Plaintiff to have execution against the said Thomas Elme and so was aiding and assisting unto the said Thomas Elme Wherupon the Defendant demurred and it was adjudged by the Court that this prosecution of a Writ of Error to discharge himself of an erroneous Iudgment is no breach of the Condition no more then if the Plaintiff had released and he had brought an Audita Querela And it shall be intended in this case of a Suit to be solely commenced by the said Thomas Elme and if he will restrain him that he joyn not in a Writ of Error it ought to be precisely contained in the Condition and shall not be taken by a large Exposition to the forfeiture of an Obligation by a generall and ambiguous sentence It was urged that the Defendants had power to have severall Writs of Error 11 H 6. 9. But the Court resolved that being the Costs were joynt they ought to joyn vide Coke lib 6. fol 25. but the release of one will not bar the other vide 34 H 6. 42. 35 H 6. 10. that this Suit is in discharge of the Defendant and not to charge the Plaintiff and therfore the Condition is not broken vide Dyer 253. A Condition to suffer a Lessee quietly to enjoy the word suffer guide all the sentence in favour of the Obligor and Iudgment cannot be reversed in part and stand for the other part or be reversed against one and stand in force against the other except in speciall cases As where Infant Tenant for life and he in remainder of full age levy a Fine that shall be reversed as to the Infant and stand for the remainder for it is no other then as a Conveyance Mich. 18 Jac. Powell versus Ward AN action of the case was brought for these words Case Words I have matter enough against thee for Iohn Halden hath found forgery against thee and can prove it And after Verdict it was resolved by the Court that the words are too generall will not maintain an Action no more then if one said that another had forget a Warrant for it might be a Warrant for a Buck and this is not right Affirmative Sherley versus Underhill A Quare impedit brought by George Sherley Baronet Quare Impedit Error in Quare Impedit against Underhill and Bursey for presenting to the Vicaridge of the Church of Nether Elington and count of a Nomination as appendent to the Mannor of Elington and Issue therupon for they pretend it to be appendent to the Rectory of Elington And it was found for the Plaintiff at Warwick Assises and Iudgment there for him and a Writ to the Bishop and therupon a Writ of Error was brought in the Kings Bench and it was to remove a Record which was between George Sherley Knight and Baronet and the truth was that Sir George is not neither was named Knight by all the Record And therfore the opinion of the Court was that the word Knight is part of the name and so no Record was removed And it is so materiall that the addition where there is none or the omission where it is Knight makes it no such Record and they perceiving it discontinued their Writ Memorand That though Iudgment was given at the Assises the Writ of Error was directed to the Lord Hobart and the Record is demurrant in the Court of Common Berich And now it was moved that the Iudgment might be amended for it was Quod recuperet presentationem suam ad Ecclesiam praedictam And the value sound of the Church aforesaid And it should be Quod recuperet praesentationem ad vicariam Ecclesiae valorem vicariae Ecclesiae And it was urged that it was not the mis-prision of the Clerk but of the Court and Iudgment erroneous in point of Law is not amendable for if it be Quod capiatur where it should be Quod sit in miserecordia it is not amendable But it was resolved and so awarded by the Court that it should be amended And the reason is because the Verdict is generall and they found for the Plaintiff and the Iudgment ought to agree with the Verdict But it is solely mis-prise by the default of the Clerk for the Record precedent is in every part and in the Issue and Verdict Vicariam Ecclesiae And by the Statute 8 H. 6. cap. 15. that is amendable for the mis-prison of the Clerk in the Record shall be amended though it be in the Iudgment Wilde and Woolfe Mich. 33. 3â— Eliz 230. vide Dyer 258. Also Mich. 33. 34 Eliz Rot 230. between Wilde and John Woolfe Ideo considerat est quod praedictus Thomas Wild recuperet versus praedictum Thomas Woolfe where it should be John and Error was brought and it was amended Stepney and Woolfe 42 Eliz Rot 693. An action of the case by Stepney against John Morgan Woolfe Id. consid quod recuperet versus praedictum Morgan Woolfe and there was no such Defendant but John Morgan Woolfe and it was amended upon Error brought in the Exchequer Chamber And vide Coke lib 8. fol. 164. Blackamores case more cases upon this learning where the mis-prison of the Clerk in the entry of the Iudgment of a thing which is apparent and not of necessity shall be amended as in Mis-prision of the summ of Arrerages before and pending the Writ of Annuity shall be amended vide 9 Eliz Dyer 258. Mich. 18 Jac. Sir Thomas Wentworths Case Replevin SIr Thomas Wentworth brought Replevin the Defendant avowed for a Rent granted Demand of Rent with a Nomine poenae after Issue joyned upon other matter and a Nomine poenae and shews not any Demand of the Nomine poenae But the Issue was tryed and found upon other matter viz. Non concessit And now it was moved in Arrest of Iudgment that he avowed for a Nomine poenae and did not alledge any demand therof yet Iudgment was given for the Avowant For it is matter confessed and the Action is a request viz. the Avowry for he is there the Actor And it is but a Circumstance collaterall to the right And in Actions upon the Case founded upon a promise after request a Licet saepius requisit shall be a sufficient Allegation of a request Davies Case Statute-Merchant without day of payment ONe Davies acknowledged a Statute-Merchant at Glocester in three hundred pounds and the Statute did not limit any day of payment and yet an Extent was sued And upon motion by Serjeant Harris a Supersedeas was awarded for that is no Statute for they had not pursued the Authority given by the Statute For the Statute of Acton Buanell 11 E. 1. saies if the Debt be not paid at the day And though Debt upon an Obligation is payable presently if the day be not expressed yet there the Statute appoint a day certain Pasch 15 Jac. Rot. 1714. Cartwright versus Underhill Trover and Conversion AN action of Trover and
Prender and that he might have an Assise or justifie for Damage feasant And he which hath the fore-crop is he which hath the Free-hold 15 E. 2. Fitz. Prescription 51. And the very case in temps E. 1. Fitz. Prescription 55. and this sole feeding might have Commencement by Grant and therfore a good Prescription Iudgment for the Avowant Trin. 19 Jac. Wilson versus Stubbs WIlson brought Replevin against Ralph Stubbs Replevin The Defendant avow as Bayliff to the Earl of Northumberland for Amercements within a Leet at Toxcliffe And upon Issue joyned and tryall at the Common Pleas by Default it was alledged Supersedeas upon Indempnitate nominis that Ralph Stubbs was dead and the Plaintiff would proceed and had Iudgment Damages and Costs sixteen pounds and a Capias awarded to the Sheriff of York and Ralph Stubbs the Son as is supposed is taken and had an Indempnitate nominis which Writ being directed to the Iustices they award a Supersedeas And now upon divers motions the sixteen pounds was brought in Court and they proceed upon the Indempnitate nominis The question was if the Supersedeas lye therupon being that it is only a surmise and matter en fait and lies properly and more frequently for preventing an Arrest upon Outlawry and after that the party is taken upon the Outlawry vide 5 E. 4. 23. vide lib Intrat and it is matter not frequent in use and is in nature of an Audita Querela and the party shall find surety to pay the Debt if it be found that he be not another person And the Court inclined strongly that it is no Supersedeas but it is much in the discretion of the Court vide lib Intrat 5 E. 4. 36. bone Case and fol. 51. 53. Mich. 19 Jac. Allen versus Swift Case ALlen brought an action of the case against Swift and declared That wheras he bargained and sold that is to say Merchandized for Lead in the County of Derby Words and therby hath acquired money towards his livelyhood The Defendant said of him He is a Bankrupt and is not able to pay his debts but will run the Country It was found for the Plaintiff and moved in Arrest of Iudgment by Serjeant Harvey that the action lay not because that the Plaintiff shewed not that he used it as his Trade nor that he gained his living by buying and selling Also he is entituled Gentleman But the Court hold that the action would well lye and it had been adjudged 14 Eliz. That a Tanner shall have an action for such words Mayes versus Sidley Case Consideration of forbearance MAyes brought an action of the case against Sir Isaac Sidley and count that wheras one was indebted unto the Plaintiff in a hundred pounds by Obligation the Defendant in consideration that the Plaintiff at his request would forbear to sue the said party and if he did not pay it the Defendant would And upon Non assumpsit pleaded and Verdict for the Plaintiff Hitcham moved that is no good consideration for it is uncertain for if he forbear one hour one day this is a forbearance And he resembled it to Palmers Case forbear him a little while and if he do not pay it I will This was adjudged for the Plaintiff in Banco Regis but afterward by a Writ of Error it was reversed And he cited a President which was shewn of the 36 of Eliz. where the case was the same in effect with this And Iudgment reversed but it might be for other Errors And the Court inclined that this action lye for when it is alledged that he did forbear it shall be intended of such a forbearance by which the party had ease and benefit and shall be a competent and convenient time and that shall be convenient time as in other cases As Tenant pur auter vie shall have convenient time to remove his goods after the death of Cestui que vie And it shall be convenient time to purchase a Writ by Iourneys Accounts And it was said that there were many Presidents of this case and of the like actions for if he doth not forbear convenient time then it is no consideration and it being left indefinite the Law will judge of the convenient time but it was adjourned and after the first day of Hil. 21 Jac. This case was moved by Hitcham and he said that the Writ and Count vary for the Writ is Per magnum tempus distulit And the Count saith that he did forbear for the space of a year and more Also no time is put in the Writ but is in the Count and that he did forbear by a year and more after that so that it doth not appear that he did forbear till the Writ purchased for that appear to be half a year after the year passed and he ought to forbear it totally Richardson answered him that the breve Writ did not comprehend the time and circumstance but the matter and substance and â—ot at large for then it should not be breve As in a case sur Trover no day in the Writ but in the Count and forbearance of a year and more being alledged and issue taken and found for the Plaintiff it shall not be intended that he had sued and not forbeared till the commencement of that Suit And it is like to a grant of a Rent pleaded without Deed and issue joyned upon non concessit and it is found Concessit and good for it shall be intended effectuall c. And the Court shewed their Iudgment and concurred that Iudgment should be given for the Plaintiff And this difference was taken when the promise appear to be such that it shall not be any benefit to the party in whose behalf it was requested as forbearance for an hour or a little time there it is not good but where it is generall and not limited to any time that shall be a 〈◊〉 ill forbearance or at least a forbearance for a convenient time and that ought to be alledged for such a time which the Court shall adjudge a convenient time Lord Hobart agreed but he said that it is not a totall forbearance for then it should be that he should not sue him at all but that he will forbear is good by the subsequent forbearance and there is no variation between the Count and the Writ but the Count illustrateth and amplifies the Writ Iudgment pro querente Pasch 20 Jac. Suggs versus Sparrow IN a Scire facias against the Bail Scire facias he plead that after the Iudgment and before any Writ of Capias was sued out against the Principall he died And upon Demurrer the Court adjudged it a good plea Bayle is discharged where the Principall died before Capias awarded Tadcaster against Hollowell Timberley and Calverly and iâ— this case a Iudgment was cited Hil 10 Eliz. Tadcaster brought debt against Hallowell Hobs was Bail and the Plaintiff recovered The
reasons the Court gave Iudgment for the Plaintiff And Serjeant Ward argued well and vouched divers good Cases The Writ of Detinue supposeth properly in the thing demanded vide 50 E. 3. 6. Cook versus Cook WIlliam Cooke alias Barker brought an Action of Wast against George Cook alias Barker and count against him as Tenant for life How a Writ of Wast shall be where there is a lease for life remainder in fee. of the Lease of George Cook and intitle himself to the Reversion Ex assignatione of the said George and shews that George Cook being seised in Fee and the Ter-tenant in Socage devised the Land to the Defendant for life the remaineer in tail to the Plaintiff And upon the Count the Defendant demurred And the Question was how the Writ should be where a Lease is made for life the remainder in Fee for it cannot be Quod de ipso tenet And it seems that the Writ shall be speciall upon the Case as a Fine levied to one for life the remainder in Fee the Writ shall be speciall upon the Case And it seems that it shall never be Ex assignatione but where the Reversion is granted over vide 38 E 3. fol. 23. the direct Case and vide 38 H. 6. fol. 30. in the Writ of Consimili casu vide F N B fol 207. in the Writ of Consimili casu qui illud tenet ad vitam D. ex Assignatione praedicti B. quam I. filius heres R. qui quidem R. illud praefat D. demisit ad eundem terminum inde fecit praefat B. c. The Estate for life with a Remainder over is but one Estate and it was a question at Common Law if he in remainder shall have an action of Wast vide 41 E 3. 16. 42 E 3. 19. 50 E. 3. 3. Reg. 75. But at this day the Law is cleer that he in remainder shall have an action of Wast F N B fol 207. but these Books prove that the Writ of Wast ought to be Ex divisione non ex assignatione Mich. 6 Caroli Case Words AN action of the case was brought for these words Thou art a Theef and hast stoln one Passions Lamb and marked it and denied it And upon Not guilty pleaded and Verdict for the Plaintiff Serjeant Ashley moved in Arrest of Iudgment because that it is not shewn whose Lamb for Passions is no word of any signification without the name of Baptisme And the Court was of opinion that the Count was good for it had been sufficient to call him Theef and then the subsequent matter and words aggravate and contain matter of Felony And it is a generall Rule that when the first words are actionable the latter words which toll the force therof ought to be such as do not contain Felony Babbington versus Wood. BAbbington brought an action of debt against Wood upon an Obligation of 600 l. the Condition was That if Wood resign a Benefice upon request that then the Obligation should be void A Condâ—tion to resign a Benefice upon request And the Condition was entred the Defendant demurred and Iudgment in Banco Regis pro querente And upon Error brought Iudgment was affirmed in the Exchequer Chamber for this Obligation is not voidable by the Statute of 14 Eliz. which makes Obligations of the same force as Leases made by Parsons of their Gleaves viz. Per non residency And it doth not appear by the Plea of the Defendant that it was not an Obligation bona fide which might be lawfull As if a Patron which hath a Son which is not yet fit to be presented for default of age and he present another with an agreement that when his Son comes to the age of 24. years be shall resign it it is a good Obligation And this Case viz. an Obligation with Condition to resign had been adjudged good in the case of one Jones An 8 Jac. And the Councel said that he who is presented to a Church is married therto Jones Case and it is like as if a man who hath married a Wife should be bound to be divorced from her or not co-habit with her these Conditions are void But these resemble not our Case Wilson versus Briggs WIlson brought an action of Account against Briggs as Bayly of his Mannor in the County of Cambr. Tryall of an action of Account upon receit in two Counties and also as Bayly to another Mannor in the County of Suff. And this action was brought in the County of Cambr. and found for the plaintiff and Iudgment to account and found in the arrearages and Iudgment given And now the Defendant brought a Writ of Error Iudgment was reversed because it was mis-tryed for it should be tryed at the Bar by severall Ven. fac to be directed to the severall Sheriffs First it is agreed that a writ of Account against one as Bayliff of his Mannor cannot be brought in another County but only in that County where the land lies vi 8 E. 3. fol 46. Fitz. Acc. 93. see there that two actions of Account brought against one for receit in two Counties And there it is said that it being upon a day that he may have one writ and count in the two Counties But to that it is said that that proves not but that he might have two Writs wherby it might be awarded that he should answer But in this case it was resolved that it was a mis-tryall for it ought to be by two Ven. fac and tryed at Bar and it is not aided by the Statute of 21 Jac cap 13. Trin. 8 Car. Purnell versus Bridge Hil. 6 Car. Rot. 1235. Fine to two and the heirs of one to the use of them two in fee. HEnry Pernell brought Replevin against William Bridge Robert Bridge and two others William Bridge plead Non cepit and the other made Conusance and upon Demurrer the case was such Richard Braken was seised in Fee of sixty acres of arrable Land and forty eight acres of Meadow and Pasture wherof the place in which c. was parcell And he the sixth of Febr. An 18 Eliz. by Deed granted an Annuity or Rentcharge of thirteen pounds six shillings out therof to Edward Steward in Fee payable at the Feast of Saint Peter or within eight and twenty daies after And if it be arrear for eight and twenty daies after the said Feast that then he forfeit for every Fine after forty shillings with a clause of Distresse as well for the said Rent as for the said forty shillings if it shall be arrear Edward Steward seised of the Rent died wherby it descended to Ioan Iermy Wife of Thomas Iermy Daughter and Heir of the said Edward Steward and they being seised therof in the right of the said Ioan An. 41 Eliz. in Crastino animarum levied a Fine of the said Rent to Robert Brook and Isaac Iermy and to the Heirs of Robert which Fine was to the
3 H 6. 14. 32. there it is well argued and the better opinion that it is only by argument And a man outlawed may make an Executor and this Executor may have a Writ of Error to reverse the Outlawry And therupon and upon the view of the Record in Woolleys case the Court gave Iudgment that it is no plea. Lightfoot versus Brightman Covenant LIghtfoot brought on action of Covenant against Brightman and count that the Defendant being possessed of an Advowson in grosse for tearm of years covenanted that he would not grant nor assign his Interest to any Grant of an Advowson pleaded without alledging to be by deed good if the issue be taken upon collaterall matter without offer therof first to the Plaintiff and that he should have it fifty pounds better cheap then any other and alledge breach of the Covenant that he granted the said Advowson and his tearm therin over without offering it to the Plaintiff and Issue joyned upon non concessit and found by Verdict quod concessit and damages fifty pounds And it was moved in Arrest of Iudgment that it is not alledged that the Grant upon which the Issue is joyned was by Deed and then no breach assigned I at the first was of opinion that the Iudgment should stay but after upon advisement I concurred with Serjeant Hobart and Iustice Winch that it was averred by the Verdict for now it being a perfect Grant it shall be intended that upon the Evidence a Deed was shewn as upon Issue joyned upon Grant of a Reversion where it is not alledged that it was by Deed or that the Tenant atturned yet if it be found it shall be good And so in Avowry for a Rent-charge where the Grant therof is pleaded not by Deed and Issue is joyned fur concessit and found quod concessit that is good by the Verdict like to Nichols case Coke lib 5. Debt upon a Bill payment pleaded and Issue found for the Plaintiff he had Iudgment But it seems if it had been found for the Defendant the Plaintiff shall have Iudgment for the Bar confesse the action as in the 9 H. 6. Debt upon an Obligation the Defendant plead that he delivered it to the Plaintiff to be his Deed when certain Conditions were performed And he pleaded that the Conditions were not performed if it be found accordingly yet the Plaintiff shall have Iudgment Coke lib 2. fol 61. Wiscots case a Lease by Baron and Feme which ought to be by Deed pleaded generally and found the Plaintiff had Iudgment vide Smith and Stâ—plâ—tons case Mich. 20 Jac. Chittle versus Sammon CHittle against Sammon in Replevin Replevin Avowry for Rent granted to the Father in see without alledging that it was arreare after the death of the Father Counsance for Rent as Bayliff to Sir John Reves upon a Grant out of the Land wherof the place in which c. was parcell upon a Grant made to the Father of Sir John and for Rent arrear c. Issue was joyned upon this point if the place was parcell of the Land out of which the Rent was granted and found by Verdict that it was And now moved by Attho in Arrest of Iudgment that it is not alledged that this Rent was arrear after the death of the Father as it ought to be and therfore it may be intended that this Rent was arrear in the life of the Father But the Court agreed and resolved that it was good after Verdict for now it is pleaded that it was arrear and not paid to him Ergo it was due to him and though it might have been more fully pleaded yet after Verdict it is sufficient Fletcher versus Harcot AN action upon the case was brought by Fletcher of Otely against Harcot and count Case that wheras the Defendant had arrested one Batersby by a Commission of rebellion Assumpsit in consideration that the plaintiff being an Hostler would keep a Prisoner to save him harmlesse issuing out of the Court of the Lord President and Councell of the North as he affirmed And wheras the Plaintiff keeps a common Inne in Otely and had kept it by the space of five years and had entertained men The Defendant requested the Plaintiff to keep the said Batersby in his Inne at Otely by the space of one night as a Prisoner and that he would keep and save him harmlesse and shew that he had kept him for that night as a Prisoner And Batersby afterward brought an action of false Imprisonment against him for the said keeping of him in his house and that he had expended and laid out in defence thereof ten pounds And that he had required him to save him harmlesse and he refused Non assumpsit found for the Plaintiff and moved by Harvey in Arrest of Iudgment that it is no sufficient consideration because it doth not appear that he had lawfully arrested the said Batersby for it is not affirmatively alledged but as he said Also it doth not appear that the recovery in the action of false Imprisonment was for the same cause but in that he had misinformed for it was in the Record Pro custodia praedicta ex causa praedicta And for the other matter the Lord Hobart seemed at first to doubt if it did not appear that it was a lawfull Arrest then there was no consideration But because the diversity when the consideration appears to be for doing of a thing which is unlawfull As if one at the request of I. S. promise to better I. D. and he promise to save him harmlesse this is a void Consideration But if one request I. S. to enter into the Mannor of Dale and drive out Cattle and that he will save him harmlesse if he doth so and after Trespasse be brought against him and recovery had he shall have his action So if a Sheriff pretending to have a Writ where he hath none arrest one and request an Inne-keeper to entertain him in his house or hire one to conduct the Prisoner to the Gaol and promise to keep him without Damage if an Action be brought and recovery had therupon the party shall have an action of the case against the Sheriff upon this promise for he which doth a thing which may be lawfull and the illegallity therof appear not to him he which imploys the party and assume to save him harmlesse shall be charged And Iudgment was entred for the Plaintiff Mich. 20 Jac. Parkers Case Debt Hue and Cry AN action of Debt was brought against the Hundred of _____ in the County of Stafford by William Parker upon the Statute of Winchester cap 1 2. reciting the Statute That forasmuch as Robberies do daily encrease Murthers and burning of houses and Theft be more often used then they have been heretofore Amendment of a false Abreviation and Felons cannot be attainted by the Oathes of the Iurors which had rather suffer strangers to be robbed and
use of the Kings Bench is never to enter the Admission but only to recite it in the Count vide 11 H 7. Rot 412. In a Writ of Right by Baron and Feme and another Feme Infants there per custodes good vide 8 E 4 5. for the Mainprise entred in another Term lib Intractionum fol 366. It was vouched by Croke and affirmed by Yelverton in one Simpsons case in Durham Simpsons case where the Tenant was by Prochein amy where it should be by Guardian was Error The Presidents are that an Infant when he sue may be by Guardian or Prochein amy the one or the other but when he is sued it shall be by Guardian Mich. 3 Car. Wolfe versus Hole WOlfe an Attorney Plaintiff against Hole by a Writ of Priviledge Amendment and he Count upon an Assumpsit And after Verdict given and Iudgment a Writ of Error was brought and moved that there was a default in the Imparlance Roll viz. fault de trover pledges which was as it ought to be in the Plea Roll And it was moved that it might be amended and after debate at Bar by Henden and Davenport it was resolved that the not finding of Pledges is not matter of form but matter of substance and it concerns the King for if the cause to amerce the Plaintiff the Iudgment is Ideo le Plaintiff ses pledge sont Amerce and that it is not aided by the Statute of 18 Eliz. quod quaere and vide 12 Eliz Dyer 288. there is a Case written by me that An 17 Jac was amended after the Verdict and in one Hillaries case and vide thâ—re in Dyer that the Plaintiff when he is sued by Priviledges ought to find pledges and that as well as when a Bill is filed against an Attorney But now because that it was assigned for Error and that if it be amendable the Iustices of the Kings Bench would amend it this Court would not but if it had been in the Imparlance Roll and omitted in the Plea Roll it should be amended vide 18 E 4. 9. that Pledges may be entred at any time Hil. 2. Car. Rot. 565. Hilton versus Paule RIchard Hilton brought an action of Trespasse against Robert Paule Trespasse Which shall be said a Parish Church within the act of 43 Eliz. for the maintenance of thâ— poor for the taking of a Saddle at Stoke-Goldenham And upon Not guilty pleaded the Iury gave a speciall Verdict Viz. That the Parish of Hinkley was de temps dont memory c. and yet is an ancient Rectory and a Church Parochiall And that the Town of Stoke-Goldenham is an ancient Town and parcell of the Rectory of Hinkley And that from the time of H. 6. and afterwards untill this time there hath been and is in the Town of Goldenham a Church which by all the said time hath been used and reputed as a Parish And that the Inhabitants of Stoke-G by all the said time had had all Parochiall Rights and Church-wardens And that the Towâ—â— of Stoke-Goldenham is distant two miles from Hinkley And the Verdict concluded it it should seem to them that Stoke Goldenham is a Parish for the relief of Poor within the Statute of 43 Eliz. cap. 2. then they find for the Plaintiff if not for the Defendant And this Case was argued by Serjeant Barkley and he vouched Linwood fol 89. and said that there is Ecclesia major minor and a dependant Church upon the principall and another Church and which is found to be used and reputed ergo it is not a Parish And that the Exception of the Chappell of Foulnes which by the Statute is made a Parish proves that Chappell and Parish are not within the Statute he vouched 4 E 4. 39. and 5 E 4. to prove that divers Town may be one Parish And the Lord Richardson said that it is a clear case that this is a Parish within the intent of the Statute of 43 Eliz. for the relief of Poor And that the Church-wardens and Overseers of Stoke-Goldenham might assesse for the relief of the Poor And though it be found that after the time of H. 6. and untill now it had been used as a Parish Church that doth not exclude that it was not used so before And a Reputative Chantery is within the Statute of Chantries 1 E 6. And this Statute being made for the relief of the Poor and that they might not wander therfore the intent of the Statute is to confine the relief to Parishes then in esse and so used And every one of the Court delivered their opinion and concurred And so Iudgment was given for the Plaintiff Hil. 3 Car. Peto versus Pemmerton Mich. 3 Car. Rot. 414. Replevin SIr Edward Peto Knight brought Replevin against Robert Pemmerton and Giles Thompson The Defendants made Conusance as Bayliffs to Humphrey Peto Where Grantee of a Rent-charge takes a Lease of part of the Land and surrenders it the Rent shall be revived and that Humphrey the Father of the said Humphry was seised of the place in which c. in Fee and by his Deed granted the Rent of six pounds to the said Humphrey his Son for life out therof to Commence after the Death of the Grantor and shewed that Humphrey the Father died and for Rent arrear c. The Plaintiff in Bar to the Avowry confesse the grant and seisin of the Land and that the said Humphrey died seised of the Land out of which the Rent was granted and that that descended to William and from William to the Plaintiff who entred and demised to the said Humphrey the Son parcell of the Lands unde c. for five hundred years by force of which Lease the said Humphrey had entred and was possessed The Defendants replyed that afterwards and before any part for which they made Conusance was arrear the said Humphrey the Son surrendred the said Lease to Sir Edward Peto to which surrender the said Sir Edward agreed wherupon the Plaintiff demurred And this Case was argued by Henden and he said that when the act of him which had the Rent made the suspension his act alone could not revive it But a Rent suspended might be revived by the act of Law or by the joynt act or agreement of the parties by whom the suspension was made 21 H. 7. 7. 19 H 6. 4. 19 H 6. 45. 7 H 6. 2. As for the personall things when they are suspended they are extinct unlesse it be in auter droit as if Feme Executrix take the Debtor to Husband and the Baron dies the Wife shall have an action of Debt against his Executors One reason in this case is because that by the surrender which is accepted the Contract is determined and that is by the act of both And by the surrender the Estate for years is extinguisht to all purposes as to that to which the surrender was made as if he had granted a Rent now it shall
commence and he is seised in Fee and may hold it charged with both the Rents 2 H 5. 7. 5 H 5. 34. Ass 15. And this Estate surrendred is in Esse as to the benefit of strangers but not as to the benefit of him who accepted it for hee is seised in Fee vide Lillingstons case And the Court was of opinion that the Rent was revived and that the Contract is now determined Nota that this grant to Humphrey the Son for years was but upon confidence to assign it over If Grantee of an Estate for life of a Rent take an Estate for life of part of the Land and surrender it yet the Rent is not revived for it was extinct in this case if he had granted his interest quere and if he had granted his interest over to I. S. and he had surrendred it that shall not revive the Rent because that he had by his granting over of his interest discharged of the Rent extinguish it quaere but in the principall case the Rent was suspended by the acceptance of the Lease and is revived by the surrender And it was agreed that where Lessee for years surrender to which the Lessor agree and accept it the possession and the interest is in him without entry Hil. 3 Car. Sandford versus Cooper SAndford brought a Scire facias against Cooper to have execution of a Iudgment for sixteen pounds Sci. fac which Iudgment was de Oct. Hil. An. 2 Car. And one being returned Ter-tenant pleaded that after the Iudgment viz. 22 Jan. he against whom the Iudgment was viz. John Bill acknowledged a Statute-staple and sheweâ— that by that the Land was extended and after upon liberate delivered in Execution and demand Iudgment wherupon the Plaintiff demurred And the sole question was to what day the Iudgment shall have relation for it appears in the pleading To what day a Judgment shall have relation that the twentieth day of January was the day of Essoin and it seemed to the Court that the Iudgment should have relation to the first day of this return as well as if it had been a return in the Tearm viz. 15 Hil. for otherwise it should be uncertain And he may be Non-suited upon this day vide 5 Eliz. Dyer fol. 200. That a recovery being in the first return the Warrant of Attorney made and dated the fourth day is taken to be a Warrant after Iudgment and vide 33 E 6. fol 45 46. the principall case there If a Nisi prius taken after the day of Essoin shall be good and it is adjudged not for the first day is the return And it was agreed that in Common Parlance the first day of the Tearm is the fourth day viz. If one be obliged to appear or to pay monies the first day of such a Tearm Loquendum est ut vulgus But the Law relate the Iudgment to the first day of every return vide Dyer 361. a Release pleaded after the Darrein Continuance which was dated the one and twentieth of January which was the day after the Essoin day and it was not good for it ought to be before the utas Hillarii Gillinghams case And my Brother Harvey and Crook vouched one Gillinghams case viz. A Release of all Iudgments before the fourth day and after the day of Essoin would not release this Iudgment which was de Octab. Hil. vide many cases vouched to this purpose 4 E 3.34 H 6. 20. a Writ of Error brought after the utas and before the fourth that is good and brought after Iudgment vide 22 H 6. 7. a. a Writ of Error ought to be brought after the Iudgment rendred or otherwise no Execution shall be stayed And all the Court gave Iudgment for the Plaintiff in this Scire facias Hil. 3 Car. Holt versus Sambach Trin. 2 Car. Rot. 731. Replevin Tenant for life with a remainder to him in tail expectant and remainder in fee grant a rent in fee afterwards had fee by fine SIr Thomas Holt brought Replevin against Thomas Sambach in which upon Demurrer the Case was Sir William Catesby being Tenant for life of Land the remainder in tail to Robert his Son the remainder in Fee granted a Rent of ten pounds by the year out therof to William Sambach in Fee and Sir William and Robert his Son levied a Fine with Proclamations which was to the use of the said Sir William in Fee and afterwards the said Sir William enfeoffed Sir Thomas Holt and died Robert had Issue Robert and died And the Court was of opinion that this Grant in Fee is good for he had an Estate for life in possession and an Estate of remainder in tail and remainder in Fee in himself to charge and then the Fee-simple passe by the Grant And although that Robert the Son might have avoided it yet when he had barred the Estate-tail c. by Fine to the use of Sir William now Sir William Catesby had by this acceptance of this Estate to himself avoided the means by which he might have avoided the Rent And although that in Bredons case in the first Book when Tenant for life and he in the remainder in tail joyn in a Fine rendring Rent to Tenant for life that passeth from every one that which lawfully might passe and that the Rent continue after the death of him in the remainder in tail without Issue yet in this case the Estate is barred by the Fine and united to that Estate which William the Grantor had and now William is seised in Fee and this Rent made unavoidable The Case was well argued by Henden and Davenport but it appeared that the Conusance was for twenty shillings part of the rent of fifty pounds behind and for fifty pounds parcell of two hundred pounds arrear for Nomine poenae and did not say in his Avowry that he was satisfied of the rest And therfore Iudgment was given for the Plaintiff vide 20 E 4. 2 a. 48 E. 3. 3. Chichley versus the Bishop of Ely Quare Impedit DAme Dorothy Chichley brought a Quare Impedit against Nich Bishop of Ely and Mark Thompson the Incumbent for the Church of Wimple and counted that Thomas Chichley was seised of the Advowson of the said Church in Fee as in grosse and presented to it being void Edward Marshall which was Instituted and Inducted and afterward the said Thomas Chichley died seised and the Advowson descended to his Son and Heir Sir Thomas Chichley Traverse upon Traverse who by his Deed indented c. for the increase of the Ioynture of the Plaintiff granted the said Advowson to Thomas East and Edward Anger and their Heirs to the use of the said Plaintiff for life and afterwards to the use of the Heirs Males of the body of Sir Thomas Chichley and that by force therof she was seised for life And the Church being hold by the death of the said Edward Marshall she presented and the
the said Francis was seised in Fee and before the time of the Trespasse supposed viz. 8 Jac in consideration of a Marriage to be between the said Francis his Son and the Plaintiff for her Ioynture made a Feoffment therof to the use of the said Francis and Rachel the Plaintiff and to the Heirs of the said Francis upon the body of the Plaintiff begotten the remainder to the Heirs of Francis in Fee and shewed the marriage and that by force of the Statute of 27 H 8. they were seised ut supra is limited Absque hoc that the aforesaid Francis Tayler the Father of the aforesaid Francis the Son died seised of the Tenements aforesaid with the Appurtenances de nova assignat in his Demesn as of Fee Modo forma prout praedictus defendens superius allegavit hoc paratus est verificare c. unde c. wherupon the Defendant demurred Vide 3 H 6 Brook Traverse 30 H 6 7. Brook Traverse 359. In Trespasse the Defendant plead his Freehold the Plaintiff plead the dying seised of his Father and that he is Heir and entred and that the Defendant disseised him the Defendant traversed the Disseisin and not the dying seised of his Father and good vide the said Book of 30 H 6. 7. by Prisot if I in Assise plead that my Father died seised in Fee that I entred as Son and Heir to him and was seised untill by R. disseised who enfeoffed the Plaintiff upon whom I entred here the Disseisin is not traversable but the dying seised vide 33 H 6. 59. Wangford put this case In Assise if the Defendant plead that his Father was seised and died seised and give colour to the Plaintiff the Plaintiff ought to traverse the dying seised and not the possession of the Father which is the cause of the dying seised Vide 30 H. 6. fol 4. Entry in nature of an Assise the Defendant plead that W. was seised in Fee and enfeoffed him and give colour the Plaintiff replies that W. was seised in jure Uxoris and that he had Issue and his Wife died and he was Tenant by the Curtesie and made a Feoffment sans ceo that W. was seised modo forma and Issue taken and there it is said that the Issue is well taken This case was adjudged for the Plaintiff because that no dying seised is pleaded so that it might be traversed but with a Sic scisitus obijt Also the matter only traversable here is the seisin in Fee modo forma for by the Replication Seisin joyntly with the Plaintiff and to the Heirs of the body of the said Francis with a Fee-simple in him is confessed and that is good with the Traverse Memorand That this Case was moved by Serjeant Hitcham Trin. 10 Car. And Serjeant Hedley moved for the Defendant and vouched 5 H 7. 7. and the Record was read and all the Court agreed that it was a good Traverse And that Iudgment should be given for the Plaintiff Pasch 10 Car. Dawe versus Palmer Case JOhn Dawe Plaintiff against William Palmer in an action upon the Case and count that wheras he was a Fuller and had used the Trade of Falling and therby acquired his livelyhood and was of good Credit Words c. The Defendant said of him Trust him not for he owes me a hundred pound and is not worth one Groat And at another day he said He is a Bankrupt Rogue And upon Not guilty pleaded the Iurors found for the Plaintiff and gave entire Damages And it was moved in Arrest of Iudgment that the first words were not actionable and then the Iury having given entire Damages the Plaintiff should not have Iudgment for any part vide Osbornes case Coke lib 10. But in this case after many debates it was resolved by the Court that the Plaintiff should have Iudgment For the first words are actionable at Common Law before the Statute Trust him not he is not worth one Groat Go not to buy of I.S. a Merchant for he will deceive you Of an Inne-keeper Go not to such an Inne for he is so poor that you can have no good entertainment Of an Atturney Use him not for â—e will cousen you All these words are actionable He will be a Bankrupt within seven daies And for the other words That he is a Bankrupt Rogue that is resolved Coke lib. 4. to be actionable And it was a Case Pasch 10 Car. in a Writ of Error brought in the Exchequer Chamber upon Iudgment given in the Kings Bench between Dunkin and Laycroft Dunkin and Laycroft for words spoken of a Merchant who had been at Hamborow in partibus transmarinis and there hâ—d used the Trade of a Merchant and Factor Thou innuendo the Plaintiff camest over from Hamborow a broken Merchant And adjudged actionable and so affirmed in the Exchequer Chamber And upon all these Authorities the Court gave Iudgment for the Plaintiff Mich. 10 Car. Deanes Case DEane being robbed in an Hundred in Kent brought an action upon the Statute of Hue and Cry and a speciall Verdict being found tâ—â— Dourt intended was If one be assaulted to be robbed in one Hundred Hue and Cry and he escape and flye into another Hundred and the Theeves instantly pursue him rob him there if the Hund. in which he was robbed should be solely charged And the opinion of the Court was that it should but upon reading the Record this appeared not to be the Case And the Court was informed that the Sheriffs had taken the Goods of one in execution who was not inhabiting within the Hundred at the time of the Robbery committed but came afterwards And the Court was of opinion that he was not chargable Mich. 10 Car. Knight versus Copping RObert Knight brought an action upon the case against Valentine Copping one of the Attorneys of this Court count Case That wheras one Edw. Loft had brought an action of debt for 30 l. against him And therupon such processe was that a non pros was entred costs of 30 s. assessed for the now Plaintiff An action of the case for â— entring Judgment after non pros the now Defendant being Attorney for the said Ed. Loft having notice therof unduly and maliciously procured a judgment to be entred for the said Ed. Loft against the now Plaintiff sued execution against him wherby he was taken and imprisoned untill he was delivered by a writ of Supersedeas The Defendant Protestando that there was no such Iudgment for the said Edward Loft against the said now Plaintiff nor that he was taken in Execution therupon for plea saith that there is not any Record of the said Non pros The Plaintiff replies that at the time of the said Iudgment entred for the said Edward Loft And when the now Plaintiff was taken in Execution and imprisoned therupon the said Iudgment of Non pros against the said Edw. L. and
without danger of their health Not guilty pleaded Verdict for the Plaintiff The Plaintiff prayeth Iudgment and doth offer for Authorities in this Case Smith and Mopham 4 Ass 3 4 E 3.37 5 E 3.47 new Book of Entries fol 19. in 5 Jac. between Smith and Mopham an action upon the case for erecting a Tan-fat with averment of corrupting the Aire and water to the annoyance of the Plaintiff and adjudged for the Plaintiff after Verdict Coke lib 4. Aldreds case pleaded in new Book of Entries fol 106. an action of the case for erecting a Hogsty Ad nocumentum aeris adjudged 22 H 6.14 by Newton an action upon the case lyeth expresly Blande against Mosely Trin. 29 Eliz Bland against Mosely an action of the case for stopping Lights in London adjudged a void Prescription to build so high that the Neighbors lights are therby stopped in a City Old Book of Entries fol 406. in the Edition 1596. action upon the Case brought for annoying a Piscary with a Gutter that came from a Dye-house 1. And there an action brought against a Dyer Quia fumos foeditat alia sordida juxta parietes querentis posuit per quod parietes putridae devenerunt ob metum infectionis per horridum vaporem c. ibid. morari non audebat 13 H 7.26 An action lyeth against a Glover because he with a Lime-pit so corrupted the water that the Tenants departed F. N. B. 185. b. A Writ lyeth to the Major of a City to cleanse the Streets from filth wherby infection might grow By which cases it appeareth that although Sea-cole be a necessary Fuell to be used and that Brew-houses are necessary yet the Rule in Law is Sic utere tuo ut alienum inon laedas And Chimneys Dye-houses and Tan-fats are also necessary but so to be used that they be not prejudiciall to their Neighbors And in this Case the Iury found that this new Brew-house and Privy was maliciously erected to deprive the Plaintiff of the benefit of his Habitation and Office and that the Plaintiff was hereby damnified as in the Declaration is alledged And upon Conference and Consideration of the Case all the Iudges did concur that Iudgment should be given for the Plaintiff THE TABLE Reciting the heads of all the PRINCIPALâ— CASES in this BOOK A ACcompt payment by the appointment of the Plaintiff is no good plea before Auditors where the issue was Ne unque receivor 133 Acceptance of a new Lease makes a surrender 104 Action of the case for giving evidence 11 Action brought by the Committee of a Lunatick 16 Action by the Feme for Frank-bank before admittance 18 Action brought for Rent by the Husband of a Feme to whom the land was granted by a former Husband by his Will untill the Daughter of the Devisor came to the age of eighteen years with a Condition 36 Act on brought against an Attorney for procuring a Judgment to be entred against the Plaintiff and a speciall plea therupon 125 Amendment in a Judgment 41 Amendment where it shall be 41 42 56 81 82 83 84. Act of the Court shall be amended 92 Amendment shall not be of the Pledges left out in the Imparlance Roll upon Bill by an Attorney 92 Amendment of the Proclamation of a Fine 122 Annuity to commence after eight years contained in the Will and no mention therof in the Will by which it is given 32 Annuity out of the clear gains of the Allome Mines 33 Arbitrement of all actions untill the date of the Award 9 Administrators cannot plead that the Intestate died outlawed 53 Advowson in grosse for life 88 Assumpsit by the Husband to the Wife before marriage 17 Assumpsit upon request to procure assent 39 Assumpsit in consideration to maintain Suit in defence of a Common and the Title therof 89 Assumpsit in consideration of forbearance 46 Assets need not to be alledged in an action upon the case against Executors 27 Arbitrements 29 Assumpsit lies not for Rent 34 Assise of Darrein presentment abates by a Quare Impedit 3 Avowry for Homage 50 Attaint how a Prisoner convicted and let at large shall be brought to execution 21 Avowry for Rent granted to the Father without alledging that it was arrear after the death of the Father 55 B. BAil insufficient taken by the Sheriff no action lies for it 120 Bail discharged where the Principall died before the return of the Capias 47 Bail action lies not against the Sheriff for taking insufficient bail 77 Baron and Feme at Exigent whether the Feme shall have Supersedeas alone 86 Bankrupt how the distribution of his Estate shall be 37 Bankrupt upon a fraudulent conveyance 42 Bar recovery in trespasse for taking of Goods is no Bar to an action of the case of Trover 81 Buggery 116 Bylawes 5 Burglary 20. 33 C. CHallenges 24 Condition not to be assistant to another in any action and after he bring a Writ of Error with another upon a iudgment against him and the other 40 Condition to levy a Fine who ought to do the first act 48 Condition to perform Covenant c. concerning Rent where demand is necessary inde 114 Condition to resigne a Benefice upon request 111 Consideration of forbearance 46. 108 Consideration to save one harmlesse if he being an Inn-keeper would safely keep a Prisoner 55 Consideration to confess a Iudgment and a promise therupon to defer the entry therof 63 Consideration that if the Obligor would pay the money the Obligee would deliver up the Bond 76 Consideration Ex post facto 84 Consideration that wheras one was indebted to the Plaintiff in seven pounds for keeping an Horse if the Plaintiff would deliver the Horse the Defendant promised to pay the seven pounds 101 Conspiracy 49 Copyhold may be extinguished without actuall surrender 65 Copyhold land enclosed where the Lord hath a Feild course if it be a forfeiture or no 102 Costs upon Non-suits where the Plaintiff hath no cause of action 16 Costs shall not be allowed upon the Statute of 5 Eliz. for Perjury 22 Costs against an Informer upon a Statute repealed 35 Costs shal not be allowed against Executors 69 Costs shall be allowed against Executors upon Non-suit in a Writ of Ravishment of Ward 78 Councel to what persons it shall be allowed to Prisoners arraigned 133 Counter-plea to the view 44 Custome of London to give security for the payment of Orphans Portions 30 Custome of Copyholders to make a Lease for years 101 Covenant of an Apprentice and when an Infant shall be bound therby 63 D. DEvise to a Feme a tearm upon condition 36 Debt against a Sheriff for monies returned levied by him 11. 32 Demand not necessary in Avowry for a Rent-charge 23 Demand of Rent with a Nomine poenâ—e 114 Demand of Rent where necessary or not 42 Discontinuance where Tenant in â—ail and he in Reversion joyn in a Lease pur aut vie 126 Devise of a fee after a
THE REPORTS OF THAT REVEREND AND LEARNED JUDGE SIR RICHARD HUTTON KNIGHT Sometimes one of the JUDGES of the COMMON PLEAS Containing many Choice Cases Judgments and Resolutions in points of LAW In the severall Raignes of King JAMES and King CHARLES being written in French by his owne hand AND Now faithfully Translated into English according to ORDER Major haereditas venit unicuique nostrûm a Jure Legibus quam ab â—is a quibus illa bona relicta sunt Cic. pro Caerin LONDON Printed by T. R. for Henry Twyford and Thomas Dring and are to be sold at their Shops in Vine-Court Middle Temple and at the George in Fleetstreet neer Cliffords-Inne 1656. COVRTEOVS READER THese REPORTS of that Famous and Learned Judge Sir RICHARD HUTTON were intended long ere this to have been exposed to publick View as they were Originally penn'd in FRENCH by his own hand but now in obedience to a late Act of Parliament they are faithfully rendred into ENGLISH And may be of great use and benefit to the Studients and Practisers of the LAWES of these Nations This just Judge as the greatest man once of this Nation was pleased to call him was sometimes Contemporary with the Lord HOBART By reason whereof though they may seem to meet sometimes in Cases yet they part many times in the Points thereof and the Arguments thereupon CICERO and ROSTIUS together make one incomparable Man And here our Learned Author appeares not to justle the Chiefe Justice out of his place but to continue as he was upon the Bench a friendly Associate and a Learned Assistant THE NAMES OF THE PRINCIPALL CASES contained in this BOOKE A. A Andrews and Hacker 3 Agars Case 10 Allaboyter and Clifford 29 Andrews Case 30 Adams and Flemming 34 Allen and Swift 46 Aris and Higgins 65 Aleston and Andrew 128 B. BLands Case 18 Bishops Case 22 Boonton and the Bishop of Rochester 24 Bigg and Malin 27 Brook and Groves 28 Bagshaw and Walker 34 Blackburnes Case 36 Bridgland and Post 44 Bullen and Jevis 52 Bawtry and Scarlet 63 Blemhasset and Humblestone 65 Bickner and Wright 71 Beverley and Povver 79 Baker and Johnson 106 Bill and Lake 106 Babbington and Wood 111 Baker and Hucking 126 C. COmbes and Invvood 1 Cole and Allen 10 Cravvley and Kingsvvell 13 Conesbies Case 22 Cardinalls Case 29 Coppledick and Tansey 31 Coney and Coney 32 Castilion and Smith 35 Clerk and Wood 39 Cartright and Underhil 42 Clanrickards Case 43 Curle and Cook 51 Chittle and Sammon 55 Crane and Crampton 80 Clotvvorthy and Clotvvorthy 82 Crocker and Kelsey 84 Chidleys case 89 Chapman and Chapman 90 Chichley and the Bishop of Ely 96 Conghams case 98 Cook and Cook 110 Cole and Wilkes 121 Champernons case 135 D. DOrrell and Andrevvs 6 Drevvry and Fitch 16 Darcy and Askvvith 19 Davies case 42 Dovve and Palmer 124 Deanes case 125 Davies case 127 Digbies case 131 E. EDmonds case 20 Eire and Banister 24 Easington and Boucher 26 Egerton and Egerton 28 Empson and Bathurst 52 Edwards and Laurence 123 F. FLetcher and Harcot 55 Flight and Gresham 76 Farrington and Arrundel 82 Franklyn and Bradell 84 Farrington and Cagmer 98 Freeman and Stacy 109 G. GIbbs and Davy 8 Green and Harrington 34 Griggs case 59 Goldenham and Some 71 Glasier and Heliar 122 H. HArding and Bodman 11 Heard and Baskerfeld 15 Hall and Woollen 39 Hord and Cordery 49 Hawkins and Cutts 49 Howell and Auger 60 Hickson and Hicson 69 Hitcham and Brook 75 Hearne and Allen 85 Howard Sir Charles 86 Hartap and Cocks 88 Humbeton and Buck 89 Hilton and Paule 93 Holt and Sambach 96 Harbert and Angell 113 Hicks and Mounford 120 Huttons case Just 131 Hugles and Drinkwater 133 I. IUrden and Stone 18 Jennings and Pitman 63 Jones and Powell 135 K. KInd and Amery 23 King and Bowen 44 Knight and Copping 125 L. Leygh and Paine 9 Lamb and Thompson 40 Lightfoot and Brightman 54 Lindleys case 70 Laycon and Barnard 81 Lincoln the Earle 87 Lamb and West 114 Lashbrookes case 127 M. MAson and Thomson 38 Mayes and Sidley 46 Meredith and Bovill 58 Metholl and Peck 73 Mackerney and Ewrin 101 Medcalf and Hodgson 120 N. NOrris and Staples 5 Napper and Sanders 118 P. PIes case 35 Powell and Ward 41 Pitt and Chick 45 Parkers case 56 Poole and Reynold 57 Pleydell and Gosmore 67 Potter and Brown 72 Peto and Pemmerton 94 Paston and Utber 102 Purnell and Bridge 112 R. SIr Walter Rawleys case 21 Reyner and Waterhouse 27 Rugles case 37 Rud and the Bishop of Linc. 66 Ram and Lamley 113 Risam and Gooding 117 S. STeward and Bishop 2 Shaw and Tayler 4 Swain and Holman 7 Speak and Richards 11 Stone and Roberts 13 Smith and Stafford 17 Staffords case 20 Smith and Lindsey 32 Smith and Boucher 33 Sherley and Underhill 41 Suggs and Sparrow 47 Sherwills case 51 Stevens and Oldworth 91 Sandford and Cooper 95 Starkey and Tayler 104 Shervin and Cartwright 109 Strilleys case 122 Smith and Cornelius 123 Souler and Burton 132 T. TIppin and King 44 Treherne and Cleybrook 68 Trevors and Michelborn 77 Townley and Steele 78 Turner and Hodges 101 Treford and Holmes 108 U. UVedall and Tindall 77 W. WOolfe and Heydon 30 Wentworth Sir Tho 42 Wilson and Stubbs 45 Walrond and Hill 48 Whitguift and Eldersham 50 Wades case 81 Winsmore and Hobart 87 Woolfe and Hole 92 Watand Maywell 104 Wilson and Briggs 111 Whittington and Earl of Derby 37 Y. YOung and Young 92 THE NAMES OF CERTAINE CASES Cited Obiter in the PRINCIPALL CASES A. ALbanies case 35 Ashburneham and Skinner 72 Alephs case Sir William 107 Arrows case 113 Arrowsmiths case 83 B. BAker and Hall 3 Bedford and the Bishop of Exeter 4 Brownes case 9 Belcher and Hudson 17 Burnell and Brook 48 Beddinfeilds case 78 Baker and VVilloughby 105 Borman and Bower 115 Bland and Moseley 136 Brooks case 14 Bosdens case 23 Bedforne and Dandy 25 C. CAndish and Savill 7 Coppleston and Langford 23 Craddock and Wenlock 26 Coniers case Crachfords case 97 Capels case Sir Arthur Charter and Hunter 14 Couper and Andrews 58 D. LOrd Derbies case 119 Dunking and Leycroft 125 Dorchester and Webb 128 E. EWer and Moyle 44 F. FLeet and Harrison 26 Farrington's case G. GEorge and Whitlock 14 Greenwood and Beckett 76 Gillinghams case 95 Gerards case Sir John 122 Gonard and Dennet 83 Godhow and Bennet 83 Gittings and Redserne 13 H. HOdges and Balwin 81 I. IOhnson and Barker 35 Johnson Atewood 76 Jone's case 111 K. KEldriche's case 35 M. MIldmore Warlowe 52 Mills and Whitewood 105 N. NEwby and Sag 9 Nowels case Nich and Langford 115 Nichols and Grandie 29 P. PEriam's case 26 Pell and Brown 60 Powell and Vardoffe 76 Potmans case Parker and Parker 84 R. REdforne and Dandy 24 S. SMith and Mopham 136 Skinner and Amery 115 Sabud and R.W.L. 26 Stepney and Woolfe 42 Stanley and Buddens case 52 Somerford
and Beaumount 77 Specot and Shere 91 Simpsons case 92 Shudsouth and Fernell 107 T. TImberly and Calverley 47 Tadcaster and Hallowell 47 Thompson and Green 105 Trugeon and Meron 128 W. WIlde and Woolf 41 Wolley and Bradwell Wrotheys Case Sir George Walker and VVorsley 83 VValcot and Hind 14 PASCH 15 JACOBI Combes versus Inwood THE first day which I sate at the Bench after the day in which I was sworn Ejectione suma A Conveâ—ance delivered to be enrolled and yet not inâ—â—lled shall be accounted a Record i. e. Thursday the twenty second of May A Iury was at the Bar from the County of Surrey in an Ejectione firmae brought by Combes against Inwood upon a Lease made by one John Stockwood which was Heir to one Edward Stockwood and was for a Farm in Chertsey called Haylwick And upon Evidence the Case appeared to be thâ—â—s Edward Stockwood was seised in fee and about the 29 Hen 8. this Land was supposed to be conveyed to King Hen. 8. in fee for the enlargement of the Honour of Hampton but no Deed nor any other matter of Record was in being to prove this originall Conveyance and many Arguments were used to prove that there was never any such Conveyance because there was not one of any such conveyance named in the Act of 31 H 8. But of the other part it was proved that this Land had continued in exchange as the Land of H 8. all his life by divers accounts and that it had been enjoyed by divers Leâses made by Edward 6. and Queen Elizabeth and Rent paid for them And that in the year 16 Eliz. she granted it in Fee-farm to the Earl of Lincoln and under that Title the Land had been quietly enjoyed untill of late time And the Court delivered their opinion That it there were a Deed by which Stockwood conveyed the Land to H 8 and that brought into the Court of Augmentation although this Deed be not found nor inrolled yet it is a sufficient Record to intitle the King and it is a Record by being brought into Court and there received to be inrolled And the Report of the case in Lord Dyeâ— fol 355.19 Eliz. was not as it is there reported for it was for Bormiâ— Inne and it was adjudged a good conveyance and in this case the Iury found for the Defendant Trin. 14 Jac. Rotulo 769. Steward versus Bishop Words STeward brought an Action upon the Case for certain words against Bishop because that the Defendant said Steward is in Leicester Gaol for stealing an Horse and other Cattell the Defendant pleaded not guilty and the Iury found for the Plaintiff and Damages to thirty pounds And it was moved in Arrest of Iudgment by Serjeant John Moore that the Action doth not lye for the words do not affirm and Deed or Act or Offence but that he was in prison upon suspition of an Offence And it is the Ordinary speech and communication by way of interrogation What is such a one in prison for For stealing And all the Kalenders are such a one for stealing of a Horse such a one for Murther Vide Coke lib 4. he is detected for Perjury is not actionable And to say such words of a Iustice of Peace or an Attorney peradventure it shall be otherwise yet it seems all one if it touch not him in his Profession To say that I. S. was in Newgate for forging of Writs will not maintain an Action and so adjudged in Nowels case and Iudgment was given that the action will not lye Pasch 15 Jac. ONe brought and Action upon the Case and counted that the Defendant in consideration that the Plaintiff would take such a woman to his Wife promised to pay twenty pounds when he shall be therto requested after the marriage Request where it shall not be alledged and that the Plaintiff such a day had married the said Woman and the Defendant though often requested did not pay the aforesaid twenty pounds And it was moved in Arrest of Iudgement that he had not shewn any particular request but yet Iudgment was affirmed for the Plaintiff for this action is grounded upon the promise which imports Debt and not upon any collaterall matter which makes it a duty by the performance of a collaterall Act upon the request Trin. 15 Jac. Resolved upon the Statute of 3 H. 7. Cap. 2. VPon divers Assemblies at Serjeants Inne of all the Iudges to consider by the direction of the Star-Chamber whether by the Statute of 3 H 7. cap 2. the taking of any Woman against her will and the marrying or deflowring of her be Felony or only of such a Woman which hath Substance or Goods or Lands or otherwise be an Heir apparent the body of the Act seems to be generall viz. He that shall take any Woman so against her will And it was said that it were a great inconvenience that it shall be Felony to take an Heir apparent of a poor man or to take a Woman which hath but a very small Portion and of mean Parentage and as it was said of a Woman in a red Peticote and that it shall not be felony to do and commit the said Offence in taking the Daughter of an Earl or some other great man of the Realm But it was resolved that the body of the Act was incorporated to the Preamble for it had been adjudged that if one take a Woman with an intent to marry her or deflower her c. and doth it not this is not Felony and this rests only upon the Preamble then it shall have relation as well to such a Woman which is before named viz. Maid Widow or Wife having substance and to an Heir apparent and to no other And so it was taken in a Case in the Star-Chamber by the like resolution 10 Jac. between Baker and Hall and the Lord chief Baron said Baker and Hall that it had been adjudged that no Appeal did lye upon this Statute and all the Presidents in effect warrant this resolution vide Stamford fol. 37. Statute 1 H. 4. Cap. 14. COnsideration upon the Statute 1 H 4. Cap 14. was had how the word Appeals shall be intended before the Constable and Marshall And 26 Eliz. Doughties Case Doughties case Petition was made to the Queen by the Heir to make a Constable and Marshall but she would not Admitting that the King get a Commission of the Office of a Constable and Marshall whether the King may have any remedy before them by Indictment or information by the Attorney generall Mich. 15 Jac. Andrews versus Hacker AN Assise of Darrein Presentment was brought by Andrews against Hacker and the Earl of Salop Assise and against the Arch-bishop of York for the Church of Gothur in the County of Nottingham the Assise was brought to the Bar and when the Iury appeared the Arch-bishop made default and the others appeared and pleaded in abatement of the Writ that the same
was that none should use the Art of Weaving within the said Burrough or should have any Loom in his house or possession to have any benefit therby unlesse he had been an Apprentice to the said Art within the said Burrough for the space and term of seven years or had used the said Art within the said Burrough for five years before the making of the said Ordinance or shall be admitted therto by the Wardens and Society upon pain of forfeiture for every month twenty shillings And they further shew that after the said Ordinance made and confirmed the Defendant such a day before his inhabiting in the said Burrough and after such a day that one William Godwin being then Warden of the Weavers gave notice to the Defendant of the said Ordinance and that he afterwards c. during five months continued using the said Trade there and that he had two Looms in his possession where he had not been an Apprentice nor used the said Art for five years as before c. by which he forfeited to them five pounds viz for every month twenty shillings The Defendant pleaded Nil debet and after Verdict for the Plaintiffs it was moved by Arrest of Iudgment that this Ordinance was not reasonable and upon Arguments and Conference without arguments at the Bench it was agreed that the Ordinance was against Law and Iudgment against the Plaintiffs And Lord Hobart in Hil 15 Jac declared that we were all of opinion that Iudgment should be given against the Plaintiffs And he repeated the Case and the reasons of this Iudgment because the Ordinance was that none should use the Trade of Weaver nor have any Loom in the Town unlesse he had served c. before the making of this Ordinance so that all Apprentices which serve after shall be excluded unlesse they shall be admitted by them which is unreasonable And the Plaintiffs do not convey to themselves any good Title to be Wardens but as to the principall point of making such a restraining Ordinance the Court did not deliver any opinion Mich. 15 Jac. Rot. 2327. Dorrell versus Andrews SUsan Dorrell brought an action of Debt against Sir Eusebius Andrews London Debt The Visn of a Town within a Parish and John Cope for eighty five pounds and count upon a Lease made by her to the Defendants by Indenture by which she demised one Capitall Messuage Mannor or House called Causton within the Parish of Dunchurch in the County of Warwick and all the Stables c. in Causton aforesaid The Defendant protesting that the Rent was not behind for Plea saies that before any Rend arrear the Plaintiff entred into severall parts of the house and him dispossessed and upon that they were at issue and the Venice facias was de vicineto de Causton within the Parish of Dunchurch And it was moved in Arrest of Iudgment that the Venire facias should be of the Parish only and not of Causton for Causton is not alledged as a Town but the name of a house And the Court resolved that the Ven. fac was good for Causton is alledged as a Town in the Parish of Dunchurch and that by the addition and generall words in the Demise in which also there was an exception of part of the House as Mannor-house at Causton aforesaid so that the house is alledged to be in Causton in the Parish of Dunchurch if all be considered And if it appear that Causton is a Town or Village in the Parish of Dunchurch it will be without any doubt good And my Lord Hobart said that it had been divers times adjudged that on the Allegation of a thing done at the Town of Dale in the Parish of Sale that the Ven. fac of the Parish is good for though the Parish may contain more Towns yet it is not to be presumed but that it is of one Continent if the contrary appear not by the Record vide for that Pasch 9 Jac. between the Lord Candish and Sir George Savill c. There was another exception taken to the pleading Candish and Savill which I have not transcribed Trin. 14 Jac. Rot. 755 Swaine versus Holman RIchard Swaine Plaintiff Brownlow Dors. Wast against Thomas Holman and Elizabeth his Wife brought Wast and declared of a Lease made Anno the 8. of Eliz by the Queen under the Exchequer Seal to William Jolliff Thomas Jolliff and Elizabeth Jolliff for three lives and that William and Thomas were dead and convey the remainder to the King that now is and from him to the Plaintiff and that the Defendant Elizabeth took H. to Husband which did wast c. The Defendants confesse the Lease death and marriage as above c and say that the said Holman and Elizabeth his wife 2. Feb 40 Eliz. surrendred as well all their Estate of the said Elizabeth as the Letters Patents to the intent that the Queen should make a new Lease to the said Elizabeth and to Humphrey Holman and to Roger Holman for their lives successively which surrender the Queen accepted and the third of Febr next made such Demise and this they are ready to aver c. The Plaintiff replies and joyns Issue upon the Surrender and Demise in manner and form and the Issue was tried by a Venue which came from Westminster and the Iury found this speciall Verdict viz. the new Lease made the third of Felic in which it is recited that she had surrendred the Estate and the Letters Patents and the Queen as well in consideration of the surrender of the Letters Patents as in consideration of the payment of twenty Nobles made by the new Lease and the Iury found that the Demise made the third of Febr was with the consent of the said Thomas Holman and that the said Thomas Holman and Elizabeth his wife agreed therto and held in claiming by the said Demise And it was adjudged by the Lord Hobart and others the Iustices that the Plaintiff should have Iudgment First the consideration which procured the new Lease is the Surrender and the Surrender is not absolute but defeisable if the wife survive or if the Husband will disagree and therfore the Lord Hobart said that if Feme Lesses for years takes Husband and after the Feme takes a new Lease of the Queen for life this extinguisheth the term but if the Husband disagree then the Lease for yeers is revived And as in Barwicks Case the surrender of all the Estate where he had made a Lease for years before or where the Lease which he surrendred was void the new Lease made 〈◊〉 consideration therof is vein for the Surrender which is the consideration ought to be a good surrender of the former Estate And therfore if Lessee for life of the Blemise of the King surrender conditionally and the King reciting that he had surrendred all his Estate makes a new Lease this shall be intended an absolute Estate for a conditionall surrender within three years of
the Lease is not a surrender within the Act of 32 H 8. 2. Another reason because that the Free-hold which the Husband had in the right of his Wife could not be given by this bare assent But if the Lease had been made de novo to the Husband and the Wife then it had been questionable for the Estate passe by Implication viz. by a surrender in Law by acceptance of a new Lease as in the eighth Report of the Lord Coke S. Savors Case but there no Estate of the Husband passe for by the inter-marriage he was in of the Freehold with his Wife in the right of his Wife and that he gives not by assent vide 7 H. 7.14 vide 41 E 3. fol. 19. 3. Another reason was as this issue is joyned it is found against the Defendants for it shall be therby taken and intended of an actuall surrender made by the Husband and Wife and not of such a surrender which is operated by a subsequent act in Iudgment of Law and the reason therof is because that the surrender of the Estate and the cancelling of the Letters Patents are pleaded to be done at Westminster 2 Febr and the Lease 3. Febr so that this Issue is taken upon an actuall surrender And by Warburton if issue be joyned upon the Manumission of a Villain that is not maintained by giving in evidence that the Lord made to him an Obligation but by the making of him free by Charter of Manumission vide the Case directly 25 H 8. Brook generall Issue 82. vid Dyer 284. Croucheads Case Memorand That in this case the Jury of Middlesex found the Damages and the value of the Wast in the County of Dorcetshire vide Coke liv 6. fol. 47. Dowdales Case Mich. 15 Jac. Rot. 1634. Gibbs versus Davie EDward Gibbs brought an action upon the Case against Jenkin Davie for words spoken in the Welsh Tongue and declared that the conference was had by Baron Snigg with the Defendant concerning the selonious stealing of three Heisers and the Defendant is supposed to answer to the question in Welsh whether Thomas Jackson stole them If he had them Case Welsh words I should have had them again but Edw. Gibbs stole them And upon Not guilty pleaded it was found for the Plaintiff at Bristoll And it was moved this Term in Arrest of Iudgment that the words in Welsh did not signifie stealing but carrying away upon ones back And it appeared upon examination of one Mr. Gunter upon Oath that it is properly the word for carrying though that there in the intendment of the parties it might be taken for stealing it being joyned with other precedent circumstances yet it is not actionable for it shall be taken in the most favourable construction and best sense as if one had said That such a one had the Pox and forbid one to use his company it shall not be intended of the French Pox and no Action lies And Iudgment was given for the Defendant yet it was averred in the Count that the words were spoken in the hearing of them which understood the Welsh Language Micih 14 Jac. Rot. 953. Leigh versus Paine Oxon. MAtthew Leigh brought an action of Debt upon an Obligation against Matthew Paine Debt which was with condition for the performance of an Arbitrement which was of all Actions Quarrels c. depending between them The Arbitrators award that the Defendant should pay to the Plaintiff such a summ Arbitrement of all Action untill the day of the Awaâ—â— c. for content and in full satisfaction of all Actions Quarrels c. untill the day of the date of the Arbitrement And upon Demurrer by the Defendant it was debated whether this was a good Arbitrement it being that the Arbitrator had exceeded his Authority in giving satisfaction for trespasse after the submission that is untill the date of the Arbitrement and it seemed to the Court that it is a good Arbitrement and that it appears not to the Court that there were any Trespasses or Suits after the submission and that shall not be intended untill it be shewn by the other part as in the case of Baspool Co. lib. 8. fol. 98. where submission was of all controversies so that the Award be made of the Premisses c. there the Arbitrators made an Award of divers particulars and the Award was good and he that will avoid it must shew that there were other controversies that he gave notice of them to the Arbitrators for they shal not be bound to arbitrate of more then they have notice of Dy 242.19 E. 4.1 vide Summons case Coke lib. 5 fol 77 That an Award ought to be reasonable and to be done between the same parties And therfore the Arbitrement that the Husband and Wife shall levy a Fine where the submission was by the Husband only is void but quaere if it be not good as to the Husband and vide in James Osborns case Coke lib 10. fol 131. There the case of More and Bedle is bouthed and is adjudged that where it is awarded that a certain summ shall be paid and for the payment thereof a stranger shall be bound it is a good Award though as to the giving of security by a stranger it is void and there it is said if satisfaction be to be given for many things of which part is out of the Award yet it is good for them which are submitted unto vide 42 43 Eliz Newby and Sav Newby and Sav. An Award to make a release to the date of the Arbitrement and good if it does not appear that there was other matter A submission of all matters done till the fourth of September the Award was of a Release of all matters untill the third of September and good Browns case And this case was vouched to be between Barnes and Grenewell Trin 43 Eliz Rot 947. vide a case between Hilton and Brown Trin 5 Jacobi Rot 1618. an Arbitrement was made generall in satisfaction of all Controversies Indefinitely without any limitation And upon Argument upon Demurrer it was adjudged good and in this case the Arbitrement will not discharge any action which was not submitted unto and then it is but Surplusage which shall not avoyd the Award though the Plaintiff hath mine recompence by the Arbitrators In respect that the Defendant shall be discharged of trespasses untill the making of the Arbitrement And Iudgment was giuen for the Plaintiff Mich. 11 Jac. Rot. 318. Agars versus Lisle Case THomas Agar brought an action upon the Case against Lisle for studing and converting of a Cow at the Castle of York the Defendant pleaded in Bar that the Bishop of Durham was seised of the Town of Darton in the County of Durham and prescribe to have a Faire there and Toll and for not payment thereof c. the Cow was taken by the Defendant Trover and Conversion is justified without confessing the Conversion
before the return because it is another Action and the Sheriff might have paid it to the Plaintiff though he return that he had the money ready to be delivered to him for if he had after that paid it to the Plaintiff that was good satisfaction and he might as well pay it after he had levied it and before the return as he might pay it after the return and then Nil debet is a good Plea But it was objected that by the return 15 Mich. that he had the money ready and that after the acquittance his return should conclude him And it was said that it would not for it is in another Action and stands therwith 22 E 4.38 One vouched as Heir may be bound to Warranty by his Father and if he bring an Assise De morte Antecestoris and the Tenant plead Bastardy it is no Estoppell that the Defendant vouched him as Heir before The Acquittance or Release is good before the return and not like unto Hoes Case of Bail Coke lib 5.71 or 5 Eliz Dyer 217. Release of Actions and Suits will not release a Covenant before it be broken Object That the Acquittance or Release is pleaded only by recitall Res To this it was answered that he had paid the two hundred and fifty pound seventeen shillings eight peace which the Plaintiff had accepted and the Plaintiff by Demurrer had confessed the Deed and all that is contained therin then it appears that he is satisfied and that the release in matter as it is recited shall be an Estoppell vide 46 Eliz. 13. But it seemed that it is no Estoppell by the reciting in the Release that which is in possession but that afterward he might well say that he was not in possession at the time of the Release and all the Court agreed that the Acquittance or Release and receit of the money is a good Bar as to two hundred and fifteen pounds seventeen shillings eight pence and so it was adjudged But whether an Action of Debt lies against the Sheriff upon this return is questionable yet that it is not any Contract Account or Loane upon which three properly an Action of Debt lies as it is said M. 18. E. 4.23 and 41. E. 3.10 and 42 E. 3.9 When money is delivered to be delivered over that no Debt lies if it be not delivered over but Account vide 34 H. 6. 36. a. 9 E 4.50 And the Court inclined that in this Case Debt lies for it is a generall Contract In Dowses Case the Sheriff levy part and do not return it but the party pay it Debt lies against the Sheriff And if money be delivered to buy Land if he buy it not Debt lies or Account Mich. 15 Jac. Rot. 636. Stone versus Roberts STone brought an Action upon the Case against Roberts for these words The Plaintiff is a Witty and an Inchaunter Case and hath bewitched the Children of one Strong And Iudgment for the Plaintiff Words For though Witch is a word of malice and familiarly used to old poor women and therfore no Action lies yet here it is coupled with a Deed by which the Plaintiff is drawn in danger of his life by the Statute of 1 Jac. Hil. 15 Jac. Rot. 710. Crawley versus Kingswell RIchard Crawley Plaintiff in Roplevin against Richard Kingswell Replevin for taking of one Cow at C. the Defendant makes Conuzance for ten pounds Rent-service come Bayliff to his Father the Plaintiff confesse the Tenure but alledge that at our Lady day which was one day of payment he was upon parcell of the Land Rent tendered at the day and there was ready and offered to pay it and remained there till after the setting of the Sun The Defendant replyed and protestando that he made no such tender for plea saith that after that and before the Distresse viz. such a day he at this Close demanded the Rent and none came there to tender or pay it for which he did distrain and praies a return c. and avers that the Plaintiff nor any other neither at the time of the distresse nor at any time after offered to pay the Rent wherupon the Plaintiff demurred and it being argued by Hendon and John Moore it was adjudged by the whole Court that the Defendant shall have a return And a diversity was taken between this and Homage where one makes a tender to the party and he refuse there he cannot distrain because it is a personall thing which cannot be performed as payment of a Rent may by another hand vide Litt. fol 35.21 E 4.17.7 E 4.4.20 H. 6.13 Also it was agreed that the tender there by the Tenant at the day is not materiall but if he had tendred it when the Distresse was taken the taking should be tortious 30 Ass 38. vide 22 H 6.36 37.21 E 4. b. 45 E. 3.9 vide Litt. 7. fol 28. Demand necessary only for a Penalty 26 Eliz. Certain Cases vouched in an Action for words GIttings Plaintiff in the Exchequer against Redserve Gittings is a cousening Knave and so I have proved him before my Lord Mayor for selling me a Saphire for a Diamond the Action does not lye And by Manwood if A. saies of B. Thou art a cousening Knave and hast cousened me of five hundred pounds no Action lies which the Court agreed Banco Regis 30 Eliz. George versus Whitlock HE is a cousening Knave and consened a poor man of a hundred pounds and all the Georges are cousening Knaves no action lies Hil. 30 Eliz B. R. Walcot Plaintiff versus Hind HE is a cousening Knave and hath cousened me of forty pounds adjudged no action lies And upon Error brought in the Exchequer Iudgment was affirmed and it is said that our Law takes no notice what a Cousener is Trin. 37 Eliz. Brookes Case HE is a false Knave and keeps a false Debt Book for he chargeth me with the receit of one peece of Velvet which is false not actionable Mich. 37 and 38 Eliz. Charter versus Hunter THou art a Pilfring Merchant and hast Pilfred away my Goods from my Wife and my Children not actionable A Butcher and his Wife brought an action upon the Case against B. and his Wife and shew that the Plaintiff used the Trade of a Butcher and that his Wife in his absence sold and delivered flesh and the words were that the Wife of the Plaintiff is a cousening woman and hath cousened one of her Neighbours of four pounds And it was alledged over that she the Defendant would bring good proof of it and adjudged that an action lies not Trin. 13 Jac. Rot. 650. Heard versus Baskerfield Brownlâ—wâ— Devon WIlliam Heard Plaintiff Replevin against Richard Baskerfield in Replevin for taking two Cowes at Brood the Defendant makes Conuzance as Bayliff to John Dinham Esquire and shows that Walter de la Therne was seised in Fee of twenty acres of Land wherof c. And by his Deed shewn in
Court 12 E. a. granted a Rent-charge of two shillings out therof to John Milleton and Walter Milleton In Replevin one makes Conusance derive his Estate from one as Cosin and Heir and shews not how John Milleton dies and Walter survived and died seised and this Rent descended to one John Milleton of P. as Cosin and Heir to the aforesaid Walter and he was seised in Fee and one John Dinham was seised in Fee of one house and twenty acres of Land in Pensons and by Deed shewn in Court exchanged them with the said John Milleton for the said Rent and Walter de la Therne being seised of the Land out of which the Rent issued attorned and gave Seisin of the Rent to John Dinham wherby he was seised in Fee of the Rent and conveyed the Rent by three discents to this John Dinham for whom the Defendant makes Conuzance for ten shillings for five years arrear And the Plaintiff demurs generally upon the Conuzance And the cause was that it is not shewn how John Milleton is Cosin and Heir to Walter upon the discent First if it be good as this Case is viz. That he claimes not as Cosin and Heir but makes Title under him by conveyance afterwards Also because the Defendant makes Conuzance and is a stranger Secondly if it be but forme And this Case was argued at Bench briefly in Trin. 16. And I was of opinion because that this is the Conuzance of a Bayliff and it is a discent in one blood to which Dinham is a stranger and because that a good Issue might be taken therupon as it is alledged And if it had been a case of Bastardy the Iury might have tryell it therfore it is good by the Common Law and differs from a Formedon for there he which brings it is privy vide 41 Eliz. 13 14 in a Scire facias good without shewing how 33 H. 6. 34. Sir T. C. Case 27 H. 6. 2. 4 E. 3. 43. vide 19 E. 3. Quare impedit 58. And if it were not good by the Common Law yet it was but form and aided by the Statute of 27 Eliz cap. 5. vide in Doctor Leifeilds Case lib 10. fol 94. And Iustice Winch agreed with me but Warburton to the contrary and argued strongly that it was substance and was very materiall and he relied upon the Book in the 38 H 6. 17. and he put the cases of 11 H 6. 43. 8 H 6. 22. 2 H 2. and Wimbish and Talbois case Plowden There is debate and argued two against two and no Iudgment given because that it is not shewn Comment Cosin vide 2 H 5. 7. a good Issue there is no such Ancestor a generall Demurrer confesse not the matter as in Debt upon a Bill he plead payment and the Plaintiff demur that Demurrer doth not confesse the payment Lord Hobart would not speak of the Common Law but it seemed good to him by the Statute The Title of the Act is An Act for furthering of Justice Definitive Iustice and Interlocutery The Statute takes not away form but the intrappings and snares of form No place where the Obligation is made cannot be tried by them affirmatively Hough and Bamfields case matter and no form and so Dyer 319. But the point of Cousinage which comes by videlicet is form And if the case of Wimbish and Talbois had been at this day it should bee aided and Iudgment for the Defendant Sheriff ought to deliver the Moyety by meets and bounds IT was argued by the Court that upon an Elegit the Sheriff ought to deliver the Moyety by meets and bounds and if it be so that the Conuzor be Ioynt-tenant or Tenant in Common then it ought to be so specially alledged and contained in the return Pasch 16 Jac. Drury versus Fitch Case DRury an Attorney of this Court brought an action upon the case against Fitch one of the Serjeants of London for saying I arrest thee for Felony and after not guilty pleaded the Plaintiff was Non-suited Costs upon Non-suit where the Plaintiff hath no cause of action And now it was moved that no costs should be given to the Defendant because that the words will not beare action and therfore Iudgment shall be given Quod nil capiat per billam And they vouched one President in Grewstons case in Ban. Reg. vide that now by the last Statute costs shall be given to the Defendant in all cases where the Plaintiff should have costs if he recover but in such case where the Plaintiff if he recover shall not have costs the Defendant upon the Non-suit of the Plaintiff shall not have costs But it seemed to Lord Hobart that in this case the costs are for vexation and this is more vexation if he had no cause of action vide 29 H 8. fol 32. It is there resolved that an action lies for the costs notwithstanding a Writ of Error brought And the last day of this Term the Court was of opinion that the action lies for the words for it is more then these I charge thee with Felony and if the Action lies not yet the Defendant shall have costs for it was such an Action in which the Plaintiff ought to have costs if he recover Vpon motion in Court by the direction of Iustice Warburton who had caused a Iury to be drawn by reason of the slendernesse of the matter and for avoiding the charge of a speciall Verdict the Case was A Copyholder was a Lunatick and the Lord committed the custody of his Land to one which brought an Action of Trespasse Action brought by the Committee of a Lunatick which is a Copyholder and whether it ought to be brought by him or by the Lunatick was the question And the opinion of the Court was that the Committee was but as Bayliff and hath no Interest but for the profit and benefit of the Lunatick and is as his Servant and it is contrary to the nature of his Authority to have an Action in his own name for the interest and the Estate and all power of Suits is remaining in the Lunatick And it was ruled in this Court that a Lunatick shall have a Quare impedit in his own name vide Beverlies case Coke lib 4. the diversity between a Lunatick and an Ideot and H 8. Dyer fol 25. And though when Guardian in Socage as it was adjudged makes a Lease for years his Lessee shall have an Ejectione firmae yet there the Guardian hath the Interest and is accountable therfore But in this case the Committee hath no Interest but is as a Servant appointed by the Lord to keep the possession for him who is not able to keep it for himself Lord Hobart and the Court also agreed that the Lord of a Mannor hath not power to commit or dispose of the Copyhold of a Lunatick without speciall Custom no more then a man shall be Tenant by the Curtesie c. of a Copyhold
without Custom nor the Lord cannot commit during the Minority of an Infant Copyholder without Custom Hil. 15 Jac. Rot. 906. Smith versus Stafford Brownlow Suff. ANdrew Smith and Anne his Wife Case against Richard Stafford Executor of Jeremy Stafford in an Action upon the Case the Plaintiff counts that wheras there was Communication had of a Marriage between the said Anne when she was sole and the said Jeremy Where inter-marriage release a promise made by the Husband to the Wife before marriage the said Jeremy in consideration that the said Anne would take him to her husband promised that if after the Marriage the said Jeremy dyed living the said Anne he would leave the said Anne worth a hundred pounds and aver that she did marry the said Jeremy which died and did not leave her worth a hundred pounds And upon Non assumpsit the Iury found for the Plaintiff and in Arrest of Iudgment it was alledged that this intermarriage had extinguisht the action vide 11 H 7. 4 21 H. 7. 30. Coke 8. 136. there in Sir John Needhams case many cases are put vide Hoes case that a Release do not discharge Bail before Iudgment for it is contingent vide one Iudgment Hil 6. Jac. in the Kings Bench Rot 132. Thomas Belcher and Elizabeth his Wife Belcher and Hudson against Edmond Hudson an Action upon the case in consideration that the said Elizabeth at his request would take one Thomas Mason his familiar Friend to her Husband he assumed and promised that if the said Elizabeth survived the said Mason that he would pay yearly to her forty shillings for her maintenance and shews that therupon she did take the said Mason to her Husband and survived him and then married with the Plaintiff the Defendant pleads a Release from Mason of all Actions Demands c. and it was adjudged no sufficient release But Lord Hobart said that if he had released all promises that would have discharged the Defendant vide 4 Eliz Release of all Actions Suits Quarrels c. doth not release a Covenant before it be broken but otherwise of a release of all Covenants as it appears in Dyer 57. though the principall case was a release of all Covenants untill such a day and Covenants were broken before and not discharged for it being broken before there was no Covenant as to that Vide Lampets case Coke lib 10. 51. the reason of the release in Hoes case was because that it was contingent and uncertain and 17 Eliz a Lease to the Husband and Wife for life the Remainder to the Survivor of them for one and twenty years the Baron grant it over and survive yet it is void because it was contingent And the Lord Hobart said that the promise was released by the inter-marriage and so shall be in the case of an Obligation for Fortior est dispositio legis quam hominis and he held that strongly to be Law but Iustice Winch and Iustice Hutton held the contrary and that the Law will not work a release contrary to the intent of the parties and that the marriage which is the cause do not destroy that which it self creates Trin. 6 Jac. Jurden versus Stone Glocest EIectment upon a Lease made by Alice Remington of a Copyhold in South Corny Walter B. Copyholder in Fee married the said Alice And there was a Custom in the Mannor that the Wife shall have the Copyhold as of Franck-banck during her Widowhood Where a woman may enter in and bring an action tâ—â— beâ—â—â— Franck bank before admittance Si tam diu casta viveret and had used to challenge it and the Lord granted it as appears by divers admittances of women and this Wife after the death of her Husband came into Court and challenged her right of Franck-bank and prayed to be admitted and that the Steward refused and she made a Lease for one year to the Plaintiff and if he might bring this action by reason the woman was not admitted for it was agreed that no Fine was due to the Lord was the question And upon the Evidence it was resolved by the Court that this Estate ariseth out of the Estate of the Husband And as Lord Hobart said it budded forth of the first Estate and it seemed that where Tenant for life is admitted that shal be the admittance of him in remainder Also if the Free-hold of the Copyhold be granted over and the Husband dies there there cannot be any admittance and yet she may enter and in this case if any admittance had been necessary she had done all that she could do and that amounts to an admittance in Law to an Estate created by the Custom and by the act of God and Law A Tenant alieu and the Feoffee tender the services and gives notice the Lord refuse this is sufficient and the Lord shall be compelled to avow upon him Continuall claim amounts to an entry Pasch 16 Jac. Rot. 444. Blands Case Case GEorge Bland brought an Action upon the Case against A. B. the Defendant having some communication with one Eagle said that he was a troublesome fellow and he doubted not but to see him indicted at the next Assises for Barretry or Sheep-stealing as George Bland was Words for George Bland was indicted the last Assises for stealing of Sheep and it was not averred that he was not indicted but that he was of good fame It was moved in Arrest of Iudgment that it is not actionable and so was the opinion of the Court for it is not a direct affirmative vide the case of Steward against Bishop before fol. 1. And if one saies I suspect you for stealing my Horse And Iudgment was given for the Defendant Trin. 16 Jac. Darcy versus Askwith Brownlow Ebor. JOhn Lord Darcy of Ashton brought an action of Wast against Robert Askwith now Knight and John Marshall Wast and assigne the wast in Woods viz. In cutting down and selling two Oakes foure Ashes in a Close called Tisley Close two Okes in Parsons croft one Ash in Pinder croft and sixty one Oakes in Preston Lands Wast in cutting of wood to make Cole mines and in divers other Closes in Swillington and Preston The Defendant plead a Lease of the Mannor of Swillington to him for years and also of the Mines and justifie the shrowding of the Trees to make Punchons Poles and Stakes and other Vtensils in and about certain Pits called Cole-mines in one of the Closes without which the Defendants could noâ— dig and take Coles out of the said Pits and aver imployment about of the said Cole-mines justifie the cutting of other trees for the making of Instruments for the extracting of the water out of the said Pits and that without which they could not dig any Coles and they were necessary for the digging of Coles and for supporting the Pits and aver the Imployment And therupon the Plaintiff demurred And we all agreed
that the Plea is not good Harris argued for the Defendant for three reasons 1. Because by the Lease this was included vide 21 H 6. 61. grant of Conuzance c. gives power to make a Steward tempore E. 1. Fitz. 41. 2 E. 2. Bar 237. grant to fish in a Pond yet he cannot make a Trench 2. The Coles are the Inheritance and the bettering of them is the bettering of the Inheritance 3. For the profit of the Common-wealth 14 H 8. 18. 20 Eliz Dyer 361. Altams case Trench to make a Meadow the better is no wast vide 22 H 6. 6. digging of certain Loads of Gravell for the amending of the Land vide 12 H 4 5. And for telling this ought not to be answered any other way then by justifying of the Imployment and the Plaintiff may reply upon the sale if he will and the case is long debated 5 E 4. 10. vide Dyer 37. Malenders case And the last day of this Term the Lord Hobart declared that we were all of opinion that the Plea is not good for there though the Lease be of Mines and by vertue therof the Lessee might open new Mines as in Sanders case Coke lib 5. fol. 12. there it shall be intended of new Mines which in themselves is wast if it had not been by speciall words And the digging of a Mine is an impairing of the Inheritance and a great benefit to the Lesses and therfore if Lessee for years build a new house if he cut Trees off the same Lands for the making therof it is wast 17 E 2. Fit wast 118. And no more then one may make a Brick Kilne and burn Brick or a Lyme Kilne and burn Lyme with wood growing upon the ground and sell the Brick or Lyme no more may the Defendants in this case cut down wood for the making and supporting of these Mines for Coles which they sell vide 41 E 3. 17. And so Iudgment was given for the Plaintiff Edmonds Case MEmorand That at the Assises holden at Winchester in Lent 15 Jac. one William Edmonds was indicted of Burglary because that he Burglariter and feloniously did break the house of one Richard Heydon in the night at Ramsey Burglary and the Iury gave a speciall Verdict We find that Richard Heydon and Christian his Wife were both in Bed and at rest in an upper Chamber in the Mansion house of the said Richard Heydon and that the said William Edmonds then was and yet is the Servant and Apprentice of the said Richard and that he then lay in another Chamber of the said house remote from the Bed-chamber of his said Master and Dame and that there was a Door with a Latch at the Stairs foot of the said Bed-chamber of the said Heydon but none at the Stair-head being the entrance into the said Bed-chamber of the said Heyedon We find that the said William at the said time in the Indictment drew the Latch of the Stair-foot door and opened the said door being then latched and went up the Stairs and entred into the Bed-chamber of his said Master with an intent to murther the said Heydon and that he did then and there with an Hatchet with an intent to murther his said Master strike and grievously wound him and gave him fifteen wounds on the head and other parts of his body And if upon the whole matter c. And this speciall Verdict was shewn by the Lord chief Baron Tanfield unto all the Iudges of Serjeants Inne in Chancery Lane viz. Iustice Warburton Crook Baron Bromely Iustice Dodderidge Houghton Winch and Hutton And they all besides Winch which doubted agreed that it was Burglary and afterwards in the same Term at a meeting in Serjeants Inne in Fleetstreet it was shewn to Mountague Hobart and Denham which concurred Mich 16 Jac. Staffords Case FAlse Imprisonment was brought by Sir John Stafford the Defendant justifie Matter of Record tryed by the Country that Bristoll is an ancient City and that time wherof memory c. there hath been a Court holden there before the Sheriffs c. and justifie that there was a Plaint levied and Iudgment and that the now Plaintiff was taken in execution The Plaintiff replyed Quod non fuit aliqua querela levata according to the custom and requires this Quod inquiratur c. And it was tryed at Bristoll and found for the Plaintiff and damages twenty six pounds And it was moved in Arrest of Iudgment that this being matter of Record viz. the entry of the Plaint in a Court of Record it shall be tryed by the Record and not by the Country And it was adjudged that the tryall was good because that it is not meerly Record but whether it was according to the Custom And Non prosecutus est ullum breve is tryable by the Country Quaere if the King grant by Patent to hold plea under forty shillings if it be a Court of Record Sir Walter Rawleys Case MEmorand that on Friday the 23. of October upon conference between all the Iustices of England whether a privy Seal was sufficient it being directed to the Iustices of the Kings Bench to command them to award execution against Sir Walter Rawley which was attainted of Treason at Winchester Mich. 1 Jacobi How Prisoners which are attainted of Treason set at large shall be brought to execution before Commissioners of Oyer and Terminer or how they should proceed before execution be awarded It was resolved by all that he ought to be brought to Bar by Habeas Corpus to the Lieutenant of the Tower and then demanded if he could say any thing why execution should not be awarded for the proceedings against him being before Commissioners they are delivered only into the Court of Kings bench or they might have remained in a Bag or a Chest and no Roll made therof and so long time passing it is not a Legall course that he should be commanded by a privy Seal or great Seal to be executed without being demanded what he hath to say for he might have a pardon or he might say that he is not the same person As if one be Outlawed of Felony and taken he shall not be presently hanged but he shall be brought to Bar and so demanded c. And upon this resolution a privy Seal came to the Iustices of the Kings Bench commanding them to proceed against him according to Law And therupon a Habeas Corpus was awarded and Octob 28. he came to the Bar being brought by the Lievtenant and there he was demanded of whether he had any thing to say why c. and there he shewed that the King had imployed him as Generall of a Voyage and hath given him power De vita membris upon others And whether this did amount to a pardon or no he knew not The Attorney-generall said that the King pardoned no Treasons by any Implication but it ought to be by speciall words Then he said
be after the title devolved unto the Metropolitan And it seems also reason that he ought to admit though that the Title by Laps be accrued to the King for he claims it as supream Ordinary vide Dyer 277. quaere But in this case the Bishop which is the Defendant is bound by the Iudgement and the Writ is notwithstanding the claim of the Bishop that he admit the Clerk and the Bishop is but Servant and ought to execute the processe of the Court It was urged by Serjeant Henden one Canon Linwood fol. That if the Church be vacant when the Writ comes to the Bishop that he is bound to execute the Writ but if it be full then he certifies the Iustices And the Arch-bishop is sworn to the Canons and he vouched 22 H 6. 45. Coke lib 6. 49. and 52 Dyer 260. F.N.B. 47. Dyer 364. 14 H 7. 22. 34. H 6. 41. 9 E 3. Quare non admisit 18 E 4. 7. Trin. 16 Jac. Rot. 1999. Eire versus Bannester JOhn Eire brought an Ejectione firmae upon a Lease made by Sir Edward Kinaston against Andrew Bannester and Thomas Wenlock for Land in Norwood Challenge and after Not guilty the Plaintiff made surmiss of Kindred to the Sheriff Sir Thomas Owen to the Plaintiff the Defendant pleads that the Sheriff Non est de consanguinitate of the Plaintiff as he by his challenge supposed And because the Defendant denied the said Challenge John Eire calumnia illa non obstant prec est quod ven fac c. And at the Nisi prius the Defendants challenge the Array for consanguinity between the Sheriff and the Lessor viz. Sir Edward Kinaston and make this Averment that the Sheriff had Issue by Susan which was the Daughter of Judith the Wife of Sir Edward Kinaston and conclude it is a principall Challenge and therupon the Plaintiff demurred And it was returned upon the Postea and it seems that the Sheriff being admitted and allowed to be indifferent by the Defendants in the same Plea they which allow cannot have a Challenge to the Sheriff for the Defendants might by confession of the surmise of the Plaintiff to be true have had a Writ directed to the Coroners and although the entry is Calumnia illa non obstant that is the form of the Award and if he should be allowed otherwise afterwards to challenge the Array then it would be infinite As a man ought to alledge but one principall Challenge though he hath many so it shall be peremptory to the Defendant and when he allows the Sheriff indifferent that shall be taken to be for all causes precedent unlesse it be of latter time And so is the opinion of 20 E 4. 2. And if there be many Defendants if one challenge the Array that shall be peremptory for the others as it seems for the others ought when they challenge the Tales to shew cause presently of the Challenge for if it be quashed that shall also be against them vide Dyer 201. in Attaint vide 36 H. 6. 21. that where one challenge the Array which is affirmed the other Defendants after may challenge the Array of the Tales The second point is if it be a principall challenge or no by reason that the Lessor is not party to the Action vide 10 E 4. 12. 15 E. 4. 18. and 21 E. 4. 61. there it seems that where the Defendant justifies as Servant to I.S. and that the Land is his Free-hold it is a principall challenge that a Iuror is within the Distresse of John S. for the Title is to be tryed And now it was found by common experience that the Lessâ—e is but Servant common recoveries at this day are but as other common Conveyances But it seems that the Law is contrary and it is not averred that this is a Lease for trying the Title and as Iudges we take no notice therof but vide 3 H 7. 2. contrary to the 10 and 15 E 4. where the Challenge is to the Array because that the Sheriff was of Kindred to him whose Free-hold was in Issue and vide 9 H 7. 22. Cognizance as Bayliff to the Abbot of Ramsey Challenge to the Array because the Sheriff was within the Distresse of the Abbot and that was not a principall Challenge by Fineux Brian and Vavasor because that he was not party to the Writ vide this very Case Dyer 300. And upon argument at the Bar the Court was of opinion that it was no principall Challenge but ought to have concluded with the favour All agreed that a Surmise which is for prevention of delay ought to contain matter which is a principall Challenge for no triall shal be of such suggestion but by the deniall of the Defendant or Confession And by the opinion of Lord Hobart and Iustice Winch cest dedire n'est peremptory to the Defendant for his time of challenge is not till the Iury come to be sworn but I hold the contrary because that he might have confessed the Surmise and so have had time And I rely upon 20 E 4. 2. there in the end of the Case it is said that the Defendant by his deniall where he saies that the Sheriff is not favourable but indifferent there he shall never have a challenge for favour unlesse he shews cause of later time As to the second Point it is no principall Challenge because it might be that the Lessor had granted over the Reversion or that the Defendant might be found Not guilty And a principall Challenge ought to contain such matter which being so the Law adjudge favourable and in this very case two Presidents scil Iudgments more strong then this case Bedforne and Dandy Hil 44 Eliz Rot 1208. Bedforne against Dandy in an Ejectione firmae upon a Lease made by Sir John Digby after Not guilty pleaded a Surmise made of consanguinity between the Lessor and the Sheriff c. confessed and therupon a Venire facias to the Coroners and after the Challenge was adjudged insufficient and a Venire facias likewise to the Sheriff was ruled Craddock and Wenlock Trin 14 Jac. Rot. 2284. Craddock against Wenlock in an Ejectione firmae upon a Lease made by Sir Robert Cotton such Challenge and Award to the Coroners and tryed and adjudged a mis-tryall and a Venire facias awarded to the Sheriff and the mis-tryall is not aided by the Statute vide Coke lib 5. Bainhams case And so by the Iudgment of the Court this Challenge was insufficient and Warburton being then sick was of the same opinion as he told me vide 8 Eliz Dyer 281. Austen and Baker in Attaint vide 33 H. 6. 21. 3. Defendants one challenge the Array of the Principall and that being affirmed the other Defendants challenge the Tales Mich. 16 Jac. Easington versus Boucher Debt Severall Defendants in Debt upon a joynt Contract may plead severall pleaâ— EAsington brought an action of Debt upon a joynt Contract against Sir John
Boucher Turner Bolder and one other Turner appear and tender his Law Sir John Boucher and another plead Nil debent and the other was Outlawed and it was said that he ought to have joyned but it was resolved by the Court that they may sever in Bars but ought to joyn in Delatories For otherwise if one which never bargained be joyned in the action he must put his matter upon their pleadings And in Debt upon a joynt Obligation one may plead a Release the other Non est factum vide 48 E 3. 21. and vide Presidents in this case according to this resolution Sabud versus Râ—w â— Trin. 26 Eliz Rot. 821. Trin 26 Eliz Rot 821. Sabud against Robinson Matson and Loughton and Count sur emisset Waston and Loughton pleaded and Non sum informatus by Robinson Sed judicium inde cesset quousque the Issue be tryed and Venire facias awarded and found for the Plaintiff Peâ—iam T.P. H. P I.P. Hil 41 Eliz Rot 455. John Periam and Margaret his wife Executors of John Hart vrought an action of Debt upon Emisset against Thomasin Phelpes Widdow Henry Pittard and John Phelpes John Phelpes was Outlawed and Iudgment against Henry P. by Non sum informat and Thom P. plead Nil debet Fleet and Harrison Venire facias and Iudgment respited quousque c. and after tryall the Plaintiff had Iudgment Hil 13 Jac Rot 841. Fleet brought an action of Debt against Ja Harrison and Isaac Brooke upon Emissent And James H. waged his Law Iudgment against Isaac Brooke by nihil dicit Et quia Conveniens est quod judicium de loquela praedicta unicum sit versus praedictos Isaac Jacobum si contingat ipsum Jacob. de perficiend legem suam praedictam desicere Ideo parcat in judicium inde versus praefatum Isaac reddendum quosque praedictus Jacobus legem praedictam perficeret sive inde desiceret postea praedictus Jacobus perfecit legem suam Ideo consideratum est per Curiam quod praedictus querens nihil capiat per breve suum praedictum sed sit in miserecordia pro falso clamore suo inde quod praedictus Jacobus eat inde sine die And according to this President it was agreed per Curiam that so it ought to be Hil. 12 Jac. Rot. 3007. Reyner versus Waterhouse Ebor. Case JOhn Reyner brought an action upon the case against L Walterhouse Ven. fat de dâ—versis villis and declares that wheras he is and by the space of twenty years past have been an Inhabitant within the Town of Long Leverseidge in the Parish of Burstall And wheras the Inhabitants of Long Leverseidge aforesaid De tempore cujus contrarii memoria hominum c. used to have a common way as well for Foot-men as for Horse-men to go and ride from the said Town of L. to the Parish Church of Burstall aforesaid on Lords daies and Festivall daies and other convenient times to hear Divine Service within the said Church and to carry bodies c. dying in the said Town to the said Church to be interred Modo forma sequent viz c. and shews the way through divers Closes in Long Leverseidge Little Leverseidge and Gomersall and over the Church-yard of the Church of Burstall and from thence unto the Church aforesaid and backward c. and shew one disturbance made by the Defendant by making of a Ditch in one of the Closes in Gomersall the Defendant pleaded Non culpab and found for the Plaintiff and in Arrest of Iudgment it was alledged that the Venire facias fuit de Gomersall tant And the Venire facias was quashed per Curiam and a new one awarded de L.L.G. Burstall Hil. 16 Jac. Bigg versus Malin BIgg brought an action upon the Case against Malin Case as Administrator and counts that whereas the Intestate was indebted to him in ten pounds and the Defendant also was indebted to him in forty shillings they accounted and upon account the Debt being twelve pounds In case upon Assumpsit against Executors it is not necessary to alledge Assets the Defendant being Administrator did assume and promise to pay it Et licet saepius requisitus non solvit And upon Non assumpsit pleaded the Verdict was found for the Plaintiff And by Finch it was moved in Arrest of Iudgment that the Plaintiff had not shewn in this Count sufficient consideration to charge the Defendant because that it doth not appear that the Defendant hath Assets But the Court disallowed that for if that were necessary it ought to be presumed to be found in the Verdict As in the case in consideration that the Plaintiff had sold and delivered to him twenty quarters of good and merchantable Barly the Defendant promise to pay him twenty pound Non Assumpsit the Plaintiff ought to prove the promise and the delivery And as in Debt against Executors upon a simple Contract it shall not need to be alledged that they had Assets to pay Debts by specialties yet good and that ought to be proved But it seemed to be agreed that if an Executor or Administrator which hath not Assets makes promise of payment if it be not mixed with any profit to himself viz. forbearance c there it shall not charge him But by Warburton if an Executor hath fifty pounds Assets and he promise to pay to a Creditor a hundred pounds that shall bind him for all for when he hath Assets for part the Plaintiff hath Iudgment for all and execution only for so much as is found And in this case the Plaintiff had Iudgment Brook versus Groves BRook brought a Quod permittat against Groves and after Imparlance the Defendant demanded a view and ruled by the Court that he might and vide 34 H 6. 9 10. accordant vide 6 E. 4. 1. and the Plea Quare impedit viz. the View was De tenementis predictis which was as well of the Lands to which the Nusance as of the Lands which was the Nusance View And the View in this action is but for fifteen daies Egerton versus Egerton THe Lady Egerton Wife of Sir John Egerton brought a Writ of Dower against Edward Egerton the Tenant at the day of Essoin did not cast any Essoin And the Demandant entred her exception at that time the Writ was not returned and upon motion to the Court for the tenant to be essoined notwithstanding the exception Dower it was resolved that notwithstanding the writ was not returned yet the Tenant might have his Essoin vide 2 E. 4. 11. 21 E. 4. 7 8. 30 H. 6. 1. that an Essoine may be before the Writ be returned and vide 2 H 7. 4. 10 E 4. 4. the Tenant may be Essoined at any day Essoin though the Writ be not returned as wel at the fourth daie as the day of Essoin unlesse the Essoin be challenged viz. an exception
entred and 2 H 7. 4. takes a difference between a reall Action or Originall Suit and a Writ of Execution for upon the first the Essoin lies at any time before the fourth day but in the Writ of Execution the Defendant ought to be essoined at the day of the Essoin And Warburton said that if the Essoin be not cast before the return of the Writ it ought not to be at all for all Writs come in by Post diem Cardinals Case CArdinall an Attorney of this Court of Common Bench Case brought an action upon the case against I. B. for saying of him That he had forged the last Will of I. S. and after Issue upon not guilty it was found for the Plaintiff And moved in Arrest of Iudgment Words that it is not alledged that the Will is supposed to be forged But by the Court that was necessarily implyed and the Plaintiff had Iudgment Pasch 17 Jac. Allaboyter versus Clifford Suff. JOhn Allaboyter brought an action of Debt upon an Obligation against Daniel Clifford which was with a Condition Debt that if the Defendant perform the Award of two Arbitrators of all Actions Demanos c moved between the Plaintiff and Defendant from the beginning of the world untill the day of the date of the Obligation Arbitrement so that the arbitrement be made before the tenth day of December the Defendant plead no such award before the day the Plaintiff reply and shew that the ninth day of December they awarded of and upon the premisses and arbitrated that the Defendant should pay to the Plaintiff fourteen pounds at two severall daies and that upon the last day the Plaintiff should make a generall release to the Defendant and the Defendant likewise to the Plaintiff and alledge a breach for the non payment of the first seven pounds and aver that the fourteen pounds was awarded to the Plaintiff in full satisfaction of all suits quarrells c. depending between the Plaintiff and the Defendant at any time before the Date of the Obligation upon which Plea the Defendant demurred and objected by Attho that the Release which is appointed to be made upon the last day is not appointed but after the payment of the money and also is then to be made of more then is submitted to them But by the Court it is agreed to be a good Award for it shall not be intended that there were more matters arising between them after the date of the Obligation Also if he had made a Release untill the date of the Obligation that were a good performance And this Case had been adjudged before between Nichols and Grandie Nichols and Grandy George Andrews Case VPon a Habeas Corpus one George Andrews was brought to the Bar and upon a long return by the Mayor Aldermen and Sheriffs of London The Custome of London to give security for the payment of the Portions of Orphans and upon refusall the Debters are to be committed of their custom concerning the Orphans of Free-men and for the security of their Portions to be paid to them at the age of 21. years or at the time of their marriage or at such time as is appointed by the Will of their Father or Mother or other Free-men giving to them any Legacy they use to take sufficient security of them which ought to pay them and if they refuse then to commit them to the Counter untill they give security and that their customs were confirmed by Act of Parliament An. 7. R. 2. William Andrews a Free-man having one Son and one Daughter by Emery his Wife died this George Andrews a Free-man being Suitor to the Wife before marriage agreed that if the Wife would marry him she should dispose of two hundred pounds c. and he was bound in a Statute to permit and suffer her to make her Will and dispose therof and after she died and by her Will gave a hundred pounds to her Son and a hundred pounds to her Daughter and the said G.A. agreed to her Will and yet refused to give security to the Chamberlain of London to pay it at the day appointed by the Will pretending that he was bound by Statute to the Friends of the Orphans to perform it And by the Court he was remanded for it is a laudable Custom and the voluntary Obligation upon marriage is not any discharge as to the security by the Custom and we will not disparage the Government of the Citty Trin. 16 Jac. Wolfe versus Heydon London Debt THomas Wolfe Administrator of the Goods and Chattels of John Aldrich durante minore aetate of Edward Aldrich William Aldrich and other Children of the said John not administred by John Talbot Executor of John A or by Robert Armiger late Administrator of the said Goods and Chattels during the minority of the said Children not administred To what intents a man shall be said Executor before he prove the Will brought an action of Debt against Simon Heydon and count upon an Obligation of fifty pounds wherof ten pounds was satisfied to John Aldrich in his life and counts that John Talbot was made his Executor and died and that the money was neither paid unto the said John Aldrich the Testator in his life nor to John Talbot the Executor in his life nor to the said Robert Armiger late Administrator of the Goods and Chattels of the said John Aldrich during the minority of the Children and he produce Letters of Administration and aver that the Children were within the age of seventeen years The Defendant plead in Bar that the said Aldrich before this Writ purchased viz. such a day at S. in the Parish c. made his Will and constituted John Talbot his Executor Qui suscepit onus inde and administred divers Goods as Executor and after viz. such a day the said John Talbot made Benjamin Roblet his Executor and died and Roblet suscepit onus testament and did administer and demand Iudgment si actio c. The Plaintiff reply and confesse that John Aldrich made John Talbot his Executor and that he administred and made Roblet his Executor But he saies that the said John Talbot did not prove the Will of the said John Aldrich according to the Ecclesiasticall Law and that the said Benjamin before that he took the charge of the Testament of John Talbot renounced before the Ordinary to be Executor of the said John Aldrich or to administer any of the Goods which were the Goods of the said Iohn Aldrich or to have any thing to do therwith And therupon the Defendant demurs and Iudgment was given for the Plaintiff And in this case the Court well agrees with the replication for he was Executor before probate to pay Debts and to be sued but not to have an action though that originally the probate was temporall and it is no plea in our Law scil that he did not prove the Will but that he was not
profits have accrued to them or any of them by the making of Allome since the making of the said Indenture wherupon the Plaintiff demur 1. And Iudgment was given for the Plaintiff for it is one good Grant of an Annuity to charge their persons And so of a Grant of an Annuity to be paid out of such Coffers or Bags vide 9 H. 6. Margery Parkers case vide 22 H. 6. 12. 2. Also the limitation is to perceive of the clear gaines and plead it by the Counter-part of the Indenture and that ought not to be but they should have demanded Oyer of the Deed and then either demur or plead that the same Deed was granted over c. 3. It is not averred that no other person received or made any clear gain but only that the Defendant made no clear gain Burglary MEmorand At the Assises holden at Winchester in the last Circuite before the Lord chief Baron Tanfield it being the third Circuite which I went with him It was a question whether one which had a Shop in the dwelling house of another and he which had the Shop work'd therin in the day but never lodged there and yet he had a house out of the Shop to the Street if this Shop be broken in the night and divers Goods stoln out therof if it be Burglary Burglary And the Lord chief Baron and I resolved that it was no Burglary because that by the severance therof by Lease to him which had it as a Shop and his not inhabiting therin it was not any Mansion house or dwelling house ergo no Burglary but ordinary Felony Mich. 15 Jac. Adavis versus Flemming Case AN action of the Case was brought for these words Thou hast forsworn thy self before the Councell in the Marches innuendo in the Marches of Wales in a Suit which I have there and I will sue thee for Perjury Words And after issue of Not guilty pleaded and Verdict for the Plaintiff It was moved in Arrest of Iudgment by Chibborn that the Common Law takes no notice of any such Councels and they are to meddle according to instructions and if it be not warranted therby then no Oath wherupon any remedy And therfore it was adjudged that if one say another is forsworn or perjured in Canterbury Court no action lies for we cannot take any notice of any Court in Canterbury which hath power to administer an Oath But Serjeant Harris said that this Councell of the Marches is established by 27 H 8 cap 32. and have power to examine Witnesses and to administer an Oath and is also mentioned in the Statute 5 Eliz. that Perjury committed before the Councellors of the Marches shall be punished by this Statute And the Court was of opinion that the action well lies for the Councell of Marches without innuendo is sufficient for there is no other Councell of Marches And as the Court take notice of the Court of requests for if one saies another is perjured there it is actionable so of this Court which is established by Statute and concern the King and therof the Iudges ought to take notice Iudgment for the Plaintiff And by Lord Hobart if one saies another is forsworn in the Common place an action lies Mich. 17 Jac. Bayshaw versus Walker Case AN action of the case was brought for saying Thou art a filtching Fellow and didst filtch four pounds from me And after Verdict for the Plaintiff it was moved in Arrest of Iudgment that the words were not actionable And so the Court resolved for the word siltching is dubious and may be by Cousenage by shifting by deceit and is not Felony but by Implication and it is not good to enlarge actions for words Plaintiff Nil capiat per breve Green versus Harrington Case Assumpsit lies not for Rent PEter Green brought an action upon the case against Thomas Harrington and counts that wheras the Defendant such a day was indebted to him in ten pounds for the rent of one House and land which he had demised to him for one year then past the Defendant promised to pay it upon request and upon issue Non Assumpsit it was found for the Plaintiff and moved in Arrest of Iudgment by Chibborn that no action lies upon this promise because it is Debt for the rent for Land and the Assumpsit is of a lesse nature as if one he indebted upon an Obligation and that being forfeited he promised to pay it no action lies for the Debt is due upon the Obligation Albanies case And the opinion of the Court accorded This was ruled in Albanies case of Lincolnâ— Inne in Banco Regis Trin. 17 Jac. Rot. 1849. Castilion versus Smith AN action of Covenant was brought by Sir Edward Castilion against Thomas Smith as Executor Covenant Iudment against Executors for Covenant broken by them shall be De bonis testatoris Iohnson and Barker a breach assigned by act done by the Executors and after Verdict it was moved if Iudgment should be De bonis propriis by reason the breach was made by the Executors And it was resolved that it should be de bonis testatoris And where the Writ is in the Detinet only there the Iudgment shall be de bonis testatoris vide the like Iudgment Hil. 33 Eliz. Rot 1143. between Johnson and Barker Pies Case PIe exhibited an Information upon the Statute of the 35 of Eliz. for converting of a house in London into many dwelling houses and upon Not guilty pleaded the Defendant is found guilty But be cause the said Statute is discontinued by the 43 Eliz Costs against an Informer and there is now no such Statute the Court upon motion in Arrest of Iudgment award that the Defendant eat inde sine die And whether the Defendant in this case shall have costs upon the Statute of 18 Eliz. cap. 5. was the question The words of the Statute are if any Informer willingly delay his Suit or discontinue or be non-suited or shall have the matter or the tryall passe against him by Verdict or Iudgment in Law he shal pay costs 1. Object It was objected that this Statute doth not extend but only to penall Statutes which then were in Esse Answ To which it was answered by the Court that this Statute was a perpetuall direction to all Informers 2. Object It was objected that if there be no Statute then there is no Informer 3. Object In this case Verdict is sound for the Informer and he may be presumed to be ignorant And there is no reason that he shall pay costs for default of his Councell 4. Object There is no Iudgment against him but that the Defendant eat inde sine die and that is no other then an exception in stay of Iudgment Keldridges case And a President was cited by Henden 25 Eliz. Banco Regis there upon an Information against Keldridge and another upon the Statute of 35 H. 8. for not
inclosing Woods but suffering them to lye open after cutting by the space of one month he alledged the cutting the tenth of April and the lying open untill the second of May which was not a month And upon Not guilty pleaded it was found for the Plaintiff and upon motion in Arrest of Iudgment it was awarded that the Defendant eat inde sine die and no costs And the Lord Hobart said that this Statute was made for the ease of the Subject and for avoiding and preventing of vexations and therfore did enumerate all the cases in which the Informer could not prevail and had many words that the Statute of 23 of H. 8. or any other Statute doth not give expresly costs upon demurrer and this is not within 23 H. 8. if upon discontinuance And now the matter passe against the informer be it by Verdict or Iudgment all is one for the makers of this Statute intended to curb all vexatious Informers And if it shall be suffered that Informers may inform upon Statutes not in force and pay no costs that would open a Window to the great vexation of the Subjects And for Presidents not inflicted upon they are of little esteem And I concurred and though Verdict be found for the Informer yet there being no Statute there can be no Offence and it is in Law as not guilty And this case is within the meaning and Letter of the Statute for the Statute intend costs where the cause passe against the Informer be it by default of matter or form Winch doubted of this speciall case because the matter is found for the Informer but he agreeh if it were upon Iudgment upon demurrer or speciall Verdict costs should be given And Iustice Warburton was of opinion that there should be no costs in this case for he is not capable to sue where the Statute is discontinued And so if the Venue be misawarded and he said that he had conference with the Lord chief Baron who also held that there should be no costs in this case And so the matter rests Blackburnes Case Norff. Debt AN action of Debt was brought by I. S. against Blackburne upon a Lease for a year and so from year to year And upon Nil debet pleaded the Iury gave a speciall Verdict to this effect A Devise to a Feme of a term upon condition Wells seised of Land in Fee devised them to his Daughter and her Heirs when she come to the age of eighteen years and that his Wife should take the profits of the Land to her use without any account to be made untill the Daughter come to the age of eighteen years And made his Wife his Executor and died And it was provided that the Wife should pay the old Rent and find the Daughter at School untill she could read and write English the Feme enters and proves the Will takes Husband and dies the Husband assign this term to the Lessor who brought this Action And it was found that all the Conditions were performed and that the Daughter was within the said age of eighteen viz. thirteen years And the sole question was whether it be a term for years in the Wife and whether when she takes Husband he shall have it after the death of his Wife and it was ruled clearly that it is and it being by Will it is a good Lease Another question was if this trust of Education be Quasi a Limitation personall and with intent that the Lease shall not be to the Wife any longer then she may educate her Daughter And it was agreed that it was not for any one may educate her and find her at School and there it is without any default in the Wife for it is the act of God and therfore Judgment for the Plaintiff Trin. 17 Jac. Whittingtons Case IVdgment in Debt against Ferdinand Earl of Derby Scire facias Sci. fac by the Baron and Feme the death of one of them shall abate it at the Suit of I. Whittington and his Wife she being Administrator to her Husband who had the Iudgment who brought a Sci. fac upon the Iudgment against 30. Ter-tenants they appear and all besides 3. plead that at the time of the Iudgment Ferdinand the Earl was seised in tail c. And the Plaintiff had Iudgment against the three with a cesset executio and afterwards Whittington the Husband died and this is surmised and entred vpon Record viz. the death of the Baron after the Darrein continuance and whether the Writ shall abate or no was the question And per totam Curiam the Writ shall abate for the Wife there cannot recover as a Feme sole and though this Writ be judiciall yet it is in nature of an Originall for she might have had an action of debt upon the Iudgment and ought to have that action solely after the year untill the Statute of Westminster 2. which give Scire facias and to this Writ they may plead But in Writs Iudiciall which are only Writs for the doing of execution there the death of one shall not abate it vide 19 Ass 10. 25 E 3. and vide Reads case Coke lib 10. fol. 134. Ruggles Case IN Ruggles Case upon the motion of Serjeant Arthure upon the Statute of 1 Jacobi cap. 15. concerning Bankrupts How the distribution of the Estate of a Bankrupt shall be a Commission was sued out by some of the Creditors and they pursued it and the Land was sold and it being opposed they defended their severall Suits and prevailed by a tryall at Bar And after other Creditors which before would neither partake nor aid them came and prayed to be joyned with them And the Commissioners doubted upon the Statute whether they might allow them to be joyned and the words of the Statute are That it shall be lawfull for any of the Creditors of the Bankrupt within four months after the Commission sued forth and till distribution shall be made by the said Commissioners for the payment of the Bankrupts Debts as in such case hath been used to partake and joyn with other Creditors that shall sue out the said Commission the said Creditors so joyning to contribute to the charges of the said Commission and if the Creditors came not in within four months then the Commissioners to have power to distribute It was resolved that the Commissioners may sell and prepare for distribution presently upon the execution of the Commission but untill the four months are passed they may not proceed to distribution for the Creditors which inhabite in the remote part of the Realm peradventure cannot have notice and it may be carried so secretly that if they might distribute presently that they which sued out the Commission should be only satisfied when indeed there was no default in the others Also it was resolved that the offer of Creditors to be joyned and before they be partakers is not an affectuall offer without offering to be contributory
to the charges But to offer any particular summ is not necessary because they know not what summ is disbursed and that is to be assessed by the Commissioners And the words for the charge of the Commission is to be extended to all charges arising in suing forth the Commission and in execution and defence therof Also it was resolved that at any time before the distribution made they may come and pray to be joyned But after the four months passed and any distribution made though it be but of part then they come too late For by this means the distribution which is made and wherby some of the Creditors shall receive more shall be utterly avoided and another proportion made which was not the intent of the Statute Pasch 18 Jac. Mason versus Thompson Case AN action upon the case was brought for these words I charge thee with Felony for taking money forth from Iohn Spaci's Pocket and I will prove it Words Henden moved in Arrest of Iudgment that these words were not actionable First because that it is not any direct affirmative that he is a Felon and for that he vouched a case as he said adjudged in the Kings Bench Masters bear Witnesse that he is a Theef The second reason was because that the matter subsequent do not contains matter which must of necessity be Felony but stands indifferent For if it be not privily and secretly it is not Felony and it may be by way of sport or trespasse For as one said That he is a Theef and stole his Timber it is not actionable for it might be Timber cut or Timber growing so to say That he stole his Corn or his Apples or his Hope For in Mitiorem partem verba sunt accipienda And it seemed to the Lord Hobart that the first words viz. I charge thee with Felony are actionable for the Constable if he be there present ought to apprehend him therupon and it is a plain Affirmative I arrest thee of high Treason Iustice Winch prima facie held that the words were actionable and not qualified by the subsequent words as it should be if he had said For thou hast stoln my Apple Trees standing in my Orchard that could not be Felony but it is not so there for it may be Felony and ex causa dicendi it shall be taken Felony in these words for taking money c. Warburton and Hutton was of opinion that the Action lay not This Case was moved in Mich. 18 Jac. And then the opinion of the Court praeter Warburton qui haesitavit was that the Action did not lye Ideo memorand quod quetens nil capiat per breve Trin. 18 Jac. Hall versus Woollen JOhn Hall an Attorney of this Court Case Consideration of an Asâ—urâ—p sit brought an action upon the case against Woollen and declared that wheras the Defendant was possessed of an House and Land in Mekon Mowbray in the County of Leicester for one term of the Lease of Sir John Woodward And wheras one Webb was in communication of buying the said Lease of Woollen and Woollen could not sell it without the assent of Sir John W. The Defendant in consideration that the Plaintiff would procure licence of the said Sir John he promised to pay to him so much as he should disburse and deserve therfore And averred that he did procure a License and delivered it to the Defendant and disbursed such a summ and deserved for his labour such a summ and the Defendant upon the Count did demur And the question was whether that were a good consideration or no for it did not appear that there was any condition to restrain him from making an Assignment and if I promise that wheras I am obliged to A. if you will procure B. which is a stranger to make a Release therof to me I will pay you forty pounds though it be done at my instance no action lies for it is apparant that B. could not release the Obligation But it was adjudged that is a good consideration for it appears that there was privity between them and it may be that he had promised that he would not assign it without his licence And in good discretion it was convenient to have it also it was at his instance and for his satisfaction And it hath been adjudged if one promise forty pounds to another if he can procure the assent of the Mother of a woman though he may do it without such consent yet it is a good consideration Mich. 18 Jac. Clerk versus Wood. CLerk brought an action upon the case against one Wood Case alias Warren and count that he was seised of an house and twenty acres of land c in Thursfield and that he and all those whose Estate he hath have had a Common in seven acres in Thursfield And that he and all those c. have had one way leading through the said seven acres Ven. fac upon prescription for a way in divers Townâ— and from thence into one Common way leading to Buntingford and from Buntingford to Blakeley And that the Defendant had plowed and turned up the seven acres and estopped the way The Defendant pleaded not guilty and the Venire facias awarded de Tursfield And it was moved in Arrest of Iudgment by Serjeant Jones that it ought to be from all the Towns through which he claim his way for he ought to prove it in evidence viz. that he had a way or otherwise he is not endamnified But it was resolved that the tryall was good for Not guilty is properly a deniall of trespasse and disturbance and though he ought to prove title to the way yet it is sufficient if he prove title to the way by and through the seven acres upon evidence And yet if the Prescription had been traversed then he ought to prove all the way any the tryall shall be from every Town through which the way is pleaded to be extended quod vide 10 E. 4. fol. 10. where it was in two Counties and the Venire facias shall be from both and the tryall shall not be by Nisi prius vide the case between Reyner and Waterhouse supra Mich. 16 Jac. Rot. 2344. Lamb versus Thompson Debt A Condition not to be assisting to another hinders him not to bring a Writ of Error joyntly with him EDmund Lamb brought an action of Debt against Richard Thompson upon an Obligation of forty pounds the Condition whereof was If the Defendant shall not be assisting or any waies aiding unto Thomas Elme or any other person for the said Thomas Elme in any Actions Suits Vexations c. to be commenced and prosecuted against the said Plaintiff c. That then c. the Defendant pleaded Negative The Plaintiff reply that he such a day brought Trespasse against the said Thomas Elme and the now Defendant and had Iudgment and that the Defendant joyned with him in a Writ of Error in hinderance of the
Defendant brought a Writ of Error in the Exchequer Chamber upon a new Statute and after divers terms Hall died and after the Plaintiff was non-suited without mention made of his death Tadcaster brought two Scire facias against Hobs and upon two Nihils had Iudgment Hobs brought an Audita Querela alledging the death of Hallowell before Scire facias and before Capias and it was adjudged that the Audita Querela well say and Hil 4 Jac Rot 975. between Timberley and Calverly Scire facias brought against the Bail and he pleaded that the Principall died before Capias returned against him And Iudgment upon argument given against the Plaintiff The like Iudgment between Iustice Williams and the Sureties of one Vaughan Hil. 19 Jac. Rot. 312. or 3125. Walrond versus Hill London Debt WAlrond brought an action of debt upon an Obligation of three hundred pounds against William Hill with Condition that if Thomas Harris and Elizabeth his Wife One bound to levy a Fine before such a day who shall do the first act before the end of Easter Term next shall levy a Fine before the Iustices of the Common Pleas by due course of Law to the use of the Plaintiff that then c. the Defendant pleaded that before the end of the said Easter Term the Plaintiff did not purchase any Writ of Covenant pro fine leuand wherupon a Fine might be levied according to the course of Law The Plaintiff replyed that the fifteenth of April the said Thomas for money enfeoffed another of parcel of the Land that was to be conveyed by the Fine And that the said Thomas and Elizabeth his Wife have not any Estate or Interest in the said parcell so conveyed wherof they may levy a Fine And upon this Replication the Defendant demurred And upon argument at Bar by Serjeant Harvey for the Plaintiff and Serjeant Henden for the Defendant the first question was If the Bar be good Intant que le Defendent est oblige That Thomas Harris and Elizabeth his Wife shall levy a Fine he ought to procure that to be done at his perill semble al 4 H. 7. 3 H. 6. Condition that John S. a stranger shall take Alice D. to his Wife before Mich. If I. S. refuse the Obligation is forfeited And therfore it was urged that he ought to procure a Writ of Covenant at his perill But the Lord Hobart held that the Plaintiff ought to procure the Writ of Covenant to have made himself capable of the Fine And he put this case if I. S. be obliged that I. D. shall enfeoff I.N. the Obligee such a day I. N. ought to be upon the Land or ought to make a Letter of Attorney to receive the Livery or otherwise the Obligation is not forfeited And when a Covenant is to levy a Fine he which is to do the first act c. vide Palmers case Coke lib 5. fol 127. 4 E. 3. 39. 18 E. 3. 27. 11 H. 4 18. 21 E 4. 2. The second question was whether this Obligation be ferfeited being that the said Thomas Harris had made a Bargain and Sale of part of the Land to another before so that he was disabled at the time to levy a Fine And we all agreed that the Condition was impossible and is all one as if he had disabled himself afterwards as in Maynes case Coke lib 5. 21. where the Covenant was to make a new Lease upon surrender of the former Lease there if he which ought to make the new Lease disables himself to make a new Lease and to accept of the Surrender by granting the Reversion for years he ought not to do the first act viz. Surrender but the Covenant is broken And in this case it is all one as if one who had granted the Reversion for years or for life Covenant that he upon Surrender will make a new Lease he had broken this Covenant being disabled at the time And it was said and agreed by the Court that the Fine to be levied ought to be an effectuall Fine which might operate to convey the Land according to the Covenant Burnell and Brook One case was vouched in this case to be between Burnell and Brook where the Condition was that he should acknowledge a Iudgment and a good Bar that the Plaintiff had not purchased an Originall Writ for he ought to make himself capable of Iudgment acknowledged to him vide 34 E. 1. Fitz Debt 164. A Condition that if he present the Obligee to a Benefice that then c. Though the Obliges taken Wife by which he is disabled to take it put he ought to present and offer him to the Ordinary to refuse him Vide 28 E 4. 6. where parcell of the Land was recovered yet Debt lies for entry Damages recovered in a Court of ancient Demeasn which case was then vouched but it is not much to the purpose And afterwards we all agreed that the Plaintiff should have Iudgment Hord versus Cordery A President was shewn which was thus IN the County of Wiltes Richard Hord Clerk Vicar of Chute Case brought an action upon the Case against William Cordery and Bridget his Wife and Dorothy Cox Conspiracy for one malicious confederacy of charging the Plaintiff with the felonious Raye of the said Dorothy Cox and procured him to be examined before Sir Anthony Hungerford a Iustice of Peace and therupon was bound in a Recognizance to appear at the next generall Sessions of the Peace at Devises and from thence was bound over to the Assises And there the Defendants An 15 Jac before Sir Thomas Flemming and Tanfield Iustices of Assise preferred one Bill of Indictment of their malice aforesaid and by the procurement of the said William and B. the said Dorothy shewed to the grand Inquest whether it were true or false And the Iury perceiving the malice and the falsiâ—y did not find it to be true and gave their Verdict by Ignorance Vpon Not guilty pleaded by William and Bridget and non informatus by Dorothy the Iury found for the Plaintiff and after a Writ of Error An 15 Jac and 20 marks costs for the delay Ego vidi recordum est bien pleivement aver que il ne ravish le feme est ent Hil. 10 Jac. Rot. 92. 1. 1. Trin. 20 Jac. Hawkins versus Cutts HAwkins brought an action upon the case against Cutts Case and declared that he was of good Fame c. and for the space of eight years last past had used the Art and Mystery of a Baker Pandopatoritae and had gained his living by buying and selling the Defendant said of him He is a Bankrupt Knave And not guilty Words it was found for the Plaintiff And in Arrest of Iudgment it was moved that it is not shewn that he was a common Baker neither had used the Trade but used the Art and Mystery of a Baker And there is as Serjeant Hobart said as much skill
to passe without pain then to indite the Offenders of whom great part be flock of the same Country c. And upon Nil debet pleaded it was found for the Plaintiff And it was moved by Serjeant Bawtry that the Writ had recited the Statute otherwise then it was for the Writ saies Indicari pro indictari and it ought to be written by this Abbreviation Indicāuri And the word Indictari is a word by it self and he resembled it to Freemans case Coke lib 5. fol 45. Fecit vastum vendicōnem destrictionem for destructionem and not amendable Also Coke lib 4. S. Cromwells case upon the Statute of Rich 2. de scandalis magnatum the word Messoignes is said Messuages and not amendable Harris answered that the Cursitor had a Note drawn which was well and it was only his mis-priston Secondly that there is no such Passive Verb as Indicari and so being insensible shall be amended And for that vouched 11 H 6. 2. 14. adjudged upon the Statute of forging of false Deeds Immaginavit were it should be Immaginatus est and amended 3. This Abbreviation is sufficient Also he said that it is only the preamble of the Statute wherupon the action is not founded but upon the body of the Act. Sir George Wrothies case in Ejectment the word Demisit was amended and made Divisit Brickhead against the Bishop of Yorke and Cooke for the Ticaridge of Leeds the Writ was Vacariam and for that the Cursitor was examined and his Instruction being Vicariam it was amended there An 14 Jac. 1. The Lord Hobart inclined strongly that it should be amended by the instruction which was delivered to the Cursitor but as to that Winch and I differed because that this matter of Instruction is not a thing which ought to be informed by the party as all matters of fact are As whether it be a Vicaridge or a Church or in debt for twenty pounds in the Instruction and he make it thirty pounds that shall be amended But in this case it is matter of skill and no difference between this case and Freemans case And in debt if he had Instruction in the Debet and Detinet and makes the Writ in the Detinet only that shall not be amended 2. The Lord Hobart inclined that this recitall is but in the Preamble and may be omitted to which we disagreed he inclined that the Abbreviation was sufficient to supply all the word This Case being long debated the Court Ex assensu ordered that the Defendants should give 80 l. to the Plaintiff Mich. 10 Jac. Rot. 641. Poole versus Reynold IOhn Poole brought a Prohibition against Richard Reynold Farmer of the Moyety of the Rectory of Colleton Prohibition Prescription to have Deer out of a Park in discharge of all Tithes and after the Park is disparked with the Chappell of Shute annexed to the said Rectory And the Surmise was that of time wherof memory within the Parish of Colleton there was a Rectory appropriate and the Cappell of Shute annexed therto Et una Vicaria perpetua ejusdem Ecclesiae de Colleton dotat And wheras the said John Poole for six years last past had occupied one house a hundred acres of Land twenty acres of Meadow forty acres of Pasture called Shute Park in Shute aforesaid within the Parish of Colleton which said Tenements were anciently a Park and now dis-parked which Park De temps d'out memory c. untill the dis-parking therof was used and filled with Deer and severed from other Land and was dis-parked An. 10 Eliz. and converted into the said house a hundred acres c. And that all the Occupyers of the said Park called Shute Park de temps d'out memory c. untill the dis-parking had paid to the Vicar there his Farmer or Deputy one Buck of the Summer season within that time upon request and one Doe of the Winter season within that time c. in discharge of all Tithes of the said Park untill the dis-parking and after the dis-parking in discharge of all Tithes of the said Tenements which they had accepted for all the time aforesaid untill the dis-parking and after or otherwise agreed with the Vicar for them And traversed this Prescription and found for the Plaintiff And now in Arrest of Iudgment it was moved by Henden that this Prescription extends to the Land quatenus it is a Park and that being destroyed the Prescription is gone for a Tenurs to cover a Wall or Thatch an house if the party destroy or pull it down the Tenure is extinct 32 E 14 Avowry And it shall be presumed that this was by grant when it was a Park which is collected by the thing which is to be paid and if it be to be paid or delivered out of the Park then it is determined vide Lutirels case Coke lib 4 Also this Prescription is against the benefit of the Church and shall not be enlarged And the Wood which is sold out of the Park shall not be discharged 14 Jac. in Conyers case in this Court Conyers case Prescription that the person had two acres of Meadow given in discharge of all Tithes of Hay ground viz. of all the Meadow in the Parish it any arrable Land be converted into Meadow it extends not to discharge that vide Lutirels case Coke lib 4 fol 86. That an Alteration in prejudice of the party determine the Prescription but vide the principall case there adjudged that building of new Mills in the same place and converting of Fulling Mills into Corn Mills alter not the Prescription vide Terringhams case lib 4. He which hath Common purchased part of the Land all is extinct for it is his own act And he cited a case which was in this Court argued at Bar and afterwards at Bench between Cooper and Andrewes Mich 10 Jac Rot 1023. for the Park of Cowhurst vide 32 E 1 Fitz avowry 240.5 E 2. Fitz annuity 44.20 E 4.14.14 E 4.4 But this case was adjudged for the Plaintiff Quod stet prohibitio and that which is by the name of Park is for the Land and is annexed to the Land by the name of Park if the Prescription had been to pay a Buck or a Doe out of the Park then it would alter the case But it is generall and had been paid also after the Park dis-parked viz. the tenth of Eliz. And the case of Cowper and Andrewes was the third shoulder of every Deer which is killled in the Park and two shillings in money and that case was never adjudged Hil. 10 Jac. Meredith versus Bonill Case HUgh Meredith a Iustice of Peace in the County of Monmouth brought an action upon the case against Bonill Words for these words I will have him hanged for robbing on the high way and for taking from a man five pounds and an Horse After Verdict for the Plaintiff it was moved in Arrest of Iudgment that the words were not actionable for they
are not Affirmative or Positive but a supposition only as if he had said Nowels case I will indite him for such a matter it was vouched to be adjudged 51 Eliz. in Nowels case that to say of an Attornaâ—â— That he was Cooped for forging Writs maintain an action And 14 Eliz. He is infected of the Robbery and he smelleth of the Robbary adjudged actionable In balls case There is never a Purse cut in Northamptonshire but Ball hath a part of it will not bear action But the Court would not declare their opinion Quia sub spe Concordiae Griggs Case GRigg which is the Examiner at Chester preferred there this Bill in the Chancery vocat the Exchequer Prohibition â—i Chester against one which inhabite within the same County and another which inhabite in London being executors to one to whom the said Grigg was indebted by Obligation which Obligation was put in suit in the Court of Common Pleas and there proceed to processe before the Bill exhibited and the Bill concern equity of an Agreement that the Testator had promised that one Robert Grigg should assign a lease of Tithes to the Plaintiff in consideration of his entry into the said Obligation and if he could not procure it that then the Obligation should not be prejudiciall to him and he which was distributing in Chester answered therto And an Order was made by Sir Thomas Ireland Vice-Chamberlain that Processe should be awarded to him which dwelleth in London And an Inquisition was granted to stay the proceedings at Common Law And afterwards upon the motion of Serjeant Hitcharâ— Sir Thomas Ireland was in Court and shew all that he could to maintain the Iurisdiction viz. That the Contract was made in the County Palatine and that the priviledge pursued the Plaintiff and ipse qui est reus non potest eligere c. Yet it was resembled to ancient Demesn and Guildable And by Lord Hobart he which inhabit at Doveâ— by this way may be inforced to come and answer to a Bill in Chester which would be infinite trouble and the matter is transitory And it was resolved that the Court of Chester had not power in this case but it belonged to the Chancery of England And a Prohibition was granted Hil. 20 Jac. ONe case was in the Kings Bench viz. Trespasse Baron and Feme brought in action of Trespasse Quare clausum fregit Trespasse by Baron and Feme for breaking the Close of the Baron for the Battery of the Wife and for Battery of the Feme the Defendant pleaded a License to enter into the Close made by the Baron and not guilty as to the Battery And the Court was moved in Arrest of Iudgment because the Husband and Writ could not ioyn for the weaking of the Close of the Baron the Writ shall abate for all But the Lord chief Iustice and Iustice Dodderidge were of opinion that the Plaintiff should have Iudgment And it seems that the Law is clear accordingly vide 9 E 4. 51. Trespasse by the Husband and Wife for the Battery of them both the Iury found so much for the Battery of the Husband and so much for the Battery of the Wife and so Damages assessed severally because the Wife could not soon with the Husband in an action for the Battery of the Husband for that part the Writ shall abate and for the Battery of the Wife they shall recover for for that they ought or joyn in an action vide 46 E 3. 3. Baron and Feme brought Trespasse for the Battery and Imprisonment of the Wife and the Writ was ad damnum ipsorum and yet good vide 9 H 7. in the case of Rescous and 22 E 4. 4. there is a good diversity when the Writ is falsified by the shewing of the party himself and when it is found by Verdict And Iustice Haughton and Iustice Chamberlain were of opinion that the Writ should abate for it is apparent that as to the Trespasse Quare clausum fregit the Wife had no cause of action But this case being debated at Serjeants Inn in Chancery Lane at the Table the Lord chief Baron was of opinion that Plaintiff should have Iudgment for that part and he held the Writ good in part and Reddenda singula singulie Meâ—enest issint as it seems no more then in the case of 9 E 4. for there the Writ shall avate for part And if an action of forgery of Deeds be brought against two for forging and publishing and found that one forged and the other published the Plaintiff shall have Iudgment Howell versus Auger Trespasse IN an action of Trespasse brought by Noy Howell against Auger for breaking of a house and five acres of Land in Fresham upon Non Culp pleaded the Iury gave a speciall Verdict Devise of a Fee after a Fee Robert Howell seised of the Land in Question and of other Land by his Will in writing devised this Land to Dorothy his Wife for life and devised this Land to Thomas Howell his younger Son to him and his Heirs in Fee under the Condition which shall be afterwards declared And the other Land was also devised to Dorothy for life and to the Plaintiff and his Heirs in Fee under the Condition hereafter limited If Dorothy died before the Legacies paid then he will that they shall be paid by Noy and Thomas his Sons portion-like out of the Houses and Lands given them And if either of my Sons dye before they enter or before the Legacies paid or before either of them enter Then I will that the longer liver shall enjoy both parts to him and his Heirs And if both dye before they enter then his Executors or one of them to pay the Legacies and to take the profits till they be paid and a year after and made Dorothy his Wife and Christopher Roys his Executors and died Dorothy entred the Plaintiff Noy by his Deed In 33 Eliz. in the life of Dorothy released to Thomas all his right c. with Warranty Release of Lands devised before they be vested Thomas by his Will devised the Land for which the action is brought to Agnes his Wife and died in the life of Dorothy and before Legacies paid Dorothy died and Agnes entred and took to Husband Henry Ayleyard who leased to the Defendant upon whom Noy entred and the Defendant re-entred And Si super totam Materiam c. And this Case was well argued at Bar in two Terms and the first question was If this Devise of a Fes after a Limitation be good or not much was said for it and they relyed upon a case which was adjudged in the Kings Bench between Pell and Brown of such a limitable Fee Pell and Brown And many Cases put that this operate as a future Devise Executory as well as one may by his Will Devise that if his Son and Heir dye before he marry or before that he come to the age of
font and twenty years that then I. S. shall have the Land and it shall be good vide Dyer 33. Coke lib 10.46 Lampets case But Tuesday the eleventh of February the Lord Hobart by our direction because that we were streightned of time and Howell was so importunate for Iustice that we could not argue delivered the opinion of the Court that Iudgment should be given for the Defendant And he declared that as to the point of a Fee-simple which he called the mounting of one Fee-simple upon another we now declared no opinion But we all without difficulty resolved that this release of Noy be it a Condition or not had discharged it And as to him it is an Interest used by the Devise but not executed untill it happen And therfore in Lampers case there the Release discharged it for there he had no Title executed but vested and commenced and so may have Noy Howell the Plaintiff in this case and it is not like to an Heir in the life of the Father for be is a stranger and he hath no Title at all and yet his Release with Warranty bars him and here this Release is accompanied with Warranty of which nothing was spoken Also as to Noy it is a Condition according to the words of the Will and therfore sans question that Noy had barred himself The Vacation after Hil. 20 Jac. MEmorand That on Munday the seventeenth of February at Serjeants Inn upon the assembly of all the Iustices to take consideration upon the Statute of 35 Eliz. cap. 1. for the Abjuration of Sectaries the Atturney-generall and Serjeant Crew being there Resolutions upon the Statute of Eliz. cap. 1. concerning Sectaries after the perusall of the Statute and the Continuances therof it was first upon debate considered whether this Statute was in force or discontinued and upon the perusall of the Proviso in the Statute of Subsidy and upon reasoning the matter these Points were resolved 1. If a Parliament be assembled and divers Orders made What shall be said a Session of Parliament and a Writ of Error brought and the Record delivered to the higher house and divers Bills agreed but no Bills signed That this is but a Convention and no Parliament or Session as it was An. 12 Jac. in which as it was affirmed by them which had seen the Roll it is entred that it is not any Session or Parliament because that no Bill was signed vide 33 H 6 Brook Parliament 86. every Session in which the King signes Bills is a Parliament 2. It was agreed that if divers Statutes be continued untill the next Parliament or next Session and there is a Parliament or a Session and nothing done therin as to continuance all the said Statutes are discontinued Beriatim Jones Chamberlain Hutton Denham Haughton Dodderidge Winch and Bromley declared their opinions that this Statute is discontinued And that the Statute of Subsidy is a Parliament and that every Parliament is a Session but not e converso for one Parliament may have divers Sessions as the Parliament 1 Jac had four and ended An 7 Jac. vide 33 H 6. Br. Parliament 86. And that this Proviso is not to any other purpose but to continue their proceedings in the same Estate as if this Act had not been made and if this Proviso had not been then this Statute had been discontinued by this act of Subsidy but when this ends and is determined then is the Session ended then it is a Session scilicet a Parliament which ought to be pleaded at the Parliament holden c. and all the Commissions of Subsidy are accordingly and the Proviso call it a Session Then this being done the Lord chief Baron did not deliver any opinion for he said that he had not considered the Statute and afterward it was desired that the Lords would deliver their opinions and therupon the Lord Hobart declared his opinion accordingly That it seemed to him that it was a Session and that it was not safe to meddle with such Law and that he would never refuse to declare his opinion with his Brethren After the Lord chiefe Iustice Ley made a long discourse concerning the purpose and intent of Parliament scilicet That it was not their purpose to destroy so good Lawes and therfore it was not any such Session as was within the intent of the preceding Parliament which was that these should determine when it is a Parliament or Session in which good Lawes are made And Doderidge said that it was fit to see the Commission and that that which hath been said was not to bind any one but every one spoke what then he was advised of and peradventure might change upon better consideration And afterwards upon Tuesday on an Assembly of the two chief Iustices the chief Baron Iustice Haughton Baron Denham Hutton Chamberlain and Jones the Attorney-generall brought the Commission de 12 El. June 1. and that had these words Pro eo quod nullus Regalis Assensus nec responsio per nos praestat fuit nullum Parliamentum nec aliqua Sessio Parliamenti lata aut tent fuit They have power to adjourn this Parliament thus begun And the Commission to dissolve this Parliament 38. Feb. An. 19 Jac. had the same words saving that he recite that he had given his Royall assent to an act of Subsidy by which was intended that it should not be a Session And upon view of the Commission the Lord chief Iustice moved that the King was mistaken in this that he had given power to dissolve this Parliament which had not any Session and if it be a Session then he had no power to dissolve it and then it is as it were a recesse and a Parliament cannot be discontinued or dissolved but by matter of Record and that by the King alone and if the Parliament yet continue then this Statute also continue during the Parliament by the Proviso but that would not serve for first it is against the intent of the King and against his Proclamation And also the case is truly put in the Commission as to the matter in fact and he is not mis-informed but mistaken in the Law and then the Commission for the dissolving is good semblable to the Lord Shandoi's Case and other Cases vide in Cholmleys case But because that all the Iudges were not at this Conference therfore it was deferred untill the next Term and in the interim the Grand Secretary and the Attorney-generall were to inform the King that the Statute is obscure and had not been put in ure and that we could not agree Mich. 20 Jac. Rot. 2805. Bawtry versus Skarlet Sussex JOhn Bawtry Clerk Case brought an action upon the case against Benjamen Skarlet one of the Attorneys of this Court by Bill and count In consideration that the Plaintiff will confesse Judgment the Attorney promise to defer the entry of the Judgment c. that wheras one William Carter Trin. 20 Jac.
Copyhold to one which is admitted Copyholder extinguisheth the Right of the Copyhold by Deed And if a Copyholder release to the Lord that extinguisheth the Copyhold although it be contrary to the nature of a Release to give a possession It was agreed here that this Copyhold is not extinct but the Lord which is Lessee for years Dominus pro tempore may grant it by Copy de novo Mich. 21 Jac. Aris versus Higgins ARis brought an action upon the case against Higgins for saying these words He is a Theef and hath stol◠my Corn Case Words and made me no satisfaction And it was found for the Plaintiff and afterwards moved in Arrest of Iudgment that these words were not actionable for Verba ambigua in mitiori sensu sunt accipienda And therfore Coke lib 4. fol 19. Thou art a Theef for thou hast stoln Apples out of my Orchard or thou hast robbed my Hop gound the latter words qualifie the generality of the former Also an Innuendo will not make either the person or the matter certain Coke lib 4. fol 10. Barham did burn my Burn Innuendo a Barn with Corn not actionable and that he had not satisfaction that proves that it was for Corn growing for otherwise if it were Felony the party shall not have satisfaction But Iustice Winch was of opinion that the action lay and that the words He is a Theef he hath stoln my Corn are both actionable and not like to Robbing my Orchard or stealing my Apples in my Orchard for Apples in an Orchard are commonly upon the Trees And as to the words Thou hast made me no satisfaction these do not qualifie the former words Thou art a Theef and hast stoln a bundle of Fitches adjudged actionable Iustice Jones was of the same opinion for stealing of his Corn shall be intended of Corn severed for otherwise it is acres of Corn or Corn growing Serjeant Hobart was of opinion that the words shall be intended in mitiori sensu And we all agreed that that which qualifies or extenuates words ought to be full and not ambiguous Rud versus the Bishop of Lincoln Quare Impedit IN a Quare impedit brought by Edward Rud against the Bishop of Lincoln Lord keeper Drury and Stubbin for the Church of Dackworth upon Evidence at Bar these Points were resolved in the Court. Quare Impedit 1. When one usurps upon a Lease for years that this Usurpation gains the Fee and puts the very Patron out of possession And though by the Statute of Westminster 2. cap. 5. he in reversion after the Lease may have a Quare Impedit when the Church is void or may present and if he present and his Clerk be admitted and inducted that then he is remitted yet untill it be recovered or his Clerk be in the Usurper hath the Fee and against him lies the Writ of Right and that descends to his Heirs and his Wife shall be endowed 2. When the King present one by Laps not having any Title of Laps and a recovery is had against him in a Quare Impedit by one which had no Title If this gain the Patronage And it is clear the King had no Title to present and although he which comes in by such Laps is not Incumbent nor gains the Patronage yet he is Incumbent as to all Ecclesiasticall matters to have Offerings Tithes c. for it is only as to the rightfull Patronage no gaining of the Patronage but he may present vide Greens case Coke lib. 6. fol. 29. 3 It was resolved by the Court that when one recover in a Quare Impedit although that no Writ be awarded to the Bishop yet if upon non presentment the Bishop will admit and institute his Clerk and he is Inducted And that is good as wel as a man may enter without a Writ of Habere factas seisinam after recovery so may the Patron which hath recovered in a Quare Impedit present and that being accepted and Institution and Induction pursuing therupon it is good 4. Also whore the Issue was whether the Church was void at the time of the presentment of Palu or not and it appears that the case was that Thomas Rud after the Church was void by the death of Clement Rud and after that one Taxall was presented by Laps and Admitted Instituted and Inducted where the King had not Title the said Thomas Rud having good Title to present made a writing of presentation of the said Paul and after be it then exhibited to the Bishop or no The said Thomas Rud brought a Quare Impedit and recovered and afterwards this Presentation is exhibited to the Bishop and he admit institute and makes a Mandate for Induction which also is afterward done accordingly Now the Issue being whether the Church was void at the time of the Presentation of Pain the time of this Presentation shall now be the time of exhibiting therof after the Judgment And then as to Rud which had recovered against him the Church was then void for whensoever the Bishop had the Presentation exhibited at that time he ought by the Law to admit institute and give a Mandate for Induction the then Church is void But after the Judgment the Bishop ought to accept that and admit and institute Ergo at that time the Church was void and that is to be the time of the Presentation 5. When one having good Title to present and an Incumbent by Usurpation is admitted instituted and inducted and after that the Patron present and the Bishop refuse and after the Patron recover and then he which had this Presentation exhibite it to the Bishop this is now a good Presentation and the Patron cannot revoke or give him a new Presentation but if the Patron before the death of the Incumbent makes Letters of Presentation that is void because he had no Title to present Hil. 20 Jac. Rot. 1942. Pleydell versus Gosmoore Wilts EDmond Pleydell brought an action of Trespasse against Richard Gosmoore Trespasse Where one may fetter an Estray and William G. for the taking and chasing of a Colt and fettering of him with a Continuando as to the fettering The Defendant convey the Mannor of Sharston to Francis Earl of Hertford And that the Earl and all those whose Estates c. had the Estrayes which come within the said Mannor 〈◊〉 that the Tithing-men for the time being seised the Estrayes and proclaimed them at the next Market or Fair c. and kept them untill they be claimed or forfeited And that he was a Tithing-man and seised this Colt as an Estray and because this Colt was so feirce c. that he could not be kept in Pasture he fettered him and kept him in his Pasture within the Mannor and that for the space of two weeks and the Plaintiff having notice claimed him and had him delivered c. The Plaintiff demurred generally Attho said that he had not avorred that he continued feirce
c. but at the time of taking was so To this it was answered That the Count chargeth not the Defendant absolutely with all the time but Diversis diebus vicibus And also he justifie for two weeks which is the same Trespasse Then upon the matter the question is if he which hath Estrayes or Waifes if he seise an Estray qui est ferox whether he may fetter such Estray It was agreed by the Court that when an Estray comes within a Mannor and walk there this is a Trespasse and the party in whose Land the Estray is Damage-feasant may chase him out of his ground Also it was agreed that untill the Lord or his Bayliff or Tithing-man seise the Estray that shall not be said an Estray but when the Lord seise than he hath the Commencement of a property therby and he is chargable against all others for the Trespasse which this Estray doth and if this Estray within the year estray out of the Mannor the Lord may chase back the Estray untill he be seised by another Lord which hath Estrays But if he be seised by another Lord then the first hath lost all his possibility of gaining the property and the other Lord ought to proclaim it de novo It was moved that if a Lord of a Mannor which hath Estrayes and hath seised an Estray suffer that Estray by negligent keeping to stray away and never can be found again the Owner may have an action upon the case of Trover and Conversion against the Lord Quare vide 44 E 14. there the Lord seised an Asse for an Estray he to whom the property did belong came and challenged the Estray the Lord may detain him untill he tender sufficient recompence for the Pasture vide purc 20 H 7. 1. by Vavisor and 39 E 3. 3. That the Owner cannot take an Estray untill he tender recompence likewise the Lord after seisin of the Estray if he took him not Damage-seasant may have Replevin and he ought to make him amends The Lord cannot work the Estray but may keep him in his Stable And if the Sheriff upon a Fieri facias fetter the Colt and after the Defendant redeem him for money he shall not have trespasse vide 6 E 3. 8. it is not alledged that the fettering was to any damage of the Estray vide 22 Ass 56. Entred Pasch 18 Jac. Rot. 650. Treherne versus Cleybrooke Debt IOhn Treherne brought an action of Debt against Cleybrooke and count of a Lease made by John Treherne Grand-father to the Plaintiff of Lands in S. Olives in Surrey and intituled himself by the Will of the Grand-father by which he devised the Lands to the Plaintiff in tail Devise the remainder over to Leonard Vpon Nil debet pleaded the Iury found specially scilicet the Devise of the Reversion in tail the remainder over to A. in tail the remainder of one Moyety of the Land to one Daughter in tail and the other Moyety to another with Proviso that for the raising of a Stock for John Treherne the Grand-child when he come to the age of one and twenty years or if he dies for the raising of a Stock for Leonard in like manner he willed that Edward Griffin and Anne his Wife shall take the profits and shall receive all the rent of the Land devised to John Treherne to their own use untill he come to the age of one and twenty years upon Condition and so as the said Edward Griffin and Anne shall within three months after the death of the Testator become bound to his Overseers in an Obligation with such penalty as the said Overseers shall think fit to pay to the said John or if he dye without Issue to the said Leonard within three months after he come of age such a summ the Condition to be drawn and devised by his Overseers And if Edward Griffin and his Wife refuse then the Overseers should receive the Rent and Profits to their proper use But the Condition appoint not to whom the Overseers shall be bound And made Edward Griffing and William Iremonger his Executors and I. and others Supervisors and died and that within fourteen daies after the death of the Testator the Will was read to the said Overseers And that they did not devise or draw within the time appointed any Obligation nor tendred any within that time and that notice therof was given to the Defendant and that the Rent was demanded and the Reversion claimed by the Plaintiff sed utrum c. Vpon the Argument of Serjeant Harris which argued for the Plaintiff and vouched 21 H. 6. 6. That when one made Executors and also Coadjutors the Coadjutors are not Executors and that it is a Condition precedent vide 14 H 8. 22. Wheelers case 46 E 3. 5. Truels case Coke lib 5. 127. Palmers case 4 E 3. 39. 11 H 4. 18. And because that in this case the said Edward Griffin and his Wife are to have benefit they ought to require them to nominate the summ But because it appears to the Court that this Action is founded upon a Contract in Law therfore it ought to be brought in Surrey as it was agreed in Ungle and Glovers case An 36 Eliz vide Coke lib 3. fol 23. Nota that the Iudgment is speciall for this cause and no costs upon the Statute of 23 H 8. for the Defendant for the Statute saies that upon a Contract made by the Plaintiff the Defendant shall have costs and yet upon this Statute if the Executor be non-suited or Verdict given against him he shall not pay costs Where costs shall not be against Executors by common experience alwaies after the Statute and yet he shall have costs if he recover And in this case the Plaintiff shall have costs if he recover and yet it seems upon this Iudgment the Defendant shall not have costs against him and especially because that they are expresse words in the Statute that the Defendant shall have costs after Non-suit or lawfull tryall against the Plaintiff and here is neither Non-suit nor lawfull tryall vide Statute 4 Jac cap. 3. seems to be full in all cases where the Plaintiff shall have his costs upon Non-suit or when the Verdict passe against him the Defendant shall have costs yet it hath been taken that it shall be intended in actions of Debt upon the Contract of the Plaintiff himself for Executors neither upon Verdict nor upon Non-suit shall pay any costs because that their actions are brought upon Debts or Contracts not made between them and the Defendants vide the Statute of Glocester cap 1. that where a man recover damages there also he shall have costs Hickson versus Hickson HIckson Demandant in Dower against Hickson They are at issue the Tenant offer to be essoined upon the Venire facias and for want of the Adjornment therof by the Demandant Essoin shall not be allowed in Dower the Tenant had procured a Non-suit and yet the
Demandant proceeds with the Issue And at the Nisi prius the Tenant relying upon the Non-suit it appeared not by whom the Petit Cape is awarded And now upon motion by Serjeant Henden who relyed upon the Non-suit and that the Essoin was allowable by the Statute of Westminster 2. post exitum habeat unicam Essoniam but it was ruled and the Prothonatories all said that it had been the constant use that no Essoins are allowed in Dower which is festinum remedium vide Stat. 12 E 2. cap 1. hath tolled the Essoin of the Service of the King in many cases and given to the Demandant in many cases power ad callumpniand Essoniam And the words of the Statute are Non jacet in breve de dote quia videtur deceptio prorogatio juris vide Dyer 324. There after the Issue joyned Essoin at the day of the Venire facias though no Venire facas be sued out but only awarded upon the Roll. Mich. 21 Jac. Linleys Case An Information against an under Sheriff for taking of 30 s for making of a Warrant upon a Capias ad satisfaciendum AN Information was exhibited against Linley under Sheriff to Sir Gny Palmes Sheriff of York vpon the Statute 32 H 6 and it was shewn that he being under Sheriff a Capias ad satisfaciendum was delivered to him to Arrest one Francis Lancaster upon a Iudgment for a hundred and three pounds The Defendant Colore officii took of the Plaintiff thirty shillings for making of a Warrant upon this Writ against the form of the Statute wherby he hath forfeited forty pounds Vpon not guilty pleaded and Verdict against the Defendant it was alledged in arrest of Iudgment that the making of a Warrant upon a Capias ad satisfaciendum which is for Execution is not within the Statute because the Statute speaks first of Fees to be taken upon the Arrest of the party when he is bailed viz. twenty pence to the Sheriff and four pence to the Baily then appoints that the Sheriff lets to Bail every one that is taken upon Bill or Plaint besides them which are taken for execution Outlawry c. and then comes the clause That nothing shall be taken for making of any Precept or Warrant but four pence and provision for the Obligation Condition and Fee and that all Obligations taken by any Sheriff Colore officii that these shall be void and that for every offence committed against the Statute he shall forfeit forty pounds The Lord Hobart inclined that this making of the Warrant upon the Capias ad satisfaciendum and the taking of thirty shillings is within this Statute and he resembled it to Dive and Maninghams case in Plowden where an Obligation taken of one in Execution is void by this Statute vide that the clause in this Statute for the Obligation is absolute without any restraint but that all obligations taken by colour of his Office with any other Conditions are made void This taking of thirty shillings for making of a Warrant upon a Capias ad satisfaciendum is extortion at the Common Law for which he may be indited but whether it be within this Statute or no is doubtfull Another Exception was taken to this Information That it doth not appear by this that this Writ of Capias was directed to the Sheriff of York or to any other Sheriff And then admitting this to be a Capias ad satisfaciendum directed to the Sheriff of Lincoln and it is delivered by an ignorant hand to the Sheriff of York to make a Precept therupon and he makes a Precept and takes thirty shillings this is not within the Statute also Colore officii will not serve for it is generall and it ought to be shewn that it was a Capias and to whom it was directed And although that all Processe should be generally directed to the Sheriff yet some may be to the Coroners or some by the mis-prision of the Clerks may be omitted as Jacobus Dei gratia c. tibi precipimus and say not Vice-Comiti Eboracensi salutem And an Information ought to be certain to all common intents and it is like to an Indictment And in an action upon the case against an Attorney because that he Corruptive and in deceit of the Plaintiff and in his name had acknowledged satisfaction to his damage and saies not wheras Revera non fuit satisfactus that is not good And the Court was of opinion for this cause that the Plaintiff should not have his Iudgment Bickner versus Wright AN action upon the case was brought by Richard Bickner against John Wright Case Prescription for the making of a Cony-borough in damage of his Common The Plaintiff prescribe to have Common omni tempore anni and saies not Quolibet anno And after Verdict adjudged good Trin. 22 Jac. Goldenham versus Some GGoldenham brought a Writ of Dower against John Some Dower Judgment in Dower upon Voucher who vouched the Heir of the Husband who entred into the Warranty and said that he had no Assets The Demandant had Iudgment for her Dower because nothing is said to the contrary against the Tenant with a Cesset executio untill the Warranty be determined And the Tenant which vouched when the tryall was at Assises made default but it was said that it should be the default of the Vouchee for he was dead before the Assises And now it was moved that the Demandant might have execution And by Henden it was said that the Voucher is not determined for he might vouch the Heir of the Vouchee But it seemed that the Voucher was determined and that he shall have the benefit of his Warranty by Scire facias out of the Iudgment but the Court doubted if the Plaintiff shall have Iudgment against the Vouchee conditionally if he had Assets if not against the Tenant or absolutely vide 3 H 6. 17. Dyer 202. there it is conditionall vide Dyer 256. there the Iudgment is against the Tenant upon Vouchee of the Heir in Ward to the King and that presently with a Cesset executio vide 46 E 3. 25. If the Vouchee be Counter-pleaded the Demandant shall have Iudgment presently vide 48 E 3. 5. Br Voucher 38. the Iudgment shall be against the Heir conditionally which is vouched in Dower vide 2 H 4. 8. there upon the Voucher of the Heir which makes default upon the Summons sequatur suo periculo the Iudgment is against the Heir conditionally if not against the Tenant and so Iudgment against one not party to the Suit and which never appeared And in this case the Iudgment against the Tenant with a Cesset executio may be good because that it doth not appear by any of their Pleas but that the Demandant is confessed to have her Dower none of them say that he is ready to render her Dower as the Heir ought when he enter into the Warranty This Term Serjeant Finch moved the case
and prayed Iudgment for he said the ancient Books were many for Iudgment conditionally but some to the contrary viz. when the Heir is vouched within the same County and is within age there Iudgment presently against the Tenant with a Cesset executio And when the Heir enter into the Warranty and is taken to render the Dower there is Iudgment against the Heir and that the Tenant shall hold in peace But he said that Mich Ashburnham against Skinner 38 39 Eliz. Rot. 1208. Mary Ashburnham brought Dower against Skinner who vouched the Heir of the Husband in the same County who presently entred en le garranty and said that he had no Assets there the Iudgment was given presently against the Tenant with a Cesset executio And after the Issue was tryed and found that the Heir had not Assets and the Wife had Execution but it was said that Error was brought therupon yet the Feme continued the Possession Henden said that the Tenant otherwise shall lose the benefit of his Warranty vide 13 H 4. Judgment 241. The Court adjudged this case for the Demandant upon view of the said President of 38 39 Eliz. And as this case is the Demandant upon necessity ought to have Execution because that the Tenant which ought to have the benefit of the Warranty made default And if it was so that the Vouchee was dead the Tenant shall not have any other Voucher for the Dower ought not to suffer delay And likewise when Iudgment is given against the Tenant with a Cesset executio all is one as a conditionall Iudgment against the Tenant for if Assets be found then Quia compertum est c. with Iudgment against the Heir and that the Tenant shall hold in peace It was objected that Iudgment ought to be conditionally at first and not to give one Iudgment against the Tenant and afterwards if Assets be found another Iudgment against the Heir but that is no inconvenience Some say that when such Iudgment is given against the Tenant with a Cesset executio there if Assets be found the Demandant shall not have execution against the Heir but against the Tenant and he shall have ad valentiam Quaere Potter versus Browne Case Words NIcholas Potter brought an action upon the case against Browne for these words spoken of the Plaintiff He is as arrant a Theef as any is in England and he broke up the Plummers Chest with other mens Tools which stood in my Lord of Suffolks house and took money out of it The Defendant pleaded Not guilty and Verdict for the Plaintiff And upon the motion of Henden to Arrest and Richardson to have Iudgment The Court resolved that the Plaintiff should not have Iudgment The first reason is because that there is not any affirmative directly that he is a Theef but as arrant a Theef as any is in England And avers not that there is any Theef in England And the Law will not presume any thing that is evill Iniquum in lege non presumitur And as Lacies case was He is as great a Theef as any is in Warwick Goal He ought to aver that there was a Theef there at the time of the speaking of the words And it is the same reason in this case Then the latter words are ambiguous and admit of a double interpretation and the better shall be taken Querens nil capiat per breve Mich. 22 Jac. Methell versus Peck MEthell brought an action upon the Case against Peck and count Case that the Defendant in consideration that the Plaintiff had paid to one Playford forty pounds to the use of the Defendant Where the request of a collaterall thing shall be alledged and by his appointment he assured upon request to deliver an Obligation in which he and another should be obliged to the Plaintiff in a hundred pounds And that the Defendant Licet saepius postea requisitus did not deliver the said Obligation upon Non assumpsit pleaded Verdict for the Plaintiff And it was moved in Arrest of Iudgment by Hitcharn that the Plaintiff had not alledged any sufficient request by shewing such a day and such a place which is issuable And being collaterall matter the request is part of the substance of the action But where it is upon Debt or Contract and not severed from the duty then a Licet saepius requisitus is sufficient But the Court were of opinion that the Plaintiff shall have Iudgment and yet they agreed the diversity when a Request shall be alledged as part of the thing to be performed and when it is but implyed in the Debt For when it is collaterall there it ought to be alledged and for the time it is sufficient viz. Postea but the place of the Request is omitted And if Issue had been tendred therupon it might be supplyed afterwards where it shall be tryed where the action was brought And Non assumpsit allowes the request as if the Defendant had pleaded concord and satisfaction the Request is not to be proved in Evidence vide 10 H 7. 16. But it is said that this Judgment was reversed in the Kings Bench because that the Request being upon Collaterall matter which was the cause of the Action it is materiall Mich. 22 Jac. Ejectione firmae AN Ejectione firmae brought and counted upon a Lease at Haylesam of Tenements there The Defendant pleads that Haylesam ubi tenementa praedicta jacent is within the Cinque-Ports Ubi breve Domini Regis non currit and plead to the Iurisdiction The Plaintiff reply Town shall be intended al the Town that the Tenements are in the County of Lancaster absque hoc that the Town of Haylesam is within the Cinque-Ports wherupon the Defendant demur and adjudged no cause of demurrer For Haylesam is all Haylesam and the Court will not intend any Fractions in the Town viz. that part shall be in the Cinque-Ports and part without as it was affirmed the truth was but that ought to come upon the shewing of the Defendant an his Bar vide 50 E 3. 5. Sir William Ellinghams case Defend respond oust THE FIRST YEAR OF KING CHARLES Termino Pasch Hitcham versus Brook SIR Robert Hitcham Serjeant at Law and to the King Case brought an action upon the case against one Brook a Iustice of the Peace and which had been Sheriff of Suffolk and count that he for divers years last past had been one of the Kings Serjeants and had demeaned himself well and loyally in the discharge of his duty and had gained good opinion and had acquired by his practice a good Estate for the maintenance of him and his Family The Defendant said Words I doubt not but to prove that the Plaintiff hath spoken Treason Innuendo Treason against the King Verdict was found for the Plaintiff And it was moved in Arrest of Iudgment that these words are not actionable First because no time is alledged
when the Plaintiff is supposed to speak Treason and it might be when he was an Infant or that it is pardoned To which it was answered by the Court First That these words ought to be alledged as they were spoken and that was Indefinite 2. The time is not materiall unlesse the Defendant make it materiall by his plea viz. When he was in giving Evidence for the King against a Traytor and then he repeated such words or when that the Plaintiff was frantick and of that he intended and so justifie there the time may come in question 2. The second Exception was that there is not any expresse affirmative to that it was answered by the Court that it was more then an Affirmative for he had as he said proof therof and not a report or hearsay And if one say it is reported c. that will not bear action unlesse he justifie the report by charging it upon him which was the Author of the report 3. Also it was objected that the speaking of treason was not treason But it was holden clearly that it is as well as Preaching or writing Et Index animi Sermo 4. Also it is not said what treason and it may he high or petit treason To which it was answered that when he speaks generally of treason it shall be intended according to the common intendment which is treason against the King vide Sir William Mulgraves case Coke lib 4. And two Cases were vouched to be adjudged in the Point Johnson and Atewod one between Johnson and Atewood 8 Eliz. Thou hast spoken Treason and I will hang thee for it adjudged actionable The other was between Pewall and Vardoffe Pewall and Vardoffe 9 Jac. Thou hast spoken treason and I will prove it adjudged actionable And it was resolved by all that the Plaintiff should have his Iudgment Flight versus Gresh Case THomas Flight brought an action upon the case against Gresh and count that wheras the Plaintiff and one Baleman were bound in an Obligation to the Defendant In consideration that the Obligor pay the summ the Obligee assume to deliver the Bill for the payment of such a summ at such a day The Defendant in consideration that the Plaintiff would pay to him the laid summ at the day assumed to deliver the Obligation to the Plaintiff and shewed that he had paid the money at the day and the Defendant did not deliver it but after sued it and recovered and had the Plaintiff in prison in execution by the space of a year The Defendant protestando that he did not assume for plea saith that the Plaintiff did not pay it and therupon Issue and found for the Plaintiff And it was moved by Serjeant Gwin that this action lies not for want of consideration for the Plaintiff did nothing but that which he was obliged to do and no profit to the Defendant for if he had not paid the summ the Obligation had been forfeited And he resembled it to the case of 9 E 4. 19. An accord in Trespasse that the Defendant should deliver to the Plaintiff his Evidences and permit him to enter into his Land is no good Bar So in an Arbitrement 12 H 7. that the one permit the other which was disseised to enter and that he should give to him his Charters and Evidences is not good And he vouched one to be resolved in the Kings Bench Greenwood and Becket between Greenwood and Becket where one had forfeited three Bills in consideration that the Plaintiff will pay the three severall summs three daies after he would deliver them to the Plaintiff And the Court was of opinion that it was no sufficient consideration Richardson to the contrary and said that the payment without Suit was for the advantage of the Obligee to be sure of his money and may be more available to him at this time then the forfeiture afterwards And he vouched a Case to be adjudged that where one had bought Cattle in a Market and had paid for them and the party which had bouoght them because that he which bought them had them in possession and would not deliver them in consideration that the party would deliver them promised to pay him a certain summ an action lies therupon And the opinion of the Court was that the action lay for for any thing that appears the monies were paid before the time that in Law they might be paid viz. before the setting of the Sun And it is without question if a man to whom money is to be paid come to the party the same day and pray him to pay it in the morning and that in considerations therof promise to pay him five pounds to abate five pounds or to deliver an Obligation this is good And a voluntary promise to do that which is in good conscience good and just for him to do shall bind him and the rather because he had benefit viz. to be sure of the performance And the forfeiture is but means to obtain the principall summ And if one had Iudgment and in consideration that he will not sue execution the other promise to pay it is good And because that in this case it appears that by the non-performance of this promise the Plaintiff had prejudice and the Iury had found solvit the Plaintiff had Iudgment Hil. 21 Jac. Rot. 3150. Trevors versus Michelborne EDmond Trevors brought a Scire facias against Michelborne Sheriff of Surrey Sci. fac Sci. fac against the Sheriff for taking of insufficient Pledges for the returning of insufficient Pledges in a Replevin brought by one Ray against the now Plaintiff in which the said Richard Ray made default wherupon a Retorn habend was awarded an Averia elongata returned and then a Withernam and then a Nichil c. And for this taking of insufficient Pledges this Scire facias is brought upon Westminster 2. cap. 2. And the Defendant demurred Somerford and Beamont vide the lake President Hil 11 Jac. Rot. 3563. between Somerford and Beamont Hil. 1 Car. Uvedall versus Tindall Enter Hil. 21 Jac. Rot 705. Southamp SIr Richard Uvedall brought an action of Trespasse against William Tindall Clark Vicar of Alton Trespasse What things are smal tithes and what great and John Loveland for taking bona Cattella and count for the taking of two Carectac glaci Anglice Wood And upon Not guilty pleaded the Iury gave this speciall Verdict Viz. For the Moyety of a Lead of Wood Si videbitur Curiae quod decimae glasi ne sunt minutae decimae then the Defendants not guilty but si sunt minutae decimae then they are guilty And this case was argued at Bar by Serjeant Bridgeman adn Serjeant Henden And the Court unement agreed that for ought that here appears this Verdict being found without any circumstance that this Wood shall be taken to be Minuta decimae It was agreed by Henden that if it had been found Wood growing
and diversity of opinion which was between the Lord chief Justice and the Lord Hobart the now Lord Keeper and the Lords by an Order respited this matter as to the Fine of the Plaintiff and gave damages to the Defendant and referred it to the opinion of all the Justices And they all una voce except Iustice Harvey who insisted upon the damages given to the party that they should not be pardoned agreed that the Contempt and Offence for the scandalous Bill exhibited was pardoned and not within the Exception for it cannot be intended that the Plaintiff exhibited a Bill upon which he should not be fined but this exception was of that which was laid to the charge of the Defendant and the Defendant may have his remedy at Common Law and the Contempt which is accidentall to the Offence is pardoned and by consequence the Fine Pasch 2 Car. Crane versus Crampton Case CRane brought an action upon the case sur assumpsit against Crampton and count that in consideration of moneys paid the Defendant did assume to give to the Plaintiff a Ruff-band at the day of his marriage And he alledged in facto that such a day and at such a place he was married Notice and that the Defendant notwithstanding that he was requested such a day and a year after the said marriage had not given to the Plaintiff the said Ruff And upon Non assumpsit it was found for the Plaintiff and moved in Arrest of Iudgment that the Plaintiff had not alledged any notice given to the Defendant of his marriage And by the opinion of me and my two Brothers Harvey and Yelverton Iudgment was given for the Plaintiff For the Defendant ought to take notice therof at his perill unlesse he had provided to deliver the Ruff after marriage and after notice therof for if he ought to have notice no place being agreed upon where it shall be given then he should be compelled to enquire and to find him and give notice and paradventure he could never give him notice Also it is agreed if one be obliged to pay to another twenty pounds within three months after he come from Rome there shall no notice be given of his return but the Obligor ought to take notice at his perill And if it were with a Condition that I. S. that is not party to the Obligation shall do such a thing there shall not be notice And this case of an Obligation is more strong for there is a penalty and if it were to pay ten pounds when a Fair shall be at Dale there he ought to take notice And they agreed the case of 8 E 4. fol. _____ an Obligation to perform an Arbitrement there no notice is necessary for it is the act of a third person And if any notice be requisite the Request imply it as it was adjudged in the Kings Bench between Hodges and Baldwin Hodges and Baldwins case But my Brother Crook seemed to be of a contrary opinion for when the duty arise upon the notice there notice ought to be Iudgment pro Querente Laicon versus Barnard Lincoln LAicon Plaintiff against Barnard one of the Attorneys of this Court Case for Trover and Conversion of a hundred Sheep the Defendant said that he brought Debt in the County Court of Lincoln Recovery in trespass for taking of goods is no baâ— to an action upon the case sur trover against one Hacliff for two hundred and eighty pounds upon an Obligation by Iustices and recovered and that these Sheep were delivered to him in Execution as the Sheep of the said Hacliff And that afterwards and before this action the Plaintiff brought an action of Trespasse against the now Defendant for taking of these Sheep Quare caepit abduxit And it was found for the Plaintiff and Damages to two pence And averred that they were the same Sheep and the Plaintiff replyed that the Damages found by the Iury were only for the taking and chasing and not for the value And that this Action was for another Trespasse wherupon the Defendant demurred and it was adjudged for the Plaintiff for for any thing that appears which the Defendant hath confessed upon his Demurrer it is not for the same Trespasse Also the Damages of two pence cannot be given for the value of the Sheep Also the Plaintiff when a Trespasse is done to him may retake his Goods and yet he shall have an action of Trespasse for the taking of them And every taking viz. abduxit import a chasing and no man will say that by the recovery in Trespasse when the Plaintiff had his Goods that therby the Defendant shall have the property But it is true that if the Plaintiff recover the value therby he waves the property and by this way the Defendant shall have the property vide 2 R. 3. 14. 4 H 7. 5. 6 H 7. 8. and Iudgment for the Plaintiff Yelverton at first baesitavit but afterwards agreed Pasch 2 Car. Wades Case AN action upon the case was brought by a Feme Case as Administratrir against the Lady Wade Executrix of Sir William Wade Non assumpsit was pleaded the Venire facias was well but the Hab Corp. Nisi pr. was entred the Plaintiff Where the Nisi prius shall be amended c. and the Defendant Executrix of Sir H Wade c. And it was amended by the Court and there was the difference taken that when the Nisi prius is so mistaken that if it should be amended the Iury should be prejudiced viz. that it may falsifie their Verdict then it shall not be amended but in this case it is but the Writ by which the Iury is warned to appear And the authority of the Iustice of Nisi prius is not by that but by the Juras which was well and as it ought to be Also they have their Authority by the Statute of Westm 2. vide Dyet 106. In Wootons Case there the Jurat was well and omitted in the Nisi prius Anthony Coke Also the Issue was between Wooton and Cooke and Temple where Temple had confessed the action vide there that many omissions of the Record of Nisi prius are to be amended Brown was of the contrary opinion to Walsh Weston and Dyer Trin. 2 Car. Farrington versus Arrundell Entred Hil. 22 Jac. Rot. 4462. Debt AN action of Debt was brought by Lionell Farrington Qui tam pro se quam pro Domino Rege Debt upon a penall Statute is not gone by the death of the King c. against Thomas Arrundell upon the Statute of 23 Eliz. for not coming to Church and the Defendant demurred upon the Count And then King James died And if this action be abated or not by the death of the King was the Question Vide the Statute of the 1 E. 6. cap. 7. vide Coke lib 7. fol 30. And concerning this was diversity of opinion in the Common Bench for my Brother
the Land to Anne his Wife the Lessor of the Plaintiff for life and died Anne entred and made a Lease to the Plaintiff Et si super totam materiam c. And it seems that the Defendant Allen claim under the Title of Anne K. the Daughter but that was not found nor no other Title for the Defendant and therfore of necessity Iudgment ought to be given for the Plaintiff And this case was well argued by Crawley for the Plaintiff And Henden for the Defendant And three Points were argued 1. If the two acres in Langham passed by the words Cum pertinentiis and it seemed to the Court that they did not passe without saying Cum terris eidem Messuagio spectantibus vel pertinentibus And that is agreed in Hill and Granges case by Conveyance and 23 H. 8. 6. and it is all one in a Will Also in this case it is not found for what time these two acres had been used with the house And there was sufficient to supply the words Cum pertinent for ought that appears And if the Law be so the two acres do not passe but discend to Thomas Keene and the Feoffment good 2. If by these words it be an Estate-tail as in Beresfords Case Coke lib 7. fol 41. 9 E 3. Fitz tail 21. 12 E 3. 7 E 6. 16 Eliz in Chapmans case or a Fee-simple And yet Yelverton and Crook inclined that it was an Estate-tail but Lord Richardson Hutton and Harvey to the contrary for an intent against Law shall be void vide Abraham and Twiggs case Coâ—e lib 7. fol 41. 3. If the Collaterall Warranty which descended had extinguishâ— and barred the right of Anne Keene Henden would have maintained it because that the Warranty is speciall although it was collaterall that it did not Bar which is sanâ— question be it speciall or generall it bars the others upon whom it descends vide Coke lib 15. Seniors case he held no descent and then no Bar 12 E 4. discontinuance 50. 7 H 6. speciall Warranty shall be used by Rebutter but not by Voucher And Iudgment for the Plaintiff If a Feme shal have a supersedeas upon an Exigent against Baron and Feme Un supersedeas fuit Misâ— for the Feme upon an Exigent against Baron and Feme And upon much debate it was agreed that the Feme for the safeguard of her self from imprisonment being returned upon the Exigent or upon the Capias viz. upon the one Quod reddidit â—â— upon the other Caepi and as to the Husband Non est inventus may appear and so long as the Processe continues against the Husband she shall have idem dies But when the Baron is returned utlegatus she shall be discharged sans idem dâ—es And that stands well and raconciles all the Books But whether she shall have a Supersedeas de non molestando is doubtfull for by the 11 of H 4. 80. and Dyer 271. if the Baron be outlawed and the Wife Wâ—ived and the King pardon the Feme that shall be allowed and she shall go sine die and vide 4 E â— 34. and 14 H 6. 14. 13 H 4. 1. And it seemed by all to be agreed that the Baron after he purchaseth his pardon or after he come and reverse the Outlawry he shall not have allowance of his Pardon nor his appearance received si non qui il amesne sa feme qui par le presumption de leye est amesnable per luy mes les baron n'est amesnable per le feme vide 18 E 4. 4. there the case was that a Feme Covert was sued as Feme sole her Husband being beyond Sea and not known to be alive and she was outlawed and then her Husband came again and brought a Writ of Error for the reversall therof in his name and in the name of his Wife And there it is said that it is questionable being that he was not party to the Suit And then one said that it would be a good way to be rid of a Shrew And the Prothonotaries said that no Supersedeas was ever granted for the Wife in such a case Hil. 2 Car. Sir Charles Howards Case MEmorand That the Earl of Marleborough Lord Treasurer of England came to Serjeants Inn in Chancery Lane 6. Febr. and there assembled all the Iustices to have their opinion upon a Case which was depending in the Exchequer Chamber Where the office of the keeper of a Park is gone if the Kâ—ng dispark it upon an English Bill for the King by the Attorney-generall against Sir Charles Howard for avoiding the possession of a Lodge and desisting from taking the profits of a Park called Putney Mooreclapp the Custody of which Park and three pounds annuall Fee with the Windfalls c. and the custody of the Lodge was granted to him The King which now is by his Charter disparked the Park and after granted all the Dâ—er to Sir Richard Weston Chancellor of the Exchequer And whether by this disparking of the Park the office of the Keepership he determined or no then whether the annuall Fee be determined then if the casuall profits as Windfalls c. may be yet taken by Charles Howard who is the Patentes And upon debate it was unanimously agreed that the King might dispark his Park and that by the disparking therof the Office of the Keepership is gone and determined for Sublata causa tollitur effectus and this Office is not of necessity and such Offices are not prefumed in Law to be altogether for the benefit of the Patentes but reciprocally for the Commodity of the King and by the disparking of the Park the labour and charge is gone It was also agreed that the King might discharge the Patentee of this Office although the Park continue And iâ— one grant the Stewardship of a Mannor and he dismember the Mannor the Office determines And if a Corporation grant the Office of Town-Clerk or of Recorder and after surrender their Patent and take a new Patent which incorporates them by a new name all the Offices are determined It was agreed that the annuall Fee certain remain in both cases be he discharged or be the Park disparked vide 5 E 4. 9. 4 E 4. 22. 18. E 4. 9 Dyer 71. 6 H 8. Kelway 171. Plowd Sir Thomas Wrothes case The Earl of Lincolns Case Star-chamber MEmorand That the Sollicitor Generall moved that Sir Henry Fines had preferred a Bill against the Earl of Lincoln in this Court Where a Lord may briâ— sworn And there was a Commission De dedimus potestatem granted to take his answer upon Oath and he offered his answer upon his Honor. And the Commissioners returned this speciall matter and he prayed an Attachment And this case was propounded to the Iudgges and it was resolved by them the Lord Keeper and all the Court of Star-chamber that he ought to answer upon his Oath for it is Juramentum purgationis and not promissionis Also
it is not deminâ—tion of his Honor to be sworn concerning that which he would not have to be put upon his Honor. Also it is a good Rule Testi non jurato non est credend in judicio And Princes are sworn to all their Leagues and Confederacies which is called Jeramâ—ntum confirmationis Hil. 2 Car. Winsmore versus Hobart Trin. 27 Eliz. Rot. 850. Wilts IN an Ejectione firmae brought by Thomas Winsmore against Michaâ—l Hobart upon a Lease made by Edward Long the Iury gave a speciall Verdict Habendum to parties not named in the Deed. William Lord Sturton seised of the Tenements in the Count in Fee by Indenture demised them to Thomas Hobart habendum to the said Thomas Hobart and to the said Michael Hobart Iohn Hobart and Henry Hobart Sons of the said Thomas for their lives and the life of the Survivor of them successively By vertue wherof the said Thomas entred and was seised for life And the Lord Sturton granted the Reversion to Thomas Long in Fee to whom Thomas Hobart attorned Thomas Long devised it to Edward Long in tail Edward Long died seised and the Reversion descended to Edward his Son the Lessor of the Plaintiff Thomas Hobart and Henry died Michael and Iohn survived Michael entred Thomas Long entred upon him and made a Lease to the Plaintiff who entred and was possessed untill the Defendant ousted him And Judgment was given for the Plaintiff The Habendum was void as to all them which were not parties to the Deed. Pasch 3. Car. Hartox and Cock's Case Entred Pasch 2 Car. Rot. 1761. Hertf. A Quare Impedit was brought by George Hartox and Cocks against the Bishop of Lincoln Advowson in grosse for life Lord Keeper of the great Seal Mary Hewes and David Dublin Clark for the Church of Essington The Issue being joyned by the Incumbent upon the Appendancy the Evidence given to the Plaintiff to prove it was such Henry 6. was seised of the Mannor in Fee and granted it to Mary his Consort for life Habendum una cum advocatione of the said Church The Queen Mary presented and after there was a Presentment by Laps then the said Queen presented again And afterwards Edward the fourth seised of the said Mannor presented and then Henry the seventh and Henry the eighth And the King Edward the sixth granted the Mannor and other Mannors and the Advowson to Sir Iohn Pawlet in Fee reserving Tenure in Capite for the Maonnrs and Socage Tenure for the Advowson And the said Sir Iohn Pawlet granted the Mannor and the Advowson to William Tooke in Fee who presented the last Incumbent and under this Title the Plaintiffs entitle themselves The Defend said that the said Wil. Took was seised of the said Advowson and it defended to William Tooke the Son and granted the next avoidance and it came to Mary Hâ—wes who presented the Defendant Dublin and the Evidence to prove that it was in grosse was Henry the third being seised in Fee of the Mannor of Essinton made a Lease therof to his Brother for life and excepted the Advowson and then upon the expressing of the Advowson upon the Grant of Edward the sixth and the reservation of severall Tenures And this was their Evidence And Serjeant Henden maintained that by this exception of the Advowson when it was granted for life made it to be in grosse for ever And he vouched 38 H 6. 13. Quare Impedit by the King against the Abbey of Sion and the Incumbent there by the Exception of the Advowson it was become in grosse and there one said at least during the Estate for life and that is all which is implyed by the Book for the Iudgment is for the King because that it being not appendant is passed not by the Grant by the Habendum una cum c. And though that the Court unement agreed that it is but in grosse for the Estate for life and that it is all one as if the King had granted the Advowson which is appendant for life and the Grantee dies and the Advowson is appendant again and yet he insisted and persisted to have a speciall Verdict found therupon And I moved my Brother Yelverton that before we admit of a speciall Verdict as it hath been used in former times to go to the Iudges of the Kings Bench and to put the case to them to know their opinion and when he came again and declared it we put it upon the Iury to try the matter and they came in and found for the Plaintiff And after that the Demurrer which was joyned for the other Defendant Mary was by consent entred for the Plaintiff vide Dyer 34 in appeal vide 7 H. 6. 37. Chidley's Case CHidley brought a Quid juris clamat and had Iudgment against the Defendant and the Plaintiff had made a Warrant to his Attorney for the receiving of his Attornment Quid juris clamat and the Defendant would have attorned but would not do his Fealty And the Presidents were that he ought to be sworn in Court and the entry of the Iudgment is that he did attorn And fecit fidelitatem and so he was sworn in Court vid. 37 H 6. 14. If he refuse to attorn being in Court he shall be committed for contempt Moyle said that that is Attornment but Prisot said that he should not have a Writ of Wast nor arraign an Assise untill he assent Trin. 3 Car. Rot. Humbleton versus Buck. Lincoln SImon Humbleton brought an action upon the case against Buck Case Assumpsit in consideration of defending Suit in maintenance of a Title of Common and counted that wheras a Controversie was between the Inhabitants and Tenants of Fletam and one Palmer for and concerning the having of Common in one parcell of Land which was a Sea-bank in which they had Common of Pasturs for taking by Cattell and also by taking and cutting the Grasse And wheras the said Palmer had brought an action of Trespasse against the now Plaintiff for entry made by him in the said close and for taking his Grasse pretending that the said Land in which he claimed Common was his severall and free from their claim of Common the Defendant in consideration that the Plaintiff had given to him a Iugg of Beer and that he at the request of the Defendant would prosecute and defend â—he said Suit for the maintenance of their Common against the said Palmer untill the determination therof he promised to pay to the Plaintiff one moyety of his charges and over and besides twenty pounds and that therupon he defended the said Suit and pleaded Not guilty and at the tryall therof Palmer was non-suited and that that was for the maintenance of the Common and that he expended in defence and prosecution of the said Suit forty pounds The Defendant confessed all the Inducement and also a promise sub modo and sayd that the said Palmer had brought Trespasse to which the Plaintiff had
pleaded Not guilty absque hoc that the said suit and tryall was for the said Common And Issue being joyned it was found for the Plaintiff and Damages to twenty pounds And in Arrest of Iudgment it was moved that now it appears that it was not for the maintenance of the Title of Common that it could not be for the tryall therof because he did not plead the Title of Common which had been the proper apt way for the tryall therof And when the Iury find that which is contrary and repugnant to Law that is repugnant and not good And this case was strongly argued by Serjeant Davenport in Arrest of Iudgment and by Attho for the having of Iudgment And first he said That although there was a Parlance and Communication concerning the Common yet the promise is to defend this action brought by Palmer and is pro defentione of the Common not generally but against Palmer and the promise is to pay the Moyety of the Charges if he prosecute the said Suit untill the determination therof so that if it had been found against the now Plaintiff the now Defendant ought to have paid the Moyety of the said charges And it is not agreed that he shall plead title by Prescription for the Common but that he should prosecute it untill the determination of the Suit for the maintenance of the Common And the Court gave Iudgment for the Plaintiff for it might be for the maintenance of their Common against Palmer for if he had not the Soil therof but had inclosed it as part of his Wasts the Plaintiff could not plead the Title to Common without admitting the Soil and Free-hold to be in Palmer And if one had been of councell and to advise a Plea if he had not discovered that Palmer had no Title he would have advised him to have pleaded Not guilty for if the said Palmer had no Title to the Soil which the now Plaintiff could not know it should be found against him and so this Plea might have been in maintenance of Common And the Lord Richardson who at first doubted now concurred and sayd that he was fully satisfied Trin 3. Car. Chapman versus Chapman Debt REbecca Chapman brought an action of Debt against Henry Chapman upon an Obligation with Condition to perform the Covenants contained in certain Indentures The Defendant pleaded a generall performance the Plaintiff replyed and shewed that she made a Lease to the Defendant of certain Cole-pits rendring eighty pounds Rent and that the Defendant did not pay the Rent at the day Obligation conditioned for the payment of Rent demand is not necessary to be alledged after generall performance pleaded wherupon the Defendant demurred And it was adjudged upon Argument for the Plaintiff but the matter upon which the Defendant justified came not in question viz. If the Plaintiff ought to have demanded the Rent And that the Obligation had not altered the nature of the Rent it being generall to perform all Covenants and the reason is apparent for when the Defendant plead performance of all the payments that is intended an actuall payment for he cannot now rejoyn that he made tender for that shall be a departure from his Plea And that was the reason of the Iudgment which was Pasch 43 Eliz. between John Specot Plaintiff Specot and Shere and Emanuel Shere Defendant upon the like case in debt upon an Obligation wheras the Defendant had granted an Annuity or Rent of six and twenty shillings eight pence to the Plaintiff for one and twenty years the Condition was that if the said Shere perform all the Covenants c. conteined in the said Writing so that the Plaintiff may enjoy the Rent according to the intent therof then c. the Defendant recited the Deed and pleaded performance the Plaintiff replyed that the Defendant had not paid the said eight and twenty shillings eight pence upon such a Feast wherupon the Defendant demurred and adjudged for the Plaintiff And the Lord Coke in his private Book as the Lord chief Baron said had shewn this reason If the Defendant had pleaded specially That he was upon the Land and ready to pay and to make tender but the Plaintiff did not come to demand it then the Plaintiff ought to shew that he did demand it which seems to be agreed 14 E 4. 4. 2 H. 6. 57. 11 E 4. 10. 21 E 4 42. but Brook 6 E 6. Tender makes this diversity when the Condition is expressed to pay the Rent that alters the nature of the Rent But otherwise when it is to perform Covenants And the Iudgment given in the Kings Bench was affirmed Trin. 3 Car. Stephens versus Oldsworth IN a Quare Impedit brought by Stephens and Cross against Oldsworth and Holmes for the Church of Lechamseed the Incumbent pleaded Quare Impedit Tenure that he was Parson Imparsonee to the Church of the presentation of the King and confessed the Seisin of Sir Anthony Greenwood under whom by the grant of the next avoidance the Plaintiffs claim but said that the said Sir Anthony held the said Mannor of the King per redditum ac wardam Castri Dower to be paid yearly 8 s. 1 d. ob q. And among other matters which I omit it was resolved that it was Socage Tenure for a Rent for Castleguard is Socage vide Littleton 26. Coke lib 4. fol 6. 5 E 4. fol. 128. F.N.B. 256. a Mich. 3 Car. Young versus Young Formedon in Descender Act of Court shall be amended IN a Formedon in the Descender brought by Young against Young the Demandant was within age and was admitted to prosecute by his Guardians and that appears by a generall admittance before Iustice Jones And this admittance was first entred in the remembrance of Gulstons Office and afterwards in the Plea Roll And the Demandant which is admitted by the Court viz. per Guardianos ad hoc per Curiam admissus and there the Concessit per Curiam quod prosequatur per Gardianos is entred and so is the Roll upon the View And in the Philizers Roll the recitall is That the Demandant per Gardianos admissus obtulit se And in this Roll the Concessit per curiam of admitting the Demandant to prosecute by his Guardian is not entred And after Verdict and Iudgment for the Demandant a Writ of Error was brought and that assigned for Error And it was moved that it might be entred upon the Philizers Roll. And it was resolved by all the Court that it should be supplyed and entred upon the Philizers Roll and the principall reason was because that this admittance by his Guardians is the act of the Court and not like to the entry of the Warrant of Attorney nor to the Essoin Roll vide Dyer 330. otherwise it is of Admission by Prochein ami Where an Infant ought to appeare by Gardian and where by Prochein amy vide Rawlins case Coke lib. 4. fol 53. The
And the proof therof see Coke lib 6. fol 19. Gregories case and Dyer 236. a. Then the principall and sole point will be if this Offence will be by the act of 33 H 8. cap 10. made presentable and punishable by the Iustices of Peace at their six weeks Sessions and it was unanimously agreed that it is not First because the preamble of the act recite that the Offences recited therin escape punishment and for their more speedy and effectuall punishment and repeat the particulars but therin name not Brewers by expresse words and it cannot be intended that the intent of the Statute was to give them at their six weeks Sessions to intermeddle with things not determinable at their generall Sessions And it was objected by Aâ—tho that Lambert and Crompton had put it as an Article of their charge To which it was answered that it was in some respect inquirable at Common Law viz. Misdemeanors in Bear-brewers Conspiracies and agreements to sell at such prises and the making of wholsome Beer Also it might be that they â—ake the Law to be upon the Statute of 23 H 8. that the Sessions being a Court of Record was within this act that saies in any Court of Record And then if it be not suable by Information before the Iusticeâ— of Peace the consequence is plain that the Statute of 21 Jac. cap 4. extends not therto and the Statute of 37 of H 8. makes not any thing in this case but tolls the six weeks Sessions and makes it inquirable at the generall Sessions Ideo Iudgment for the Informer June 19. An. 22. Jac. MEmorand That upon a Conference at Serjeants Inn in Fleet-street it was resolved and agreed by the Lord chief Iustice Sir James â—ea the Lord Hobart Baron Bromley Baron Denham Iustice Hutton and Iustice Jones That any one may erect an Inn for lodging of Travellers without any allowance or License Resolutions concerning Innes and who may keep an Inne and how they may be suppressed as well as any one before the Statute of 2 E 6. might have kept a Common Alehouse or as at this day one may set up to keep hackney Horses or Coaches to be hired by such as will use them And all men may convert Barley into Mault untill they be restrained by the act of Parliament made for that purpose And as all men may set up Trades not restrained by the Act of 5 Eliz. which directeth no man that hath not been bound or served as an Apprentice by the space of seven years or by restraint of setting up Trades in Corporations by such as be not free by the like reason all men may use the Trade of Inne-keeping unlesse it could be brought to be within the Statute of 2 E 6. which hath never been taken to be subject to that Statute in point of license And vide that an Hostler is chargable to the party which is his Guest for the restoring of that which is lost in his House and that by the Common Law of the Realm vide 11 H 4. fol 45. see also 11 H 4. fol 47. That in an action upon the case brought by the School-master of Glocester for erecting another School to his prejudice adjudged that no action lies and also it is there said that if I have a Mill and another erect another Mill by which I lose my Custom no action lies unlesse he disturb the water And it was said by the chief Iustice that it was so resolved before by the Iudges and that Iustice Doderidge Iustice Haughton and Iustice Chamberlain were of the same opinion and so now was my Brother Crew the Kings Serjeant who went the Circuit of Surrey Kent and Essex but the chief Baron Tanfield was of a contrary opinion And it seemed to him that Innes were licensed at first and Originally by the Iustices in Eire but nothing could be shewne to that purpose But all the Iustices were of a contrary opinion and said that that was the ground that begot the Patent and Commission to Mounperson viz. That the King might licence them if the Iudges might And it was said by the Lord chief Iustice that there was not any such thing in the Eires but because that strangers which were aliens were abused and evilly intreated in the Inns it was upon complaint therof provided that they should be well lodged and Inns were assigned to them by the Iustices in Eire The second question was if an Inn be erected in a remote and inconvenient place so that it is dangerous to Travellers and there harbour men of bad same which are apt to commit Robbery whether that might be suppressed And as to that all agreed that it is a common Nusance and may be suppressed and that to be by Indictment and presentment to which the party may have his Traverse The third question was whether when one which had erected an Inn be a man of bad behaviour and such a person as is not fit to keep an Inn how it should be aided and helped And it was agreed by all that upon Indictment or presentment therof he may have his Traverse and if he be convicted then to be suppressed viz. that he which had so misdemeaned himself should not keep it as an Inn nor use it But that it being an Inn it may be used afterwards by another Fourthly how and by what way or means the multitude of Inns might be prevented by being suppressed or redressed upon complaint or how the number might be stinted This Point seemed to be difficult and to contradict the resolution upon the first question And therfore it was agreed that they should advise concerning it and the best way is that they be strictly inforced to keep the Assise and not to suffer any to tipple in their Inns and by this way they would desist from their Trade Mich. 4 Car. Mackerney versus Ewrin RIchard Mackerney brought an action upon the case against Jeffrey Ewrin and count Case That whereaâ— one I. S. was indebted to the Plaintiff in seven pounds four shillings for pasture feeding and Oates for an Horse kept in the Stable of the Plaintiff Consideration in an Assumpsit The Defendant in consideration that the Plaintiff at his request would deliver the Horse to him to the use of the said John S. promised to pay the said seven pounds four shillings And upon Non Assumpsit pleaded and Verdict for the Plaintiff Serjeant Callis moved in Arrest of Iudgment that it is no good consideration for the Plaintiff had not any property in the Horse and he is not is do any other thing then the Law injoyn him to do As if I lose my goods and another find them and in consideration that he will deliver them to me I promise to pay him two hundred pounds that is not sufficient matter to ground an Assumpsit therupon But if a Taylor had made a Sute of Apparell for I. S. and I. D. request him to deliver it
proceed by fiue to enforce him to lay it open yet these Affirmative Customs do not toll the Negative And to prove that the Lord had an Inheritance therin he vouched 14 E 2. Fitz. Grant 92. A Rent granted to one and his Heirs out of the Mannor of Dale which he hold of the Mannor of D. this is an Inheritance And if this shall not be a forfeiture then this Customary Inheritance which the Lord had in the feild-course might be tolled at the will and pleasure of the Copyholder Serjeant Hitcham argued strongly to the contrary First That it is no Inclosure because that all is not inclosed Secondly The forfeiture of a Copyhold is alwaies by some thing done to the Copyhold land it self but this is done as it is supposed to the feild-course of the Lord which is not Copyhold and it is better for the Copyhold and makes the land better and also the Feild-course is therby made better and more beneficiall to the Lord and therfore the Copyhold land is not altered but is meliorated and it is like so the case in Dyer 361. Althams case after no Wast done the Evidence was that a Trench was made in a Meadow by which the Meadow was Meliorated and adjudged no wast which might be given in evidence But he said that in Brooks case at the first comming of Popham to be chief Iustice it was adjudged that if a Copyholder build a new house it is a forfeiture for that altoreth the nature of the thing and put the Lord to more charge So if Tenant for yeare makes a Hay-yard in the land that is wast He said that this Custom is qualified by taking a Fine if he would or by imposing a pain in the Court to enforce the Defendant to lay it open And all the Court were of opinion that this is no forfeiture for the reasons before and that this Feild-course is a thing which commence by agreement and is but a Covenant and not of common right And Forfeitures which are odious in Law shall be taken strickly Trin. 5 Car. Starkey versus Tayler Case STarkey an Atterney of this Court brought an action upon the case against one Mr. Tayler of Lincolns Inn for saying of these words to him Words Thou art a common Barretor and a Judas and a Promoter And it was moved in Arrest of Iudgment that these words maintain not action for the generality and uncertainty that he shall be called a common Barretor And the chief Iustice seemed to be of opinion that those words are not more then if he had said That he was a common Brabler or Quarreller But it was urged by Serjeant Hicham that the action lies and that it is a generall Rule Quod sermo relatur ad personam As in Birchley's Case He is a corrupt man And in Mores Case it was said of an Attorney That he was a cousening Knave And if these words were spoken of a common person he doubted if they were actionable but being spoken of an Attorney action lies And if these words were spoken of Iudge without doubt they were actionable And in this case being spoken of an Attorney who is a Minister of Iustice and who hath the Causes of his Clients in his hands to gain them or to lose them The Statute of Westminster saies the Sheriffs are charged to expell all Barretors out of their Countries And in the Statute of 34 E. 3. is the description of a common Barretor and his punishment who is a stirrer of false and unjust Suits and that he shall be imprisoned during the pleasure of the King bound to his good behaviour and fined And Littleton in his Chapter of Warranties faith they are hired to keep Possessions and therfore an action lies But to say of another man That he is a common Barretor is not actionable unlesse he saith that he is convicted Hil. 3 Car Rot. 1302. Watt versus Maydewell Leicest WIlliam Watt brought an Ejectione firmae against Laurence Maydewell Where acceptance of a new Lease for years makes a surrender of the former upon a Lease made by Robert Rome upon Not guilty and a speciall Verdict found the Case was thus Francis Griffith seised of Land in Fee by Indenture bearing date the fourteen of November and 14 Iac. demised the said Land wherof c. for one and forty years to Robert Rome rendring two shillings Rent to commence from the Annunciation which shall be An 1619. and after the same year by another Indenture bearing date the third of December 15 Iac. to commence from the Annunciation last demised the same Lands for ninety nine years to Dame Frances Perroint who entred and was therof possessed And after that the said Francis Griffith by another Indenture the same year bearing date the fourteen day of November 16 Iac. to commence from the seventeenth of November An. 1619. devise it to the said Robert Rome for one and forty years who accepted it and afterwards entred and being possessed made his Will and appointed Executors and died the Executors administred and made the Lease to the Plaintiff who was possessed untill he was ousted by the Defendant And the only question of this Case was if the acceptance of the second Lease by Robert Rome had determined discharged or extinguished the former Lease And after Argument it was adjudged for the Plaintiff the reason was because that by the Lease made to the Lady Perpoint for ninety nine years and her Entry Francis Griffith had but a Reversion and could not by his Contract made afterwards with Robert Rome give any Interest to Robert Rome This Lease made to Robert Rome viz. his former Lease was good in Interest being to commence at a day to come and is grantable over and may be surrendred or determined by matter in Law before the Commencement therof as if he take a new Lease to commence presently which see in 37 H. 6. 29. 22 E. 4. for it tuures in Contract And in this case it had been without question that the taking of the new Lease had been a surrender of the former if it were not by reason of the Lease for ninety nine years which is for so great a number of years that disables him to contract for one and forty years 37 H. 6. 17. 18. 14 H. 7. 3. Dyer 140. Vide Smith and Stapletons case in Plowden If a man makes a Lease for one and twenty years and after makes a Lease for one and twenty yeares by Paroll that is meerly void but if the second Lease had beene by Deed and hee had procured the former Lease to Attorn he shall have the Reversion vide Ive's Case Coke lib 5. fol 11. there it is adjudged that the acceptance of a Leese for years to Commence at a day to come is a present surrender of a former Lease These Cases were vouched in this Case Baker and Willoughby Serjeant Bakers Case in the Court of Wards with the Lady Willoughby that a
refusall was within the time of six years and it was adjudged for the Plaintiff because that the request is the cause of the Action for without it he could not have his action And the sole matter upon which Davenport insisted was that this was a Contract by the Husband wherupon the Plaintiff might have an action of Debt against him and then it is but an Assumpsit in Law and the request is not cause of action And therfore he said as well as Debt lies upon the delivery of Cloath to a Taylor for the making Garments therof so an action of Debt lies for the summ accompanying the speciall matter viz. for the payment of so much as the making shall be reasonably worth vide Coke lib 4. fol 147. so Debt lies as well against the said Sir Arthur upon this promise being made then and there he vouched 34 E 1. Fitz Debt 167. vet N. B. fol 62. 30 E 3. 18. 19. 27 H 8. Tatams case But the Court inclined that no action of Debt lay against Sir Arthur upon this Assumpsit but only an action of the case upon the request Mich. 4 Car. Treford versus Holmes Case Assumpsit in consideration of forbearance TReford brought an action upon the Case against Holmes as Executor and counted that wheras the Testator was indebted to the Plaintiff the Defendant in consideration that the Plaintiff would forbear the said Debt for a reasonable time assumed to pay it And this promise was made in December and he shew forbearance untill March next And upon Non assumpsit pleaded and Verdict for the Plaintiff Serjeant Thinn moved in Arrest of Iudgment that it is no sufficient consideration for the incertainty of the time if it had been for a little time it had not been good But the Court adjudged it good for the Court ought to judge of the time whether it be reasonable vide Isaac Sidleys case before Then he moved another Exception which was that he had not shewn and averred in the Count that the Defendant had Assets at the time of the promise vide Coke lib 9. fol 93. 94. Baines Case that ought to come on the other part or otherwise it shall be upon Evidence if it be necessary And Iudgment for the Plaintiff Mich. 5 Car. A strange increase of Water in Westminster-Hall MEmorand That on Friday the twenty third day of October by reason of the greatnesse of the Spring-tyde and a great Flood the Hall of Westminster was so full of water that neither the Serjeants could come to the Bar nor any stand in the Hall for there was a Boat that rowed up and down there and therfore all that was done my Brother Harvey went to the Stairs which came out of the Exchequer and rode to the Treasury and by this way went and set in the Court and Adjourned all the Iuries for it was the fourth day del tres Mich. And after that we were in the Exchequer Chamber and heard four or five motions of the Prothonatories there This comming into Court was not of necessity unlesse it had been the Essoin day or that the Court should be Adjourned as Craft Animar The Chancery and Kings Bench sate for they came by the Court of Wards Freeman versus Stacy Mich. 5 Car. BEtween Freeman and Stacy upon a speciall Verdict the Case was y The Plaintiff count upon a Lease by Indenture for one and twenty years rendring Rent and in debt for the arrearages of this Rent it appears that the arrearages of the Rent for which the action was brought were due six years and more before the action brought And the Lord Richardson was of opinion Arrearages of Rent reserved by Indenture is not within the act of 21 Jac. of Limitations that Iudgment should be given against the Plaintiff because the Statute of the 21. of King James cap. 16. extends to Debts for arrearages of Rent expresly But I and my Brother Harvey and Brother Yelverton concurred that this action of Debt being upon a Lease by Indenture is not limited to any time by this Statute but is out of it and shall be brought as before the making of this Statute The words are All actions of debt grounded upon any lending or Contract without specialty All actions of Debt for arrearages of Rent c. And this is an action upon a Contract by specialty 4 H 6. 31. he ought to declare upon the Indenture and it is a Contract viz. a Lease And there is cause of using the Indenture every half year And it was resembled to the case upon the Statute of 32 H 8. of Limitation a Rent-charge which is founded upon a Deed or a Reservation of a Rent upon a Fee-â—â—mple by Deed are not within the Statute of Limitation And nothing in this Statute was intended to be limited which was founded upon a Deed And the words Debt for arrearages of Rent are supplyed and satisfied by the arrearages of Rent upon a Demise without Deed. And as to the Obligation that he proof of payment might be wanting when the occasion is brought so long after the Rent became due that might be objected to Debt upon an Obligation where the day of payment is for a long time past And afterward the Lord Richardson mutata opinione agreed with us And Iudgment was given for the Plaintiff Trin. 6 Car. Shervin versus Cartwright SHervin brought a Writ De rationabile parte bonorum against Cartwright and counted of Custom in the County of Nottingham Rationabl pars bonorum is not within the â— Statute of 21â— Jac. of Limitations and shew all specially and the conclusion was that he detaineth particular Goods of the party Plaintiff which appertained to him as his part and portion And upon Non detinet pleaded it was found that the Plaintiff was intituled to this Action many years before the Statute of 21 Jac. and that he had not brought his action within the time limited by the said Statute And upon the speciall Verdict the Case being argued by Serjeant Ward for the Plaintiff it was adjudged for the Plaintiff First because that this Action is an Originall Writ in the Register and is not mentioned in the said Act and though that the Issue is Non detinet yet this is no action of Detinue for a Writ of Detinue lies not for money unlesse it be in bags but a Rationabile parte bonorum lies for money in Pecuniis numeratis vide the Book of Entries Rationabile parte bonorum And this action lies not before the Debts be paid And the Account was that therby it might be known for what it should be brought and that in many cases requires longer time then the Statute gives Another reason was that Statutes are not made to extend to those cases which seldom or never happen as this case is but to those that frequently happen Also this Statute tolls the Common Law and shall not be extended to equity And upon all these
use of the said Robert and Isaac and their Heirs for ever by force therof and of the Statute 27 H 8. they were seised of the said Rent in Fee and after the said Robert died and Isaac survived and is yet seised Per jus Accrescendi and for Rent arrear c. and for the said forfeiture of forty shillings they avow wherupon the Plaintiff demur And upon Conference between the Iudges they all agreed that by this Fine which granted to Brook and Jermy and the Heirs of Brook to the use of Brook and Jermy and their Heirs that they were in by the Statute of 27 H 8. and were Ioyn-tenants of the Rent for otherwise there would be such a Fraction of the Estato that Brook should be in by the Common Law and Jermy by the Statute and that is not according to the Statute And it appears that the use was limited by the Fine it self and not by any Indenture And the principall reason is upon the Statute of 27 H 8. which is where two or three are seised to the use of one or two of them Cestui que uâ—e shall be adjudged to have such Estate in possession as they have in use Iudgment pro Defendent Memorand That in this Term a motion was made for the filing of a Writ of Entry in a Common Recovery suffered by Sir John Smith upon a Purchase and all was well done and the Writ made and sealed Filing of a Writ of Entry many Termes after but by the negligence of the Attorney it was not filed and it was Unanimo assensu resolved that it should be filed and that after the death of Sir John Smith for it is but to perfect a Common Recovery which is a Common Conveyance And this was denied in the case of one Allonson for there Error was brought and Diminution alledged and a Certificate that there was no Writ by the Custos brevium And it is ordinary to file these Writs at any time within a year without motion Mich. 8 Car. Harbert versus Angell CHarles Harbert Plaintiff against Angell Case Words in an action upon the case of words which were Thou art a Theef and hast cousened my Cosin Baldwin of his Land And after Verdict for the Plaintiff it was moved in Arrest of Iudgment that the words would not maintain action And at the first Iustice Crawley and Iustice Vernon were of opinion that the former part of the words were actionable and that they were not extenuated by the subsequent words but they agreed if it had been for thou hast robbed c. it would be otherwise And the Lord Heath and Iustice Hutton were of a contrary opinion and that the words And and For are in this case to have one effect and declare what Theef he intended And they relyed on Birtridges case Coke lib 4. And upon this diversity of opinion the Lord Heath conferred with the Iustices of Serjeants Inn in Fleetstreet and we with the Lord Richardson and they all agreed that the subsequent words explained his intent and meaning viz. the Robbery and cousening of the Land And Verba sunt accipienda in mitiori sensu As to say Thou hast stoln my Corn it shall be intended Com growing so in Arrowes case Arrowes case 19 Jac. Thou art a Theef and hast stoln ten Cart-loads of my Furzes adjudged not actionable for it shall be intended of Furzes growing Quaerens nil capiat per breve Ram versus Lamley Norff. RAm brought an action upon the case against Lamley and declared That wheras he was Bonus legalis homo and free a suspitione feloniae the Defendant maliciously want to the Major of Linn and requested a Warrant of him being a Iustice of Peace against the Plaintiff for stealing his Ropes The Major said to him Be advised and look what you do the Defendant said to the Major Sir Words I will charge him with flat Felony for stealing my Ropes from my Shop Quorum quidem verborum c. And after Not guilty pleaded and Verdict for the Plaintiff Hitcham moved in Arrest of Iudgment And the Court unanimously resolved that these words being spoken to the Iustice of Peace when he came for his Warrant which was lawfull would not maintain an action for if they should no other would come to a Iustice to make complaint and to inform him of any Felony Quaerens nil capiat per breve Mich. 8 Car. Lamb versus West Trin. 8 Car. Rot. 333. SIr John Lamb Knight brought Replevin against Thomas West and count Replevin that the Defendant took his Beasts at Blisworth in quodam loco vocat Thorny Close The Defendant avowed as Bayliff to Sir William Sheapherd and derived Title by a Lease to Michael West for ninety years if he and Thomas West the Defendant Demand of Rent and one Hutton West should so long live And the said Michael 19. Aprilis An 20 Jac. granted a Rent-charge of ten pounds per annum to the said William Shepheard and his Executors out of the place in which c. for the residue of his Tearm to be paid at the house of Thomas West in S. And the said Mich. granted that if the Rent he arrear by eight and twenty daies being lawfully demanded at the said house he should forfeit twenty shillings for every day that it should he arrear and if it be arrear by six months being lawfully demanded at the said house then he might distrain for that and the Nomine poenae And for Rent arrear by a year after demand due c. he makes Conuzance And therupon the Plaintiff demurred generalls And after many Arguments at Bar the Iustices delivered shortly their opinions severally and all argued that it is a Rent-charge and then a Distresse is incident to a Rent-charge which is in its creation a Rent-charge as well as if one makes a Lease for life or years rendring Rent and if it be lawfully demanded then it shall be lawfull to distrain for it None will deny but that he may distrain for this Rent without any demand And the diversity is between a Penalty and a Rent for if the Avowry had been for any part of the Nomine poenae then without actuall demand at the day he could not have distrained therfore vide Maunds case Coke lib 7. fol 28. And all agreed that when a Distresse is for Homage if it be once tendred and refused he cannot distrain without demand vide Litt 34. 21 E 4. 6. 16 17. 7. E 4. 4. That where a Rent is reserved upon a Lease and an Obligation to pay it yet that alters not the nature of the Rent 22 H 6. a good case Rent is reserved upon a Lease and an Obligation to perform Covenants that extends not to the Rent reserved but if it be to pay the Rent then it shall be demanded there it is said that if Rent be tendred and refused the Lord or Lessor may distrain without demand It was agreed that
this Arraingnment the Iudges assistant sate with their heads covered as the ancient use hath been But the Serjeant at Armes was commanded to make Proclamation That the Iudges and all the Lords not being his Peers and all of the Privy Councell should be covered and others not And this was only in relation to the precedent usage and the right which appertain to the Iudges For in Parliament they being called by Writ use to be covered as oft as the Lord Chancellor or Keeper of the Great Seal which is Speaker puts on his Hat But now it is used that they put not on their Caps untill they have been requested by the Lord Speaker And when they are called into the Star Chamber or to Errors in the Exchequer Chamber they set covered with their Caps Pasch 7 Car. Risam versus Goodwin Mich. 5 Car. Rot. 2512. IN a Writ of Scire facias brought by William Risam against John Goodwin and Richard Peat Administrators of Thomas Cammon the Case was such The Court of Common Bench award not execution upon a Judgment given in grand Sessions in Wales The now Plaintiff William Risam recovered against Thomas Cammon a hundred pounds Debt and ten shillings Costs at the Grand Sessions holden at Carmâ—rthen and execution awarded and Nulla bona returned And upon Surmise that the said Thomas Cammon was dead and that the now Defendants had taken Letters of Administration a Scire facias issued against them and Nichil returned and after a Writ of Execution and that afterwards being returned by the Sheriff of the County Nulla bona testatoris a Writ issued to the Sheriff of the County of the Town of Carmarthen who returned Devastavit And because that the now Defendants had not Goods within the said County or within the County of the Town of Carmarthen or Jurisdiction of the Grand Sessions the Plaintiff procured a Certiori to the Justices of the Grand Sessions who certified the Record to the Chancery and by Mittimus it came to the Common Bench with directions Quia executio judicii praedicti adhuc restat faciend Mandant quod at the prosecution of the Plaintiff Vos fieri faciat de more secundum legem consuetudinem regni nostri Angliae fuit faciend Wherupon a Writ of Scire facias was awarded to the Sheriff of Hereford against the said Defendants to which they appeared And after many Imparlances they demurred upon the insufficiency of the Writ of Scire facias And this case was argued by Berkley for the Plaintiff and by Henden for the Defendant And the Cases put by Berkley were F N. B 243. a. b. 39 E. 6. 3 4 Ass in ancient Demesne and for the Damages surmised that he had nothing within ancient Demesne 21 E 3. 49. 21 H 7. 33. 8 Ass 27. 30 H 6 7. 3 H 4. 15. 1 Justitutes 59. in Frankalmoigne That Wales is parcel of England 1 E 3. Jurisdiction 45. 22 H 6. 58. 47. E 3. 6. 3. E 3. Quare Impedit 38. 35 H 5. 30. 19 H 6. 12. 52. vide the Statute of 34 H 8. for Wales and Writs of Error Henden argued to the contrary and his first reason was 1. That this Court of the great Sessions is an inferiour Court 2. The Record it self comes not but a Transcript 3. The Statute of 34 H 8. hath appointed the Execution and that should be pursued 4. This Innovation is perillous and never put in practice And he relyed upon the diversity When Iudgment in a peculiar inferiour Court comes into the Kings Bench or into this Court by Writ of Error and is affirmed then the Superiour supplies it and add strength to the Iudgment But when Iudgment is given in a Court of a Corporation and that is removed by Certiorari and sent by Mittimus that shall not be executed there vide 45 E 3. 25. Formedon in London vide 14 E 3. Tryals 23. 15 E 3. Record 35. New Book of Entries the last case in Writ of Error vide 8 E 3. 10. 26 H 6 8. 3 H 6. 16. 7 H 4. 8. 14 H 4. 25. H 5. 11. And he relyed upon 21 H 7. 35. and the case of 39 H 6. 3 4. and the case of ancient Demesne 7 H 9. 18. 37 H 6. 16. Dyer 369. And upon this Case the Iudges consulted and agreed that the Writ was insufficient And so Iudgment was given against the Plaintiff But it was said that upon this Iudgment so sent to this Court the Plaintiff might bring an action of Debt and so have execution But to make this Court an Instrument to serve an inferiour Court and to extend their Iurisdiction by this way as it were by a Windlace it is not lawfull Hil. 7 Car. Napper versus Sanders Pasch 6 Car. Rot. 1148. IN an Ejectione firmae brought by Robert Napper against Henry Sanders upon a Lease by Deed indented made by John Napper and Elizabeth his Wife and Francis Sanders upon Not guilty pleaged Remainder where it shall be said Contingent the Iury gave a speciall Verdict wherupon the Case was such Margaret Sanders seised in Fee makes a Feoffment to the use of her self for life without impeachment of Wast and after to the use of the Feeoffees for eighty years if one Nicholas Sanders and Elizabeth his Wife should live so long and if the said Elizabeth survive Nicholas her Husband then to the use of the said Elizabeth for life without impeachment of Wast and after the decease of the said Elizabeth to the use of Postumus Sanders Son of the said Nicholas and Elizabeth in tail And for default of such Issue to the use of Elizabeth Wife of the said Iohn Napper and Dorothy Sanders and the said Francis Sanders one of the Lessors and to the Heirs of their bodies remainder to the right Heirs of Margaret the Feoffor And there was a clause in the said Indenture that the intent of the Estate for years to the Feoffees was that the said Elizabeth Sanders might have the profits and not Nicholas her Husband who was a Prodigall Margaret Sanders dies and Dorothy dies without Issue the Feoffee enter Elizabeth Sanders dies Nicholas is yet alive and Posthumus dies without Issue Iohn Napper and his Wife and the said Francis entred and were possessed untill the Defendant as Son and Heir of the said Margaret entred and ousted them Et si super totam Materiam c. And the sole question was whether the remainder in tail to Posthumus and the remainder in tail to Elizabeth and Francis were contingent or executed And it was resolved by all the Court that the remainders were not contingent in the Estate for life which was to come to Elizabeth Sanders the Wife of the said Nicholas but were vested presently And it was agreed that the Estate for life if she survive her Husband was contingent and when that had hapned being by way of Limitation of an use it shall be interposed when the Contingent
happen as in Chudleys case Coke lib 1. fol 133. a Feoffment to the use of the Feoffor for life and after his death to his first Son which shall be afterwards born for his life and so to divers And afterwards to the use of I. D. in tail It is resolved that all the uses limited to-persons not in Esse are contingent but the uses to persons in Esse vest presently and yet these contingent uses when they happen vest by interposition if the first Estate for life which ought to support them be not disturbed And in this case it was a good Estate for life in Margaret And then gives the remane in the Feoffees for eighty years if Nicholas and Elizabeth Sanders so long should live and if Elizabeth survive Nicholas then to Elizabeth for her life and after her decease to Posthumus in tail and after his decease to the said three Daughters in tail so that there the Estate for years determines upon the death of Elizabeth and so also the Estate for life to Elizabeth which was contingent determines by his death And the Lord Darbies case a Feoffment to the use of Edward The Lord Derbies case late Earl of Derby in tail and then to the use of the two Feoffees for eighty years if Henry late Earl of Darby should so long live and after his decease to Ferdinand and to the Heirs Males of his body and for default of such Issue to the use of William now Earl of Derby And it was adjudged that the remainders vest presently And this possibility that Henry might have over lived the eighty years will not make the remainders contingent And in a Suit which was at Lancaster between Farrington and another Farringtons case upon a speciall Verdict there found about 8 Jac. and many times argued at Serjeants Inn it was afterwards adjudged a good remainder and not contingent And the same case in this Court upon a Scire facias for two have executor of certain Land for debt recovered against the Earl of Derby which Land was intailed by the same Conveyance c. brought against the Earl of Bridgwater and his Wife one of the Co-heirs of Ferdinand Earl of Derby was adjudged in this Court vide Borastons case Coke lib 3. fol 20. 14 Eliz Dyer 314. Lovies case Coke lib 10. 27 H 8. 24. 38 E 3. 26. 5 E 3. 27. 30. E 3. Collthurst and Bemchins case was urged that the remainder limited to B. for life and after that C. hath married Ja. S. then to the use of C. in Fee this is contingent and is collaterall And this case is not like to that And after Argument at Bar this Term it being argued before that the Lord Richardson was there who was of the same opinion we all concurred and Iudgment was entred for the Plaintiff Pasch 8 Car. Metcalfe versus Hodgson Case MEtcalfe brought an action upon the case against Hodgson and Wharton late Sheriffs of the City of York and count That wheras time out of memory c. there hath been a Court of Record holden before the Sheriffs of the said City upon the Bridge called Ousbridge An action of the case lies not against a Sheriff for taking of insufficient Bail being Iudges and that in this Court every one having cause of action arising within the said City had used to commence any action for debt there and that the Defendants being arrested by their bodies the Sheriffs had used to take Bayle of them and to let them to Bayle finding sufficient sureties and that the Sheriffs are also and time out of memory have been Keepers of the Gaol there And wheras the Plaintiff had brought an action against one Smith and recovered the now Defendants being Sheriffs had taken insufficient Bail of him c. And upon Not guilty pleaded it was tryed before the Lord chief Baron at York for the Bail are supposed to be taken at Wakefield but that was not alledged for any thing which appears to be out of their Iurisdiction And the Iury contrary to the direction of the Lord chief Baron gave Verdict for the Plaintiff And after many motions in Arrest and praying of Iudgment it was resolved that this act was done by them as Iudges and for this Iudiciall Act no action lay And though that the Bail by the event appear to be insufficient yet there is no remedy by action upon the case it being without fraud or corruption and not for reward And this Case differs nothing from the ordinary cases of all insufficient Bailes taken by any of the Kings-Bench Common Bench or Exchequer And that they having two Authorities in una persona it shall be taken to be done by that Authority by which they have power to vail and that is as Iudges of the Court and not as Gaolers for by this they have no power to Bail any and in this capacity they are only subject to an escape vide Dyer 163. Error cannot be assigned in that which the Court of Common Bench do as Iudges vide 12 E 4. 19. Conspiracy lies not for that which a Iustice doth as Iudge of Record Quaerens nil capiat per breve Mich. 8 Car. Hickes versus Mounford Trin. 7 Car. Rot. 514. Replevin REplevin brought by Walter Hickes against Simon Mounford and others the Defendants make Conusance as Bayliffs to Sir John Elliot Executor of Richard Giddy And that the place contain twenty acres and was parcell of the Mannor of Trevelun And that Thomas Archbishop of York and Cardinall and three others were seised of the Mannor wherof c. in Fee Traverse of a day and the third of June 11 H 8. by Deed inrolled granted to King H. 8. a Rent-charge of fifty Marks per annum out therof in Fee with clause of Distresse and convey the Rent by discent to E. 6. Mary and Elizabeth who by her Letters Patents granted it to Richard Giddy for life who made the said Sir John Elliot his Executor and died and for such a summ arrear they Avow c. The Plaintiff pleaded in Bar to this Avowry and confessed the Seisin of the said Arch-bishop and the others and said that the said Arch-bishop and the others the fourth of June 11 H 8. enfeoffed Peter Edgecombe in Fee of the said Mannor who conveyed it to Richard Edgecombe Knight who entred and licensed the Plaintiff to put in his Beasts which he did and that they were there untill by the Defendants distrained absque hoc that the said Arch-bishop and the others the aforesaid 3. June 11 H 8. granted the said Rent to the said King and his Heirs Modo forma prout the Defendants alledged Et hoc paratus est verificare The Defendants say that the Arch-bishop and the others granted the Rent to the King modo forma as they had alledged and Issue therupon and the Iury found That the said Arch-bishop and the others 11 H 8. recovered this Land against Sir
Peter Edgecombe and it was to the intent of granting the Rent to the King and his Heirs and then of the recovery of the Mannor out of which c. to the said Sir Peter Edgecombe in tail the remainder to the King and they being seised by their Deed dated the third of June 11 H 8. sealed and delivered which is found in haec verba and that it was inrolled afterwards viz. 7. June granted the said Rent to H 8. Et si super totam materiam the Court adjudged it a Grant by Deed the third of June 11 H 8. then for the Defendant c. And upon Argument at Bar and conference had we all declared our opinion and agreed that Iudgment should be given for the Defendants The first reason was that the Issue is joyned upon the Grant modo forma and not upon the day as is offered by the Traverse but upon the Grant modo forma And the matter found is generally as is alledged vide Littleton Title Release that modo forma avoid and prevent the matter of day and goes solely to that which is materiall And by any thing which appears by the Verdict there is no intervening matter after the third day and before the seventh when the Deed was enrolled and then it is a good Grant of the third of June vide H 7 31. Then the speciall Conclusion found which is contrary to Law shall not conclude the Iudges to give Iudgment according to Law And so Iudgment was given for the Defendants Mich. 8 Car. Col. versus Wilkes SAmpson Cole brought an action of Debt upon the Statute of 2 H. 6. against Leonard Wilkes Tryall at the Bar Debt Debt upon the Statute of the 2 E. 6. for Tithes A Lease was made to two they enter and occupy and set not out their Tithes Debt was brought against one of them it lies not But here it was found that one only occupyed the Land and therfore the action well lies Sir John Gerards case And a Case was shewn Mich 8 Jac. An action of Debt was brought upon this Statute by Sir John Gerard against two Tenants in Common and it appeared that one of them set out his Tithe and that the other afterwards took it and carried it away and adjudged that the action lies only against him which carried it away Pasch 9 Car. Strilley's Case Amendment of the proclamation of a fine VPon motion made in this Court for the amendment of a Proclamation of a Fine levied by Strilley of Lands in Nottinghamshire Mich 11 Eliz. The Proclamations endorsed by the Chirographer upon the Fine were well but in the Transcript and Note of the Fine which is delivered to the Custos brevium by the Chirographer according to the Statute the second Proclamation was entred to be made the twentieth of May where it should have been the twenty third day of May and that by the misprision of the Clerk And it was moved that that might be amended And the Court was of opinion that it should be amended for the Ingrossement upon the Fine by the Chirographer is the foundation and that being well it is sufficient Warrant to amend the other And the Court was of opinion that it was a good Fine without any amendment But it being the misprision of the Clerk it shall be amended as in the case Coke lib 8. Blackamores case The Proclamation made and entred before the Originall shall be amended And it was objected that this Fine and Proclamations as they found in the Office of the Custos brevium are exemplified under the Great Seal and therfore by a Clause in the Statute of 23 Eliz cap. 3. could not be amended after such exemplification To that it was answered that that Statute extends only to Fines before levied which should be exemplified before the first day of June An 1582. And the latter clause in the said Statute doth not extend but to Fines exemplified according to the said Statute And therfore it was awarded to be amended Pasch 9 Car. Glasier versus Heliar Sussex Case GLasier brought an action upon the case for words against Heliar and shewed that three Colliers being in an house in Sussex were feloniously burnt in the said house and shewed that two or three men were indicted convicted and executed for the said Murther the Defendant knowing therof and intending to bring the Plaintiff in perill of his life Words as accessary to the said Murther sayd to him Thou didst bring Faggots a mile and a half to the burning of the Colliers And after Verdict for the Plaintiff and motion in Arrest of Iudgment it was adjudged that the words were actionable For if a Mansion-house be burnt feloniously to say You brought fire to set in the Thatch of the house which is burnt it is actionable Iudgment pro quaerente Smith versus Cornelius Southamp JOhn Smith Town-Clark of Southampton Case brought an action upon the case against one Cornelius an Attorney of this Court and shew that the Plaintiff was of good fame and Town-Clark of the Major and Burgesses of Southampton and was their Scribe and had the custody of all Rolls Pleas and Certificates Words and other proceedings before the Major and Burgesses in the Court before them to be holden And the Defendant intending to draw him into Infamy and to cause him to lose his Office said to him Thou hast made many false Certificate to the Major and Burgesses in that Court and the more thou stirrest in it the more it will stink And it was adjudged that these words are not actionable 1. Because that it is not alledged that there was any Colloquium concerning his Office of Town-Clark 2. Because that it appears not in the Count that the making of Certificates belong to his Office but only that he had the custody of them 3. It might be false and yet no blame to him if he did know them to be false or that he had made them false maliciously And therfore Iudgment was given for the Defendant And this Case was moved again by Hitcham the first day of Trinity Term next And then Iudgment was affrmed Hil. 9 Jac. Edwards versus Laurence Trin. 9 Car. Rot. 2488. Suff. RAchel Edwards brought an action of Trespasse against Richard Laurence for breaking of her Close Trespasse The Defendant in Bar to the new Assignment plead Traverse of Seisin that before the time of the Trespasse supposed to be done one Francis Tayler was seised in Fee of the Tenements wherof c. and so being seised died wherby it descended to Francis his Son and Heir who being seised therof 8 Car. demised it to the Defendant for two years by vertue wherof he entred and gives colour to the Plaintiff by a Grant made to him by Francis the Father where nothing passed therby and so iustifie The Plaintiff replyed that long before Francis Tayler the Son had any thing one Francis Tayler Grand-father of
the Award of Costs were in full force and effect But that afterwards viz. such a time as well the said Iudgment de non pros as the said Iudgment of thirty pounds Debt against the now Plaintiff were evacuated wherupon the Defendant demurred And it having been often debated by Hitcham for the Defendant and Henden for the Plaintiff And now upon Oyer of the Record and of the Iudgment the Court gave Iudgment for the Plaintiff And the Lord Finch said that this action upon the case is grounded upon two misdemeanours 1. The procurement of the said Iudgment for Edw. L. after a Non pros entred for the Defendant And though the Iudgment was erroneous yet the now Plaintiff was vexed and imprisoned therby which indeed is the cause of this action 2. The taking therof unlawfully when the first Iudgment de non pros was in force and the Plea of Nil tiel Record go only to one of the Causes And admitting that there was never a Iudgment de non pros but that the Defendant had unlawfully procured a Iudgment and taken Execution therupon and procured the Plaintiff to be taken in Execution and Imprisoned this is cause of action And to that he hath not answered and therfore he ought to have pleaded Not guilty to that which he takes by protestation Iudgment pro quaerente Pasch 11 Car. Baker versus Hucking Adjudged B. Rs. Tenant in tail and he in Reversion make a I. case Pro ut aut vic TEnant in tail and he in Reversion joyn by Deed in a Lease for life he in Reversion devise the Land by his Will to one in Fee and dieth Tenant in tail dies without Issue and the Heir of him in Reversion and the Devises claim the Land And the sole question is if this Lease be a Discontinuance and it was adjudged a Discontinuance and then the Devise void for he had not a Reversion And the difference was taken when Tenant for life and he in Reversion joyn in a Lease by Deed for without Deed it is first a Surrender Discontinuance and then the Lease or Feoffment of him in Reversion it shall be the Lease of Tenant for life so long as he live and after the Lease of him in Reversion and yet they shall joyn in a Writ of Wast And in this case there is no question but if the Lease had been made solely by Tenant in tail that then it were a Discontinuance and the joyning of him in Reversion alters it not for that amounts to nothing but as a Confirmation and is not like to Bredons case Coke lib 1. fol 76. Where Tenant for life and he in remainder in tail levy a Fine for every one there passeth that which lawfully he may And upon Argument it was adjudged that it was a Discontinuance and not the Lease of him in Reversion but his Confirmation Iustice Crooke differed in opinion Mich. 11 Car. Lashbrookes Case Somerset LEwes Lashbrook an Attorney of this Court brought an action of Trespasse against I. S. for entring into his house and breaking his Close And in the new Assignment he alledged the Trespasse to be in a house called the Entry and in a house called the Kitchin and in his Garden and in one Close called the Court. The Defendant as to the force c. and to all besides the Entry plead Not guilty And as to his entry into the Court and Kitchin A Warrant to four and two of them execute it and the Tenements aforesaid of the new Assignment he plead that he had brought an action against a woman for Trespasse and had so proceeded that he recovered and had execution directed to the Sheriff of Somersetshire and therupon a Warrant directed to four speciall Bayliffs to arrest the said Woman and two of them at Minehead in the County of Somersetshire arrested her and carried her to the house of the Plaintiff in Minehead being a Common Inn and the Defendant entred into the said houses called the Entry and Kitchin and the Tenements aforesaid of the new Assignment to speak to the Bayliffs and to warn them to keep her safe And as soon as he could he returned wherupon the Plaintiff demurred And now Henden took two Exceptions the first was 1. That the Defendant had not pleaded to all the Closes but that was over-ruled for he justified in the tenements aforesaid of the new Assignment 2. The second was that the Warrant to the Bayliffs was to all and not Conjunctim and Divisim and therfore it should be by all and not by two only To that it was answered and resolved that when a Sheriff makes such a Warrant which is for the Execution of Iustice that may be by any of them for it is Pro bono publico And the very Case was adjudged 45 Eliz between King Hebbs Coke Littleton 181. b. And Iudgment was given for the Defendant Hil. 11 Car. Davies Case Hereford DAvies an Attorney of this Court brought an action upon the case for these words If I list I can prove him Perjured Words And the opinion of the Court was that they were not actionable for there is not any Affirmative that he was perjured but a thing which is Arbitrary and saies not that he would do it Iudgment pro Defend Mich. 7 Car. Rot. 1097. Alston versus Andrew Suff. Pâ—ter Alston Executor of Peter Alston brought an action of Debt upon an Obligation of a hundred and twenty pounds against William Andrew The Obligor and the Obligee make the same person Executor and Edward Andrew and count That the Defendants and one Francis A. became obliged to the Testator c. and that they did not pay it is the said Testator in his life nor to the now Plaintiff and one Francis Andrew Co-executor with the Plaintiff who is summoned and the Plaintiff admits to prosecute alone without the same Francis c. The Defendants demand Oyer of the Obligation which is entred in haec verba and plead that Francis A. in the said Writing named after the making therof made the said Francis Andrew and Barb. A. his Executors and died And that the said Francis A. accepted the Burthen of the Testament And after the said Peter Alston the Testator made his will and Constituted the Plaintiff and the said Francis his Executors and died Et hoc paratus est verificare unde c. wherupon the Plaintiff demur Trugeon and Meron Mich 2 Jac. Rot. 2663. Garret Trugeon Plaintiff against one Anthony Meron and others the Administrators of Benjamin Scrivin upon a single Bill The Defendants demand Oyer of the Bill wherby it appears that one John Simcocks was obliged to the said Trugeon joyntly and severally with the said Scrivin Quibus lectis auditis the Defendants sayd that the said Simcocks died intestate and that the Administration of his Goods was granted to the now Plaintiff who accepted the Burthen of the Administration and Administred the Plaintiff demurred
and Iudgment against the Plaintiff 8 E 4. 3. 21 E 4 2. Lit. 264. b. 20 E 4. 17. If the Debtee makes the Debtor and others his Executors the Debt is discharged Mich 9 Car. Banco Regis Rot 373. Anne Dorchester Executrix of Anne Row Dorchester and Webb Plaintiff against William Webb in Debt upon an Obligation of five hundred pounds the Defendant demanded Oyer wherby it appears that the Defendant and one John Dorchester were obliged joyntly and severally in the said Obligation The Defendant plead in Bar that the said John Dorchester made the Plaintiff his Executrix who proved the Will and had Goods sufficient in her hands to pay the said Debt The Plaintiff reply that before the death of the said Anne Row the Obligee she had fully Administred all the Goods of the said John Dorchester Demurrer and Iudgment for the Plaintiff And in this case it is not shewn that the said Francis and Peter or any of them proved the Will of the said Obligee or that they administred his goods or that they had any goods of the Obligor to administer at the time of the death of the Obligee as it ought to have been shewn And the said Francis Executor of the Obligee and also of the Obligor refused to be Executor to the Obligee and never Administred and never meddled with the Goods of the Obligee and so the Debt is not released in Law as by the said Case and former Iudgment appears This case had been often argued by Serjeant Hedley and of the other part by Serjeant Hitcham and affirmed that once Iudgment was given for the Defendant but it yet depends Trin. 12 Car. MEmorand Vpon Petition exhibited to the King by the Prisoners of quality which were in execution in the Fleet Liberty may not be given to Prisoners by force of a Habeas Corpus Kings Bench and Marshalsey to have liberty in the time of Infection and for preservation of their lives to have liberty by Writs of Habeas Corpus to go into the Country upon security to be given to the Warden and Marshall for their return The King out of his great care of their safety referred their Petition to the Lord Keeper Coventry and that he with the advice of the Iudges should consider by what way it might be done And the eighteenth day of June we attended the Lord Keeper at Durham-house And therupon conference and consideration of a former Resolution which was at Reading in Mich. Term last before the said Lord Keeper where were present all the Iudges besides my self That these abusive Habeas Corpus were not lawfull and that the Warden and Marshall were then called and warned that they should not suffer their Prisoners to go into the Country as they had used to do by colour of such Writs This which followes was subscribed WEE are of Opinion that the Writ of Habeas Corpus is both Ancient and Legall But as the Writ doth not so no Rule can Authorize the Keeper of the Prison to give liberty to his Prisoner by colour of such Writ but the same is an abuse against Law and an Escape in the Keeper if he let the Prisoner go by such Writ We find that neither in the twenty fourth year of Eliz. when the Term was Adjourned to Hertford Nor in the 34. of Eliz. in which year it was Adjourned to Hertford Nor in the 35. of Eliz. in which year it was Adjourned to St. Albans Nor in 1 Jac. in which year the Term was Adjourned to Winchester Nor in the first of King Charles in which year it was Adjourned to Reading In all which years there were great and dangerous Infections of the Plague there was no such course to set Prisoners out of Prison by Habeas Corpus but we find it a Novelty begun of late years But We think that if the danger of Infection shall grow so great as it shall be found necessary to provide for the safety of the Prisoners who may at all times provide for themselves by paying their Debts and yeilding obedience to Justice then a course may be taken that some certaine house may be assigned for the Warden of the Fleet in some good Town remote from the Infection and the like for the Marshall of the Kings Bench in some other Town where they may remove such Prisoners as have been Petitioners to his Majesty and there keep them as Prisoners Sub arcta salva Custodia as they should be kept in their proper Prisons and not to be as House-keepers in their own houses and by this means they will have the like to avoid the Infection as other Subjects have and not make the Infection a cause to abuse their Creditors or delude the course of Justice John Bramsion 1. Richard Hutton 2. George Crooke 3. George Vernon 4. Francis Crawley 5. Humph. Davenport 6. William Jones 7. Thomas Trevor 8. Robert Barkley 9. Richard Weston 10. To Sir John Bramston Knight Lord chief Justice of England My very good Lord I Have acquainted his Majesty with your resolution and your Brethren about Writs of HABEAS CORPUS his Majesty doth exceedingly approve the same And hath commanded me to let you know that his Majesty would not recede from that which you have certified And praies you and the rest of my Lords the Judges to observe it constantly attending to that resolution under your hands Hampton Court 19 June 1636. Your Lordships assured Tho. Coventrey C. S. Mich. 14 Car. MEmorand That 28. Aprilis 14 Car. Iustice Hutton argued in the Exchequer Chamber in the Case Adjourned thither upon a Scâ—re facias by the King against Hampden for Ship-money in which he was of opinion that as well for the matter as for the form upon divers exceptions to the pleading Iudgment should be given against the King Afterwards viz. 4. Maij. Thomas Hanson Batchelor of Divinity and Parson of Creake in Northamp came to the Court of Common Bench Iustice Hutton and Iustice Crawley then being there giving Rules and Orders and said Words against Justice Hutton I accuse Mr. Justice Hutton of high Treason for which he was committed to the custody of the Warden of the Fleet by Iustice Crawley and after by the direction of the King he was indicted in the Kings Bench and convicted and fined to five thousand pounds to the King And Iustice Hutton preferred his Bill against him there and recovered ten thousand pound Dameges Lord Digbies Case MEmorand That in the Parliament holden primo Car. It was resolved by the Iudges upon conference concerning the Lord Digby That when any Peer shall be proceeded against for Treason that ought to be by Indictment and that being done Where tryall of Treason by the Statute of 3 Jac. cap. 4. shall be and how then the King is to appoint a Peer to be Steward for the time and then to proceed to Arraign him or otherwise to transmit this Indictment by Certiorari to the Parliament and there
to proceed vide 10 E 4. 6. 1 H 4. 1. vide Coke Lit fol 261. b. Or otherwise to prefer a Bill in the Parliament which ought to be passed by both houses and then it is Attainder by Parliament and so it was done 5 R 2. 54. But in this Case it being that part of the Treason objected against him was supposed to be done Oust le mere and made Treason by the Act of 3 Jac cap 4. that cannot be tryed but by Indictment to be taken before the Iustices of Assise and Gaol-delivery where the party was taken or before the Iustices of the Kings Bench and Law Custome Statute or usage to the contrary notwithstanding And so it cannot be tryed by the Statute of 35 H 8. cap 2. in what place or Shire that the Kings Bench shall be for this Statute had for this Treason prescribed a speciall form of Tryall and the place where he shall be taken shall be expounded the place where he is misprisoned as upon the Statute of Soldiers And he which is charged to have two Wives living shall be tryed in the place where he is taken which is the place where he is imprisoned vide 2. Inst 49. Trin. 12 Car. Quaeries concerning Aliens QUaeries upon the Statutes of 1 Riz cap 9. 1 H 7. cap 2. 14 H 8 cap 2. the Decrees in the Star-chamber made 20 H 8. and confirmed 21 H 8. cap 16. 22 H 8. cap 8. 32 H 8. 16. and other Statutes concerning Aliens and the Statute of 5 Eliz cap 4. 1. Whether the Statute of 5 Eliz. cap 4. doth repeal the former Statutes concerning Aliens taking Apprentices Iourny-men and Servants 2. Whether Aliens made Denizens may use any handycraft within the Realm otherwise then as Servants to the Kings Subjects Memorand That on the seventh day of July We met at Serjeants Inne in Fleetstreet Mr. Attorney-generall being there and We debated the matter and upon perusall of the Statute of 1 R 3. cap 9. and the other Statutes And upon some mis-recitall of the Statute 1 R 3. by the Statute 32 H 8. cap 16. And upon differences of the Printed Statute from the Parliament Roll as was supposed upon shewing of an old Book of Statutes which was in French and brought by my Brother Crook and upon the intricacy of the Statute We could not resolve on the suddain upon these Questions at this time nor unlesse the Parliament Roll might be seen But upon perusall of the Statute of 5 Eliz cap 4. We all resolved and agreed That all Aliens and Denizens are restrained by the Statute of 5 Eliz cap 4. That they may not use any Handycraft mentioned in the said Statute Resolves upon the Statute of 5 Eliz. cap. 4. concerning Aliens unlesse they have served seven years as Apprentices within this Realm according to the provision of this Statute This was set down in writing by Sir John Banks his Majesties Attorney Generall present Sir John Bramston chief Iustice of England Sir John Finch chief Iustice of the Common Bench Sir Humphrey Davenport chief Baron Baron Denham Iustice Hutton Iustice Crook Baron Trevor Iustice Crawley and Baron Weston the other Iudges being absent viz. Jones and Vernon Hil. 12 Car. Souser versus Burton ONe Widow Souser brought an action of the Case against Burton for these words Thou old Witch thou old Whore leave oft thy witching or else thou shalt be hanged or burned if I can do it And upon Not guilty pleaded and Verdict for the Plaintiff it was moved in Arrest of Iudgment And it seemed to Lord Finch Hutton and Vernon that the action lay not without shewing that she did any act of Witchcraft for which the pain of Pillory and Imprisonment for two years should be inflicted and the second time Felony And that the words Words Thou art an old Witch or go away thou old Witch are usuall words and old Whore bears no action And as to say Thou shalt be hanged if I can do it it is not possible that he could do it But Iustice Crawley doubted of it at first because that it was alledged that it had been adjudged in the Kings Bench that an action lies for calling one Witch But afterwards he said that he had spoken with the Iustices of the Kings Bench of their reason who said that they adiudged no such thing unlesse that he spoke further that the party had done any act of Witchcraft punishable by the Statute Hugles versus Drinkwater AN action of Account by William Hugles against Thomas Drink-water for receit of eighteen pounds In Account payment by appointment of the Plaintiff is no plea before the Auditors where the Issue was Ne unques receivor by the hands of one William Appowell to the use of the Plaintiff the Defendant plead Ne unquer receivor per manus c. and found or the Plaintiff And the Defendant before the Auditors plead that he by the appointment of William Appowell had paid it to one John Marsh for the Debt of the Plaintiff and therupon Demurrer And adjudged a bad Plea and against his former Issue And the said Appowell by whose hands he received the said summ had not any power to appoint the Defendant to pay it to John Marsh to whom the Plaintiff was indebted and if that had been pleaded in Bar of the Account to have been done by the appointment of the Defendant it had been a good Bar vide Dyer 29. 196. after ne unques receivor and the truth was that he had been Receiver and had paid it over by the appointment of the party and yet by this Plea be hath lost the advantage therof An. 2. Car. MEmorand That the 19. day of May An 2 Car. all the Iudges being assembled at Serjeants Inn in Chancery Lane by the commandment of the King the Attorney Generall propounded In what cases a prisoner arraigned shall have Councell that the King would be satisfied by our opinion Whether any person which is arraigned of Treason of Felony ought by the Fundamentall Lawes of this Realm to have Councell And We all una voce answered That when any one is indicted of Felony or Treason or any other such offence the party ought not to have any Councell unlesse it be upon matter in Law as where he demand Sanctuary or plead any speciall matter and that is agreed by Stamford fol. 151. Also this extends as well to Peers of the Realm as to others vide 1 H 7. 23. and the 9 E 4. 2. and so it was agreed by all that although the party shall have Councell in an Appeal of Murther yet if he be non-suited and the party be arraigned upon the Declaration then he shall have no Councell Also it was resolved that when the party who prosecute suppose that the Grand Iury will not find the Invictment and therfore requires that the Evidence should be given publickly to the Iury at Bar which is sometime done yet the party who