inequalities as in dower of a Mill the third Toll dish and of a Villayne the third dayes work as in 23 H. 8. And it was also agreed that the Sheriffe may assign this dower without a Jury It was moved if an Attachment be granted against a Sheriffe for contempt after he is removed out of his Office and the Justices intended that not insomuch that now he is no Officer and for that he cannot be now fyned and without fyne they did not use to Imprison but the Judges would be advised to see the Presidents of the Court in such a case Mâ—chaelmas 1611. 9. Jacobi in the Common Bench. Kemp and Philip his Wife James and Blanch his Wife Plaintiffs against Lawrere and Trollop and the Wife of Gunâ—er Executrix during the minority of the Wives of the Plaintiffs THe case was An Executrix during the nonage for so it was and not Administratrix that is shee was ordained Executrix till the Wives of the Plaintiffs came to their full age or were marryed and then they should be Executrixes And this Executrix during the minority brought an action of Debt and recovered and before Execution the women Executrixes took Husbands and brought Scirefacias upon the Record to have Execution upon the Judgment against these Defendants as Ter-tenants which pleaded specially that they had nothing in the Free-hold nor in the Land but only a lease for yeares and that the free-hold was in another stranger upon which Plea the Plaintiffs demurred in Law And Nicholls Serjeant for the Plaintiffs that there is the difference betwixt this Executor and an Administrator during the minority as in 26 H. 8. 7. a. if an Administrator have Judgment and dyes before Executors or other have sued out their Letters of Administration they shall have no execution of this Judgement insomuch as he comes in paramount the first Administrator and as immediate Administrator to the first Intestate as it is agreed in Shelleys case So the Administrators of one Executor shal not have execution of a Judgment given for the Executor as it is resolved in Brudenels case 5 Coke the 9. b. And in 21 Edw. 4. It is agreed if two are made Joynt-Executors and one of them dies the other shall be sole Executor to the Testator and if hee make his Executor and dyes his Executors shall be Executors to the first Testator And also there is in Fox Gretbrooks Case in the Com that one may be Executor for certain years and another after and this differs from the other cases for in this case all these Executors were in privity one to another but in the other case one comes paramount the other But here they are all made by the first Testator and the Will And he cyted the 2 Case in the Lord Dyer and 18. and 32 Edw. 3. there cyted where a Purchasor brought a Writ of Errour and was not privy to the first Record And Grantee of a Reversion brought a Scire facias against Conusee of a Statute-Merchant alledging that he had received satisfaction So if a Parson of a Church recovers an Annuity and after the Church is appropriate to a house of Religion the Soveraign of the said house shall have a Scire facias And so if union be made of two Benefices and yet in all these cases there was no privity to the first Judgement so he in reversion shall have Errour in Attainâ— upon Judgment against his Lessee for life and the Reason is given in Brudenels Case that is they which may have prejudice may have scire facias and it is not like where two Joynt-tenants are and one makes a Lease for years and dyes the other shal have the Rent insomuch that he comes in by survivorship and not in privity But here the Executors come in in privity as in case of two Executors are joyntly one â—yes the other which survives shall have Execution of Judgement given for them for Administrator during the nonage is only to the use commodity and profit of an Executor and of a Testator so that he being Executor to the Testator he shall have execution And to the second that is that the Defendants have nothing but for yeares and that the free-hold is to a stranger he intended that this is not good yet he agreed that in scire facias where a free-hold is to be recovered speciall non-tenure is a good plea as in 8 Edw 4. 19. and 8 H. 6. 32. but not of the contrary and there also generall non-tenure is no plea But here where the free-hold is not to be recovered nor one nor the other is a Plea for it may be averred that the Defendant hath a release from him that hath the reversion and as in 14 H. 4. 5. in scire facias to accompt against an Executor who pleads that the Testator was never his Bayliffe to give an accompt and yet it is agreed that this hath been a good plea for the first Defendant and this is the reason that it was not taken nor was allowed for a good plea in the 11 H. 4. 11. Insomuch that this amounts to non-tenure and in 44. and 45. Eliz. Mich. Rot. 834. it was adjudged in Scire facias where the Defendant pleads that he was not Tenant of the Free-hold and adjudged no plea And so he said it was adjudged in the case of All-soules Colledge in Scire facias to have execution of a Judgment in Ejectione firme and the Defendant in the Scire facias pleads that he was but Lessee for years and adjudged no Plea insomuch that nothing was to be recovered but only the tearm and not the Free-hold and so he concluded and prayed Judgement for the Plaintiff in Scire facias Harris Serjeant argued to the contrary and he intended that the Return of the Sheriffe is void insomuch that the Writ commanded him to give notice to the Tenants of the Land in Fee-simple and hee did not return that those which he had returned were Tenants of the Land in Fee-simple and
a possibility only which cannot be granted surrendred or released and yet he agreed that if Lessee for life grant or demise the land all his Estate passeth without making of any particuler mention of it as it is agreed in 10. Eliz. Dyer And for that when the Lessee hath devised the Lands to his Father for his life that which remaines is only a possibility for it doth not appeare for what yeares the Sister shall have it and for that meerely uncertaine 7. Eliz. Dyer 244. The King Ed. 6. appropriated a Church to the Bishop to take effect after the death of the present Incumbent the Bishop after that makes a Lease for yeares to begin after the death of the Incumbent and void for the uncertainty for the Bishop hath no perfit Estate but future Interest which is meerely impossibility and with that agreed Locrofts Case in the Rector of Cheddingtons Case 1. Coke where Lessee for yeares makes assignement of so many of the yeares as shall be to come at the time of his death and void for the uncertainty insomuch that it is meerely possibility for that which may be granted or surrendred ought to be Interesse Termini at least And he supposed it could not be released insomuch that he to whom the release is made hath all the Tearme if he lived so long and so he concluded and praied Judgement for the Plaintiff Harris Serjeant for the Defendant argued that the first devisee had two Titles one as Executor and another as a Legatee and before entry and after that he had entred also the Law doth adjudge him in as a Legatee and before that he enter he may that grant over notwithstanding that he hath not determined his Election for the Law vests the property and possession of that in him before any entry but to make an election there ought to be some open Act done as it is agreed in Welden Eltingtons Case where that the first devisee which was Executor also made expresse claime to have the Tearm as Legatee and not as Executor and so vested the remainder also see Com. 519. b. And so in Paramore and Yardlies Case Lessee for years devises his Tearme to his Executor during his life to educate his Issues the which the Executor doth accordingly and this open act was resolved to be a good election and in Mannings case 8 Coke 94. b. The Executor which hath the 1. Estate devised to him saith that he to whom the Remainder was limited shall have it after his Death and this resolved to be a good Execution and election and it is there resolved that such Election made by the particular Devisee is a good Execution for him in remainder but here is not this Election to have this as Legatee nor Executor for there is not any overt Act made by which this may be done Secondly he conceived that this is no remainder but Executory devise as it is agreed in Mannings Case and that this may be done by Devise which cannot be done by the party by act Executed and for that he conceived that there is no possibility but an Estate Executed and vested in him which is Executor though there be no election made nor Execution of the Legacy and admitting that it is but a possibility yet he conceived that it is Propinqua possibilitas insomuch that the Tearme is longer then it may be intended that any man might live insomuch that Adam lived but 950. yeares and this is five thousand yeares which is longer then any man in the world ever lived and he said that it is agreed in Fullwoods Case that possibility may be released to a possession and with this agreed the opinion of Strange in the 9 H. 6. 64. And so warranty may be released which is meerly in contingency as it is agreed in Littleton and power of revocation may be extinct by release of him that hath the possession of the Land and so he concluded and prayed Judgment for the Defendant Nicholls Serjeant for the Plaintiff conceived that the Remainder is in Esse and not determined by the Release And first he conceived that the Remainder was executed insomuch that the Release was made at the Request of the Father which was the first Devisee for this shewes his assent and implies that he took notice of his Remainder and assented to it and he sayd it was adjudged in Doctor Lawrences Case that the speaking of these words by the Executors that is that they were glad of the Devise was a good Execution and assent of the Legacy Secondly He conceived that it is only possibility and for that cannot be released or granted and he saith that the Law hath great respect of possibilities that Estates may revert and for that it is adjudged in the 13 of Richard 2. Dower 55. If Tenant for life grants his Estate to him in remainder in tayl for his owne life the Tenant enters takes a Wife and dies she shall not be Indowed but the Tenant for life shall have it againe and it shall be as it had been let to a stranger and to this purpose also he cited 18. Ed. 3. 8. Counter-Plea of voucher 8. And it was adjudged in Middletons Case 5. Coke 28. a. that an Executor before probate of the Will may release a Debt but not an Administrator before Administration granted see Com. 277 278. Fox and Greisbrookes Case and in 6. Ed. 3. Lessee for anothers life rendring Rent the Rent was behind and the Lessor releases to the Lessee all Debts he For whose life dies and there the Release determines and discharges the arrerages for it is a duty and Debitum is Latine as well for Debt as for duty also release bars the Lord and Writ of deceit for reverser of a Fine levied of land in ancient Demesne as it is 7. H. 4 and yet Littleton saith that release of a futrue thing shall not be a barr and for that if Conusee of Statute Merchant release all his Right in the land yet he may extend the Statute 15. assis And so if a mad man release and after come to his wits and dies Quere if the Heire may have a Writ of non compos mentis And he said that it was adjudged in the 25. of Eliz. If an Infant levie a Fine and after he levies another Fine this shall be a Barr in a Writ of error for the reversing of the first otherwise of a release And here to the principall case to a release made by the Son in the life time of his Father without warranty And so upon all these cases he concluded and prayed Judgment for the Plaintiff Shirley Serjeant for the Defendant argued that the acceptance of Release by the first Devisee shall not be execution of the Devise as it was adjudged in Barramores and Yardleys case by the Education of the Issue or a Devise upon condition to pay money and the Executor pays it this is a good execution
doth not pass till Livery and Seisin be made Also the intent of the parties is not that they shall pass together for if the intent were otherwise the Law would not devide them as it was adjudged Hillary 15. Eliz. in the Lord Cromwells case where Tenant in Tayl was of a Mannor with the Reversion to his right Heirs and he by his Deed gives and grants the Mannor and the Reversion of that and includes Letter of Attorney within the Deed to make Livery but Livery was not made and yet the Reversion doth not pass for his intent appeares that it should pass by Livery and Seisin and not by grant and also in Androwes case the Advowson appendant to a Mannor shall not pass without inrolment of Bargaine and Sale yet there were words there that that might passe by Grant for this was against their intent otherwise if a man makes a Lease for life or years of a Mannor and grants the Inheritance of the Advowson by the same Deed and so of the case of 23 Eliz. Dyer 374. Lessor deviseth Grants and to farm lets the Mannor and the Trees and they passe joyntly and the Reason is insomuch that it is but a Joynt sentence and not severall as it is here also he intended that the life of the Lessee for life is not averred and for that he shall be intended to be dead and for that it is a severall grant of the Trees of the Free-hold for the Interest of them is setled in his Executors for if he had made Sale of them before that the Copy-holder had cut them down then that had not been forfeiture see 5. H. 7. 15 Ed. 4. 14 Eliz. Dyer And then the Case is this Tenant for anothers life of a Mannor makes a Lease for yeares of the Free-hold of which an Estranger hath a Copy-hold Estate for life in Esse Lessee dies and he conceived that the Copy-holder shall not be an occupant for it ought to be Vacua Possessio and this was the reason of the judgment in Adams Case in 18 Eliz. Where a man makes a long Lease for years and after intending to avoyd this Lease makes a Lease to another old man for anothers life to the intent that the Lessee for yeares should be occupant when the old Lessee died and so drowned his Tearm and after the Lessee died and resolved that the Lessee for years shall not be an occupant insomuch that there was not Vacua Possessio and for this it seems to him that if Lessee for anothers life makes a Lease for years and dyes that the Lessee for yeares shall not be an occupant notwithstanding that he made speciall claim and that for the reason aforesaid but he agreed that a Lessee for anothers life makes a Lease at will and dies there the Lessee at Will shall be an Occupant insomuch that his Estate is determined and yet there is not Vacua Possessio according to 38 H. 6. 27. But he did not say there should be an occupant in these cases but cyted Bracton fol. 8. that if the Sea leave an Island in the midst of that the King shall have it and not Occupanti conceditur and so he concluded that the Plaintiff shall be barred and that Judgment shall be entred for the Defendant which was done accordingly and it was afterwards agreed upon motion in this case whether it would not make difference if the Trees were cut by the Copy-holder before that he hath made his nomination or not notwithstanding it was objected that when he hath made his nomination then he was only bare Tenant for life and the Priviledge executed and he in Remainder was also Tenant for life only for he cannot nominate till he comes to be Tenant in possession but this notwithstanding insomuch that they had power to make nomination that is the first Tenant again if the second died in his life time and the second if the first died in his life time and so the Peiviledge continues all the Justices continued of their opinions and according to that Judgment was entred for the Defendant and that the Plaintiff should be barred and should take nothing by his Writ Trinity 8. Jacobi 1610. in the Kings Bench. The Lord Rich against Franke. THE Lord Rich brought an action of Debt against Franke Administrator of one Franke and this was for a rent reserved upon a Lease for yeares made to the Intestate and the Action was brought in the Debet and Detinet for rent due in the time of the Administrator and verdict for the Plaintiff and after moved in Arrest of Judgement by the Councell of the Defendant that this Action ought to be brought in the Detinet only and not in the Debet and Detinet and Chibborn of Lincolnes Inne conceived that the Action was well brought in the Debet and Detinet and to that he sayd that Hargraves case 5 Coke is so reported to be adjudged but he saith that he hath heard the councell of the other part insisted upon that that this Judgment was reversed and for that he would under favour of the Court speake to that And hee conceived that the Action so brought is well brought for three Reasons The first shall be drawn from the nature of the Duty and to that the Case rests upon this doubt that is if the Administrator is now charged for this Rent as upon his own duty or as Administrator and it seems to him not as Administrator but as upon his own duty for he saith that it is not Debt nor duty till the day of payment as Littleton takes the diversity in his Chapter of Release between Debt upon an obligation and a Rent and the day not being incurred in time of the Intestate this cannot be his duty therefore that ought to be duty in the Administrator and to the cases of 19 H. 8. 8. Where the Executor of a Lessee for twenty years which had made a Lease for ten years rendring Rent brought action of Debt against the Lessee for ten years for rent incurred in the time of the Executor and this is in the Detinet only and the Case of 20 H. 6. 4. Where an Executor brings an action of Debt upon Arrerages of Account of an Assignement of Auditors by themselves in the Detinet only and he sayd that in these Actions the Executors were Plaintiffs and in all actions brought by Executors where they are Plaintiffs and the thing recovered shall be Asset the Action shall be brought in the Detinet but in our case they are Defendants and so the diversity and to the Objection that may be made to this Contract out of which this duty grows and arises it was made by the Intestate and not by the Administrator himself and so this is a duty upon the first Privity of the contract he answered that there is great difference when a thing comes due by the Contract of the Testator alone and ought to be payed in his time in
if a Copy-holder be of twenty Acres and the Lord grants Rent out of those twenty Acres in the tenure and occupation of the sayd Copy-holder and name him There if this Copy hold Escheat and be granted againe the Copy-holder shall hold it charged for this is now charged by expresse words Trinity 8. Jacobi 1610. In the Kings Bench. Goodyer and Ince GOodyer was Plaintiff in a Writ of Error against Ince and the Case was this Ince brought an Action of Debt upon an Obligation in the Common Bench against Goodyer and had Judgment to recover and by his execution prayed an Elegit to the Sheriff of London and another to the Sheriff of Lancaster and his request was granted and entred upon the Roll after which went out an Elegit to the Sheriff of Lancaster upon a Testatum supposing that an Elegit issued out to the Sheriff of London which returned Nulla bona and Quod Testatum sit c. That the Defendant hath c. in your County c. upon which Elegit upon this Testatum the Sheriff of Lancaster extended a forme of the Defendants in a grosse sum of a hundred pounds and delivered this to the party himselfe which sold that to another and now the Defendants brought a Writ of Error and assigned for Error that this Elegit issued upon a Testatum where no Writ of Elegit was directed to the Sheriff of London and so this Writ issued upon a false supposall and upon that two points were moved in the Case First As this Case is if this were Error in the Execution or not Secondly Admit that it were Error if the Plaintiff shall be restored to the tearme againe or if to the value in Money and it was moved by Davenport of Grayes Inne that this was no Error and to that he took this difference That true it is when a man brings an Action of Debt in London and hath Judgment that without request of the Plaintiff he is to have his Elegit to the Sheriffs of London where originally the Action was brought and in such Case he cannot have Elegit to the Sheriff of another County without surmise made upon the returne of the first Elegit and the surmise ought to be true or otherwise it is Error but where upon the request the Elegit is granted to both Counties at the first and so entred upon the Roll It seems to him that insomuch that he may have both together that if the surmise be false that this is but a fault of the Clarke which shall be amended and shall be no Error and to that he cyted the Case of 44 Edw. 3. 10. Where an Elegit issued upon a Recognizance of a hundred Markes and the Writ of Extent was a hundred pounds and the Sheriff extended accordingly of the Land of the Defendant and he came and shewed this to the Court and praied that the Writ should abate and a new Writ to the Sheriff that he might have restitution of his Tearme and Thorp said this is but a misprison of the Clark and the Roll is good and he shall have the Land but till the hundred markes are Levied and after this you shall have restitution of the Land which case proves as he conceives that if the Roll warrant a writ in one manner and the Clark makes it in another manner that this shall not be Error and so in this case the Roll warrants an Elegit originally to the Sheriff of Lancaster and though that this is made upon a Testatum this shall not be Error because warranted by the Roll And to the second point he would not speake for if that were no Error the second point doth not come in question Hillary 7. Jacobi 1609. in the Kings Bench. Marsam against Hunter IN Trespasse the case was this Copy-holder of a Mannor within which Mannor the custome was that the Copy-holders should have Common in the wast of the Lord The Lord by Deed confirmes to a Copy-holder to have to him and his Heires with the appurtenances and the point was insomuch that his Copy-hold was now distroied whether he shall have his Common or not And Davyes of Linclones Inne argued the Common is extinct and his reason was that this Common was in respect of his Tenure and the Tenure is distroid Ergo the Common and he cited the case of 5 Ed. 4. fol. ult Where the office of the King of Herraulds was granted to Garter with the Fees and profits Ab Antiquo and also ten pound for the office and there it is resolved if the office be determined the Annuity is determined also and the case in 7. Ed. 4. 22. b. Where an Annuity was granted to John Clark of the Crown and for Tearme of life and after he was discharged of the office and the oppinion of the Justices then was that the annuity was determined and in 19. Ed. 3. Assis 83. 12 Assis 22. A man gives Land to his Daughter and I. S. within the years of marrying in frank-marriage the Husband sues Divorce the marriage being dissolved the Wife from whom the Land first moved shall have the Land againe so in the principall case insomuch that this common was in respect of Tenure the Tenure being distroied the common is gone and this was all his argument and he prayed Judgement for the Plaintiff and another day Brautingham of Grayes Inne seemed that the common remaines for three reasons First of the nature of a prescription and to that there are three manner of prescriptions First personall prescription and in that Inhabitants may prescribe as for a way or matter of ease as it is said in 7. Ed. 4. 15. Ed. 4. and 18. Ed. 4. and 6. Coke Gatwoods case Secondly reall prescription and this is Inherent to the Estate and this is where a man prescribeth that he and all those whose Estate he hath c. Thirdly locall prescriptions an that is where a man prescribes to have a thing appendant or appurtenant to his Mannor and this is so fixed to the Land that whether soever the Land goes the prescription is concommitant unto it and it seemes to him that this common is annexed to the Land by prescription and so locall and cannot be seperated but alwaies shall go with the Land into who soever hands that comes but Dixit non Probant And for this he supposed that the custome of Copy-hold is that the Copy-hold shall discend to the youngest Son if the Copy holder purchase the Free-hold and the Fee-simple of the Copy-hold so that this is made Free-hold this shall discend to the youngest Son so if a Copy-holder by custome is discharged of payment of Tythes in kind so the office of the master of the Rolles hath many liberties pertaining to it and this is granted but Durante placito yet if the King grant that in Fee as he may yet he shall have all the Fees and Priviledges annexed to that and so it seemes to him that
Grant his Intent was cleerly to pass all but Williams if he had sayd Totum Molendinum suum or all his Estate in the Mill there paradventure it should haue been otherwise and so a difference where he saith he grants the Mill and all his Estate in that and where he grants all his Estate in the Mill for in the first case all passes by the Grant of the Mill and these words which are after are but words explanatory as â—rooke sayd and it was adjourned And after in Easter Tearm next insuing Hitcham the Queens Attorney came again and prayed that the Judgment be affirmed and Yelverton of Grayes Inne sayd that he hath considered of Nokes Case 4. Coke and this was all one with this case for the case was thus A man lets a House in London by these words demise Grant c. That the Lessee should injoy the House during the Tearm without eviction by the Lessor or any claiming from or under him and the Lessor was bound to peform all Covenants Grants Articles and Agreements as our case is and there by the whole Court that the sayd express Covenant qualifies the generalty of the Covenants by the Words Demise and Grant which is all one with our case for first he granted Totum Molendinum and after covenant that he should injoy c. against himself and all which claime in by from or under him and after binds himself to perform all Grants Covenants Articles and Agreements and so it seems to him that it is au expresse Covenant in this Case as well as in other and qualifies the generall Covenant implyed by the word Grant and then the Grantee being outed by a title Paramount no Action of Debt upon such Obligation and prayed that the Judgment be reversed and the Justices sayd they would consider Nokes Case and the next day their opinions were prayed again and the cheife Justice sayd that he had seen Nokes case and said that there is but a small difference between the cases but he sayd that some diflemay be collected For first in our case is a Recitall of the Estate of the Grantor that is that all belongs to him as Survivor and for that this was a manner of Inducement of the Grantee to be more willing and forward to accept of the Grant and to give the more greater consideration for it but in Nokes case there is no recitall and so this may be the diversity Secondly In Nokes Case the Tearm past all in Interest at the first and the Grantee or Lessee had once the effect of this Lease in Interest of the Lessor but in this case when two Tenants in Common and one grants Totum molendinum there passes but a half at the first and so the grant is not supplyed for the other halfe and then if the speciall Covenant shall qualify the generall c. The Grantee shall not have any remedy for a half at all and this may be the other diversity but admitting that none of these will make any difference then he sayd that all the Court agreed that this point in Nokes Case was not adjudged but this was a matter spoken collaterally in the case and the case was adjudged against the Plaintiff for other reasons for that that he did not shew that he which evicted this Tearm had title Paramount for otherwise the Covenant in Law was not broken and for this reason Judgment was given against the Plaintiff and not upon the other matter and so the whole Court against Nokes Case And the cheif Justice sayd that to that which is sayd in Nokes case that otherwise the speciall Covenant shall be of no effect if it cannot qualify the generalty of the Covenant in Law he sayd that this serves well to this purpose that is that if the Lessor dyes and any under the Testator claim the Estate that the Action of Covenant in this case lies against his Executors which remedy otherwise he cannot have for if a man makes a Lease by these words Devise and Grant and dyes Action of Covenant doth notly against his Executors as it is sayd in the 9. Eliz. Dyer 257. But otherwise upon expresse Covenant and then this expresse speciall Covenant shall be to this purpose And also it seems to him that if a man devise and grant his Land for years and there are other Covenants in the Deed that in this case if the Lessor binds himself to perform all Covenants that he is not bound by his Bond to perform Covenants in Law and he cited that to this purpose the Books of 22 H. 6. and 6 Ed. 6. B. Tender that if a man makes a Lease for yeares rendring Rent this is Covenant in Law as it is sayd 15 H. 8. Dyer and a man shall have Debt or Covenant for that and yet if a man binds himself in a Bond to perform all Covenants where there are other Covenants in the Deed and after doth not pay the Rent no action of Debt lyeth upon this Obligation nor the nature of the Debt altered by that and he sayd that the Munday next they would pronounce Judgment in the Writ of Errour accordingly if nothing shall be sayd to the contrary and nothing was sayd Hillary 7. Jacobi 1609. In the Kings Bench. Bartons Case THE Case was this A man was taxed by the Parish for Reparations of the Church and the Wardens of the Church sued for this Taxation in the spirituall Court and hanging this Suit one of the Wardens released to the Defendant all Actions Suits and Demands and the other sued forward and upon this the Defendant there procured a Prohibition upon which matter shewed in the Prohibition was a Demurre joyned and Davenport of Grayes Inne moved the Court for a Consultation and upon all the matter as he sayd the point was but this If two Wardens of a Church are and they sue in the Court Christian for Taxation and one Release if that shal barr his Companion or not And it seems to him that this Release shall not be any Barr to his Companion or Impediment to sue for he sayd that the Wardens of a Church are not parties interested in Goods of the Church but are a speciall Corporation to the Benefit of the Church and for that he cited the Case in 8 Ed. 4. 6. The Wardens of the Church brought Trespass for goods of the Church taken out of their possession and they counted Ad damnum Parochianorum and not to their proper damage and the 11 H. 4. 12. 12 H. 7. 27. 43 H. 7. 9. Where it is sayd expresly that the Wardens of the Church are a corporation only for the Benefit of the Church and not for the disadvantage of that but this Release sounds to disadvantage of the Church and for that seems to him no Barr also this Corporation consists of two persons and the Release of one is nothing worth for he was but one Corps and the moyity of the Corps could not release
one and his Heires Males this is void for uncertainty of the Estate then it is so averred in our case if there be not sufficient recitall and certainty and to the recitall that is good without question for she recites that she hath granted that to Markham for ifâ— and Markham is yet alive and so the recitall good Then for the certainty he said that the rule is that if the certainty be declared by expresse words or if the King may reduce that to a certainty the Grant of the King shall not be defeated and for that he cited the case of Information of Mines Comment But if the King grant to me all Mines in the Land of J. S. There I shall have all Mines Royall for the Law saith the King cannot have other Mynes in the Soil of a Subject but Mines Royall and so there the Law supplies the Grant so that they be Mines Royall though not expressed in the Grant in certaine so he said in the principall case that the Queen hath expresly recited that she hath granted the Herbage and Paunage for life to Markham and that Markham was yet alive and after grants that to the Earle of Rutland and doth not say when that shall begin the Law saith that shall begin after the death of Markham for before that it cannot begin But if the Queen had exprest in the Letters Patents that this shall begin forthwith then this had been void as the Lord Gaudy said in Altonwoods Case 1 Coke fol. 51. And so he concluded the Title of the Earle of Rutland good So he affirmed the Judgement in all But Williams was very peremtory for the conceit of Paunage that it was not good Seisin But after Crooke Justice recanted his opinion of that and insomuch that there were three which concluded for the reversing of the Judgement And yet for every point there were three against two It was doubted if this Judgement should be reversed or not And they said that they would advise with the rest of the Judges and after that it was moved againe by Serjeant Nicholls in the next Trinity Tearme and Yelverton and the cheife Justices would have the Judgement affirmed but Williams Fenner and Crooke to be reversed and note well this President where Judgement was reversed and yet for every point there were three Contra two or foure Contra one see the first Judgement in the Common Bench Michaelmasse 6. Jacobi afterwards Termino Pasche 7. Jacobi 1609. In the Kings Bench. Trinity Colledge Case THE Case was this King Henry the eight Incorporated the Schollers of Trinity Colledge in Cambridge by the name of Masters Fellowes and Schollers Collegij Sanctae et Individuae Trinitatis in the Town and University of Cambridge and in the 6. Ed. 6. They made a Lease by the name of Master and Fellowes of Trinity Colledge in Cambridge leaving out the University And if this Lease were good or not was the question And Yelverton argued that this was not a good Lease and that for the misnaming of the Corporation And to that he said to every Corporation two things were incident That is name and place and if any of those fayl and be not certainly recited in a Lease the Lease shall not be good And he conceived that this Corporation is founded upon two places and that one of them That is the University is left out and for that cause the Lease is nothing worth for if a Corporation hath two names one of them cannot be omitted as it is in the first of Mary Dyer 96 97. and 4. Mary 140. and 150. 11. Eliz. Dyer 278. 35. H. 6. 5. and 6. No more then when it consists of two places one of them may be left out And for that if they had been incorporated by the name of Master and Fellowes of Trinity Colledge in Norfolke and Suffolke in a Lease they could not leave out Norfolke or Suffolke but both the places ought to be incerted And by him in the principall case if the Lease had been made by the name of the Master and Fellowes of Trinity Colledge in the Town and leave out the University of Cambridge without question this shall be void so here this being impliedly omitted shall be as strong as if it had been by expresse words excluded so in the making of every Corporation the intent of the Founder is to be considered and for that it seemes the intent of the King in placing that in both places was first to erect a Colledge and that to grace the Town and then he hath placed them in the University and this was for the instruction in good Arts and Learning and so for these benefits they have of both these places nor one nor the other may be left out And if the King had been incorporated by the name of Master and Fellowes of Trinity Colledge in Cambridge and in the Market place of Cambridge There though that the Market place was parcell of the Town of Cambridge yet it seemes to him that this cannot be left out for peradventure the Founder hath a speciall reason to place that there that is to have all things necessary for them more neer unto them Also where any stranger demands any possession of them in Precipe Quod Reddat or such like he ought to ensue them certainly and precisely Then a Fortiore where they depart with their possessions by their own Act there they shall not be unknowing of their one names And Walter of the inner Temple argued to the contrary and he conceived that the Lease is good and first he argued the ground which hath been taken of the other part that is that every corporation ought to be in a certain place and he conceived that there is a certaine place in this place that is the Town of Cambridge And to that that is said that this Corporation is founded upon two places he denied that all together for no more then one materiall Body may be but in one place Simul and Semel no more may it be in a Body Corporate which hath allwaies his resemblance to a Body naturall and for that he denied the case which hath been put of the other part of Norfolk and Suffolk And he cyted the opinion of the Lord Popham in Buttons Case in which the Lord North was Interested that a Corporation cannot be limited to a County as Probos Homines of such a County or Trinity Colledge in such a County but it ought to be restrained to some certaine place or one County or a Town But admit that the Corporation may be founded upon two places yet he faith that a University is not Locall but Personall And to this purpose he cyted two Records one in 48 H. 3. Which was this King H. 3. Intending to keep a Parliament at Oxford and knowing that the place was not sufficient to contain all those which should be there assembled and the Schollers together sent his Writ which was directed to the
Booke of 33 H. 6. 47. is but the opinion of Prisot and Lacon And the principall case there depends upon another point Fitz. 246. before cyted is but a quere and Eitz himself doubted of it and the book of 44 Edw. 3. Fitz. Execution 41. is but the opinion of Percye But the Judgment upon the principall point is otherwise And the principall case in Blunfields case 5 Coke was upon another point also as it appears by the Booke and so he concluded with the Judgment before cyted to be in the Kings Bench Pasche 43 Eliz. between Williams and Cuttris which was direct in the point according to his opinion and prayed Judgement for the Defendants in the Scire Facias and it is adjourned This Case was argued in Trinity Tearm next ensuing by all the Judges of the Common Pleas and first Foster the youngest Judg argned that the death of the Defendant in Prison being in Execution was no satisfaction but the Plaintiffe may have a new execution against his Executors for he said it was an old saying That debts went before deadly sinne And that every one ought to satisfie his debts by the Law of God before Legacies given to charitable uses And so by the Law of the Realm if it be not the default of the Plaintiffe as it was not in our Cause for the death of the Defendant in Prison was the act of God and the Executors have confessed by pleading that they have assets and the Plaintiff hath nothing but griefe and pain and he said as before that at the Common Law no Capias lay till the Statutes of Marlebridge Chap. 23. and Westminster the 2. Chap. 11. Capias was given in Accompt and then the statute of 25 Edw. 3. Chap. 17. gives such like Processe in debt which was in Accompt and then in Accompt Capias ad Computandum lyes and in debt Capias ad Satisfaciendum And if in Accompt the Defendant was adjudged to accompt and Capias ad Computandum be awarded and he taken by force of that and committed to Prison and here dyes a new Writ shall be awarded So in debt if the Defendant be taken by Capias ad satisfaciendum new Writ shall be awarded against his Executors see 1 Edw. 3. 24. 1 H. 7. 5 Coke 92. Blundfields case for it is only the default of the Defendant that the debt is not satisfied and for that it is no reason that the Plaintiff should be prejudiced by that and 11 H. 4. 44. and 45. by Skreene Debt upon an Escape doth not lye against the Executor of the Sheriff but new Processe shall be awarded against the Prisoner which is escaped for a man shall not take advantage of his own wrong as in the case of Littleton If the sonn makes disseisin and enfeoffs the Father which dyes the sonne shall not take advantage of this Discent because he was particeps criminis and he said it was no wrong to any if execution were made of the goods of the Testator and it is mischievous to the Plaintiffe for he shall loose his debt And to the Objections which have been made that there is an end of Processe when the Defendant is taken by Capias and dyes in Execution the which he agreed as long as the Defendant lived but after his death he may make new election 47 Ed. 3. Fitz. Execution 41. by Percye And it appears by the pleading in 17 Ed. 3. That Judgment Execution without satisfaction is no Plea in Bar. And also he cyted the Register 285. and Fitz. Na. Bre. 246. 19. Ed. 3. 21 H. 6. 5. where the Plaintiff had effectual execution which was satisfaction 44 Ed. 3. 21 Edw. 4. 1 Edw. 4. 8 H. 7. 16 H. 7. to the same purpose for which Dodridge cyted them before And also he said that the Judges have always had respect to the satisfaction of Debts and for that would not bayle one in Execution upon a Writ of Errour where Errour indeed was assigned but suffers him to remain in Prison till the Judgment were reversed But here the Plaintiff hath neither Bale nor any satisfaction but griefe and pain And in the 21 of H. 7. the Sheriff returned that the Defendant had no land but lands in use and was adjudged that he should execute the Elegit upon these Lands such was the respect that the Judges have to Executions and to the Case of 35 H. 6. 47. This is but the opinion of Lacon which erred in the principall case and may as wel erre in this point and his opinion also is so intricately penned that he cannot understand it And Martins opinion also in 7 H. 6. 7. is against the Judgment of the principall case And to the Objection that the Party had determined his Election by the Execution of the Capias he agreed to that with this difference that is if the Plaintiff sue Scire facias the Sheriff levyed part that this notwithstanding the Plaintiff may have Capias for the residue and so Elegit after Fieri facias or Capias for there is not any Entry made of awarding of fieri facias or Elegit But the Plaintiff only sued that out of the Court see 44 Edw. 3. 18 Ed. 4. 31 Ed. 3. 17 Ed. 3. 20 Ed. 2. 22 Assis 17. H. 7. 1. And so he coucluded that the Judgment shall be given for the Plaintiff in the scire facias Warburton Justice conceived the contrary that is that the Plaintiff in the Scire facias shall be barred And he agreed and said that none will deny but that Debts shall be paid but that ought to be according to the rules of the Law For by the Common Law the body of the Defendant was not lyable to execution and then it is to examine in what cases he is at this day subject to execution and though in Trespasse Capias lyes at the Common Law but in Debt no Capias lyes till the Statute of 25 Edw. 3. which gives the same processe which was in Accompt and this is as well in the Originall processe as in the Judiciall and Elegit was first given by the statute of Westminst 2. And this was of the half of the Land But Levari facias was at the Common Law of the profits of the Land That in debt Acceptance and Election binds the party and so this remains for the said Statutes being in the affirmative doth not take away that nor abate it and by that if Conusee of a statute accepts Land extended at too high a value he is bound by that 22 Edw. 3. 32. H. 6. 15 H. 7. And that when the Party hath Judgment he hath election to have execution by Fieri facias Elegit or Capias for he hath determined his Election So if he makes his Election of a Capias at first he cannot have Elegit after 30 Edw. 3. adjudged 32 Edw. 3. Processe 52. according Long 5 of Edw. 4. by Markeham and others and the reason which is given in
47 Edw. 3. 17 Edw. 4. and 21 H. 7. that have been remembred to the contrary is only that it is reason that the Plaintiff should have the same process which was at the Common Law and there was not any such processe as Capias in debt at the Common Law and 21 H. 7. may be understood that the Elegit was not returned and so no record of that And 50 Edw. 3. a man may recover in Debt and pray Elegit and after brings Debt upon the Record but it doth not lye And he agreed to the Book of 23 H. 6. For there the Defendant was bound in an Obligation to make satisfaction of Debt and hee dyed in Prison and this cannot be satisfaction according to the Condition And in the Case of Fitz. Nat. Brev. the same doubt of that and this was the more strong case then the case at the Barr and if he doubted of that is the cause that he doubts also And cyted Williams and Cuttis case Rot. 88. in the point where the reason of the Judgment was for that that the Plaintiff had his plain and full satisfaction and saith that it was apparent difference between that and Blunfields case for there was 2 Defendants and here if one dyes there shall be no satisfaction and so these reconciled And so if a man be taken upon a Statute Merchant and dyes in execution that shall not be satisfaction for this is speciall processe given by statutes And 14 H. 7. 1. If a man being in Execution escape he shall not be taken againe and in the 14 H. 7. in debt upon an Obligation Capias profine was awarded and the Defendant taken by that And the Plaintiff prayed that he might be in Execution for his debt also and could not for that he had sued Fierifacias and it doth not appear if the Sheriff have that executed or not And so he concluded that the Judgment should not be revived by the Scire facias against the Executors and that Judgment shall be given for the Defendants in the Scire facias Walmsley Justice accordingly He specially observed the forme of the Writ which suggests quod executio adhuc restat facienda c. And to that the Defendants in the Scire facias plead that Capiás was awarded at the suit of the Plaintiff and upon that the Defendant was taken in execution and there dyed by which it appears that the words and suggestion of the Writ was answered directly and upon that the strongly relyed and then said that there were 3 ways to have Execution that is by Fieri facias Capias and Elegit And there is a speciall order to be observed in the suing of that for a man may have Fieri ficias and if the Defendant have not goods may have Elegit or Capias But if he make his Flection to have Capias he cannot have Fieri facias nor Elegit or if he sue Elegit he cannot have a Fieri facias nor Capias In 33 H. 6. and 44 Edw. 3. which have been cyted the Plaintiff sues Elegit and after that would have sued Capias supposing that he had not accepted the Elegit but of the other part it was said that the Sheriff had made Execution of it the which he could not contradict it And if the Plaintiff had Fieri facias and goods delivered to him in Execution and the Writ returned he shall not have a second Execution and so if Elegit executed and returned 14 H. 7. 15 H. 7. and said that Executions are tickle things for if the party escape he delivers himselfe out of Execution and the Plaintiff shall not have other Execution against him for that he hath had one Execution 2 Edw. 4. And so if a man sues a Writ of Priviledg out of Parliament and by that is delivered out of Execution he shall not be taken again And so if a man be delivered upon a Writ of Error for when the Party hath made his Election to take processe against the body it was his folly that he made such Election for though that death be the act of God yet for that that statutum est omnibus semel mori and for that God hath done no wrong for he hath but performed his Eternall Decree and for that it is not the act of God only but the folly of the party to make such Election and the Book of 47 Edw. 3. by Percy is but his opinion and more other Books are against that and 〈◊〉 H. 6. Danby and Prisot are against Lacon and though that the death of the Party in Execution is no satisfaction in rei veritate yet in Law it is satisfaction for that that the party hath no other remedy the Writ in the Register is certiorari ad faciendum in omnia singula que secundum legem consuetudinem fieri c. And there is not any Law nor Custome to warrant any such Course and here is not any other proceedings upon it But if he may have a Writ of Scire facias ostensurus quare satisfactionem habere non debet then it may be that the Defendant's ought to give another answer but for that that there is not any such Writ it seems that Judgment shall be given for the Defendants Coke chief Justice seemed the contrary and he agreed with Foster and he said that it is vexata et spinosa questio for the Books vary and great arguments have been made of both parts There are three things considerable 1. Reasons 2. Authorities 3. Answers of Objections And for the Reasons First he considered in whom the default is for which the Plaintiff shall lose his Debt 2. That the Debt remains after the body is taken in Execution 3. If the body taken in Execution be satisfaction 4. If the dying in Execution be a discharge 5. The Mischiefs if so they shall be And to the Objections First Escape which is the wrong and act of the Party it is no satisfaction nor discharge and here is the act of God and election of the party 2. Execution by Elegit If Lands be extended upon that this is no satisfaction And so if he be delivered by a Writ of Error and so in this case And for the first the fault was in Jackeson for he did not keep his day in the Condition and upon this was sued then he pleaded a false plea and upon that Judgement was given against him in all which actions the default was in the Defendant and no default in the Plaintiff for he took the Body which is the visible execution not in satisfaction but to satisfie and the Defendants have not pleaded fully administred but confesse that they have Assets and there is more reason that the Plaintiff shall be satisfied then the Executors keep the goods to their own use for it is Summa Injustitia nocentem habere totum lucrum innocentem totum damnum Second reason was that it is no satisfaction for the Defendant to dye
in Prison and agreed that if 2 Precipes are contained in one Originall there shall be but one satisfaction But if one be taken by Capias and remains in Execution Capias shall be awarded against the other and he shall remain in Prison till satisfaction be had for execution is no satisfaction as it is said in 29 H. 8. b. Execution 132. adjudged See 4 Ed. 4. 38. 5 Ed. 4. 4 H. 7. 8. And Hillaries case 33 H. 6. And to the third that is that the Debt remains after the taking of the body in execution and agreed that when execution is made of goods or lands no Debt remains but otherwise it is of execution of the Body as it appears by 29 H. 8. before cyted B. Execution 132. and 41 Assis 15. where a man was condemned in Damages in Trespass and committed to Prison by Capias and escaped the Gaoler dyed the Plaintiff prayed debt against his Executors and could not have it for they are not charged without specialty and the Plaintiff alleadged that the Defendant was vagrant in the County of M. and prays Capias to the Sheriff of M. to take him and it was granted for his remedy against the Sheriff was determined and this proves also that the Debt remains after escape scire facias is licet Judicium redditum sit tamen executio restat ad huc facienda de debito for the body is but as a pledg the form of the Writ in the Register Capias ad satisfaciendum and not in satisfaction which proves that there is no satisfaction but upon the payment of the money his body shall be delivered out of Prison this is execution with satisfaction for there are two Executions that is Medius finalis the first is the Capias the second Satisfaction which is Vltimus Finis And it is a good rule quod nihil videtur factum ubi aliquid restat faciendum and here is aliquid faciendum that is Satisfaction for in all acts there is a beginning progression and consummation Consummation in this case fails Mors est horendum divortium which is the act of God And when the act of God hath delivered him which lyes in prison for his own default it is no reason that the Plaintiff should be prejudiced 43 Ed. 3. 27. A man enfeoffs the Father with Warranty which infeoffs an estranger which enfeoffs the son the father dyes the son may vouch for it is the act of God And to the Mischiefs nec crudelis creditor nec delicatus debitor sunt audiendi for they play at Bowls and keep Hospitality in the Prison Or if a man be arrested and makes a tumult and is slain in indeavouring to break the Prison and breaks his Neck it is no reason that he by such act should defraud the Plaintiff of his Debt the opinions against him are coupled with absurdities as 7 H. 6. 8. Martins opinions is also imparted with absurdity 33 H. 6. 48. The opinion of Lacon is also coupled with another absurdity and 22 Assis b. Execution is also coupled with absurdity that is if the Defendant escape this determines the debt and is satisfaction and 15 Edw. 3. Quare Impedit 174. in Writ of Right of Advowson the Plaintiff hath Judgment and habere facias sesinam in the life time of the Incumbent and after his death sues Scire Facias the first is Execution but not with satisfaction and the last is satisfaction for by this he hath the fruit of his Judgment So 19 Ed. 3. Execution 12. a younger statute is extended and Liberate sued executed and returned And after an elder statute is extended and after satisfaction of that he that hath the youngest may sue Scire Facias and have execution of the youngest So of Beasts distrained and put into the Pound and there dye he which distrayned may distrayâ— again for this is no satisfaction of his Rent 14. H. 4. 4. 15 Edw. 4. 10. 11 Eliz. Dyer 280 And so Capias ad computandum is not Accompt nor Capias ad acquietandum Acquital Register 30. 39. 285. And it is said in Bract. lib. 7. Chap. 17. Sunt brevia Magistralia fâ—rmata the first are made by Masters of the Chancery the others which are Originall by Cursitors which are founded by acts of Parliament and cannot be changed without Parliament and as Fitzherbert in his Preface to his Na. Bre. saith that every Art and Science hath certain Rules and Foundations to which a man ought to give faith credence and the Writ of Fieri facias being founded upon a Statute and the form that executio adhuc restat facienda he saith that this was the Judgment of the Parliament that the first Execution was not Satisfaction But as the Writ is also in the Register 245 That where a man is condemned in Trespasse and committed to prison detinendum quousque he satisfie the party by this it appears that he is but a pledge And Fitz. Na. Bre. 63. 65. 67. and Register If a man be taken by Capias Excommunicatum ad satisfaciendum parendum Clavibus Ecclesiae and is delivered by Writ which issues improvide another Writ of Capias shall be awarded And to the matter of Election he agreed that if Elegit were awarded the party cannot have Fieri facias nor Capias for there is Entry made quod Elegit sibi executionem de meditate But when Fieri facias or Capias is awarded no entry at all is made But if any of them are returned executed then he cannot resort to another Processe and with this difference agrees all the Books of 15 H. 7. 15. 21 H. 7. 19. 30 Ed. 3. 24. 31 Edw. â—3 Process 52. 19 H. 6. 4. 34 H. 6. 20. 45 Edw. 3. 19. 50 Edw. 3. 4. and 5. 18 Edw. 4. 11. 20 Edw. 4. 13. 11 Eliz. Dyer 296. And to the case of Williams and Cuttrys cyted to be adjudged 43 Eliz. the which he cyted as Lambs case he said in this was many apparent Errors in forme of pleading so that the matter in Law cannot come to Judgment 35 H. 6. Prisot seemed that by the law of God the Imprisonment of the body of a man was no satisfaction for by that the Creditor may sell his Debtor and his Children for the payment of his Debts Matth. chap. 18 vers 24. 4 Kings 4 Chap. vers 1. Matth. chap. 5. Luke chap. 12. And so he agreed with Foster in opinion and concluded that the death of the Defendant in the action of Debt was no satisfaction nor determination of the Processe nor of the election But that the Plaintiff may have new Execution against the Executors and by consequence that Judgment shall be given for the Plaintiff in the Scire facias but no Judgment was given for that there was equality of opinions that is Coke and Foster against Walmesley and Warburton Danyel being dead and for that it was adjourned Pasche 8. Jacobi 1610. See Hillary 7. Jacobi the beginning Chalke
extortion 151 Jeofailes stat 168 Judgment arrested 182 Joynt Tenants for years of a Mill and grants c. 212 Judgment in a Writ of errour 215 Intendment where 234 Judgment Sur breife abatest errour 235 Imprisonment unlawfull 20 Impropriation 24 Instruction for the Presidents of Wales 29 Judgment reversed for the Outlawry only and confirmed for the other 39 Joynture 52 53 Information sur stat 21. H. 8 chap. 13. For non-residency 54 Judgment voyd 127 Informer exhibits a Bill in the Star chamber 151 Imprisonment for a force when or not 266 Justices of Peace and Auditors ought to make Record where and when Ibid. Indemptitas nominas 270 Jurors from two countyes 272 Infant levies a Fine brings errour 278 279 K KIngs Grant voyd for defect in recitall 241 King is specially favored in the Law 249 Kings Patent how to be taken 250 L LIcense from the Ordinary where 1 License how many kinds 3 27 Legates Jurisdictions ibidem License to a Copyholder when pleadable by whom 40 Limitation and Condition their difference 68 Levant couchant what 101 Lease by a Dean 134 Livery voyd where 135 Libellous Letters 152 Law of England of what it consists 198 Lateran Councell concerning Tithes 24 License to appropriate 25 License to a Copy-holder 40 Lord of a Mannor inclose the Demesnes 168 Letter of Attorney cannot be made by a wife 248 London the custome for an Inn-holder 234 Lease to determine upon limitation 292 Letters Patents how expounded 323 License in a Forrest 323 M MArriage disagreed to at yeares of consenting c. 36 Misnosmer in an obligation what it effects 48 Marriage a gift of all goods personall 91 Merchant 4 sorts 99 Meale accounted dead victual within the stat 5 Ed. 6 chap. 14. 116 Mayme is fellony 220 Modus decimandi 33 Murther sur Thames where tryable 37 Maxime in law 43 Misnosmer of a corporation 243 Mainténance 271 Minister arrested 301 Marshall court its jurisdiction 125 126 127 N NOn-suit 41 Nisi prius record amended 41. Non-residencie the statute 21 H. 8. 13 expounded 54 Non-suit after verdict 219 Nisi prius by proviso for whom 276 Notice where requisite 278 O ORdinary cannot imprison 4 Ordinary may imprison a preist by 1. H. 7. 4. Ibid Obligation taken for a legacy incourt court Christian 11 Ordinary may transmit 28 Office granted by a Bishop 137 Occupancy where â—02 Outlary in fellony was reversed 229 Offences exorbitant what 19 20 Obligation to performe covenants 167 Officers gradâ—all of the Kings bench who 282 Obligation with condition against law or impossible 281 Outlary 313 Office exerciseable by deputy where 334 335 P PRohibitionupon the stat of 13 H. 8 chap. 9 Polygamy punishable where and how 7 Prohibitionjoynt and severallcounts 7 Prohibition surle stat de simony 7 for not settingforth of tythes 9 Prescription for tythes 31 33 34 Prohibition to the admiralty 34 to court Baron 34 Prison private and common 41 Prescription for inhabitants 178 Prohibition for common 47 Prescription none after consultation duly granted 36 Parson deprived for drunknesse 37 Proofe what 57 Priviledg out of higher court to inferiour 101 Payment directed how 107 108 Patent of a Judge 122 Papist that not actionable 166 Possibility resonable where 173 Prescription and custome do differ wherein 198 Prescription 210 211 Prohibition to court Christans 215 Prerogative del roy 219 Prescription for waife and stray 219 Paunagium quid 236 Prohibition good sans action pendecit 17 Priviledg determined 22 Processe from the admiralty 29 Prohibition not grantable after consultation 36 Possessio fratris 43 Plurality with dispensation 45 Pardon of one attaint pro false verdict 47 Prescription where good where not 64 Per que servitia 84 Prescription for beasts sans number 101 Physitians colledge the authority 256 Physitans examined by whom 257 Priviledg of attorney allowed before the Deputy Marshall where 267 Partition without naming the parts good where 275 Prohibition to the Court of request 297 Copyholder prescribeth Pro ligno combustibuli 330 Q QUare impedit 45 Quo warranto 217 Quare ejecit infra terminum 133 Quare clausum fregit where it lieth 322 Quare Vi Armis where it will and of what 331 332 334 R RIght to a spirituall Office is temporall 12 Residency where 13 Ravishment against feme covert 59 91 92 93 Replevin 84 52 149 Right the Writ 138 Remainder in a Chattell 173 Release where not good 190 Release of one Church warden shall not bind the other 216 Restitution to the Heir of an accessory where the principall reversed the outlawry 220 Reservation of Rent at Michaelmas ten or dayes after 220 Reservation not taken strictly 221 Right to a tearm not grantable 226 Revocation the power when suspended 228 Return of the sheriff where good 145 Revocation of uses 157 Remainder of a Chattell 173 Request where necessary 176 Release of Dower by Fine 175 Replevin 248 Re-entry after possession executed 253 Release 254 Return of writs granted to a corporation 270 Replevin 297 Release 300 S STatutes ecclesiasticall by whom to be expounded 2 3 Surrender an attornment where 51 Scire fac by baile 76 Scire fac against an Executor 83 Surrender by Cognisor c. 97 Statutes pro bono publ taken by equity 110 111 Summons in Dower 122 Scire facias for whom 145 Seisin of a Rent p. vicâ—â—nt 237 Submission awarded 48 Survivorship not aâ—ongst Merchants 99 Statute penall 112 Scire facias speciall non-tenure a goodplea 146 Seisin to have Assise what sufficient 241 Slaunder of an Attorney what 252 Slaunder 272 276 299 Sheriffs power what 281 Vnder sheriff how limited ibid Sheriff may limit the Authority of his Vnder Sheriff 282 Sheriff committed for taking undue Fees 283 Suit begâ—n hanging another 293 Statutes how to be understood 305 306 307 T TYthes what Lands are free of them P. 8 21 22 23 24 Taxes for Church-Reparations and other like dutyes who are chargeable and how 10 Tithes not grantable P. Parol unless by way of Retainer 11 Tithes where discharged by unity of possession 26 Transmission of causes where 27 Tenant in Dower disseised 41 Tayl its incidents 67 By Copyhold custome 77 Its Creation and nature 79 Testibus lies what comes after no part of the Deed 99 Town cannot be corporate without the assent of the Major part c 100 Trespass for a commoner good 149 By the Lord against the commoner 168 Trespasse for assault 182 Tales challenged 235 Tythes their antiquity 24 Tythes of what not payable 32 33 Trespasse for breaking of a close 65 Teste of a ven fac amended post verdict 102 Trespasse for imprisonment 124 125 Tenant pur view with warranty 191 Testatum where no writ issued 209 Tythes not paid for seven yeares of what 257 Tayl 271 Trade with Infidells without licence 296 U VEn fa. amended after verdict 102 Voucher P. attorney 167 Voucher sur bre abateable the danger 185 Verdict speciall 187 188 189 Verdict doth not cast
Corpus amended Debt upon two Bils and one not due and tried for the Plaintiff and moved in Arrest the Plaintiff released his Damages and had Judgement upon the Bill due Lessee of the Vicars Gleab-land shall pay Tithes Nota. Venire facias de D. or within the Parish of D. or de Parochia good Scire facias upon a Recognisance may issue out into any County Deprivation of a Minister may be given in evidence Best to have Damages severed upon two Contracts Breach for not acknowledging a Fine Nota. Feossment of Land in satisfaction of Debt upon a single Bill held naught A Steward of a Leet within the Statute of E. 6. against buying of Offices One thing in Action cannot be a satisfaction for another thing in Action Vpon a Request and none ready to receive and after a Request Damages shall be paid from the Request Nota. Nota. Nota. An Almoner would have acknowledged satisfaction and doubted Judgement against the Plaintiff for incertainty of his Count. Nota. Judgement for the Plaintiff Nota. Because the first Contract was not usurious the latter shall not No Action of Debt for Soliciting Fees Defendant pleads the Plaintiff was indebted to him and he took Administration and retained his own Debt in his hands Bailiff of a Colledge claims the Liberty of the University but denied to him Special Verdict Nota well Appearance though at another Day the same Terme saves the Bond. Demand necessary for a Nomine penae Costs omitted in the Roll and Error brought and demed to be amended Nota. The Venire facias mis-awarded The Defendant pleads that be was ready to grant and naught No Demand necessary Note this diligently Fully administred no good Plea by an Administrator to a Scire sacias to revive a Judgement had against the Intestate An Executor an Assignee in Law Nota. Nota. Nota. An Executor by wrong shall not by his Plea prejudice a rightfull Executor Condition of non-payment of Rent to re-enter the Rent was behinde but before re-entry accepted the Estate is confirmed by the Acceptance The Defendants name mis-taken in the Venire and a new Triall awarded No costs against an Executor Devise of the profits of the Land it self Debt brought against an Excutor after full age for Goods wasted by the Administrator during his minority Release of all Demands a good Barr in Rent not then due Judgement arrested for improper words without an Anglice The want of a Bill not helped by the Statute of Jeofayles To forbid no Breach The Defendant pleads a Plea by which he pretends the Plaintiff to be barred in another Suit but no Barr. One by his own Election cannot be Executor for part and not for part Tenants in common Severall Debts Debt lies by him to whose use money is delivered Debt upon a Statute of Perjury at a Commission issuing out of Chancery not ly Outlary pleaded in Barr and Nul tiel record pleaded and in the mean time the Outlary reversed Judgement that the Defendant should answer over No Escape lies against a Sherif vpon a Capias upon a Recognisance out of the Chancery Request to make Assurance generally and good Appearance upon warning and for default adjudged naught Action of Debt upon the Statute of E. 6. for Tithes Sufficient to say the Plaintiffe is Proprietor without shewing the Title Misprision of the Clerk amended after Triall Judgement reversed by Writ of error being in the disiunctive The Plaintiffe had no Interest but 〈◊〉 rendring of the Land Lessee at Will cannot determin his will within the year but must answer the whole Rent The Plaintiffe not bound to alleadge a speciall breach when the Defendants Plea continues speciall matter Debt for Flemish Money but demanded by the name of 39. l. English If the Obligor marry the Obligee the Bond gone Judgement obtained by an Administrator and after Administration revoked and party took in Execution and delivered because erroneous To plead an Appearance and not say Prout patet per Recordum naâ—gâ—… Nota. Award void for the incertainty for being the Judgement of one it ought to have plainness and certainty Judgement obtained by President of the Colledge of Phisicians his Successor after his Death and not his Executor shall have Execution Assurance Tithe shall be paid of Wood above twenty years growth if it be not Timber Variance between the Obligation and count shall not be shewed after imparlance Demand of Rent must be at the place of Payment Judgement reversed in an inferior Court for want of this word Dicit Want of an Original after a Verdict no Error but a vitious Original is Error Plea naught for want of a Traverse Nota. Plaintiff in Debt for Tithes need not be named Rector in the Plaint in the upper Bench. Tithes cannot be leased without Deed Judgement reversecâ— for Error in the Judgement If a Suggestion in part need proof and part doth not no Costs Judgement reversed for Error in changing the Defendants Additions Action upon the Statute for Tithes the Statute mistaken yet it being according to divers Presidents ruled good Bill abated for not naming an Infant Executor in the Action although Administration was granted during his minority Action upon the Statute 32 H. 8. of Arrerages of Rents Action lies not upon that Statute for Arrerages of Copy-hold Rents Action of Debt brought upon a Bill for money received to another use An Executor of his own wrong cannot retain Goods in his hand to pay himself Primo deliberat shall not be pleaded without a Traverse If the Plaintiff assign no breach he shall never have a Judgement though he hath a Verdict Rent reserved at Michaelmas or within ten dayes after due at Michaelmas A Judgement reversed by Writ of error notwithstanding a Verdict and the Statute of 18 Eliz. Executor shall not pay Costs upon the statute of 4 Jacobi cap. 3. How a reservation for Rent shall be construed One must not plead in discharge of the Obligation but of the Condition contained in the Obligation A contingent Debt cannot be discharged False Latine shall not overthrow an Obligation A Deed of gift good against him that makes it notwithstanding 13 Eliz. and against his Executors and Administrators Action brought upon an Obligation to stand to the Award of four or two of them Award made by two good Debt Judgement arrested for Nil shewing in what Court the Deed was inrolled Judgement reversed for want of these words in a Tales at Assises nomina Jurat c. By a Release of all demands money to be paid at a day to come may be released before the day If the Defendant confess he hath Assets the Sheriff may return a Devastavit Action of Debt brought against the Sheriff upon an Escape for one taken upon a Capias upon a Recognisance and adjudged that it would not lie Debt brought upon a Lease made to an Infant One may take his Executioâ— either against the principall or Bail at Election An Action of Debt brought upon a Bond
Acres to the Plaintiff and that the Defendant made and erected one Ditch and Hedge by reason whereof the Plaintiff lost the benefit of his way and after Triall and Verdict for the Plaintiff it was moved in Arrest of Judgement because it did not appear in the Declaration to what Village the common way led to And it was held a good Exception and Judgement arrested but if it had been unto a common way there or in such a Village it had been good KEnt versus Prat Hill 7. Jac. rotulo 131. Action upon the Case the Plaintiff declares that Prat was Rector of the Church of S. And that Kent was lawfully possessed of the Parsonage-house and that there were divers strifes between the Plaintiff and Defendant for the said Rectory and that the said Prat in consideration that the said Kent would surrender the Parsonage-house and the Gleab-land which were then sowed by Kent he promised c. And after Triall it was moved in Arrest of Judgement that the Surrender was not a valuable consideration because it did not appear to the Court that Kent had any Estate but at will which is determinable at the will of the Lessor and so he surrendred nothing but if these words had been in the count viz. of the Demise of the said Prat For a term of divers years it had been good though the certainty of the years had not been expressed SMailes versus Belt uxorem Hill 1. Jac. rotulo 1372. Action upon the Case for words spoken by the Woman Videlicet Thou art a Theif and a mainsworn Theif and a Verdict for the Plaintiff and moved in Arrest of Judgement that the Action would not lie but Judgement was arrested because the Issue was Quod ipsi non sunt cul and it ought to have been that the Woman was not guilty YArdley Attourney versus Ellyll Mich. 11. Jac. rotulo 1252. Action upon the Case brought for these words Your Attourney meaning the Plaintiff is a bribing Knave and hath taken twenty pounds of you to cozen me the Plaintiff laid a Communication such a day and place by the Defendant with one B. which B. had before that time retained the Plaintiff to be his Attourney concerning the Plaintiff Hubbart and Nichols held the words actionable videlicet for the first word Bribing Knave and that the last words did not extenuate or weaken the former if the words touch him in his Profession the Action will lie for it is against the Oath of an Attourney Birtridge is an old perjured Knave and that is to be proved by a stake parting the Land between M. and C. One Judge for the Plaintiff and two for the Defendant COrnhill versus Cowler Trespass upon the Case brought against Baron Feme for words spoken by the Woman the Baron Feme plead Quod ipsi in nullo sunt cul de praemissis and the Jury finde that the Woman was guilty and Exception taken after Triall to the Issue and Verdict and they were both aided by the Statute of Ieofayles But another Exception was that the Action was laid in Suff. And the Addition in the Writ was A. C. de C. in Com. Essex and in the Declaration the Plaintiff alleadges that the words were spoken at C. in the County aforesaid which was in the County of Essex and so a Mistryall CHimery versus God Action upon the Case upon a promise to discharge and save harmless the Plaintiff against all manner of persons and shews a Suit for Tithes in Norwich Court and the Defendant replies that the Plaintiff was not damnified and the Plaintiff rejoyns that he was damnified to wit at S. aforesaid which was in the County of Suffolk where the Action was brought and the Court held the Cause was mis-tried because the Suit was in Norwich and ought to be tried in Norwich and not in Suffolk and these words Apud S. praedictam were idle TIllet versus Bruen for words Trin. 12. Iac. The Plaintiff shews a Suit in Colchester Court and a Triall there before the Bayliff and that the Plaintiff gave in Evidence his knowledge and the Defendant willing to defame the Plaintiff as if he had given false Evidence said of the Plaintiff Thou art as much forsworn meaning in the Evidence aforesaid by the Plaintiff upon his Oath in Form aforesaid given as God is true and moved in Arrest of Judgement that the Inuendo would not maintain the Action and so adjudged LAmpleigh versus Braithwaie Mich. 13. Iac. rotulo 712. Action upon the Case in which the Plaintiff sets forth that whereas the Defendant had feloniously killed a Man and after the Felony committed did earnestly request and solicit the Plaintiff that he would labor and indeavour to obtain from the King for the Defendant a Pardon for the Felony upon which the Plaintiff at the instance and request of the Defendant by all lawfull ways and means possible did often and by many days labor and indeavor to obtain c. Videlicet by riding and journeying at his own cost and charges from L. unto the Village of R. where the King then was and from thence back again to L. to obtain c. The Defendant afterwards at H. in confideration of the Premisses did assume and promise to give the Plaintiff an hundred pounds of lawfull money when he should be required and a Verdict for the Plaintiff and moved in Arrest of Judgement for that it did not appear that the Plaintiff had spoken to the King for a Pardon nor done any thing or obtained a Pardon and Judgement was given for the Plaintiff Wynch said the Promise was subsequent to the Request and good for although the Defendant had no good by it yet because the Plaintiff was at costs and labor and it was at the Defendants request sufficient to maintain the Action If I request one to do a thing for me and make no promise and after you let me know that you did such a thing for me and then I promise to discharge or pay you this is a good consideration although the Promise go not with the Request otherwise it is where a man doth me a curtesie without any request And Hobart took this difference between a consideration executed and executory for where Non assumpsit is pleaded to a consideration executed the Plaintiff needs onely to prove the Promise for where the consideration is executory the Defendant may take Issue as well for not performing the consideration executory as upon the Promise GLover versus Taylor Hill 13. Iac. rotulo 852. Action upon the Case for ill using a Horse so that the Horse died and the Defendant promised to re-deliver the Horse The Defendant pleads Non cul And after a Verdict it was moved in Arrest of Judgement because he did not plead Non assumpsit And it was held a good Issue MArshall versus Steward Mich. 13. Iac. rotulo 1134. Action upon the Case reciting the Statute of 1.
Iac. against Invocation c. for these words The Devil appeareth to thee every night in the likeness of a black Man riding on a black Horse and thou conferrest with him and whatsoever thou dost ask he doth give it thee and that is the reason thou hast so much money and this I will justifie Judgement for the Plaintiff In Trover Judgement by Nihil dic and Exception taken to the Declaration to stay the filing the Writ of Inquiry because no day of the conversion was in the Declaration and by two Judges held naught Mich. 14. Iac. PArker versus Parker Hill 12. Iac. rotulo 426. In Trover after a Verdict it was moved in Arrest of Judgement that the imparlance Roll was entred with Spaces for the possession and conversion but both those Spaces in the Issue were filled up and held good The Imparlance was entred Mich. 12. Iac. rotulo 547. WHitepain versus Cook Pasch 12. Iac. For words Thou art a Rogue and I will prove thee a Rogue no Judgement STone versus Bates A man may well incourage one that was robbed to cause the Felon to be indicted and accompany him to the Assizes and this shall be lawfull for to do without incurring the danger of an Action upon the case upon conspiracy but if he knew that he was not robbed then he is in danger of the Action upon the case COpe and his Wife administratrix Plaintiffs versus Lewyn Trin. 12. Iac. rotulo 1714. An Action upon the case brought upon a promise made to the Intestate and in the Court omits to shew the Administration and after Triall that Fault moved in Arrest of Judgement and the whole Court was of opinion that he should not have his Judgement for it did not appear that he was Administrator for at the Common Law no Administration lay but the Ordinary ought to have the Goods HArvey Attourney versus Bucking Mich. 12. Iac. rotulo 842. Action of the case for slanderous words He meaning the Plaintiff shewed me first a Bill of fourty pounds without a Seal meaning the said Bill by the said E. as aforesaid sealed and delivered and afterwards he shewed me the same Bill with a Seal and he meaning the Plaintiff hath forged the Seal of the same Writing meaning the Seal of the said Bill by the said E. as aforesaid sealed and delivered The Defendant traverses the words and a Verdict for the Plaintiff and it was alleadged in Arrest of Judgement that the Declaration was naught for that it did not directly appear that there was any communication between the Plaintiff and Defendant concerning the Bill but onely in the inuendo which will not maintain the Action and Judgement arrested MOrton versus Leedall Hill 10. Iac. rotulo 1783. Action upon the case for these words He is a lying and dissembling Fellow and a mainsworn Fellow And a Verdict for the Plaintiff And afterwards it was moved in Arrest of Judgement that the Action would not lie but at length Judgement was given for the Plaintiff And Serjeant Hutton cited the like case adjudged in t Barnes He is a mainsworn Villain 〈◊〉 Skipwash SKipwash versus Skipwash Hill 14. Iac. rotulo 3472. Action upon the case that whereas the Defendant in consideration that the Plaintiff would marry one A. B. did assume to pay the Plaintiff twenty pounds when he should after the Marriage be thereunto requested The Plaintiff alleadges no special Demand and that Fault was moved in Arrest of Judgement Hobart and Wynch were for the Plaintiff Warburton for the Defendant JOtham versus Ball Hill 12. Jac. rotulo 1920. Action upon the case for slanderous words Videlicet Your Master Euseby meaning the Plaintiff is a Rogue a Rascall and Forger of Bonds the Plaintiff laid a Colloquium between the Defendant and one R. G. And after Verdict moved in Arrest of Judgement for that it did not expresly appear that the said R. G. at the time of speaking the words was Servant to the Plaintiff and Judgement was stayed by the Court. COddington versus Wilkin for words Trin. 12. Iac. He is a Theif and why will you take a Theifs part spoken 1. Martii 10. Iac. The Defendant justifies the words because the Plaintiff stole Sheep The Plaintiff by way of replication sets forth a general Pardon granted such a time and further saith that if any Felony were committed it was before the general Pardon made and shews himself to be a Subject and no person excepted in the Pardon The Defendant demurs The Court were of opinion that by the Pardon both the Punishment and Fault were taken away and that the wrong was done to the King by the Common Law and the King being the supreme Head if he pardons the party is cleared of the wrong As if a Villain be infranchised he from thenceforth is no Villain Note if a man upon good consideration promise to become bound to another by his Obligation to do an Act and if he do not become bound Action upon the case will lie against him and the Plaintiff is not bound to tender him an Obligation but the Defendant hath took it upon himself to do it RIchards versus Carvamell Action of the case brought and counts for non-payment of money at the Plaintiffs next coming into the County of Somerset and avers that such a day he came into the County of Somerset Videlicet apud T. in Com. Somerset and that the Defendant though often requested hath not paid And Exception taken because the Plaintiff did not alleadge in his count that he gave notice to the Defendant when he came into the County of Somerset but not allowed and Judgement given for the Plaintiff And note when a man assumes to pay money or do any thing upon condition the Defendant may take Issue upon the condition and needs not plead Non assumpsit but if he pleads Non assumpsit then he confesses the performance of the condition which mark AVstin versus Jarvis Trin. 13. Jac. rotulo 2180. The Plaintiff declares that such a Day and Year he bought of the Defendant a Horse for a peice of Gold of the value of 22. s. by him to the Defendant then in hand paid and for a 11. l. to be paid to the Defendant at the Day of Death or Marriage of the Plaintiff which should first happen for payment of which 11. l. the Plaintiff should bring to the Defendant one sufficient man to be bound together with the Plaintiff to the Defendant the Defendant in consideration thereof assumes to deliver the said Horse to the Plaintiff when he should be thereunto requested and the Plaintiff avers that such a Day he brought the Defendant one sufficient man Videlicet I. A. de B. Yeoman to be bound together with the Plaintiff to the said Defendant for the payment of the said 11. l. and shews that he requested the Defendant to deliver the said Horse yet the Defendant hath not delivered
him according to his promise The Defendant pleads Non assumpsit And a Verdict for the Plaintiff and moved in Arrest of Judgement for that the Plaintiff at the time of the Contract was an Infant and that he could not perform his promise by reason of his Infancy and therefore the promise void and another Exception for that it was not alleadged in what sum the Plaintiff and his Surety offered to be bound and Judgement was that the Plaintiff Nihil capiat per breve JAcob versus Songate Trin. 9. Jac. rotulo 2776. An Action upon the case brought for this word Perjured The Defendant justifies that it was found by Verdict that the Plaintiff was perjured but no Judgement entred upon that Verdict And whether the Plea were good being there was no Judgement was the Question and it was adjudged no Bar because no Judgement was given in the first-Action and so Judgement entred for the Plaintiff CRuttall versus Hosener Pasch 16. Iac rotulo Action of the case for these words He meaning the Plaintiff hath caught the French Pox and brought them home to his Wife And Judgement for the Plaintiff THornton versus Iepson The Plaintiff being a Currier brought an Action upon the case for these words He is a common Barretor but the words would not lie for a man of that Profession but would lie for a Justice of Peace or Lawyer IReland versus Smith Hill 9. Iac. rotulo Action upon the case brought for these words You Norgate take part against me with Ireland who is a Papist and hath gotten a Pardon from the Pope and can help thee to one if thou wilt The Plaintiff laid a communication between the Defendant and Norgate and alleadges himself of the age of 40. years and not above because it might appear to the Court that he was born within Queen Elizabeths Reign The Court held the Action would not lie as it was adjudged in Halls case and for this word Papist no Action will lie If I deliver my Goods to you to keep and I request them and you deny the Delivery of them now an Action of Trover will lie otherwise it is without a Deniall if I distrain Cattle I must not use them WArter versus Freeman Mich. 15. Iac. rotulo 1941. Action upon the case brought for that the Defendant sued out a Fieri facias upon a Judgement which he had against the Plaintiff upon which Judgement the Defendant had before sued out a Fieri facias and the Sheriff of Oxford had upon the first Fieri facias returned that he had levied the Debt and Damages and that they remained in his hands for want of Buyers and the Defendant knowing that the Sheriff had levied the Debt and Damages and intending to charge him again prosecuted another Fieri facias and that the Sheriff had again levied the said Debt and Damages and hath paid the Debt and Damages to the Plaintiff to wit at Westminster in Com. Middlesex where the Action was brought and Judgement after Debate was given for the Plaintiff though the Defendant alleadged that the Fieri facias was an Act in Law and so no cause of Action against him PArkhurst versus Powell vic Denbigh Mich. 15. Iac. rotulo An Action of the case for a false Return of a Capias utlagat and declares that he prosecuted a Capias utlagat directed to the Sheriff of Denbigh where the Defendant inhabited and delivered the said Writ to the Sheriff to be executed and the Defendant being then in the company of the Sheriff and might safely have arrested him did not but suffered him to escape and returned that he was not to be found and upon Not guilty pleaded it was tried in the County of Middlesex where the Action was brought and moved in Arrest of Judgement that the Triall ought to be in Denbigh because the not arresting was the principal matter but because the Action was grounded upon double matter the Plaintiff had his Election to bring his Action either in the County of Denbigh or Middlesex by the whole Court BLand versus Edmonds Pasch 16. Jac. rotulo 444. Action upon the Case brought for these Words Videlicet George Bland is a troublesome Fellow and he did combine with thee to trouble the Countrey and I hope to see thee at the next Sessions indicted for Barratry or for sheep-stealing as George Bland was at the last Sessions for Bland was indicted the last Sessions for sheep-stealing And it was held by the whole Court that those Words would not bear an Action the Plaintiff layed the Words to be spoken to one Jo. Eagle and the Declaration was held naught and insufficient because it was not averred that the Plaintiff was not indicted at the Sessions BRadshaw versus Walker Hill 16. Jac. rotulo Action upon the case brought for these words Videlicet Thou art a filching Fellow and didst filch from A. B. 4. l. And Judgement that the Plaintiff should take nothing by his Writ for it shall not be intended that he stole the money ADams versus Fleming Hill 16. Jac. rotulo 890. Action of the case brought for these words Videlicet He hath forsworn himself before the Councel of the Marches meaning the Councel of the Marches of Wales in the Suit I had against him there and I will sue him for Perjury there And after Verdict for the Plaintiff moved in Arrest of Judgement that the words were not actionable for their uncertainty because the Court could not take notice that they had authority to hold plea in matters of record Judgement for the Plaintiff for these words Thou art a false forsworn Knave for thou didst take a false Oath before a Judge of Assise to hang a man GOre versus Colthorpe Trin. 5. Jac. rotulo The Declaration was in consideration that the Plaintiff would give credit to E. C. then servant to the Defendant for any thing the said E. should deal for to the use of the Defendant with the Plaintiff promised that he would see the Plaintiff contented that which the said E. should deal for with the Plaintiff for the use of the Defendant any way when the said Defendant thereof after it should become due should be requested and a special Verdict by which it was found that the Defendant promised to see the Plaintiff contented that which the above named E. C. should deal with the Plaintiff for the use of the said Defendant any way The Judgement of the Court was that the Verdict did not maintain the Declaration because for collaterall matters which are not Duties a Request is material and are not like a Duty as for Debt which is due and no Day of payment expressed that shall be alleadged to be when he shall be thereunto requested generally For if I sell my Horse for ten pounds and no Day of payment that shall be alleadged in the Count Cum inde requisitus esset And one case of Peters was cited which was
grounded upon a promise made in this manner Marry my Neice and when I come from London I will give you 100. l. and the Action was brought in this manner Videlicet in consideration that he would marry A. promised to pay the Plaintiff 100. l. after he returned from London when he was thereunto requested and for these words when he was thereunto requested the Action was maintainable HInch versus Heald Trin. 17. Jac. rotulo Action upon the case for these words Videlicet He is a Witch and hath bewitched me and the Court held the Action would not lie for he might bewitch him by fair words or fair looks GReen versus Harrington Trin. 17. Jac. routlo 953. The Plaintiff declares that the Defendant such a Day was indebted to the Plaintiff in 10. l. for Rent due to the Plaintiff for one year ended at Michaelmas then last past for divers Lands in H. demised to the Defendant by the Plaintiff the Defendant in consideration thereof promised to pay the Plaintiff the said 10. l. when he should be thereunto requested The Defendant pleads Non assumpsit and after Verdict given for the Plaintiff it was moved in Arrest of Judgement that there was no consideration to maintain the Action because an Action of Debt lay upon the first Contract being in the realty for upon an implied promise no Action will lie where it is in the realty except there be a special promise made upon a collateral cause Videlicet If the Plaintiff had threatned suit for the said 10. l. and the Defendant in consideration that he would forbear to sue promises to pay c. and the like for if a man be bound in a Bond to pay money and the Day past now an Action of the case will not lie for that money except there be a collateral promise and so in the like cases and Judgement was given against the Plaintiff Michaelmas 17. Jac. It was adjudged in the Kings Bench in an Action upon the case Videlicet whereas the Defendant was indebted to the Plaintiff in 10. l. without expressing the cause for which the Debt grew due the Defendant in consideration that the Plaintiff at the special instance and request of the Defendant then and there had given Day to the Defendant untill a time to come to pay the money the Defendant promised to pay the money that the Action was maintainable without expressing the cause for which the Debt was Hill 17. Jac. rotulo 2722. Action of the case brought for these words Thou art a perjured Knave and I will make thee wear Papers for it the Defendant justifies the words and shews that the Plaintff was a Church-warden and took his Oath to exercise that Office and whereas one Article made was that he should present whether the Church-yard was repaired or no and he knowing it did not present it Action of the case brought for these words Thou art a scurvy perjured Knave the Action will lie WIlson versus Sheriffs of London Hill 17. Jac. rotulo 3069. The Plaintiffs declare upon an escape made upon a Capias ad respondendum after the Defendant was arrested the Defendant pleads a Custome in London that the Maior and Sheriffs of London have used to inlarge Prisoners that were arrested in coming and returning from their Courts having Causes there depending and set forth a Plaint in London against the Defendant and that he was arrested and appeared and pleaded to Issue and as he was coming to the Court to defend that Action he was arrested as is supposed in the Action upon the case brought against the Sheriffs and shew that he was brought to the Court and inlarged by the Court and the Court held that if a man were arrested in the face of the Court the Court might discharge him otherwise not PAin versus Newlin Mich. 16. Jac. rotulo 3042. Action upon the case brought upon a promise and Judgement by Nihil dicit and at the return of the Writ to inquire the Defendant moved in Arrest of Judgement and shewed that the Day of the promise was supposed in the inquiry to be Anno Domini 1614. And in the Declaration it was made 1617. and for that variance Judgement was stayed BElcher versus Hudson Hill 6. Iac. rotulo 132. The Plaintiff declares that in consideration that the Plaintiff at the request of the Defendant would marry one T. M. his familiar Freind the Defendant promised to pay the Plaintiff yearly after the Decease of the said T. M. 40. s. for her maintenance and the Plaintiff averrs the Marriage and that she survived The Defendant pleads that the said T. M. in his life time after the Marriage c. did release to the Defendant all Actions as well real as personal and all Demands and Challenges whatsoever from the beginning of the World unto the Date thereof to which Plea the Plaintiff demurrs and adjudged a naughty Plea BOx an Attourney against Barnaby Action upon the case for these words George Box is a common maintainer of suits and a Champertor and a Plague of God consume him and I hope to see his Body rot upon the Earth like the Carkase of a Dog and I will have him thrown over the Bar next Term and I will give a Beech to make a Gallows to hang him and Judgement given for the Plaintiff for this word Champertor and no other Trin. 14. Iac. Action upon the case for these words She is an arrant Whore and had two Bastards in Ireland and Judgement by the whole Court that the words would not bear an Action YOrk versus Cecill Mich. 14. Iac. Action upon the case brought by A. Tanner for these words Thou art a bankrupt Knave and the Court held that the Action would not lie but Quaere Skaif versus Nelson Mich. 12. Iac. rotulo 1106. Action upon the case brought for words against Husband and Wife spoken by the Wife and Judgement was entered for the Plaintiff and in entering of the Judgement it was made Et praedicta E. being the Woman in misericordia which was naught for it should have been both the Husband and Wife in misericordia and after the Record was certified by Writ of Error Serjeant Richardson moved that it might be amended because the Judgement Papers were right and so it was ordered to be amended according SMails an Attourney versus Moor Hill Iac. rotulo 753. Action upon the case for the words He is a forging Knave and the Court held that the words were actionable for he alleadged in his Declaration that he was an Attourney of the Common Pleas and so being touched in his Profession the words would bear an Action and if a man said of a Bishop that he was a Papist the Action would lie because Religion is his Profession and so he is defamed STeward versus Bishop Trin. 14. Iac. rotulo 769. Action upon the case for these words James Steward meaning the Plaintiff is in
pair of Stones in your Mill and pay a Rate for them then if you put on another pair of Stones new Tithes must be paid in kinde If one in Fee make a Lease for Life and after granteth a Rent-charge if the Grantors Cattle come upon the Ground I may distrain them although I cannot distrain the Tenant in Possession but the Grantor cannot avoid it If the condition of a Bond be to discharge a Messuage of all Incumberances then one may plead generally that he did discharge it of all Incumberances but if it be to discharge it of such a Lease then I must shew how If a man devise his Trees to his Executors to pay his Debts the Executor must in convenient time cut down the Wood. And so if a man sell his Trees the Vendee must sell them in a convenient time If I grant you out of my Mannour 10. l. per ann and recite but five pounds the Recitall shall not diminish the Grant And so if I grant you ten pounds out of my Mannor and recite 20. l. this shall not inlarge it If I infeoff two of Land habendum to me in Fee and habendum to the other in Fee they are Tenants in common In the Court of Wards one Dymack was a Purchasor by Bargain and Sale and before inrolment D. dies and after his Death the Indenture was inrolled the Question was whether his Son shall be in Ward for the Land and it was adjudged that he is Heir to the Land and is in by the Statute of 27 Eliz. of Bargains and Sales and not by the Statute of Uses My Lord Hobard held that if an Executor pay a Bond made upon a usurious Contract it shall be a Devastavit in the Executor and if he be bound to present one to a Church and he present one upon a Simonaical Contract the Bond is broken Hill 10. Jac. Resolved if one make a Lease of a Mannour reserving Rent and afterwards the Lessor grants the Reversion of forty acres thereof now if an Action of Debt be brought by the Grantee he may aver the rate of the Acre and if the Defendant plead Nil debet per patriam the Jury shall rate the value and although the value be found less by the Jury then the Plaintiff surmiseth yet the Plaintiff shall recover after the proportion For Acts in Law no Attornement is necessary as if a Lease made for years reserving a Rent which is assigned to a Woman for Dower she shall have the Rent without Attornement In Cambels case upon an Elegit returned that the Lessor was seised in Fee and that by vertue of the Judgement the moity was delivered to the Plaintiff and for the Rent reserved upon the Lease for years before Judgement If a man top a Tree under the growth of 21. years and suffer the body to grow and afterwards when the boughes are grown out again he doth lop and top it again I shall pay no Tithes although the Tree was not priviledged at the first cutting by the opinion of the whole Court If a Debt be recovered in a Court of Record that Debt cannot be assigned over to any man by the opinion of the whole Court Mich. 10. Jac. Pasch 14. If Money be to be paid upon proof made there the triall shall be the proof to be made before but if it be to pay Money within 3. Moneths after proof there proof must be made first but if it be upon proof before A. then proof being made before A. this extending proof shall tie the party but Warburton held the contrary and he resembled this to a surmise to have a prohibition which is no binding proof for the Jury may pass against the proof in the surmise when a Bond is to pay Money upon proof this is a legal proof by Law if it be laid generally to be paid by proof if it were by proof before two Justices or two Aldermen this shall be intended a sufficient proof when the Action shall be brought upon the Bond and if the Defendant say that due proof was not made then they shall say that before the two Justices c. it was proved by testimony before them and then the Judges shall judge whether it be a sufficient proof or not If I devise Lands to my Executors for three years for the payment of my Debts this is Assetts in the Executors hands but if I devise my Land to be sold for the payment of my Debts it is no Assets before it be sold Mich. 9. Jacobi It was held in the Common Pleas by the whole Court that in the Kings case the consideration of the Money paid is never to be proved Likewise in a common case of Bargain and Sale in consideration of Money paid where in truth none was paid yet it is good and the Bargainee is not tied to prove the Payment for the Bargainer may have an Action of Debt If a Legacy be granted out of Leases and a Suit in the Spiritual Court for this shall not be prohibited but otherwise it is if it were out of Fee Simple Lands HE le versus Frettenden Resolution upon two Cases upon the Statute of E. 6. for not setting forth of Tithes Videlicet A man possessed of Corn sels it and before two Witnesses sets out his Tithes and afterwards privately takes away his Tithes and the Parson sues him upon the Statute of treble Damages for not setting forth of Tithes and the Defendant proves by Witnesses that he set forth his Tithes yet this Fraud is helped for the words are without fraud or deceit In the second case one secretly sels his Corn to one who was not known and afterwards the Vendee commands the Vendor to cut the Corn which he doth and takes away the whole Corn without setting forth his Tithes and the Question was who should be sued for the Tithes and the Court held the first Vendor should be sued for it was fraudulent If a man be found guilty of Felony and after receives his Pardon he shall not be Legalis home to pass upon a Jury If a Venire facias be against an Arch-bishop the Venire facias shall be Tam milites quam alios liberos c. because he is a Lord of the Parliament If a man be obliged in a Statute staple his Copy-hold Land is not extendable but it is upon a Statute of Bankrupt If a man have Common in three Acres and purchase one of the three Acres his Common is extinct If a man of the Cinque Ports shall come to London he may be there arrested and shall not have the Priviledge of the Cinque Ports Difference between those things which are in the Prender and such things that are in the Render for if I take not such things as are in Prender according to my Prescription it is void If I have Estovers in Woods to be taken every other year if I
omit to take them every other year I cannot take them in the third year But for Rent and such other things that are in the Render I ought to have it when ever I demand it as it best pleases me And note that in such case one prescribed for eight Loads of Wood to be cut and taken as appertaining to a Messuage which was held naught by the whole Court for the Prescription should be laid for Estovers to be imployed upon Repairs of the said Messuage or to be spent in it for a man cannot prescribe to have a Prescription to come and cut down my Wood which is as much as I that have the Free-hold can do For the claim to take and sell my Wood cannot be good And the Court held it a good Prescription to prescribe to have Common every other year although you shew not the Commencement as to shew what time of the year when it begins If a man hath Common of Pasture in divers Closes and parcels of Ground where he hath some Land of his own there and in all other cases where one is to prescribe he need not to make his Title to every peice but to say he hath Common in loco in quo c. in t alia and need not to speak of the rest of the Land in the residue of the Feild because he hath Land of his own Common appendant belongeth to arrable Land not to Pasture Land If two Issues be joyned and in the awarding the Venire facias these words Videlicet Quoad triandum tam exit istum quam praedictum alium exit superius junct were omitted and after a Verdict such Default was moved in Arrest of Judgement and the Exception over-ruled and held good notwithstanding that omission The whole Court were of opinion that local things shall not be made transitory by laying the Action in a forrain Shire as for Corn growing in one Shire and an Action of Trover brought in another COmes Cumbr. versus Comitem Dorset It was moved by the Defendant that whereas the Plaintiff had prosecuted a Distring Jur. and onely eleven of the Jury appeared and the Inquest remained to be taken for want of Jurors and that at such time neither Plaintiff nor Defendant desired a Tales and afterwards the Defendant in another Terme prayed a Tales of that Writ which the Plaintiff had prosecuted and the Court denied to grant it because he prayed not a Tales when the Distress was retorned and if he would have a Tales he must purchase anew a Plur. distring and if then the Jury fill not the Defendant may pray a Tales and the Court ought to grant it And note upon the first Habeas Corpus the Defendant shall not have a Tales but in Default of the Plaintiff IF the Chamberlain of the County Palatine of Chester make an insufficient Return to the Court of Common Pleas upon a Writ issued out of that Court the Sheriff shall be amerced because the Sheriff is the Officer responsible to the Court. The King hath power to make and create a Leet anew where none was before A Distress is incident of Right but in a Court Baron a Prescription must be laid to distrain J. Rogers versus Powell My Lord Cook held that the Surrender of a Copy-hold in Tail is not any Discontinuance and Justice Foster of the same opinion In Doctor Husseys case in a Ravishment de gard wherein the Judgement is penal the Habeas Corpus was denied by the Court to be amended being a blank Writ after a Verdict but was adjudged Error For the Proviso in the Statute of Jeofailes 18 Eliz. excepts Actions upon penal Statutes One Jury was impannelled of the Town of Southampton and called to the Bar and made Default and the men of that Town shewed to the Court a Grant made to the Inhabitants of that Town that no Return should be made of the men of that Town to be of any Jury and prayed the Allowance of their Charter and the Court appointed them to plead their Charter and it was done accordingly TRier versus Littleton A special Verdict was found whether Fraud or not Fraud and the Jury did not finde the Fraud expresly but they found Circumstances that the Deed might seem thereby to be fraudulent but the Court will not adjudge it Fraud where the Jury do not expresly finde the Fraud for the Judges have nothing to do with matter of Fact and so by the whole Court no Fraud Tenant for Life Remainder for Life Remainder in Tail Remainder in Fee the first Tenant for Life suffereth a Recovery the Remainder in Tail is barred although the second Estate for Life be no party Baron Feme seised of the Wives Land for Life of the Wife Remainder to the Husband and Wife in Tail and afterwards the Husband doth bargain and sell the Land by Deed inrolled and a Precipe is brought against the Bargainee and he voucheth them in Remainder this is a good Recovery to barr the Estate Tail If an Information be brought against three upon the Statute of Maintenance and two of them appear and the third doth not appear the Plaintiff may declare against the two that do appear before the other appears for it is but a Trespass and Contempt as in Trespass and Conspiracy but it is otherwise in Debt upon a joynt Contract for there the Plaintiff cannot declare against one untill the Process be determined against the other by the opinion of the whole Court If Judgement be entred in Trespass of Oct. Hillarii the Writ to inquire of Damages may bear teste of any other Return of that Terme besides of Octab. Hillarii for the Terme is as one Day and so hath been adjudged upon a Writ of Error in the upper Bench but it is otherwise held in the Common Pleas. If a Bargain and Sale be void in part it is void in all If an Officer or priviledged person of the Court of Common Pleas sue another priviledged man of any other Court whatsoever yet he of the Common Pleas that first sued shall force the other priviledged person to answer in the Common Pleas but if a priviledged man be sued with another as Executor no Priviledge lies Summons and Severance lies between Executors Plaintiffs and if one of the Executors be outlawed or excommunicated he may be demanded and if he comes not shall be severed by an award without Process after he hath appeared and the other shall proceed without him but if he had not appeared then Summons and Severance shall issue out against him FLetcher versus Robson An Extent upon a Statute Merchant issued out against Robson the Cognisor and the Sheriff returned that the Cognisor was possessed of divers Goods and seised of Lands which he delivered to the Cognisee and that the Cognisee accepted of the Land and because the Sheriff did not return that he had not any other Lands Goods or Chattels it was
adjudged insufficient and a new Writ awarded but many held that in the case of a Cognisor it was well enough but not in the case of a Purchasor If one knowledge a Statute and after a Judgement is had against the Cognisor now against the Cognisor the Statute shall be preferred but not against an Executor If a man plead a Bond knowledged to the King in the Exchequer it must be averred to be a true Debt If a Debt be assigned to the King in this case no priority of Execution If one staul a Debt by 20. s. a year this shall not stay my Execution the Court were of opinion that an Extent would not be good at Barwick for the Writ runs not there If a Judgement be given in a Court of Record it shall be preferred in case of an Executor before a Statute But if a man acknowledge a Statute and afterwards confess a Judgement and if the Land be extended upon the Judgement the Cognisee shall have a Scire facias to avoid the Extent upon the Judgement otherwise in case of Goods for therein first come first served for if I have a Judgement against one and afterwards he acknowledgeth a Statute and by vertue of the Statute the Goods of him being dead were taken in the Executors hands then upon the Judgement a Scire facias was sued and afterwards a Fieri facias of the Testators Goods it was held that the Goods first extended were lawfully extended and shall be good A Judgement was had against Sir Fr. Freeman and an Extent came to the Sheriff and afterwards and before any thing was thereupon done one Fieri facias against the Executor upon a Judgement given before the acknowledging the Statute was delivered to the Sheriff and the Question was whether the Extent or Fieri facias shall be first executed And note if the Land be first extended upon the Statute and afterwards an Elegit upon a Judgement obtained before the acknowledging the Statute come also to the Sheriff the moity of the Land extended shall be delivered to the Plaintiff upon the Judgement HIll 15. Jac. The case of Villainage is within the Statute of Limitation and in the case of M. Corbet it was held that the Prescription of the Seisin of the Plaintiff and his Ancestors as Villain was more then needeth and the Issue thereupon taken was good by the whole Court after Exception taken thereupon and Judgement was given for the Plaintiff In every Elegit the Sheriff must return and set out the moity distinctly unless they be Tenants in common and in that case he must return the special matter An Extent issued out against one Greisley by the name of Greisley Esquire who was at the time of suing out the Writ made Knight and Baronet and it was naught and the Plaintiff prosecuted a new Writ MIch 10. Jacobi A Tenant by Statute Staple or Elegit that hath extended an Abbots Lease or a Lease made out of an Abbots Lease is not bound to shew it because he cometh in by Act of Law but any other that cometh in under the Lease must shew it by the opinion of the whole Court And note that in Hillary 10. Jac. two Inquisitions taken at several Dayes by several Juries upon one Statute Merchant were adjudged naught one was taken of the Land and the other for Land and Goods and Extent of the whole fourth part was naught for it should be of the moity of the fourth part and mark it was of a Lease which was but a Chattell and the Sheriff might have sold it as Goods but seeing he had extended it in this case he should receive benefit but as in a common Extent COmyrrs versus Brandling A Lessee that had a Lease of the value of 100. l. and after the Teste of the Elegit and before the Sheriff had executed the Elegit assignes his terme to one who assignes it over to the Plaintiff in the Scire facias and afterwards and before the last Assignement the Sheriff executes the Elegit and delivers the Lease to the Plaintiff tenend c. for satisfaction of the Debt which came to but 43. l. 6. s. 8. d. it was held by all the Judges that the Sheriff could not deliver the Lease at another value then what the Jury had found it at and the Sale made by the Sheriff is as strong as if it had been made in open Market and that all the Goods and Chattels are bound after the Teste of the Elegit and cannot be sold by the Owner after the Teste of the Writ If a later Extent be avoided by an ancient Extent after the ancient Extent is satisfied the later Extent shall have the Land according to his first Extent without any re-extent by the opinion of Serjeant Hutton if the Husband charge the Lease of the Wife and dieth the Wife shall hold the Land discharged HIll 12. Jac. The Earl of Lincoln against Wood the Earl of Lincoln did arrest Wood upon a Capias upon a Statute Merchant Wood being in Execution obtained in the Chancery an Audita Quaerela and did put in Bail there and had a Supersedeas and was discharged of his Imprisonment and the Audita Quaerela and Bail sent into the Common Pleas to be proceeded on The cause of the Audita Quaerela was grounded upon the performance of the Defeasons of a Statute and after this case was debated for the Bailment of Wood and held by the Court to be good it was allowed of If the Act for Dissolution of Monasteries had not given the Land to the King the Founders ought to have had them And if an Hospital or religious House is impeached upon the Statute of Superstitious uses it must be proved to be regular for they must be religious that are dissolved by E. 6. JOules versus Joules Alderman purchased Land of one against whom a Judgement was given long before the Purchase and the Vendor afterwards became unable to pay the Judgement and long after the Plaintiff in the Judgement purchased a Scire facias against the Defendant and had Judgement against the Defendant by Default and afterwards had an Elegit and by vertue of that the Sheriff extends the Land of Joules the Purchasor who prayes the aid of the Court because the whole Land was not extended but he was forced to bring his Audita Quaerela If I make a Lease for years reserving a Rent during my Life and my Wives Life if I die the Rent is gone because she is a stranger she shall never have the Rent because she hath no Interest in the Land if one of them die nothing can survive to the other and a Limitation must be taken strictly otherwise it is by way of Grant that shall be taken strongly against the Grantor If 2. Tenants in common joyn in a Lease for years to bring an Ejectment and count Quod cum dimisissent c.
he be Lord or Free-holder The best badge of truth is the usage of taking the profit of the Trees 11 H. 4. rot 80. Where the Court ex officio should inquire and that omitted the Court may supply it but where an Attaint lyeth that is not to be supplied as in a Valore Maritagii the value is the point of the Writ and if that be omitted by the Jury never to be supplied by Writ Cheyneys case Valore Maritagii and intrusion were at the Common Law before the Statute and the Statute doth but inlarge the Common Law for by the Statute the Judgement is otherwise then at the Common Law It is vain to plead the Execution of a Writ of Seisin upon a Recovery but to plead that he did enter MIch 10. Jac. If I purchase Land by a name and alleadge it to be in a wrong Parish or Shire it is good notwithstanding the mistake by the Court. A stranger shall be bound by a Law made for the publique good but he must come within the place where it was made The King cannot grant precedency in publique things as to go by Water or by passage on the Land as by Coach if a Bond bear Date Super altum mare then it must-be sued onely in the Admiral Court otherwise it cannot be sued there Every Bishop hath his Cathedral and Councel and the Councel and Bishop there decide matters of Controversie the Prebends have their names from their affording of help to the Bishop and in time of the vacancy of the Bishop the Arch-bishop is Guardian of the Spiritualties and not the Dean and Chapter TRin. 14. Jac. rotulo 1810. Birtbrook versus Battersby Exception raken after Triall The Action was laid in Westmerland and the Jurata written at the end of the Record was Ebor. ss ura Inter c. and recites the Day of Triall in the County of York and the place where the Triall was at York and prayed that it might be amended and it was granted to be amended by the whole Court INt. Bullen Jarvis The Venire facias was made in this Form Videlicet Liberos legales homines de B. and it should have been De vicineto de B. and it was notwithstanding held good and amendable by the Roll for it shall be intended that the Jurors are inhabiting in the Town of B. although the Sheriff returns the Jurors of other places and none of them be named of B. and the Venire facias was returned by A. B. Ar. without naming him Vic. and it was amended by the Court. GRiffin versus Palmer Trin. 15. Jac. rotulo 924. Issue taken whether the Lands contained in the Fine were ancient Demesne or not pretending they were parcell of the Mannour of Bowden in the County of Northampton which was pretended to be ancient Demesne and the Doomesday Book was brought into the Court and by that Book it appeared that the Mannour of Bowden was in the County of Leicester and not in the County of Northampton but the Councel affirmed that the Mannour was both in the County of Leicester and Northampton but it valued not for the Doomsday Book was against the Plaintiff The Court was moved to amend a Venire facias which was Album Breve but the Court would not grant it although the Sheriffs name was put to the Pannell but if the Sheriff upon the Venire facias had returned that the Execution of that Writ did appear in a certain Pannell annexed to that Writ and had not put his name to the Writ of Venire facias but to the Pannell in such case the Court would have amended the Venire facias Lessee at will cannot grant one his Estate if one occupy with Tenant at will this is no Disseisin to the Lessor If a Tenant for seven years suffer Trees to grow above the age of 21. years they are Timber and it is waste to cut them Tenant at will shall pay his Rent when he holdeth over his terme but Tenant at sufferance shall not pay any Rent If a man holdeth over his terme and pay his old Rent he shall be accounted Tenant at will If one being sick giveth Notes to make his Will and after by infirmity of sickness he becometh so weak that his memory faileth him and these Notes are made into a Will this is a good Will otherwise it is if he become lunatique after the Notes given MIch 15. Jacobi One Warter was committed to the Fleet by the Lord Treasurer of England and the Prisoner was brought to the Common Pleas by Habeas Corpus which was returned and no cause of the Commitment expressed and for that cause the Prisoner was set at liberty and bailed TRinity Terme 15. Jacobi Hanson one of the Attorneys of the Common Pleas delivers a Note to the Sheriffs Clerk of the names of divers Jurors that were to be returned and of divers others that were not to be returned in a case concerning one Butler and for this Offence he was put out of the Roll of Attorneys In Spilmans case if I have Estovers in Land and cut down Estovers and a stranger taketh away the Estovers I shall have an Action against him that taketh them away although he have there Common of Estovers also If the Husband sow the Ground and die the Executors and not the Heir shall have the Corn but if the Father sow the Land and dieth or the Heir sow the Land and the Wife recover Seisin in Dower she shall have the Corn. The setting open a Shop on the Sabbath day is punishable by Statute Law and so is a House of Bawdry and not to be dealt with by the high Commissioners So long as the Land is occupied by him that hath the Fee-simple which did formerly belong to the Order of the Cistercians it shall pay no Tithes but if he let it for years or life the Tenant shall pay Tithes HIll 11. Jac. rotulo 90. A Recovery was had upon a Writ of Entry in le post for a common Recovery between Hartley and Towers in the County of Bucks the Attorney who prosecuted the Recovery by negligence did not file the Writ of Entry which was prosecuted orderly and all Fees paid when the Recovery was passed And in Easter Terme 14. Jac. it was moved that the Writ of Entry might be filed and it was granted although the Tenant was dead the Writ of Entry was returnable Octabis Purificationis MIch 14. Jacobi My Lord Hubbard Justice Warburton and Winch held that when there were but three Judges of the Common-Pleas they might argue Demurrs and if two of them were of one minde and one of the other the Judgement should be given according to their opinions My Lord Cook said that for the Body of the Church the Ordinary is to place and displace in the Chancell the Freehold is in the Parson and it is parcell of his Gleab Tpespass will
year to year the Defendant wages his Law and at the Day to wage his Law the Court refused to accept it for that he ought not to wage his Law for Wages yet if the Retainer were not for a year at least the Court seemed to be of opinion that he might wage his Law VErnon versus Onslow Pasch 12. Jac. rotulo 1047. Upon an Action brought upon a Bill for 80. l. the Defendant demands Oyer of the Bill was Pro octogesimis libris and to that the Defendant demurrs and Judgement for the Plaintiff Hutton cited the Case in Cooks 10. Rep. Rowlands Case And another in Mich. 44. 45. Eliz. rotulo 131. Proseptingentis libris and the Bond was Proseptungentis libris And another Mich. 11. Jac. upon a Bill for seventeen pounds and adjudged a good Bill YOung versus Melton Trin. 10. Jacobi rotulo 3434. An Action brought upon a Bond for performance of Covenants the Defendant pleads Conditions performed The Assignes the Breach for non-payment of Rent and pleads in this manner that in December he demised to the Defendant one Wine-Cellar c. for one year and if the Defendant would hold the Wine-Cellar for three years paying 40. l. yearly during the said terme and alleadges non-payment of the Rent of on Quarter in the first Year and the Defendant demurrs and the Court were of opinion that the reservation had reference as well to the first year as to the two years following and in that case Cook said that if a man demise c. reserving Rent to himself the Heir shall not have the Rent but if the Rent be reserved generally the Heir shall have it WHickstead versus Bradshaw Pasch 14. Jac. rotulo 2175. There was Judgement entred against the said B. and after the Bail of Bradshaw brought a Habeas Corpus to the Marshalsey Bradshaw being a Prisoner there to have his Body before the Judges of the Common Pleas to be committed in Execution in Discharge of the Bail but before the Returne of the Habeas Corpus the said Bradshaw had brought a Writ of Error returnable the Day following and when he came to be committed the Court doubted that their hands were tied by a Writ of Error by reason he could not be committed upon the Judgement and yet they would have discharged the Bail if they knew which way therefore Quaere GErrard al. versus Dannet Hill 9. Jac. rotulo 2015. Judgement was had upon a Bond by Non sum inform and a Writ of Error brought for that the Christian name of the Defendant Attorney was left out in the Imparlance Roll but it was in the Roll whereupon the Judgement was entred and a Warrant of Attorney entred accordingly and the Court was moved that it might be put into the Imparlance Roll which was granted upon sight of the Judgement Roll and Warrant of Attorney entred If a man be bound by Award to pay one 20. s. And I at the Day offer it and he refuseth it or comes not to receive it I must plead that I was ready to pay and shall not plead an Vncore prist because it is upon a collateral matter An Obligation was made to pay 10. l. 8. s. and eight not saying Pence or any thing else An Action of Debt lieth for the 10. l. 8. s. WIlde versus Vinor Trin. 7. Jac. rotulo 1629 or 2629. Debt upon an Obligation to perform an Award The Defendant pleads that the Arbitrators made no Award the Plaintiff replies that the Defendant by Writing did revoke and null the Authority of the Arbitrators Foster held the Bond was forfeited although he might revoke the Plea was that he did discharge the Arbitrators against the form of the Condition My Lord Cook held that the Power was countermandable if the Submission be by Writing the Countermand must be by Writing if by word I may countermand by word If two binde themselves one cannot countermand alone If Obligor or Obligee disable by their own Act to make the Condition void the Bond is single 14 H. 7. If I am bound to infeoff A. and I marry her before the Day the Bond is forfeited 18 E. 4. 18. 20. the great doubt was because no express notice but notice was implied And the Bond forfeited because he did not stand to it Judgement for the Plaintiff PArker versus Rennaday Trin. 6. Jac. Action brought upon a Bond for 60. l. the Bond was in Italian in these words In cessanta libris and held a good Bond for 60. l. O. K. ux ejus Admin versus Needham who was bound to the Intestate in a Bond and pleads that Administration of the Intestates Goods was committed to him by the Archbishop the Intestate having Bona not Abilia before it was committed to the Plaintiffs Wife The Plaintiff replies that the Administration committed to the Defendant was revoked and made void to which the Defendant demurrs pretending his Administration to be a Release in Law but it was otherwise adjudged But if the Debtor were made Executor then the Debt is released like unto an Administrator during the minority he may do all for the good of the Infants but nothing to their prejudice if an Executor marry the Debtor it is no Release in Law Judgement for the Plaintiff by the whole Court LAwrance and Althams case if I have no means to gain my Right but by Action if I release my Action I release the thing it selfe because I release my means to come to my Right If I release all Actions I may have Jus prosequendi A Release made by the Testator shall be no Barr to the Executor to bring a Writ of Detinue because it continues a wrong still to the Executor A Bond to pay Money at Michaelmas may be released because it is a Debt otherwise it is of a Rent reserved by Lease the like it is of a single Bill to pay Money at four Dayes if the first Day be broken no Action untill all the Dayes be past but in case of a Lease after the first Day Debt doth lie in the first it is a Debt but not in the other Quarrels Controversies and Debates are all one that is all Causes of Quarrels Controversies and Debates are more large then Actions and Suits are more then q. c. d. and by Release of Suits Executions are gone Release of Duties Executions are gone neither Fraud nor Might can take a Title without Right Demand is most large and by it Rents are gone Executions gone Incidents gone as Releif Warranties gone all Causes of Demand gone Actions and a mans Right gone When a condition is to arbitrate of all matters between c. there if the matters be not made known to the Arbitrators they are not bound to arbitrate more then they know for if it appear to the Court that all matters committed to the arbitrators be not arbitrated the Award is void but if the submission be of all matters between c. so that now all must be
Defendant replies that the Plaintiff had entred into part of the Premises the Day before the Day of Payment and so at Issue upon that and Exception was taken because the Plaintiff had alledged no Demand to be made and the Court held that was implied by the Issue and that it was not necessary FRyer Administrator of Mary Costiden of the Goods not administred by Mary Fryer Executrix of the said M. C. versus Jacobum Gildiich Executor of N. Pope Hill 11. Jac. rotulo 1990. The case was this two were bound to one and the Obligee makes the Wife of one of the Obligers his Executrix and one of the Obligers makes the same Woman Executrix and she dies and the Plaintiff takes Administration of the Goods of the Woman not administred and Judgement was given for the Defendant by the whole Court If an Executor hath a Lease and purchaseth the Fee-simple the Lease is gone but it shall be Assets in the Executors hands if a persnal thing be once gone it is extinct for ever If the Husband had survived the Wife he should be charged HArcock Executor of Harcock versus Wrenham Administrator of Wrenham Hill 11. Jac. rotulo 1963. A Scire facias brought to revive a Judgement had against the Intestate and the Defendant pleads Plene administravit which was held a naughty Plea by the whole Court for he cannot pay so much as Funerals before he pay the Judgement and therefore that general fully administred is naught The Jury found that the Intestate in trust conveyed one Lease to Fisher and that Fisher promised upon the Payment of 300. l. to re-assure the Interest to Wrenham and after his Death the Administrator the Defendant preferred a Bill in the Chancery as Administrator against Fisher and that the Chancery ordered that Fisher should pay the Defendant for his Interest in the Lease more then the summ received the summ of 1060. l. which was paid the Defendant accordingly and whether that should be Assets was the Question and it was held to be Assets If an Executor make gain of the Testators Money that gain shall be Assets the Doubt in this case was because this was but in Use and now whether the Court shall take notice of this Use they shall being found by the Jury Judgements shall be paid before Statutes or Recognances and Judgement was given for the Plaintiff and although in this case the Barr of generally administred be naught yet an Issue taken thereupon and tried shall not arrest the Judgement for the Plaintiff PEase and Stilman Executors Hanchet against E. Meade Mich. 11. Jac. rotulo 945. An Action of Debt brought upon an Obligation with a Condition if Meade his Executors Administrators or Assignes or any of them shall pay 20. l. within the Porch of the Parish Church of R. unto such person or persons as the said Hanchet shall by her last Will and Testament in writing limit nominate or appoint the same to be made in manner c. The Defendant pleads that the said Hanchet by her last Will and Testament in writing hath not nominated limited or appointed to what person or persons the said 20. l. should be paid The Plaintiff replies and sues that the Testator made him Executor and died and that he took upon him the burden of the Will and that the Defendant did not pay the Executor the Money and a Demurrer thereupon And if it had been to pay to her Assignee that she should name the Executor should have it such things as go by way of Executorship shall be to the Executor without nomination or appointment STannard versus Baxster Trin. 9. Jac. rotulo 1123. An Action of Debt brought for Damages recovered in an Assise of Nuzans for stopping the way before special Commissioners The Defendant pleads no such Record and the Record was delivered into the Court by the special Commissioners TRin. 8. Jac. rotulo An Action of Debt brought upon a Bond with a Condition for performance of Covenants of an Indenture The Defendant confesses the Bond and that after the making the Bond and before the purchasing the Plaintiffs Writ the Indenture by the consent and assent of Plaintiff and Defendant was cancelled and the said Plaintiff cancelled the said Indenture and it was held a naughty Plea by the said Court for it did appear but that the Bond might be forfeited For he ought to have pleaded performance of Covenants untill such a Day which Day the Indenture was cancelled BRook versus Smith Hill 9. Jacobi rotulo 829. Two Tenements in Common make a Lease and reserve a Rent and Covenant that neither should release and one of them releaseth his part this is a Breach for that in Debt they both should joyn and now by the Release the Action is gone LAny versus Aldred and another Executor Trin. 10. Jac. vel Pasch 9. Jac. rotulo 504. An Action of Debt brought against them as Executors one pleads that he was Administrator and that the Administration was committed to him by the Bishop and pleads a Recovery against him as Administrator and that he had fully administred and had no Assets to satisfie the Judgement and the other Executor acknowledged the Action and the Plea was held a good Plea but it was said the Defendant might have defeated the Action which was brought against him as Executor and therefore they would infer that it was no good Plea but it was a good Plea and it was held by the chief Justice that if an Executor of his own wrong be sued with a rightfull Executor in one Writ the Executor of his own wrong shall not by his Plea prejudice the rightfull Executor MArsh versus Curtis Hill 38. Eliz. rotulo 132. An Action of Debt brought upon an Obligation for performance of Covenants in a Lease upon which Rent is reserved and the Condition was that if the Rent should be behinde then lawfull to re-enter and the Rent was behinde and before re-entry the Rent was accepted The Question was whether he may enter for the Condition broken after the acceptance of the Rent Sir Edward Cook was of opinion that by the acceptance of the Rent he did confirm the Estate but if a Bond be entred into to perform Covenants in a Lease whereupon Rent is reserved and a Fine to be paid with a Condition of re-entry for not paying the Rent or Fine and if the Rent be received and the Fine not paid the acceptance of the Rent doth not take away the Condition for not paying the Fine R. Milton versus R. Pearsey Trin. 10. Iacobi rotulo 445. An Action of Debt brought and in the Venire facias the Defendants name was mistaken for the Venire was to impannell a Jury between R. Milton Plaintiff and I. Pearsey Defendant in a Plea of Debt and the Court held the Venire as none and a new Triall awarded and the like Judgement was given Trin. 7. Iacobi rotulo 787.
the Plaintiff shews that the Rector of M. had 2. parts of the Tithes in 3. parts to be divided that the Vicar of the same place had the third part of the Tithes and layeth this by Prescription as to the manner of the taking the Tithes shews further how the Parson Vicar by several Leases had demised the Tithes to him so he being Proprietor of the Tithes the Defend sowed 10. Acres within the Parish to wit Wheat Rie c. carried it away without setting forth the Tithe to his Damage c. And upon a Nil debet per patriam pleaded it was found for the Plaintiff and moved in Arrest of Judgement that the Plaintiff had in that Action comprised severall Actions upon the Statute and that it appeared by his own shewing for the Plaintiff claimed not the Tithes under one Title but under the severall Tithes of Parson and Vicar and Fennor Justice held they could not joyn and no more could the Plaintiff who claimed severally under them and it seemed to him that the Parson could not have this Action against severall Tenants for not setting forth their severall Tithes because he could not comprehend two Actions in one but the whole Court besides held the contrary for although the Parson and Vicar could not joyn in this Case because they claim their Tithes severally by divided Rights yet when both their Tithes are conjoyned in one person as it is in the Plaintiffe then the the Interest of their Title is conjoyned also in one and it suffices generally to shew the Plaintiffe is a Farmer or proprietor of the Tithes without saying of what Title for it is but a personall action grounded meerly upon a contempt against the Statute for not setting forth Tithes and also Tithes are not demanded by this Action although the Title may come in debate yet it was agreed by all the Judges that the Plaintiffe should recover his Tithes in dammages and shall not demand them again by any suit after a recovery in this Action which Mark. BErket versus Manning Pasch 3 Jacobi Action of Debt brought against the Defendant as Administrator of J. S. The Defendant pleads fully administred the Plaintiffe replies that himself had assets and it should have been that the Defendant had assets and this was moved in arrest of Judgement but amended by the Court being the Clerks misprision onely as where it is entred predict Defend similiter and it should have been predict quer similiter and this hath been often amended by the Court. PAler versus Hardman Pasch Jacobi Hardman and his wife Executrix J. H. brought an Action of Debt in the common Pleas against Paler and as that they should restore a tun of Iron to the value of twelve l. and declare upon a Bill for the delivery of the said tun of Iron within such a time and that the Defendant had not delivered it to the Plaintiffes dammage of c. and upon non est fact pleaded it was found for the Plaintiffe and Judgement was given that the Plaintiffe should recover the Tun of Iron or the value of the same and if he should render the tun then by the oath c. should inquire what the tun of Iron was worth and before any return of the writ to inquire of the dammages the Plaintiffe in the common Pleas takes out a Capias upon the Judgement and on Exigent upon that and the Defendant brings a writ of Error and it was adjudged erroneous for two causes first because the Judgement was in the disjunctive that the Plaintiffe should recover the tun of Iron and if not the value thereof so in detinue as it appears by the Judgement in this Case that the Plaintiffe may choose whether he will have the Iron or the value thereof which he cannot do for if the iron be to be delivered he shall recover that onely but if it be not to be delivered then the value and not as before Secondly for that the Judgement is not perfect untill the writ to inquire be returned with issues to the Sheriffe to distrain the Defendant to render the Iron and also to inquire of the value and before the return thereof nothing in certain appears One which to ground any writ of Execution for the Judgement comprehends no certainty but is to be made certain by the return of the writ to inquire with the whole Court granted CArpenter versus Collins Mich. 3 Jacobi An Action of Debt brought by the Plaintiffe for rent arere and declares upon a Lease made to the Defendant at Will to be held from Mich. as long as both parties should agree yeelding and paying three pounds yearly and shews that Collins entred and occupied from the Feast c. unto the Feast of Mich. and upon nil debet plenius the Jury foundthat J. Norrington had issue a Son and a daughter and Devises that his Son shall have his Land at the age of twenty four years and gives forty pounds to his Daughter to be paid her at the age of two and twenty years an further wills that the Plaintiffe should be his Executor and should repair to his houses and have the oversight and doing of all his Lands and moveable Goods untill the severall ages aforesaid and after dies and Carpenter the Executor makes the Lease before mentioned and the Jury further find that the Son died but find not at what age he was at his death but that the Daughter at the Sons death was nineteen and no more and find the Lease made by the Plaintiffe and that the Lessee by force thereof entred and continued possession from Michaelmas for one year and more and find that within that year the Daughter entred and that the Defendant atturned to the Daughter and refused to continue Tenant to the Plaintiffe and by Fennor Yelverton and W. Judgement was given against the Plaintiffe for the Plaintif took no interest in the Land by the Will for the oversight and doing of his Lands shall be intended but in Right of the Heire and to his use because the Testator though not his Son of discretion and government untill the age of twenty four years and in the mean time appointed his Executor to oversee and order the Land to the profits of the Heâ—â—e that wanted discretion 28 H. 8. D. 26. where it is declared that J. S. shall have as well the governing of c. as the disposing setting letting and ordering of his Lands and by the Court held that J. S. had them onely to husband for the profit of his children and no otherwise but he was of opinion that the Plaintif had an estate in the Land upon a limitation determinable at the Sons age of four and twenty years and it appears not at what age he died being not found by the verdict therefore it is incertain and the Entry of the Daughter lawfull for the limitation looks but to the age of the Sonne and
to seal and he refused and upon such Refusall the Plaintiff brought his Action and a Verdict was given for the Plaintiff and Serjeant Yelverton moved in Arrest of Judgement that the Plaintiff ought not to have Judgement for he said that the Defendant was not bound and compellable to seal that Obligation because it was not in Law any Assurance but a collateral thing and the whole Court agreed that and therefore being the Action was brought for refusing to seal the Obligation and Letter of Attorney and the Judgement according it ought to be arrested but Cock said that Judgement ought not to be arrested for the Premises of the Delaration it appeared that he refused to seal the Letter of Attorney and thereupon concluded that it should not be arrested and Fennor said that the Letter of Attorney was not any such Assurance as the Law required in such Case for when he had made the Surrender it should be accounted the Surrender of him that made the Assurance and he said he should make a present Assurance of it but Tanfeild was of another opinion and said that when the Surrender was made it shall be said to be the immediate Surrender of him that made the Letter of Atturney and such an assurance as the Law required and Yelverton Justice said the Letter of Atturney was lame for this cause the Letter of Atturney was made to one for the surrendring of such a Copy-hold and did not say in the Letter of Atturney for him and in his name for otherwise the Copy-hold might be the Copy-hold of him that surrendred by vertue of the Letter of Atturney and then he should surrender his own Copy-hold but Tanfeild was of another opinion because he said in the Letter of Atturney that he did constitute and appoint and in his stead and place put such a one which words in his stead and place are as full as if he should have said in his name HOllingworth versus Huntley Pasch 5 Jacobi An Action of Debt brought upon an Obligation the Condition amongst many other things contained that the Husband and Wife being Lessees for life of certain Lands that if the said Husband and Wife should levy a Fine to an estranger at the Costs and Charges of an estranger and also that they should levy a Fine of other Lands that they also held for their lives to an estranger and at their Charge then c. the Obliger sayes that the Husband and Wife did offer to levy the Fine if the estranger to whom the Fine was to be delivered would bear their Charges the Obligee demurres and it was adjudged for the Plaintiffe because the levying the second Fine had not any reference to the other because they are two distinct sentences and these words and also make them so Man versus Somerton Pasch 5. Jacobi The Plaintiffe being Parson of Henley brought an action of Debt for six hundred pounds upon the Statute of 〈◊〉 6. for not setting forth Tithe of Wood and the Plaintiffe shews that the Defendant had cut down two hundred loads of Wood to the value of two hundred pounds and saith the tenth part of that did amount to two hundred pounds and so he brought his action for six hundred pounds upon the Statute and the Plaintiffe was nonsuit for one fault in his Declaration for whereas he names the price of the Wood to be two hundred pounds it was mistaken for it should have been two thousand pounds for he demanded more for the tenth part then the principall is by his own shewing and Tanfeild Justice held that Beech by the common Law is not Timber and so it was adjudged in Cary and Pagets Case and it was held that Tithes shall not be paid for Beech above the growth of twenty years in a common Countrey for Wood as in Buckingham-shire for there it is reputed Timber but in a plentifull Countrey of Wood it is otherwise for there it is not Timber and Tithes shall be paid for such wood Silva cedua for which Tithes shall be paid is under the growth of twenty years but Tithes shall be paid for such wood which is not Timber which is above the growth of twenty years PErcher versus Vaughan Trin. 5. Jac. An action of Debt brought upon an Obligation for six pounds thirteen shillings eight pence The Defendant demands Oyer of the Obligation and imparles and after an imparlance the Defendant comes and sayes there was variance between the Plaintiffes writ and the Obligation for it appeared by the Obligation that the Defendant was obliged in viginti nobilis and so his action ought to be brought according to the Obligation and demands Judgement if the Plaintiffe ought to have his action the Plaintiffe demurres and it was argued by the Plaintiffes counsell first that it was no variance for it was said that twenty nobles and six pounds thirteen shillings eight pence were all one in substance if a man be bound to pay a hundred nobles and brings his action for fifty marks it is not variance 34 H. 8. 12. and 4 E. 3. Fitzherbert Title varians 102. agrees to that but if a man be obliged to pay certain money in Flemish money he ought to shew the performance of that strictly 9 Ed. 4. 49. and the Plaintiffes counsell said that it was variance it could not be shewed after an Imparlance in Marks Case Co. 5. 74. and said the conclusion of the Defendants Plea to demand Judgement of the Plaintiffe ought to have his action was not good for this Plea was not in barr of the action but in abatement of the Writ and Yelverton Justice agreed to that and he said when the Obligation was in viginti nobilis it shall be intended twenty nobles and good Tanfeild said that when there is no good and apt Latine words for a thing no unapt Latine word is put in the Bond for that thing the Bond is void as when a man is bound in quinque libris it it was adjudged in Mich. Term 5 Jac. that the Obligation was void because there was a fit Latine word and that was quinque and so it was adjudged in the Lord Danvers Case where the Indictment for one blow super capud and it was held void because it was an unapt word and there was a fit and apt word to wit Caput and VVilliams agreed to this for he said it was adjudged in the common Pleas between Pencrosse and Tout a man was bound in a Bond in viginti literis when it should have been viginti libris and adjudged void for the same cause but after in Hillary Term the Plaintiffe had Judgement because in one Dictionary nobilis was a Latine word for six shillings eight pence VEntris versus Farmer Trin. 5. Jacobi A Lease was made for years rendering Rent payable at a place of the Land and the Court was moved whether a Demand of the Rent may not be made upon the Land but denied by the
was entred in haec verba Noverint universi per praesentes me Thomam Keyes tenerie firmiter obligarie Edw. Dodson c. Anno Regni Reginae Dom. nostri Jacobi c. Rege Defensor suis de Scotia sexto Angliae quadragesimo secundo 1608. And upon this the Defendant demurred and adjudged for the Plaintiff for there are two principal things to be contained in one Obligation first the parties to whom secondly the summ in which one party is bound and they are both here expressed sufficiently to the view of the Judges for both the Obligor and Obligee are well named and also the summ is well expressed to be ten pounds but those words by which it may be gathered that the party intends to binde himself are found in false Latine Videlicet tenerie obligarie in which words there is onely an e. too much and it is true false Latine as it is 10 H. 7. shall abate a Writ because the party may purchase a new Writ but it shall not overthrow an Obligation for the party cannot be again bound when he will and although there is no such year of the Reign of the King as of Scotland the sixth c. it is not material for it is good though it have a false Date as 13 H. 7. Kelly and the party may surmise a Date in his Declaration and it is good and the Defendant must answer to the Bond and not to the Date and the Law is the same if it have an impossible Date as the 30. of February whereas there is but eight and twenty Dayes in February yet it is good but in the principal Case it is helped by the Year of our Lord which is certain and sufficient and the Declaration good which had omitted the year of the King and put in the year of our Lord and Judgement was given by the opinion of the whole Court HAwes versus Leader Hill 8 Jacobi Hawes brought an Action of Debt against Leader Administrator of Cookson the Case was Thomas Cookson the nineteenth of February 20 Jacobi for twenty pounds paid into the Defendants hands by the Plaintiff grants all his Goods mentioned in a Scedule annexed to the Deed and gives possession of the goods by a Platter and the goods remained in his house as they were before to be carried away upon demand by the Plaintif and covenants that the intestate his Administrators c. should safely keep them and quietly deliver them and to perform that covenant the intestate binds himself in forty pounds to the Plaintiff and afterwards Cookson died and the Plaintiff the sixteenth of March the sixth of King Iames demanded the goods of the Defendant being Administrator and he would not deliver them by reason whereof the Plaintiff brought his Action and in his Declaration shews in specie what goods were contained in the Scedule the Defendant pleads the Statute of the 13 Eliz. of fraudulent Deeds and gifts c. and further sayes that Cookson the intestate the twelfth of February 2 Jacobi was indebted unto divers persons and names them in severall summes amounting to a hundred pounds and being so indebted the nineteenth of February 2 Jacobi made the Deed of gift as is above declared being then of those and other goods possessed amounting to fourscore pounds and no more and that it was made by fraud and covin between Cookson and the Plaintiff to the intent to deceive his Creditors named and shewes how that Cookson notwithstanding the Deed of gift occupied and used the Goods all his life and died and that Administration was committed to the Defendant the Plaintiff replies that the Defendant had assets in his hands to satisfie the Debts demanded and further sayes that the Deed of gift was made upon good considerations upon which they were at issue and at triall at Huntington Assises Cook rejected the Triall because the Issue was not well joyned and a Replender ordered upon which the Defendant pleaded as is above and the Plaintiffe demurred and adjudged for the Plaintiff first because the Defendant had not averred in his Barr that the Debts due yet certain unpaid to the Creditors named for there was four years time between the Deed of gift made and the death of the intestate in which time the Debts might well be presumed to be satisfied Secondly the Defendant did not shew that the Debts due to the supposed Creditors were by specialty and then the matter of his Plea is not good for the Defendant cannot plead such a Plea but to excuse himself of a Devastavit and that could not be as this Case is for he being Administrator is not chargeable with the Debts if they be not upon Specialty Thirdly the Defendant supposed that it would be a Devastavit in him if he should deliver the Goods to the Plaintiff which were contained in the Deed of Gift but that cannot be for those Goods in the hands of the Plaintiff are liable to the Creditors as an Executor of his 〈◊〉 wrong if the Deed of Gift be fraudulent And fourthly it may be the Creditors will never sue for their Debts and by that means the Defendant will justifie the Detainer of the Goods for ever which would be very inconvenient But if the Defendant had pleaded a Recovery by any of the Creditors and that such Goods to the value c. had been taken in Execution this had been a good Plea Fifthly the Defendant is not such a person as is inabled by the Statute of 13 Eliz. to plead the Plea aforesaid for the Statute makes the Deed void as against the Creditors but not against the party himself his Executors or Administrators for against them it remaines a good Deed of Gift and this by the opinion of the whole Court SAllows versus Girling Pasch 9. Jacobi The Plaintiff brought an Action of Debt upon a Bond and the Condition to stand to the Award of A. B. C. D. of all Actions Quarrels and Demands c. so that the said Arbitrement were made in writing before such a Day by the said A. B. C. D. or by any two of them under their hands c. The Defendant pleads that the said A. B. C. D. nor any two of them made no Award the Plaintiff replies that A. and B. two of the Arbitrators before the Day by writing under their hands c. made an Award and set forth the Award and assigned a Breach in the Defendant for not paying of three pounds at a Day past limited by the Award to which the Defendant demurrs and it was adjudged the Plaintiff and the Question was whether the Award made by A. and B. alone were good or no because the Submission was to four named and in the Premises of the Condition the Defendant is bound to stand to the Award of four also yet it was adjudged by the Court upon consideration had upon every part of the Condition that the Award made-by two alone is good for the
Arbitrators are made Judges by the assent and election of the Parties and it appears that the parties put their trust not in the four joyntly but joyntly and severally and the Ita quod c. is an explanation of all the Condition that they four or any two of them might arbitrate all matters between them and so much appears 2 R. 3. 18. where two of one part and one of another part put themselves to the Award of I. S. now by this Submission I. S. may arbitrate as well any matters between the two parties of one part as between them and the third because in the intent of the parties the end of their Submission was to have peace and quietnesse and 4 H. 4. 40. the Condition of a Recognisance was that if A. A. shall stand and abide the Award of four named three or two of them of all matters c. which is a division of their power and observe in the principal Case that untill the Ita quod comes the Condition is not perfect for all the Condiâ—… is but one Sentence BRisco versus King Trin. 9. Jacobi The Plaintiff brought an Action of Debt upon a Bond for three hundred pounds with a Condition that the Defendant should perform all Covenants Clauses Payments and Agreements contained in one Deed poll of the same Date made by the Defendant to the Plaintiff the Defendant by way of Plea sets forth the Deed poll in haec verba in which Deed was contained one Grant and Bargain and sale of certain Lands made by the Plaintiff to the Defendant for one hundred pounds paid and two hundred pounds to be paid in which Deed there was one Proviso that if the Defendant should not pay for the Plaintiff to one J. S. forty pounds to J. D. forty pounds c. at such a Day that then the Bargain and Sale should be void and the Defendant pleads that he had performed all the Covenants c. comprised in the Deed the Plaintiff assigned a Breach for the not paying of forty pounds at the Day according to the Proviso and the Defendant demurrs and adjudged for the Defendant by the whole Court for the Condition bindes the Defendant to perform other Payments then such as the Defendant is bound by the Deed to perform for the Obligation was made but for the strengthning of the Deed and the Deed requires not any compulsory Payments to be made but leaves it to the will of the Defendant or to make the payments specified in the Proviso or in Default thereof to forfeit the Land to the Plaintiff and therefore it appears that it was not the intent and meaning of the parties to make an Obligation with a Condition repugnant to it and contrary to the Deed poll of Bargain of Sale and by this means the Payment of forty pounds to J. S. which is made voluntary by the Deed poll shall be made compulsory by the Obligation but the word Payments in the Condition of the Obligation shall have relation onely to such payments contained in the Deed poll which are compulsory to the Defendant and not otherwise and because the neglect of the payment of forty pounds to J. S. assigned for the Breach is denied to be voluntary for the Defendant to pay or not to which the Condition of the Obligation cannot in any reasonable construction extend therefore it was adjudged against the Plaintiff WOolby versus Perlby Mich. 9. Jacobi An Action of Debt brought upon a Lease for years the Plaintiff derives his Title by the grant of the Reversion by way of bargain and Sale in Fee from the first Lessor and declares that by an Indenture of such a Date one grants bargains and sells for money the Reversion to him in Fee which Indenture was inrolled such a day according to the form of the Statute and because he shewed not in his Declaration in what Court it was inrolled and the Statute of 27 H. 8. Parles of many severall Courts and that it is no reason to put the Lessee to such an infinite labour to search in all Courts as well at Westminster as in the Countrey with the Clerk of the Peace and for this cause after a verdict a nil capiat per Billam entred by the whole Court SIR George Savill versus Candish Hill 9 Jac. The old Countesse of Shrewsbury had a Verdict against Savel and upon a challenge of the Sheriff on the Plaintiffs part of the County of Derby the Tenure was directed to the Coroners who returned all the Writs and at the Assises a Tales was awarded and the name of one of them of the Tales was Gregory Grigson c. and by postea returned by the Clerks of the Assise in the Common Pleas the Tales was returned to be by the Sheriff but in the entring up the Judgement it was made by the Coroners and the name of the man of the Tales by the Clerk of the Assise was restored according to his right name Gregory but entred in the Roll by the name of George and upon that Judgement Savill brought a Writ of Error which depended ten years and more and the first Plaintiff who was the Countesse of Shrewsbury died this matter being indiscussed and Candish as Executor to the Countesse revived all by Scire facias why he should not have Execution and after many debates the Judgement was reversed for three causes first because upon the Pannell of the Jurors names after the twenty four Jurors were named at the foot of the Pannell two names were added to the Jurors which in truth were the men of the Tales but no mention was made that they were the names of the Jurors impannelled de novo according to the form of the Statute which ought to be for at the Common Law the Justices of assise cannot grant any Tales to supply the default of the first Jurors but it is given only by the Statute of the 35. H. 8. which ordains that their names shall be added to the first Pannell and this cannot be discerned to be done accordingly if such a stile and Title be not made over their names viz. nomina Jurator de noto apposit secundum formam Statuti to distinguish what is done by the Common-Law and what by the aid of the Statute and also the Coroners names ought to be added to the Tales at the bottom of the Pannell and in this Case their names were onely indorsed which was upon the Return of the first Pannell and although divers Presidents were shown to the Court wherein the names of the Jurors de novo appoposit c. were united upon the Pannell yet the Court did not regard them because it seemed that they passed in silence without debate had upon them the second cause was because it appeared by the Return of the postea that the Tales were returned by the Sheriff which is error in the first Processe to the Coroners and although in the Entry in the Common Pleas of
forth divers payments by him made and amongst other payments shews that he had payed to M. Fawn named in the Condition sixty pounds for a Legacy due by the Will of the said Ed. A. the payment of which sixty pounds was disallowed by that Court and by the Order of the Chancery sixty five pounds paid for not allowing the first sixty pounds to Ed. A. the Son which sixty and five pounds the Defendant had not repaid though thereunto requested and so he was damnified to which Replication the Defendant demurrs and the opinion of the whole Court after a great Debate was against the Plaintiff for the Plaintiff in his Replication had alleadged two Causes to inforce his Damage the first was that the Plaintiff in his Answer in the Chancery had alleadged the payment of sixty pounds to M. F. for a Legacy due to her by the Will and that such Allegation was rejected by the Court of Chancery and neither of those matters are certainly alleadged but by way of Implication and not expresly for he ought to have shewn that a Legacy of sixty pounds was given to M. F. by the Will of E. A. for although the Will of E. A. is recited in the Condition in the Date against which Recitall the Defendant may not be admitted to say that he made no such Will yet the Legacy given to M. F. is not recited in the Condition if not in the General against which the Defendant may take a Traverse that Eáw. A. did not bequeath such a Legacy of sixty pounds and upon that a good Issue may be taken And secondly the Plaintiff sayes that the payment of the said sixty pounds was disallowed by the Court of Chancery and doth not appear in the Replication where the Chancery was at that time to wit whether at Westminster or at any other place and it is issuable and triable by a Jury whether any such Order of Chancery were made or not for the Orders there are but in Paper and are not upon Record to be tried by Record but by a Jury and the Plaintiff perceiving the opinion of the Court against him prayed that he might discontinue his Suit which was granted by the whole Court but Quaere of this it being after a Demurrer WEaver versus Clifford Pasch 44. Eliz. rotulo 453. The Plaintiff brought an Action of Debt upon an Escape against Clifford and declares that one A. was bound to the Plaintiff in one Recognisance of a hundred pounds to be paid at a Day at which Day A. made Default of Payment and the Plaintiff sued out two Scire fac and upon the second Scire fac a Nihil was returned and the Plaintiff had Judgement to recover and afterwards he sued out a Levari fac and a Nihil being returned the Plaintiff prosecuted a Capias ad satisfaciend by vertue of which Writ the Defendant being then Sheriff took the said A. and afterwards at D. in the County of S. permitted him to go at large to which the Declaration the Defendant demurred Damport for the Defendant and he shewed the cause of the Demurrer to be because a Capias upon the Recognisance did not lie and he divided the Case into two parts first whether a Capias would lie in the Case and secondly whether the Sheriff would take the Advantage of such a naughty Processe and as to the first it seemed to him that a Capias would not lie because it appeared by Herberts 5. Repub. fol. 12. And Garnons Case 5. Rep. fol. 88. that the Body of the Defendant was not liable to Execution for Debt by the Common Law but onely in Trespasse where a Fine was due to the King or that he was accountant to the King and the Plaintiff could have no other Processe but a Fieri facias within the year and if the year were passed then he might have a new Original in Debt But now by the Statute of Marlbrig cap. 23. And Westm. 2. cap. 11. a Capias is given in Account and by the 25 E. 3. c. 17. Capias is given in Debt and Detinue and by the 19 H. 7. c. 9. the like Processe is given in Case as in Debt and Trespasse and the 23 H. 8. c. 14. a Capias is given in a Writ of Annuity and Covenant but Statute gives a Capias in this Case and therefore it remaines as it was at Common and by that it would not lie which is also apparent by the Recognisance for that is that if the Debt shall be levied of the Goods and Chattels Lands and Tenements c. and doth not meddle with the Body and by an expresse Authority 13 14 Eliz. Dier 306. Puttenhams Case it is held that the Chancery hath no Authority to commit the Defendant to the Fleet upon a Recovery in a Scire facias upon a Recognisance because the Body is not liable And for the second point it seemed to him that the Sheriff should take Advantage of this which should be as void and as null whereof a stranger may take benefit and to prove this he took this Difference when a Processe will not lie and where it is disorderly awarded as if an Exigent be sued out before a Capias or an Execution before Judgement for if that Processe be originally supposed there the Processe is but erroneous in Druries Case 8. Rep. 142. 34 H. 6. 2. b. But if the Action it self will not maintain the Processe as a Capias in Formedon there that Processe is as void and null and he took another Diversity when the Capias is taken by the Award of the Court when Judgement is given that he shall recover for in that Case it shall remain good untill it be reversed because it is the Act of the Court and so is Druries Case to be intended but if the party himself take it it is at his own peril as here it is for the Plaintiff hath onely pleaded that he prosecuted c. which is as void to the party who sued it out and he shall have no benefit of it but the Sheriff shall not be punished for false Imprisonment because he is not to examine the illegality or validity of the Processe for the 11 H. 4. 36. If a Capias issue out without any Original and the party be taken the Sheriff shall not be punished and for these Reasons he prayed Judgement for the Defendant Noy was for the Plaintiff and he agreed that at the Common Law no Action did lie in this Case as it hath been said but he was of opinion that this Case is within 25 E. 3. cap. 17. for the intention and drift of the Statute was to give speedy remedy to recover Debts and the Action is all one in the eye of the Law as if it had been done by Original which in the equity of the Statute And a Capias lies upon a Recognisance against a Surety for the Peace and upon a Scire facias against the Bail in the Upper Bench. As to
will for the Election is in bringing the Action and the words vel and are but Synonimaes and Champions Case Plowden 286. is taken for vel and the 21 E. 3. 29. in Mallories Case u is taken for and therefore they gave Judgement that the Defendant should answer over FReeman versus Shield Trin. 11 Jacobi and adjudged Pasch 12 Jacobi Freeman brought an Action of Debt upon an Obligation against Shield and proved Oyer of the Condition which was that if the Defendant should stand to the Award and Arbitrement of J. S. that then c. the Defendant pleads that the Arbitrators awarded that whereas there was no suit in the Chancery depending against the Plaintiff for divers matters that the Plaintiff should be acquitted of that suit and of all the matters contained in the same Bill and the Defendant further alledges that he did not make any prosecution of the said Bill but that the Plaintiff stands acquitted thereof the Plaintiff replies that the Defendant after the said Award such a year and day did exhibit a new Bill which did contain the same matter which the first Bill had and set forth at large both the Bills by which it appeared to the Court that it was so to which Plea the Defendant Demurres and the cause of the Demurrer onely was because the Plaintiff had pleaded that the Defendant had exhibited a new Bill but had not alledged any Processe taken forth upon the same Bill and if this be a breach of the award is the question Govin was for the Plaintiff and he was of opinion that it was a breach for the words were quod staret acquietatus and to be acquitted is not onely to be intended of an actuall disturbance or molestation but if the party be put in fright or is liable to any Processe it is a breach 8 Ed. 4. 27. a Condition to save one harmlesse if a Capias be awarded against him although it be not executed yet it is a forfeiture of the Bond nay though it was never delivered to the Sheriff for otherwise the Plaintiff should be in continuall care trouble for fear lest the Defendant should do it and so the Defendant may dally with him a long time which shal be mischievous therefore it may be resembled to 9 H. 7. where if a man sell a thing with warranty to pay for it at a day to come if the thing sold be corrupt the party may have his Action of deceit before the day of payment because it is in the others power to bring his Action and so it is in the Defendants power to serve the Plaintiff with Processe when he pleases and therefore it is a breach Coventry for the Defendant first because it is no such Process as can prejudice for neither goods nor Body shall be taken and therefore is not like the Cases before cited And secondly it is not such a process as our law respects or regards for a Bill is but as a Petition Haughton Justice was of the same opinion with the rest of the Judges but adjourned untill Hill 11. Jac. and an Exception taken because the Defendant had not answered the Declaration for the Condition is that he should be acquitted the Defendant pleaded that he hath been acquitted and Cook was of opinion that it was good and Pasch 12. Jac. Judgement was given for the Defendant by the whole Court KIpping versus Swain Trin. 11. Jacobi The Plaintiff brought an Action of Debt against Swain upon the Statute of 2 E. 6. for not setting forth of Tithes and declares whereas the Plaintiff being Proprietor of the Rectory of B. in the County of c. for the term of seven years and that the Defendant was Occupier of Lands within the same Parish for six moneths by a Devise made the tenth of March Anno decimo Jacobi And that the Defendant 27. Aug. the year aforesaid did cut his Corn there growing and that the tenth of September then next following the Defendant being Subdit dicti Domini Regis carried away the said Corn not setting out the Tenth according to the Statute and upon a Nil debet pleaded it was found for the Plaintiff and it was moved in Arrest of Judgement first because of the Plaintiffs own shewing he had no cause of Action against the Defendant for the interest of the Defendant in the Land was determined before the Tithes were carried away but the Court were of opinion that it was no Exception for although his interest in the Land was gone yet he remained Owner of the Corn for if Corn is cut although a stranger take them away before severance yet an Action will lie against him upon this Statute for otherwise the intent of the Statute may easily be defeated Another Exception was taken because the Plaintiff said he was Subdit dicti Domini Regis which is a Fault incurable for the Statute referrs Subdit to his politick capacity but Dicti goes to his natural and sole capacity and so the force of the Statute shall be determined by his Death and for this cause an Indictment upon the 8 H. 6. Contra pacem dicti Domini had been severall times reversed and of this opinion were three Judges but Haughton doubted of it and so it was adjourned PEnniworth versus Blawe Trin. 11. Jacobi The Plaintiff brought an Action of Debt upon an Obligation and prayed Oyer of the Condition which was that he should stand to the Arbitrement of J. S. of all Suites Quarrels Controversies and Debates from the beginning of the World untill the making the Obligation so that the Award be made in writing under the hand and seal of N. S. and should be delivered to the parties before such a Day c. and observe that the Sealing and Delivery of the Obligation was at twelve a clock the first of May the Defendant pleads in Barr that the Arbitrators made an Award and did deliver that to the parties above-said but said further that in the morning and before twelve a clock the first of May aforesaid one Debate and Controversie did arise between the parties concerning a Trespasse committed by the Plaintiff the same morning of which the Defendant gave notice to the Arbitrator before twelve a clock of the said first of May concerning which Trespasse the Arbitrator made no Award and therefore pretends the Award to be void and demands Judgement to which the Plaintiff demurrs and Yelverton being for the Plaintiff that the Plea was not any Answer to the Plaintiff and therefore Judgement ought to be given for the Plaintiffs Action is grounded upon an Obligation as single and the thing which helps the Defendant is the Condition indorsed to stand to the Award of S. the which is restrained so that it be delivered under the hand and seal and if the Defendant will plead the Condition against the Plaintiff he must plead it to be performed and executed according to the Submission by the
A special Verdict in an Ejectione firme the Question was upon the words of the Will which were that her Husband had given all to her and nothing from her and whether these words imply a consent and so an Agreement to the Devise of the Husband or no. And Foster Warburton and Walmsley that it was an Assent but Sir Edward Cook was of a contrary opinion and note she was made sole Executrix and she proved the Will and Justice Foster held it to be an Assent in Law The property of Goods cannot be in obayance they must be in the Executor Administrator or Ordinary and Warburton held that the words made an Assent and said that when the Bond is delivered to one to the use of another untill he dis-assent it is his Deed but when he dis-assenteth then it is not his Deed Ab initio if a Lease be given by Will to divers and made one of them his Executor in this Case the Executor must make his special Claime else he must have it as Executor and Sir Edward Cook held that the general Entry and proof of the Will is no Assent she must first have it as an Executor before she can have it as a Legatee a Legacy is waiveable but if the Law work it in me whether I will or no then I cannot waive it and therefore he held she should enter specially ROlles versus Mason Hill 6. Jacobi rotulo 2613. An Ejectment brought and the Question grew upon two Customes one was that the Copy-holder for Life may name to the Lord of the Mannour who should be his Successor in the Copy-hold and the other that the Copy-holder for Life may cut down all the Trees of wrong upon the customary Land and the third Question was whether the second Lessee of the Mannour may take advantage of the pretended Forfeiture for cutting down the Trees by the Law a Copy-holder shall have house-boot free-boot and hedge-boot and common of Turbary to burn in his house but he cannot sell them A Copy-holder by Custome may name his Successor and if the Lord refuse to admit him the Homage may set a reasonable Fine and so he shall be admitted The Lessee of the Mannour may take advantage of the Forfeiture but in this Case it is no Forfeiture and the Copy-holder may cut downe Trees for he hath a greater Estate then a sole Tenant for Life because he shall name his Successor APrescription goeth to one man and a Custome to many and Judgement for the Defendant MAson versus Strecher alios Pasch 7. Jacobi rotulo 606. An Ejectment brought for the Mannour of P. it was held by the Court that the consent of a Servant in the absence of him who is possessed of the Terme shall not out his Master of the Possession because the Servant hath no interest in the Land CRamporne versus Freshwater Pach 8 Jacobi rotulo 2742. An action of Debt brought upon an Ejectment the Plaintiff was non-suit upon his own Evidence because he declared upon a Devise made for three years and it was confessed by the Plaintiff that the Lands were Copy-hold Land and that the Plaintiff had not license to demise them for three years neither could he prove that by any custome he could demise them for three years without a license and so the Lessor was taken for a Disseisor by the opinion of the Court. CAffe versus Randall Trin. 9. Jac. rotulo 3299. An Ejectment brought against Randall and his Wife the Ejectment made by the Wife and not guilty pleaded and tried and it was moved in Arrest of Judgment because the Issue was pleaded in this manner Et dicunt quod ipsi in nullo sunt culpabiles c. And the Ejectment was made by the woman alone and ought to have been that she was not guilty and upon examination of the Plea Rol and Record of Nisi prius it appeared to the Court that the Plea Roll was right but the Record of Nisi prius mistaken but Serjeant Barker said that at the time when the Record of Nisi prius was tried the Plea roll agreed with the Record and was afterwards amended and Waller the prothonotary confessed that he amended the plea rol as upon his private examination of the roll but without notice that there was a Record sent down to try that Issue and therefore the Court ordered that the Record of Nisi prius should be amended according to the Plea roll which was done accordingly PAts versus Chitty Trin. 9. Iac. rotulo 2151. vel 2151. An Action of ejectment brought the Defendant pleads a concord with satisfaction in Bar the Plaintiff demurs and it was held by Winch and Foster a good Plea because the Action is not only in the realty for he recovers damages and possession which are meer Chattells Secondly Because the Defendant pleads the satisfaction as in discharge of that Action and all others and ten shillings for rests Warburton of the same opinion and he vouched the like case satisfaction is good Plea in a Quare impedit wherein a man recovers the presentation And Cook said that in all Actions wherein money or Damages are recoverable as well wherein the Defendant might wage his Law as wherein he might not it is a good Plea Pasc 3. Jacobi rotulo 1033. Eden and Blake but in matters where one Free-hold or Inheritance is recoverable concord is no Barr and in dower recompence in other Lands or Rent is no Barr. But by petition in Chancery but Rent Issuing out of the same Land demanded is a good Barr and in all Actions Quare vi armis wherein process of Outlary lies by the common Law concord or an Award is a good Barr 38 H. 6. title Barr satisfaction in trespass by an Estranger is a good Barr although it be without notice of the trespassor by the opinion of the whole Court CRaddock versus Iones Trin. Iacobi rotulo 2284. An Ejectment brought and declares upon a Lease made by W. Cotton Knight the Defendant pleads not guilty and makes a challenge and praies a venire facias to the Coroners because the Sheriff is Cozen to the Lessors Wife which is not a principle challenge but by favour and after a Triall and Verdict it was amended in arrest of the Judgment because it was mistried and Barker vouched a case in the Exchequer Chamber in 43 El. upon a Writ of Error between Higgins and Spicer upon a Venire facias awarded in the like manner and it was adjudged to be mistryed and it was then agreed that misconveyance of process is where one Writ is awarded in place of another to an Officer which of right ought to execute that process and he returns it this is helped after a Verdict by the Statute But if a writ be awarded to an Officer who ought not to execute that process and he returns it this is a mistriall and not helped by the Statute and Warburton said that Dyer
the use of her eldest Son in tayl c. With power to her self at any time to make Leases for one and twenty years and before the Lease in being expired she made another Lease to B. for one and twenty years to commence after the determination of the first Lease And as to the third part of the Land she made a Lease of that for one and twenty years after the death of one Carn who in truth never had any estate in the Land and afterwards she dyes the first Lease expires And I the Son enters and makes a Lease to the Plaintiffe And the Defendant claims under B. the Lessee And adjudged for the Plaintiffe for by such a power she could not make a Lease to comence at a day to come but it ought to be a Lease in possession and not in interest to comence in future nor in reversion after another estate ended but the Law will judge upon the generall power to make Leases without saying such ought to be Leases in Possession for if upon such power she might make Lease upon Lease she might by infinite Leases detain those in Reversion or Remainder out of the Possession for ever which is against the intent of the parties and against reason and adjudged accordingly Trin. 30 Eliz. Earle of Sussex case 6 Rep. 33. And Justice VVilliams said that when he was a Serjeant it was so adjudged in the Common Pleas in the Earle of Essex Case and Judgement by the the whole Court BRasier versus Beal Trin. 10 Jacobi Upon an especial Verdict in Ejectment the Case was that a Copy-holder in Fee of the Mannour of B. in the County of Oxford by license of the Lord lease the Land in question for sixty years to M. if he should live so long rendring Rent with a Condition of re-entry the Copy holder surrenders to the Lessor of the Plaintiff in Fee who demands the Rent upon the Land which being not paid he entred and made a Lease to the Plaintif without any Argument the Court seemed to be of opinion that the Entry of the Lessor was not congeable for Copy-hold land is not within the Statute of 32 H. 8. of Conditions nor the Lessor such an Assignee that the Statute intends for at the Common Law a Copy-holders Estate is but an Estate at will custome hath onely fixed his Estate to continue which Custome goes not to such collateral things as Entries upon Condition for such an Assignee of a Copy-holder being onely in by Custome is not privy to the Lease made by the first Copy-holder nor onely by him but may plead his Estate immediately under the Lord by the opinion of the whole Court ODingsall versus Jackson Mich. 10. Jac. In Ejectment the Declaration was that the Defendants intraverunt and that he did eject expulse and amove in the singular number and after a Verdict for the Plaintiff upon Not guilty pleaded the Defendant shewed this matter to the Court in Arrest of Judgement for the Declaration is incertain in that point because it cannot be known which of the Defendants did eject the Plaintiff for by his own shewing it appears that the Ejectment was but against one and upon that Declaration the Jury could not finde all the Defendants guilty for by the Plaintiffs supposal one onely did eject him but the Court gave Judgement for the Plaintiff that the Declaration should be amended in that point for it was but the Clerks fault and so it was and upon an Evidence in an Ejectment by the Lessees of Cresset and Smith Yelverton said that if a man comes into a Copy-hold tertiously and is admitted by the Lord and afterwards he makes a Lease for three Lives which is a Forfeiture of his Estate yet if he that hath the pure Right to the Copy-hold release to the wrong-doer that it is good for untill the Lord enter he is Tenant in fait and if the rever as Copy-holder 4 Rep. 15. But Walter seemed of another opinion and therefore quaere what benefit he shall have by the Release In an Ejectment the Plaintiff declared of an Ejectment of decem acris pisar and upon the general Issue it was found for the Plaintiff and it was moved in Arrest of Judgement because the Plaintiff had declared de decem acris pisar which is not good for Pease are not known by the Acre and therefore he should have declared de decem acris tene pisis seminaris as if a man will demand Land covered with water he must say decem acras terrae aqua co opertas but the whole Court held it good for in a common acceptance ten Acres of Pease or ten Acres sowed with Pease is all one and so is the opinion of Catesby 11 E. 4. 1. And the man the Secondary said that so it had been adjudged in the Exchequer Chamber upon a Writ of Error MEerton versus Orib Trin. 11. Jacobi Orib brought an Ejectment against Meerton in the Common Pleas 6 Jacobi of a Cole-mine in Durham in the County Palatine there the Defendant pleaded not guilty and it was found for the Plaintiff before the Justices Itinerantes there upon which Judgement the Defendant brought a Writ of Error and assigned for Errour that the Plaintif appeared by an Attourney whereas it ought to have been by Guardian being under age And upon an Issue that he was of full age was tryed at Durham and found that he was within age but the Plaintif had license to discontinue his Writ of Errour and brought a new Writ of Errour Quod coram nobis residat And declared that M. was inhabiting at Westminster in the County of Middlesex and being within age appeared by an Attorney the Defendant in the Writ of Errour confessed that he was inhabiting at Westminster but that he was at full age at the time And upon the tryall in Middlesex it was found that M. was under age And it was alleadged in Arrest of Judgement and it depended a long time that it was a mistryall and the doubt and question was onely whether the tryall at Westminster in this Case was good And Davenport and Yelverton were of opinion that it was not good for the Errour assigned was done at Durham and because they there have the best notice of it it ought to have been there tryed As if Errour be in a Record it shall be tryed where the Record is 19 H. 6. 79. Secondly This is a reall Action in which the Land shall be recovered and therefore though the Issue be upon a collaterall matter yet it shall be tryed where the Land lyes because it concernes the realty but if it had concerned the person onely it had been otherwise and this difference is taken by Montham 19 H. 6. 10. And therefore if a Feoffment be made upon payment c. If upon an Assise brought the Defendant plead payment in another place yet it shall be tryed where the Land lyes And so likewise if the Issue should be which
that it was collaterall warrantry where in truth it was a lineall warranty and it was held naught because the warranty was in Law a lineall warranty the Case was that Land was givenby Feoffment made to the use of the Feoffer for life remainder in Tail Tenant for life dies Tenant in Tail had Issue a Son and two Daughters and the Father and Son joyn in a Feoffment with warranty and after the Father and Son die without issue and the Daughters bring a Formedon and this is a lineall warranty PIt versus Staple Trin 14 Jac. rotulo 112. Formedon in le discender against three which plead non-Tenure and issue thereupon joyned and found specially that two of them were Lessees for life the remainder to the third person and whether the three were Tenants as is supposed by the writ was the question and the better opinion was that it was found for the Demandant for the Tenants should have pleaded severall Tenancy and then the Demandant might maintain his writ but by this generall non-Tenure if any be Tenant it is sufficient but in some Cases the Precipe may be brought against one who is not Tenant as a morgagor or morgagee COmes Leicester versus Comit. Clanriccard In Formedon upon a Judgement given in part for the Demandant and part for the Tenant the Tenant brought a writ of Error and had a Supersedeas upon it and afterwards the Demandant prosecuted a writ of Seisin and delivered it to the Sheriff and he executed the writ and immediately afterwards the Tenant delivered the Supersedeas to the Sheriff and the Tenant moved the Court and prayed a writ of restitution and it was granted him because the Tenant had done his indeavour and had not delayed the prosecuting the writ of Error COmes Clanriccard Francisca uxor Ejus Demandants versus R. S. milit vicecomit Lyple for three messuages c. which R. late Earl of Essex and Frances late wife of the said Earl by Fine in the Court of the Lady Elizabeth late Queen of England before her then Justices at Westminster levied and gave to William Gerrard Esquire and F. Mills Gentleman and the Heires of the said W. for ever to the use of Elizabeth Sydney Daughter and Heir of P. S. Milir and the Heirs of the Body of the said E. comming and for default of such issue to the use of the said F. then wife of the said Earl and the heirs of the said Fr. and which after the death of the said Eliz. ought to revert to the said Fr. by form of the gift aforesaid and by force of the Statute in such case provided because the said Eliz. died without Heir of her Body The Tenant pleaded in abatement of the writ because the writ ought to revert to the woman alone and it should have been to the Husband and wife and upon a demurrer Judgement was that he should answer over the writ may be either to revert to the Husband and wife or to the wife alone and herein the Tenant vouch two vouches and one is Essoined and an idem dies given to the other and Serjeant Harris demanded of the Court if he should Fourcher by Essoin because the Statute of Westminster the first is that Tenants Parceners or Joint Tenants shall not fourcher in Essoin therefore they two should not fourcher by Essoin but the Court held that before appearance it could not appear to the Court whether they were Tenants or not and therefore before appearance they shall have severall Essoins and Westminster the first is expounded by Gloucester the tenth which is that two Tenants shall not fourcher after appearance and at the day of the adjournment of the last Essoin the Tenant was Essoined and such Essoin was allowed and adjudged by the whole Court and the reason hereof seemed to some to be because the Tenant might be informed of the Vouchee that he vouched was the same person or no for he might be onother person for if he should be an estranger and demand the place and the Demandant could not hold him to the warranty the Demandant should loose his Land and they held that upon severall Processe to wit upon the view and upon the summons to warranty which are divers Processes the Tenant ought to be Essoined and the Court held that this Essoin was at the Common Law if the Tenant and the vouchee at the day given to the Tenant and the vouchee make default Judgement shall be given against the Tenant to wit a petty Cape and nothing against the vouchee SHotwell versus Corderoy In Formedon the Tenant prayes in aid â—nd the prayee in aid and Tenant vouch and the Vouchee was essoined and adjourned and at that Day the Attorney of the Tenant without the Prayer in aid cast an Essoin and an Idem dies given the Prayee in aid and it was quashed for they shall not have severall Essoines but joynt Essoines A Formedon brought of Lands in A. B. C. The Tenant pleads a Fine of all by the name of the Mannour and Tenements in A. B. And it was objected that he said nothing to the Land in C. but the Courtheld that by the name of the Mannor the Land in all the Villages would pass and the Demandant may if he will plead as to the Land in C. that it was not comprised in the Fine Hill 7. Jacobi rotulo 76. vel 69. Formedon in the Discender the Writ was general that J. L. gave to T. L. and the Heirs Males of his Body upon the Body of D. V. Widow lawfully to be begotten which D. the said T. afterwards took to Wife and which after the Death of the said T. c. Son and Heir Male of the Body of the said T. upon the Body of the said D. lawfully begotten to the said J. L. younger Son and Heir of the said J. L. Son of the said T. ought to descend by form of the Gift aforesaid c. and whereof he saith that the said T. was seised c. and 2 Eliz. of the said Tenements did infeoff the Plaintiff in Fee to the use of the said T. L. and his Heirs c. and note in the Count no mention made of the Marriage If a Gift be made in tail to D. and his Heirs Males the Remainder to A. in tail D. discontinues in the Life of A. and D. dies without Issue and the Heir of A. brought his Writ as the immediate Gift to A. his Ancestor who never was seised in his Life and for that cause the Writ was naught but if A. had been seised of the Land then it had not been necessary to have shewed the first Gift to D. by the opinion of the whole Court Actions upon the Statute of Hue and Cry NEedham versus Inhabitant Hundredi de Stoak Trin. 8. Jac. rotulo 534. Action brought upon the Statute of Hue and Cry by the Servant who was robbed in his own name and part of the Goods
remove the Clerk who was admitted by the presentation of Stoneleys wife to whom a joynture was made by her Husband before he was indebted to the Queen and it was pretended that the joynture was void by the Statute of 〈…〉 and so was the opinion of the Court. If one usurp upon the King where the King hath Title the Clerk cannot be removed but by a Quare Impedit but where the King is to present by laps and one doth present the King during the life of the Clerk shall remove him but if he dye the King hath lost his presentation but if the Clerk resign then is it no prejudice to the King COmes Bed versus Episcopum Exo. Trin. 14 Jacobi rotulo 2235. A Quare Impedit brought the Bishop and Incumbent joyn and plead that there is another writ depending against the same Bishop only and pleads it and that the disturbance in this Declaration and the disturbance in the former Declaration are one and the same disturbance The Plaintiff replies that the first writ was brought for another disturbance and traverses without that that they are one and the same impediment and the Defendant demurs upon that plea and Judgment given for the Defendant that it was a good plea in abatement for although the presentation and the disturbance are both of them in question yet the presentation is the main and the presentation but as accessory BIrkhead versus Archiepiscopum Eborum al. Pasch 14. Jacobi rotulo 953. A Quare Impedit brought for the Vicaridg of Leeds in York-shire The Arch-Bishop claims nothing but as Ordinary and pleads further that the Church became void the first of January An. 12. Jacobi and that six moneths had elapsed by reason whereof he collated the 23. Decem. and Cook the Incumbent pleaded the same plea the Plaintiff replyed and confessed the Avoidance the first of January but he further said that within the six moneths to wit the 20. of May c. he presented his Clerk and the Arch-bishop refused to admit him And afterwards to wit the 30. of May the Bishop collated and the Defendant demurred for the doubleness of the plea. If the Incumbent plead good matter for his presentation although the Bishop plead insufficiently that shall not prejudice the Clerk And the Defendant took exception to the Plaintiffs writ because it bore-date the 9. of May the presentment was 29. of May and the refusall of the Bishop was the said 29. of May and he collated the 30. of May and so the writ was brought before the refusall made by the Arch-Bishop DOminus nuper Rex Jacobus versus Episcopum Roffen al. Hill 13. Jacobi rotulo 2330. A Quare Impedit brought for the Church of Milton near Gravesend in Kent and the issue was that Queen Eliz. was seised of the advowson of the said Church c. and upon tryall of the issue the Jury found it specially by which it appeared that the Queen had Title but at two turns and the Bishop had one turn and because it appeared to the Court that the Queen had Title to that turn therefore a writ was awarded to the Bishop for the King WInchcomb versus Episcopum recutor al. Pasch 14. Jacobi rotulo 1026. The case was that a Clerk in Salisbury when the Church was full contracted with the Patron to give him 98. l. when the Church should become void the then Incumbent being a very old and sickly man and did conclude that the Patron should grant the next avoidance to a Friend of his who presented him And this was held to be a Simonaicall contract The Clerk was admitted and continued in all his life and died and now the King presented The qustion was whether the King not taking advantage thereof during his life shall have now the presentment if he had resigned or made cession and then another had been presented and then the first Clerk had died the King then had lost his turn Hubbard and Winch held that the King had not lost his presentation for he never was Parson and that the King after his death shall have his turn and Winchcomb cannot have it because the Church was void when the lease of the Mannor was made And Calverts case in the Exchequer was remembred for the Church being void P. contracts simoniacally with the Patron to have the presentation and upon this corrupt agreement he presents R. who was ignorant of this corrupt agreement and yet he was removed for he shall be punished for the offence of his Patron the admiission upon such corrupt agreement maketh the institution and induction void AVsten versus Episcopum London al. Pasch 12. Jac. rotulo 2255. A Quare Impedit brought for the Church of B. he claimed by grant of the next avoidance from Sir Edward Pynchion The Defendant pleads a Usurpation by Queen Mary upon a deprivation and plenarty of her Clerk by six months The Plaintiff pleads a recovery by a Quare Impedit upon a non sum informat by the Patron against the Queens Clerk If the King upon usurpation present and his Clerk be in by six moneths if the Patron bring a quare Impedit against the Kings Clerk and recover by non sum informat this shall remit the Patron to his ancient right otherwise it is if the King do present by Title in the case of deprivation the Patron must have six moneths after notice And Judgment was given for the Plaintiff WIvel versus Episcopum Cestrie al. Pasch 12. Iacobi rotulo 626. Tenant in tayle and his sonne grant an advowson and the Father dyeth the grant is void and Judgment for the Plaintif WIndham versus Episcopum Norwic. al. Mich. 13. Jac. rotulo 2042. A Quare imped brought that the Bishop should permit the Plaintiff to present c. to the Church of A. c. and declares that whereas E. W. Knight was seised of the Mannor of M. with the appurtenances to which the advowson of the said Church to wit to present to the said Church every first turn c. and that the Duke of Norfolk was seised of the advowson of the said Church to wit to present to the same every second turn And that one T. G. was seised of the advowson of the said Church to wit to present to the same every third turn c. And an exception was taken to the Declaration because by the writ the Plaintiff claimed the intire advowson and by his count he claimed but the third turn and also he did not alledg that he ought to have the first turn but the exceptions were over-ruled by the Court for when the Church is void and it appertains to him to present he hath the intire advowson but otherwise it is when there are two advowsons in one Church for there the Court must be to the moity of the Church or the third part THe late King James against Matthew Trin. 4. Jacobi The King was Plaintiff in a
may take the power of the County to make a replevin upon the plures replevin a replevin will not lye of deeds or charters concerning Land and no return habend lyes upon a justistification and if a discontinuance be after a second deliverance the return habend shall be irreplegiable And if the Defendant after an advowry will not gage deliverance he shall be imprisoned for the contempt no disclaimer lies upon a justification but upon an advowry And if the replevin was sued by writ and the Sheriffe return thereupon that the cattell are not to be found then a withernam shall be awarded against the Defendant and if a nihil be returned then a capias alias plur withernam and thereupon an Exigent and if hee do at the return of the exigent find pledges to make deliverance and be admitted to his Fine then the Plaintiff shall declare upon an uncore detent and goe to tryall upon the right of the cause of distress and if it be found for the Plaintiff he shall recover his costs and dammages And if for the Defendant he shall have a return habend But if upon the return of the Plures repleg the Defendant appear then no withernam lies but he must gage deliverance or be committed and the Plaintiff shall count against him upon an uncore detent and so proceed to the rightfull taking of the distress And if it be found for the Plaintiff if the Cattell be not delivered he shall recover the value of the goods and costs and dammages if for the Defendant costs and dammages and a return habend WIlkins versus Danre Trin. 6. Jacobi rotulo 930. The Defendant avowed a rent charge granted to his Father in fee with a clause of Distress the Plaintiff demands Oyer of the deed which was a grant of the rent to one and his heirs to hold to him his Heirs Executors and Assigns to the use of the said H. and his Assigns during the life of a stranger And whether it was in fee or for life was the question and whether the habendum be contrary to the premises or do stand with the estate If the habendum had been to him and his Heirs during his own life this had been void but it was held otherwise for a strangers life and no occupancy can be of a rent CHappell versus Whitlock Mich. 6. Jac. rotulo 1316. The question was upon a liberty in the deed to make Leases provided they shall not exceed the number of three lives or twenty and one years and the lease was made for 80. years if two live so long if he make a Lease absolute it must not be above twenty and one years but in this case it is uncertain MAnning versus Camb Pasch 7. Jacobi rotulo 341. in Replevin the Defendant avows damage fesant by reason of a devise made to the Advowant by will for one and twenty years by one Lockyer who was seised of the Land in fee The Plaintiff saith that true it is that Lockyer was seised in fee of the Land in question and by the said Will devised the Land to the said D. for the said years in confidence only to the use of it if she should remain unmarried and afterwards and before the taking dyed thereof seised J. L. being then Sonne and Heir of the said Lockyer after whose death the Land descended to the said J. as Son and Heir c. after whose death the Legatees entred into the Land and were thereof possessed to the use and confidence above said the reversion belonging to the said J. L. And the woman took Manning to her Husband by reason wherof the said term devised by the said L. to the said A. and J. to the use and confidence above-said ended the said being under the age of 14. years to wit of the age of two years by reason whereof the custody of the Heir did belong to the Husband and Wife by reason whereof they seised the Heir and entred into the Land and maintained their count the Defendant confessed the Will and the devise for years in confidence and further that after the term he devised the Land to his sonne in fee and a demurrer The condition must go to the estate and not to the use COuper versus Fisher Trin. 6. Iac. rotulo 513. The Defendant as Administrator of Foster advows for rent reserved upon a Feofment made in fee of the Mannor reserving rent in fee to the Feoffer in the name of a Fee-farm-rent with a clause of Distress for the not paying of it and that the rent did desend to the issue of the Feoffer And for the rent due to the Heir the Feoffer in his life advows the Plaintiff in his barre to the Advowry saith that neither the intestate nor his Ancestors nor any other whose estate the said T. hath in the rent were ever seised of the same rent within forty years then last past before the taking c. And a demurrer pretending that he ought to alledg seisen in the Advoury with forty years And it was held by the whole Court that the seisin is not to be alledged being it was by deed made within the time of prescription neither is the seisin but where the seisin is traversable there it must be alledged and in no other case and the Judgment was given for the Advowant Mich. 8. Jacobi An Advowry was made for an amerciament in a Court leet and shews that he was seised of the Mannor in Fee and that he and all c. have had a Court leet and the Plaintif traverses that he was seised of the Mannor in Fee and the Court held If the Defendant had a reputed Mannor it would maintain the Avowry though he had indeed no Mannor in truth REynolds versus Oakley The Defendant avows for rent reserved upon a lease for life and the Plaintiff shews that the place in which c. did adjoyn to the close of the Plaintiff and that the Cattell against the Plaintiffs will did escape into the other close and that he did presently follow the Cattell and before he could drive them out of the close the Defendant did distrain the Plaintiff's Beasts And whether the Distress were lawfull or not was the question And the Court held in this case because the Beasts were always in the Plaintif's possession and in his view the Plaintiff would not distrein the Cattell of a stranger but if he had permitted the Beasts to have remained there by any space of time though they had not been levant and couchant the Lessor might have distreyned the Beast of a stranger BLown versus Ayer Hill 40. Eliz. rotulo 1610. In a Replevin the question was upon these words to wit the said Abbot and Covent granted to the said R. that he and his Assigns Fierboot Cart-boot and Plowboot sufficient by the appointment c. without making wast under the penalty of forfeiting the devise whether those words make a condition or no and
Winch held that the Plaintiffe should not be barred for the Misnomer and for the second he held that his house was within the Statute of Chaunterys and so the interest in the King H. 6. And so the Lease made by the Master of the Hospitall void Dyer 246. 287. And Warburton held the Plaintiffe should be barred upon both points SWynerton versus Mills Hill 14 Jacobi rotulo 2049. In a Replevin the Defendant a vows for a rent charge reserved by a Copiholder who is seised in Fee and made a Lease by the license of the Lord reserving Rent at foure Feasts or within one and twenty days being lawfully demanded and afterwards the Copiholder surrendred one moity in Fee to a stranger and afterwards surrendred the reversion of the other moity to another to which the Termer atturned and so avowed for Rent The Plaintiffe pleaded in Barâ— that he was seised of a Close adjoyning to the place in which c. and put therein his Cattell and that they escaped by fault of inclosure and issue taken upon that And after a Verdict by default those exceptions were taken to the Avowry in Arrest of Judgement First because it appeared by the Advowry that the Copiholder had surrendred a Reversion which could not be because a Copiholder is a Tenant at will and so could not have a reversion for he cannot make a Lease for yeers without the license of the Lord but this exception was over-ruled by the Couâ—t Secondly because there was no Atturnment alledged in the first surrender And it was held no exception because the Rent for which he avowed was reserved by the Copiholder by the second surrender to which the Termer had atturned And also the Court said that an Atturnment is not necessary for a Copiholder because there is no time when the Terme should atturn For before the surrender he cannot atturn and after the surrender and admittance it is too late And the Copihold estate is like an estate raised by uses or devise in which an Atturnment is not necessary As also in an estate raised by Fine and the like an Atturnment is not necessarie for if the Termer will not atturn he is compellable by Law as by a Quid juris clamat but a Copiholder hath no means to make the Termer atturn if he refuse And thirdly in the conclusion of the Advowry he doth not say that the Rent was behind such a day and one and twenty dayes after at least and this exception was disallowed because the distresse is a sufficient demand of the Rent and it appears that the day of the taking of the distresse was one and twentie dayes after the Feast at which the Rent was due and Judgment was given for the Advowant and note that a Covenant to distrain is idle for a man may distrain of common right HOwell versus Sambay Mich. 13 Jacobi rotulo 2009. In Replevin the Defendant a vows for a Rent charge and a Nomine pene granted by Tenant in tail generall and one Fine levied afterwards and the use expressed the Plaintiffe replies and saies that the Grantor had only an interest for life and so makes inducement and traverses the use of the Fine The Defendant demurrs And held by the Court that the Grantee was not seised in tail nor to the use of the Fine And it was said that in this case that it was necessary for the Advowant to plead the Fine with the estate tail for if the Tenant in tail grant a Rent charge and dye no Fine being levied and the estate tail discends the issue in tail is not chargable with the Rent And note the Advowry was as well for the Rent as for the Nomine pene and no speciall demand was alledged in pleading the Rent and it was adjudged by the Court a naughty advowry as to the Nomine pene but good for the Rent as it hath been adjudged in one Mildmaies Case COtterell versus Harrington Pasch 6. Jacobi rotulo 545. In a Replevin the Defendant avows for an Annuity for 20 d. granted for yeers payable upon demand and alledges a demand the Plaintiffe demands either of the Deed and by the Deed it appeared that for a hundred and ten pound one Rent of twenty pound was granted for eight yeers and another for 20 l. for two yeers if E. R. and T. should so long live the Plaintiffe pleads the Statute of Usury and sets forth the Statute and a speciall usurious Contract If it had been layed to be upon a loan of Money then it was Usury but if it be a bargain an Annuity it is no usury But this was alledged to be upon a lending VVOod versus Moreton Hill 6 Jacobi rotulo 1802. In Replevin the Defendant advows to have Common Appendant out to his house and Land the Plaintiffe saith that he had Common Appendant to his House and Land And the Defendant to avoid the Common saith that the Commoner sold to the Plaintiffe five Acres of the Land to which the Common is appendant pretending that he should not have Common for that Land being but parcell of the Land to which the Common was appendant Common Appurtenant cannot be to a House alone purchasing of part of Common Appendant doth not extinguish the Common otherwise it is of Common Appurtenant And it was pretended to be Common Appurtenant because it is to a House and Land whether by severance his Common is gone and held to be common Appendant and Judgment given for the Plaintiffe MOrse versus Well Replevin for Common of Pasture the casewas that the Father was seised of two yard Land with Appurtenances and had Common of Pasture for four rother Beasts three Horses and sixty Sheep and he demised part of the said two yard Lands in being And whether the Common should be apportioned and if it should be apportioned whether the Prescription failed because the issue was taken that he and all those c. had Common in the said two yard Land A Release of Common in one Acre is a Release of all If I have Common Appurtenant and purchase part the Common is gone but otherwise it is of Common Appendant And note this Common was Common Appendant and the purchasing of Common Appendant doth not extinguish the Common and Judgment was given for the Commoner by the whole Court HVghes versus Crowther Trin. 6 Jacobi rotulo 2220. In a Replevin a Lease for years made to Charles H. and the said A. T. to have and to hold from c. for sixty years if they live so long Charles dyed in this case Judgment was given that the Lease was ended by the death of Charles but otherwise it had been if it had been for life BIcknall versus Tucker Trin. 9 Jacobi rotulo 3648. in a Replevin the case was whether a Fine with five years will bind the Copy-holder in remainder there was a Copy-hold granted to three for lives to have and to hold successively the
to have distrayned the Cattell of the Lord damage fesant and observe his BRaxall versus Thorold Trin. 8. Jac. In Replevin for the taking of 4 Oxen at Coringham in the County of Lincoln in a place called Dowgate leys Sept. 6. Jac. The Defendant says the place contained four acres in Coringham magna which was his Free-hold and justifies the taking damage fesant The Plaintiff in his bar to the Avowry that the place where c. lies in a place called Harrerart quarter parcell of a great Common Field called E. in Coringham aforesaid and that the Plaintiff the said time and long before was seized of one Messuage and of 14. acres of Land Medow and Pasture with the appurtenances to the said Messuage belonging and that the Plaintiff and all they whose estate the Plaintiff had in the Tenements ought to have common and so prescribed to have common for him his Farmers Tenants c. for all comunable cattell levant couchant upon the Tenements c. And upon issue taken upon the Common it was found for the Plaintif and alledged in arrest of Judgment that it did not appear by the Barre to the Avowry in what place the Messuage and Land to which the Common did appertain did lie to wit whether it did lie in Coringham or in any other place or County and thisof necessity ought to have been shewed in certain because the tenure ought to be both of the place where the House and Land did lye and of the place where the Land did lye in which the Common was claimed and therefore of necessity ought to have been shewed incertain and shall not of necessity be intended to be in Coringham where the Common is For a Common may be appendant or appurtenant to Land in another County And the trvall shall be of both Counties and Judgement was arrested by the whole Court TRuelock versus Riggsby Mich. 8. Jacobi In Replevin for the taking of six Kine in a place called Brisley hill in Radley in the County of Berks the Defendant as Bailiff of one Read makes Conisance that the place where c. contains fifty acres and is parcell of the Mannor of Barton whereof the place where c. is parcell and showes that E. 6. was seised of the Mannor of Barton whereof the place where is parcell and granted it by Letters Patents to R. Leigh and divers other Lands by the name of the Coxleyes c. and amongst other particulars in the Patent the King granted Brisley hill in Barton and deduces the Free-hold of the Mannor of which the place In which c. is parcell to Read and he as Bailiff to him took the Kine damage Fesant the Plaintiff replies and shows that one Hide was seised of a Messuage and divers Acres of Land in Radley and that he and those whose estate he hath for himself his Farmers and Tenants used to have Common in the said place called Brisley hill in Radley when the said Feild called Brisley hill in Radley was fresh and not sowed all that yeare with their Cattell Levant and Couchant and when the Field was sowne with Corne and when the Corne was carried away untill it was referred and so justifie the putting in of six Kine using his Common because the Feild was not sown with Corne at the time to which the Defendant pleads and saies that part of the Feild called Brisley Hill in the Avowry named was at that time sown with Corn c. and the Plaintiff demurres and adjudged for the Plaintiff for two reasons The first was because the Defendant in his Avowry referres the taking of the Cattell to another place then that set forth in the Avowry which is not in question and in which the Plaintiff claims no Common for the Plaintiff may claim Common in Brisley hill in Radley and the place named in the Defendants Avowry to which he referres his Plea is Brisley hill in Barton for Brisley hill in Radley is not named in the Avowry by any speciall name but onely by implication by this name the place in which c. and for that reason the rejoinder doth not answer the matter in the replication The second cause was because the Plaintiff claims Common when Brisley hill in Radley was unsown with Corn and the Defendant to that although his Plea should referre to the same Brisley yet hath he given no full answer for he saith that parcell of the said Feild was sowed with Corn and the Court held that sowing of parcell of the Feild shall not hinder the Plaintif from using his Common in the residue for that may be done by covin to deceive the Plaintiff of his Common for the Plaintif claiming his Common when the Field that is the whole Feild is sown shall be barred of his common by sowing of parcell of it notwithstanding that parcell be sowed the Plaintif shall have his common by the opinion of the whole court GOdfrey versus Bullein Mich. 8 Jacobi Bullein brought a Reple vin against Godfrey for the taking of six Beasts in such a place in Bale in the County of Norfolk the Defendant as Bailif of R. Godfrey makes conisance because before the time and at the time in which c. the said R. Geffrey was seised of a Court Leet in Baile of all the inhabitants and râ—â—dent within the Precinct of the Mannor of Baile to be holden within the Precinct of the Mannor as appertaining to his Mannor and shews how that he had used to have a Fine of ten shillings called a Leet Fine of all the cheif pledges of his Leet and if they failed to pay the Steward had used to amerce them that made default in payment shewed how that at a Court holden within the Mannor such a day it was presented that the Plaintif in the Replevin being an inhabitant in B. and resident within the Precinct of the Mannor made default in payment of the said Fine of ten shillings being then one of the cheif pledges of the Court by reason whereof he was amerced at five pounds which being not paid the Defendant took the Beasts and the Issue was whether Bullein at that court was a chief Pledge or no and the Venire to try his Issue was onely of the Mannor and found for the Plaintif and damages and costs to thirty pounds given against Geffrey upon which he brought a Writ of Error in the late Kings Bench and adjudged Error and the Judgement reversed for the Venire facias should have been both of Bail which was the Village as of the Mannor for although the Court be held within the Mannor yet the Leet it self is within the village of Baile and the Plaintiff was an inhabitant and resident within the village which village is within the Precinct of the Mannor and though Fleming cheif Justice held that nothing was in question but whether the Plaintiff was cheif pledge at the Court held within the Mannor or no and so nothing within the
although another take away part of my Common yet no action lyeth As if one beat my servant lightly except the Master lose his service no action lieth And if my friend come and lye in my house and set my neighbours house on fire the action lyeth against me and Judgment for the Plaintiff HAtton versus Hun Trin. 13. Jacobi rotulo 3314. In Trespasse and Imprisonment the Defendant justifies by vertue of a Capias and the Plaintiff did afterwards escape and he being Sheriffe did follow him by vertue of the said Warrant taken upon the Capias the Plaintiff replies that he escaped by license of the Sheriffe and traverses the latter taking by vertue of the Warrant and the Court held the traverse idle because the Plaintiff had sufficiently confessed and avoided and if he escaped by the Sheriffs License that ought to be the thing put into issue and not the traverse PAtry versus Wilsh Trin. 9. Jacobi rotulo 1055. An action of Trespass brought wherefore by Force and Armes he broke the Plaintiffs Close and eat his Grasse c. The Defendant justifies for common of pasture and saith that he was seised in Fee of one Messuage with the appurtenances in G. and used to have common for all his Cattell levant and couchant upon the said Messuage And it was moved after a verdict in arrest of Judgment by Sergeant Nichols that the plea was insufficient because the certainty of the Cattell was not expressed as for 200. or the like but the Court held the contrary that levant and couchant is a certainty sufficient and all the Books prescribe for a Common by reason of a Messuage RInghall versus Wolsey Mich. 11. Jacobi rotulo 820. An action of Trespass brought wherefore by force and Armes the servant of the Plaintifs out of the service of the said Plaintiff hath taken and laid to be at H. The Defendant justifies that one was possessed of Corn at S. And that the said servant by the command of his Master had carried away the Corn and that the Owner came to the defendant being Constable and prayed him to detain the servant untill hee could procure a Warrant of a Justice of Peace and traverses that he is guilty at H. The Plaintiff demurres that it was held by the Court a naughty plea First because the Constable could not detain any man but for Felony And secondly the traverse is naught because the Trespass is in the same County and so he might have justified as well in H. as in S. DArney versus Hardington Pasch 9. Jacobi rotulo 1857. An action of Trespass brought to which the Defendant pleads a justification for an Amerciament set in the Sheriffs turn to which Justification exceptions were taken First because the Defendant justified by vertue of a precept to him lawfully granted saith not at what place Secondly he prescribes for the turn to be held and doth not any or what estate c. And Hutton said that a prescription for a turn or one hundred Court by what estate is naught because a hundred is not manurable but lies in grant but he ought to have said that the King and all they that were seised of the said Hundred have had and from the time c. And my Lord Cook said that a prescription by what estate for a thing incident to a Mannor is good for an Hundred that lies in grant it is naught And he and Warburton held that except it was shewed before whom the turn was held it was naught because where any thing is taken by common right as the Sheriffs turn it ought to be holden before the Sheriff as in the prescription it ought to be shewed before whom the turn was held or else it would be naught ROberts versus Thacher al. Hill 11. Jac. rotulo 1928. An action of Trespass brought wherefore by Force and Arms the Close and House of the Plaintif at A. did break and a certain Cow price c. took The Defendant saith that the Plaintiff ought not to have his Action against him because he saith that the Close House is one Messuage c. in A. aforesaid and that before the time in which c. such a one was possessed of the said Cow as of his own proper Cow to wit at A. aforesaid and being thereof so possessed certain Malefactors unknown to the said c. before the said time in which c. the said Cow out of the possession of the said B. did feloniously steal take and lead away whereupon he made Hue and Cry and thereupon hee had intelligence came and was in the possession and custody of the Plaintiff and B. upon notice thereof did request the Defendant to ask the Cow of the Plaintiff and to bring her c. By reason whereof the Defendant the said time in which came to the said Messuage by the usuall way by and through the said Close c. to demand c. And the Defendants then there finding the aforesaid Cow in a wall'd parcell of the Messuage they took the Cow from thence and brought her to the said B. and to him delivered her as c. which is the same Trespass to which plea the Plaintiff demurres and it was adjudged a naughty Justification for these reasons First because it doth not appear but that the Plaintiff had good right to the Cow Secondly because the Defendant took the Cow without demand And thirdly it is not pleaded that the Defendants were servants to the said B. R. and that he did it by his command and therefore Judgment given for the Plaintiff HAll versus Stanley al. Pasch 9. Jacobi rotulo 2289. An action of false imprisonment The Defendant as to the whole Trespass except the Battery and Imprisonment and keeping in prison not guilty And as to that pleads that the Marshals Court is an ancient Court c. and so justifies because the Plaintiff was the pledg of T. C. to the Defendant in an action of trespass upon the case in an indebilat assumpsit generall and thereupon a Judgment against C. and a Capias awarded and a non est invent returned and thereupon a capias awarded against Hall the pledge according to the custome by vertue whereof the said Hall was taken and detained and traverses that he was guilty c. of any imprisoning the Plaintiff before such a day and averres that they are the same persons And the Plaintiff replies that neither R. C. nor T. T. at the time of exhibiting the Bill were of the houshold c. The Defendant demurs and Judgment for the Plaintiff and the whole Court agreed that the Marshalls Court could not hold Plea Covenants and Contracts except both of them were of the houshold of the King and all the matters of which they could hold plea were Trespass Covenants and Contracts of the houshold and within the verge to wit within twelve miles of the Court and Doddridge said that before the Statute of 28
GOodwin against Welsh and Over Pasch 7. Jacobi The Plaintiff brought an Action of Trespass for severall things against the two Defendants and declares to his damage c. The Attorney for the Defendants pleads non sum informat and thereupon Judgment was given severally for the Plaintiff and Writs to inquire of the damages issued out and were returned and it was moved that the Writs should not be filed because the Plaintiff at the time of the inquiry did not prove that the goods did appertain to him but only proved the value of the goods for Serjeant Nichols took a difference between an Action confessed and non sum informat for in the first case the property of the goods is also confessed to be in the Plaintiff but it is not so in the other case for here Judgment passes without the privity of the Defendant and only for want of pleading as in the case of a nil dicit but by the whole Court it was all one And the Plaintiff is not bound to prove the property in any of the Cases and the reason is because the Writ commands only the value to be inquired of and no more and that only is the charge of the Jury And the whole Court were of opinion that they themselves as Judges if they would in such Case might assesse Damages without any Writ if they would trouble themselves for the Writ goes onely because it is known what Damages are but it is otherwise when not guilty is pleaded for then the Trespasse is denyed which must be proved and tryed by the Jury and there both the value and property come in proof and observe the Judgement is that he should recover and if upon a Writ of inquiry he should be bound to prove the property and fail thereof it would be in destruction of the first Judgement which cannot b. observe this TAilor against Markham Trin. 7 Jacobi An Action of Trespass and Battery brought for c. The Defendant pleads that he at the time of c. was seised of the Rectory of c. where the Battery was supposed in Fee and that at the time in which c. Corn was severed from the nine parts at the place aforesaid and because the Plaintiff came to carry away his corn and the Defendant stood there in defence of his corn and keeping the Plaintiff from taking it away and the hurt that the Plaintiff had was of his own wrong c. the Plaintiff replies that it was of his own wrong with the such cause alledge c. and the Defendant demurred in Law and adjudged for the Plaintiff for that generall replication is good and doth not behove the Plaintiff to answer the Defendants Title because the Plaintiff by his Action doth not claim any thing in the Soil or corn but only damage for the Battery which is altogether collaterall to the Title but when the Plaintiff makes a Title by his Declaration to any thing and the Defendant shall plead another thing in destruction thereof or if the cause of Action in such Cases the Plaintiff must reply specially and not say without such cause as it is in 14 H. 4. Trespasse brought for taking a servant the Defendant shews that the Father of him that the Plaintiff supposes to be the servant held of him in Knights Service c. and died seised his Heire the Servant being within age by reason whereof he seised as his Ward as it was lawfull for him to do and there the Plaintiff replied that he did it of his own wrong and without such cause and disallowed by the Court because he did not answer to the Seigniory to wit that he did that of his own wrong without it that the Father of him that is supposed to be the Servant held of him in Chivalry and the reason was because the plaintiff by his Action made Title to the Servant according to 16 E. 4. and Judgement given accordingly ALlbon against Dremsall Mich. 7 Jacobi The plaintiff declares in an Action of Trespasse that the Defendint the twentieth day of February 5 Jac. did break the plaintiffs Close at c. called Sandy Heath and entered it and spoiled his grasse and kiiled took and carried away a hundred Conies and also that the Defendant the same day the free Warren of the plaintiff at Sandy aforesaid did enter and chase without license and killed fifty Conies and took carried them away to his damage of c. the Defendant to the whole Trespasse except the entring and breaking of the Close called Sandy Heath not guilty and in Issue joyned upon that and as to the breaking the Close the plaintiff ought not to have his Action for he said that William Lord Russell and Elizabeth his Wife were and yet are seised in Fee in the Right of his Wife in a certain peice of Heath containing ten acres in Sandy close adjoining on every side separated from the place called Sandy Heath that they and all those whose Estate they have in part in that peice of Heath have used to have for themselves and Farmers of the said peice of Heath and for their Servants a passage unto the said peice of Heath and from the said peice in by and through the said Close called Sandy Heath in which c. the whole year at their pleasure to take and receive the profits of the said peice of Heath and the Defendant further sayes that long before the Trespass supposed to be committed very many Conies were wandering in the said peice of Heath and divers Cony holes were there made in which the said Conies did delight to live in and at the time in which c. they were in the said peice of Heath eating the grasse growing there and the Defendant as Servant to the Lord Russell and by his command the time in which c. in by and through the said Close in which c. towards and unto the said peice of Heath did walk over to hunt and take the said Conies in the said peice of Heath then being and feeding as it was lawfull for him to do which walking in by and through the said Close in which c. for the cause aforesaid is the same breaking the Close and entring thereof whereof the Plaintiff complains and averres that the place by which the Defendant walked for the cause aforesaid to Sandy Heath in which c. was the next passage by which he could go to the said peice of Heath to which the Plaintiff demurres and adjudged for the Plaintiff for a passage is properly a passage over the water and not over Land and the Defendant ought to have prescribed for the way and not for the passage for he ought to have observed the usuall words and such as are known in the Law for a prescription and usage is for a way and not for a passage and see 32 Assis 58. and 11 H. 4. 82. b. Secondly the prescription is not good
amended upon oath 175. Partes ad finem nihil c. pleaded 179 Prescription for Common of pasture 177. Prescription to distrain for amendment in a Court Baron must be not in a Court Leet 183. Prescription in a good estate good for a thing incident though it be in grant 198. Prescription to be a Iustice of peace where good how naught 206. 207 Prescription good matter and various 215. 216 Possession how it enters 230 231. Posse Comitatus where it may be raised 240. Q. QVeen cannot be an Officer to the King 28 Quantity in a Declaration may be destroyed by a per nomen 145. Quare impedit Process in it 158 Quare impedit the Judgement in it 158 Quare impedit essoyn in it how and for whom 159. Quare impedit Iudgement in it where execution shall be by the Metropolitan 159. Quare impedit severall against severall men 161. Quod permittat 227. R. REquest where it is necessary 13 Release of Baron where it is no Bar 15 Rent arrear no plea in an action of Covenant 19 Release where not to be given in Evidence 24 Request upon a bond what is sufficient 30 Rent reserved where gone 32 Rent proportioned 33 Return of a Sheriff insufficient 37 Return of 21 Iurors naught 41 Rogue not actionable 9 Rieus per deceit 54 Release how and where good 62. 63 Repleader awarded 64 Release where good in respect of time 70 Release of all demands its force 81 116. Request to make assurance generally good 85 Release in Law 91 Reversioner received for default of Tenant for life 127 Return insufficient why 127 Replication not good 131 Rent received at Michaelmas or within ten dayes after 105 Reservation of Rent how to be construed 108 109 Record removed unto the Exchequer 145 146 Resignation by fraud takes not away the Kings Title 161 Replevin where and how 168 Replevin not within the Statute 3 Jac. 172 Returno habendo 173 Replevin place omitted not good 176 Resignation of a Benefice 201 Release to Tenant at sufferance void 201 Recognizance sued 225 S. SVit in Chancery is no disturbance 23 Sheriffe amerced for the false Re-return of another 36 Summons severance where 37 Statute preferred before a judgement where 37 38 Supersedeas granted where 40 Subboth where punishable 44 Scandall for keeping a false Debt-booke actionable 4 Suing in a wrong Court where actionable 4 Scandall for false measures actionable 4 Scandall for invocation of Spirits 8 Sheriffe his authority in executions 50 Scire facias for whom 57 Satisfaction what is not 70. where it is held naught 73 Steward of a Leet within the Stat. of Edward 6. 73 Successor not Executor when hee shall take benefit 94 Supersedeas upon a Writ of Error 153 Servant brought an Action nomine proprio part of the goods being his Masters 155 Seisin of Rent within the time of limitation not traversable 170 Surrender of a Copy-holder how it works 181 Sheriffe where his performance is good where naught 210 211 Scire Facias where it is proper 226 Seisin of a part of service is seisin of the whole 230 Submission to Arbitrators 232 Seu Assault Demesne pleaded in Battery 233 T. TRover where 12 Trover against an Administrator good where 16 Tenant at the time of Writ purchased where good 27 Tenant at will and at sufferance do differ 30 Tithes discharged where 31 Tithes where not suable for by the statute 31 Tithes in kind renewed where 32 Trees devised to pay Debts 32 Tithes where not of boughes 33 Tithes not set forth where action 34 Tales prayed denyed where 35 Tearm whole adjudged as one day 37 Trees in the high-way whose 42 Tryall where 49 Tenants in Common 83 Tithe of what trees to be paid 95 Tithes cannot be leased without Deed 99 Tryall upon Ejectment good matter vide 147 148 Tenant in taile his death where it determineth Estates by him granted 161 Tenant in tail grants a rent charge 179 Tales awarded 183 Trespass what process 193 Trespass is joynt or severall at the Plaintiffs election 196 Trespass laid in an Acre and the Iury found in a Rood yet it is good 210 Trespass difference 'twixt it and Rep'evin 214 Tort Demesne where good in issue where not 215 V. VAriance betwixt Count the writ of Inquiry 15 Ven mis-awarded 23 View to be there where an Office is performed 27 Villianage within the statute of limitation 38 Vse upon what 40 Venire Facias mendable where 43 Vsury what where not 52 Uncore Prist where pleadable 61 Verdict speciall 75 Venire Facias mis-awarded 76 Uncore Prist for to grant where naught 76 Venire Facias the Defendants name mistaken 79 Vsurious contract pleaded 86 Variance betwixt the specialty and Count 96 Verdict speciall upon non demisit 126 Venire Facias of the Parish adjudged good 130 Venire Facias to the Coroners ib. Verdict speciall in Ejectment 131 Verdict precise sometimes makes the Declaration good which otherwise would be naught 137 Venire Facias exception taken and over-ruled 161 Vsurpation upon the King 163 Venire Facias whence 176 Vsury the statute pleaded 180 Venire Facias de novo 194. 204. 219 Venire Facias vitious why 209 Verdict finding substance though not circumstances yet good 213 214. Venire one out of two places in the same County 228 W. WHere arrant not actionable 16 Words implyed not actionable 16 Will good by notes 44 Words actionable 2 3. Witch not actionable 2. 14 Warrant of Attorney 46 Words after the Clause of his testatus of what force they are 59 VVrit originall where abated by death 64 Will must be certain and according to Law 130 Will not to be avoided by averment 131 Will mistakes in many cases tollerable 132 Words void rather then the Declaration where 146 Warranty Collaterall pleaded in a Formedon 153 Writ another depending pleaded 163 Withernam awarded 167 168 Words of double intendment how to be construed 192 193 Wast where it lyeth for what judgment in it 237 238 Waste inquiry of it ibid. Waste who shall joyne in the action 238 Waste against whom it lies 239 240 Waste sparsim ibid. The times when these severall Officers of the Court of Common Pleas were admitted to their severall Offices Thomas Spencer Ar. Pasch 33. Eliz. Henery Compton Miles balnei Circa An. 5. Car. Jo. Glyn serviens ad Legem 5. Febr. 19. Car. Johannes Foorde 27. Jan. 27. Eliz. Gulielmus Nelson 15. Novem. 25. Eliz. Richardus Brownelow 9. Oct. 32. Eliz. Thomas Cory 9. Oct. 14. Car. Zacharias Scot. 9. Oct. 27. Eliz. Thomas Crompton 10. May 7. Jac. Johannes Goldesborough 7. May 11. Jac. Johannes Gulston 15. Oct. 16. Jac. Richardus Barnard 9. Febr. 19. Car. Johannes Pynsent Ult. May 20. Car. Laurentius Rardford 30. Oct. 23. Elizabeth Hugo Browker 28. November 31. Eliz. Thomas Waller 23. Jan. 5. Jac. Robertus Moyle 7. May 3. Car. Geo. Farmer 16. Oct. 14. Car. Gulielmus Anderson 12. 1. May
observed with the feare of God And another Canon That custome of not Tything or of the manner of Tything if they paid lesse then the tenth part see Panormitan upon that seek of the Case between Vesey and Weeks in the Exchequer upon the Statute of 27. H. 8. for the dissolution of small Monasteries Also the Lord Darcy in quo warranto was discharged of purveyance by Patent granted by the King Edward 6. of such priviledges which such a one had and by the same reason the King shall be discharged of Tythes by the Act of Parliament also he remembred the Book of 10. Eliz. Dyer 277. 60. to be resolved in the point and also 18. Eliz. Dyer the Parson of Pekerks case 399. 16. upon the Statute of 31. H. 8. and so concluded and prayed judgment for the Plaintiffe and that the Prohibition should stand and it was adjourned Trinity 9. Jacobi Priddle against Napper UPon a speciall verdict the cause was The Prior of Mountague was seised of an Advowson and of divers acres of Land and the 20. of H. 8. the King licensed him to appropriate that and 21. H. 8. the Bishop which was Ordinary assented and after that the Church became void that the Prior might hold it appropriate and 27. H. 8. the Incumbent dyed so that the Appropriation took effect and was united to the possession of the Rectory Appropriate and also of the Land out of which Tythes were due to the said Prior in respect of the said Rectory and then the Priory is dissolved and the Impropriation and the Lands also given to the King by the Statute of 31. H. 8. which granted the Impropriation to one and the Lands to another And if the Patentee of the Land shall hold it discharged of the payment of Tythes in respect of that unity was the question And Harris Serjeant for the Defendant in the Prohibition that the unity ought to be perpetuall and lawfull as it was adjudged between Knightley and Spencer 2 Coke 47. a. cyted in the Arch-Bishop of Canterburies case and for that unity by or by lease for years or for two or three years as in the case at the Barre shall not be sufficient to make discharge of the payment of Tithes and so it was adjudged Pasche 40. Eliz. Rot. 454. between Chyld and Knightley that is that the unity of the possession ought to be of time that the memory of man doth not run to the contrary And in the argument of this Case it was said by Popham cheif Justice that if no Tithes were paid after the Statute that then it shall be intended that no Tithes were paid before the Statute and so he concluded and prayed Consulation see 2 Coke 48. a. The Arch-bishop of Canterbury for the reason by which unity of possession is discharged of payment of Tithes that is for that that some houses of Religion were discharged by Buls of the Pope and many were founded before the Councell of Lateran and for that it shall be infinite and in a manner impossible to find by any searches the means by which they are discharged the unity is no discharge in respect of it selfe for the reasons aforesaid and none may know if Tithes were paid or not before the union And if Tithes be not paid in time of memory by a house of Religion and they lease of that for years and receive Tiths then the lease expiâ—es two yeares before the Dissolution of the same house the King shall not be discharged of the payment af Tithes by the Statute of 31. H. 8. by Coke and Walmesley against Warburton and Foster Dorwood against Brikinden UPon the Statute of 5 Ed. 3. a man libelled in the Spiritual Court for Wood cut and a Consultation was granted Yet the Defendant in the Court Christian might have a new Prohibition if it appeared the first Consultation was not duly granted So if a man libell for Tithes for divers years and Prohibition is granted for part of the years and after that a Consultation is awarded yet the Plaintiffe may have a new Prohibition for the residue of the time notwithstanding the Statute of 50 Ed. 3. and that it be upon one selfe same libel Admirall Court NOte that the Admirall cannot imprison for any offence but if the Court hath Jurisdiction of the Originall cause and sentence is there given this sentence may be executed upon the Land 19. H. 6. But no Ordinary may meddle out of his own Diocesse 8. H. 6. 3. 2. H. 4. The Parson of Salt-ashes Case That this Court tooke notice of Jurisdiction of all Ecclesiasticall Courts and Ordinaries for they write unto them for tryall of Bastardy and Matrimony And there are 3. Legates First a born Legate as the Arch-bishop of Canterbury and Yorke Remes and Pylazam Second a Latere as all Cardinalls The third a Lagate given as those which have their Authority by commission and Lynwood Provinc saith that the Arch-Bishop of Canterbury as Arch-Bishop cannot meddle out of his Diocesse of Canterbury and his Peculiars but as a Legate borne which is in respect of his Office he hath prerogative and if a man inhabit in one Diocesse and ought to pay tithes to another which inhabits in another Diocesse there the Ordinary ought to prefer the suit to the Metrapolitan but seek what Ordinary shall transfer it Trinity 9. Jacobi 1610. in the Common Bench. Jones against Boyer HEnry Jones Parson of Bishopton sued Bowen the Executor of Holland the last Incumbent in the Arches for Dilapidations upon which a Prohibition was prayed upon the statute of 23. H. 8. for that that it was sued out of his Diocesse which was Saint Davids but it appears that the Vicar generall of the same Ordinary hath made generall request to the Metropolitan to determine that without shewing any cause speciall and if the inferiour Ordinary may transmit any cause but only for the causes mentioned in the statute of 23. H. 8. And if the causes ought to be expressed in the Instrument was the question note that the generall words of the statute of 23 H. 8. chap. 9. Rastall Citation 2. are afterwards many particulars or in case that any Bishop or any inferiour Judge having under him Jurisdiction in his own right and title or by commission make request or instance to the Arch-Bishop Bishop or other inferiour Ordinary or Judge to take treat examine or determine the matter before him or his substitute And that to be done in case only where the Law civill or Canon doth affirm execution of such request or instance of Jurisdiction to be lawfull or tollerable and for the better discussing of this question the Judges had appointed to heare two Doctors of the Civill Law which at this day attended the Court the first Doctor Martin said that these generall words have reference to the Executor and not to the maker of the request and this request may be made for all causes but ought to be made to him which hath
proceedings there And it was granted in so much that the originall ground of the Suit that is the infamous words were pardoned by the generall pardon and for this all the proceedings were erroneous and their transmitting after And afterwards the Prohibition received willingly And for these causes Prohibition was granted to the Court of Requests Thomas Baxter against Thomas Hopes IN Prohibition the Plaintiff Suggests that within such a Town was such a custome that every Inhabitant which maintained a family and dairy for manuring his land and maintenance of his family have used of time out of memory c. to pay tythes of Corn growing upon his Farm in kind and by reason thereof have used to be discharged of after crop of the said land And also that they have used to pay tythe milk and tythe Calves in kind and by reason thereof have been discharged of tythe of yong and barren Beastes and the Plaintiff suggested further that he occupied a Farm and maintained a family and dairy for the manurance of that and maintenance of his family and hath paied his tythe Corn and milk and Calves in kinde And for that ought to be discharged of tythes for the after crop and for yong and barren Beastes and for the tenthes of which suit was begun in the Court Christian and upon demurrer joyned upon Prohibition the custome was debated whether it were good or no and it was moved first by Houghton Serjeant for the Defendant that the custome was not good insomuch that by that the Plaintiff was not to pay more then by the Law he ought for he ought to pay tythe Corne and milk and Calves in kind And this is no more then the Law compells him to do and this cannot be a consideration to discharge him of other things For all things which renue ought to pay tythes of Common Right as after pastute and barren Cattell and Corne and milk And all other things which renue if it be not good custome to the contrary which is grounded upon consideration and then to consider how much consideration shall be valuable in other Cases and what not And to that it appeares in 9. Ed. 4. 18. and 19 in Trespasse upon the Statute of 5. Rich. 2. The Defendant pleads accord that the Plaintiff entred into his land againe and agreed that that was not barr insomuch as agreement without satisfaction is not barr and entry into lands is no more then he might do without the agreement and for that it is not good for default of consideration so in 12. H. 7. 15. a. in trespass for goods taken the Defendant pleads arbitrement that is for that that the Defendant hath taken the goods of the Plaintiff and that he should deliver them to the Plaintiff in full satisfaction And agreed that this is no good award insomuch that this cannot be satisfaction for that that the goods were the proper goods of the Plaintiff And although that he hath his goods againe yet he is not satisfied for the taking But if the award had been that the Defendant should redeliver his goods and carry them to such a place certain at his own costs and charges then it had been good See 45. Ed. 3. accordingly So in an action upon the Case upon an Assumpsit made in consideration that the Plaintiff hath payd due debt is not good for this is no consideration and so in the principall Case the Prescription is not good insomuch that he hath not suggested more or other consideration which by the Law he ought to do But he agreed that if he had suggested that the Plaintiff had plowed and manured the land and disposed of the tythes of the Corn for the benefit of the Parson in other manner then the Law compelled him then the first prescription had been good and so he concluded and praied Judgement for the Defendant Hutton Serjeant for the Plaintiff in the Prohibition seems the contrary and that the Suggestion and Prescription and Custome Contained in that are good And to the Objection that it is no consideration that the Custome may be founded he intended that this is a ground upon immunity subsequent to the Consideration as of things which are not tythable as in the generall Case of things which are for the maintenance of the family for Plowing and Manuring of the land shall not pay tythes as in a suit for tythes for herbage suggestion that they were depastured by labouring Cattell which Plowed and Manured the Land of which the Parson had tythes or small Wood which are cut or imployed for the fencing of a Farm or fuell spent in the Farme shall not pay tythes insomuch that without that the Farme cannot be Manured nor the Famaly sustained And so by consequence the Parson shall not have any tythe Corn insomuch that no Corn will grow without manuring and also the Parson by those hath the more tyth Corn and so he hath consideration in that for the better that the Farme is fenced and manured the more tythe the Parson shall have So the Farmer may be discharged of tythes for Rakeings insomuch that he Mowes and Cocks the tythes for the Parson at his own costs and this is sufficient consideration And also he insisted upon the Statute of 2. Ed. 6. Which provides that tythes shall be payd in the same manner as they were payd for 40. yeares before and he cited one Jessopps case to be adjudged in Prohibition Pasche 36. Eliz. Upon suit in Court Christian for flocks and locks of Wooll And the Custome was alleaged that the owner had woond the tythe for the Parson and in consideration of that ought to be discharged of tythes of locks and flocks if they be not made by Covin to defraud the Parson and these were demanded by the name of wooll dispersed and 18. Eliz it was adjudged that tythes shall not be made for Brick and in Prohibition the suggestion was grounded upon the generall immunity and insomuch that it was made of land for which no tythes are to be payd insomuch that it doth not renue that for this cause tythes ought not to be payd for the Brick which is made of that and so of Mynes and so Loppings and Toppings and bark of Trees shall pay no tythes But are within the Statute of 40. Eliz. 5. of wood to be falne as it is resolved in Soby and Molyns case in the Commentaries And he agreed that for herbage the tenth gate or proffit of that ought to be payd if there be not a custome to the contrary but in the Principall case he intended that that was payd in the Corn and in that the Parson hath recompence and consideration as before and so he concludes and praies Judgment for the Plaintiff Dodrigde Serjeant of the King argued that the Custome is not good as it is here suggested for the consideration is of some things which ought to pay tythes in kind and so upon the matter is no sideration at all
of his confirmation and not by the first see 11. R. 2. Grants 9. Ed. 3. 4. 12. R. 2 Feoffments 58. See Perkins fol. 8. b 9. a. Grants 10. Eliz. Dyer 279. 4. Hillary 8. Jacobi 1610 In the Common Bench. Styles against Baxter STyles brought an Action upon the case against Baxter for calling him perjured man the Defendant justified that he was perjured in such a Court in such a deposition and so pleaded that certainly and it was found for the Defendant at the Nisi prius and Judgment was given accordingly and the Defendant afterwards published the same words of the Plaintiff upon which he brought a new Action for the new publication in which the Defendant pleaded in Barr the first Judgment upon which the Plaintiff demurred and it was adjudged without any Contradiction that it was a good Barr. Hillari 8. Jacobi 1610. In the common Bench. Andrewe against Ledsam in the Star Chamber ANdrewe exhibited his bill in the Star Chamber against Ledsam the matter Andrew being a rich Usurer delivered to Ledsam being a Scriâ—ener one thousand pound to be imployed for him for Interest that is for ten pound for the use of every hundred pound for every yeare Ledsam being a Prodigall man as it seemes spent the Money and delivered to Andrewe diverse severall obligations every of them containing three severall persons well known to be sufficient being some of them Knights others Gentlemen and Esquires of great Estates and the other good Citizens without exceptions were bound to Andrewe in two hundred pound for the payment of one hundred sixty pound to Andrew at a day to come within six Moneths then next comming as Andrew had used before to lend his Money and delivered the Obligations with Seales unto them and the names of the parties mentioned to be bound by that subscribed and his own name also subscribed as witnessing the sealing and delivery of them as a publique Notary aâ— the good and lawfull obligations of the Parties which were mentioned in them where indeed the parties mentioned in them had not any notice of any of them But Ledsam had forged and counterfeited them as he hath confessed upon his Examination upon Interrogatories administred by the Plaintiff in this Court and at the hearing of the Cause and sentence of that it was moved if Ledsam shaâ—l loose both his Eares or but one for if it be but one forgery then by the Statute of 5. Eliz. Admitting that the Bill is grounded upon this Statute he shall loose an Eare and pay the double dammageâ— and cost to the party greeved And also if Andrew being but the Obligee and not any of the parties in whose names the Obligations were forged if he be such a party greived which shall have double costs and dammages and these doubts were resolved by Coke cheife Justice of the Common Bench where they were moved and Flemming cheif Justice of the Kings Bench that Ledsam should loose but one eare for that shall be taken as one forgery for that it was made at one time and also that Andrew was the party greived within the Statute but Coke said that the Bill was generall that is against the Lawes and Statutes of the Realme and not precisely upon the Statute of 5. Eliz. For he said that when a Bill is founded upon an Act of Parliament that this ought to containe all the branches which are mentioned in the Act the which wants in this Bill but insomuch that it was adjudged in Parliament what punishment such offenders shall have they inflicted the same punishment which is appointed by the Statute and added to that that he should be Imprisoned till he found good Suerties for his good behaviour and also that hee shall be brought to every one of the Kings Courts at Westminster with great Papers in his hatt containing his offence in Capitall letters but the Lord Chancellor expounded the double dammages in such manner that is that they shall not be intended double Interest but only the Principall Debt Note that if Execution be directed to a Sheriffe to Arrest any man or to make Execution within a Liberty And the Sheriffe direct his Warrant to a Bayliffe of the Liberty for to make Execution of the Processe which makes it and after is a Fugitive and not able to answer for that the Lord of the Franchise shall answer for that and shall be liable to answer for his Bayliffe by all the Justices Burdett against Pix IN Debt upon a single Bill by Burdett against John Pix as administrator of Freewen the case was this that is Freewen was bound in an Obligation of thirty four pound to Burdett the Plaintiff and was also bound to one William Pix in 80. l. Freewen dyed Intestate and the Letters of Administration of his Goods were Committed after his Death to the said John Pix the Defendant and the said William Pix also made the said John Pix the Defendant his Executor and died and the Defendant in this Action pleads that the said Freewen was indebted to the said William Pix and that he was his Executor and that he had Goods of the said Freewens sufficient to satisfie the said debt the which he retained for the satisfaction of that and that over that he hath not of his to satisfie him upon which the Plaintiff Demâ—…or that that the Defendant doth not plead that he hath â—…is election to retaine the said goods for the satisfaction of â—…own said Debt before the Action brought and by all the Justices he ought to make his election before the bringing of the Action otherwise he shall be charged with the other Debt See Woodward and Darcyes Case Commentaries 184. a. and 4. Cook 30. Coulters Case Hillary 8. Jacobi 1610. in the Common Bench. Bone against Stretton THe case was this A man seised of two Acres of Land makes a Lease for years of one Acre to one and another Lease for yeares of the other Acre to another and then he enters and makes a Feoffment and severall Liveryes upon the severall Acres and one of the Lessees being present doth not assent to the said Livery and the use of the said Feoffment was not the use of his last Will and then he declares his last Will and by that recites the said Feoffment and then declares the use of that to be to the use of himself for life the remainder over to a stranger and after the Tenant for years which did not assent to the Livery grants his Estate to the Feoffor and the Feoffor dies and Nicholls Serjeant moved first That this enures as a grant of a reversion and that the grant of the perticuler Tenant enures first as an Attornement and then as a surrender of his Estate as if it had been an expresse surrender and all the Justices agreed that this doth not enure to make Attornement and surrender as expresse surrender will for an expresse surrender admits the reversion to be in the Grantee to whom the surrender is made
of a month together or two Moneths to be accounted at severall times in any one year and makes his residence and abiding in any other places by such time that then he shall forfeit for every such default ten pounds the one halfe to the King and the other halfe to the Informer and if the said Doctor Newman was not resident and incurred the penalty of this Statute was the question and it was argued by Haughton that he had incurred the penalty of the Statute and was non-resident within the intent and he argued that to some intent all the Parish may be said the Benefice of the Parson for that that he hath benefit out of it and he is called Parlon of such a Town or Parish but this is not the Benefice that the Statute intends upon which he ought to be resident as in the 29. Assise 55. If a Corrody be granted out of an Abby it shall not be intended out of the seat of the Abby out of the Booke of 29. Assise 8. Where it is said that if a Rent be granted out of a Priory that all the possessions of the Priory are charged as to that he saith it was but it was said and not Judgment and also the said Bookes may be well reconciled for it is more proper that the seate of the Abby shall be charged with the Corrody and the possessions of the Priory with the Rent and also he said there were seven causes of making of the said Statute whereof but two are to our purpose the first is Hospitality second releife of the Poore and these are to be done in the Parsonage house for this is the free Almes of the Church and so it was adjudged 34 of Eliz. in the Kings Bench Broome and Hudson and in this Court also and in this Court also in the 40 of Eliz. in the Kings Bench betwixt Butler and Goodall 6 Coke 21 b. that he ought to be resident upon the Parsonage house and not other where and he allowed and agreed that imprisonment without deceit and sicknesse are good excuses but so it shall not be a prejudice for the Parsonage house is in good repaire And so concluded that judgment shall be given for the Plaintiff And for the Defendant Barker Serjeant argued that it appears by the speciall Verdict that Doctor Newman held the Parsonage house in his own hands and occupation and did not let it upon which he gathered that his servants were resident upon it and to the exposition of the Statute he saith that it appears by Heydons Case 3 Coke 7. a. That the better means to expound Statutes is to consider the mischeife which was at the common Law before the making of that and when it is intended to be reformed by that and this appears by the Preamble of that Statute also he saith that before the Councill of Lateran a man might pay his tithes to whom he would but by the same Councill all the Parish is made the Benefice of the Parson for he receives benefit by that and yet he said that before the said Statute every spirituall man was bound and compellable by the Ecclesiasticall Law to be resident yet if he were in the Kings Service or an Officer in the Chancery he should be excused as it appears in the Register fol. 58. b. Though that he were Dean the which Office meerly requires his personall residence as it is there said and also he saith that the Case between Butler and Goodall was that the Parson demised all the Parsonage house but only one Chamber and was not resident in that but in a Copy-hold within the Town and so prayed Judgment for the Defendant this case was compounded by the Lord Coke but he intended this was no residence within the Statute for this was not his Benefice but the Tenants part of that as he said hath been adjudged in the Exchequer Hillary 8. Jacobi 1610 In Banco Communi Crogat against Morris THE Case was A Commoner brought an Action upon the Case against a stranger for that his Beasts came in and fed upon the Common and by Coke Walmesley and Warburton it lieth very well Foster to the contrary for then every Commoner may have the same Action and then it would be infinite Hillary 8. Jacobi 1610. In Bonco Communi 〈◊〉 against the Lady Saint John Postea 269. SEE for the beginning of this in Michalemas tearme last and that case was argued again by Hutton Serjeant for the Defendant that the parcelling of reversion destroyed the Covenant it was agreed in Winters case in case of condition and he agreed that that Covenant is within the Statute of 31. H. 8. chapter 34. as well as condition and for that Grantee of part of the Reversion shall not have an Action of Covenant for then if there be twenty Grantees every one of them shall have severall Action and this was not the intent of the Statute and as to the Common Law before the Statute a thing which gives action cannot be divided and he urged that when the Reversion of Fee simple was first granted if he may by that have an action then when the Reversion of the tearm was granted he may have another action and so a man may have two severall actions for one thing see 29. Assise 23. Three Coparceners were and Rent of five pound was allotted to two of them equally to be divided that is fifty shillings to one and fifty shillings to another and they two joyned in an Action and it is doubted if the Writ shall abate or not and 44 Ed. 3. 34. b. The Abbot of Westminster◠Case the Abbot made a Lease of a Mannor except the Wood and after by another Deed he let the Wood and the Lessee made Wast in the Mannor and the Wood and he brought one Action of Wast and it is not good and he agreed that one Formedon yeth upon two discontinuances for there was but one discontinuance and that is the cause of the Action but a man cannot have a Writ of Warrantia Charte upon two Deeds no more in the◠principall case for the Plaintiff hath his Title by two Deeds and so concluded and prayed Judgment for the Defendant Harris Serjeant argued of the other part for the Plaintiff that an action of Covenant lieth very well for the originall Lease was but one intire Lease and the Covenant was also intire and for that the Grantee of the Reversion shall have advantage of that and he agreed that in reall actions which alwaies are grounded upon the title and for that if it be grounded upon two titles he ought to have 2. actions according to his title but in personall actions where the action is grounded upon the deed another matter which comes Ex post facto which is the wrong which is the cause of the action for which damages I shall be recovered as it is said in Blakes Case 44. 6 Coke and this is the reason that a man may
Cletherwoods Case of the Middle Temple but he said that Prescription to have all the Vesture of the Land is good for such a time and at the first day of the Argument of this Case Foster Justice seemed that the prescription was good and might have reasonable beginning that is by Grant as if they have Common together and they agree that one shall have all for one part of the yeare and the other for another part of the year and that shall be good to which Coke answered that that cannot be by Prescription to have that as Common and at another day Coke cited Shirland and Whites Case to be adjudged 26 of Eliz. in the Kings Bench to be prescription to have common in the Waste of the Lord and to exclude the Lord to have common in the place and adjudged to be void prescription and also he cited a case between Chimery and Fist where prescription was to have common in the Soile of the Lord and that the Lord shall have feeding but for so many cattell and adjudged that the Prescription was not good to exclude the Lord but a man may prescribe to have the first Crop or the first Vesture of anothers Land and it is good and with that agrees the resolution in Kiddermisters Case in the Star-Chamber Warburton justice said that this prescription is not for the excluding of the Lord but for their good ordering of their Lands according to the Book of 46 Ed. 3 25. before cited that the great Cattell should have the first feeding and after that the sheep Coke said that if it had appeared by the pleading that all the Demesnes of the Lord ought to be common and in consideration that the Lord had inclosed part and injoyed that in severall the Free-holders and Tenants of the Mannor which have Common over all the Residue and exclude the Lord and this shall be good by prescription and it is adjourned see 15 Ed. 2. Fitzherbert Prescription 51. And afterwards in Trinity Tearme 1612. 10. Jacobi this case was moved againe and all the Justices agreed as this Pleading is Judgment shall be given for the Plaintiff and they moved the parties to replead Pasch 9. Jacobi in the Common Bench. Portington against Rogers Trin. 8. Jacobi Rot. 3823. MARY Portington brought a Trespasse against Robert Rogers and others Defendants for the breaking of her house and Close upon not guilty pleaded and speciall Verdict found the Case was this A man had Issue three Daughters and made his Will in writing and by that devised certain Land to the youngest Daughter in taile the Remainder to the Eldest Daughter in taile the Remainder to the middlemost daughter in taile with Proviso that if my sayd daughters or any of them or any other Person or persons before enamed to whom any estate of Inheritance in possession or Remainder of in or to the said Lands limited or appointed by this my last Will and Testament or to the Heires before mentioned of them or any of them shall joyntly or severally by themselves or together with any other willingly apparently and advisedly conclude and agree to or for the doing or execution of any Act or Devise whereby or wherewith the said Premises so to them intailed as aforesaid or any part or parcell thereof or any estate or Remainder thereof shall or may by any way or means be discontinued aliened or put away from such person or persons and their Heires or any of them contrary to mine intent and meaning in this my Will otherwise then for a Joynture or shall willingly or advisedly commit or do any act or thing whereby the premises or any part thereof shall not or may not discend remaine or come to such persons and in such sort and order as I have before limited and appointed by this my last Will and Testament then I will limit declare and appoint that then my said Daughter or Daughters or other the said person or persons before named and every of them so concluding and agreeing to or for the doing or execution of any such act or Devise as is aforesaid shall immediately from and after such concluding and agreeing loose and forfeit and be utterly barred and excluded of and from all and every such Estate Remainder and benefit as shee or they or any of them should might or ought justly to have claime Challenge and demand of in or to so much thereof as such conclusion or agreement shall extend unto or concern in such manner and forme as if she or they or any of them had not been named nor mentioned in this my last Will and Testament and that the Estate of such person c. shall cease and determine c. And after that the youngest Daughter tooke a Husband and then shee and her Husband concluded and agreed to suffer a Recovery and so to barr the Remainder and upon that the Plaintiff being the eldest Daughter entred and upon the Entry brought this Action And Harris Serjeant argued for the Defendant that this shall be a condion and not a limitation and he said that Mews and Scholiasticas Case is not adjudged against him see the Commentaries 412. b. And it shall be taken strictly for that that it comes in Defesans of the Estate and then admitting it is a condition it is not broken for this conclusion and agreement is only the agreement of the Husband and though that the Wife be joyned yet be that for her benefit or prejudice that shall be intended only the Act of the Husband and he only shall be charged as in the 48 Ed. 3 18. Husband and Wife joyne in Contract and the Husband only brings Action upon that and 45 Ed. 3. 11. Husband and Wife joyne in Covenant and the Action was brought against them both and it was abated for that shall charge the Husband only 24 Ed. 3. 38 The Husband and the Wife joyne in an Action upon the Statute of Laborers and the Writ abated and so in cases of Free-hold as 15 Ed. 4. 29. b. The Husband and the Wife being Tenants for life joyne in praying aid of a stranger and this shall be no forfeiture of the Estate of the Wife and 48 Ed. 3. 12. a. Statute Merchant was made to the husband and Wife and they joyned in Defeasans that shall not be Defeasans of the Wife and 28 H. 8. Dyer 6. The Husband of the Wife Executrix aliens the Tearme which was let to the Testator upon condition that he or his Executors should not alien and by Baldwin by the alienation of the Husband the Condition was not broken for it was out of the words so here the agreement and conclusion being made by Husband and Wife shall be intended the Act of the Husband only and so out of the Words and by consequence out of the intent of the Condition and shall be taken strictly but he seemed that the Condition shall be void for the Words conclude and agree are words uncertain for what
shall be said conclusion and agreement within the said Provision and for that as it seemes it is so uncertain as going about but admitting that it is good yet it shall be good but to some purpose but not to restraine the Daughter which was Tenant in taile to do lawfull Acts as to suffer a Recovery or to levy a Fine as it is resolved in Mildmayes case 6 Coke 40. By which it appears that she hath as well power to dispose that by Recovery as of Fee simple notwithstanding that the Reversion remaines in the Giver as it appears by 12 Ed. 4. 3. For all lawfull Acts made by Tenant in taile shall binde the Issue as 44 Ed. 3. Octavian Lumbards Case Grant of Rent for Release of right is good and shall binde the Issue for there are foure incidents to an Estate tayle First That he shall not be punished for Waste Secondly That his Wife shall be indowed Thirdly That the Husband of the Wife Tenant in Tayle shall be Tenant by the Courtisie Fourthly That Tenant in Tayle may suffer common recovery So that a Condition which restraines him so that he cannot suffer a common Recovery is void for it is incident to his act and it is a lawful Act and for the benefit of the Issue as it is intended in respect of the intended recompence and he said that a Feoffment to a woman covert or infant shall be conditionall that they shall not make a Feoffment during their disability is good for that the Law hath then made them disable to make a Feoffment so a Lease for life or years upon condition that he shall not alien is good in respect of the confidence that was reposed in them by the Lessor and so concluded that the Condition in this Case which restraines Tenant in Taile generally from alienation First was uncertain in respect of the words conclude and agree Secondly for that it was against Law so void and for that prayed Judgment for the Defendant Hutton Serjeant for the Plaintiff he argued that the verball agreement of the Wife shall bind her notwithstanding the Coverture for that that this is for her benefit for in performance of the said agreement she suffers a recovery to the use of her selfe and her Heires and so Dockes the remainder and he agreed the cases put by the other part which concerne free-hold but he said in cases of Limitation of Estates as if Limitation be if a Ring be tendred by a woman that the Land shall remaine to her and she takes a Husband and after that she and the Husband tender the Ring this shall be sufficient tender and it shall be intended the Act of the wife and 10. H 7. 20. a. A man devises his Lands to a married woman to be sold she may sell them to her Husband And though that it be not any agreement of the Husband only yet here is an act done in a Precipe brought against the Wife and she vouches over for that is not only an agreement but an Act executed upon which the Estate Limited to the eldest Sister shall take effect and the 2. Coke the 27. a. Beckwiths Case If the Husband and the Wife joyne in a Fine of Land of the Wife the Wife only without the Husband may declare the use of that And he intended it was a Limitation and not a condition and so it might be well at this day in case of devise and then the Act shall be that the Estate is Limited to have beginning being made the Estate of the youngest Daughter which made the Act shall be destroyed and determined for if it be a condition then all the Daughters shall take advantage of that and this was not the intent of the Devisor for they are the parties which should be restrained by the devise from Alienation And also he cited Wenlocke and Hamonds Case cited in Bractons Case 3. Coke 20. b. Where a Copy-holder in fee of Lands devisable in Burrough English having three Sons and a Daughter deviseth his Lands to his eldest Son paying to his Daughter and to his other Sons forty shillings within two yeares after his death the Devisor maketh surrender according to the use of his Will and dieth the eldest Son admitted and doth not pay the money within the two yeares and adjudged that though the word paiment makes a condition yet in this case of devise the Law construes that to a Limitation and the reason is there given to be for that that is it shall be a condition then that shall discend upon the eldest Son and then it stands at his pleasure if the Brothers or Sister shall be paid or not and 29. Assis 17. cytes in Nourse and Scholasticas Case Commentaries 412. b. where a man seised of Lands in Fee devisable deviseth them to one for life and that he should be Chapleine and single for his Soule all his life so that after his decease the sayd tenements should remaine to the Commonalty of the same Towne to finde a Chapleine perpetuall for the same Tenements and dyed and adjudged that this shall not be a condition of which the heir shal take advantage but limitation upon which the remainder shall take effect and also he cyted S. E. Clâ—ers Case 6 Coke 18. a. b. 11 H. 7. 17. Pennants Case 3 Coke 65. a. That if a man makes a Lease for years upon a condition to cease that after the condition is broken grantee of reversion may take advantage of that so he said in the case at the Bar when the first Estate is determined and destroyed by the limitation then he to whom the Remainder is limited shall take advantage of that and not the Heire for as he intended an Estate of Inheritance may as well cease by limitation of devise as tearme as in 15 Ed. 4. Lands are given to one so long as he hath heires of his body the remainder over and if he dye without heires of his body the remainder over shall vest without entry and the Free-hold shall vest in him and 2 and 3. Phil. and Mary Dyer 127. and 56. Fisher and Warrens Case If a man devise Lands to one for life the remainder over upon condition that if he do such an act that his estate shal cease and he in remainder may immediately enter there he in remainder shall take advantage though he be a stranger for that that the Estate determines there without re-entry And he saith that the Case of Wellock and Hamond cyted in Barastons Case was a stronger Case then this for there the limitation was upon Fee-simple and here it is upon an Estate tayle and the Law hath favourable respect to devises as in Barastones Case is alteration of words for the better exposition of that for Shall is altered to Should and also see 16 Eliz. Dyer 335. 29. for the marshalling of absurd words in a Will for the expounding of that and 18 Eliz. Cheekes Case he cyted to be adjudged that
if a man devise his Lands to his Wife and after her death to his Son and the remainder to his sayd Wife in Fee-simple the Husband of the Wife having Issue shall not be Tenant by the Curtesie for alwayes the Judges have made such favourable construction of Wills that if Estates devised by Will might be created by act executed in the life of the party then it should be good by devise and to the objection that conclusion and agreement is uncertaine and so for that shall be voyd he saith that it is not so uncertaine as going about or resolve and determine an attempt or procure as in Corbets Case first of Coke 83. b. or as attempt or endeavour as in Germins and Arscotts Case there cyted fol. 285. a. See 6 Coke 40. a. Mildmayes Case and also the words subsequent are repugnant that the Estate tayle shall cease as if the Tenant in tayle were dead and not otherwise which is absurd and repugnant for the Estate tayle doth not determine by his death if he doe not dye without Issue And also he sayd that it is more reasonable that the perpetuity in Scholasticas Case for here the limitation depends upon agreement which is a thing certaine upon which the Issue may be joyned and also the condition doth stand with the nature of the Estate tayle and for the preservation of it and Recovery is against the nature of it for this destroyes the Estate tayle and is onely a consequent of it and not parcell of the nature of the Estate and this is the reason that Littleton saith That an Estate tayle upon condition that he should not alien is good for that preserves the Estate and also preserves Formedon for him in reversion if there be a discontinuance and with that agreed 13 H. 7. 23. 24. and he sayd that there was a Judgement in the point for his Clyent for another part of the Land and he cyted 31 Edw. 5. Fitz. Feoffment placito the last and Fitzherberts Natura brevium Ex gravi querela last Case and so concluded and prayed judgement for the Plaintiff and this Case was argued againe by Shirley Serjeant for the Defendant and he intended that the agreement is voyd to the Wife and shall be intended the agreement of the Husband onely for a marryed Wife cannot countermand Livery 21 Assis 25. and if a Woman makes a Feoffment upon condition to enfeoff upon request made by her and she takes a Husband she cannot make request after coverture 35 Assisarum So that he intended that this shall be intended the agreement of the Husband onely and not of the Wife and yet he argued that Declaration of a use by a marryed Wife shall be good according to Beckwiths Case But he sayd That the reason of that is for that that she is party to the Recovery which is a matter of Record and as long as the Record remaines in force so long the Declaration of the use shall be good and also he argued that if the condition being that if the Wife conclude or agree to any act to make discontinuance that then c. that that shall be intended unlawfull acts and Recovery is no unlawfull act and for that shall not be within the restraint of the Condition as the Earl of Arundels Case 17 Eliz. Dyer 343. and admitting that it is a limitation yet it shall be of the same nature as a condition and as well as a condition that Tenant in tayle shall not suffer Recovery is voyd So also is such Limitation void and so it was intended before the Statute of Donis Conditionalibus and it appeares by the pleading that the parties did not intend to take advantage of the agreement for it is pleaded that at the time of the Recovery suffered the youngest Daughter was seised of an estate tayl the which could not be if her estate were determined and destroyed by the agreement and conclusion so that the last words make the Forfeyture for the first are not unlawfull and before the execution of the Recovery the estate tayl is determined and so he concluded and praied Judgement for the Defendant Barker Serjeant argued for the Plaintiff It shall be intended a Limitation and not a condition for a Will shall have favorable construction according to the intent of the Devisor for a Joyntenant may devise to his Companion 49. Ed. 3. and Fitz. Na. Bre. Ex gravi querela last case A man devises Land to his Wife for life upon condition that if he marry that it should remain over to his Son in tayl and the Wife marries and the Son in remainder sues Ex Gravi querela by which it appeares that it was a Limitation and not a condition and 34 Ed. 3. devise was to one for life upon condition that if his Sonn disturbed him that then it should remaine over in taile upon disturbance he in Remainder in tail brings Formedon by which it appears it was a Limitation and with that agrees all the Justices in 29 Assisarum 17. And Wellock and Hamonds Case cited in Barastons Case before and 18. Eliz. Dyer If Land be limited to no third person by the Devise then the Heir shall enter for breaking the condition and also he said that it appears by Littleton and 13 H. 7 23. and 24 and 20 H. 7. and 17 Eliz. 343. the Earle of Arundells case which conditioneth that Tenant in taile shall not alien standeth with his Estate but not with Fee simple and so it is adjudged in Nowes and Scholasticas Case which is adjudged in the point which as he saith cannot be answered and the Words of the Condition are not that her Estate taile shall cease as if shee had been dead but as if she had not been named which is not so repugnant or absurd as the other and this compared to 34 Ed 3. Where the Estate was limited till it was disturbed And he also argued that the agreement of the Wife shall be a forfeiture notwithstanding the coverture for when the Estate is granted upon such condition he which hath the estate shall take it subject to the condition as if two Lessees are and one Seals the Counterpart onely yet the other shall be bound by the Covenants contained in it and 33 H. 6. 31. a Woman disavows to be Executor notwithstanding that shee was marryed and if Precipe had been brought against the Husband and Wife the default of the Husband shall binde the Wife and so she shall be punished for waste made during the coverture and so concluded and prayed judgement for the Plaintiff Foster Justice that an Estate of Free-hold shall not cease by agreement or conclusion without entry for it is a matter of Inheritance and Free-hold and it is not like to 33 H. 6. 31. which concerns Chattels and Goods and Walmesley Justice accorded with him Warburton Justice it hath been adjudged in Scholasticas Case that the condition was good and therefore he would not deliver his
opinion without argument Coke cheif Justice that the agreement is void to a Woman married for then she was married to a Husband whom in her life she could not contradict and a Devise upon Condition that if she conclude or agree as this Case is is void for it is a bare communication upon which the Inheritance doth not depend and so he said it hath been twice adjudged 6 in Corbets Case and Germins Case and Arscots Case and Richells Case in Littleton it was upon condition that he should not alien and this was adjudged to be void but yet if the condition were if he alien and not if go about or intend or conclude or agree as in the case at the Bar for there is no such case in all our Bookes as this Secondly For that that the Words are if they do any act that then the Estate shall cease and this is repugnant for when the Act is done then the Estate tayle is Barred and cannot cease but if it had been but a Feoffment then the right had remained and he said that such a condition had been void before the Statute of Donis Conditionalibus when it was but Fee simple Conditionall be it a Condition or a Limitation and he said that Scholasticas Case is of Fine which is only discontinuance till the Proclamations are past and if dead before may be avoided by Remitter in Germins and Arscotts Case the Condition was that if he go about or indeavour and this was adjudged to be void though that it be in devise in respect of the uncertainty and he said that the agreement or conclusion is so uncertain and may be well compared to that for here the Estate shall cease by the agreement as well as it may cease by the going about also he seemed that the Freehold cannot cease without entry for if use cannot cease without entry as he intends much lesse a Free-hold cannot though it be by Devise and he seemed that it shall be no limitation but a Condition and Judgment accordingly if cause be not shewed the next Tearm and in Trinity Tearme then next insuing this Case was argued againe by Dodridge Serjeant of the King for the Plaintiff and he said that there are three questions to be disputed First If it be a good limitation Secondly If the recovery be a breach of that Thirdly Admitting that it may be broken if the agreement of the Husband and the wife shall be said to breake it and to the first he seemed that it is a limitation and not a condition and such a Limitation that well might be with the Law and that it is a Limitation it is agreed in Scholasticas Case Commentaries and the reason of the Judgment there is that if the intent of the Devisor appears that another shall take benefit of that and not the Heire that then it shall be but a limitation and not a Condition and he in remainder shall take benefit of that and for that in the principall case Mary the Eldest Daughter to whom the Remainder was limited shall take benefit of that and with this agrees the case of Fitz. Na. Bre. Ex gravi querela last case that if a man devises Lands to his Wife for life upon condition that if she marry that the Land shall remain over and after she marryes and he in Remainder sues by Gravi querela by which it appears that it is a limitation and not a condition and with this agrees 2. and 3. P. and M. 127. Dyer Jasper Warrens Case where a man devises land to his Wife for life upon condition to bring up his Sonn Remainder over and agreed to be a limitation and not a condition and so he concluded this first point that it is a limitation and not a condition Secondly that it is a lawfull limitation for there is not any repugnancy in that as it is in Corebts before cited for there are no words of going about for he agreed that this is absolutely uncertain and void and so is Germin Arscots case where ther is not only a going about but repugnant going about for he ought to go about and before discontinuance and then his Estate shall be void from the time of the going about and before discontinuance but here it is upon conclude and agree plainly and apparently and conclude and agree is issuable and a Jury may try that and it will not invegle any man but the Law will not suffer Issue upon such uncertainty as going about or purposing but Attornements and Surrenders are but agreements and yet are Issuable And so in the principall case and in Mildmayes Case 6 Coke it is agreed that a condition that a Tenant in taile shall not suffer a Recovery is void for Recovery is not restrained by the Statute of Westminster 2. but here it is not so but in generall that he shall not conclude or agree to alien or discontinue but that which cannot be a condition good in the particular may be good in the generall as Littletons Case gift in taile upon condition that he should not alien is good otherwise of Fee simple with which 10 H. 7. 11. and 13 H. 7. 23. 24. accordingly Thirdly That it is a breach of the limitation Condition that alienation and discontinuance be by Recovery which is a lawfull act and it is a priviledge incident to the Estate taile and though that the agreement was made by the Husband and the Wife during the Coverture and so should be if the Husband and the Wife had levied a Fine see 10 H. 7 13. Condition that if the condition had been expressed that they should not levy a Fine had been void and here this verball agreement betwixt the Husband and the Wife and the third person shall be for Forfeiture of their Estates for this is the agreement of the Wife as well as of the Husband as it appears by Becwithes Case 2. Coke before cited where the Husband and the Wife agree to levy a Fine and that the Fine shall be to the use of the Connusee this is good declaration of the use though that it be of the Land of the Wife and during the Coverture and cannot be avoided by the Wife after the death of her Husband for it was the agreement of the Wife though it be not by any Indenture to declare the use of the Fine so many acts in the Country made by the Husband and the Wife shall be intended the act of the Wife as well as of the Husband as in the 17 Ed. 3. 9. The Abbot of Peterboroughs Case the Husband and Wife granted Rent for equality of partition and this shall binde the Wife after the death of the Husband for it is her act as well as the act of the Husband and shall be intended for her benefit and so here by the Recovery the Wife shall be Tenant in Fee simple which was Tenant in taile before and 34 Ed. 3. 42. feoffment to a married Wife upon
his Writ and that the eldest Brother hath nothing in the Land Judgement was had against a Defendant in Debt and Capias to satisfie awarded and Non est inventus returned and Scire facias awarded against the Bayl and upon the first Scire facias the principall Defendant yeelds his Body in execution and it was very good for before that the Bayl had no day in Court and in the Kings Bench if the Defendant yeelds his Body upon the second Scire facias it shall be accepted And if a man be Bayl upon a Writ of Error if the Judgement shall not be reversed he shall be in execution againe It was objected by Hutton Serjeant that the Scire facias is against the Bayl to know why the execution shall not be awarded against the Bayl and that ought to be delivered to the Sheiriff before the day of the returne or otherwise it shall be Erroniously awarded and then the party may yeeld his Body to Prison at any time and discharge his Bayl and agreed that Bayl in this Court may be released Accompt doth not lie for any sum certaine Pasch 9. Jacobi 1611 in the Common Bench. John Reyner against Powell See Hillary 8. Jacobi 136. HAughton Serjeant argued that there shall be a good Estate tayl of a Copy-hold and that by the custome after the making of the Statute of Westminster 2. And he agreed that at the Common Law all estates were Fee simple absolute or conditionall and that the estates tayl were created by the Statute of Westminster 2. And do not exclude customary estates as it appeares by Littleton who saith that Tenant at will by copy of Court Roll by custome may be in Fee simple and so of estate tayl and with this agrees many other Authors 15 H. 8. b. Tenant by Copy-hold of Court Roll resolved in the point and that a Formedon in the discender lieth for that and as the Statute of Westminster 2. divides estate tayl and Fee simple So may custome of a Mannor as well as custome make an estate at will which is personall and determines by the death of any of the parties to discend and as well as the custome of London of not moving things fixed is created by custome as well may Formedon be created by Custome and also the Statute is that gives Cui in vita extends to a Copy-hold so the Statute of Limitation as it appeares by Brooke Limitation 5 Ed. 6. And with this agrees also Heydons Case and though that the words are Voluntas Donatoris in the Charter c. Yet the estate tayl may be created by devise So that the Statute shall not have such literall construction and as well as a Lease for a hundred yeares may be within the Statute of 11. H. 7. Which speakes only of discontinuances as it appeares by Sir George Brownes Case 3. Coke So may a Copy-hold estate which is but an estate at will be within the Statute of Westminster 2. and it is confest by the other part by pleading that he was seised in tayl according to the custome of the Mannor and it is not pleaded that he had Issue at the time of the Alienation and the other party claimed by the Alienation the which was not good if he had no Issue at the time of that if he had but Fee simple conditionall and so concluded and praied Judgement c. Dodridge Serjeant of the king saith that the reputation of the estate consists upon two parts first the name secondly the nature of the estate tayl and for both the makers of the Statute of Westminster 2. bad no intention that this should extend to Copy-hold and first for the name which gives the being he cited Fitz. Natura Brevium 12. C. where it is sayd that Copy-Tenants or Copy-holders or Tenants by copy is but a new Terme found for of auncient times they were called Tenants in Villenage or of base tenure as this also appeares by the old Tenures by which it appeares that then they were called and named Tenants which held in Villenage or of base tenure and Bracton booke 2. chap. 8. in the end speakes of that and calls them Villaines Sokemaines and that if such a Tenant will transfer his Tenement let it be delivered into the hand of the Lord or his Steward and he wrote immediately before the Statute of Westminster 2. and agreed with Fitz. Na. Bre. And also Bracton booke 4. fol. 209. Saith that such Tenants have used to Plow the Demesnes of the Lord and calls and names them as before and 4. Ed. 1. He is called Customarius So that Custome doth not make the certainty of his estate if he hath any and he said that 42. Ed. 3. 25. is the first in Law in which is any mention of these Lands and there they are called Neists Lands and 14 H. 4. 323. a. they are called Sokemaines by base Tenure and Lambert calles it Folkland by which and severall names he saith that the basenesse of the Estate appeares And to the estate he saith that originally it was but at the will of the Lord though that it be according to the Custome of the Mannor So that the Lord cannot put him out if he performe the services And the Register doth not respect him for he hath not framed any Originall for him to give him remedy by the Common Law but only in the Court of the Lord though that erronious Judgement be given Also he cannot prescribe but in the name of the Lord as it appeares by 18. Ed. 3. Fitz. prescription that such estates which are incident to Fee simple as Dower not Tenants by the Curtisie cannot be derived out of this without Custome nor that warranted So that his reputation appeares by his name and also by his nature Also he intended that the makers of the Statute of Westminster 2 did not intend that the Statute should extend to this for it is Oppositum in Objecto for Custome is without time of memory And the Statute of Westminster 2. was made 13. Ed. 1. the beginning of which every one knowes Also the Statute of Westminster 2. doth not extend to any Lands but those which the Tenant might have aliened before the Statute But the Copy-holder had not any power to alien for the Lord ought to be his Instrument and hand as Bracton saith to alien transfer he cannot but by the hands of the Lord and it must be restored to the Lord the words of the Statute are The will of the giver in the Charter c. So that the Statute intends such Lands which may passe by Deed and Fine and devise his Deeds and the Deed extends to them for a Fine is Chirograph and devise to be made by copy of Court Roll is not so for that is only of Acts made in the Court of the Lord it cannot be within the Statute for Copy-hold ought to be held of the Lord and Tenant in tayl shall hold of the giver and so
cannot a Copy-holder which hath so base an estate And if this shall be so these mischeifes will insue That is that this base estate should be of better security then any estate at the Common Law for Fine shall not be a Barr of that for it cannot be levied of that also Recovery cannot be suffered of that for there cannot be a Recovery in value neither of Lands at the Common Law neither of Customary Lands for they cannot be transferred but by the hands of the Lord. And to Littleton he agreed and also 4 Ed. 2. which agrees with this where it is said that at Stebenâ—eath a Surrender was of Copy-hold Lands to one and the Heires of his Body but he said that that shall not be an Estate taile for then the Estate hath such operation that this setles a Reversion and Tenure betwixt the Giver and him to whom it is given but this cannot be of Copy-hold Land for this cannot be held of any but only of the Lord and to the others this Estate doth not lye in Tenure and yet he agreed that of some things which did not lye in Tenure Estate Tail may be but Land may be intailed but Copy-hold Estate is so base that an Estate tail cannot be derived out of it so that though that custome may make an Estate to one and the Heires of his Body yet this cannot be an Estate taile but Fee-simple conditionall and also he agreed that they might have Formedon in Discender but it is the same Formedon which was before the Statute as if Tenant in Fee-simple conditionall before the Statute would alien before issue but it was no Estate taile with the priviledges of an Estate taile before the Statute and to the other matter of Surrender that is the admittance of the parties which is an Estate taile that doth not conclude the Court as it appears by the Lord Barkleys Case in the Commentaries where the Estate pleaded severally by the parties is not traversed by any of them and so concludes and prayes Judgment c. And this case was argued again in Trinity Tearme next ensuing by Montague the Kings Serjeant for the Defendant and he said that there are three questions in the case First If Copy-hold land may be intailed Secondly Admitting that it may be intailed if Surrender makes discontinuance Thirdly If it shall be Remitter and to the first he seemed that it might be intailed and that it shall be within the Statute of Westminster 2. And first for the Antiquity of that he said that Littleton placed that amongst his Estates of Free-hold and hath been time out of minde and is a primitive Estate and not derived out of the Estate of the Lord and the Lord is not the Creator of that but the means to convey that after that it is cerated and what is created then shall have all the priviledges and Benefits which are incident to it and shall be nursed by the custome and is time out of minde and the Law alwaies takes notice of it and he cited 24 H. 4. 323. by Hankf Bracton Fitz. Na. Bre. 12 C. and Brownes Case 4. Coke which is not simply an Estate at the will of the Lord but at the VVill of the Lord according to the custome of the Mannor and when it hath gained the reputation of Free-hold then it shall be dircted according to the rules of the Common Law and 2. and 3. P. and Ma. Dier 114. 60. allow Copy-hold Estate to be intailed and he saith That no Statute hath more liberall exposition then the Statute of Westminster 2. 45. Ed. 3. Incumbrance shall not charge the Issue intaile also a Copy-holder shall have a Cui in vita also a Copy-hold is within the Statute of Limitation and so upon the Statute of buying of pretenced rights And it is alway intended when a Statute speakes of Lands and Tenements that Copy-hold Lands shall be within that And he saith That all the Objections which have been made of the contrary part are answered in Heydons Case but he relyed upon that that every reall Inheritance is within the Statute of Westminster 2. 4 Ed. 2. Formedon lyeth of Copy-hold Land 25 Ed. 3. 46. Estate tayle is of a Corrody and office which proves that Copy-hold is a reall Inheritance and for that shall be within the Statute 46 Ed. 3. 21. Gavelkinde Land may be intailed 6 Rich. 2. Avowry 2. 8. Rich. 2. 26. Copy-holder shall be charged with Fees of a Knight at Parliament 22 and 23. Eliz. Dier 373. 13. Lands in ancient Demesne were intayled and he said that the reason is that for that it is Inheritance and time hath applyed them to an Estate and so concluded and prayed Judgment for the Defendant Hutton Serjeant argued for the Plaintiff that Copy-hold Lands cannot be intailed for that is but a customary Estate and the Law doth not take any notice of it but onely according to Custome for there were no Estates tayle before the Statute for then all were Fee simple absolute or conditionall that is either implyed or by limitation which cannot be of an Estate tayle which is not within the Statute of Westminster 2. for no Actions are maintainable by that but those which are by the Custome and a Writ of false Judgment See Fitzherberts Natura brevium 12. 13 Ed. 3. F. Prescription 29. that it hath no Incidents which are incident to Estates at the Common Law without Custome as Dower See Revetts Case and so is Tenancy by the Curtesie and there shall be no discent of that to take away Entry and so of other derivatives And he seemed that it is not within the Statute for three reasons apparent within the Statute First That it is hard that Givers shall be barred of their reversions but in case of Copy-holds the Giver hath no remedy to compell the Lord to admit him after the Estate tayle spent but onely Subpena and in this Case the Lord may releive himselfe for the losse of his services for that the Statute provides no remedy for him Secondly That the Statute doth not intend any Lands but those of which there is actuall reversion or remainder and those which passe by Deed so that the will of the Giver expressed in the Charter may be observed and of which there may be a subdivision as Lord Mesne and Tenant for there shall be alwayes a reversion of the Estate tayle and the Donee shall hold of the Donor and not of the Lord. Also it seems that the Statute doth not intend to provide for any but those for whom the VVrit in the Formedon ordained by the Statute lyes and agreed that for Offices and such like Formedon lyeth if the party will admit Estate tayle to be discontinued Also the Statute intends those things of which a Fine may be levyed for the Statute provides that the Fine in his owne right should be nothing but by Copy-holder Fine cannot be levied and for that he shall not be within the
that yet the Copy-holder hath nor forfeited his Estate for the Trees and the Mannor are granted by severall Grants and for that though that they are by one selfe same Deed yet by that the Trees are severed from the Mannor and the Trees are the cause of the forfeiture and they are no parcell of the Mannor as in 31 Edw. 3. Assis 441. by sale of a Castle the services are extinct So here the forfeiture cannot accrue to the Mannor when that commeth by reason of Trees which are severed by reason of severall Grants and he thought that the Grant shall be taken more strong against him which made it as if a man in the Premises give Fee-simple to have in tayl the Estate tayl shall be precedent and the Fee-simple depending upon that so if a man have the next avoydance of a Church and the Church becomes voyd and after he purchase the Advowson yet the Presentation remaines as it was before for that is the best thing and so it is resolved in Herlackendens Case 4 Coke 63. b. That if a man makes a Lease for yeares of Land except the Trees and after grants the Trees to the Lessee that the Trees are not reunited to the Land and so he concluded that it shall be no forfeiture and prayed Judgment for the Defendant and this Case was argued againe Michaelmas 9 Jacobi by Shirley for the Plaintiff that the first custome was voyd insomuch that he claimed to doe a greater thing then his Estate would warrant as in 35 H. 6. Custome that if one Pawne the Goods of another that he which hath them Pawned may keep them whosoever they were is not good as Custome that the Tenant in tayle may devise is voyd for his Estate will not warrant it and it is prejudice to the Tenant in reversion So Custome that Copy-holder shall have Common and another Custome that none shall put in his Beasts till the Lord put in his 2. H. 4. 24. Also there is no Fine Limited to be tendred by the Tenant or to be demanded by the Lord And if a Copy-holder refuse to pay his Fine it is a Forfeyture and if the Custome do not provide for the Fine of the Lord as for the Copy-holder the Custome shall be void Also here cannot be admittance for Littleton saith that the sole meanes to transfer Copy-hold is by Surrender And here if the Custome should be good the copy-hold should be transferred by Nomination only and so the Lord should be Defeated of his Fine and it seemes also that the second Custome is void for it is contrary to the Estate of a copy-holder to sell all the Trees but he agreed that he might have Estovers for houseboote and hedgboote as it was adjudged in Swayne and Becketts Case and he cited the 19. assis Where a Commoner made a Lease for life and void for that that the Estate would not support it 9. H. 6. 56. and 11. H. 6. 40. Prescription to sell Estovers is void for Estovers are appropriate to a house And also it was adjudged in this Court between Poltocke and Powell that a copy-holder for life cannot prescribe to sell the Trees for it is contrary to his Estate as if a Custome be that if a Feoffor die his Heire within age that he shall be in Ward as 8. H. 6. And he thought that the Nomination was no alteration for he to whom the Nomination is made hath only an Estate for life when the Nomination is made and that doth not warrant the sale of the Trees and to the third it seemes that the Lord of the Mannor bargaine and sells the Trees and after lets the Mannor to the bargainee for years and then copy-holder makes wast he thought that the Trees were not severed from the Mannor as in 33. H. 8. 48. Dyer 2. if a man bargaine and sell a Mannor and after in the same Deed makes a bargaine and sale of an Advowson appendant this remaines appendant So if a man bargaine and sell a Mannor and also the Trees do not passe till Livery be made of the Mannor So if Lessee for yeares gives and grants the Land and makes a Letter of Attorney to make Livery the tearme passes without Livery and then it is a Forfeyture And here the Lessee shall have the benefit of Shade and Burrough and the Trees themselves during the Tearme as parcell of the Land and then when the copy-holder hath done more then his Estate will warrant this is a forfeyture and the Lessee shall take the advantage of it and so he praied Judgement for the Plaintiff Harris for the Defendant that the Customes are good but admitting that so yet the Plaintiff shall not take advantage of it and he argued that Custome ought to have two properties first reasonable secondly ought to have time to make that perfect and then shall be good as it appears by the examples of Littleton f. 37. of Burrough English and Gavelkind and custome may be against common right but not against common reason which is the common Law 8 Ed. 4. 18. 21 Ed. 3. 4. And he intended here that the second custome is good if the first be good for then it is perpetuall Free-hold and Copy-hold Estate of Inheritance is but an Estate at will at the Common Law and yet such Copy-holder may dispose the Trees as well as custome may create the Estate as well may it give such priviledge as custome may warrant the taking of Toll for passing over the soile of another 22 Assise 58. And so custome to have the Foldage of the Beasts which feeds upon his soil is good but custome for paying the Goods of another is not good for there is not any recompence but fishing in the Sea and to dig the soile adjoyning for landing of his Nets is good for this is for the publick good 8 Ed. 4. 23. So the custome for turning upon head-land of another is good and is for the preservation of Tilling and also it is between Lord an Tenant and shall be intended to have a reasonable beginning for consideration c. That this continues for he hath Fines and other Services and yet 3 Eliz. 199. Dyer If the Lord claim Harriot of his Tenant and if it be Esloyned alledge custome that he may take the Beasts that he found upon the Land in Withernam and this was adjudged unreasonable custome so 20 H. 7. 13. Custome to have three shillings of a stranger for pound-breach is void but of a Tenant is otherwise for it shall be intended to be a lawfull beginning 11 H. 7. 40. So here the beginning shal be intended to be lawfull and for valuable consideration and for this it shall be good and to the second custome it follows by consequence to be a good custome if the first should be good and then to the third he agreed that Copyholder cannot make wast and if he do it shall be a forefeiture of his Estate as it is said
that the Husband was subject to that then by consequence it was intended that all persons which were chargeable by the common Law shall be chargeable by the Statute and by the action which is formed upon that and by the common Law the Husband was chargeable and by consequence shall be chargeble by the Statute and he intends that there would be difference between actuall wrongs and others which are come by omission and if the VVife be the person which did the wrong then she shall be punished as well by Statute as she was before by the common Law also she shal be out-lawed and it hath been agreed that Ravishment of Ward shall be maintainable against the Husband and the wife if they both are Ravishers and also if the wife be Ravisher before marriage and after takes a Husband the Husband shall be charged with the damages and his Body shall be imprisoned and by consequence shall be abjured also shee may make an Executor by the consent of her Husband but admitting that she could not then the remedy is given against the Heir and she shall be within this Statute as well as other Statutes made in the time of the said King as the Statute of Westminster 1. 37. And shall be a Disseisor with force and shall be imprisoned whether the Husband joyn with her or not as it is adjudged 16 Assise 7. for all Statutes which provide for actuall wrong a married VVife shall be intended within them as it is 9 H. 4. 6. But the pleading of Joyntenancy there the Plea is the act of the Husband and so fayling of Record upon the Statute of 34 Ed. 3. as it is 16 Assise 8. for the Husband propounds the exception but if the VVife propounds the exception then she shall be within the Statute and shall be imprisoned 21 Assise So if a married VVife make actuall disseisin with force she shall be imprisoned 9 H. 4. 7. b. 8 Ed. 3. 52. 22 Ed. 2 Damages 20. 27 H. 6. Ward 118. And so the President Trinity 33 H. 8. Rot. 347. in a case between Thomas Earle of Rutland against Lawrence Savage and his VVife in Ravishment of Ward at the Nisi prius the Defendants make default and the Judgment was that the Husband and the VVife should be taken and upon that he inferred that the Husband should be subject and charged with the damages and so it is taken upon the statute of 35. Eliz. That the Husband shall be charged with Debt for the Recusancy of the VVife and shall be imprisoned for the not payment of it as to the verdict it seems that this is good and it shall be intended the VVard was marryed by the Defendants as in 33 Ed. 3. Verdict 48. It is found by verdict that Mulier enters and resolved that this shall be intended in the life of the Bastard or otherwise it is nothing worth and in Fulwoods case 4 Coke the Jury found that the Defendant acknowledged himself to be bound and that shall be intended according to the statute of 23 H. 8. and so here though that it be not found that the VVard was married by these Defendants yet it shall be so intended notwithstanding that nothing is found but only that he appeared married and so he concluded and prayed Judgment for the Plaintiff This case was sollemnly argued this Tearme by all the Justices that is Coke and Walmesley Warberton and Foster and upon their selemn arguments Coke and Walmesley were of opinion that a married wife is not within the statute and Warberton and Foster were of the contrary opinion and so by reason of their contrariety in opinion the Judgment was staid Trinity 9. Jacobi 1611. in the Common Bench. Burnham against Bayne THE case was A Man seised of divers Lands the halfe of them were extended by Elegit and before Judgement was had against him a new Elegit Awarded and if all the halfe which remaines or but the halfe of that which was the fourth part of all should be extended was the question And it was agreed by all the Justices that but the halfe of that which remaines and not the halfe of all which he had at the time of the Judgement But the halfe of that which he had at the time of the Elegit And if all which remaines be extended the Extent shall be void by all the Justices see 10. Ed. 2 Execution 137 16. E. 2. Execution 118. And here the principall case was A man hath a Rent of forty pound reserved upon a Lease for years and two Judgments in Debt were had against him at the Suit of Sir Thomas Cambell and three Judgments at the Suit of the Plaintiff the halfe was first extended by Elegit upon the first Judgment had at the Suit of Sir Thomas Cambell and after upon the Judgment had at his Suit the halfe of the residue was extended and after upon the Judgment at the Suit of the Plaintiff all the residue was extended and all the Justices agreed that the Extent was void for they ought to extend but the halfe of that which remaines and that was but the fourth part Trinity 9. Jacobi 1611. In the Common Bench. Trobervill against Brent THE Case was A man makes a Lease for yeares rendring Rent and after grants the Reversion for life to which Grant the Lessee for years attornes the Grantee acknowledgeth a statute and after surrenders his Estate the Conusee extends the Statute and distraines for the Rent and in Replevin avowes for the cause aforesaid and adjudged that the Avowry was good Agreed that Creditor may sue the Executors and the Heir of the Debtor also but he shall have but one Execution with satisfaction see the Statute of 23 H. 8. for such course in the Exche quer Note that no Court of Equity may examine any matter of Equity after Judgment which was precedent the Judgment see the Statute of 4 H. 4. chapt 23. Trinity 9. Jacobi 1611. In the Common Bench. Hamond against Jethro THe case was this Edward Hamond was Plaintiff in Debt upon a Bill against VVilliam Jethro and the Bill was made in this manner Memorandum that I VVilliam Jethro do owe and am indebted unto Edward Hamond in the Sum of ten pound for the payment whereof I binde my self c. In witnesse and after the in witnesse it was thus subscribed Memorandum that the said VVilliam Jethro be not compelled to pay the said ten pound untill he recovers thirty pound upon an obligation against A. B. c. And in the Count was no mention made of this Subscription but this appears when the Defendant prayes hearing of the Bill the which was then entered Verbatim of Record and upon that the Defendant demurred in Law Harris Serjeant for the Plaintiff agreed that if it had been in the Body of the Bill it ought to have been contained in the Count to inable the Plaintiff to his action but that which is after in witnesse
is now out of the Statute for the advancement ought to be continuing until the death of the Father And so he saith also it was adjudged in Butler and Bakers Case that if a man devise Socage Lands and after sell to a stranger for good consideration his Lands held by Knights service this devise is now good for all for hee hath not any Land held by Knights service at the time of his death and so he concluded that the devise was good and prayed Judgement for the Plaintiff Houghton Serjeant for the Defendant he thought the contrary and hee argued that before the statutes of 32. and 34. of H. 8. men were disabled to devise any Land and for that they cannot provide for their Wives Children or for payment of their Debts and for remedy to that Feoffments to uses were invented and then to dispose the use by their Wills and then experience finds that to be inconvenient and then the statute of 27. H. 8. transfers the use into possession and then neither use nor land was deviseable without speciall Custome and then this was found to be mischeivous after five years experience and then was the statute of 32. H. 8. made and where by the statute of Marlebridg of those which did enfeoff their begotten sons a Feoffment by the Father to his son and Heir was void for all Now by this statute this is good for 2. parts and void only for the 3d part that for the good of the Lord but as to the party that is good for all as it is agreed in Mightes case 8 Coke Then to consider in the case here if all things concur that the statute requires and to that here is a person which was actually seised of Land held by Knights service in 12. Eliz. So that it is a person which then was having within the statute 2. If here be such conveyance for advancement of his children as is intended within the statute and to that he seemed that so notwithstanding that it may be objected that here is no execution to the youngest children insomuch that it is first limited to such Farmers and Tenants c. But he intended that this is no impediment Secondly also there is a limitation to the use of his last Will. Thirdly also there is a limitation to the use of such persons to whom he devises any estate by his Will But these are no impediments for the last is no other but a devise to himselfe and his heirs and there is not any other person knowne but meerely contingent and it is not like to a remainder limited to the right heirs of I. S. for there the remainder is in Abeiance but here it is only in contingency and nothing executed in Interest till the contingency happen and the not having of a son at the time shall not make difference as in 38. Edw. 3. 26. in formedon in Remainder where the gift was in one for life the remainder to another in tayle remainder in fee to another stranger and he in remainder in tayle dyes without Issue in the life time of the Tenant for life he in remainder in fee may have formedon in remainder without mentioning the remainder in tayle But here he intends that the devise shall be void in respect of the Lands first conveyed which were held in cheife by Knight service for the words of the statute are by act executed either by devise or by any of them and they are conjoyned and it is not of necessity that the time of the Conveyance shall be respected but the time of the value And notwithstanding that the Testator doth not mention any time But in so much as the provision of the statute is to save primor seisin and livery to the King as if the man had 20 l. by year in Socage and one acre in cheife and makes a conveyance of all that it shall be void first to the livery and priâ—or seisin to the third part So if he make conveyance of the 20 l. by yeare and leave the said acre held in cheife to discend and after that purchase other Lands to the value of the third part of all the conveyance of the 20 l. land notwithstanding which for the advancement of his Wife Children or payment of his Debts for he had a full third part at the time of his death which discended And he supposed that the having of a dry reversion depending upon the estate tall is sufficient having within the words and letter of the Statute and yet he agreed the ease put in Butler and Bakers case that if a man devise his Socage Lands and after alien his Lands held in cheife by Knight service to a stranger bonafide this is good So if he had made a reservation of his Lands held in chiefe to himselfe for his life in so much that his estate in that ended with his life and hee remembred the case cyted in Bret and case Comment That if a man devise a Mannor in which he hath nothing and after hee purchaseth it and dyes the devise is good if it be by expresse name But when a man hath disposed of two parts of his Land the Statute doth not inable him to devise the Residue but he hath done all and executed all the authority which the Statute hath given to him But he agreed also that the reversion is not such a thing of value which might make the third part discend to the Heir but it is uncertaine as a hundred and the other things of uncertain value contained in Butler and Bakers Case And also he intended that the remainder could not take effect insomuch that the condition is precedent and it is not found that the eldest Sonne hath aliened and then dead without Heir male and so he concluded and prayed Judgment for the Defendant In Replevin the Defendant avows for 9 s. Rent the Plaintiff pleads a Deed of feoffment of the same Land made before the Statute of quia emptores terrarum by which 6 s. 8 d. is only reserved and demands Judgment if he shall be received to demand more then is reserved by the Deed See 4 Ed. 2. Avowry 202. 10. H. 7. 20. Ed. 4. 7. Edw. 4. Lung 5 Ed. 4. 22 H. 6. 50. This Deed was without date and it was averred that it was made before the Statute of quia emptores terrarum which was made in the 18. of Edw. 1. And also it ought to be averred to be made after the beginning of the Reign of Richard 1. For a writing after the beginning of his Reign checks prescription But if a man hath a thing by grant before that he may claim by prescription for hee cannot plead the grant insomuch it is before time of memory and a Jury cannot take notice of that and for that the pleading before with the said averments was good If debt be due by Obligation and another debt be due by the same Debtor to the same Debtee of
Corne or graine c. or other dead victualls whatsoever shall be accepted reputed and taken an unlawfull ingrosser c. And it hath been objected that it is a penall Statute and for that shall not be taken by equity and also is declaratory and for reason also shall be taken strictly But he supposed that admitting that the offender contained in the information be out of the Letter of the Statute that yet he shall be within the equity and that the Statute shall be taken by equity but he intended first what was within the Letter of the Statute for Wheat made into meale is Wheat and Barley made into Malt is Barley and so it is contained in the information that is that he hath bought Wheat made into Meal and allowing that Corn is victuall then a fortiori meal is dead victuall for it is a degree neerer to the use of man and to sustenanceâ— and by the same reason that it is not victuall insomuch that another thing ought to be made to it before it may be used by the same reason flesh shall be no victuall for that ought to be boyled or rosted which is another thing also before it can be used and he said that meal is the staffe of sustenance and of all dearths the dearth of Meale and Corne is the most greatest and he which wants bread wants all other victualls for all others without this breedes diseases and for that Corne is the victuall of victualls and so he supposed this remaines Corne and admitting that not yet it is within the words dead victualls Also he intendes that the Statute shall be taken by equity notwithstanding it be penall insomuch that it is for publicke good as the Statute of 25. Ed. 3. of petty treason containes the Master only And yet if a Servant kills his Mistris that shall betaken within the Statute And so if the Servant kills his Master after that he is departed out of his service upon malice conceived during the time that he was in his service this shall be also within the Statute and yet is not within the words of the statute and so of the statutes of 13. and 27. Eliz. of fraud upon taking by equity and yet all these statutes are penall But insomuch that they are made for the publicke good and for punishment of offences which tend to the contrary they shall be out of the generall rule But he intended that the same thing which was bought was sold againe for it is confessed by the information that he hath sold Meale and it was not the thing that was first bought and if it were sustenance before that the water was put to it the putting of water to it doth not make alteration and is contained in the information that the Defendant sold the same meale that he had bought by the name of Starch and this is confessed by the Demurrer and by that if meale be victuall then he hath sold meale victuall by the name of Starch and to the objection that it is not the same thing insomuch that the Replevin doth not lie for the meale after that is made in Starch he saith Replevin doth not lie for the Corne it selfe if it be not in bags and if the meale were in bags notwithstanding that water were put to it yet Replevin lies and it is reason that this shall have a large and beneficiall construction insomuch as it apperes by the preamble that this is made against the Catterpillers of the Common Wealth And to the objection that the Statute is Declaratory and for that it shall not be taken by equity if this rule shall be observed then all the questions in the Court of Wards and in Butler and Bakers Case 3. Coke they have been in vaine And yet it appeares that equity was there taken for equity But in these cases the exposition may be besides but not contrary to the words and also he intended that the Proviso expounds the Body of the statute and by the Proviso it appeares that the buying of barley and converting it into Malt and the Sale of that afterwards and the buying of Oates and the converting of that into Oate-Meale and the sale of that afterwards should be within the Statute if it had not been excepted by the Proviso and yet there is an alteration of the thing which is bought And if a man buy Barley by forestalling and make that in Malt and then sell that againe this is within the Statute and there is no difference betwixt this Case and Malt for the Barley is put into water and dryed againe and so it is here the Meale is put in water and dryed againe and yet that is within the Statute And the manner and nature of offence every one which hath a Houshold and Family knowes for the finest Wheate Meale makes sustenance for the Master of the Family and the other makes severall sorts for the residue of the Family and the Brann makes Bread for Horses so that the vertue of that is that it feeds both Man and Beast and all this is prevented by making that new devised vanity and the quantity of Wheat which is imployed is incredible and may feed many and if the makers of that have gained the name of an occupation this is worse for this furthers vanity and takes away the sustenance of many and inhanceth the price of Wheate and is so new aninvention that there is not a Latine word for it and so he concluded that he is an Offender and within the scope of the letter of the Law and that the Preamble and Proviso hath been so expounded and that as to meane occupations as Tanners and such like which bought Hydes and sold them again and he said that they did them further for the use of man and made that more apt and fit for use and without that a man could not use them but in this Case the Starch-makers further the abuse and prayed Judgment for the King and for the Informer And at another day this case was argued again by Haughton for the Defendant that the statute is penall for forfeyture of Goods as for coporall punishment and for that it shall not be taken by Equity nor by interpretation but strictly according to the Letter as in Reniger and Fogassas case Commentaries 18. By Pollard it is a principall in Law that a penall statute shall not be taken by Equity as in the statute of Westminster 1. chapter 35. Gives an attaint in reall action and notwithstanding that perjury be an offence against both the Tables and in attaint it is of necessity that it be perjury in the petty Jury and yet this doth not extend to personall Actions 5 Ed. 3. 6. 34 Ed. 4. 7. 1 Ed. 3. 6. Gives attaint as well for Damages excessive as for the principall and this shall be taken strictly also as it is sayd by Fineva 14 H. 7. 14. a. and in 27 H. 6. 8. Generall penall Statuts shall be limited
any satisfaction in tender to satisfaction Insomuch that this is only the fruit of Tenure and not like to cutti ng of Trees nor to digging of Cole or other Ore And so Coke cheife Justice that it hath been adjudged and with this agreed the booke of 21. Ed. 3. 1. The manner to make Summons in Dower if the Land lieth in one County and the Church in another County Then upon the Statute the Sheriffe ought come to the next Church though it be in another County and there make Proclamation asthe Auditors in Accompt ought to commit the Accomptants found in arrerages to the next Gaole and there ought to be committed though that they are in another County The words of a Patent of a Judge of the Common Bench are as follows that is to say James by the grace of God c. Know that we have constituted Humphrey Winch Serjeant at Law one of our Justices of the Common Bench during our good pleasure with all and singuler Vales and Fees to the same office belonging and appertaning In Witnesse of which c. Michaelmasse 1611 9. Jacobi in the Common Bench. Jacob against Stilo Sowgate IN an Action upon the Case for slanderous words The declaration was that the Defendant said of the aforesaid Plaintiff that he is perjured to which the Defendant pleads that the Plaintiff another time hath brought an Action in the Kings Bench against the same Defendant for that that he the said Plaintiff was perjured and had cozened John Sowgate and that the Defendant had pleaded to all besides these words Thou art perjured not guilty and to the words thou art perjured he Justifies that the Plaintiff was perjured in making an Affidavit in the Star-chamber and this Issue was Joyned and it was found for the Defendant but it was not pleaded that any Judgement was given upon it And Haughton Serjeant for the Plaintiff which had Demurred upon the Defendants Plea Argued that the Plea is insufficient for if it shall be intended by that that the Plaintiff was afore times barred if it be in a reall Action it ought to be averred that it is for the same Land and if it be in a personall Action it ought to be averred that it is the same Debt or Trespasse and if it be pleaded by way of Justification then he ought to have averred also that the Plaintiff hath taken a false and untrue Oath upon which Issue might have been taken But here nothing is pleaded but the Record and nothing averred in Facto So that the Issue cannot be taken upon it for the pleading is only of Record and that the Defendant for the cause aforesaid in the Record afore said mentioned spoke the said words and this is not good for there is not contained any cause of Justification as in Quare Impedit in the 15. and 16 H. 6. The Defendant pleads that he was Incumbent by the cause aforesaid and without that But this was no good Plea for he ought to plead his Title specially And also it is not pleaded as Estoppell for then he ought to have relied upon that precisely as 35. H. 6. in Replevin the avowant relies upon discent 30. assis 32. 2. H. 7. 9. Also Estoppell it cannot be insomuch that Judgement was not given in the first Action Also it is not pleaded as Estoppell for the Plea is concluded Judgement if Action where he ought to have relied upon the Estoppell and peradventure also the Triall was voyd by unawarding of Venire Facias or other Error So that without Judgement it can be no Estoppell and so he concluded and praied Judgement for the Plaintiff Barker Serjeant argued for the Defendant that the Declaration is very good and notwithstanding that the words are generall that is he is perjured yet this may be supplyed very well by the Innuendo as it appeares by James and Alexanders Case 4. Coke 17. a. And also that Estoppell by the Verdict is good without Judgement as in Action of Debt release was pleaded and Issue joyned upon that and found for the Defendant and after another Action was brought for the same Debt and agreed that the first Virdict was Estoppell 2. Ed. 3. 19. b. c. And he cited Baxter and Styles Case to be adjudged in the point that the Estoppell is good and also Vernons Case 4. Coke where the bringing of a Writ of Dower Estopped the Wife to demand her Joynture and so concluded and prayed Judgement for the Defendant Coke the Count is good being of the aforesaid Plaintiff and may after be supplyed by Innuendo though that the words after are generall But if the words were generall that is He is perjured without saying that the Defendant spoke of the aforesaid Plaintiff these English words following Videlicet he Innuendo the Plaintiff is perjured this is not good and shall not be supplied by Innuendo and he said that another time convicted is a good Plea in case of life without Judgement but this is in favour of life but in trespasse it ought to be averred that it is the same Trespasse and also there ought to be Judgement and the Defendant ought to relye upon that as an Estoppell and agreed by all that Judgement should beâ—given for the Defendant if cause be not shewed to the contrary such a day c. Michaelmass 1611. 9. Jacobi in the Common Bench. Hall against Stanley IN Trespass for Assault and Imprisonment the Defendant justifies insomnch that the Action upon the case was begun in the Marshalsey for a Debt upon an Assumpsit made by the Plaintiff and that upon that Capias was awarded to this Defendant being a Minister of the said Court to Arrest the Plaintiff to answer in the said Action and that he by force of that Arrested the Plaintiff and him detained till the Plaintiff found suerties to answer to the said Action which is the same assault and Imprisonment To which the Plaintiff replied that none of the parties in the said Action were of the Kings houshold and so demanded Judgement upon which the Defendant Demurred in Law And Dodridge the Kings Serjeant for the Defendant that the Court of Marshalsey may hold Plea of Actions of Trespasse by the parties or any of them of the Kings house or not and he intended that the Jurisdiction at the Common Law was generall and then they have Jurisdiction of all Actions as well reall as personall and though that their Jurisdiction be in many cases restrained yet in an Action of Trespasse there is not any restraint but at this day they have two Jurisdictions That is in Criminall cases and also in Civill causes within the Virge See Fleta book the second and third where he discribes the Jurisdiction of all Courts and amongst them the Jurisdictions of this Court and also Britton which wrote in the time of Ed. 1. lib. 1. chap. 2. which saith it was held before Bygott who was then Earle
upon the Estate and to the Livery made after two Rent dayes incurred he intended that Livery is good that notwithstanding for the deferring of the Execution of a letter of Attorney shall not defeat the Lease or other meane act which amounts to a Command for the Lessâ—r takes the profits in the mean time and it is not like to Littletons case that if a man devise his land to his Executors to be sold and they take the profits and do not make Sale that the Heir may enter insomuch that the Executors have not performed the Condition and it was not the intent of the Devisor that they should take the profits in the Interim to their own use and he intended that the declaration was not repugnant for it is of the aforesaid Church and not of the Dean and Chapter aforesayd and also there need not such congruity as it were the Foundation of the Action insomuch that this is only Allegation of the truth of the matter see 1 H. 7. 18. For variance upon shewing in Deed and 17 Ed. 3. 33. b. and here the aforesaid shew that it is the same in substance though it vary in words and though that the name is altered yet are the same persons in substance and the same Body and though that it be as it is intended to be of another part yet it is but name and the Foundation then is not Issuable as if the King H. 8. had been the Founder and made speciall provision in the Foundation that after the Time of Ed. 6. it shall be said to be the Foundation of Ed. 6. this shall be good and so he concluded and prayed Judgment for the Plaintiff see after adjudged Michaelmas 9. Jacobi 1611. In the Common Bench. The Bishop of Ely THE Bishop of Ely granted an Office with the Fee for the exercising of that if it be an ancient office it is a good grant and if the Fee be newly increased yet Foster Justice thought that the Grant shall be good for the Office and for so much of the Fee as hath been anciently granted with the Office Michaelmas 1611. 9. Jacobi in the Common Bench. Holcroft against George French IN an Action upon the Case upon an Assumpsit if the consideration be Executory then the Declaration ought to contain the time and place where it was made and after it ought ro be averred In Facto when it was performed or executed accordingly but if it be by way of Reciprocall agreement then the Plaintiff may count that in consideration that he hath promised for the Defendant the Defendant hath promised to do another thing for him there he need not that the Declaration contain time or place for the consideration or otherwise that it is performed and executed But if in the first case where it is executory that is also an averment that it is executed there if the Defendant plead Non Assumpsit generally and do not plead the speciall matter he cannot after take exception to that Count for the Default aforesayd where he pleads specially to that as in an action of Trover the Conversion ought to be averred to be in a certain place and so in submission and Arbitrement they are contained in the declaration it need not to expresse any time or place certain but if the Defendant pleads that the Arbitrators made no award or that the parties have not submitted themselves to their award there the Plaintiff may reply that the Arbitrement or Submission was made at such a place and this was agreed by all the Justices Michaelmasse 1611. 9. Jacobi in the Common Bench Sir Edward Puncheon against Thomas Legate IT was adjudged in the Kings Bench and affirmed upon a Writ of Errour in the Kings Bench that an action upon the case upon an Assumpsit made by the Testator is very well maintainable against the Executor and this was for Money borrowed and so the Count speciall but not upon generall Indebitatus Assumpsit but is good without any averment that the Executors have assets over the payment of Debts due by specialty and Legacies and he sayd that the Record of the Case of 22 H. 8. with this agrees and that the book in this is misprinted and so Coke cheife Justice who publickly reported this Judgment in the Common place sayd which was adjudged in the 11 H. 8. in this Court Note that Land of which a Writ of Right Close lyeth shall be assetts in a Formedon and it is a Free-hold and not a Copy-hold and so are all Lands in ancient Demesne 3 Ed. 3. 14 H. 4. It is no matter what is known to the Judge if it be not in the form of Judgment Pasche 1611. fol. 50. HAughton Serjeant for the Defendant argued that the entry of him in Remainder is not lawfull insomuch that he intended it is not any forfeiture of the Estate tayle and first he argued that the condition is not good but repugnant to Law and for that voyd and yet he agreed that Tenant in tayl may be distrayned from making unlawfull Acts but here the condition tends to restraine him from doing of things which are lawfull as if a man makes a Gift in tayl upon condition that the Wife of the Donee shall not be indowed or that the Husband of the Donee shall not be Tenant by the Curtesie or that a Feoffee shall not take the profits of the Land though that the profits may be severed from the Land as in 16 Ed. 3. Formedon was brought of the profits of a Mill yet the condition is voyd insomuch that it is against the nature of an Estate tayl or in Fee-simple to be in such manner abridged so if a man makes a gift in tayl upon condition that the Donee shall not make waste the condition is void for the making of wast is a priviledge which is incident to an Estate tayle and for that the condition restraynes the Tenant in tayle of a thing which the Law inables him to do the condition is yoyd so a Donee in tayle upon condition that he shal not make a Deed of Feoffment or Lease for his own life as it is agreed in Mildmayes Case so here when the condition restraynes Tenant in tayl of concluding and agreeing the which in him is not any wrong no more then if a man should make a gift in tayl upon condition that the Donee should not bargaine and sell the Land this is voyd insomuch that he doth not make any wrong or discontinuance So in the case here for the thing which is restrayned that is concluding agreeing is in it self a lawfull act and also this is only the affections and qualities of the minde that they cannot make an Estate conditionall if an open act be not annexed unto it but he agreed that if a man make a gift in tayle or a Lease for life of white acres upon condition that the Donee or Lessee shall not take the profits of Black acre this is
so these words of the Writ are not answered and so no Tenant is returned at all And it is not like to the Case in 2 H. 4. for there the Return was according to the Exigent of the Writ but here it is not so And to the first matter he intended and agreed that an Executor of an Executor may sue execution had by the first Executor insomuch that hee comes in in privity But he said that so it is not in this case and that there is no difference betwixt this case and the case cyted in Shelleys case that is that Administrator of Administrator shall not sue execution insomuch that he comes in peramount Administrator and accords with this Case 2 Eliz. in the Lord Dyer If two Joynt-Tenants are and one makes a Lease for years rendring Rent and dyes the Survivor shall not have the Rent insomuch that hee commeth in peramount him and to the other he intended that the speciall non-tenure is a good plea as well in Scire facias to have execution of damages as of Free-hold as in 24 Edw. 3. 31. and 5 H. 5. 1. and 9. H. 5. 11. It is resolved that in Scire facias speciall non-tenure is a good Plea and the books of 8 H. 6. 31. cyted before there is Joynt-tenancy pleaded to one part and speciall non-tenure to the other part by Lease for years and the question is if it might be pleaded a part And in 8 Edw. 4. 14. Is Scire facias upon Recovery by Writ of Right Patent in base Court and that the Defendant cannot plead release of the Lessor and so the joyning of the Mise may be forfeiture of his Estate And he said that it was adjudged in 16 Edw. 3. Scire facias 5. that scire facias to have execution of a Fyne shall not be sued against a Lessee for years but against him which hath the Free-hold but where Debt or Damages are to be recovered there it may be sued against him which hath only Lease for years insomuch that the possession is to be charged and so he concluded and prayed Judgement for the Defendants and it is adjourned Michaelmas 1611. 9. Jacobi in the Common Bench. Crogate against Morris THe case was this Copy-holder prescribes to have common in the Waste of the Lord and brings action of Trespasse against a stranger for his Beasts depasturing upon the Common there and Harris Serjeant argued that this action is not maintainable for two causes First insomuch that he is a Commoner for as it is said by Brook Justice 12. H. 8. 2. a. Commoner cannot have an action of Trespasse for the Common is not Common but after the Commoner hath taken that and then before that he hath taken that he hath no wrong nor damage but the damage is to the Tenant of the Land As if a Lessee for years be outed and he in reversion recovers in Assise hee shall not have damage insomuch that the damage was made to the Lessee and the 22 Assis 48. 15 H. 7. i 2. b. agreed that Commoner cannot maintain action of Trespas nor no other but the owner of the Soil but 13 H. 8. 15. by Norwich 15 H. 7. 6. 5 H. 7. 2. 24 Edw. 3. 42. Commoner may distrain and avow for doing damage 2. He intended that this action is not maintainable insomuch that every other Commoner may also have the action of Trespasse for if it be wrong to one it is wrong to every one of them and so the stranger shall be infinitely punished as in Williams Case 5 Coke 72. b. where it was adjudged an action of the Case doth not lye for the Lord of the Mannor to prescribe that a Vicar ought to administer the Sacraments in his private Chappell to him his Men-servants and Tenants within the Precincts of the said Mannor and adjudged that it doth not lye insomuch that then every of his Tenants might also have action and so the Vicar shall be alwayes punished So in 27 H. 7. 27. a. A man shall not have an action upon the Case for nusance made in the high way so it is 5 Ed. 4. 2. for trenching in the high way see 33 H. 6. 26. a. accordingly and so he concluded that the action is not maintainable and prayed Judgement for the Defendant Dodridge the Kings Serjeant to the exception which hath been made by the other party that the Plaintiff ought to averr that he hath Beasts which ought to Common there and that his Beasts have lost their Common that need not to be averred but it shall be pleaded by the other party for if he have distrayned the Beasts of a stranger doing damage he need to averr no more in this action and to the other matter and the two Objections which have been made by the other part First that the Commoner hath no right to the Common till he have taken it by the mouth of his Beasts to that he said that the Commoner hath right to that before that it be taken by such mouths of his Beasts and notwithstanding that it seems by the time of Ed. 1. That Commoner cannot grant his Common till he have Seisin of that yet 12 H. 8. is otherwise and that a Commoner may have an action the name implyes for he hath Common with others and a stranger which is no Commoner cannot do wrong but this is damage to him and he cyted Bracton 430. that there are two forms of Writs 1. Cursitory Writs 2. Commanding Writs The first of those which are formed and are of course and the others such of which there is no form but are to be formed by the Masters of the Chancery according to every particular Case So that there is not any Case but that the Law affords a Writ and remedy for that as in 28 Edw. 4. 23. Action upon the Case was framed against an Officer which gave priviledge to one as his servant which was not his servant and it is not like to the Case in 11 H. 4. 47. a. where a School-master brings an action upon the Case against another for erecting of a School in the same Towne to his damage but this was damage without Injury But here the Commoner hath received wrong and damage but yet he agreed that the Commoner could not have action of Trespass why he broke his Close for that is proper for the owner of the Soile But it hath been agreed to him that he might distrain them doing damage and the reason of that is insomuch that he hath received damage and amends may be tendered unto him in recompence of his damages without any regard to other Commoners as it is agreed in 24 Edw. 3. 42. And to the Objection that if one Commoner may have action then every Commoner may have the action and so the stranger shall be infinitely punished And to that he said it is a Publique losse and private and when the publique wrong includes private damage to any man there he
to whom the private damage is done may have action And he said that the Register contains many Writs for publique wrong when that is done to private men as fol. 95. A man fixes a pale crosse a navigable River by which a Ship was cast away and the Owner maintained action of Trespasse And fol. 97. A man brought Trespasse against one which cast dung into a River by which his Medow was drowned so if the River be infected with watering Hemp or Flax he which hath fishing there may maintain action of Trespasse and 2 H. 4. 11. Action of Trespasse by one for ploughing of Land where one had a common way and so it is 13. H. 7. 17. One brings an action of Trespasse against another for erecting a Lyme Kill where many others are annoyed by that So by an assault made upon a servant the Master and servant also may have severall actions and so in the other cases many may have actions and yet this is no reason to conclude any one of them that hee shall not have his action for in truth those are rather actions upon the Case then actions of Trespass for the truth of the Case is contained in the Writ Also in this case it doth not appeare that there are any other Commoners which have Common there and for that this Objection is not to the purpose and it appears by Heisman and Crackesoods Case 4 Coke 31. That Copy-holder shall have Common by prescription in the demesnes of the Lord and so he concluded and prayed Judgment for the Plaintiff Coke cheife Justice said that it was adjudged in this Court Trinity 41 Eliz. Rot. 153. b. between Holland and Lovell where Commoner brings an action upon the Case as this Case is against a stranger which pleads not guilty and it was found by verdict for the Plaintiff and it was after adjudged for the Plaintiff for insomuch that the Plaintiff may take them damage feasant that proves that he hath wrong and this is the reason that he may distraine doing dammage And by the same reason if the Beasts are gone before his comming he may have action upon his Case for otherwise one that hath many Beasts may destroy all the Common in a night and doe great wrong and shaâ—l not be punished and it is not like to a Nusance for that is publique and may be punished in a Leet but the other is private to the Commoners and cannot be punished in another place nor course and he also cyted one Whitehands case to be adjudged where many Copy-holders prescribe to have Loppings and Toppings of Pollards and Husbands growing upon the Waste of the Lord and the Lord cuts them and one Copy-holder only brings his action upon the Case and adjudged that it was very well maintainable notwithstanding that every other Copy-holder may have the same remedy And he said also that so it was adjudged in the Kings Bench Hillary 5 Jacobi Rot. 1427. in George Englands Case And 2 Edw. 2. b. Covenant 49. If a man Covenant with 20. to make the Sea banks with A. B. and every one of them and after he doth not doe it by which the Land of two is drowned and damnified and they two may have an action of Covenant without the others Quere for it seems every one shall have an action by himselfe But Foster and Wynch Justices seemed that the Plaintiffe ought to sue in his Court that the Beasts of the stranger escaped in the Common or were put in by the Owner for it may be they were put in by the Lord which was owner of the Soile or by a stranger in which cases the Owner of the Beasts shall not be punished But Coke and Warburton seemed the contrary and that this ought to be averred and pleaded by the Defendant in excuse of the Trespasse as in action of Trespasse why he broke his Close And so it was adjourned see Gosnolds case 490. see Judgment Pasche 1612. 10. Jacobi in the Common Bench. Henry Higgins against George Biddle IN Replevin the Defendant made Conusance as Bayliff to Sir Thomas Leigh and Daine Katherine his Wife intimating that Isabel Bradburn was seised of the place where c. in their demesne as of Fee and so seised the first of June 15 H. 8. gives this to the Lord Anthony Fitzherbert and Maud his Wife and to the Heirs males of their bodies which have Issue Thomas Fitzherbert Knight John Fitzherbert and William Fitzherbert Anthony and Maud dyed and the said place where c. discended to Sir Thomas Fitzherbert as Heire to the Donees to the Intayl and the said Thomas Fitzherbert the 5. of Aprill 6 Edw. 6. of that enfeoffed Humphrey Swinnerton Ralph Cotton and Roger Baily to the use of William Fitzherbert and Elizabeth his Wife for their lives and after to the use of Sir Thomas Fitzherbert and the Heirs of his body the remainder to the use of the right Heirs of the said William Fitzherbert William Fitzherbert dyed Sir Thomas Fitzherbert disseised the said Elizabeth and the said John Fitzherbert had Issue Thomas and dyed Sir Thomas Fitzherbert dyed without Heir of his body and the said place where c. discended to the said Thomas as Cousin Heir of the said Sir Thomas and Son and Heir of the said John Fitzherbert which enters and was seised to him and to the Heirs Males of his body as in his Remitter And the said Thomas Fitzherbert 4 of Novemb. 39. Eliz. by Indenture of Bargain and Sale enrolled in the Chancery within six moneths bargained and sold the said Land to Sir William Leighton his heirs and Sir William Leighton 5 of Novemb. 43. Eliz. by Indenture enrolled within six moneths for 4000. l. bargained and sold the said land where c. to Sir Thomas Leigh and Dame Katherine as aforesaid and so avowed the taking for doing damage And the Plaintiff for Barr to the said Avowry pleads that well and true it is that the said Sir William Leighton was seised of the said place where c. in his Demesne as of Fee as it was alledged by the Defendant But further hee saith that the said Sir William Leighton so being thereof seised 1 Decemb 44 Eliz. enfeoffed the Plaintiff in fee and by force of that the Plaintiff was seised and put in his Beasts into the said place where c. without that that the said Sir William Leighton bargained and sold the said Land in which c. to the said Sir Thomas Leighton and Katherine his Wife as in the Conusance hath been alledged by the Defendant upon which the Defendants joyn Issue and it was agreed by all the Justices that notwithstanding this admission of the Parties is an Estoppell by the pleading yet as well the Plaintiffe as the Defendant were admitted to give another evidence to the Jury against their own pleading that is that Sir William Leighton was not seised and so nothing passed by the bargain and sale and also
hath the Copy-hold Estate for life in remainder was the question And it was argued by Harris Serjeant that the Estate of Fines in the body of that binds all persons but onely some which have Infirmities and by the saving Rights Titles Claimes and Interests are saved But Title comes in the conditionall perclose of saving that is so that they pursue their Title Claime and Interest c. By way of Act or lawfull Entry within five yeares next after the said proclamations had and made So that in this case the principall matter to be considered is what thing is operated by the acceptance of the Bargaine and Sale for if by that the remainder of the Copy-holder be turned to right then insues that the Fine shall be a Barr And it seemes that this determines the first Estate for life and he agreed that it cannot be a surrender insomuch that there is a mesene remainder as it is 37. H. 6. 17. b. 4. H. 7. 10. But this Lease to commence at a day to come cannot be a surrender but shall be determined and extinct by acceptance of a new Lease as it is there and in 22. H. 7. 51. a. agreed and so it was adjudged in Hillary 30. Eliz. between Wilmottand Cutlers Case that if a Husband which was seised of a Copy-hold Estate in right of his Wife accept an estate for life this determines the copy-hold Estate which he hath in right of his Wife in possession So if Lessee for yeares accept an estate of one which hath no Estate yet this determines his Tearme as it was adjudged Hillary 31. Eliz. Rot. 1428. b. That if Lessee for yeares of a Lease made by the Ancester accept an estate of Guardian in Soccage this determines his Lease which he had of the Ancestor and upon that he concluded that in this case the acceptance of a Bargaine and Sale turnes the Copy-holder in remainder to a Right and then it appeares by Saffins Case 5. Coke 125. That he shall be bound though that he hath only Interest and so of Title also and he said that it appeares by Kite and Quarintons case 4. Coke 26. a. that a Right or Title may be of Copy-hold Estate for it is there said by Wray cheife Justice that it shall be with in the Statute of 32 H. 8. chapter 9. of buying of Titles and so concluded Dodridge the Kings Serjeant agreed that the sole question is if any thing be here done to turn the Copy-hold-Estate in remainder into a right for then he agreed that this shall be barred otherwise not and to that hee intended that the first Estate for life shall be sayd to be in Esse notwithstanding the acceptance of the Bargaine and Sale as to all estrangers and especially when it is to their prejudice as if Tenant grant Rent and after surrenders his estate now between the parties the Lease shall be extinct by the surrender but to the Grantee of the Rent it shall be sayd to be in Esse and if during his life he in Remainder also grants a Rent hee shall hold the Land subject to both the Rents though that the grants be both to one self sameperson so if he in Reversion grants his Reversion with warranty and after the Tenant for life surrenders and the Grantee be impleaded he shall never vouch during the life of the Tenant for life 5 H. 5. Comment 24 Ed. 3. And here also is a custome which preserves the Copy-hold Estate in Remainder and their particular Tenant cannot that prejudice and for that also it shall not be turned into a right as if a Copy-hold Estate be granted to one for life by one Copy and after the Lord grants another Estate for life by another Copy to another and then the first Copy-holder commits forfeiture he which hath the second estate cannot take advantage of that but the Lord shall hold it during the life of the first Tenant for no act made by the particular Tenant shall prejudice him in Remainder for otherwise many Inconveniencies would insue upon that as by secret conveyances or as if a grantee of a Rent charge grant that to the Tenant of the Land for his life the Remainder over the Remainder shall be good notwithstanding that the particular Estate bee extinct and drowned also he intended that the Copy-hold Estate is another thing then the land it self and for that the Fine shall not be a Barr no more then in Smith and Stapletons Case Com. Where a Fine levied of Land shal not be a Barr of Rent insomuch that it is another thing so in this case he intended that the fine shall not be a Barr of the Copy-hold Estate and concluded c. Wynch Justice was of opinion that the Fine shall not be a Barr to the Copy-hold Estate in Remainder for the acceptance of the Bargaine and Sale doth not determine the first Copy-hold Estate for life as to him in Remainder but only to the first Tenant and the Lord and betweene those he agreed that the Copy-hold Estate is determined as in Heydens Case by acceptance of a Lease for years and for that the Remainder shall not be turned to a Right and by consequence shall not be barred and for that he supposed that the reason that the Fine was a Bar in Saffins Case 5 Coke 123. b. was insomuch that the Lessor entered made a Feoffment and after levied a Fine and it is there agreed that the Feoffment turnes the Estate of the Lessee to a Right and for that the Fine shall be a barr and also there the Lease was by limitation of time to have a beginning but if a man makes a Lease for years to begin at a day to come and before the beginning of that makes a Feoffment or is disseised and Fine with proclamation is levyed yet he which hath future Interest shall not be barred for this is not turned to a Right and it was not the intent of the Statute of Fines to make a Barr of right where there was no discontinuance or Estate at least turned to right and this was the cause that at the Common Law Fine with Non-claime was no Barr but where they make alteration of possession and he cited Palmers case to be adjudged that a Fine of Land shall not be a barr for Rent where the case was Lessee for life Remainder for life of Rent The first Lessee for life of the Rent purchaseth Land and levies Fine of that and adjudged that this shall not binde them in Remainder of the Rent no more if he in remainder levy a fine that shall not prejudice the particular Tenant and so he concluded in this case that the Ramainder shall not be barred and that the Plaintiff shall have Judgment Warburton Justice accordingly and he argued that the Statute of Fines containes two parts The first to barr those which have present right and they ought to make their claim within five yeares after the Fine levied or otherwise they
shall be barred And the second those which have Right title or interest accrued after the Fine levied by reason of any matter which preceded the Fine and in both cases the Estate which is barred ought to be turned into a right or otherwise it shall not be barred the which cannot be here for the estate is given by the Custome and it is to have his beginning after the Death of the first Tenant and though that the first Tenant commit Forfeiture yet he in remainder cannot enter for his time is not yet come as in 45 Ed. 3. is a collaterall Lease with warranty to the Tenant for life in possession this shall not be a barr insomuch that it is made to him which hath possession so if a man make a Feoffment upon condition and the Feoffee levy a Fine with proclamations and five yeares passe and the condition is broken the Feoffee may enter at any time otherwise if the Fine had been levied after the condition broken and so if the Lord be intituâ—ed to have Cessavit and Fine is levied by the Tenant and five yeares passe he shall be barred and this was the cause of the Judgment in Saffins case insomuch as the Lessee had present interest to enter and this was altered into a Right by the Feoffment and then the Fine was a Barr but here he in Remainder hath no right till after the Death of him which was the first Tenant and then his right to the possession begins and then if a Fine had been levied with proclamation this shall be a Barr and so he concluded that Judgment should be entered for the Plaintiffe Coke cheife Justice accordingly and he agreed also that the sole question is if by acceptance of a Bargaine and sale by the first Tenant for life the Remainder be turned into a right and he sayd that right sometimes sleepeth but it never dyes but this shall be intended the right of the Law and not right of Land for that may be barred by Writ of Right at the Common Law and he intended that Copy-holdes are within the Statutes of Fines be they Copy-hold for life yeares in tayl or in fee for the third part of the Realme is in Copy-holdes and two parts in Lease for yeares and if these shall not be within the Statute then this doth not extend to three parts of the Realme and it is agreed in Heydons case 3 Coke 8. a. That when an act of Parliament doth not alter the Tenure Service Interest of Land or other thing in prejudice of the Lord or of the custome of the Mannor or in prejudice of the Tenant there the generall words of such act of Parliament shall extend to Copy-holds and also it is resolved to be within the Statute of 32 H. 8. Of Maintenance and also it is within the expresse Letter of this which containes the word Interest and Copy-holder hath interest and so also of Tenant by Statute Merchant then the question will be if the acceptance of a Bargaine and sale turnes that to a right and he intended that his Estate for life remaines though that it is only passive in acceptance of Bargain and sale and for that it shall not be prejudice more then if Tenant at will accepts a Bargaine and Sale for his Estate at will this notwithstanding remaines but if Lessee for years or life accepts a Fine upon conusance of right this is a forfeiture insomuch that it is a matter of record and it shall be an estoppel to say that he did not take Fee by that doth not admit the Reversion to be in another also insomuch that the Bargain and sale was executed by the Statute for this cause it shall not be prejudice as it was adjudged in the Lady Greshams case in the Exchequer 28 Eliz. Where two severall conveyances were made with power of Revocation upon tender of ten pound and adjudged by act of Parliament that a revocation was good and also that no license of alienation shall be made insomuch that it was by act of Parliament which doth no wrong and it is for the Trespasse for which the party ought to have license and if it be not Trespasse there need no license before hand nor pardon afterwards So if a man makes a Lease for yeares remainder for yeares the first Lessee accepts Bargaine and Sale this shall not turn these in remainder to prejudice Thirdly it seemes to him also that notwithstanding the acceptance of the Bargain and Sale the first Copy-hold Estate for life remains in Esse and is not determined For this differs from an Estate of Land for it shall not be subject to a Rent granted by the Lord the first Estate remaines till all the remainders are determined for the first tenant for life cannot surrender to the Lord also it is customary estate for by the Common Law this being granted to three successively this shall be determined and extinct for the third part for they three take into possession and the word successively shal be taken as void but here the Custome appoints that the remainder shall not have his beginning till the death of the first-Tenant and that they should take by succession and for that there is a difference between this customary Estate and other Estates at the Common Law and other surrenders for if a Copy-holder surrender to the use of another for life nothing passeth but for life only the Lord hath not any remainder by this Surrender and if this Tenant for life commits forfeiture he in reversion shall not take advantage of that and if at the Common Law Tenant for life remainder for life or in fee be and the first Tenant for life makes a Feoffment and after levies a Fine and resolved that he in reversion should not be bound till 5 years are incurred after the death of the 1. Tenant for life for then his title of Entry first accrues in apparancy and before that is in secrecy of which he in remainder is not held to take notice and so in this case he in remainder shall not be bound till five yeares are incurred after the death of the first Tenant and the rather insomuch as the first Estate remaines for that that the first Tenant was only passive and not active and so he concluded that Judgement shall be given for the Plaintiff insomuch that the Fine was no Bar and upon this concordance of all the three Justices in opinion no other Justices being present this Tearm Judgment was entered accordingly Pasche 1612. 10. Jacobi in the Common Bench. Danyell Waters against the Deane and chapter of Norwich IN covenant The case was this in 37 H. 8. the then Deane and Chapter of Norwich made a Lease to one Twaits for fifty yeares which ended 35 Eliz. in time of Ed. 6. The then Dean and Chapter surrendred all their possessions to the King which those newly endowed and incorporated by the name of Deane and Chapter of the foundation
of Ed. 6. and in the 8. Eliz. Salisbury then Deane and the then Chapter made a Lease to Thimblethorpe for 99. yeares to begin after the said Lease for fifty yeares made to Twaits And it doth not appeare by the pleading that Thimblethorpe entred But the succeeding Deane and Chapter in the 42. Eliz. made another Lease to Waters the Plaintiff for three lives rendring the ancient Rent quarterly with warrant of Attorney to make livery and it was not executed till after the end of three quarters of a yeare after the Sealing of it and when the time of three rent daies were Incurred And in this Lease the Deane and Chapter covenanted with Waters to acquit and save harmelesse the Lessee and the premises during the Tearme c. By reason of any Lease made by them or any of their Predecessors or by the Bishop And then the Plaintiff in his Court conveys the Lease made by Thimblethorpe to Doylye and that he intered and disturbed the Plaintiff and so assigned breach of covenant upon which this Action was founded upon which the Defendants demurr in Law And this was agreed by Dodridge the Kings Serjeant for the Defendants First that the Lease made to Waters was void and then the Covenants do not extend to charge the Defendants And he supposed the Lease to be void insomuch that the Attorney did not make Livery untill three Rent daies were incurred and the Lease was made as well for the benefit of the Lessor as for the Lessee for if the Lessee is to have the profits and the Lessor is to have the Rent And insomuch that the Livery was not made before a Rent incurred this tends to the prejudice of the Lessor and for that the Authority is countermanded and the Livery made after void for when a man hath a Letter of Attorney to make Livery he ought to make that in such manner as the Feoffer himselfe would make it and the Lessor cannot make that after a rent incurred for then he should loose that Rent Also Authority ought to be strictly pursued as in 36. H. 8. Dyer 62. 24. Letter of Attorney was made to three joyntly and severally to make Livery and reâ—…ved that two cannot do it see 11. H. 4. For it ought to be made joyntly or severally so here the Attorney ought to make the Livery as his Master will and that ought to be made before any Rent incurred And for this cause he intended the Lease to be void And then as to a Collaterall Covenant which is in effect no other but that the Plaintiff shall injoy the Land during the Tearme which is of an Estate which is nothing for if the Lease be void the Estate is nothing and the Lessee hath not any Tearme or Estate in the Land And he agreed that in the Record of Chedingtons Case 1 Coke 153. b. And in the Commentaries Wrotsleys Case 198. And 2. Eliz. Dyer 178. There is a difference betweene Tirminum Annorum and the time or space of yeares or the life of such a man but there is not any difference between a Tearme and an Estate Also he supposed that the words of the Covenant extend only to save the Plaintiff harmelesse of Leases made by these Defendants or any of their predecessors and this Lease was made to Twaits in time of H 8. Which was before their Corporation for they have been but named a Corporation in the time of Edward 6. and not before And then a Lease made in the time of H. 8. is not made by them nor by their Predecessors and so the Covenant doth not extend to that as it appeares by 8. Ed. 4. in case of prescription if Corporation be changed in manner and forme and the substance of their name remaine yet they ought to make speciall prescription then a fortiori in this case where the substance is changed and so he concluded and praied Judgement for the Defendants Nichols Serjeant for the first argued that the Livrey was well made for these Defendants shall be intended Occupiers and to have the profits of the Land till the Lessee entred or they waved the possession and so no prejudice and the Lessee shall not be charged with Rent till he enters or the Lessor wave the posaession as it was resolved in Bracebridges Case Com. 423. b. and in the Deane and Chapter of Canterburies Case there cited And for that the Livery shall be good and the Lessor not prejudiced by the deferring of it and then to the second that is the Covenant he agreed that if the Estate be created and Covenant in Law annexed to it if the Estate cease the Covenant also shall cease But if expresse Covenant be annexed then the Covenantor ought to have regard to performe it or otherwise an Action of Covenant lies against him notwithstanding that the Estate be avoided But here he intends it against him notwithstanding that the Estate be void But here he intends the Estate continues till Thimblethorp entred But admitting that he had entred yet the covenant shall bind the Covenantor as in 12. H. 4. 5. a. Parson makes a Lease for yeares and after is removed an Action of covenant lies against him and 47. Ed. 3. and 3. Ed. 3. If Tenant in 〈…〉 makes a Lease with expresse covenant and dies and the Issue outs the Lessee the Lessee shall have an Action of Covenant against the Executors of the Tenant in tayl and 9. Eliz. Dyer 257. 13. Tenant for life the Remainder over in Fee by Indenture makes a Lease without any expresse covenant and dies Lessee cannot have an Action of covenant against his Executors otherwise if there had been an expresse covenant See the booke and many Authorities there cited to this purpose and also he cited one Rawlinsons Case to be here adjudged that if a man which hath nothing in land makes a Lease and an expresse covenant for the injoying of that if he which hath right enters by which the covenant is broken Action of covenant lies upon the expresse covenant So that admitting that the Lease is void yet the covenant is good and shall bind the successors and so he concluded and praied Judgement for the Plaintiff and this case was argued at another day by Dodridge the Kings Serjeant by speciall appointment of the Judges and now he supposed that the Count containes that the same Dean Chapter which made the lease to Twaits in 37 H. 8. also made the Lease to Thimblethorp in the 18 El. w ch cannot be insomuch that the corporation was changed in the time of E. 6. for that cannot be the same Deane and Chapter for if a Prior Covent be translated into a Dean and Chapter and the Dean and Chapter will make prescription they ought to make that in speciall manner and not generally as Deane and Chapter as it is resolved 39. H. 6. 14. 15. and in 7. Ed. 4. 32. In Trespasse against the Abbot of Bermondsey it is
and before the originall purchased the Indentnre was by the assent of the Plaintiff and the Defendant cancelled and avoyded and so demands Judgment if action and it seemes by Coke cleerly that the Plea is not good without averment that no Covenant was broken before the cancelling of the Indenture Pasch 12. Jacobi 1612. In the Common Bench. Barde against Stubbing IT was moved in arrest of Judgment that the Venire facias wants these words Et habeas ibidim nemina Juratorum but the words Venire facias duodecim c. were incerted and it seems by all the Justices that it was good and that the first words are supplyed in the last and they are aided by the statutes of Jeofai es after verdict and so it was adjourned In Audita querela sued by the sureties upon an escape made by the principall they being in execution offered to bring the Money into the Court or to put in sufficient Sureties to the Court and so prayed that they might be bayled and it was agreed that if Audita querela be grounded by specialty or other matter in writing or upon matter of Record Supersedeas shall be granted before that the party be in Execution and if he be in execution he shall be bayled but if it be founded upon a matter in Deed which is only surmise he shall not have Supersedeas in one case nor shall be bayled in the other case and so was the Opinion of all the Justices In an Action of Waste for digging of earth to make Brick Estrepement was awarded and upon Affidavit that the Writ of Estrement was delivered to the Sheriff and that he gave notice of that to the party and he notwithstanding that continues to make waste attachment was awarded Pasch 12 Iacobi 1612. In the Common Bench. Fetherstones Case Trinity 1612. IN Ejectione firme The Plaintiff had Judgment and an Habere facias possessionem to the Sheriff of Coventry which returnes that he had offered possession to the Plaintiff and he refused to accept it and it seems that the Plaintiff cannot have Habere facias possessionem insomuch that it appeares by the Record that he hath refused to have the possession The case was A Dean and Chapter being Lord of a Maunor parcell of the Demesnes of the Mannor being severall adjoyned to the Common which was parcell of the wast of the Mannor and one Copy-holder which had Common in the sayd Wast puts his Beasts into the sayd waste to take his Common and they for default of inclosure escape into the sayd Demesnes by which the Lord brings his action of Trespass and upon this the Defendant pleads the speciall matter and that the Lord and all those whose Estate he had in the said place where the trespass is supposed to be made have used to fence the said place which is parcell of the Demesnes of the sayd Mannor against the Commoners which have Common in the sayd Common being parcell of the waste and also of the demesnes of the sayd Mannor and that the Beasts of the sayd Defendant escaped into the sayd place in which c for default of inclosure and so demands Judgment upon which the Plaintiff demurrs in Law In the agreement of which it was agreed by Hutton and Haughton the Serjeants which argued it whether a man by prescription is bound to make fence against Commoners as it is agreed in the 22 H. 6. 7. 8. 21 H. 6. 33. But the doubt which was made in this case by Haughton which demurred was for that that the Lord which by the prescription ought to inclose is owner of the soyle also against which he ought to inclose and so he ought to inclose against himself and for that he supposed that the pleading should have been that there is such a custome there and of time out of minde that the Lord shall inclose against the Common insomuch that by that the Copy-holder would bind the Lord and upon that it was adjourned c. Pasch 12 Jacobi 1612. In the Common Bench. Sir Henry Rowles against Sir Robert Osborne and Margeret his Wife IN Warrantia Charte the case was Sir Robert Osborne and his Wife levyed a Fine of the Mannor of Kelmersh with other Lands in Kelmersh to Sir Henry Rowles against all persons and this is declared for the Lands in Relmersh to be to the use of Sir Henry Rowles for life with diverse Remainders over and for the Mannor no use was pleaded to be declared at all and then a Writ of Entry in the Post was sued against the sayd Sir Henry Rowles which vouched Sir Robert Osborne and his sayd wifeâ— and this was declared for the sayd Lands to be to the use of the sayd Sir Henry Rowles for his life with other Remainders over which were declared upon the Fine of the Lands in Kelmersh only and of the Mannor of Kelmersh no uses were declared upon the Recovery also and upon this Recovery pleaded in barr the Plaintiffe demurred and it was argued by Dodridge Serjeant of the King for the Plaintiffe that the Plea in Barr was not good insomuch that it doth not appeare that the warranty which was executed by the Recovery was the same warranty which was created by the Fine and also the Fine was taken for assurance against the Issue in tayle and the Recovery to Barr the remainders and so one shall not destroy the other and for the first he sayd that a man may have of another severall warranties and severall causes of Voucher and all shall be together for warranty is but Covenant reall and as well as a man may have severall Covenants for personall things as well he may have severall reall Covenants for one self same Land as if the Father infeoff one with warranty and the Sonn also releases to the same Feoffee with warranty or if the Father infeoff one with warranty against him and his Heires and the Sonn release with warranty against all men the Feoffee may vouch one and Rebut against the other so of Warranty of Tenant in tayle and release of an Ancestor collaterall with warranty in Law and expresse warranty as it is agreed in 31 Ed. 1. Fitzh Voucher 289. And upon that he concluded that a man may have severall warranties of one selfe same man and the one may be executed and the other remaine notwithstanding that it be for one selfe same Land and he supposed the effect of these warranties are as they are used for if that may vouch generally and bind himselfe upon the Fine or upon his owne warranty or upon the warranty of his Ancestor notwithstanding that the voucher be generally as it is 31. Ed. 3. Warranty of Charters 22. So if he be vouched as Heire though that it were speciall but if he be Heire within age otherwise it is for that is a good Counter Plea that he was within age and so praied that the word might demur during his nonage 17.
Ed. 2. Counter Plea of voucher 111. 21. Ed. 4. 71. Then he supposed here was generall warranty which is executed and also another warranty which remaines notwithstanding any thing which appears to the Court for he hath not demanded any binding 10. Ed. 3. 15. a. b. Also the warranty in the Fine is the warranty of all the Conusees and the warranty upon which the voucher is is only the warranty of Sir Robert Osborne which cannot be intended the same warranty which is contained in the Fine which is by two as it is resolved in 10. Ed. 3. 52. But admitting that it agrees in all that is the voucher and the warranty in the Fine that is in number of persons and quantity of land and all other circumstances yet it shall be no Barr for the Common Recovery is only as further assurance for it is for forfeiture if it be suffered by Tenant for life as it is resolved in Pelhams Case 1. Coke Also he supposed that notwithstanding that the Fine was levied hanging the Writ of entry and â—o Sir Henry Rowles made Tenant yet this is good being by purchase but not if it be by discent or by recovery upon elder Title And he supposed that if the recovery and the warranty might be together by any possible meanes they shall not be distroied insomuch that this is the common case of assurance and for that shall be taken as in Pattenhams Case 4. and 5. Phil. and Mary Dyer 157. and 2. Coke Cromwells Case 77. b. where a man makes a Feoffment upon condition rendring Rent and after suffers common recovery and yet this notwithstanding the condition and Rent remaines And so it seemes that in this case the warranty remaines notwithstanding the Recovery and so he concluded and praied Judgement for the Plaintiff Nicholls Serjeant for the Defendant and he seemed that the warranty is destroied first insomuch that the Recovery was to other uses and the Fine was when proved that there was no further assurance also he supposed that insomuch that it doth not appeare to what use the Recovery was for the Mannor of Kelmersh that for that it shall be intended to the use of Sir Robert Osborne himselfe and then for that also the warranty is distroied insomuch that part of the Land is re-assured to Sir Robert Osborne as in 40. Ed. 3. 13. The Father enfeoffes the Son with warranty which re-enfeoffes the Father this destroies the warranty So if they make partition by their owne Act as it is agreed in the 34. Ed. 3. Also he supposed that the Tenancy in Sir Henry Rowles is distroied before that the Fine was Levied insomuch that this was Executed by voucher and so he did not purchase hanging the Writ for this is also conveied from him by the Recovery in the value before that the Fine is levied and it is all one with the case where a man recovers upon good Title hanging a Writ and he agreed that the recovery had been for further assurance that then it shall be as it hath been objected by the other party and the warranty had remained but this he supposeth it was not insomuch it was to other uses then the Fine was and he intended that if the Estate to which the warranty is annexed be distroied the warranty also shall be distroied 19. H. 6. 59. 21. H. 6. 45. 22. H. 6. 22. and 27. So if the Estate be avoided the warranty is distroied if it be by the Act of the parties named also he supposed that the warranty is executed and that it shall be intended the same tye upon which the warranty is created as it is 10. Ed. 3. 51. Mauxells case Com if he demand no tye but enter generally into the warranty there shall be execution of all warranties and shall bind all his rights for otherwise all the Estates tayl cannot be bound by that But where the Lieu is demanded as where there are three severall Estates tayl limited to one man and upon voucher he enters generally into the warranty all the tayles shall be bound but if he demand the Lieu's which he hath to bind him to warranty there shall be a Barr of that only upon which the voucher is and the remedy is that if he be impleaded by the party that hath made the warranty he shall be rebutted by his owne warranty But if he be Impleaded by a stranger he shall vouche him that warranted that and if warranty be once executed by voucher and Recovery in value though that the Land recoverd in value be a defeasable Title yet the party shall not voucheat another time by the same warranty as it is 5. Ed. 3. Fitz. voucher 249. and 4. Ed. 3. 36. And for that in this case insomuch that the warranty was once executed he shall not vouche againe upon the same warranty Also it is not alledged in the Count that the Plaintiff was Impleaded by Writ of Entry in the Post but in the Per in which he might have vouched and so shall not have this Action where he might have vouched And also he supposed that Sir Henry Rowles shall not have benefit by this warranty without praying aid of those in remainder insomuch that he is but Tenant for life but he supposed that it was no Remainder but reversion for otherwise they are but as an Estate and he may have advantage of the warranty as it seemes without aid praying But not where there is Tenant for life with the reversion expectant And so he concluded and praied Judgement for the Defendant And he cited one Barons Case where Tenant in tayl levies a Fine with warranty and after suffers Recovery And it was agreed by all the Justices that yet the Recovery shall be a Barr to the Remainder notwithstanding that the Estate tayl be altogether barred and extinct by the Fine but Coke cheife Justice said that Wrayâ— cheife Justice would not suffer that to be argued insomuch that it was of so great consequence being the common course of assurances But it seemes that the Recovery shall not be a Barâ— for the Remainders for the causes aforesaid and he said that he was of councell in Bartons Case and thought this Objection to be unanswerable and of this opinion continued Pasche 1612. 10. Jacobi in the Common Bench. Richard Lampitt against Margeret Starkey EJECTIONE Firme upon speciall verdict the case was this Lessee for five hundred yeares devised that to his Father for life the remainder and residue of that after the death of his Father to his Sister the Devisor dies the Sister which hath a remainder takes a Husband the Husband at the request of the Father grants release and surrenders all his Right Tearme and Intrest to the Father which had the Possession And the question was if by that the remainder of the Tearme should be extinct or not And it was argued by Dodridge for the Plaintiff that the remainder remaines that notwithstanding insomuch that this is
But here the thing which makes the execution is only release which enures as Release And for that the accepting of the release it cannot be execution of a Legacy But if the Executor to whom the first Devise was made had had any Co-executor and he would not have suffered him to joyn in occupation with him that had been full Declaration of his Intent that he took it as a Devise and not as an Executor as it is agreed in the 10 El. 277. Dyer 50. And he said also that it hath been agreed to him that it is such a possibility that cannot be granted as it is agreed in Fulwoods case 4 Coke 66. b. And he said it is not like to Harveys Bartons case where two Joynt-tenants for life were and one made a Lease for years to begin after his death and dyed and his companion survived him and agreed to be a good Lease against the Survivor notwithstanding the Contingency And he conceived that this might be released and that it is not like to contingent actions insomuch that it is a release of right in Lands see 5 H. 7. 31. b. Colts Assise where it is said if Lord Mesne and Tenant are and the Mesne is forejudged by the Tenant and after the Lord releases to the Tenant and after by Parliament it is enacted that the fore-judger shall be void yet the release shall be good against the Lord and so of actions by Executor before Probate and 14 Ed. 3. Barr Release of Dower by Fyne doth extingush it and Althams case 8 Coke if it be made to the Tenant of the Land that shall be a Barr. And 21 H. 7. fol. the last Release to a Patron in time of Vacation shall be a Barr in annuity brought against the Incumbent and if the Lessee for years be outed and the Disseisor makes a Lease for years to a stranger and the first Lessee release to them both this is good as it is 9 H. 6. and yet regularly such release is not good without privity But insomuch that it is of right to the Land and to one which hath possession it is very good So Release by Copy-holder extincts his Copy-hold right as it is resolved 4 Coke amongst the Copy-hold cases and yet hee agreed that some possibilities cannot be released as in Albayns case power of Revocation if it be not to the Tenant of the Land insomuch that this is a meer possibility So if an annuity depend upon a condition precedent but where the returning of the estate is to the party himselfe as in Diggs case 1 Coke 174. a. And also the release in this case is the more strong insomuch that the estate in this is recited as in the case of 44 Ed. 3. in release of Ayde And so he concluded that admitting there be no election and execution of the Legacy by the acceptance of the Release then the title of the Defendant is good and if it be a good election execution Yet he conceived that all the tearm remains in the first Devisee and that the remainder is destroyed by the release and so prayed Judgment for the Defendant and so it was adjourued Pasche 1612. 10. Jacobi In the Common Bench. Manley against Jennings IN Debt upon an Obligation with Condition to performe observe fulfil and keep all Covenants Grants Articles Payments contained in a Lease c. The Lessee doth not pay the Rent at the day and the Plaintiff without making of any request begins a Suit upon the Obligation and upon this matter pleaded in Barr the Plaintiff replyed that he was not demanded and upon this the Defendant demurred And Harris Serjeant for the Defendant argued that when any penalty is annexed to a payment of the Rent be that annexed to the estate or otherwise yet it ought to be requested and without request to pay it no penalty shaâ—l be incurred as in 22 H. 8. 57. a. b. by Newton Ashton and Port where a difference is taken between an Obligation taken for payment of Rent generally without any relation to a Lease and where it is only for performance of Covenants and Issue taken upon the request and after demurrer joyned and the question if the Lessee ought to tender it 14 Edw. 4. 4. accordingly And in 21 Edw. 4. 6. a. b. Pigott and Bryan agreed that there shall be no penalty nor Obligation forfeited without request where the Obligation is for performance of Covenants and not precisely for the payment of Rent and so he concluded and prayed Judgment for the Defendant Nichols Serjeant for the Plaintiff conceived that the Lessee ought to make tender upon the Land to save the penalty and this shall be sufficient and the Lessor need not to make request and this is the Obligation for performance of Covenants for this doth not alter the nature of the Rent but if it be for payment of Rent precisely there the Lessee ought to seek the Lessor or otherwise for not payment he shall forfeit his Obligation for there tender upon the Land shall not excuse him And for that if a man makes a Lease for years rendring Rent at Michaelmass with nomine poene if it be not payed within 10 dayes after Michaelmass and within the 10. dayes and these differences appear and are agreed in 22 H. 6. 57. and 6 Edw. 6. Brooke tender 20. And he conceived that the Books of 14 Ed. 4. 4. 20. Ed. 4. 6. and 11 Ed. 4. 10. depends upon these differences that is that a man shall not distrain for Rent charge without Request insomuch that it is as a Debt which is due upon Request and admit that the case were that a man made a Lease for yeares the Lessee covenants to pay the Rent at the day with a nomine pene in default of payment of that and after the Lessee assignes his Interest to one which Covenants to pay the Rent and performe all the Covenants in the Lease he demanded in this case who shall make the request that is the first Lessor or the Lessee insomuch that it is penall to the Assignee of them both and so many Suits may arise upon that and also he sayd that it was ruled here upon a motion in arrest of Judgment that in Debt upon an Obligation to performe Covenants there need not to be alledged demand upon Solvit or non Solvit put in Issue for it may be pleaded that it was tendered or payd and so he sayd it is confessed by the Demurrer that the Obligation is forfeited and for that he prayed Judgment for the Plaintiff Coke cited Myles and Dragles Case where a man was bound for performance of a Will he need not to pay Legacy devised by that for which is no day assigned without request so if the Obligation be for payment of Legacy expresly and no day assigned and so it was adjourned Trinity 1612. 10. Jacobi in the Common Bench. Gravesend Case IN Debt the case was this that is the
concluded and praied Judgement for the Plaintiffs Wynch Justice that the Count is not good for the Plaintiffs have not alledged that they have used time out of mind c. To maintaine Ferrey but only that they have used to make Constitutions Secondly it is not alleadged that they onely have used to maintaine Ferrey and if they cannot prescribe in the sole using of that and to exclude others then others may use that as well as they being for the publick good for how shall they be punished if that they do not use and maintaine at the Common Law the Inhabitants of a Towne shall be punished for not repairing of a Bridge or high Way the which may be maintained by the Inhabitants together and if they do not do it then others may do it as well as others may repaire high Waies or Bridges as those which have used to repaire them as a common Host shall be punished in Eyre if he refuse to lodge any man and yet he which he refused to lodge may have an Action upon the Case for the refusall Also the Patent gives the forfeyture to the Port-reeve but the By-Law doth not make any mention who shall have it and he conceives that it shall not be as upon the Statute of 2. Ed. 6. Which gives penalty for not setting forth of Tythes but doth not appoint who shall have them and this was adjudged to be to him which ought to have the Tythes but this cannot be so here insomuch that it is against the Grant and agreed that a stranger shall be bound by By-Law where it is for the publick good but not otherwise and also the custome that these Bardge-men shall have the preheminence may be good as well as custome that the poore of such a Parish shall have common in such a place till such a day and then the others and so in this case and so he concluded that Judgement shall be Arrested Warburton Justice conceived that the Count is good and that the Inhabitants may prescribe very well as 47. Assis foure Townes were charged for the repaire of a High way and so may the two Townes for the Ferrey that he intended to be high way upon the water and also he conceived that this is inquirable in Eyre and also by the Justices of the Kings Bench and now by the Justices of Assises by Indictment by the name of Inhabitants The which may be as good an Action upon the Statute of Winton against the Inhabitants of the Hundred and so he conceived that in this case the Inhabitants of Milton and Gravesed may be punished by Indictment if they do not repaire the Ferrey and that the King there this day may erect a Ferrey in place where it is necessary for the King may erect office which is for the benefit of the Common Wealth but not to charge the Common Wealth And that if any will passe in his owne Ferrey without carrying of another this is no breaking of the By-Law and so he concluded that Judgement should be given for the Plaintiffs Coke cheife Justice seemed the contrary for he conceived it is not shewed in the Count to whom the Ferrey belongs for the owners of that are not mentioned the which it ought And yet he agreed that a Ferrey may be without owner as it is agreed 12. Ed. 4 8. Insomuch as this is locall and need not any Agent but out of Leete and Ferrey otherwaies it is for there ought to be Agent or otherwise the Ferrey should be of no use and for that there ought to be an owner Secondly it is alledged that Infra Easterne Townes there is such a custome that the Inhabitants may make constitutions and that the Inhabitants shall maintaine a Ferrey but not that there was a Ferrey but that he conceived it might be good insomuch that it is not traversable Thirdly what Action the Inhabitants may have if they be disturbed of it for this is no easement and they have no Estate of Inheritance and for that the Prescription by the name of Inhabitants is not good for they cannot have Estate and to the Satute of 6. H. 6. chapter 7. Which saith it is a laudable custome and usage that a Bardge shall be maintained but not that Inhabitants shall maintaine that nor those incorporate so that the Statute doth not make them capable of such a thing for which a Writ of right and assise by the Statute of Westminster 2. lies Fourthly That the custome and the Patent are repugnant for by the custome the Bardge hath not any preheminence nor precedence but equall liberty was to all water-men to carry what passengers that they could and with that also agreed the Statute of 6. H. 6. And then if the custome were not so this cannot be made by the grant of the Queene nor by the By-Law for this is the liberty of the Subject the which cannot be abridged nor restrained by them for if the King may grant such prehâ—minence here so may he do in all other Ferreis and places and also in the practise of the Law to have preaudience in this Court and in all other Courts of Justice And so should it be also of Butchers and Bakers and all others which used buying and selling And he said that the King hath preemtion of time in some places but this is not by his prerogative but by the custome of the place And he agreed that custome in subject may have preemption but not by the Kings grant for the King cannot grant that to another that he himselfe hath not by his prerogative and perchance he which hath such grant will not come to Market till all the Market be ended and he conceived that the River of Thames is so publick that the King cannot restraine that by his grant no more then he can grant preheminence to a Coachman to carry people into the Streets of London The which is adjudged upon the matter in the 50. of Ed. 3. Toll 2. Where the King grants Toll for every one which passeth by a Common way And agreed that it was not good if it be in a Common Way or in a Common River for as it is resolved in the 22. assis 93. Every common River is as high Street and Common Waies and the passengers Way as the water increases and the Thames is a branch of the Sea and a common Street as it appears by Bracton fol. 8. 5. The Plaintiffs have brought their Action by the name of Corporation of Port-reeve Jurats and Inhabitants of Milton and Gravesend and they are incorporate by the name of Port-reeve Jurates and Inhabitants of Gravesend possessors of Ships the which words are left out in the name by which the Action is brought so that the By-Law is not made by the same name by which they are incorporate nor the Action brought by the same name And yet he agreed that they might make a By-Law according to the grant without calling all the
is a stranger and doth not know if these Defendants are Executors or Administrators as it is said by Danby 9 Edw. 4. 13. And he conceived that the plea is good that the Defendants have not goods besides the goods which do not amount c. And divers presidents were cyted by him to this purpose as Trin. 18. Eliz. Rot. 1405. between Blanekson and Frye Hillary 40 Eliz. Rot. 902. Smalpeeces case and Trin. 44 Eliz. Rot. 1900. between Goodwin and Scarlet in all which the pleadings were all one with the plea in question and no exceptions taken to that and infinite other presidents may be shewed in the point for which cause he demanded Judgment for the Defendants Coke cheife Justice seemed that in an action brought against one as Executor he may plead that Administration was committed to him for such intent that the dead dyed Intestate and demands Judgment if action without traverse that he was Executor and with this agreed 1 Ed. 4. 2. a. 20 H. 6. 23. And so if the Ordinary be charged as Executor he may plead that he administred as Ordinary without traverse that he was Executor but only shewed that the party dyed Intestate and the Plaintiff ought to reply that he made a Will and the Defendant proved that and traverse that he dyed Intestate and with this agreed 9 Edw. 4. 33. and 1 Edw. 4. 11. And if an action be brought against Executor of his own wrong hee may plead that administration is granted to such an one and the Party dyed Intestate and demand Judgment if action for he shall not be charged for more goods then came to his hands But if a man administer of his own wrong and after rightfull administration is committed to him yet he may be charged as Executor of his own wrong insomuch that Right of action is attached in him But this seems for the goods that he hath administred before rightfull administration committed unto him And he cyted 14 Eliz. Dyer 305. b. where in debt brought against one as Executor which pleads never Executor nor ever administred as Executor and the Plaintiffe replies that he administred as Executor of the Will c. and so to Issue And in Evidence the Defendant shews Letter of administration to him committed of goods of the dead by which he administred them and before that he did not administer and this seems there to be good Evidence but the Book was Quere of that and for that he would rather plead that in abatement of the Writ and so the Book inclined also And he conceived here that the medling with the goods here by the Defendant as Administrator made him Executor of his own wrong insomuch that it was for Funeralls and when it is a work of Charity and the other is to preserve them And the Defendant hath not conveyed himselfe to be Executor insomuch that he said that administration was committed to him by an Arch-Deacon and he doth not say that Administration of right belonged to him to commit insomuch that hee hath but a sub-ordinate Jurisdiction And the Common Law doth not take notice that he nor no other but the Ordinary hath such power and for that the power of all which have such subordinate and peculiar Jurisdiction is pleaded that ought to be shewed as it seems by 1 Ed. 4. 2. a. b. 22 H. 6. 23. And the rather when this is pleaded by the Administrator himselfe which ought to have notice of that and make title to himselfe and if so it be then he conceived that the Recovery by Hornego was void and so all the goods confest remain as Assets Also he conceived that if the Executor allow a Writ to suffer Judgment to be had against him upon a Writ which is abateable he shall not have allowance of that but this shall be returned as Devastavit as in 10 Edw. 3. 503. a. If the Tenant vouch when he might have abated the Writ he shall lose the benefit of his Warranty So here and Com. Manwells case 12. a. 22 H. 6. 12. 〈◊〉 Also he conceived if a man be charged as Administrator where he is no Administrator he cannot plead that he never administred as Administrator but he ought to traverse the Commission of Administration as it appears by 21 H. 6. 23. And it seems also to him and by 9 Edw. 4. 33. that if a man be an Executor of his owne wrong and after administration is committed to him and he is charged as Executor after administration committed that the Writ shall abate otherwise if administration be committed hanging the Writ So if a man be made Executor and hee not knowing of that Iues letters of Administration he shall be named Administrator and if after when he hath notice of the Will he proves it then he shall be impleaded by the name of Executor for in such manner as the power is given to him by the Bishop he shall be charged and it seemes though that he plead where he is Administrator and is sued as Executor or otherwise in such manner that hee might have abated the Writ or suffer Judgment yet the Writ shall abate and he intended also that Executor of his owne wrong might pay debts due to another and shall be discharged and shall not be charged with more then he hath in his hands And if two Executors are joyntly sued and one confesse the action this shall bind him and his companion also for so much as he hath in his hands But if an Executor of his own wrong confesse the action this shall not prejudice him which is rightfull Executor and so he conceived that judgment ought to be given for the Plaintiff Warburton Justice conceived that the Barr is good notwithstanding that he did not shew that the Arch-Deacon had power to grant Administration insomuch it is no Inducement and the Defendant doth not relie upon it as Littleton saith in Trespasse where the Defendant pleades that it was made by two and the Plaintiff releases to one and if the Defendant pay due Debts it is not materiall whether he have Authority or not though that it be in another respect As if a man be Indicted of man-slaughter and aquitted and after is Indicted of Murder by the same man he may pleade another time aquitted insomuch that these are matters of substance But here it is but of forme and then if it be not shewed it is not materiall But the matter upon which he relied was insomuch that the Action was brought against two Executors and one hath confessed the Action And he intended without question that if this shall bind his companion and for that he will not dispute the other questions but declares his opinion cleerely that the Plaintiff ought to have Judgement against both these Defendants upon the confession of one and this shall bind his companion Wynch Justice conceived that the Plea is good by Administrator without traverse insomuch that it is to the Writ as it
appears by 9 Edw. 4. 33. 37 H. 6. 32 H. 6. 1. Ed. 4. 2. 50. Ed. 3. And he conceived that the burying is not any Administration nor the taking of the goods into his custody to preserve them no more then in Trover and Conversion when a man takes the goods for to preserve them And he agreed that where a man intitles himselfe to goods by Administration committed by any but by the Bishop he ought to pleade specially that he which committed it had power to doe it But here it is not so but only conveiance and for that need not here such precise pleading of that insomuch it is only execution of Administration and for that it is good without intitleing the Arch-Deacon And he agreed that an Executor of his owne wrong may pay Debts due to another and shall be discharged And he agreed also that the Confession of one Executor shall bind his Companion and that Judgement shall be given upon that for the Plaintiff And they all agreed that the pleading that the Defendant hath no goods besides the goods which do not amount c. it was not good and for these causes they all agreed that Judgement ought to be given to the Plaintiff Trinity 10. Jacobi in the Common Bench. Tyrer against Littleton 9. Jacobi Rot. 299. IN Trespasse for taking of a Cow c. Upon not guilty pleaded by the Defendant the Jury gives speciall Verdict as it followes that is that the Husband of the Plaintiff was seised of eighty Acres of Land held of the Defendant by Harriot service that is the best Beasts of every Tenant which died seised that he had at the time of his death and that the Husband of the said Defendant long time before his death made a Feoffment of that Land in consideration of marriage and advancement of his Son to the use of his Son and his Heires with such agreement that the Son should redemise to his Father for forty yeares if he so long lived and that after the marriage was had and the Son redemised the Land to his Father and the Father injoyed that accordingly and paied the Rent to the Lord and after died and that the Plaintiff had no notice of his Feoffment and that the Husband at the time of his death was possessed of the said Cow and that the Defendant took it as the best Beast in name of Harriot and also found the Statute of 13. Eliz. of fraudulent conveiances to deceive Creditors and so praied the direction of the Court and this was agreed by the Plaintiff aforesaid Nicholls Serjeant first that all conveiances made upon good consideration and Bona Fide are by speciall Proviso exempted out of the Statute of 13. Eliz. chap. And he conceived that this is made upon good consideration and Bona Fide and for that it is within the said Proviso and also he said that as upon the Statute of Marlebridge there is fraud apparent and fraud averrable as it appeares 12. H. 4. 16. b. Where in ward the Tenant pleads that his Father levied a Fine to a stranger the Lord replies that this was by Collusion to re-enfeoff the Heire of the Tenant at his full age and so averred that to be by Collusion to out the Lord of his Ward and this is fraud averrable But if the Tenant had enfeoffed his Tenant immediately in Fee-simple this is apparent without any averment and the Court may adjudge upon it And so upon the Statute of 27. Eliz. chap. 4. it appears by Burrells Case that the Fraud ought to be proved in Evidence or confessed in pleading or otherwise this shall not avoid conveiance for it shall not be intended 6 Coke 78. a. and see 33. H. 6. 14. b. Andrew Woodcocks case upon which he inferred that this is but a fraud averrable if it be a fraud at all and of this the Court could not take notice if it be not found by the Jury and he said upon the Statute of 32 H. 8. Of Devisees as it appeares by Knights Case 8 Coke and 12. Eliz. Dyer 295. 8 9 10 10 11 12 13 14 15 16 17. And so he concluded and praied Judgement for the Plaintiff Harris Serjeant for the Defendant argued that the Circumstances which are found in the speciall Verdict are sufficient to satisfie the Court that it is fraud for as well as the Court may give direction to the Jury upon Evidence that it is fraud and what not as well may the Court Judge upon the special matter being found by special Verdict at large as in 9 El. Dyer 267. and 268. that is the special matter being found by special verdict at large as in 9 El. Dyer 267. 268. that is the speciall matter is found by Inquisition upon Mandamus and leave to the Court to adjudge if it be fraud or not and in 12 El. 294. and 295. 8. the speciall matter was found by Jury upon Eligit directed to the Sheriffe and by him returned to the Court And in Trinity 27. Eliz. between Saper and Jakes in Trover the Defendant pleades not guilty and gives in Evidence as assignement of a Tearme to him with power of revocation And the Court directed the Jury that this was fraudulent within the Statute of 27. Eliz. to defraud a purchasor and in Burrells Case 6. Coke 73. a. before the fraud to the Court upon Evidence to the Jury and the Court gave direction to the Jury that it was fraud and that upon the Circumstances which appeares upon the speciall Evidence And so in this case he conceived that insomuch the circumstances appear by the Verdict that the Jury may very well adjudge upon it and so he concluded and praied Judgement for the Defendant Coke cheife Justice that the Statute of 13. Eliz. Doth not aid the Defendant insomuch that the Feoffment was made for good consideration and for that shall be within the said Proviso for if that shall be avoided at all that shall be avoided by the Statute of Marlebridge which is ouly affirmance of the Common Law and this is the reason that not withstanding the Statute speakes only of Feoffment by the Father to his Son and Heire apparent yet a Feoffment to a Cosin which is Heire apparent is taken to be within the Statute and in the 24. of Eliz. in Sir Hamond Stranges Case It was adjudged that if the Son and Heire apparent in the life time of his Father purchase a Mannor of his Father for good consideration this is out of the Statute and so it was adjudged in Porredges Case also he said that the Law is an Enemie to fraud and will not intend it being a conveiance made for consideration of a marriage to be fraudulent no more then if the Father had made a Feoffment to the use of a stranger for life the remainder in Fee to his Son and Heire the which is not within the Statute of Marlebridge as it is agreed in Andrew Woodcocks Case 33.
H. 6. 14. b. Also he conceived that the Feoffment in consideration of marriage naturall love to his Son and that the Wife of the Sonne shall be Indowed and that the Son should redemise that to his Father for forty yeares if he so long lived and that the Father should pay the Rent to the Lord these he intended to be good considerations and for that should be within the said Proviso of the Statute of 13. Eliz. otherwise if it had been to defraud Creditors But if it had been to such intent that is to defraud Creditors this shall not be extended to other intent that is to defraud the Lord of his Harriot And in the 28. of Eliz. it was adjudged in the Kings Bench if a man make a Feoffment in Fee to the use of himselfe for life remainder to his Son in tayl with divers Remainders over with power of Revocation and after bargaines and sells to a stranger upon condition and after performes the Condition that yet the first conveiance remaines fraudulent as it was at the time of the making of it But this is only as to the purchasor and not as to any other And in Goodhers Case 3. Coke 60. a. In debt against Heire which pleads nothing by discent day of the Writ purchased the other joynes Issue and gives in Evidence fraudulent conveiance and upon speciall Verdict adjudged that it was very good See also 4. Coke 4. b. c. Vernâ—ns Case the Collusion to have Dower and Joynture also And so he concluded that Judgement should be given for the Plaintiff Warburton Justice agreed that the fraud shall not be intended if it be not found no more then if a man grant an Annuity to another Quam diu se bene gesserit in Annuity for that he need not to averr that he hath behaved himselfe well for this shall be intended if the contrary be not shewed of the other party So here insomuch that it is not found to be fraudulent it shall be intended to be Bona fide And he agreed that if it had been fraudulent at the first If the Son had made a Feoffment over in the life of the Father as it is agreed in Andrew Woodcocks Case 33 H. 6. 14. that then the fraud is determined So here when the Son hath made a Lease to his Father this determines the fraud if any be and so he concluded that Judgment should be given for the Plaintiff Wynch Justice agreed insomuch that it is expresse consideration found by the Verdict and for that other consideration shall not be intended and also that it shall not be intended that the Conveyance was made to defraud or to deceive the Lord of such a Peccadell as Harriot is which is of small consequence but if it be a fraud within the Statute of 27 Eliz. apparent that is if it containe power of revocation which is declared to be apparent fraud by the Statute the Court may take notice of that without any averrment And he saith That in the 2. and 3. Eliz. Dyer Wainsfords Case 193. a. and 9 Eliz. Dyer 267 268. there is no averrment of fraud but expresse Issue joyned upon the Fraud and for that he need not any other averrment And so he concluded also that judgement should be given for the Plaintiffe and so it was Ruled accordingly if the Defendant did not shew other matter to the contrary at such a day which was not done Trinity 10. Jacobi 1612. In the Common Bench. Strobridge against Fortescue and Barret IN a Replevin the case was this A man seised of Lands in Fee devises Rent out of it with clause of Distress and dies his Son and Heire enters and dyes the Rent is behind the Son of the Son dyes and his Son enters and makes a Feoffment to the Plaintiff and the Devisee of the Rent releases all Actions Debts and Demands to the Feoffor and after distraynes the Beasts of the Feoffee for the Rent behinde before the Feoffment and it seemes the Release is not good insomuch that the Devisee had no cause of Action at the time of the Release made against him to whom the Release is made nor Demand against him otherwise if the Release had been made to the Feoffee for he was subject to the distress and this is a demand Trinity 10. Jacobi 1612 In the Common Bench. Case of Cinque Ports NOTE that Coke said that it hath been adjudged by three Judges against one in a Case of Cinque Ports that the Cinque Ports cannot prescribe to take the Body of a Freeman in Withernam as they use for another for this is against the Statute of Magna Charta Quod nullus liber homo Imprisonetâ—r nisi per Legate Judicium and also against the liberty of a Subject but they more inclined that they might take the Goods of one in Withernam when another is arrested and them retain and this seemes the more reasonable Custome and Prescription The Case was Tenant for life the Remainder for life with warranty the first Tenant for life was impleaded and he vouches him in Reversion but he first prays in aid of him in Remainder and if this aid prayer shall be granted this was the question And it seemes by Nicholls Serjeant that it shall not be granted see 11 H. 4. 63. Where it is agreed that if a man makes a Lease for life Remainder for life Remainder in fee and the first Tenant for life hath ayd of him in remainder for life and he in Fee joyntly and 44 Edw. 3. 20. in Trespasse against a Miller which takes Toll where he ought to grind Toll-free the Defendant saith that J. had the Mill for life and that he is his Deputy the reversion to W. in Fee and prays ayde of the Tenant for life and of the Tenant in reversion and had it of the Tenant for life and not of him in reversion and this for default of Privity as it seems to Brooke Ayde 30. Haughton conceived that it should be granted for Tenant for life notwithstanding that he may plead any Plea yet he doth not know what Plea to plead without him in reversion but by the ayde praying al the Estate shall be reduced into one and the warranty shall come and for that he conceived that the first Tenant for life shall have ayde of him in remainder for life Wynch Justice conceived that ayde shall not be granted against the first Tenant for life against him in remainder for life for he conceived that ayde is alwaies to be granted when the defects of him and his Estate which prays it are to be supplyed by him which is prayed that this is the reason that he may have ayde of his Wife and where there are many remainders the first Tenant may have ayde of them all otherwise where he is Tenant for life the remainder for liâ—e and the reversion expectant for the Tenant for life cannot supply his
and for these reasons he prayed a consultation and Yelverton to the contrary and he took a difference and sayd that he agreed that if the Wardens of the Church have once possession of the Church there in Action of Trespas brought for these Goods one Warden cannot release but this tax for which they sue is a thing meerly in Action of which they have not any possession of that before and there he cannot sue alone and for that this release shall barr his Companion And the Court interrupted him and sayd that cleerly consultation shall be granted and Flemming cheife Justice we have not need to dispute this release whether it be good or not and there is a difference where a suit is commenced before us as if Wardens of the Church brought Trespasse here for Goods of the Church taken and one Release then we might dispute if this release were good or not but when the matter is original begun before them in the spirituall Court and there is the proper place to sue for this Tax and not any where else we have nothing to do with this Release and for that by the whole Court a consultation was awarded Hillary 7. Jacobi 1609. In the Kings Bench. Styles Case UPon a Motion made by Yelverton on the behalfe of one Styles the Case was this Styles had a Judgment in Ejectione firme and was put in possession by the Sheriff by an Habere facias possessionem and after the Defendant enters againe within the two weeks after Execution and the Writ was returned but not Fyled and Yelverton moved the Court for another Writ of execution and by Williams he could not have a new Writ of Execution but is put to his new Action and the Fyling of the Writ is not materiall for it is in the election of the Sheriff if he will Fyle or returne that or not but be sayd if the Execution had not been fully made as he sayd there was a Case where the Sheriff made an Execution of a House and there were some persons which hid themselves in the upper Lofts of the House and after the Sheriff was gone they came downe and outed those that the Sheriff had put in possession before and in this Case a new Writ of Execution was awarded but there a full Execution was not made and so the difference But the cheif Justice sayd That if the Sheriff put a man in possession and after the other which was put out enters in forthwith that in this Case the Court may award an Attachment against him for contempt against the Court. Hillary 7 Jacobi 1609. In the Kings Bench. Gittins against Cowper CUstome of one Mannor was That if any Copy-holder within the Mannor committed any Felony and this be presented by the Homage that the Lord may take and seise the Land a Copy-holder committed Felony and this was presented by the Homage and after the Copy-holder was Indicted and by Verdict acquit and the Lord entred and if his entry were lawfull or not was the question The points were two First If the Custome were good Secondly Admitting the Custome to be good if this Verdict and acquittall shall conclude the Lord of his entry And Walter of the Inner Temple argued that the Custome was good and that the Lord was not concluded by this Verdict And to the first point he sayd That it was a good Custome First insomuch it might have a reasonable beginning and for that he cyted the Book of 35 H. 6. where it is sayd that such Customes which might have reasonable beginning should be good and to that he cyted a Case which was adjudged as he sayd in 27 Eliz. and was one Delves Case and the Case was this A Quo warranto issued against Delves to know Quo warranto he held a Leet to which he pleaded that he was seised of such a Messuage and that he and all those whole Estate he hath in the said Messuage have used allwaies to have and hold a Leete there within the Messuage If this prescription that is to have a Leete appendant to a single Messuage was good or not was the question And it was adjudged insomuch that by resonable intendment it might be that this house was the Scite of a Mannor and the Lord granted that with the Leet the Prescription adjudged good and he sayd that many Customes are grounded upon the nature of the place and for that he sayd that this Mannor was adjoyning to great Woods and it might be that the Copy-holders committed Felonies and outrages and after fled into the Woods and there lived and yet injoyed the benefit of their Copy-holds and for that it was reasonable for the Lord to annex such a restraint and condition that is if they committed any Felony this should be a forfeiture of their Copy-hold and this should be a meanes to bridle them to commit such haynous and odious offences And that Customes ought to have a respect to the place he cyted the Case of 12 H. 3. where the Custome of the Isle of Man was That if any man stole a Hen or a Capon or such small matter that should be Felony but if he stole a Horse that should not be Felony for a man may privily convey away a Hen or might consume it but for the smalnesse of the place and being compassed with the water he could not so doe with a Horse So in 39. H. 6. That the married Wife of a Merchant in London may sue and be sued by the Custome and the reason is that London is the cheife City and place of Merchandise within the Realme of England and it is conceived that the Merchants cannot be alwaies resident there but sometimes beyond Sea or other where about their businesse and Affaires and for that it shall be reasonable that his Wife shall sue and shall be sued in his absence and in time of E. 1. Title Prescription the custome of Hallifax that if any Felon be taken with the manner he shal be forthwith beheaded and this was as it seems for the better suppressing the common Felonies there committed and so he concluded for this Reason that this custome might have such reasonable beginning and in respect of the place that should be a good custome His second Reason was that this might begin at this day lawfully Therfore this shall be good and for that he cited the case of 10 H. 7. 11. That if a man make a Feoffment upon condition that the Feoffee shall not commit Felony that this is a good condition but he sayd that he supposed that if the Feoffee commit Felony and the Feoffor enter into the Land and after the Feoffee is attaint of this felony that now the Lord shall enter by Escheate and his reason was that the Statute of Westminster 3. De quia emptores terrarum prohibits any man to make a Feoffment to the prejudice of the Lord to his Wardship or Escheat His third reason was that this
of the Lessor But he agreed the case of Littleton that an Assignee of an Estate may perform a condition in preservation of an Estate otherwise of an Assignee of a Reversion in destruction of an Estate so at the Common Law it is clear that the Feoffee cannot perform the condition and by him it is cleerly out of the Statute of 32 H. 8. for this Statute doth not extend to a collaterall condition as it appears by Spencers case 5. Coke and so hath been many times after this adjudged and this is a collaterall condition Ergo c. And so concluded and prayed Judgment for the Defendant Nicholls Serjeant to the contrary and that this Disseisin hath not suspended the condition but that he may pay the Money and make the Estate to cease notwithstanding the Disseisin for-that that the condition is collaterall like to the 20 of Ed. 4. and 20 H. 7. That where a Feoffee upon a collaterall condition takes back an Estate for years yet this shall not suspend the condition but it may be performed or broken notwithstanding the Lease for that that it is collaterall so in our case for suppose that the condition had been if he marry Mistris Holbeam that then his Estate shall cease and as well it shall be upon the Tender of the Money here and he said that this case was late in the Common Bench. This feoffment was made to the use of the Feoffor for life Remainder to another for life the Remainder to the third in tayl the Remainder to the right Heirs of the Feoffor in fee with power of Revocation and after the Feoffor lets for years and during the Tearm he revokes the mesne Remainders and it seems to the Justices that well he may for that that the Lease for years goes only out of the Estate for life as he sayd and for that the power of Revocation as to the Mesne Remainders was not suspended Quere of the truth of this case in the common Bench for perchance it is not truly collected but so entred and so he prayed Judgment for the Plaintiff Flemming cheife Justice sayd that the point of the principall case would be if by the wrong of the Lessor the Estate of the Lessee shall be prevented to accrue then he might perform the condition to determine the ancient Estate that is the Lease for years and it is adjourned Pasch 8. Jacobi 1610. In the Kings Bench. Earle of Shrewsbury against the Earle of Rutland IN a Writ of Errour the Earle of Rutland brought an Assise of Novel Disseisin against the Earle of Shrewsbury and four others and the Plaint was of the office of the keeping of the Park of Clepson and of the vailes and fees of the sayd Parke and of the Herbage and Paunage of the same and the Demandant made his title and alledged that the Queen Eliz. was seised of Clepsam Park in fee in right of her Crown and that she being so seised by her Letters Patents under the great Seal granted unto one Markham the keeping of the Park of Clepson with the vailes and fees and the Herbage and Paunage of the same Park for his life after the Queen Eliz. reciting the Grant made to Markham and that Markham was alive gave and granted by her Letters Patents to the Earl of Rutland the Office of the keeping of the sayd Clepson Parke with the Fees and Wages to that appertaining to have and to hold to him for his life after the death of Markham or after the surrender or forfeiture of his Letters Patents and further granted the Herbage and Paunage to the sayd Earle of Rutland for his life and doth not say when this shall begin after which the Queen Eliz. died and the Eee-simple discended to our Lord the King which-now is as lawfull Heir to the Crown of England which granted that to the Earle of Shrewsbury after which Markham dyed and the Earle of Rutland entered and was seised till the Earle of Shewsbury with four others entered upon him and dissersed him and to that the Tenants alledged no wrong no disseisin and when the Assise was to be taken in the Country the Array was challenged by the Tenants for that that one of the Tenants in the Assise had an Action of Trespasse hanging against the Sheriff and this challenge was not allowed and the Assise being perused at large for the Herbage and Paunage they found that the said Queen Eliz. was seised of Clepson Park as aforesaid and by her Letters Patents as afore is rehearsed granted the Keeping of this to Markham for his life and further by the same Letters Patents granted to him the Fees and Wages to that belonging and further granted by Letters Patents and doth not say Easdem to him the Herbage and Paunage of the sayd Park and that the Queen after the reciting the Grant made to Markham and that Markham was alive granted to the Earle of Rutland the keeping of the sayd Park and vailes and fees to have and to hold after the death surrender or forfeiture of the Letters Patents of Markham for his life And further by the sayd Letters Patents shee granted the Herbage and Paunage of the same Park to him for his life as more fully appears by the Letters Patents and it was not expressed as to the Herbage and Paunage when that began and they found the death of Markham and that the Earle of Rutland put two Horses into the sayd Park to take seisin of the sayd Herbage and Paunage and they found further the grant of the King to the Earle of Shrewsbury of the fee-simple and of that prayed the advise of the Court and to the keeping of the Park they found the seisin and disseisin of that and of the fees and wages to the Dammages c. And this being adjourned into the Common Bench was remanded into the Country and there Judgment was given for all for the Demandant and after this it came into the Kings Bench by Writ of errour and the Errours assigned by the councell of the Tenants and argued at the Barr were foure The first was that the Earle of Rutland himself between the verdict and the Judgment hunted in the Park and kild a Buck and took a shoulder of that for his fee and so he hath abated his Assise and so the Judgment was given upon a Writ abated and therefore they cannot plead that in abatement insomuch that it was mesne betwixt the Judgment and the verdict they assigned that for errour The second was because the principall challenge was not allowed where that ought to have beene allowed and the challenge was that one of the Tenants had an Action or Trespasse hanging against the Sheriff before the Assise The third was Because the Jury have found the Letters Patents made to Markham and that the Queen granted to him by her Letters Patents the custody of the Parke of Clepson in Clepson And further by the same Letters Patents granted the vailes
was Error and for this cause and another exception to the Record which was not much materiall he reversed the Judgment And at another day Flemming cheife Justice rehearsed the case and this argued and to the first matter he conceived First That it is no such entry that abates the Writ Secondly Admitting that it were yet this cannot be assigned for Errour And to the first matter he took this ground That every entry which may abate a writ ought to be in the thing demanded and for that he sayd if a man brings an Assise of Rent or common and hanging this Assise he enters into the Land this is not any Entry which will abate the Writ and he sayd that the Park and the keeping of the Park are two distinct things and for that the entry into one that is the Park will not abate the Writ for the keeping of that and to that which is sayd that he took a Fee that is a shoulder of a Buck that doth not make any matter for two reasons First he hath not shewed a Warrant he had to kill the Buck. Secondly the taking of the fee is no entring into the Office but the excercising of that but admit that this were an entry or the thing it self yet he sayd every entry into the thing shall not abate the Writ and to that he sayd that if this entry of the Earl of Rutland to hunt was no such entry that shall abate the Writ for his office was not to hunt and for that his entry being to another purpose it shall not be sayd an entry to abate the Writ and for that he cited a case which hath been cited as he sayd by Justice Yelverton that if a man have Common in the Land of J. S. between the Annunciation of our Lady and Michaelmas and the Commoner brought an Assise of his Common and at Christmas put in his Beasts and this shall not be any entry to abate his Writ for it cannot be intended for the same Common which case is agreed to be good Law and he cited the case put by Brooke in Assise of Freshforce before remembred Com. 93. Where hanging a Formedon the Tenant pleads in abatement of the Writ that the Demandant hath entred after the last continuance and upon the evidence it appears that many were cutting wood upon the Land and the Demandant comes into the Land to them and warnes them upon the perill that might ensue to them that they should do no more then they could do by Law and this was found no entry Also the case of 26. Assise before cited by Justice Crooke and he sayd that the Statute of Charta de Foresta chapter 11. willeth that every Arch-Bishop Bishop Earl or Baron comming to the King by his command and passing by his Forrest c. Was licensed to take one Beast or two by the sight of the Keeper c. Put case then that the King had sent for the Earl of Rutland and he had passed through this Park and had killed a Buck had this beene an entry to abate this writ Quasi diceret non for this was entry to another purpose so he sayd in the principall case the entry to hunt and so no entry to abate the Writ but admitting that this had been an entry which would abate the writ then let us see if this entry hath so abated the writ being Mesne between the Verdict and the Judgment it cannot be assigned for errour and to that he agreed the diversity before taken by Crooke and Williams where the writ is abated by Plea and without plea and he cited a Judgment in the Kings Bench between Jackson and Parker 2 Eliz. where in Ejectione firme the Plaintiff entred Mesne between Verdict and Judgment and this was assigned for Errour in the Exchequer Chamber and the Judgment notwithstanding affirmed and he sayd that if Memorandum had been made of it or if a Jury had found it and it had been prayed that that might be Recorded yet this had not been materiall and that that be not assigned for Errour And to the matter moved by my Brother Williams that there should be a variance between the plaint and the Title he conceived that there is no such variance that shall make the Judgment errronious and to that he examined the matter First that the Assise was of a Free-hold in Clepsom and his title is made of the parke of Clipson that that cannot be otherwise intended but that of necessity it ought to be the same park For first there is but one park by all the Record Secondly the plaint saith De parco predicto which hath reference to Clepsom park and there is but one park put in view by all the record Fourthly It shall be so taken according to the common speaking Fiftly when he hath made his plaint of the custody of the park of Clepsom and of the Herbage and paunage of the park aforesaid called Clepsom these words called Clepsom are but Idle and Trifles and that which is but Surplusage shall not annoy Also he said that J. and E. are letters which do not much differ in pronunciation and they are all one as I and he shall be pronounced as hi and he cited the Book of 4 H. 6. 26. Where in Debt variance was taken between the writ and the Obligation that is Quatuordecem pro Quatuordecim and this variance was not materiall but that the writ was awarded good and so he conceived that in this case the variance of Clepsom and Clipsom shall not be such a materiall variance that shall make the Judgment erronious and to the title First to Markhams grant that is where the Jury have found Quod ulterius concessit c. And doth not say Per easdem he held that good without scruple and this for the necessary relation that this had to any thing before granted for he sayd that this should be a strange and marvelous patent which begun in such a manner that is Et ulterius Rex concedit c. And there was not any thing granted before And for that he cited the case of 11 Ed. 4. 2. where Debt was brought upon an Indenture against the Abbot of Westminster and the Indenture was between the Abbot of the Monastry of the blessed Mary of Westminster and rehearsed divers Covenants for performance of which Covenants the Abbot of Westminster bound himself in twenty pound and doth not say that the aforesayd Abbot and yet good for it shall be intended the same Abbot for he is party to the Deed and the case of 10 H. 7. 12. Where in Assise of Common the plaintiff makes his plaint of Common appurtenant to his Free-hold in D. and shews for Title that he was seised of a Messuage and of a Carve of Land in D. to which the Common is appurtenant and that he and his Ancestors and all those whose Estates c. have used Common of pasture with ten Beasts and exception
taken to the title because he saith that he was seised and not saith that he is and yet good by this word Fuit for that shall be intended that he continues seised so he sayd that things which are necessarily to be intended though they be not so particularly expressed yet shall be good by Implication and so he concluded that this is no Error for which the Judgment shall be reversed And to the challenge he conceived that this is not any principall challenge and to that he put this difference that if a man brings an Assise of certain Land and hath an Action of Trespass hanging against the Sheriff for entring into the same Land there shall be a principall challenge to the Array but if it be for entry into other Land not in demand otherwise it is and what is principall challenge and what not he cyted the Bookes of 3 Ed. 4. 12. 6 Ed. 4. 1. 21 Ed. 4. 67. 14 H. 7. 1. 21. Ed. 4. 10. And to the point in question he cyted the Bookes before remembred by Crooke and Williams and no others and for that I omit to recite them and he agreed also that in actions which concern life Honesty Mayme Battery to say that he hath such action hanging against the Sheriff shall be a principall challenge but Trespass for entring into Land not for in Trespass there is no Land to be recovered also no damages but to the value of the Trespass And in Debt a man shall recover more then in Trespasse And yet it is agreed that this is no principall Challenge to say that he hath an Action of Debt hanging against the Sheriff as the Book of 11 H. 4. is which hath been remembred and for this I conceive it no principall challenge And to the seisin of the Paunages if a Horse may take seisin of that it seemes that yea for I conceive that the taking of seisin doth not consist in the eating or not eating of that of which the seisin is to be taken and for that he cited that if a man grant to me the Herbage and Paunage of his Parke and I come into the Parke and take the Grasse and Herbs into my hands or if I gather Akornes this is sufficient seisin for me to have Assise though that I do not eate the Grasse nor the Akornes and for that let us put the case that a man hath Herbage granted to him and he puts in his Beasts and before that they eate the grasse they are driven out none will deny but that that shall be good seisin for so is the Book of the 22. Assise 84. Where a man hath Common granted to him and he takes the Beasts of a stranger and puts them in and them forthwith drive out that shall be a good seisin of the Common to have Assise so that he said that the eating is not to purpose also he said Horses will eate Akornes as well as Cowes And he saith that in the Country where he inhabits being a Wood-land Country they will not suffer the Beasts to go into the Woods at a certaine time of the yeare and this is when Crabs are ripe for then their Beasts will eate Crabs and set their teethes an edge and then not being able to chew Akornes do swallow them whole and then those Ackornes being swallowed whole will grow in the Mawe of the Beast and so kill them And he saith that though that Horses be not so proper Beasts to take seisin of Paunage as Porkes are yet being put in for the same purpose if they are disturbed that shall be Seisin and Disseisin and it seemes to him that when things are granted to one that it shall not be strange to say that seisin of one shall be seisin of both and for that if a man grants all his arrable Land all his Meadow and all his Wood Livery and Seisin in one suffices for all but I conceive that this is in respect of the soyle which passeth and so are all of one self same nature and so he conceives that this is sufficient Seisin and Disseisin found to have Assise And lastly to the Title of the Earle of Rutland he said that this was good and to the Grants of the King he said two things are necessary in all Grants of the King that is a Recitall and a certainty and when a recitall shall be necessary and when not and he said that in all cases when a common person makes a Lease for years or for life and the reversion is conveied to the King if the King will make Estate to another he shall not recite this Lease for this not being of Record the King cannot take notice of it and so he shall not recite But in all cases when the King makes a Lease for life or for years and after will make a Grant to another he ought to recite the first Estate because that is of Record And Justice Yelverton as I heard of those which were next unto him put this case That if the King grants a Lease for yeares rendring Rent and after the King reciting the Lease grants that to another for years or grants the reversion to another and doth not recite the Rent which was reserved upon the first Lease that this second Grant shall be void for the not recitall And the cheife Justice cited one Phillpotts Case to be adjudged in the 2. of Eliz. That where the King made a Lease for one and twenty yeares and after reciting the said Lease grants the reversion to another and before that the second Letters Patents were sealed the first Lessee surrendred And said that the second Grant was adjudged void for the King intended to passe a reversion and now he shall have a Possession and all that which is said to be in case of Land Now let us see how it shall be in case of office and for that if a common person hath â—n office in Fee and grants that for life and after grants the Fee simple to the King and the King will grant that to another there he ought to recite the common persons Grant as well as if it had been his one Grant for there is not properly a reversion of an office as the Book cited by my Brother Williams sayd Secondly if the office be recited in Esse and be not in Esse the Grant is void as Blanyes Case is in the Lord Dyer 3 Eliz. 197. 47. And this sufficeth for recitalls Then for certainty of the Kings Grant it is said in the 2. R. 3. it is said that the Grants of the King ought to be made in certaine and for that where the King there Grants to Sir John Spencer that he shall not be Sheriff this was void for the incertainty of the place But if the Grant had been of such a County or such a County the Grant should be good Also there ought to be certainty of Estates as it is in 18. H. 8. Where the King gives Lands to
Lessee for years or life surrender before the performance of the condition the Fee doth never increase as it is 14. H. 8. 20. and the Lord Chandois Case 6 Coke But the Estate tayl remaines after the condition performed and then hath the Fee dependant upon the Estate tayl and that there is a necessity that there shall be an office as it was in Nicholls Case in the Com because of the right and that after the condition performed then the Fee shall vest Ab Initio and this corporates together partly by the Letters Patents and partly by the performance of the condition and so it is in Butler and Bakers case that it is not a Grant in futuro but one immediate Grant to take effect In futuro see 2. H. 7. for the execution of Chantrey and Grendons Case in the Com. and 2. H. 7. If the King grant Land to J. S. for life the remainder to the right Heires of J. R. which is in life the remainder is good as well as in case of a common person and so he seemed that Judgement shall be given for the Plaintiff Walmesley Justice agreed that it shall be remainder and not reversion as if Lands begin to the Husband and the Wife and to the Heires of the Body of the Husband the Husband dies this is a remainder in the Heires Males and not a reversion for it cannot grow higher and it was not in the King as one distinct Estate before the Grant and Formedon in remainder lieth for it and though it be misrecited yet it shall be good and ayded by the Statute of Misrecitalls and grant of a thousand is suffered to convey the reversion of a thousand by the common Law and if the recitall were that it was a reversion depending upon the Estate tayl it was good without question and the King may grant five hundred reversions if he will and that the last Damus is ex certa scientia et mêre motu nostris Damus et concedimus that if the Patentee pay twenty shillings Tunc sciatis quod nos de ampliori gracia ea certa scientia et mero motu nostris concedimus c. and that the word Volumus will amount to a Covenant or a Release as 32. H. 6. The King by his Patent by these words Nolent that he shall be impleaded and this amounts to a release and so words which intends expresly words of Covenant may be pleaded as a Grant in case of the King as it is 25 Ed. 4 So is a common person license another to occupy his Land this amounts to a Lease of Land if the time be expressed so if a man grants to another that he shall have and injoy his Land to him and his Heires that by that Fee passeth And if the King grant reversion to begin at Michaelmasse the Grant is void for that it is to begin totally at Michaelmasse and doth not looke back to any precedent thing But if it relate to any precedent Act then that shall be good by relation and shall passe ab Initio see Com. Walsinghams Case 553. b. that in such case the performance of the condition divests the Estate out of the King and there is no difference in this case betwixt the King and a common person and agreed in the case of Littleton Where a man makes a Lease for yeares upon condition to have Fee that the Fee shall not passe till the condition be performed and with this agrees 2. R. 2. But if a man makes a Charter of Feoffment upon condition that if the Feoffee injoy the Land peaceably for fifteen years that the Feoffment shall be void In this case the Fee-simple determineth by the performance of the Condition and in this case the Fee passeth ab Initio by the Livery as in 10. Assise 18. Assise 1. 44. Assise 49 Assise And he agreed that the words Habeat et Teneat the Reversion passes and this is good Fee-simple and this refers to the first Damus et Concedimus and so concluded that he seemed that Judgement shall be given for the Plaintiff Coke cheife Justice accordingly and he conceived that there are two questions upon the substance of the Grant And to the first objection that hath been made that is that reversion was granted and increase of an Estate cannot be of a reversion and in all these cases which have been put they are of an Estate in possession and so is the case of Littleton also and he agreed that it shall not be good if it be not good ab Initio that though there be not other words then Reversionem predictam That it shall be good And to the second point upon the former He conceived that the Grant is but a Grant and that the condition is but precedent Limitation when the Estate of Fee-simple shall begin and so it is said by Montague in Colthurst and Brinskins Case in the Com. And further he saith that there are four things necessary for increasing an Estate First that it ought to be an Estate upon which the increasing Estate may increase Secondly the particular Estate ought to continue for otherwise it is grant of a reversion in Futuro Thirdly That the Estate which is to increase ought to vest by the performance of the Condition for if there be disturbance that it cannot then vest then it can never vest Foutthly that both the Estates as well the particular Estate as the Estate which is to increase ought to have their beginning by one self same Deed or by diverse Deeds delivered at one self same time And to the first and to prove that he cyted 44 Ed. 3. Attaint 22. Lessee for yeares upon condition to have Fee granes his Estate the Fee doth not increase upon the performance of the condition for then it shall passe as a Reversion and so the particular Tenant surrenders his Estate as it is sayd 14. H. 8. For if the Privity be destroyed the Fee will never increase but there is no such â—ycity but that if the substance of the Estate remains though it doth not remain in such form as it was at the first Reversion the Estate may well increase as if Lands be given to the Husband and wife and to the Heirs of the Husband upon the Body of the Wife to be begotten the Wife dies and the Husband is Tenant after possibility of Issue extinct yet he may well perform the condition for the Estate remaines in substance and with this agrees 20 H. 6. Ayd and so it is if a Lease be made to two for years upon condition to have fee one dies the other may perform the Condition and shall have Fee-simple as it is agreed by 12. Assise 5. the reason is that the privity remaines and the Estate also in substance Thirdly As to that also it seems that it ought to vest upon the performance of the condition which is the time limited for the beginning of the Estate and if it do not vest
all their Study is practise and that if they have no practise of themselves then they attend upon others which practise and apply themselves to know the nature of Simples And to third objection that in London ought to be choyce men for the Statute appoints that they shall be examined by the Bishop and Deane and four others at least and for that there is a more strict course for them then in other places to that it is agreed But he said that in the University there is a more strict course then this for here he ought to be publickly approved by many after that he hath been examined and answered in the Schooles to diverse questions and allowed by the Congregation house And 35. H. 6. 55. Doctor is no addition but a degree quia gradatim et progressâ—one Doctrine provenit to that and that Doctor is teacher and that he was first taught by others as Scholers afterwards he is Master and Doctor dicetur a docendo quia docere permittitur and they are called Masters of their faculty and that the Originall of Doctor came of the Sinagogue of Jewes where there were Doctors of Law and it appeares that they had their ceremonies in time of H. 1. And when a man brings with him the Ensigne of Doctrine there is no reason that he should be examined againe for then if they will not allow of him he shall not be allowed though he be a learned and grave man and it was not the intent of the King to make a Monopoly of this practise And to the second point that he propounded it seemes that the Justification is not good which is Quia non comperuit upon Summons he was amerced and ordered that he shall be arrested and being arrested being examined if he would submit himself to the Colledge he answered that he was a Doctor and had practised and would practise within the sayd City as he conceived he might lawfully do and for that shewing of this case he was committed to prison and he conceived two things upon the Charter First That it doth not inhibit a Doctor to practise but punisheth him for ill using exercising and making and may imprison the Emperick and Imposter and so prayed Judgment for the Plaintiff and after in Hillary Tearm in the same year this case was argued by all the Justices of the Common Bench and at two severall dayes and the first day it was argued by Foster Daniell and Warburton Justices at whose Arguments I was not present but Foster argued against the Plaintiff and Daniell and Warburton with him and that the Action of false imprisonment was well maintainable And the second day the same case was argued again by Walmesley Justice and Coke cheife Justice and Walmesley argued as followeth that is that the Statute of 3. H. 8. was in the negative that no person within the City of London or seven Miles of that take upon him to exercise or occupy as Physitian or Chirurgion c. And he doth not know in any case where the words of the Statute are negative that they admit any Interpretation against that but one only and that is the Statute of Marlebridge chapter 4. Which provides that no Lord shall distrain in one County and the beasts distrayned drive into another County in which case though that the words are uegative yet if the Lord distrain in one County he may drive the Beasts to his Mannor in another County of which the Lands in which the distresse was taken were held but it is equity and reason in this case that the Statute should admit such exception for it is not of malice but for that that the Beasts may remain within his Fee but in the principall case there is not the like reason nor Equity And also the King H. 8. in his Letters Patents recites as followeth that is Cum Regij officij nostri munus arbitremur ditionis nostri hominum felicitati omni ratione consulere id autem vel imprimis fore si Improborum conatibus tempestive occurremus apprime necessarium duximus improborum quoque hominum qui medicinant magis avaritiae sue causa quam ullius bonae conscientiâ— fiducia profitebantur c. By which it appears that it is the Office of a King to survey his Subjects and he is as a Phisitian to cure their Maladies and to remove Leprosies amongst them and also to remove all fumes and smells which may offend or be prejudiciall to their health as it appears by the severall Writs in these severall cases provided and so if a man be not right in his Wits the King is to have the Protection and Government of him least he being infirme wast or consume his Lands or Goods and it is not sufficient for him that his Subjects live but that they should live happyly and discharges not his Office if his Subjects live a life but if they live and flourish and he hath care as well of their Bodyes as of their Lands and Goods for Health for the Body is as necessary as vertue to the minde and the King H. 8. to express his extraordinary care of his Subjects made the said Act in the third year of his Reigne which was the beginning of his Essence to that purpose and by the Common Law any Phisitian which was allowed by the University might practise and exercise the sayd faculty within any place within England without any dispensation examination or approbation of any but after the making of the sayd Act made in the third year of King H. 8. none may practise exercise or occupy as Phisitian or Surgion within theCity of London and seven miles of that if he be not first examined approved and admitted by the Bishop of London and the Dean of Paules for the time being calling to them foure Doctors of Phisick or Chirurgions c. And that no practiser may occupy or exercise the sayd faculty out of the sayd Precincts if he be not first examined approved and admitted by the Bishop of the Diocess or in his absence by his Vicar generall every of them calling unto him such expert persons in the said faculty as their discretions thinks convenient and the reason of this difference as he conceived was for that that in this City and the sayd Precincts the King and all his Councell and all the Judges and Sages of the Law and divers other men of quality and condition live and continue and also the place is more subject unto Infection and the Heir more pestiferous and for that there is more necessity that greater Care diligence and examination be made of those which practised here in London and the precincts aforesayd then of those which practise in other places of the Realm for in other places the People have better aire and use more exercise and are not so subject to Infection and for that there is no cause that such care should be used for them for they are not in such danger and
Proviso that if the sayd John disturbed the Executors of taking his Goods in his House that then the sayd use and uses limited to the sayd John Francis and his Heires shall cease and after declared that his intent was that in all other points his Will should be in his force and it was pleaded that Iohn did not suffer the sayd Executors to take the sayd Goods in the sayd House and if his Estate for years or in Tayl or Fee-simple shall cease was the question and it seemed to the Judges that the Condition shall not be Idle but shall have hiâ— operation as it appears by Hill and Granges case and the Lord Barkleyes Case in the Comment and the Lord Cheneyes Case Coke And it seems also that it shall not be referred to Estate in Fee simple for then it shall be void and it shall not be referred to a Tearm for it is limited to an Estate limited to the said Iohn and his Heires but it seemeth it shall be referred to an Estate tayl only as it is 2 and 3. P. and Mary Dyer 127. 55. 11 H. 7. 6. But the case was adjudged upon one point in the Pleading for it was not pleaded that Iohn Francis had notice of the Devise nor that he had made any actuall disturbance and peradventure he entered as Heir and had no notice of the Condition and when the Executors came to demand the Goods which were belonging to the Heir and annexed to the House and he sayd that it doth not appear to them to prove that an express notice was given in this case the Books of 43 Assise where a man was attaint and after was restored by Parliament and a Writ being directed to the Esceator the Escheator returns that he was disturbed and upon Scire facias the disturber pleads that he had no notice of the sayd act of restitution and for this he was excused of Disturbance And see 35. H. 6. Barr 162. Michaelmas 7. Jacobi 1609. In the Common Bench. Waggoner against Fish WAGGONER brought a Writ of Priviledge supposing that he had a suit depending here in the Common Bench which was directed to the Maior and Sheriffs of London and upon the return it appears that 4. Iacobi an Act of Common Councell was made that none should be retayler of any Goods within the same City upon a certain pain and that the Chamberlain of the said City for the time being may sue for the said penalty to the use of the sayd City at any of the Courts within the said City and that the Defendant hath retailed Candles and held a shop within the sayd City being a stranger and against the sayd Act and for the sayd penalty the Chamberlain hath brought an Action of Debt within the sayd City according to the sayd Act of Common Councell and upon the return it appeares that by their Custome the Maior and Aldermen with the Assent of the Commoners of the said City may make By-Laws for the Government of the sayd City and that the sayd custome and all other their Customes were confirmed by Act of Parliament and upon this it seems that though there be not remedy given for this penalty in another place then in London that yet if it be against Law he shall not be remanded and if a Corporation hath power to make By-Laws that shall be intended for the Government of their ancient Customes only and not to make new Lawes see 2 Ed. 3 Iohn De Brittens Case but it seems if this By-Law be for the Benefit of the Common-Wealth that it shall be good otherwise not and it was Adjourned see Hillary next insuing for then it was adjudged that he shall not be remanded see afterward Michaelmas 7. Iacobi It was adjudged NOte that this Tearme was adjourned untill the Moneth of Michaelmas by reason of the Plague and upon the adjournment this insued and was moved by Yelverton and Crook at the Bar and the Case was this Michaelmas 7. Iacobi 1609. In the Common Bench. POynes being an Infant levies a Fine and in Trinity Tearm last past brought his writ of Errour in the Kings Bench and assigned for Errour that at the time of the Fine levied was and yet is within age and prayed that he be inspected and insomuch that he had not his proofs there he was not inspected but Dies datus est usquâ— Octabis Michaelis Proximas at which time came the said Poynes the day which was wont to be the day of the Essoyn and prayed Justice Crooke which was there to adjourn the Tearm to inspect him and to take his proofs who did inspect him accordingly De bene esse and now before the Moneth of Michaelmas the Infant came of full age and if this inspection were well taken and what authority the Judge had upon that day to adjourn was the question And Flemming cheife Justice sayd that the day of Essoyn is a day in Tearm and that the Court was full though there was but one Judge and if the inspection had been the day of the Essoyn and before the fourth of the Post he had come of full age this shall be very good but the doubt rose as the case is if upon the day of Adjournment the Judge had power to do any thing but to adjourn the Tearm and for that it was appointed to be argued and for the Argument of that Quere of my Author Lane Michaelmas 7. Iacobi 1609 In the Common Bench. Rivet Plaintiff Downe Defendant IN an action upon the case upon an Assumpsit the case appears to be this Copy-holder makes a lease for a year according to the custome of the Mannor the Lord distrains the Farmer of the Copy-holder for his Rent and the Copy-holder having notice of that comes to the Lord and assumes that in consideration that the Lord should relinquish his Suit against his Farmer touching the same distress he would pay the Rent by such a day the Lord delivers the Distress and for default of payment at the day brings an Action upon the case and upon Non Assumpsit pleaded Verdict passed for the Plaintif And Barker Serjeant came and moved in arrest of Judgment First that a man cannot distrayn a Copy-holder but he ought to seise but Williams Justice and others to the contrary and by him if a man makes a Lease at will Rendring Rent he may distrain for this Rent 9 H. 7. 3. The case of Rescous Secondly He moved that when the Lord distraines that now the Tenant hath cause of Action that is Replevin and for that it cannot be sayd Sectam suam and so the consideration failes but all the Court against that and that this was a good consideration and by Flemming cheife Justice Distress is an Action in it self because this is the cause of a Replevin and when the Tenant brings his Replevin and the Lord avowes now is the Lord an Actor and so it is secta sua and by him secta is not
charge to the King and to the Common Wealth and the execution of Writs may be prejudicall and penall to the Sheriff himselfe And for that he may well provide that he shall have notice of every execution which are most Penall And also in all the Indenture now made he doth not constitute him to be his under Sheriff but only for to execute the Office and for these reasons he seemed the Obligation is good and demands Judgement for the Plaintiff But it seemes to all the Court that the Covenant is void and so by consequence the Obligation as to the performance of that void but good to the performance of all other Covenants And Coke cheif Justice said that the Sheriff at the Common Law was elligible as the Coronor is and then by the death of the King his Office was not determined and also it is an intire Office and though the King may countermand his Grant of that intirely yet he cannot that countermand by parcells and also that the under Sheriff hath Office which is intire and cannot be granted by parcells and this Covenant will be a meanes to nourish bribery and extortion for the Sheriff himselfe shall have all the benefit and the under Sheriff all the payn for he is visible the under Sheriff and all the Subjects of the King will repaire to him and the private contracts between the Sheriff and him are invisible of which none can have knowledge but themselves And Warburton sayd that in debt upon escape c. are against the Sheriff of Notingham he pleaded Nihil debet and gives in evidence that the Bayliff which made the Arrest was made upon condition that he should not meddle with such executions without speciall warrant of the Sheriff himselfe and his consent but it was resolved this notwithstanding that the Sheriff shall be charged in and in the principall case Judgement was given accordingly that is that the Covenant is void Note that the Sheriff of the County of Barkes was commited to the Fleete for taking twenty shillings for making of a warrant upon a generall Capias utlagatum for all the Justices were of opinion that the Sheriff shall not take any Fees for making of a warrant or execution of that Writ but only twenty shillings and foure pence the which is given by the Statute of 23. H. 6. for it is at the Suit of the King But upon Capias utlagatum unde convictus est which is after Judgement it seemes it is otherwise A man grants a Rent to one for his life and halfe a yeare after to be paid at the Feasts of the Anunciation of our Lady and Michaell the Archangell by equall portions and Covenants with the Grantee for the payment of that accordingly the Grantee dies 2. Februarâ—… and for twenty pound which was a moyity of the Rent and to be payd at the anunciation after the Executors of the Grantee brings an Action of Covenant and it seems it is well maintainable And Coke cheife Justice sayd That if a man grants Rent for anothers life the Remainder to the Executors of the Grantee and Covenant to pay the Rent during the Tearm aforesayd this is good Collective and shall serve for both the Estates and if the Grantee of the Rent grant to the Tenant of the Land the Rent and that he should distrain for the sayd Rent this shall not be intended the same rent which is extinct but so much in quantity and agreed that when a Rent is granted and by the same Deed the Grantor covenants to pay that the Grantee may have annuity or Writ of Covenant at his Election Michaelmas 7. Jacobi 1610. In the Common Bench. Waggoner against Fish Chamberlain of London JAMES Waggoner was arrested in London upon a Plaint entered in the Court of the Maior in Debt at the suit of Cornelius Fish Chamberlain of the sayd City and the Defendant brought a Writ of Priviledge returnable here in the Common Pleas and upon the return it appears that in the City of London there is a custome that no forrainer shal keep any shop nor use any Trade in London and also there is another Custome that the Maior Aldermen and Commonalty if any custome be defective may supply remidy for that and if any new thing happen that they may provide apt remedy for that so if it be congruae bonâ— fidei consuetudo rationi consentiae pro communi utilitate Regis civium omnium aliorum ibidem confluentium and by Act of Parliament made 7 R. 2. All their customes were confirmed and 8 Ed. 3. The King by his Letters Patents granted that they might make By-Laws and that these Letters Patents were also confirmed by Act of Parliament and for the usage certified that in 3 Ed. 4. and 17. H. 8. were severall acts of Common Councell made for inhibiting Forrayners to hold any open shop or shops or Lettice and penalty imposed for that and that after and shewed the day in certain was an Act of Common counsell made by the Mayor Aldermen and Commonalty And for that it was enacted that no Forrayner should use any Trade Mistery or occupation within the said City nor keep any Shop there for retayling upon payn of five pound and gives power to the Chamberlain of London for the time being to sue for that by Action c. in the Court of the Mayor in which no Essoyn nor wager of Law shall be allowed and the said penalty shall be the one halfe to the use of the said Chamberlain and the other half to the poor of Saint Bartholomewes Hospitall And that the Defendant held a shop and used the Mistery of making of candles the seventh day of October last and for that the Plaintiff the ninth day of the same month then next insuing levied the said plaint And upon this the Defendant was Arrested and this was the cause of the taking and detaining c. And upon argument at the Bar by Serjeant Harris the younger for the Defendant and Hutton for the Plaintiff and upon sollemne arguments by all the Justices Coke Walmesley Warburton Danyell and Foster it was agreed That the Defendant shall be delivered and not remanded And the case was devided in to five parts The first the custome Secondly the confirmation of that by Act of Parliament Thirdly the grant of the King and the confirmation of that by Act of Parliament Fourthly the usage and making of Acts of common councell according to this Fiftly the Act of common councell upon which the Action is brought and upon which the Defendant was Arrested And to the first which is the custome it was also said that this consists upon three parts That is first if any custome be difficult Secondly if it be defective Thirdly if Aliquid de novo emergit The Mayor Aldermen and Commonalty Possunt opponere remedium and that there are foure incidents to that remedy First it ought to be Congruum Retione
Secondly 〈◊〉 one fidei consonum Thirdly consentaneum rationi Fourthly Pro communi utillitate regis civium comodum aliorum ibidem confluentium But all the question was upon the remedy for it was agreed that the custome shall be good But it was doubted by Foster and Danyell that there was no good returne for it was but as recyted and it was not averred and positively said that there was such a custome and to prove that the case of 28 H. 6. was cited where in debt upon an Obligation the Defendant demands Oyer and upon the view saith that it appeares by the said Obligation that two others were joyntly bound with him not named Judgement of the Writ and 24. Ed. 4. Where it was pleaded as it appeares by the Letters Patents of one King and in 11. H. 4. in returne of a Sheriff But Coke answered and took a difference between returne upon a Writ of priviledge and upon which no Issue may be joyned nor demurrer and that it is but for an Informer of the Court and other pleads And for this it seemes to him that it is good as to that and he conceived that by the Grant of the King the custome is destroied for the King by his Grant cannot add nor diminish any thing of the custome no more then of Prescription and exceptance of Grant shall be extinguishment of one as well as of the other as it appeares by 8. H. 4 25. H. 7. 5. 38. H. 8. B. Prescription 7 R 2. But to this the Lord Coke gave no answer and for that it seemes they were no Grants but confirmation rather of customes and they further denied that the customes are confirmed by the Statute of 7. R. 2. for this is only for the confirmation of Magna Charta and of all former Statutes and of Charta de Foresta and the liliberties of the holy Church and there is not any mention of the customes of London but to this the Lord Coke answered that they ought to credit their returne and for that it seemes that it is a private Act and they ought to adjudge of that as it is made as 7. H. 6. 6. And if it be false the party greived may have an Action upon the case so it was agreed that the custome that no forrainer shall hold any shop nor sell in any shop by retayl and that they may make By-Lawes for the ordering of their ancient customes are good customes without any confirmation by Act of Parliament or Grant of the King or otherwise And if any thing happen De novo that they can apponere remedium with the restrictions aforesaid for the Lord Coke saith that London is Antiqua civitas and was of great fame and reckoning amongst the most ancient Cities for it was said by Anianus Marcellinus which wrote 1200. yeares past that London was then Opidum vetustum and Cornelius Tacitus in vita Neronis saith that then there was under the Romans Government there was here Negotiorum copia commercia maximorum celebris and he well knew for he was here seven years and married the Daughter of Agricola who was ancient Guilda Mercatoria and for that it was well governed and continued in good Order for Vbi non est ordo ibi est infirmium sempiternus Horror confusio and Gilda is a Saxon word and is the same for Fraternitas and Northfolk and diverse other places in the Country the name continued but this is another sence for Gyld fignisies to pay and for that it is sometime demanded if a man inhabite in a place gildable or within Franchise and the Place gildable is subject to scot and Lot and all other charges but the Franchises are places exempt but no person which is of a Gyld or fraternity may be exempted not by the Grant of the King nor otherwise but shall be subject to all the charges of the Gyld and Fraternity and the King cannot make any man free of their Guyld when that is created for there are but three waies to make a man free of that First by Birth which is the most eldest Secondly by Service which is of merits Thirdly By redemption which is power which only remaines in the Maior and the Court of Aldermen in this case in London and such Gyld can never have beginning but by Grant but by prescription as the custome of Gavelkinde that a man may devise his Lands or that the Land shall discend to the youngest Son and that the King cannot make any stranger free of such Gyld or Fraternity appears in Rotulo patentium 32 Ed. 3. Where the King by his Letters patents granted to one Iohn Faulchon that he should be frank and free of the City of London and that he should keep an Apothecaries shop there but the Patentee could not have his Freedome by this grant and for that the King wrote his Letters to the Maior and Aldermen and requested them to make the sayd Faulchon free of the sayd City and upon that it was done accordingly but not upon the Grant and so it was adjudged in Darcies case 44. Eliz. Trinity that if the King grant to one the sole making of Cards in England and that none shall bring any Cards into England to be sold but the patentee and it was adjudged that though none may may have Park or Warren and such other matters of Pleasure without the Kings Grant and though that playing with Cardes be but a matter of Pleasure yet the making of them is a matter of profit and the bringing of them into England is a matter of Trade and the inhibition of that is hinderance of Trade and makes a Monopoly that the Grant was voyd and 3 Ed. 3. 3. Iohn of Sudfords Case where the Case was a Free-holder levied a fold upon his Soyl and Freehold of his own and the Defendant spoyled it and broke it aed upon that the Plaintif brings a Writ of Trespass the Defendant justifies that he was Lord of the Town and there had been a usage there and had been of time out of memory c. That no man of the same Town ought to levy a fold without the agreement and leave of the Lord And for that that the Plaintif had done it the Defendant pulled it down as wel to him it was lawfull and it seems a good custome and with this agrees 5 Ed. 3. Iohn de Hayes case and 10 and 11 Eliz. Dyer 279. 10. prescription by the Maior Sherif and Citizens of York Goods forraine bought and forrain sold shall be forfeited and that he may seise them it was adjuged a good prescription but the King by his Letters Patents cannot give such power to them And Coke was cleerly of opinion that the case was not within the Statute of 9 Ed. 3. chapt 2. 25 Ed. 3. 11 27 Ed. 3. 11. And it was agreed by them all that a Merchant or any other man may sell Goods in grosse as he may sell a hundred tun of
but hath nothing in the Soyl according to the 14. H. 2. and 3. H. 6. 45. Ives case 5. Coke 11. So if a man make a feoffment of land except the Woods all woods are except by that and if Woods be cut and after grow againe in the same place this is also excepted But if woods after grow in another place this shall not be excepted for it was no wood in Esse at the time of the feoffment so if a man grants to another to dig Coles in his Soyl this is but to take profit and the Soyl doth not passe as it is agreed in 11. Eliz. Dyer 245. And it was said by Hutton Serjeant that he had seen an Ejectione Firme brought upon a Lease of Vsura terra But it was agreed by Coke cheife Justice and Foster that the Statute of 22. Ed. 4. chap. 7. was repealed by the Statute of 35. H. 8. for this is the negative and for that is repeal of a former Statute but if the last had been in the affirmative otherwise it should be and it was also agreed that this was not within the Statute of 35. H. 8. for that appoints of what age the wood shall be when it shall be inclosed and by this recompence is given to the Commoner but here it is not averred by pleading of what age this wood was which was inclosed and for that it was adjudged that the Action is not maintainable against the Commoner see Pasche 8. Jacobi for another argument at the Bar and also by the Judges Hillary 7. Jacobi 1609. In the Common Bench. Vivion against Wilde A Man was bound in an Obligation to another with Condition to stand to abide and performe the award of two Arbitrators and before the award by his writing the Obligor revoked the authority of one of the Arbitrators And it was agreed by all that this Obligation is become single without Condiion and yet it was not pleaded that the Arbitrator had notice of the revocation before the award made And yet for that it was pleaded that Revocavit it was agreed that that implies notice for without notice it is no revocation But it was agreed that if a man submit himselfe to the award of another and after he revokes his authority But before the Arbitrator had notice of that he makes the award the award is good and shall be performed so if a man make a Feoffment and Letter of Attorney to make Livery And before Livery made he revokes the power of the Attorney But before notice the Attorney makes Livery this is good but if the Feoffor makes a Lease or feoffment to another before the Livery made by the other this is a Countermand in Law and shall be good without notice for Fortior est dispositio legis quam hominis But where a man makes actuall revocation of the authority and before notice the other executes his authority and in pleading the other pleades Quod revocavit the other party may reply Quod non revocavit and give in evidence that he hath no notice of that before the execution of his authority and this is good for without notice it is no revocation where revocation is the act of the party The case is entred Trinity 7. Jacobi Rotulo 2629. Vivion against Wild. Hillary 7. Jacobi 1609. In the Common Bench. Smallman against Powys A Man made a Lease for life rendring Rent and after the Lessor by Indenture in consideration of fifty pound deviseth and granteth the Reversion to have from the day of the date for 99. yeares rendring a Rent also which was lesse then the first Rent and the Grantee of the reversion destraines for the rent reserved upon the Lease for life being behind and the sole question in this case was if the reversion shall passe without Attornment and it was said that in all cases where a use may be raised by the Common Law and that it shall be performed by order of Chancery that in these cases the use shall be executed by the Statute of 27. H. 8. of uses and one case was cyted by Harris Serjeant 14. and 15. Eliz. where the Brother was Tenant in tayl the remainder to his Sister in tayl the Brother by Deed which was Indented in parchment but made in the first person and no mention of Indenting in the Deed and the Deed was Inrolled withâ—… three moneths and after Livery and Seisin was made and it wâ—… adjudged that the Deed enures as a Bargaine and Sale and that nothing passes by the feoffment so that it was no discontinuance but that the Sister might enter after the death of her Brother without Issue Coke cheife Justice said that it was a good Bargain and Sale though that the words Bargain and Sell were not in the Deed but he conceived if a Letter of Attorney be incerted in the Deed so that it may appear that the intent of the parties is that it should not enure as a Bargain and Sale but as a feoffment there it is otherwise so if a man covenants to stand seised to a use if it be in consideration of money and the Deed is inrolled there this shall enure well as Bargain and Sale as it was adjudged in Bedels case 7. Coke 40. a. but the Statute of 27. H. 8. of inrollments doth not extend to a Tearme for the words of the Statute are that no freehold shall passe c. But it seemes in the principall case that the Statute of uses executes the use which is raised by this Grant and that the Grantor shall stand seised c. And all the Justices insisted strongly upon the Limitation of the Estate from the day of the date of the Grant and the Reservation of the Rent immediatly and upon this concluded that it was the intent of the parties that the Grantee should have the Rent reserved upon the first Lease and should pay the Rent reserved upon his estate and that when words of diverse natures are incerted in one conveiance the Grantee hath election to use which of them that he will as it appeares by Sir Rowland Haywards case and by Danyel if a man makes a Bargain and Sale in english and makes Livery Secundum forma Chartae this shall not be good But if it be in Latine otherwise it is for this word Vendo is compounded of Do and it is an apt word for Sur. that Livery might be made And agreed all that the reversion passes well without Attornment and that these words Demise and Grant shall be taken and enure to a Bargain and Sale and Judgement was given accordingly A man made a Lease for yeares to two if they lived so long and it was resolved by the Court that this determines by the death of one of them according to the resolution in Bradwells Case 5. Coke 9. a. and Judgement was given accordingly and there the case of Trupenny was recited which was this Lands was let to one for one and
they be reversed by Errour A man is bound in an Obligation dated the third of January and by Release dated the second day of the sayd Moneth of January releases all Actions c. From the beginning of the World untill this present day and delivered the Release after he had delivered the Obligation And Coke cheife Justice conceived that a Release of all Actions untill the Date shall not discharge duty after but a Release Vsque confectionem presentium that discharges Duties after the Date and before the Delivery But he conceived that the Day of this present time shall be the Day of the Date and it shall not be averred that it was delivered 20. years after and it shall not wait upon the Delivery of the Deed. A Writ of Dower was brought by Frances Fulgham against Serjeant Harris the younger in this manner Precipe c. Quod c. Frances Fulgham Widdow where the form in the Register Que fuit uxor and not Widdow and the words of the Writ are Rationabilem detem Tenementorum que fuerunt Fran. Fulgham quondam viri suâ— and yet it was resolved to be Errour see the Register and yet it doth not vary in substance and 38 Ed. 3. In re nisi sunt all one yet for that the forme in the Register is otherwise The Justices would not amend it John Warren Plaintiff in Trespasse and Ejectione Firme against Cicely Spackman it was resolved that the admittance of a Copy-holder for life was sufficient for him in remainder In a Writ of Dower by Mistris Fulgham upon Ne Vnques couple c. pleaded a Writ was awarded to the Arch-Bishop in the time of the vacation of the Bishoprick of Lychfeild and Coventry who returned that he had a Delegate which made a Commission to Babington Chancellor of the said Diocesse to make inquiry and certificate of the said matter which have certified that they were lawfully coupled in lawfull matrimony And adjudged without question that the return was not good for the Arch-Bishop himselfe ought to execute it and Delegata potestaâ— non potest delegari and for that it was ordered that he should amend her Certificate See the Statute of 5 Ed. 3. That an Arrest Eundo rediundo from celebrating divine service And it seemed to the Justices that such Arrest is not lawfull for he ought to be priviledged rather then a man which comes to any Court to procecute or defend any suit here Pasche 7. Jacobi 1609. In the Exchequer The Duke of Lenox case IN Trespasse the case was this the King by his Letters Patents created the Duke of Lenox Alneger and he made his deputy And the Duke by the said Letters Patents of the King was to measure all Clothes and to have so much for every Peece and to search and to view that if it be well and sufficiently made or not and he made his Deputy which offers to measure search and view certain parcell of Worsted and demanded the duty due to the Alneger for that and for that that the owner refused to pay it he seised certain peeces of Worsted and kept them upon which this Action was brought And Haughton Serjeant for the Defendant conceived that the sole question rests upon these Letters Patents of the King and for that he would first consider First if these duties of Subsidies and Ausnage are due by the Common Law and if they are not due by the Common Law then if they are due by Statute Law And if they be due neither by the Common Law nor Statute Law then if the King by his Letters Patents may grant it And to the first he said That Subsidy is ayd or help And there are two manners of ayd one which is Inheritance in the King as ayd to make his Son Knight or to marry his Daughter and others which are given by grant of others and these are not Inheritances in the King and these duties were not demandable by the Common Law nor by Custome And this appeares by the 25. Ed. 3. 6. Where any prises were demanded which were due by the common Law and some which were not due and subsidie for Woolls were not due by the Common Law but it was granted to the King and is now due but this is by grant and not by the Common Law and in the 14. Ed. 3. A Statute was made for the King for his subsidy for Woolles what part he should have which part was given to him in quantity and in time of H. 6. A Statute was made by which subsidy was given to him during his life and 36 Ed. 3. Subsidy was granted for three yeares and after should not be any subsidy paied as appeares by 45. Ed. 3. And if subsidie were not due by the Common Law for Woolles then may it be concluded that it was not due for clothes for Woolles grow without mans labour and the 11. H. 4. and 13. H. 4. The King makes a grant of Alnage of clothes and a Writ is awarded to the Mayor and Sheriffs of London to give possession to the Patentee which returnes the Writ that the Office was not granted before this time And the Statute of 24. Ed. 3. was the first Statute that gave profit to the King for clothes But he granted that the Office of Alneger was of ancient times and an ancient Office but it was no Office of profit but an Office of Justice and Right and no Fee was due for the exercising of it and that 1. Ed. 2 was a Grant of the Office of the Alneger and 11. H. 4. was a Grant of the Office of Alneger for Canvas but it doth not appeare by any account that the King had any profit for the Alnage it selfe or upon the said Grants either before or after and allowing that there were accounts for Cloth yet it doth not appeare that there were any accounts for Worsteds The Statute of 27. Eliz. gives subsidy of four pence for every broad Cloth so that the Statute made expresse mention of broad Cloth but there was not any mention of Worsteds and this Statute shall not be taken by equity though that the Statute of 1. R. 2. 12. for escapes by the Warden of the Fleet being a penall Statute yet for that that it was for a generall mischeife shall be taken by equity as it appeares by Platts Case in the Comment So the Statute of 9. Ed 3. chap. 3. provideth that where Debt is brought against diverse Executors that they shall have but one Essoyn and the Statute mentions Execurors only yet Administrators are taken within the equity of this Statute as it appeares by 3 H. 6. yet in this case at the Bar the Statute of 27. Eliz. was not for the remedy of a mischeife but is a Grant to the King and Grant of one thing cannot be Grant of another thing as if the King pardon an Offence another Offence cannot be pardoned by this As it appeares
have Elegit and for that being in Prison he prayed execution of his Body and had it but if the party gets out that he hath no execution that it is not his default he shall have Elegit after for that that he cannot have his purpose according to his first election And if any be in this case then upon that he inferrred that the party in this case may have a Fieri Facias against the Executors And also it is resolved by the whole Court in the Common Bench 29 H. 8. B. Execution 132. That if two are bound in an Obligation conjunctim devisim the Obligee impleads one and hath execution of his body and after impleads the other and condemns him hee may have Execution against him also for the taking of the body is good execution but it is no satisfaction and therefore he may take the other also but if he have satisfied the Plaintiffe he shall not have execution afterwards And therefore this Order that the Plaintiff upon an Obligation shall have but one Execution is intended such an Execution which is a satisfaction See 33 H. 6. 48. b. 4 H. 7. 8. 4 Edw. 4. 38. 5 Edw. 4. 4. 5 Coke 92. Blumfields case resolved by all the Court that if the Defendant in debt dye in Execution that the Defendant shall have new execution by Elegit or Fieri Facias for the death of the Defendant is the act of God which shall not turn the Plaintiff to prejudice as it is said in Trewynyards case 38 H. 8. Dyer 60. The Plaintiff shall not be prejudiced of his Execution by act in Law which makes no wrong to any And to the first Objection which may be made against him that is That all processe are determined after the party is taken and in execution to that he answered that this is where the Plaintiff hath satisfactory execution as it appears by 41 Edw. 3. 13. where an action of Account was brought against two one was out-lawed and the other comes by the Exigent and enters in the Court and he which was out-lawed obtained his charter of pardon and for that that processe was determined against him And the Plaintiff hath chosen to have his action against the other he prayed that he may be discharged But it was resolved that the processe was not determined nor he which was out-lawed shall not be discharged till the Plaintiff be satisfied by which it appears that the process is not determined till execution with satisfaction Two other Objections also he endeavoured to answer that is that the Plaintiff hath determined his election by taking the Capias and that cannot resort to any other Process and to that he agreed that where the party hath made such election that he cannot resort to any other Process during the life of the party But if the satisfaction be prevented by the act of God as in the principall case But when his person which was the pledg for the debt and was to remain in prison till the debt be satisfied is discharged by the act of God and the Plaintiff hath not the fruit of his Suit nor the Judgement is not satisfied and the Plaintiff hath done all that hee can and there was no defect in him it is no reason but that he may have new processe and the third objection is a Judgment which was given in the Kings Bench Pasche 43. Eliz. Rot. 58. between Williams and Curtiz And to that he said that he he conceived that this was a rule for default of prosecution for the cause was referred to Arbitrement and so hanged for long time and so though the Judgment was directly against Law in the principall points yet for that that it was not upon solemn argument of the Judges hee saith it is not to be compared to other authorities by him cyted before for which he includes and prayed Judgment for the Plaintiff Hutton Serjeant that argued for the Defendants conceived the contrary and first he examined how the body of a man cometh subject and lyable to any Execution and to that he said that by the Common Law the body was not subject to Execution for the debt of any man but in accompt only a Capias ad computandum lyes and no other processe in this action but distresse infinite till the Statute of Marlbridge Chap. 23. and West 2. Chap. 11. Capias was given in Accompt for by the Common Law the Processe in that was Distresse Infinite as aforesaid and after by the Statute of 25 Edw. 3. Chapter 17. Such like Processe was given in debt as in accompt and before that the body of the Defendant was not lyable to execution for debt if it be not in the Kings case as it appeares by Sir William Harberts case 12. a. And upon this he inferred upon the words of the Statute of 25 Ed. 3. Chap. 17. which saith that such like Processe shal be in debt as were in accompt That after the Plaintiff hath determined his election and taken a Capias that then he is in the same case as if it had been in accompt and for that he cannot resort to any other Processe And he said that the words of the Elegit and Fieri Facias do not differ in substance from the words of Capias for there is to satisfie the party as well as in the other And when a man hath made his Election to have Elegit he shall not have other Execution But when the Defendant hath neither goods nor Lands Then qui non habet in are licet in Corpore and the Plaintiffe at the first when he hath Judgment hath election to have Fieri Facias Elegit or Capias then he cannot have fieri facias but if he determine his Election at the first and sue Elegit or Capias then he cannot have fieri facias but may first sue fieri facias and after Elegit or Capias as it appears by the 15 H. 7. 15. 14 H. 7. 28. and 7 H. 6. 7. But if it be upon Statute staple Then he may have execution for his Body Goods and Land together as it appears by 31 H. 6. 47. Lynnacres Case is put in Blunfields case 5 Coke 92. b. and 15 H. 7. 15. But the reason of this is that a speciall Execution by statute is given in this case And he agreed that where a Judgement is given against 2 or 3. and the Plaentiff sue Capias against one of them by that he hath determined his Election So that if he dye in Prison or otherwise he may sue another Capias against the others but he cannot sue fieri facias or Elegit as it appears by 33 H. 6. 47. before and Blunfields case 5 Coke 92. b. 4 H. 7. 8. And he said that the body is the principall and becomes chargeable by statute and it appears by 22 Assis 43. That when the party is in Prison that this is adjudged in Law an Execution for the party and further in the
against peter THis Case was argued this Tearme by Harris youngest Serjeant for the Defendants and by Haughton for the Plaintiffs And Serjeant Harris conceived that Sir Francis Barrington was within the Intent of the Act of 22. Ed. 4. chap. 17. For he hath grant of Trees of Inheritance and this was all the profit which rise upon the Soyl and for that it shall be intended of the Soyl it selfe And to prove that he cyted Parromor and Yardlyes Case in the Com. 542. and 543. 2. H. 8. 159. Crooke 11. Eliz. Dyer 285. Where it is agreed by three Justices that the Patentee or Grantee of Herbage in a Forrest shall have Trespasse against any which consumes and distroies the Grasse but not the Trees nor of the fruit of that and the Trespasse of that shall be Quare clausum fregit as well as iâ— it were of Land And may inclose the Forrest by such Grant See 17. Ed. 4. 6. a. by Littleton that Vestura terrae doth not pass without Livery Also admitting that he is not owner of the Ground within the Statute yet it seemes by the Statutes that they are It shall be lawfull for the same Subjects Owners c. And to such other persons to whom such VVood shall happen to be sold Immediatly after the VVood so cut to fence and inclose the same Ground with sufficient Hedges able to keep out c. Upon which words he inferrd that S. Francis Barrington is such a Person to whom the VVood is sold and for that may inclose And also he conceived that the Statute is generall and concernes all persons in generall and also all Forrests and Chases whatsoever And for that it is not like to the Cases put in Hollands Case 4. Coke upon the Statute of 13. Eliz. VVhich concernes all Ecclesiasticall persons in generall that this is a generall Act and yet concernes but one Genus in particuler But the Statute of 1. Eliz. Is otherwise which concernes the Bishop which is but a species of this Genus as it is resolved in Elmers Case 5. of Coke And also he conceived that it shall be releeved by the Statute of 35. H. 8. And so prayed Judgement for the Defendant And Haughton conceived that the words of the Statute intend such a person to whom VVood is sold for one turne only And not he which hath Inheritance of Wood that there is no word in the statute to exclude Commoner and such a Vendee is not without remedy for he is within the statute of 35. H. 8. If he pursue his remedy according to the statute and so prayed Judgement for the Plaintiff And at another day Foster Justice argued that the Plaintiff in the Replegiare shall recover and said that the cause consists of three parts First the Arbitrement Secondly the assurance Thirdly the private Act of Parliament of 27. H. 8. And to those the Arbitrement and the assurance shall tye only those which are parties to it and no others and the Commoner is not party to that nor shall not be bound and the private Act confirmes the assurance saving the Right of all strangers by which the Commoner is exempted and also the statute is made only as confirmation of the Grant and for that it shall not extend to any other thing nor to other parties but those only which are parties to the Grant as if the Queen had made a voydable Patent and after had made a Lease for yeares and after by the statute of 18. Eliz. All Letters Patents made within such a time were confirmed this makes the Letters Patents good against the Queen but against the Lessee And also all the Covenants in the Grant extend only to the Lord Rich and his Heires and these which claim under him And for that it shall not extend to the Commoner and also the private Act saves the Right of all strangers by which the Right of the Commoner was saved And he conceived that the Commoner shal not be excluded by the statute of 22. Ed. 4. chap. 7. which recites that if any Subjects have any Woods growing in his own Ground within any Forrest Chase c. Shall cut the same VVood by lycense of the King or his Heires in Forrest Chases c. Or without lycense in the Forrest Chase c. of any other person or make any Sale of the same VVoods It shall be lawfull to the same Owners of the same Ground whereupon the VVood so cut did grow and to other such persons to whom the said Wood shall happen to be sold Immediatly c. to cut and inclose the same Ground with sufficient hedges able to hold out all manner of Cattell and Beasts and to continue the same by the space of seven yeares without suing of any other Lycense of him or of his Heires or of any other persons or of any their Officers of the same Forrest Chases c. By which words it appeares that the statute doth not extend to any Wood of the King but only to the Wood of the subject lying in Forrest of the King or of other person owner of the Forrest or Chase And if it be in the Kings case and he hath lycense from the King to cut the Wood then may he cut it without other lycense according to the perclose of the Act And the statute doth not give lycense to Inclose without the assent of the Commoner but without other lycense of other Officers of the Forrest And by this Statute the Owner of the Ground may first cut the Wood and then Inclose But by the Statute of 35. H. 8. Otherwise it is for by this he may first inclose and then cut within four Moneths and that Sir Francis Barrington hath no interest in the Soyle and that this Statute of 22. Ed. 4. is a private Statute and ought to be pleaded for it concernes only forrests and Chases and it is no other then if it had been of al Woods in Parks and resembled that to the statute of 1. Eliza. of the Bishop which concerns only the Bishop and it is resolved in Elmers case to be private and the same Judges shal not take notice of that without pleading and it is not like the statute of 13 Eliz. which concerns al manner of spiritual persons in general and also that this statute is repealed by the statute of 35. H. 8. which is a negative Law and Leges posteriores priores contrarius abrogant and it is agreed in Porters case 1. Coke and so he concluded that Judgment should be given for the Plaintiff Warburton Justice to the contrary and yet he agreed that neither the Arbitrement nor the conveyance nor the private act excludes the Commoners for these reasons which have been urged by Foster but he relyed only upon the statute of 22 Ed. 4. and to that he sayd that the statute gives power to the owner of Ground to inclose and it should be frivilous for him to inclose if the
Commoner shal not be by that excluded and he said that the persons mentioned in the statute are two The first is the owner of the ground and such person he agreed Sir Francis Barrington is not The second is such person to whom such wood shal happen to be sold and such Person it seems is Sir Francis Barrington and yet he agreed that he hath an Inheritance in the Trees and the Owner of the soyl cannot cut them nor dig the soyl from the Roots of the Trees for then the Grant could not take effect and he sayd there is no difference between sales of Wood though that the statute speaks of the Person to whom Wood shall be sold and another person to whom it shal be given without consideration and to that he resembled the statute Westminster 2. Chap. Si quis alienavit terram uxoris suae non deferratur c. sed expectet emptor c. though that the statute mention buyer only yet Donee without any consideration shal be intended in it and that the statute doth not intend within it and that the Statute doth not intend sale Vinca vice tantum but rather sale of Inheritance for such Vendee may rather intend the preservation of the wood then the other And he inferred upon these words of the statute to inclose the same Grounds with hedges sufficient to keep out al manner of Cattel and beasts out of the same Grounds and these words expound themselves for they shal not be intended Deer but Cattel which belong to Commoners and so is the statute of West 2. Chap. If Infant suffer Usurpation this shal not bind him but this shal be intended where he hath Advowson by discent and not by purchase and this appears by the words of the statute which are Cum aliquis vis presentandi non habens presentavit ad aliquam ecclesiam cujus presentatus sit admissus ipse qui verus est patronus per nullum aliud breve recuperare potuit advocationem quam per breve de recto quod debet perminare per duellum vel per magnam assisam per quod heredes infra etatem existentes per fraudem negligentiam custodis multities ex heriditatem patiebantur c. By which words it appears that there ought to be presentation which passeth by fraud and negligence of the Guardian which the Statute remedies and that is presentation which he had by discent and not by purchase and in the Time of Ed. 1. Fitz. trespas 239. It is said the Law of the Chase that none may inclose his own Wood without the view of the Forrester and if the statute of 22 Ed 4. Gives license to inclose and that notwithstanding the Commoner may put in his Beasts then is the statute made in vain and it is resolved in the 30 of Ed. 3. Fitz. trespas that if a man hunt in a Park or Chase that this is not within the statute of VVestminster 1. Chap. 21 Ed. 1. So the statute of 22 Ed. 4 Extends to the Kings Deere and also to other Beasts which shal be intended â—he Cattel of the Commoners and it is not repealed by the statute 35. H. 8. For these statutes are made for several purposes and consist upon several grounds and if the statute of 22 Edw. 4. be repealed then there cannot be inclosure in forrest or Chase at al And which is general Law and the Justices ought to take notice of that without pleading and that al Lawes to some respects may be intended to be special as the statute of 13 Eliz. Concerns only spiritual men and so Charta de foresta concerns only forrests and the statutè of 3 H. 7. Chapt. 1. Gives appeale to the Wife for the death of her Husband and though that al these statutes concern one thing only and for that to some intent may be said to be special yet they are al generall Laws and so he concluded that Judgment shal be given for the Defendant VValmesley agreed with Foster in al that is that Sir Francis Barrington hath nothing but profit In alieno solo and for this cause was not within the statute of 22 Ed. 4. Which might inclose and the Common Law doth not exclude the Commoner for the Lord Rich granted the Wood and this Transit cum onere to Sir Thomas Barington and sayd that it was in vain to dispute if the statute of 22 Ed. 4. was private Law or if it were repealed which makes nothing in the Case and so he breifly concluded that Judgment shal be given for the Commoner which is the Plaintiff Coke cheife Justice agreed that Judgment shal be given for the Plaintiff and did agree that the Arbitrement the Convaiance nor the private Act made nothing in the Case for by these the Commoner cannot be barred of his Common but for the statute of 22 Ed. 4. He would first consider how the Law was before the making of that and as to that it appears by the statute of Charta de foresta that by the Common Law no man which was Owner of Wood in which another had Common that they could not inclose but Assise of Common or action upon the case lyeth as it requires and if it be several Wood within the Kings Forrest in which none hath interest of Common then may he inclose by the view of the Forresters and this hold inclosed by the space of three years as it appears by the Preamble of the Statute of 22. Ed. 4. Cum parvo fossato bassahaia that is a Little Ditch and Low Hedge for that the Kings Deare are not shut out and this appears in the Register in the Writ of Ad quod damnum Fitz. Na. Bre. 226. f. And then comes the statute of 22 Ed. 4. and gives power to inclose with such sufficient Hedges able to keep out al manner of Beasts and Cattel And then considered between what persons the statute is made And to that he conceived it is made between the King and his Successors of one part and Subjects having woods growing upon their owne Grounds and such persons unto whom such woods shal happen to be sold of the other part and a Commoner is not named in the statute and also the Body of the statute is not general but there are some words in one sentence and this is but a sentence and cannot be divided the words are First The sayd Hedges so made may keep c. Secondly And repaire and maintain them as often as need shal be within seven years Thirdly without suing any other License of him that is the King or his Heirs or other persons that is which have forrests or Chases or any of their Officers and here the sentence concludes and there is no period before them so that this statute being made between the King and owners of forrests and Chases of one part and Owners of woods in their own soyl and other persons to whom such woods should be sold other
part this shall not extend to other persons Commoners and it is like to the case in 9 Eliz. Dyer 257. 13. A man makes a Lease for years and covenants that the Lessee shal injoy the Tearm without eviction of the Lessor or any claiming under him if he be evicted by a stranger this shal be no breaking of the Covenant for a stranger is no party to the Deed nor claims under the Lessor and for this his Entry shal not give Action to the Lessee and so is the Case in 21 H. 7. between the Prior of Castleton and the Dean of Saint Stephens which was adjudged the 18 of H. 7. Pasch Rot. 416. Though that no Judgment be reported where it appears that the King Ed. 3. seised al the Lands of Priors aliens in time of War for that that they carried the Treasure of the King out of the Realme to the Kings Enemies and so it was made by H. 4. also during the time of his Reign and then in the second year of the Reign of King H. 5. by a statute made between the King and the sayd Priors aliens al the Possessions of the sayd Priors were resumed into the hands of the sayd King and adjudged in 21. H. 7. 1. before that this shal not extend to the Prior of Castleton which had Annuities issuing out of the Possessions of the sayd Priors for the said Prior of Castleton was not party to the sayd act of Parliament and for that he shal not be prejudiced by that and so it was adjudged 25. and 26. Eliz. In the Court of VVards in the case of one Boswell where the King made a Lease for years which was voydable and after by another Patent granted the Inheritance and then came the statute of 18. Eliz. to confirm al Patents made by the sayd Queen within her time and adjudged that the sayd Act shal not make the sayd patent voyd to the Patentee which is a stranger to the act of the Parliament but only against the Queen her Heirs and successors for by the statute it is made only against one person only and shal not be good against another though there be no saving of such person in the sayd Act. And also he conceived that the statute of 22 Ed. 4. Doth not extend to any woods in forrest in which another hath Common for it doth not extend only to such woods which a common person hath in the Kings forrest or common person and that it may be inclosed for the space of three years after the cutting of the wood in this before the making of the sayd statute and this was no wood in which an Estranger had Common as it appears by the Preamble of the sayd statute and then after in the sayd statute it is sayd such woods may be inclosed And also he conceived where the statute sayth that they may inclose the same Grounds with such sufficient hedges able to keep out all manner of Beasts and Cattell out of the same Grounds but this refers to the quality of the hedge for before it ought to be a small Ditch and by this statute it ought to be with such hedg which shall be able c. And it shall not be referred to the manner of the Cattell But for the difference between Beasts of Forrest Beasts of Chase and Beasts of Warrain see the Register fol. 96. 43 Ed. 3. 13. 12. H. 8. 12. b. Hollinsheads Cronicle fol. 20. b. 32. And he conceived that Sir Francis Barrington is such a Vendee of Wood that is within the statute though that he be Vendee of Inheritance and hath a greater Estate then Vnica vice but for that that he conceived that it was not within the statute for other reasons before cyted he would not dispute it But he conceived if this had been the question of the Case that this was within the statute and also he conceived that this was a generall statute of which the Judges shall take notice without pleading of this And this reason was for that that the King was party to it and this which concernes the King being the head concernes all the Body and Common Wealth and so it was adjudged in the Chancery in the case of Serjeant Heale that the statute by which the Prince is created Prince of VVales was a general statute and for that see the Lord Barkleyes case in the Commentaries Also he conceived that the said statute of 22 of Ed. 4. was repealed by 35. H. 8. for this was in the Negative that none shal cut any wood but only in such manner as is prescribed by the said statute and for that shal be a repeale of the first and that by the first Branch of the sayd statute it appeares that if such giving of Wood in his own Soyl within any forrest he cut to his own use he cannot inclose and by that Branch Commoner is not excluded but by the second Branch it is provided that he may inclose the fourth part of his Wood and cut that in such manner as is appointed by the said statute and then he shal loose his own Common in the three other parts and so he concluded that Judgment ought to be given for the Plaintiff which is the Commoner and Judgment was entred accordingly Pasch 1610. 8. Jacobi in the Common Bench. Cesar against Bull. THomas Cesar Plaintiff in Assise against Emanuel Bull for the Office of Clock-Keeper to the Prince this he claims by grant of the King during his own Life with the fee of two shillings a day for the exercising of it and three pound yearly for Livery and the patent purports only the Grant of the Office and not words of creation of the Office as Constituimus officium c. And the Plaintiff could prove that it was an ancient Office and for that was non-suited in the Assise though that the Tenant had made default before Pasch 1610. 8. Jacobi In the Common Bench. Heyden against Smith and others THE Plaintiff counts in Trespasse against these Defendants and these Defendants justifie as Servants to Sir John Leventhorp who was seised of a free-hold of Land in which the Tree for which the action was brought was cut and so demands Judgment if action the Plaintiff replyes that the place where c. was parcel of a house and twenty Acres of Land which time out of mind c. have been demised and demisable by Copy of Court Roll which was parcel of the Mannor of A. of which the sayd Sir John Leventhorp was seised in his Demesne as of see and by Copy at a Court held such a day and year granted the said Messuage and twenty acres of Land whereof c. To the Plaintiff and his Heirs according to the custome of the said Mannor and prescribes that within the sayd mannor was a Custome that every Copy-holder may cut the boughs of all the Pollingers and Husbands growing upon his Copy-hold for fire to be burnt upon his
which was Obligamus nos vel quemlibet nostrum adjudged to be joint and severall at the Plaintiffs Election Action of Debt upon an Obligation to perform an award and the breach assigned for exhibiting a chancery Bill and adiudged no Breach Action of Debt for Tithes the Defendants time ended before the Coâ—n carried yet held good for the Plaintiff An Action will lie against a stranger that shall carry away the Corn before the Severance Dower may be brought against the Heir or Committee of the Ward Nota. He in Reversion received after Default made by Tenant for Life Return of the Sheriff adjudged insufficient being too general No Writ of Error lies untill the value be inquired upon Implication not good in a Surrender though it be in a Will Challenge because the Sheriff married the Daughter of the Lessors Wife and held no cause Nota. How to execute a Lease to try a Title the Land being in many mens hands Originall against four and count against 3. without a Simulcum and held naught The intent of a will must be certain and agreeable to Law Nota. How to execute a Lease by Letter of Atturney A Venire facias of the Parish adjudged good A mistake of the Cursitor in the Originall amended after Triall Nota. Though the Defendants Plea be naught yet the Plaintiff shall not recover because he shewed not any Title by his replication The question is upon the Statute of 32 H. 8 upon Feoffements made by Husbands during the coverture A verbal averment shall not overthrow a will The mistaking of the Town not hurtfull in a Will Property of Goods cannot be in obayance Difference between Prescription and Custome Copihold Land cannot be demised for three years without license or custome Record of Nisi prius amended by the Roll. Concord with satisfaction a good Plea in Eiectment Misconveyance of process what it is and helped by the Statute A feme covert cannot make a Letter of Atturney to deliver a Lease upon the Land When a demand shall be made to the person and when upon the Land A Lease made to three for their lives with a Covenant that the Land should remaine to the survivor of them for ninety yeares a good interest in the survivor A precise Verdict makes the Declaration good which otherwise is naught A demand of Rent to avoid a Lease upon a condition ought to be in the most open place After an Imparlance cannot plead in abatement 22 H. 6. 6. Foxlies Case 5 Rep. 111. The day of a Copihold of Court roll traversed and adjudged naught Houses in London passe by the delivery of a bargain and sale without inrolment An Ejectment will not lye de aquae cursu A Servant is a sufficient Ejector if he dwell with the pretended owner He that is a Purchaser of Copihold hath nothing in it nor can he surrender to another before admittance How an Abatement shall be traversed 1 E. 4. acr 1 E. 4. 9. acr The Bill amended after a Writ of Error brought and before the Record was removed Where the Prenomen destroyesthe quantity inthe declation Where words in a Declaration shall be voyd rather then the Declaration shal be voyd Nonage shall be tryed where it is alleadged and not where the Landlyes Essoin lies in a writ brought by Journes account although he was essoined upon the first Writ By Deed an implicationbe intended Nota. By the Name of a Mannour the Land in all the Villiages will pass Nota. Action brought by the Servant in his own name part of the Goods being his Masters Nota. Nota. The Record of Nisi prius amended upon motion The Process in Partition Error in Partition upon the first Judgement Defendant pleads he had brought a Writ for the same land and adjudged no plea. Process in a Quare Impedit Exception taken to the Venire and over-ruled Severall Quare impedits may be brought against severall men Admittance of a Resignation by fraud takes not away the Kings Title The state is determined by the death of Tenant in Tail A presentment by words good Nota. A subsequent debt to the Qu. related to award an assurance made upon good consideration The King hath lost his presentation by the Clerks death Defendant pleads another writ depending against the said Bishop good The Bishopsplea shall not prejudice the Incumbent Nota. Liberty to make Leases A devise for years in confidence the condition must goe to the estate and not to the use The scisin of rent reserved upon a Feosment within the time of limitation not to be traversed Nota. The beast of a stranger shall not be distreined for rent except they have been upon the land some time Demand not necessary in a Replevin for rent Nota. Exctâ—tion to the advowry too late after judgment entred Replevin not within the statute of 3. Iac. Iudgment arrested for that the plea was naught Nota. Nota. The Plea naught for want of amendment Amends made to the Bailiff not good If one inclose part it is an Extinguishment of Common for cause of vicinage Avowry amended after Entry by consent One of the Juroâ—s names mistaken in the Pannell of the Return and amended upon the Sheriffes Oath that he was the same man If two men distrain one Mare and both have Judgement no Return Court Baron in order to the Mannor Nota. Nota. A lease for life to three to hold successively naught The pannell of the Habeas Corpus amended upon Oath Nota. Atturnment not necessary for a Copy-holder Demand necessary for a Nomine pene Common Appurtenant and purchase part the Common is gone but not if Appendant Nota. Nota. Demand of Rent service upon the Land sufficient Nota. A Commoner may take the cattell of the Lord damage fesant Judgment arrested for not shewing in what place the Messuage did lye to which the Common did belong Common when the field and acres unsown the sowing of parcell shal not debar him of his common in the residue When a Deed is perfected and delivered as a Deed one agreement after pleaded in defeasance thereof and when the agreement is parcell of the Original contract it may be pleaded The Defendant in his Demurrer â—nswers not the whole Declaration and Judgement reversed The mistake of the day of an Act by way of Bar not prejudiciall A confession after an issue joyned refused A Constable cannot detaine one but for Felony Marshalsey hath no authority to hold plea in debt except both are of the Houshold Judgment before a wrong Officer erroneous The Court could not mitigate damages in trespass which was locall The Defendant justifies the imprisonment by the command of the Maior of London and naught Just of Peace cannot command his servant to arrest in his absence without warrant in writing If a servant be beaten dye the Mr. shall not have an action for the losse of his service Declaration shall not abate for false Latin A man cannot prescribe to be a Justice of the Peace If
a Book that ought not be given in evidence the Court above cannot remedie it except it be returned with the Postea A release to Tenant at sufferance void Commoner cannot chase the Lords Cattell if the surcharge be Common The Statute of 13 Eliz. for non-residence a generall law Where Husband and Wife shall be joyned and where severed in Action The Venire facias vicious no damages in Partition If the Jury find a man guilty in Trespass for a foot where it is layd in an Acre good enough and so in all Actions where damages onely are to be recovered Nota. Error assigned because in trespass nothing was entred of the Fine c. where it was a continued trespass and part of it was layd to be after the Pardon Nota. Nota. If the verdict find the tenure in substance though not in manner and form it is good intrespasse Difference between Replevin and Trespass In a writ to enquire of damages the Plaintif is not bound to prove the property of goods but the value only Where of his own wrong without such cause shall be a good issue and where not The Defendant prescribed for a passage over Land and naught it should have been for a way Nota. If the Lord cut the Wood in which the Commoner hath Estovers he shall have an Action of the Case but not an Assise Nota. Nota. Nota. An action will not lie for the counter-part of an Indenture without a speciall grant Nota. A man cannot Justifie the digging of a mans ground in hunting a Badger Nota. Nota. One Venu out of two places in the same County Whether a Copyholder may lop the trees growing upon his Copy-hold and held he might The Copy-holder is in by custome which is above the Lords estate The Copy-holder shall have trespas upon the Case against the Lord for cutting down of trees Nota. Nota. Nota. Nota. Nota. Nota. Waste in the Tenuit for digging of Sea coals Custodes Brev. Capital Prothon Sedi ' Prothon Try ' Prothon Cliri ' Warr. Cliri argenti Regi Cliri Error Cic. lib. 1. de Invent. Rhet. Prohibition upon the statute of 23. H. 8. Chap. 9. Prohibition to the High Commissioners High Commission Prohibition Joynt prohibitions and severall Counts Prohibition upon the statute of Symony upon the stat of 31. Eliz. Prohibition upon the Statute of 32 H. 8. for the dissolution of the Hospitall of Saint Johns of Jerusalem For not setting forth Tythes Husband sue only Prohibition to the Cort of Requests Against Forreiner for Ornaments for the Church and for Sextons wages Admiralty Contract for retaining of Tithes Admiralty Prohibition At the Archess discussed in right of Office Prohibition Admiralty for staying ships for Ballast High Commissioners and their power in Ministring Oâ—th and taking obligation High Commission Clandestine marriage Admiralty Coâ—rt if a thing done beyond Sea shall be there tried Agreement by word â—…p back tithes Where a Prohibition shall be granted without Action hanging High Commissioners Alimony Adultery Houghton Shirley Barker Court of Admiralty's Jurisdiction Admiralty Prohibition Modus decimandi Prohibition to a Court Baron Replevin 2. Executors one refuses Waste 2. Executors one refuses Bargaine and sale upon Condâ—… Ravishment of Ward Mich. 〈◊〉 Jacobi Rot. 213. Common of Pasture Trespasse Ejectione firmae Common Recovery Judgement in Debt Accompt See the beginning fol. Debt by Executor Administrators during the minority of the Executor Action upon the Case for words Replevin Attornement of Tenant being under age of 21. yeares Shirley Harris Harris Montague Hutton Surrender after Statute acknowledged Executors sued and also the Heire Court of Equity Debt upon a Bill Harris Shirley Fealty gives Seisin of all annuall Services Atturney brings Action of Debt for Fees Survivor doth not hold amongst Merchants to have all Award void Action upon the Case for words Devise that Executors shall sell Land A Towne incorporated with the consent of the greater part Action on the Case for slander Action upon the Case for suing one in a Court which hath no Jurisdiction Prescription for Common for Beasts without number Priviledge out of higher Court Fine amended Feoffinent to a Son and Heir for a valuable consideration Avowry Teste of a Venire facias amended after verdict Ejectione firme Ejectione firme Dodridge Houghton Replevin Grant without date Obligation Accompt Information Dodridge Hanghton Montague Dodridge Dower Debt against Administrator Commission to the Councell in Wales Caveat to a Bishop If administraon to the next of blood cannot be repealed Action for words Trespasse for breaking a House and taking a Cow Haughton Barker Barr not good Copy-hold intailed Extent upon a Statute Summons in Dower Patent of a Judge of the Common bench Action upon the case for slander Haughton Barker Periured Actionable Trespasse for imprisonment Dodridge Hutton Coram non judice Judgement void Shirley Wynch Foster Arbitrement Lease by the Dean and Chapter of Norwich Hutton Haughton Office granted by a Bishop Assumpsit Wilt of Right Haughton Nicholls Dower of titâ—e of Wooll Attachment Executrix during nonage Nicholls Harris Copy-holder Harris Dodridge Coke Replevin Waste Informer Lybell Debt against Administrator Copy-hold Coke Revocation of Uses Dodridge Nicholls Dodridge Nichols Wynch Warburton Coke Common Recovery Obligation to perferme Covenants Arrest of Judgment Audita querela Wast Estrepement awarded Ejectione firme Refusall Lord of a Mannor inclose the Demesnes adjoyning to the Common Warrantia Charte Dodridge Nicholls Devise of a Lease Dodridge Harris Assent to a Legatee Remainder of a Chattell Sherley Debt by Obligation Request is necessary for his Rent though that he have a bond for performing Covenants Nichols Debt Wynch Warburton Debt against Executors Davis What acts doe make an Executor De son tort what not Barker Warburton Wynch Trespasse Harriot Nicholls Harris Coke 253 Eliz. Dyer 193. a. Wrensfords case accordingly Warberton Wynch Release Cinque Ports Tenant for life with warranty Nicholls Haughton Wynch Warburton Ayd granted Coke Wynch Verdict uncertaine Falkland What is so called Warburton Coke Quod non occupantur conceditur Debt against Administrator for Rent in the Debet and Detinet Chibborne Detinet onely 2. Heire charged in Debet and Detinet 3. Towse Crook and Harris Joynt Covenant shall survive Copy-holder shall hold charge Error Elegit Testatum where no Writ had issued Confirmation to a Copy-holder destroys Common Expresse Covenant qualifies Covenant in Law Prohibition Defendant re-enters after Possession delivered by Habere facias possessionem Custome among Copy-holders Nonsuit after Verdict Reservation of Rent Michaelmasse or ten dayes after Grant of Common extinct Exposition of Usage Ejectione firme Errour Abatement of a Writ by entry Markhams Grant Earle of Rutlands Patent Challenge Earl of Rutlands Patent Challenge Abatement Errour Variance Seisin Abridgment of the Plaint in Assise Yelverton Fenner Challenge prin Flemming What matter shall be assigned for Error after Judgement Variante Challenge Seisin Misnaming of a Corporation Walter Yelverton Fenner Flemming Prohibition Prohibition A married Wife cannot make a Letter of Attorney Replevin Warburton Justice Walmesley Re-entry after possession executed Slander of Attorney Grand Cape Petit Cape Waging Law Release Inn-Keeper in London Action of false Imprisonment Serieant Harris the younger Walter Walmesley Coke Priviledge Assise View Coke Walmesley Challenge Errour in a Fine Barwick Returne of Writs Idemptitas nominis Fine Infant Tayle Maintenance Habeas Corpus Prohibition Trespasse for Slander Party Jury of two Counties Action upon the Case for Slander Errour Covenant for Rent Continuance Assumpsit Consideration Debt against Executors Errour Ve. fa. hab Carpus Formedon in Remainder Challenge Partition Dures Action upon the case for slander Prohibition Will. Devise Priviledge Postea 218. Adjournment of Tearm Infant levies Fine brings Errour Action upon the Case Action upon the Case Debt for Obligation Hutton Dodridge Court Sheriff committed to the Fleet. Grant of a Rent Priviledge of London Harris Hutton Where the Owner of Wood may Inclose Hutton Arbitrement Submissior Revocation Devise and grant â—enures to bargaine and Sale Harris Lease to determine upon Limitation Grant of the King that the Burrough should be incorporated Bayle Suit begun hanging another Writ Casuall intire Services Harris Nicholls Foster Dauiell Warburton Walmesley Coke Trade with Infidels without License Prohibition to the Court of Requests Approvement of Common Walmesley Foster Action upon the Case for Slander Bankrupt actionable Grant of Reversion Error in Proclamation Forfeiture of Office of a Chiroghapher Release Error in a Writ of Dower Copy-hold Certificate of the Bishop Minister Arrested Grant of the King of Alnage Haughton Dodridges Statutes how to be understood c. Account Devise of a Teerme Award Submission Arbitrement Where the death of the Defendant in Execution shall be satisfactory Dodridge Certiorari Outlawry Hutton Foster Debt upon escape against whom Warburton Land extended at too high rate Walmsley Coke Harris Haughton Foster Justice Warburton Walmsley Coke Charta de Foresta Assise Office Trespasse Estovers Boote its signification c. Nicholls Walmesley Coke Fee when forfeited Trespass Grant le Roy.
REPORTS OF Diverse Choice CASES in LAW TAKEN By those late and most judicious Prothonotaries of the Common Pleas RICHARD BROWNLOW JOHN GOLDESBOROUGH Esq rs WITH DIRECTIONS HOW TO proceed in many Intricate Actions both Reall and Personall shewing the Nature of those Actions and the Practice in them excellently usefull for the avoyding of many Errours heretofore committed in the like Proceedings fit for all Lawyers Attorneys and Practisers of the Law Also a most Perfect and exact Table shewing Appositely the Contents of the whole Book Solon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 LONDON Printed by Tho Roycroft for Matthew Walbancke at Grays-Inne Gate and Henry Twyford in Vine Court in the Middle Temple 1651. THE PUBLISHER TO THE READER THese Reports coming unto my hands under the Commendations of men of so much sufficiency in the knowledge of the Lawes I could doe no lesse then fear that it would prove too obvious a neglect of Common good to keepe them in the darke therefore here I present them to the World to the end that all men may take that benefit by them now being in Print which some few only have hitherto injoyed by private Copies And indeed I thinke I shall put it beyond dispute when I name the two worthy and late famous Prothonotaries M r. Brownlow M r. Goldesborough whose Observations they were that they will both profit and delight the Reader since there are contained under these heads viz. Actions upon the Case Covenant Account Assise Audita querela Debt upon almost all occasions Dower Ejectment Formedon Partition Quare Impedit Replevin Trespas Wast Many excellent conclusions as well of Law as of the manner of pleadings Demurrers Exceptions Essoins Errors and the qualities of many VVrits with other various and profitable Learning in which may be found the number of the Roll for so many as have had the luck of a full debate and definitive sentence And for the rest though there is no Judgment in them so as to determine what the Law is yet at least they will afford a very considerable compensation for the Readers pains by opening unto him such matters as are apt for Argumentation and may acquaint his Genius with the manner of Forensall Disputations from which benefit to detain you any longer will deserve a Censure therefore I remit you to the matter it self which I am confident the Printers faults excused will easily effect its owne praise beyond my Ability SPECIALL OBSERVATIONS AND RESOLUTIONS OF THE JUDGES OF THE COMMON PLEAS Vpon severall Actions upon the Case there depending and adjudged PEdley versus Langley Hill 14. Ja. rotulo the Plaintiff brought his Action for these words You are a Bastard for your Father and Mother were never married The Defendant pleads that the Plaintiff was a Bastard and justifies the words laid and it was held by the Court that this Issue should be tried by the Countrey and not by the Bishop as in other Cases SMayles one of the Attourneys c. versus Smith for these words he meaning the Plaintiff took corruptly five Marks of Brian Turnor being against his own Client for putting off and delaying an Assize against him and after a Verdict exception was taken against the Declaration for that the Plaintiff did not expresly alledge that at the time of speaking the words He was an Attourney but layd it that he had been an Attourney The Court held the words would bear Action MAle versus Ket Hill 14. Jac. rotulo 1506. for these words William Male did steal my Corn out of my Barn Judgement for the Plaintiff The Court held that an Action would lie for these words You are a Thief and have stollen a Cock which was but Petty Larceny COwte versus Gilbert Hill 10. Jac. rotulo 3176. Thou art a Thief and hast stollen a Tree Judgement that the Plaintiff should take nothing by his Writ The like Thou art a Thief and hast stollen my Maiden-head no Action HArding versus Bulman Hill 15. Jac. The Plaintiff declares that in such a Term he had brought an Action of Case against B. for scandalous words to which he pleaded not guilty and at that Triall gave in Evidence to the Jury to take away the Plaintiffe Credit and Reputation that the Plaintiff was a common Lyar and recorded in the Star-chamber for a common Lyar by reason whereof the Jury gave the Plaintiff but very small Damage to the Plaintiffs Damage of c. The Defendant pleads not guilty And it was moved in Arrest of Judgement that the Action would not lie And of that opinion the Court seemed to be BRidges one of the Attourneys versus Playdell for words You meaning the Plaintiff have caused this Boy meaning A. W. then present to perjure himself Judgement for the Plaintiff STone versus Roberts Mich. 15. Jac. rotulo 635. for these words Thou art a Witch and an Inchanter for thou hast bewitched Stronges Children no Action lies but if thou say Thou art a Witch and hast bewitched Children and that they are wasted and destroyed they are actionable SCarlet versus Stile Trin. 14. Jac. rotulo 541. for these words Thou didst steal a Sack and Curricomb and I will make thee produce it and thou didst steal my Fathers Wood and didst give it to a Whore The Defendant justifies that such a day the Goods were stollen and there was a common fame and report that the Defendant had stollen them and upon that report the Plaintiff did vehemently suspect that the Defendant had stollen them and thereof did inform a Justice of the Peace and complaining of the Defendant to the Justice and informing him of the Premises did speak the words before mentioned If a Felony be committed it is good cause to arrest one for Felony but not to speak words to defame one If there be two Issues in severall Counties in Trover and one is tried and Judgement and Execution of the Costs and Damages and afterwards the other Issue is tried and Costs thereupon the last is erronious as to the Costs Broccas Case Note Trover was brought against Husband and Wife for Goods which came to the hands of Husband and Wife the Conversion was alleadged to be by the Husband alone for the Wife could not convert And the Court held that the Action would not lie against the Wife MOse versus Canham Mich. 6. Jac. rotulo 508. The Plaintiff declares that one Levet was indebted in such a summ and for the payment thereof had delivered to the Plaintiff divers Goods of the said Levets the Defendant in consideration that the Plaintiff would deliver to the Defendant the said Goods promises to pay the Plaintiff the money due from Levet and exception was taken to the Declaration for that the certainty of the Goods were not expressed and for that the consideration was but collateral Another Exception for that the Plaintiff might grant the Goods over but the Court held the contrary And Judgement for the
Berwick Gaol for stealing of a Mare and other Beasts and after a Verdict for the Plaintiff it was moved in Arrest of Judgement that the words were not actionable and so it was adjudged for that he did not directly say the Plaintiff was a Thief but onely implied Hill 15. Iac. rotulo An Exception taken to a Declaration in Trover brought by an Administrator because he declares that whereas he was possessed of divers Goods and Chattels as of his own proper Goods and should have said as was pretended as of the Goods and Chattels of the intestate at the time of his Death but the Exception was over-ruled by the Court. Exception to an Action of the case brought and the Plaintiff declares that whereas the Plaintiff had delivered the Defendant unum statum salis Anglicae a Bushel of Salt pretending that statum had another proper signification but because it was shewed to the Court that statum by one Dictionary was Latine for a Bushel Judgement was given for the Plaintiff In Trover it is usual to prove no more but that you requested the Goods and the Defendant refused to deliver them this is a Conversion When a Justification arises upon a Sale then I need traverse no more but the place alleadged and not go to the whole County but where it is a transitory Trespass as for Battery taking of Goods and the like then the whole County must be traversed CAtford versus Osmond Mich. 16. Jac. rotulo 1063. Action of Trover brought for two Steers the Defendant being an Attourney of the Common-pleas justifies the taking as Under-sheriff by reason of Process from the Exchequer to levy of the Occupiers of the Lands of divers persons in a Schedule in the said Writ named the Debts therein specified and doth not recite the Schedule and he being Under-sheriff took the Steers in the Land of the Plaintiff which was lately one Stones who was Debtor to the King in 59. s. being behinde upon the Land and Exception was taken for that it was not directly alledged that the Land such a Day was the Land of the said S. The Writ commanded to levy the summs in the said Schedule mentioned and if they could not to take their Bodies and it was adjudged a good Warrant to levy of the Occupiers of the Lands that were the said S. 59. s. COles versus Flaxman Hill 14. Jac. rotulo 2175. Action of the case brought for disturbing the Plaintiffs Common The Defendant pretends Title to the Common by reason of Common appurtenant to certain customary Land of part of which he conveys a Title to himself but not of the whole and the Question was whether it were Common appurtenant or appendant and if appurtenant it could not be divided KEymes versus Moxham Trin. 15. Jac. rotulo 559. Action of the case brought for a promise made at C. for the Delivery of a Mare which the Plaintiff delivered the Defendant to plow his ground in P. And shews the Defendant did so excessively and immoderately labor and work the said Mare that the Mare died The Defendant confesses the promise and that the Mare at the time of the Delivery was infirm and that he worked her moderately and traverses the excessive labouring of the Mare and after a Verdict it was moved in Arrest of Judgement that it was mis-tried because the Venn was of C. which was naught and there was no place alleadged where the excessive labouring was for the Venn ought to come from that place where the laboring was HArbin and his Wife versus Green Trin. 14. Jac. rotulo 2263. Action upon the case brought for not grinding his Corn at the Plaintiffs Mill and shews that the Bishop of Salisbury was seised of four customary Mils called A. in his Demesne as of Fee in right of his Bishoprick and prescribes that all Inhabitants and Residents within the City of Salisbury holding any ancient Mesuages of the said Bishop in right of his Bishoprick were time out of minde used and ought to grinde all their Corn whatsoever spent in their houses or exposed to sale in the said City at the said Mils of the said Bishop and no where else without the licence of the said Bishop and to pay Toll therefore to the said Bishop his Successors Bishops or their Farmors for the time being and in consideration thereof the Bishop his Successors or Farmors for the time being of the said Mils time out of minde have been used and accustomed at their own charges from time to time to keep and maintain a Servant expert in grinding as well by night as day there attending to grinde their Corn as soon as conveniently might be and the Plaintiff shews that such a Day the Defendant was and yet is an Inhabitant in one ancient Mesuage in the said City held of the Bishop and so possessed intending to deprive the Plaintiff of the profit of his Mill did such a day grinde divers sorts of Corn in other Mils without the Bishops leave to his damage of c. The Defendant pleads Non cul The Jury finde the Defendant guilty for a longer time then the Plaintiff had interest in the Mill and gave Damages intire and upon a Motion in arrest of Judgement adjudged naught GResley versus Lother and his Wife Executrix of R. B. and declares that communication was had between the Testator in his life and the Plaintiff concerning a Marriage to be had and solemnized between one T. B. son and heir apparent of the said R. B. and Jane Daughter of the Plaintiff and heir apparent of John F. deceased the said Testator such a Day and Year in consideration that the Plaintiff at the special instance and request of the said R. B. then and there would agree that the said T. B. should marry the said J. promised to pay 20. l. and adjudged a good consideration GOwland versus Mason Hill 17. Jac. rotulo Action of the case for these words I charge him with Felony for taking of money out of the pocket of Henry Sparry and I will prove it and the Court was divided in opinion whether the words would maintain an Action or no. SMith and his Wife versus Stafford Executor of Stafford Hill 15 Jac. rotulo 906. Action of the case brought upon a promise made to the Woman when she was sole in consideration the Woman would marry the Testator he promises that if the Woman should over-live the Testator that then he would leave her worth 100. l. and they averr that she did marry him and after the Husband died and did not leave her worth 100. l. and the Defendant pleads Non assumpsit and found for the Plaintiff and it was moved in Arrest of Judgement that by the Inter-marriage the Promise was drowned and released Three Judgeâ—…r the Plaintiff and one for the Defendant The like Observations in Actions of Covenant DRury versus Allen al. Mich. 6. Jac. rotulo 926. Action of Covenant
Lords Estate 231. Copy-holder what Action he shall have ibid. Capiatur upon a Judgement assigned for Error where 211. Common appendant apportionable aliter appurtenant 180. Copy-holder barred by a Fine if not claiming within five years 181. Cognisance as Bailiff 181. Commoner may take the Cattell of the Lord damage feasant where 187 Common in a field and Acres unsown sowing of parcell shall not destroy the Common 189. Consideration to raise an use 193. Challenge where it lyeth 194. 195. 196. Challenge none against the Jurors returned by the Eslizors 194. Commoner what Actions he shall have and how 227. Commoner may have an Assise against the Lord 227. Common is incident to a Copy-hold Estate 220. Commoner cannot chase the Lords Cattell if they surcharge the Common 208. Confession after Issue joyned refused 196. Commoner cannot bring an Action but the Lord may 197. Constable cannot detain one but for Felony 198. Continuando where proper 223 224. 234. Cursus aque granted 229. D. DOuble prosecution for one thing actionable where 12. Demand and deniall makes a good conversion 17. Denis age pleaded to a Bond 30. Distresse where good ratione concessionis non posaessionis 32. Devastavit may be by paying of money upon an usurious contract 33. Distresse in a Court Baron by prescription 36. Devise Executory where good 41. Devise of Land in Tail conditionally 45. Demand not necessary 10. Debt how and where it lies 50 Devastavit returned where 50. Debt lies for money levied 51. Debt against a Sheriffe for an Escape 51. Debt in Debet and detinet where 56. Default of the clerk amended 56. Demand alledgable ibid. Debt for performance of covenants 61. Debt upon Obligation in Italian 62. Debt for non performance of award 65. Damages from request 70. Deprivation given in Evidence 73 Dammages where to be severed 73 Debt lies not for fees of a Sollicitor 74. Debtee take Administration 74. Demand necessary in nomine penae 76. Devise of the profits good of the Land it self 80. Debt against an Executor after full age for Devast of an Admistrator duravit minor aetate 81. Debt lies for him for use money is delivered 83. Debt upon the Statute of perjury 83. 84. Debt against the Bailiff 86. 87. Debt upon the Statute of Edw. 6 for Tithes 87 Debt for Rent Arrear 89. Debt for Flemish money but demanded by English value 91 Demand of Rent where to be 97 Debt for Tithes Plaintiff need not to be named Rector 99 Debt for Tithes the statute mistaken is not good 101 Debt by a Bill for money received to anothres use 104 Debt for non-performance of Covenants 114 Devastavit when it ought to be retained 117 Debt upon a Lease made to an Infant 121 Debt for Tithes after the toarm ended 124 Demurrer to an action for non-performance of an Award 125 Dower against the Heir or Committee 127 Dower of Tythes how 172. Demand when to the Parson when to the Land 135 Debt contingent cannot be discharged where 110 Deed of gift good against him who makes it non obstante 13. Eliz. and against his Executors and Administrators 111 Demand of Rent to avoid a Lease where to be made 138. Discontinuances 155. Darraign Presentment where 159 160. Demurrer for doublenesse of Plea 164. Devise for years in confidence 196. Demand not necessary in Replevin for Rent 171. Distresse of a thing intire by two no return in Replevin adjudged 171. Distresse for Common Right 177 Distresse where it is good for the Rent but not for the nomine penae without demand 179 Demand of Rent-service how 181. Demurrer to part of the declaration what it effects 92 Disseisin of a Common what 197. Damages for Trespass locall cannot be mitigated by the court 204. Declaration shall not abate for false Latine 206. Damages none in partition 209. Damage where it shal be intire 233 Damage released for part 235. E. ELegit how executed 38. Elegit from the Teste binds Goods and Chattells 38. Extent upon Extent 39. Estovers 44. Entry Writ filed after the death of the Tenant 44. Error as to Costs where 3. Exception to a Declaration 8. Executor at what age 46. Exceptions to an Award 48. Exceptions to a Plea 51. Exception to a Venire facias 52. Estoppell 57. Error assigned 65 66. 59 Executor an Assign in Law 78 Executor de seu tort shall not prejudice the rightfull 79 Escape against a Bailiffe of a liberty 80 Executor his election for part is not good 83 Escape lies not against the Sheriffe where 85. 119 120 Executor de seu tort cannot retain money to pay himselfe 104 105 Election of Execution either against Principall or Baile 122 Error lies not before 〈◊〉 value 〈◊〉 inquired of 〈…〉 Executor shall not paâ—… 4. Jac. cap. 3. 107 Elegit to a forreign Sheriffe upon a testatum in London 107 108 Ejectment doth not lye De aequae cursu 142 Ejectment sufficient by a servant in present Relation 143 Ejectoris in traverunt and after he did expulse in num singulari 149 Essoine lyes by Writ of Journeys accompts though allowed in the first Writ 152 Essoine where it lyeth 154 Extinguishment of Common by inclosure where 174 Exceptions to an Avowry 179 Evidence what shall be given 207 Enquiry of Damages the Plaintiff not bound to prove the property of his goods taken but the value only 214 Estovers if the Owner cut all the wood downe what remedy 220 Exception taken for incertainty 232 Estray how to be used and the nature of it 236 F. FRench Pox actionable 11 Filching fellow not actionable 13 Forsworn Knave where it is actionable 13 Forging Knave where actionable 16 Feme where not bound to performe the Covenant of her Husband 31 Fraud not â—â—nended 45 Feme Covert cannot convert 3 Feoffment to uses 60 Feme Covert cannot make a letter of Attorney 134 Formidon in descender 152 153 Felony committed is good cause for to arrest one suspected but not to defame one 2 Feme cannot plead without her Husband 197 Free Warren what 228 G. GRant by the King where good 27 Grant not enlarged by a bare recitall 32 Guardian in socage who 40 Gift by Deed void quoad chose and Action 40 Goods not saleable upon execution out of a Court Baron without Custome 41 Guardian of the spiritualties who 43 Generall release pleaded 54 Grantee of a Reversion what action he shall have 56 H. HAbeas Corpus to the Marshalsey 61 Hue and Cry 155 Hundred charged in Robbery 156 Hundred not chargeable after the yeare and day 156 Hundredors in a Jury how many necessary 193 Husband and Wife where they shall be joyned and where severed in an action 209 I. INcertainty in the Declaration 10 Justification disallowed 11 Indebilatque assumpsit where good 14 Iustification by the Sheriffe 17 Judgment arrested for default in the Declaration 21. 23 Judges of the fact who 36 Inquisitions where naught 38 Juror appearing cannot be discharged 41 Issue cannot be bastarded after death
is appurtenant or appendant the Grantee shall have Common Pro Rata but if a commoner purchase parcell of the Land in which he hath Common appurtenant that this extincts all his Common And it was agreed that Common may be appendant to a Carve of Land as it appeares by the 6 Ed. 3. 42. and 3. Assise 2. as to a Mannor but this shall he intended to the Demesnes of the Mannor and so a Carve of Land consists of Land Meadow and Pasture as it appeares by Tirringhams case 4. Coke 37. b. And Common appendant shall not be by prescription for then the Plea shall be intended double for it is of common Right as it appeares by the Statute of Morton chap. 4. And the common is mutuall for the Lord hath Right of Common in the Lands of the Tenant and the Tenant in the Lands of the Lord And it was urged by Nicholls Serjeant that the Common shall be apportioned as if it were Rent and that the Lessee shall have Common for his Lease and then the Lessor hath no Common appurtenant or appendant to the two Virgats of Land and for that the Prescription was not good Coke cheife Justice if it had been pleaded that he had used to have Common for the said Beasts Levant and Couchant upon the said Land there had been no question but it should be apportioned for the Beastes are Levant and Couchant upon every part as one day upon one part and another day upon another part and for that extinguishment or suspention of part shall be of all as if a man makes a Leafe of two Acres of Land rendring Rent and after bargaines and sells the reversion of one Acre there shall be an apportionment of the Rent as well as if it had been granted and attornment And he agreed that if a man have Common appurtenant and purchase parcell of the Land in which he hath Common all the Common is extinct but in this case common appendant shall be apportioned for the benefit of the Plow for as it is appendant to Land Hyde and gain And in the principall case there was common appendant for it was pleaded to be belonging to two Virgats of Land and for commonable Beastes And he conceived also that the prescription being as appertaining to such Land that this shall be all one as if it had been said Levant and couchant for when they are appurtenant they shall be intended to Plow Manure Compester and Feed upon the Land And also he conceived that the right of Common remaines in the Lessor and for that he may prescribe for after the end of the Tearme shall be returned and in the intermin he may Bargain and sell and the Vendee shall have it and shall have common for his Portion And Walmesley Justice agreed to that and that during the Tearme the Lessor shall be excluded of his Common for his proportion Foster Justice agreed and that the possession of the Lessee is the possession of the Lessor but he conceived when the Lessor grants to the Lessee six acres of Land in such a feild where the Land lies and then the Beasts were taken in another feild And so they agreed for the matter in Law and also that the pleading was ill and so confesse and avoid the prescription But upon the traverse as it is pleaded the Jury shall not take benefit of it and Judgement was given accordingly Termino Pasche 7. Jacobi 1609 In the Common Bench. THOU art a Jury man and by thy false and subtill means hast been the Death and overthrow of a hundred men for which words Action upon the case for slander was brought and it seemed to Coke cheife Justice that it did well lye if it be averred that he was a Jury man and so of Judge and Justice for Sermo relatus ad personam intelligo debet de qualitate persone as Bracton saith and in the like Action brought by Butler it was not averred that he was a Justice of Peace and resolved that an Action upon the case doth not lye But Walmesley Justice conceived that an Action doth not lye for one Juror only doth not give the Verdict but he is joyned with his Companions and it is not to be intended that he could draw his Companions to give Verdict against the truth and false and subtill means are very generall Warburton Justice agreed with Coke and conceived that the Action well lies being averred that he was a Jury man as if one calls another Bankrupt Action well lies if it be alledged that the Plaintiff was a Tradesman and it is common speaking that one is a Leader of the Jurors and a man may presume that other Jurors will give Verdict and may take upon him the knowledge of the Act. Walmesley conceived that the Action did not lye for that the words are a hundred men which is impossible and for that no man will give any credit to it and for that it is no slander and for that Action doth not lye no more then if he had sayd that he had kild a thousand men But Coke Warburton Daniell and Foster agreed that the number is not materiall for by the Words his malice appears and for that they conceived that the Action doth well lye Pasch 7. Jacobi 1609. In the Common Bench. Denis against More ANthony Denis Plaintif in Replevin William More Defendant the case was this Two joynt Lessees for life were the Remainder or Reversion in Fee being in another person he in Reversion grants his Reversion Habendum the aforesaid Reversion after the death surrender or forfeiture of the Tenant for life it hapneth that the Lease determines for the life of the Grantee and Remains to another for life and resolved that this shall be a good grant of the Reversion to the first effect of Possession after the Deaths of the Tenants for life according to the 23 of Eliza. Dier 377. 27. And it shall not be intended to passe a future interest as if it were void of the other party and so was the opinion of all the Court see Bucklers case 2. Coke 55. a. and Tookers case 2. Coke 66. Upon a Fine the first Proclamation was made in Trinity Tearm 5. Jacobi And the second in Michaelmas Tearm 5. Jacobi And the third in Hillary Tearm 6. Jacobi where it should be in Hillary Tearm 5. Jacobi And the fourth and fifth in Easter Tearm 6. Jacobi And this was agreed to be a palpable Errrour for the fourth Proclamation was not entered at all and the fifth was entered in Hillary Tearm 6. Jacobi where it should have been in Hillary Tearm 5 Jacobi and it shall not be amended for that it was of another Tearm and the Court conceived that this was a forfeiture of the Office of the Chirographer for it was an abusing of it and the Statute of 4. H. 4. 23. and Westminster 2. Are that Judgement given in the Kings Court shall stand untill