of the Term with the Remainder over And the Devisee of the Occupation of a Term hath one speciall Property and the Remainder another Property As if a Lease be extended upon a Statute the Conusee during the Extent hath one Property and he who is to have it afterwards another Property and the reason of the difference is apparent when the Occupation is devised and when the terme is devised for in the first Case he puts but only a confidence in the Devisee as it appears in Welkdens Case But in the other Case all the Property goes and there is no confidence reposed in the Devisee And there is a Case in the very Point with which I was of Councell and was decreed in the Court of Chancery it was one Edolf's Case Where the Devise was of a terme the Remainder to another and he made the Devisee his Executor and he entred Virtute donationis as in this Case and it was decreed That the Executor might alien the Terme and that the Remainder could not be good And to this purpose Vid. 33. H. 8. 2 E. 6. 37 H. 6. 30. But if there might be a Remainder yet Incertae Personae nulla donation for if all the Children be preferred then the Remainder is void and then the Property of the Lease is in the Wife and she might preferre her at any time during her life and the generall property cannot be in another but in the Executor for the Legatee cannot enter although that 27 H. 6. seemeth to be contrary And if the whole Property be in the Wife her Husband might alien it and therefore it may be extended for his Debt as 7. H. 6. 1. is But it may bee objected That the Cases before put are of a devise of a Term and this is of a Lease That makes no difference for in Wroâ—â—slâ—y's Case Lease there is said to contain not only a terme but also the years to come in the terme Then the Question is If by the sale of the Sheriff upon the Fieri facias if the term be so gone that the Wife shall not have it by the Reversall of the Judgment by Error for the Judgement is that the Party shall be restored to all that which he hath lost It is very cleer that it shall never return for if it should be so then no sale made by the Sheriffe might be good unlesse the Judgement be without Error which would be a very great damage to the Common Wealth And also by reason and by the Judgment in the Writ of Error it should not be so restored for the Judgment is That he shall be restored to all that which he hath lost ratione judicii and here the Defendant hath not lost any thing by force of the Judgment but by force of the Execution For the Judgment was to have Execution of 200 li and of the 200 li. he shall be restored again and not of the Lease And therefore in 7. H. 7. If a Manor be recovered and the Villains of the Manor purchase Lands and afterwards the Judgment is reversed by Error the Recover or shall have the Perquisite and the other shall not be restored to it And 7. H 7. A Statute was delivered in Owell maine and a recovery was by the Conusee upon Garnishment of the Conusor and the Conusee had Execution and afterwards the Judgement is reversed by Error yet the Conusor shall not be restored to the Land taken in Execution but only the Statute shall be redelivered back where it was before And in this Case if the party should be restored to the term it should be great inconvenience Also if I give one an Authority upon Condition and the Party doth execute the Authority and after the Condition is broken the Act is lawfull by him who had Authority upon Condition And so was the Lord of Arundels Case where the Feoffee upon Condition of a Manor granted Coppies it was holden That the Grants made by him were good notwithstanding the Condition was afterwards broken And in 13 E. 3. Barr 253. That a Recovery was Erroneous and the Party being in Execution the Gaoler suffered him to escape and after the Recovery was reversed for Error yet the Action lay against the Gaoler Also by him the Jury have given an imperfect Verdict so as we cannot tell whether the Party were preferred or not for the Will was unpreferred generally and the Jury find that she viz. A. the daughter was not preferred by her father in his life time so as the Preferment by the taile is limited generally so as if any other prefer her she shall not have the Remainder And the Jury have found that she was not preferred by one certain viz. by her Father nor in a certain time in his life time which is as much as to say That she was preferred by the Uncle Aunt or Mother and if it were so then the Remainder is not good to her Also they find no preferment in the life of the father and it may be that the Father hath given her preferment by Will and that was no preferment in his life but is consummate only by his death and so she might be preferred by him by Implication by his Will So as upon the whole Matter I conceive That the Judgement ought to be reversed Note that this Case was afterwards adjudged at Hertford Terme and the Judgement was That the Issue of the Wife had Judgement for her Terme and that the Judgement upon which the Execution was was Erroneous and reversed by the Writ of Error and that the opinion of the Justices was That the Term was not to be restored but so much for which it was sold upon the Execution And the Daughter of Perepoynt brought an Action for it and had Judgement 27 Eliz. in the Common Pleas. 37. ONE had certain Minerall Lands Leased to him for years with liberty to dig and make his Profit of the Mine The Lessee afterwards digged for Mine and sold the Gravell which came of it And by the Opinion of the whole Court This sale was no Waste for no Sale is Waste if the first act be not Waste As the Sale of Trees by Tenant for life or Years is not waste if the Cutting and Felling down of them was not Waste before for the Vendition is but a secondary Act and but subsequent to the Act precedent which Act if it were lawfull the Sale also is lawfull for the Sale alone is not waste But they said That if the Lessee fell or cut Timber Trees and sell them it is waste Non quia vendebat sed quia scindebat For if he suffer them to be upon the ground without doing any thing with them yet it is waste but he may use them for the Reparation of his house and then it is no waste And yet when he fels them with an intent for Reparations and afterwards sells them it is waste Non propter Venditionem only but for the felling
Assize brought against him the same shall be recowped in damages because that which was done was for his Commodity also it is incident to one who hath a way for to mend it All Prescriptions at the first did begin by Grants And if one grant to me his trees the Law saith That I may come upon the Land to fell them and carry them away off from the Land and I shall not be a Trespassor And by 9. E. 4. and Perkins If one grant to me liberty to lay a Conduit Pipe in his Land I may afterwards mend it toties quoties it shall want mending 32. E. 3. If one grant to me a way if he will interrupt me in it I may resist him and if he dig Trenches in the way to my hinderance in my way I may fill them up again The books of 12 13. H. 8. are not adjudged If Lessee for years be of a Meadow he may dig to avoid the water and may justifie so doing in Waste brought against him But it was said That in that Case the Lessee hath an interest in the soil so hath not he who claims the way in this Case Clenche Justice held That he could not dig the Soile Then the Defendant demanded What remedy he should have Suit Justice If he went that way before in his shooes let him now pluck on his boots Gawdy The pleading is not good for he saith That he could not use his way so well as before which is not good but he ought to plead that he could not use the way at all Mich. 28 29. Eliz. in the Kings Bench. 58 IN an Ejectione firme The party ought to set forth the number of the Acres for although he give a name to the Close as Green Close or the like it is not sufficient because an habere facias seisinam shall be awarded But in Trespasse the same may be Quare clausum suum fregit c. without naming the number of the Acres And so it was said it was adjudged in a Shropshire Case Mich. 28 29. Eliz. In the Kings Bench. 67. IN an Action upon the Case because that the Defendant had made a Gate in one Towne for which he could not go to his Close in another Town Cook took Exception that the Writ was Vi armis and it was agreed per curiam that for that cause it was not good Also the Visne was of one Towne only whereas it should have been of both for he said That in Hankford and Russels Case The Nusance was laid in one Town per quod his Mill in another Town could not grinde and upon Not guilty pleaded the Visne came from one Town only and it was adjudged that it was not good Mich. 28 29. Eliz. in the King Bench. 68 JOHN JOYCE'S Case AN Action upon the Case was brought against John Joyce Inn-keeper of the Bell at Maidstone in Kent for not scowring of a Ditch which ran betwixt the house of the said John Joyce and of another man and Judgement was given for the Plaintiffe against the Defendant Joyce and a Writ of Error was brought to reverse the Judgement and divers Errors were assigned The first Error which was assigned was That the Plaintiffe doth prescribe That all the Inhabitants of the Bell c. had used to scowre the Gutter c. And it was said That that was no good forme of prescription as in 12. H. 4. 7. Br. Presâ—ription 16. Where the Plaintiffe said That the Defendant omnes alii tenuram illam priushabentes mundare debuere consuevere talem fossatam and therefore the Writ was abated for it ought to have been quod ipsi praedecessores sui de tempere cujus contrarium c. Or that such a one and his Ancestors or Predecessors whose Estate the Defendant hath c. Also if a Copy-holder prescribe That he and all his Tenants tenementi praedict ' have used to have estovers in such a Wood c. it is not good but he ought to prescribe in the Manor The second Error was That the Prescription was uncertain for it is That all Tenants c. which extendeth to Tenants in Fee in Taile for Life or years and the Prescription is the foundation and ground of the Action and therefore it ought to be certain As if one make Title for entry for Mortmaine he ought to shew that he hath entred within the year and day 7. E. 6. Br. Prescription 69. It is holden That Tenant for years or at will cannot prescribe for common for the prescription ought to be alledged in the Tenant of the Free hold or to alledge a Corporation or the like In reason Tenant for years cannot prescribe for his Estate hath a certain beginning and a certain end therefore it is not of long continuance The third Error was That the Plaintiffe hath not alledged That the Defendant was Tenant at the time of the Action brought as in the Case of Clerkenwell and Black-Friâ—rs where the Plaintiffe brought his Action upon the Case for that the Defendant had turned the course of the water of a Conduit Pipe and the Declaration was Quod cum querens seisâ—â—us existat and doth not say existitit and so the Plaintiffe was not supposed Owner of the Scite and Messuage of Black-Friers but only at the time of the Action brought and not at the time of the diversion of the Water But Judgement was given and Error brought upon it The fourth Error was Because it was for scowring a Gutter betwixt the houses c. and doth not say That the house was contigue adjacens to his house 22. H. 6. Where Cattell escape into the Plaintiffs Close and thereupon Trespasse brought the Defendant said That it was for want of Fence of the Plaintiffs Close and it was holden no Plea if he do not say that the Plaintiffes Close was adjacens Clench Justice The Prescription ought to be That such a one and all those whose Estate he hath c. have used for them and their Farmors to repair the Gutter Cowper When the Prescription runs with the Land then he may prescribe in the Land as all those who have holden such Lands have used to scowre such a ditch and the same is good Gawdy Justice If he had said All those who had occupied such a house had used to scowre it had been good Godfrey If a man will alledge a Prescription or Custome he ought to set forth That it was put in use within time of memory In the Prescription of Gavelkind the party ought to shew that the Land is partable and so hath been parted Also he prescribed That omnâ—â— illi qui tenuerunt and doth not alledge a Seisin but by way of Argument Suit Justice held the pleading not good because the words were not contigue adjacens And for these causes the first Judgment was reversed Mich. 28 29. Eliz. in the Kings Bench. 69 GOMERSALL and GOMERSALLS Case IN an Action of Account the Plaintiffe charged
Bench. 70 GILE'S Case A Writ of Error was brought to reverse a Judgement given in an Action upon the Case The Action upon the Case was brought against one Quare exaltavit stagnum per quod suum pratum fuit inundatum and he pleaded Not guilty and the Jury found Quod erexit stagnum and if Errectio be Exaltatio then the Jury find that the Defendant is guilty and thereupon Judgement was given for the Plaintiffe Glanvile alledged the generall Error That Judgement was given for the Plaintiffe where it ought to have been given for the Defendant And he said That erigere stagnum est de novo facere Exaltare est erectum majoris altitudinis facere Deexaltare is ad pristinam altitudinem adducere prosternere stagnum est penitus tollere And the precise and apt word according to his Case in an Action upon the Case ought to be observed that he may have Judgement according to his damage and his complaint viz. either Deexaltare or Posternere c. 7. E. 3. 56. An Assize of Nusans Quare exaltavit stagnum ad nocumentum liberi tenementi sui The Defendant pleaded That he had not inhaunced it after it was first levyed And by Trew There is not any other Writ in the Chancery but Quare exaltavit stagnum Herle said That he might have a Writ Quare levavit stagnum and there by that book Levare stagnum exaltare stagnum do differ And therefore he conceived That the Writ should abate for using one word for another 8. E. 3. 21. Nusans 5. by Chauntrell In a Writ of Nusans Quare levavit if it be found that it was tortiously levied the whole shall be destroyed But in a Writ Quare exaltavit nothing shall be pulled down if it be found for the Plaintiffe but the inhauncing shall be abated only So 8. Ass 9. Br. Nusans 17. the same Case and difference is put and 16. E. 3. Fitz. Nusans 11. If the Nusans be found in any other forme then the Plaintiffe hath supposed he shall not recover And in 48. E. 3. 27. Br. Nusans 9. The Writ was Quare divertit cursum aquae c. and shewed that he had put Piles and such things in the water by which the course of the water was streitned wherefore because he might have had a Writ Quare coarctavit cursum qquae the Writ was holden not to be good Cook took another Exception viz. That the Assize of Nusans ought to be against the Tenant of the Free-hold and therefore it cannot be as it was here brought against the Workmen and it is not shewed here that the Defendant was Tenant of the Soil for 33. H. 6. 26. by Moile If a way be streitned and impaired an Action upon the Case lieth but if it be altogether stop'd an Assize of Nusans lieth But Prisoit said If the stopping be by the Terr-Tenant an Assize of Nusans lieth but if it be by a Stranger then an Action upon the Case but for common Nusanses no Action lieth but they ought to be presented in the Leet or Turne Drew We have shewed That he who brought the Assize of Nusans hath a Free-hold in the Land and if the Tenant be named it is sufficient although it be not shewed that he is Tenant of the Free-hold And to that all the Justices seemed to incline But then it was shewed to the Court that one of the Plaintiffes in the Writ of Error had released And if that should bar his Companions was another question And it was holden That the Writ of Error shall follow the nature of the first Action and that Summons and Severance lieth in an Assize of Nusans and therefore it was holden that it did the like in this Action therefore the Release of the one was the Release of the other But then it was asked by Glanvile What should become of the Damages which were entire Note Pasch 29. Eliz. the Case was moved again and Drew held exaltare and erigere all one and that erigere is not de novo facere for that is Levare But the Justices were against him who all held That erigere is de novo facere and exaltare is in majorem altitudinem attollere and at length the Judgment was affirmed That Erectio and Exaltatio were all one For the Chief Justice had turned all his Companions when he came to be of Opinion that it was all one And so the Case passed against Glanviles Client Mich. 28 29. Eliz. in the Kings Bench. 71 THE Lady Gresham was indicted for stopping the High-way and the Indictment was not laid to be contra pacem And Cook said That for a mis-feasance it ought to be contra pacem but for a non-feasance of a thing it was otherwise and the Indictment was for setting up a gate in Osterly Park And Exception also was taken to the Indictment for want of Addition for Vidus was no Addition of the Lady Gresham and also Vi armis was left out of the Indictment And for these causes she was discharged and the Indictment quashed Mich. 28 29. Eliz. in the King 's Bench. 72. IN an Ejectione firme Exception was taken because the Plaintiffe in his Declaration did not say Extratenet For in every Case where a man is to recover a possession he ought to say extra tenet And in Debt he ought to say Debet dâ—tinet And in a Replevin Averia cepit injustè detinet But all the Justices agreed That in an Ejectione firme those words were not materiall For if the Defendant do put out the Plaintiff it is sufficient to maintain this Action And Kempe Secondary said that so were all the ancient Presidents although of late times it hath been used to say in the Declaration Extra tenet and the Declaration was holden to be good without those words Mich. 28 29. Eliz. in the King 's Bench. 73 IN a Case for Tithes the Defendant did prescribe to pay but ob q for the Tithes of all Willows cut down by him in such a Parish Cooke It is no good prescription for thereby if he cut down all the Willows of other men also but ob q. should be paid for them all But he ought to have prescribed for all Willows cut down upon his own land and then it had been good But as the prescription is it is unreasonable and of that opinion was the whole Court Mich. 28 29. Eliz. in the King 's Bench. 74 DEIGHTON and CLARK'S Case IN an Action of Debt upon a Bond the Condition of the Bond was That whereas the Plaintiff was in possession of such Lands If I. S. nor I. D. nor I. G. did disturb him by any indirect means but by due course of Law that then c. The Defendant pleaded That nec I S. nec I. D. nec I. G. did disturb him by any indirect means but by due course of Law Godfrey The plea in Bar is not good for it is a Negative pregnans viz. such a Negative
found amongst the Latinists Snag said What then yet one is a word which is received in the Law and is vox artis but the other not and therefore it is not in the same degree Also he said That when the Indictment comes to the Accessories It said Felonicè praesentes abbâ—ttentes assistentes and felonicè cannot be applied to praesenteâ— Also when it comes to the Accessories it doth not say Ex malitia praecogitata abbetâ—entes assistentes c. Cook contrary and he said That if Indictments have sufficient substance they are not to be overthrown for trifles As to the first he said If you will have it to be coram Coronatore de Comitatu perhaps it was a Liberty and then coram Coronatore of the Liberty cannot be coram Coronatore of the County Gaudy Justice said that was no answer But as to this point the Justices desired that Presidents might be searched and said that they would follow the greater number of them Clenche If one say that such a one is a Justice of Peace in Hertfordshire it is all one as if he had said a Justice of Peace of Hertfordshire As to the 2d. Jurati that is no Exception for it is true that it must be so in an Assize but not in an Indictment also no President can be shewed where ex malitia propensa sua shall be applied to every word when it runs in sense to all by Conjunctions copulative As to the Exception that there ought to be the length breadth c. Kempe the Secondary said That it was not worth the standing upon and as to the word Murdredi if it had been left out the Indictment had been sufficient and that shall not make the Indictment void for if it be left out it doth no hurt to it For if many come together to make an Assault ex malitia praecogitata and one of them onely strikes the partie mortally and he dieth it is murder in them all And that was Doctor Ellis case in the Commentaries and the Indictment needs not say that they were praesentes abbettantes auxiliantes and as to the word felonicè it goes to all the words although not particularly applied Note all the Justices did incline that the Indictment was good notwithstanding the Exceptions but yet they said they would advise of it and look upon Presidents Mich. 28 29. Eliz. in the King 's Bench. 79. A Writ of Error was brought against two upon a Recovery in a Precipe quod reddat c. and one of them died The question was Whether the Writ should abate Cook moved that it might not abate for he said That the Writ of Error is but a Commission for to examine the Record and the partie shall recover nothing therby but shall be onely discharged from the first Recovery and he said It is not like unto a Precipe Then the Justices demanded of him if the Recovery were in a reall Action and he said that it was Then they said that 3. H. 7. 1. is That if Error be brought upon a Recovery in a personall Action that death shall not abate the Writ but otherwise if it were upon a reall Action for there the Judgement shall be that he shall be restored to the Land Quere Mich. 28 29. Eliz. in the King 's Bench. 80 AN Appeal of Mayheme was that Percussit super manum dextram viz. inter manum dextram brachium dextrum And Exception was taken to it that it was repugnant for if it was inter brachium manum dextram therefore it could not be super manum dextram for the word inter excludes both Cook It is certain enough because it saith Super manum dextram And an Indictment shall not abate for forme if it be sufficient in substance of matter and also being upon the Wrist it was upon the rising of the hand Mich. 28 29 Eliz. in the Kings Bench. 81 A Man made a Lease for years rendring rent at the Feast of Saint Michael th'Arch-Angel and if it were behind by ten days after being in the mean time lawfully demanded and no sufficient distresse to be found upon the Land that then it might be lawfull for the Lessor to re-enter The last of the ten dayes at the hour of two afternoon the Rent was demanded and there was a sufficient distresse upon the Land before the Demand but not after and whether the Lessor might enter or not was the question Daniel These words Sufficient distresse ought to be referred to the time of the Demand viz. to the last instant at which time the Demand is only materiall Upon a Cessavit if there be a sufficient distresse the last instant of the two years it is sufficient Clenche Justice held That there ought to be a sufficient distresse upon the Land for all the ten dayes But Suit Justice held That it was sufficient if there were a distresse for a reasonable time so as it might be presumed that the Lessor might have knowledge of it But if a distresse be put upon the Land only for an hour or by nights he held it was not a sufficient distresse Mich. 28 29. Eliz. in the Kings Bench. 82 Sir EDWARD HOBBYE'S Case IN this Case the question was Whether the Death of one of the Defendants should abate the whole Writ of Error Cook The Writ shall not abate for no Defendant is to be named in the Writ which see in the forme of the Writ of Error and 2 R. 3. 1. it is holden That the Writ shall not abate for it is in its nature but a Certiorari and Judgement only is to be reversed Atkins Although that the Defendants have not day in Court by the Writ of Error yet by the Scire facias which is sued upon it as in our Case it is they have day and see 3. H. 7. and 14. H. 7. a difference where it is a Writ of Error upon a reall Action and where upon a personall Cook That holds Where the first Writ is abated and so is 3. H. 7. See the Case a little before Gaudy and Clench Justices bring a new Writ of Error for that is the surest way Mich. 28 29. Eliz. in the King 's Bench. 83 LOVELL and GOLSTON'S Case IN a Writ of Error brought upon a Record removed out of the Court of Kingston where the first Judgement was given in an Action of Debt for an Amercement in a Court Baron The first Error which was assigned was That he in the Action of Debt did declare That whereas at a Court holden before William Fleetwood Steward c. whereas it ought to have been holden before the Suitors for they are the Judges The second Error was That the Presentment upon which the Amercement is grounded saith That Golston the Defendant had cut down more Trees quam debuit extra boscum Domini 1. That it is repugnant for he could not cut wood extra boscum but in bâ—sco 2. When it saith many and doth
licence be to A. and B. or C. some conceived that A. or B. might alien but not C. Et èâ—converso Mich. 28 29. Eliz. in the Common Pleas. 105 IT was agreed by the whole Court That a Partition made by word betwixt Joyntenants is not good See Dyer 29. Pl. 134. and 350. Pl 20. doth agree and see there the reason of it Mich. 28 29. Eliz. in the Common Pleas. 105 IT was holden by the whole Court That if the Father do devise Lands unto his Son and Heir apparant and to a stranger that it is a good Devise and that they are Joyntenants for the benefit of the Stranger Mich. 28 29. Eliz. in the Common Pleas. 106 FULLER'S Case A. Promises unto the eldest son that if he will give his consent that his Father shall make an Assurance unto him of his Lands that he will give him ten pounds If he give his assent although no assurance be made yet he shall maintain an Action upon the promise But at another day Periam Justice said that in that case the son ought to promise to give his assent or otherwise A. had nothing if his son would not give his consent And so where each hath remedy against the other it is a good Consideration In Hillary Term after Fenner spake in arrest of Judgment upon the speciall Verdict That because that the Assumpsit is but of one part and the other is at liberty whether he will give his consent or not that therefore although that hee do consent that hee shall not recover the ten pounds Also he said That the promise was that if hee would give consent that his Father should make assurance to him and here the assurance is made to A. to the use of the Defendant and his Wife in taile so as it varies from the first Communication and also it is in tail Shuttleworth contrary in as much as he hath performed it by the giving of consent then when he hath performed It is not to the purpose that he was not tyed by a crosse Assumpsit to do it but if he had not given his consent he should have nothing At length Judgment was given for the Plaintiff And Periam Justice said in this Case That if a covenant be to make an Estate to A. and it is made to B. to the use of A. that he doubted whether that were good or not Mich. 28 29 Eliz. In the Common Pleas. Intratur Hill 28. Eliz. Rot. 1742. 107 WISEMAN and WALLINGER'S Case A Man seised of two Closes called Bl. Acre makes a Lease of them rendring Ten Shillings rent The Lessee grants all his Estate in one of them to A. and in the other to B. The Lessor doth devise all his Land called Bl. Acre in the tenure of A. and dieth The Devisee brings an Action of Debt for the whole Rent against the first Lessee And the Opinion of the whole Court was That the Action would not lie because they conceived That but the Reversion of one Close passed and also that the rent should not be apportioned in that Case because a terme is out of the Statute and a Rent reserved upon a Lease for years shall not be apportioned by the act of the Lessor as where he takes a Surrender of part of it But otherwise by Act in Law as where the Tenant maketh a Feoffment in Fee of part of the Land and the Lessor entreth And at another day Anderson Chief Justice said That if the Lessor of two Acres granteth the Reversion of one Acre that the whole Rent is extinct Mich. 28 29. Eliz. in the Common Pleas 108 A Lease for years is made of Land by Deed rendring Rent the Lessee binds himselfe in a Bond of Ten Pound to perform all Covenants and Agreements contained in the Deed the Rent is behind and the Lessor brings an Action of Debt upon the Bond for not payment of the Rent the Obligor pleads performance of all Covenants and Agreements the Lessor saie That the Rent is behind it was holden That it is no Plea for the Obligor to say That the Rent was never demanded But in this Bar he ought to have pleaded That he had performed all Covenants and Agreements except the payment of the Rents And as to that That he was alwayes ready to have paid it if any had come to demand it but as the first Plea is it was held not to be good And as to the demand of the Rent the Court was of opinion That it was to be demanded for the payment of the Rent is contained in the word Agreements and not in the word Covenants and then if he be not to performe the Agreements in other manner then is contained in the Deed of that agreement the Law saith That there shall be a demand of the Rent But if the Lessee be particularly expressed by covenant to pay the Rent there he is bound to do it without any Demand Mich. 28 29. Eliz. in the Common Pleas. 109 HOLLENSHEAD against KING THomas Hollenshead brought Debt against Ralph King upon a Recovery in a Scire fâ—cias in London upon a Recognizance taken in the Inner or Ouster Chamber of London and doth not shew That it is a Court of Record and that they have used to take Recognisances and Exception was taken unto the Declaration and a Demurrer upon it and divers Cases put That although that the Judgement be void that yet the Execution shall be awarded by Scire facias and the party shall not plead the same in a Writ of Error But Periam Justice took this difference Where Execution is sued upon such a Judgement and where Debt is brought upon it for in Debt it behoves the Party that he have a good Warrant and ground for his Action otherwise he shall not recover but upon a voidable Judgement he shall recover before it be reversed Mich. 28 29 Eliz. In the Common Pleas. Intratur Trinit 28. Eliz. Rot. 507. 110 COSTARD and WINGFIELD'S Case IN a Replevin the Defendant did avow for Damage Feasans by the commandment of his Master the Lord Cromwell The Plaintiffe by way of Replication did justifie the putting in of his Cattell into the Land in which c. by reason that the Towne of N. is an ancient Town and that there hath been a usage time out of mind That every Inhabitant of the same Towne had had common for all his cattel Levant and Couchant in the same Town and so justified the putting in of his cattell The Defendant said That the house in which the Plaintiffe did inhabite in the same Towne and by reason of Residency in which house he claimed common was a new house built within 30 years and within that time there had not been any house there and upon that Plea the Plaintiffe did demurr in Law Shuttleworth Serdeant for the Plaintiffe That he shall have common for cause of Resiance in that new house and the Resiancy is the cause and not the Land nor
Condition that if the Rent be behinde the Feoffor might enter and retain quousque there the estate shall be determined pro tempore and afterwards revived again Windham There the Feoffor shall have the land as a distress and the Free-hold is not out of the Feoffee Fenner The Book proves the contrary for the Feoffor had an Action of Debt for the Rent Mich. 28 29. Eliz. in the Common Pleas. 121 IN a Formedon the Tenant pleaded a Fine with proclamations The Plaintiff replyed No such Record It was moved that the Record of the Fine which remained with the Chyrographer did warrant the Plea and the Record which did remain with the Custos Brevium did not warrant the Plea and both the Records were shewed in Court and to which the Court should hold was the question Shuttleworth To that which was shewed by the Custos Brevium and he cited the Case of Fish and Brocket where the Proclamations were reversed because that it appeared by the Record which was shewed by the Custos Brevium that the third proclamation was alledged to be made the seventh day of June which seventh day of June was the Sunday and yet hee said It appeared by the Record certified by the Chyrographer that it was well done and yet the Judgment reversed Rodes Justice There is no such matter in the same case And 26. El. by all the Justices and Barons of the Exchequer in such case the Record which remains with the Custos Brevium shall be amended and made according as it is in the Record of the Office of Chyrographer Windham agreed And afterwards the said President was shewed in which all the matter and order of proceedings was shewed and contained and all the names of the Justices who made the Order And by the command of the Justices it was appointed that the said President should be written out and should remain in perpetuam rei memoriam And the reason of the said Order is there given because the Note which remains with the Chyrographer is principale Recordum Mich. 28 29. Eliz. in the Common Pleas. 122. AN Infant was made Executor and Administration was committed unto another durante minore aetate of the Executor and that Administrator brought an Action of Debt for money due to the Testator and recovered and had the Defendant in Execution and now the Executour is come of full age Fenner moved that the Defendant might be discharged out of Execution because the Authority of the Administrator is now determined and he cannot acknowledge satisfaction nor make Acquittances c. Windham Justice Although the Authority of the Plaintiffe bee determined yet the Recovery and the Judgement do remaine in force But perhaps you may have an Audita querela But I conceive That such an Administrator cannot have an Action for he is rather as a Bayliff to the Infant Executor then an Administrator Rodes agreed with him and he said I have seen such a Case before this time viz. Where one was bound to such a one to pay a certaine sum of money to him his Heirs Executors or Assignes And the Obligee made an Infant his Executor and administration was committed during his minority and the Obligor paid the money to that Administrator And it was a doubt whether the same was sufficient and should excuse him or not And whether he ought not to have tendred the money to them both Fenner That is a stronger Case then our Case One who is Executor of his own wrong may pay Legacies and receive Debts but he cannot bring an Action Windham Doth it appear by the Record when the Infant was made Executor and that Administration was committed as before Fenner No truely Windham Then you may have an Audita querela upon it Fenner said So we will Note Hil. 33. Eliz. in the Exchequer Miller and Gores Case An Infant pleaded in a Scire facias upon an Assignement of Bonds to the Queen That Saint-Johns and Eley were Administrators during his minority And it was holden by the Court to be no plea. But he ruled to answer as Executor Mich. 28 29. Eliz. in the Common Pleas. 123 SUggestion was made that a Coroner had not sufficient Lands within the Hundred for which a Writ issued forth to choose another and one was chosen It was moved by Serjeant Snag If theâ—eby the first Coroner did cease to be Coroner presently untill he be discharged by Writ Rodes and Windham Justices He ceases presently for otherwise there should be two Officers of one Coronership which cannot be Also the Writ is Quod loco I. S. eligi facias c. unum Coronatorem and he cannot be in place of the first if the first do not cease to be Coroner So if any be made Commissioners and afterwards others are made Commissioners in the same cause the first Commission is determined Snagg said That in the Chancery they are of the same Opinion but Fitz. Nat. Brevium 163. N. is That hee ought to be discharged by Writ Mich. 28 29 Eliz in the Common Pleas. 124 IN an Action of Debt brought against Lessee for years for rent he pleaded That the Plaintiff had granted to him the reversion in Fee which was found against him Walmesley Serjeant moved Whether by that Plea he had forfeited his terme or not Rodes and Windham Justices He shall not forfeit his Term and Rodes cited 33. E. 3. Judgement 255. Where in a Writ of Waste the Tenant claimed Fee and it was found against him that he had but an Estate for life and yet it was no Forfeiture Fenner and Windham It is a strong Case for there the Land it selfe is in demand but not so in our Case Rodes The Tenant shall not forfeit his Estate in any Action by claiming of the Fee-Simple but in a Quid juris clamat Walmesley and Fennèr Where he claimes in Fee generally and it is found against him there perhaps hee shall forfeit his Estate but where he shewes a speciall conveyance which rests doubtfull in Law it is no reason that his Estate thereby should bee forfeited although it be found against him Rodes 6. R. 2. Quid juris clamat 20. The Tenant claimed by speciall conveyance and yet it was a forfeiture But in the principall Case at Bar he and Windham did agree cleerly That it was no forfeiture Mich. 28 29 Eliz. In the Common Pleas. 125 AN Action upon the Case was brought because that the Defendant had spoken these words viz. That the Plaintiffe hath said many a Masse to J. S. c. Anderson Chief Justice Primâ facie did seem to incline That no Action would lie for the words although that a Penalty is given by the Statute against such Masse-Mongers For he said That no Action lieth for saying That one hath transgressed against a Penall Law Periam Justice contrary Anderson If I say to one That he is a disobedient Subject no Action lieth for the words Windham Justice That is by reason of the generality Puckering
it is not shewed that he used any other rite or Ceremony c. for there ought to be some Positive thing 3. He doth not shew the Place or Parish where he persisted in it and that is materiall and issuable The fourth Exception was Because it was Inquisitio câ—pta coram Johanne Peter Waltero Mildmay and so named four of them by vertue of a Commission directed to them and to others and doth not shew what others nec quod illi fuerunt praesentes and then if the Commission were to them all jointly and two only were present then it was coram non judice and so void 5. The Statute saies That if any Parson or Vicar but doth not say being Minister Dei. The sixth was That it was at another Church c. Wray Chief Justice If this Evasion should be allowed the Statute were not to the purpose The seventh was That it doth not shew where the persisting was for that is a speciall thing and materiall and issuable Wray Chief Justice conceived That that only was a materiall Exception and that the other Exceptions were but frivolous and were not good Hill 29. Eliz. In the Kings Bench. 138 WARREN's Case ONE Warren demanded by a Writ of Debt in the Common Pleas Forty Pound and upon his Declaration did confess himselfe satisfied of Twenty Pound and thereupon Error was brought in the King's Bench And the Judgement reversed because by his Declaration he had abated his Writ and he ought to have Judgement according to his Writ and not according to his Declaration The Error assigned was in the Outlawry and it was holden by all the Justices That if the principall Record be reversed for Error that the Outlawry which is grounded upon it shall be reversed also Hill 29. Eliz. in the Kings Bench. 139 ROOTE 's Case THE Case was in a Prohibition touching Tithes and the libell in the Spirituall Court was for Corn and Hay and other things and the Tenant of the land did prescribe to pay in one part of the land the third part of the tenth and in another part the moity of the tenth of Corn for all manner of Tithes And the Court did incline that the same was a good prescription And a Prohibition was granted to the Ecclesiasticall Court Hill 29. Eliz. in the King 's Bench. 140 A Man was possessed for the terme of six years of a Tavern in London and leased the same unto another for three years and it was convenanted betwixt them that during the three years quolibet mense monthly the lessee should give an Account to the lessor of the Wine which he sold and should pay unto him for every Tun sold so much money And afterwards the lessor granted the three years which were remaining of the six years to another and he did request the lessee to account and he would not whereupon he brought an Action of Covenant and the Defendant pleaded That he had accounted to the Assignee of the three years and upon that there was a Demurrer joyned And the better opinion of the Court was that it was no Plea because it was not a Covenant which did go with the land or the Reversion but was a collaterall thing and did not pass by the assignment of the three years Hill 29. Eliz. in the King 's Bench. 141 IT was adjudged That the bringing of a Writ of Error to reverse a Fine by an Infant during his nonage is not sufficient but the Fine by Judgement in the Writ of Error must be reversed during his Nonage Hill 29. Eliz. in the Common Pleas. 142 WIDALL and Sr. JOHN ASHTON's Case A Writ of Error was brought by Widall against Sr. John Ashston because in the other action being an action of Wast The Plaintiff there did declare that he was seised and so seised demisit pro termino annorum c. and did not shew of what estate he was seised And yet he did suppose that it was ad exhaeredationem ejus c. And the same by Beamount was taken for an exception as 7. H. 6. A man pleaded a Feoffment to two haeredibus and doth not say suis it is uncertain And in the principal Case it shall be supposed that he hath but an estate for life for it shall not be intended that he hath an estate of Inheritance without expressing of words to carry an Inheritance As 7. Ass If I grant a Rent to I. S. and do not name what estate he shall have in it he shall have but an estate for life But he said that the Presidents are that if the word seised had been left out it had been good enough For by the Book of Entries a man may say demisit without saying that he was seised demisit But if a man will plead a thing which is not necessary to be pleaded and mistake it it shall make his Plea naught as in Patridges Case Where a suite was upon the Statute of Maintenance It is sufficent to say contra formam Statuti But if he will plead specially the day and place of the Statute and mis-plead it it makes all naught Suit Justice I conceive that that is a fault incurable But upon the other side it was argued that in 21. H. 7. It is holden that he might plead quod demisit without that that he was seised and demisit as there in an Action of Debt And therefore it is but surplusage in the principal Case Vide 15. E. 4. A good Case where surplusage shall not hurt because it is not traversable And he urged that by the Statute of 18. El. the Declaration doth not abate for matter of form And he said that Counts and Declarations shall be taken by Intendment and it shall be intended that if bringeth Wast that he hath such an estate that he may maintain such Action In Adams Case in the Commentaries One shewed that such an Abbot was seised and that the Land came unto the King by Dissolution and that the King being seised did grant the same and did not shew of what estate the King was seised and yet it was holden good See a good Case to this purpose 18. E. 3. Formedon 58. And he said that the Defendant had pleaded Nul wast fait and therefore he had by his Plea affirmed the Declaration to be good Beamount He ought to have said reversione inde sibi haeredibus c. Clenche Justice I conceive that the Statute of 18. El. helps that Suit Justice No truly It was adjourned Hill 29. Eliz. in the Common Pleas. 143 AN Action of Covenant was brought by a Man against another who had been his Apprentize The Defendant pleaded that he was within age The plaintiff did maintain his Action by the Custome of London Where one by Covenant may binde himself within age And Exception was taken to it That that was a Departure Daniel It is no Departure for by 18. R. 2. an Infant brought an Action against Gardian in Socage and the
because that the particular estate was determined The cause of forfeiture was because that the Copiholder had made a lease for life Pasch 8. Iacobi in the Common Pleas. 242 Dr. NEWMAN's Case IN this Case it was said by Cook Chief Justice That it had of late time been twice adjudged that if Timber trees be oftentimes topped and lopped for fuell yet the tops and lops are not Tithable for the body of the trees being by law discharged of Tithes so shall be the branches and therefore he that cutteth them may convert them to his own use if he please Pasch 8. Jacobi In the Exchequer Chamber 243 KERCHER's Case AN Action upon the Case was brought in the Common Pleas upon a simple contract made by the Testator which afterwards came into the Exchequer Chamber before all the Judges Cook in the Common Pleas was of opinion that the Action would lie Tanfield Chief Baron said That in these cases of Equitie it were most reason to enlarge and affirme the Authoritie of the Common law then to abridge it and the rather because the like Case had been oftentimes adjudged in the Kings Bench and there was no reason as he said that there should be a difference betwixt the Courts and that it would be a Scandall to the Common Law that they differed in opinion Afterwards at another day the Case was moved in this Court And Walmesley Justice doubted if as before But Foster held that the Action was maintainable And Cooke desired that Presidents might be searched And he said That he could not be perswaded but if the Executor be adverred to have Assetts in his hands sufficient to pay the specialties but that he should answer the debt Note the money demanded was for a Marriage portion promised by the Testator Pasch 8. Jacobi in the Common Pleas. 244 ADAMS and WILSONS Case Note It was said That when a false Judgement passeth against the Defendant he may pray the Court that it be entred at a day peremtory so as he may have Attaint or a Writ of Error And Cook Chief Justice said That if Judgment in the principall Action be reversed the Judgment given upon the Scire facias shall also be reversed because the one doth depend upon the other Walmesley in this Case said That it had been the usual course of this Court That if one deliver a plea unto An Aturney of the Court as the Last Terme and it is not entred that now at another Terme the Defendant might give in a new plea if he would because the first is not upon Record Pasch 8. Iacobi in the Common Pleas. 245 CULLINGWORTH's Case IF one be bounden in an Obligation That he will give to J. S. all the Goods which were devised to him by his father in Debt brought upon such an Obligation the Defendant cannot plead that he had not any Goods devised unto him for the Bond shall conclude him to say the contrary Vide 3. Eliz. Dyer 196 Rainsford Case Pasch 8. Iacobi in the Common Pleas. 246 QUOD's Case QVod had Judgement in an Action upon the case at the Assizes and damages were given him to Thirty Pound Hutton Serjeant moved in Arrest of Judgement That the Venire facias was de duodecim and that one of them did not appear so as there was one taken de circumstantibus and the entry in the Roll was That the said Jurour exactos venit but the word Juratus was omitted And for that cause the Judgement was stayed Mich. 8. Jacobi in the Common Pleas. 247 STONE 's Case STone an Atturney of the Court was in Execution in Norfolk for One thousand Pound and by practice procured himself to be removed by Habeas corpus before Cook Chief Justice at the Assizes in Lent and escaped to London and in Easter Terme the Bailiffe took him again and he brought an Action of false Imprisonment against the Bailiffe and it was holden by the Court That the fresh Suit had been good although he had not taken him in the end of the year if enquiry were made after him and so by consequence the Action was not maintainable Mich. 8. Jacobi in the Star-Chamber 248 MARRIOT's Case NOte It was agreed in this Case for Law That the Sheriffe cannot collect Fines or issues after a generall pardon by Parliament and therefore one Thorald the under Sheriffe of N. who did so was questioned and punished in the Star-Chamber Mich. 8 Jacobi in the Common Pleas. 249 JOLLY WOOLSEY's Case JOlly Woolsey of Norfolk brought an Action of Trespass against a Constable of Assault and Battery and Imprisonment the Defendant as to the Assault and Battery pleaded Not guilty and justified the imprisonment by reason of a Warrant directed unto him by a Justice of Peace for the taking and to imprison the Plaintiffe for the keeping of an Ale-house contrary to the Statute 12 Feb. 5. El. whereas the Statute was 12 Feb. 5. Ed. 6. and the matter was found by speciall Verdict And it was holden by all the Justices That the misrecitall of the Act was not materiall for it being a generall Act the Justices ought to take knowledge of it And Cook Chief Justice said That a man cannot plead Nul tiel Record against an Act of Parliament although that in truth the Record be imbezelled if the Act be generall because every man is privy to it Mich. 8. Iacobi In the Common Pleas. 250 NEWMAN and BABBINGTON's Case IT was resolved in this Case That if Debt be brought against an Executor who pleads that he hath fully administred and it is found that he hath Assets to 40l. whereas the Debt is 60l l that a Judgement shall be given for the 60l. against the Defendant and upon that Judgment if more Assets come after to the Executors hand the Plaintiffe may have a Scire facias Mich. 8. Jacobi in the Common Pleas. 251 WALLER's Case NOte It was said by Cook Chief Justice That if the King present one to a Benefice and afterwards presenteth another who is admitted instituted and inducted the same is a good repeal of the first presentation And he said That if the Lord doth present his Villain to the Church the same is no enfranchisement of him for that presentation is but his commendation And if the King will present a French man or a Spaniard they shall not hold the Benefice within this Realm for that the same is contrary to a special Act of Parliament Mich. 9. Jacobi in the Common Pleas. 252 NOte It was holden by all the Justices That Perjury cannot be commited in the Court of the Lord of Copy-holds or in any Court which is holden by Usurpation otherwise is it in a Court Leet or Court Baron which is holden by Title Trinit 8. Jacobi in the Common Pleas. 253 BURY and TAYLOR's Case IN an Ejectione firme brought upon Not guilty pleaded by the Defendant it was given in Evidence to the Jury to this effect viz. That one J. S. who did
that a Man was seised of the Manor of D. and of a house called W. in D. and also of a Lease for years in D. and he did bargain and sell unto another his Manor of D. and all other his Lands and Tenements in Dale and in the indenture did covenant that he was seised of the premisses in Fee which was left out of the Verdict and if the Lease for years should pass by the general words was the question Quaere of the case because Trinit 10. Jacobi the Court was divided in opinion in this Case Mich. 9. Iacobi In the King 's Bench. 262 HUGHES and KEENE's Case THe Plaintiff declared that whereas he was possessed of a Messuage for years which had ancient lights and the Defendant possessed of another House adjoyning and a Yard that the Defendant upon the said Yard had built a House and stopped his lights The Defendant pleaded that the custom of London was that every man might build upon his old Foundation and if there be not any agreement might stop up the Windows of his Neighbour upon which the Plaintiff did demurre in Law and it was adjudged for the Plaintiff because that the Defendant did not answer the Plaintiffs charge that he had built upon the new and not upon the old Foundation And it was holden by the whole Court in this Case that a man may build upon an old Foundation by such a custom and stop up the lights of his Neighbour which are adjoyning unto him and if he make new Windows higher the other may build up his house higher to destroy those new Windows But a man cannot build a House upon a place where there was none before as in a Yard and so stop his Neighbours lights And so it was adjudged in the time of Queen Elizabeth in Althans Case upon such a custom in the City of York And it was said by Cook Chief Justice That one prescription may be pleaded against another where the one may stand with the other as it was adjudged in Wright and Wrights Case That a Copy-holder of a Bishop did prescribe that all Copy-holders within the Manor have been discharged of Tithes But not where one prescription is contrary to the other whereas one prescribes to have lights and the other prescribes to stop the same lights Quaere Hill 9. Iacobi in the King 's Bench. 263 SAMFORD and HAVEL's Case IN an Action of Trespass for 30. Hares and 300. Coneys hunted in his Warren taken and carried away which Trespass was layd with a continuando from such a time till such a time the Defendant justified because he had common in the place where c. to a Messuage six Yard Lands for 240. Sheep and that he and all those whose estate he hath time out of mind have used at such time as the Common was surcharged with Coneys to hunt them kill and carry them as to his Messuage appertaining upon which the Plaintiff did demurre in Law because a man cannot make such a prescription in the Free-Warren and Free-hold of another Man And secondly because a man cannot so prescribe to hunt kill and carry away his Coneys as pertaining to his Messuage But a Man may prescribe to have so many Coneys to spend in his House and for these causes in the principal case the prescription was holden for a void prescription and Judgment was given for the Plaintiff Hill 9. Jacobi in the Common Pleas. 264 COX and GRAY's Case IT was adjudged upon a Writ of Error brought upon a Judgment given in the Marshalsey in an Action of trover and conversion of goods That if none of the parties be of the Kings houshold and judgment be given there that the same is Error and for that cause the Judgment was reversed Hill 9. Iacobi in the Common Pleas. 265 MORRIS's Case IN an Action upon the case for putting of cattel upon the common it was adjudged that if the cattel of a Stranger escape into the common the Commoner may distrain them damage feasance as wel as where the cattel are put into the common by the stranger Pasch 10. Jacobi in the Common Pleas. 266 The Lord MOUNTEAGLE and PENRUDDOCK's Case IT was holden by the whole Court in this case and agreed by all the Serjeants at the Barre That if two men submit themselves to the arbitrament of I. S. And the Arbitrator doth award that one of them shall pay ten pound and that the other shall make a release unto him that the same is a void Award if the submission be not by Deed and hee to whom the Release is to be made by the Award may have remedy for it for otherwise the one should have the ten pound and the other without remedy for the Release And it was resolved That upon submission and arbitrament that the party may have an Action upon the Case for not making of the Release And Cook chief Justice said That it was wisely done by Manwood chiefe Baron when he made such award That a Lease or such like Collaterall thing should be done To make his Award that he should make the Release or pay such a sum of money for which the party might have a remedy I conceive that the reason is That no Action upon the case upon an Arbitrament lieth because it is in the Nature of a Judgement At another day the opinion of the Court was with Cook and 20. H. 6. and 8. E. 4 5. cited to the purpose that there ought to be reciprocall remedy It was also said in this Case That by the Statute of 5. H. 5. A man cannot be Nonsuit after verdict Pasch 10. Jacobi In the Common Pleas. 267 COOK and FISHER's Case IN a Replevin the Defendant did avow for rent granted to him by a private Act of Parliament The Plaintiffe did demand Oyer of the Act and the opinion of the Court was that he ought to have Oyer for they held that the Oyer of no Record shall be denied to any person in case he will demurre And the Record of the Act shall be entred in haec verba Pasch 10. Jacobi in the Common Pleas. 268 The Bakers Case of Gray's-Inne against Occould AN Action of Debt was brought in London against Occould late Steward of Gray's-Inne upon a generall indebitatas assumpsit without shewing the particulars which plea was removed into the Common Pleas. And it was holden by the Court That the Action as it was brought would not lie for the inconvenience which might follow For the Defendant should be driven to be ready to give an answer to the Plaintiffe to the generality And therefore the Plaintiffe ought to bring a speciall Action for the particular things The like Case was in the Marshalsey and because they did not declare in a speciall manner Exception was taken to it and adjudged the Action upon a generall Indebitatas assumpsit did not lie Quaere Trinit 10. Jacobi in the Common Pleas. 269 READ and HAWE's Case IN a Replevin Trinit
expressly that he recover treble damages yet because it did amount to so much if the words of the sentence be joyned together It was directed that a special Prohibition in which the Statute and the whole matter is to be mentioned be awarded And in this case it was agreed by the whole Court That the Statute of 2 â— 6. for substraction of Tythes meerly doth not give any damages but if the Tythe be first set forth and then they are substracted there because the Parson had once an interest in them he shall recover treble damages And the principal Case was resembled by Warburton Justice to the case of Waste that if the Jury give damages 20l l there the Court shall treble the damages and make the same 60l and so it was done in the principal case Hill 11 Iacobi in the Common-Pleas 342. GIPPE's Case A Man Libelled for Tythes in the Spiritual Court the Defendant alleadged a Modus Decimandi and thereupon had a Prohibition and afterwards the Plaintiffe in the Prohibition did not prove his suggestion within six months and therefore the Court granted a Consultation because the Law hath appointed a certain time within which time the suggestion is to be proved Otherwise the Parson should be delayed and prejudiced in his Tythes and so it was adjudged in Parson Bugs case Mich. 8. Jacobi in this Court Hill 11 Jacobi in the Kings Bench. 343. CROSSE and STANHOP's Case AN action of false Imprisonment was brought against the Defendant and two other Justices of Peace of the County of York The Defendants justified the Imprisonment by reason of the Statute of 1 M. cap. That it should not be lawful for any maliciously and contumeliously to molest or disquiet any person or persons which are Preachers or after should be Preachers And the Plaintiffe demurred upon the Plea in Bar generally and two Exceptions were taken to the Pleading 1. Because the words of the Statute were misrecited for the words of the Statute are in the disjunctive maliciously or contumeliously And the opinion of the Court was that when the precedent subsequent words disjunctive are all of one sense that the word Or is all one with the copulative but where they are of divers natures as by word or deed it is otherwise The second Exception was That where the words were by the greater part of the Justices the Recital was by the better part of the Justices But notwithstanding these Exceptions it was adjudged against the Plaintiffe Pasch 12 Iacobi in the Kings Bench. 344. CARTWRIGHT's Case CArtwright prayed a Prohibition and the Case was this A. lying sick upon his bed made his Will and afterwards said unto his Executors named in the Will I will that B shall have twenty pounds more if you can spare it And the Executor answered and said Yes forsooth but no Codicil was made of the same Legacie And a Bill was preferred in the Spiritual Court for the Legacie whereupon the Executor prayed a Prohibition And it was holden by this Court that although this Court hath not power to hold plea of the thing Libelled for there in the Spiritual Court yet it hath power to limit the Jurisdictions of other Courts and if they abuse their authority to grant a Prohibition Vid. 2 H. 4. 10. But it was doubted whether the Spiritual Court as this case is might give remedy to the person for the Legacie For the same not being annexed to the Will by a Codicil it was but fidei commissum and so the doubt was Whether the Spiritual Court might hold plea of it For if they cannot hold plea of it then in this case a Prohibition may be lawfully granted although that this Court have not power nor jurisdiction of the thing it self The Court would be advised of it and therefore it was adjourned Pasch 12 Iacobi in the Kings Bench. 345. Sir CHRISTOPHER HEYDON's Case GOdsall Shepard Smith brought an Assise of Novel disseisin against Sir Christopher Heydon which was tryed at the Assises in Norfolk before Sir Tho. Fleming Lord Chief Justice of England and Justice Dodderidge which was found for the Plaintiffs and Judgment was given for them in the Court of Common-Pleas And thereupon Sir Christopher Heydon brought a Writ of Error in the Kings Bench and assigned for Error That whereas the Judgment was given upon his own Confession the Judgment was entred That the Plaintiffs did recover per visum Recognitorum Assise predict And after argument in the Kings-Bench it was adjudged by the whole Court that the Judgment given in the Common-Pleas should be affirmed notwithstanding the Error assigned And now to reverse the Judgment given in the Kings Bench he brought another Writ of Error in Parliament Cook Chief Justice said That the Clarks of the Chancery ought not to make a Writ of Error to the Parliament unlesse they have the Kings licence so to do And it was agreed by the whole Court that a Writ of Error lieth in Parliament upon the Transcript of the Record without bringing of the Record it self in Parliament For the Parliament is holden at the Kings pleasure and may be dissolved before the Errors be discussed and so the Record it self cannot be brought here again because the Parliament which is a higher Court was once possessed of it 8 H. 5. Error 88. The same Law in Error upon a Judgment given in Ireland 5 E. 2. Error 89. where only the Transcript of the Judgment is removed For if the Record it self should be brought into England it might be that before it came hither it shall be drowned in the sea and it is dangerous to commit a Record to the mercy of the winds and sea And Error lieth to reverse a Fine upon the Tenor of the Record and it is not necessary to bring the Fine it self because there is not any Chirographer in this Court to examine it At another day the same Term George Crook and Noy took five Exceptions to the said Writ of Error the first was Because the Writ doth recite the Judgment to be in Assis capt coram Tho. Fleming Capital Justiciar ad Placita Johannem Dodderidge milit unum Justic ad Placit coram nobis tent And the Exception was because that this latter addition was not to them both Dodderidge Justice held that the same was no good Exception to abate the Writ of Error because the omission is only in the addition of Honour which is surplusage and the Person is certain and his power appears to take the Assise and that Exception is not in point of jurisdiction but of denoting of the person and therefore is like the Case in 19 Eliz. Dyer 356. which is a stronger Case and 6 E. 6. Dyer 77. Haughton and Cook contr But Crook Justice did agree with Dodderidge that the addition of the same was but surplusage and that the Writ had been well enough without it Cook Chief Justice held the contrary For then he varieth from their
resolved That although the Award was void as to that part yet for the residue it stood good and therefore for not performance of the same the Bond is forfeited As if J. be bounden to perform the Award of J. S. for White-Acre and that he award that I enfeoffe another of White-Acre and that he give unto me Ten pounds If I tender unto him a Feoffment of White-Acre and he refuseth it and will not give to me the 10l. I shall have an Action of Debt upon the Bond as it is adjudged in Osborn's Case C. 10. par 131. The same Law If J. S. and J. N. submit themselves unto the Award of J. D. who awardeth that J. S. shall surcease all suits and procure J. N. to be bounden with a stranger and make a Feoffment of his Mannor of D. which is a thing out of the Submission In that case there are three things enforcing the Arbitrement the first is only good the second is against the Law and the other is out of the Submission yet being in part good it ought to be performed in that otherwise the Bond is forfeited But this Case was put If J. be bounden to stand to the Award of A. ita quod it be made de super premissis and afterwards A. maketh an Award but of part of the premises there it is void in all because it is not according to the authority given unto him And afterwards in the principal Case Judgment was given for the Plaintiffe Pasch 12 Jacobi in the Kings Bench. 353. DOCKWARY and BEAL's Case IN an Essex Jury The opinion of the Court was That Wood will passe by the name of Land if there be no other Land whereby the words may be otherwise supplied Also it was agreed That the Tenant for Years might fell Underwoods of 25 years growth if the same hath used to be felled Pasch 12 Jacobi in the Kings Bench. 354. WROTESIEY and CANDISH's Case ELizabeth Wrotesley did recover Dower 6 Jacobi in the Common-Pleas in which Writ she demanded tertiam partem Manerii de D. eum pertinaciis Nec non tertiam partem quarundam terrarum jacent in Hovelan And upon Ne unque seise que Dower the parties were at issue and the Venire facias awarded de Hovelan And it was found for the Plaintiffe and Judgment was given for her And Candish the Defendant brought a Writ of Error in the Kings Bench and assigned for Error That it was a Mis-trial For that the Venire facias ought to have been de Manerio and not of Hovelan 6 H. 7. 3. 11 H. 7. 20. C. 6 par â— 19 H. 6. 19. 19 E. 4. 17. Yet the Councel of the Defendant moved That the Trial was good for the Land in Hovelan And it being found that the Husband was seised of the Mannor of D. that now the Trial was good for the whole Pasch 12 Jacobi in the Kings Bench. 355. COWLEY and LEGAT's Case COwley brought an Audita quaerela against Legat and the Case was this Cowley and Bates bound themselves in a Bond of 200l. jointly and severally to Legat And afterwards 6 Jacobi Legat brought an action of Debt upon the Bond against Bates and had Judgment and 7 Jacobi the said Legat brought Debt against Cowley in the Kings Bench upon the same Bond and obtained Judgment and afterwards he sued forth Execution upon the first Judgment by Elegit and had the Land of Bates who was Tenant thereof only for another mans life in Execution and afterwards he took forth a Capias ad satisfaciendum against Cowley upon the Judgment in the Kings Bench And thereupon Cowley brought an Audita quaerela containing in it all the whole matter And the opinion of all the Justices was That the Audita quaerela was well brought And first it was holden That when a man may plead the matter in bar he shall not have an Audita quaerela upon the matter because it was his lachess that he did not take advantage of it by way of plea. But secondly in this Case it was said That he could not have pleaded the special matter and therefore as to that point the Audita quaerela was well brought But the onely doubt in the Case was Whether Legat the Defendant might have a new Execution by Capias ad satisfaciendum after that he had Execution against one of the Obligers by Elegit and the doubt was because the Judgments upon which he grounded his Executions were given at several times and in several Courts and against several persons For it was agreed by the whole Court That a Capias doth not lie after Execution sued by Elegit against the same person but after a Capias an Elegit is grantable And the reason of the difference is because upon the prayer to have an Elegit it is entred in the Roll Elegit sibi executionem per medietatem terrae so as he is estopped by the Record to have another Execution but upon a Capias nothing at all is entred upon Record Yet Cook Chief Justice said That it is the common practice of a good Attorney to deferre the entry in the Roll of Execution upon an Elegit until the Sheriffe hath retorned it served And in such case it was agreed That if the Sheriffe retorn upon the Elegit That the party hath not Lands c. then the party may take forth a Capias Also the Elegit is in it self a satisfactory Execution and by the Common-Law a man shall have but one Execution with satisfaction And therefore at the Common-Law if after Execution the Land had been evicted the party had no remedy And Cook said If part of the Land be evicted the party shall not have remedy upon the Statute of 32 H. 8. cap. 5. to which Crook Justice agreed And the Court held it to be no difference although that the Judgments were given in several Courts against persons several and at several times and where it is but one Judgment against one person Vide the Case 43 E. 3. 27. where in Debt the Defendant said That the Plaintiffe had another Action for the same Debt depending in the Exchequer by Bill Judgment c. And by Mowbray and Finchden cleerly it is a good plea although it be in another Court And Dodderidge Justice said That in the first case the said Legat might sue the said Cowley and Bates severally and after Judgment he might choose his Execution against which of them he pleased But he could not have Execution by Elegit against them both And therefore he said That although there be an Eviction of the Land or that the Judgment be reversed by Error after that he hath Execution against one by Elegit yet Legat could not have Execution against the other for by the first Execution he had determined his Election and he could not sue the other which Cook agreed Mich. 12 Iacobi in the Kings Bench. 356. FOX and MEDCALF's Case IN a Writ of Accompt brought in
them and held that the Custom might be good Mich. 17 Jacobi in the Kings Bench. 400. IN an Evidence in an Ejectione firme for Land in the Countie of Hartford the Case was this A man was married unto a woman and died The wife after 40 weeks and 10 days was delivered with child of a daughter and whether the said daughter should be heir to her Father or should be bastard was the Question and Sir William Padde Knight and Dr Montford Physitians were commanded by the Court to attend and to deliver their opinions in the Case who being upon their Oaths delivered their opinions That such a child might be a lawfull daughter and heir to her Father For as wellas an Antenatus might be heir viz. a child born at the end of 7 months so they said might a Postnatus viz. child born after the 40 weeks although that 40 weeks be the ordinary time And if it be objected that our Saviour Christ was born at 9 months and five days end who had the perfection of Nature To that it may be answered That that was miraeulum amplias And they held that by many Authorities and by their own Experiences a child might be Legitimate although it be born the last day of the 10â—h Month after the conception of it accounting the Months per Menses solares non Lunares Hill 17 Iacobi in the Kings Bench. 401. WEBB and PATERNOSTERS Case A Man gave Licence unto another to set a Cock of Hay upon his Medow and to remove the same in reasonable time and afterwards he who gave the Licence made a Lease of the Medow to the Defendant who put his Cattel into the Medow which did eat the Hay And for that the Paintiffe brought his Action of Trespass And upon Demurrer joyned the Court was of opinion against the Plaintiffe For upon the whole matter it appeared That the said Hay had stood upon the said ground or Medow for 2 years which the Court held to be an unreasonable time Mich. 18 Iacobi in the Kings Bench. 402. BROWN and PELL's Case IN an Ejectione firme upon a special Verdict found the Case was this Browne had issue two Sons and devised his Lands to his youngest Son and his Heirs And if it shall happen his said youngest Son to die without issue living his eldest Son That then his eldest Son should have the Lands to him and his Heirs in as ample manner as the youngest Son had them The youngest Son suffered a Common Recovery and died without issue living the eldest Son The Question was whether the eldest Son or the Recoverer should have the â—ands Montague Haughton and Chamberlain Justices The same is a Fee-simple Conditional and no Estate Tail in the youngest Son Doddridge Justice contrarie Mich. 18. Jacobi in the Kings Bench. 403. POLLYES Case IN an Action of Trespass It was agreed by the Court If 2 Tenants in Common be of Lands upon which Trees are growing and one of them felleth the Trees and layeth them upon his Freehold If the other entreth into the â—and and carrieth them away an Action of Trespasse Quaere clausum fregit lyeth against him because the taking away of the Trees by the first was not wrongfull but that which he might well do by Law And yet the other Tenant in Common might have seized them before they were carried off from the Land But if a man do wrongfully take my Goods as a Horse c. and putteth the same upon his Land I may enter into his Land and seize my Horse again But if he put the Goods into his House in such Case I cannot enter into his House and retake my Goods because every mans House is his Castle into which another man may not enter without special Liâ—ence Hill 19 Iacobi in the Kings Bench. 404. THe Case was That two Tenants in Common of Lands made a Lease thereof for years rendring Rent and then one of them died And the Question was who should have the Rent And if the Executor of him who died and the other might joyn in an Action for the Rent And as this Case was The opinion of the whole Court was That the Executor and the other might joyn in one Action for the Rent or sever in Action at their pleasures But if the Lease had been made for life rendring Rent The Court was cleer of opinion that they ought to sever in Actions Trin. 20 Jacobi in the Kings Bench. 405. A Man was bounden in a Bond by the name of Edmond and his true name was Edward And an Action of Debt was brought against the Executors of Edmond upon the said Bond who demanded Oyer of the Bond and then pleaded that it was not the Deed of their Testator and issue being thereupon joyned It was found by Inquest in London to be his Deed viz. the Deed of Edmond And it was moved in Arrest of Judgment Quod querens nihil caperet per Billam and so it was resolved and adjudged by the Court Doddridge only being absent And a Case was vouched by Henage Finch Recorder of London to prove this case That it was so adjudged in a Case of Writ of ErError brought in the Exchequer-Chamber in which Case the party himself upon such a Misnosmer and after a Verdict and Judgment given in the same Case did reverse the Judgment for this Error Mich. 14 Iacobi in the Kings Bench. 406. VESEY's Case VVIlliam Vesey was indicted for erecting of a Dove-house And Serjeant Harvey moved That the Indictment was insufficient the words were That the Defendant erexit Columbare vi armis ad commune nocumentum c. and that he was not Dominus Manerii nes Rector Ecclesiae And the Indictment was quashed because it was not contained in the Indictment that there were Doves in the Dove-cote For the meer erecting of a Dove-cote if there be no Doves kept in it it is no Nusans as it was holden by the Justices Mich. 15 Iacobi in the Kings Bench. 407 Sir WILLIAM BRONKER's Case SIR William Bronker brought an Action upon the Case for slanderous words And he shewed in his Declaration how that he was a Knight and one of the Gentlemen of His Majesties Privy-Chamber And that the Defendant spake of him these scandalous words viz. Sir William Bronker is a Cosening Knave and lives by Cosenage Which was found for the Plaintiffe In arrest of Judgment it was moved that the words were not actionable And so it was adjudged per Curiam Pasch 21 Iacobi in the Kings Bench. 408. YATE and ALEXANDER's Case YAte brought an action upon the Case against Alexander Attorney of the Kings Bench and declared That the Plaintiffe in an action of Debt brought against Alexander the Defendant who was Executor to his Father had Judgment to recover against him as Executor and that he sued forth a Fieri facias to the Sheriffe to have Execution and that before the Sheriffe could come to levy the debt and serve the
thing and shall he be bound by a Conveyance Anno. 16. H. 6. then in the time of Civil War Uses began and of Lands in use the Lord Chief Baron Tanfield in his Argument hath cited diverse cases where the lands in use were subject and lyable to the debt of Cestuy que use in the Kings Case and so was it untill the Statute of 27. H. 8. of Uses was made Babbington an Officer in the Exchequer had lands in the hands of Feoffees upon Trust and a Writ issued out and the lands were extended for the Debt of Babbington in the hands of his Feoffees Sir Robert Dudley having lands in other mens hands upon Trusts the lands were seized into the Kings hands for a contempt and not for debt or damages to the King And in this Case although that the â—nquisition do find the Conveyance but have not found it to be with power of Revocation yet the Land being extended it is well extended untill the contrary doth appear and untill the extent be avoided by matter of Record viz. by Plea as the Lord Chief Baron hath said before Ley Chief Justice of the Kings Bench argued the same day and his Argument in effect did agree with the other Justices in all things and therefore I have forborne to report the same at length And it was adjudged That the Extent was good and the Land well decreed accordingly Pasch 21 Jacobi in the Exchequer Chamber 417. The Lord SHEFFIELD and RATCLIFF'S Case IN a Writ of Error brought to reverse a Judgment given in a Monstrans de Droit in the Court of Pleas The Case was put by Glanvile who argued for Ratcliffe the Defendant to be this 2 E. 2. Malew being seised of the Mannor of Mulgrave in Fee gave the same to A. Bigot in tail which by divers discents came to Sir Ralph Bigot in tail Who 10 Jannarii 6 H. 8. made a Feoffment unto the use of â—is last Will and thereby after his Debts paid declared the use unto his right heirs in Fee and 9. H. 8. dyed The Will was performed Francis Bigot entred being Tenant in tail and 21 H. 8. made a Feoffment unto the use of himself and Katherine his wife and to the use of the heirs of their two bodies Then came the Statute of 26 H. 8. cap. 13. by which Tenant in tail for Treason is to forfeit the Land which he hath in tail Then the Statute of 27 H. 8. of Uses is made Then 28 H. 8. Francis Bigot did commit Treason And 29 H. 8. he was attainted and executed for the same Anno 31 H. 8. a private Act of Parliament was made which did confirm the Attaindor of Francis Bigot and that he should forfeit unto the King word for word as the Statute of 26 H. 8. is saving to all strangers except the Offendor and his heirs c. 3 E. 6. The heir of Francis Bigot is restored in blood Katherine entred into the Mannor and dyed seised 8 Eliz. their Issue entred and married with Francis Ratcliffe and had Issue Roger Ratcliffe who is heri in tail unto Ralph Bigot And they continue possession untill 33. Eliz. And then all is found by Office and the Land seised upon for the Queen who granted the same unto the Lord Sheffield Francis Bigot and Dorothy die And Roger Ratcliffe sued a Monstrans de Droit to remove the Kings hands from off the lands and a Scire facias issued forth against the Lord Sheffield as one of the Terre-Tenants who pleaded all this special matter and Judgment was thereupon given in the Court of Pleas for Roger Ratcliffe And then the Lord Sheffield brought a Writ of Error in the Exchequer-Chamber to reverse the said Judgment And Finch Serjeant argued for the Lord Sheffield that the Judgment ought to be reversed And now this Term Glanvile argued for Roger Ratcliffe that the Judgment given in the Court of Pleas ought to be affirmed There are two points The first If there were a Right remaining in Francis Bigot and if the same were given unto the King by the Attaindor and the Statute of 31 H. 8. Second If a Monstrans de Droit be a proper Action upon this matter which depends upon a Remitter for if it be a Remitter then is the Action a proper Action The Feoffment by Ralph Bigot 6 H. 8. was a Discontinuance and he had a new use in himself to the use of his Will and then to the use of his Heirs Then 9 H. 8. Ralph Bigot dyed And then Francis Bigot had a right to bring a Formedon in the Discendor to recover his estate tail 21 H 8. then the point ariseth Francis Bigot having a right of Formedon and an use by force of the Statute of 1 R. 3. cap. 1. before the Statute of 27 H. 8. by the Feoffment he had so setled it that he could not commit a forfeiture of the estate tail When a man maketh a Feoffment every Right Action c. is given away in the Livery and Seisin because every one who giveth Livery giveth all Circumstances which belongs to it For a Livery is of that force that it excludes the Feoffor not only of all present Rights but of all future Rights and Tytles v. C. 1. par 111. and there good Cases put to this purpose 9 H. 7. 1. By Livery the Husband who was in hope to be Tenant by Courtesie is as if he were never sised 39 H. 6. 43. The Son disseiseth his Father and makes a Feoffment of the lands the Father dyeth the hope of the heir is given away by the Livery It was objected by Serjeant Finch 1. Where a man hath a right of action to recover land in Fee or an estate for life which may be conveyed to another there a Livery doth give away such a Right and shall there bind him But an estate in tail cannot be transferred to another by any manner of Conveyance and therefore cannot be bound by such a Livery given I answer It is no good Rule That that which doth not passe by Livery doth remain in the person which giveth the Livery 19 H. 6. Tenant in tail is attainted Office is found The estate tail is not in the King is not in the person attainted but is in abeyance So it is no good Rule which hath been put When Tenant in tail maketh a Feoffment Non habet jus in re neque ad rem If he have a Right then it is a Right of Entre or Action but he cannot enter nor have any action against his own Feoffment 19 H. 8. 7. Dyer If Discontinuee of Tenant in tail levieth a Fine with proclamations and the five years passe and afterward Tenant in tail dyeth his issue shall have other five years and shall be helped by the Statute for he is the first to whom the right doth accrue after the Fine levied for Tenant in tail himself after his Fine with Proclamations hath not any right But if Tenant in tail be
is in the wife but the cause thereof is because it was once coupled with a possession C. 7. part Nevils Case There was a question whether an Earldom might be entailed and forfeited for Treason which is a thing which he hath not in possession nor use but is inherent in the blood And there resolved that the same cannot be forfeited as to be transferred to the King but it is forfeited by way of discharge and exoneration 12 Eliz. Dyer the Bishop of Durhams Case There if it had not been for the saving the Regal Jurisdiction of the Bishop had been given to the King by the Statute of 26 H. 8. This Statute of 26 H. 8. was made for the dread of the Traitor For the times past saw how dangerous Traitors were who did not regard their lives so as their lands might discend to their issue It was then desperate for the King Prince and Subject For the time to come it was worse The Law doth not presume that a man would commit so horrid an act as Treason so it was cited by Mr. Crook who cited the case That the King cannot grant the goods and lands of one when he shall be attainted of Treason because the Law doth not presume that he will commit Treason If the Law will not presume it wherefore then were the Statutes made against it If the Land be forfeited by the Statute of 26 H. 8. much stronger is it by the Statute of 31 H. 8. But then admit there were a Remitter in the Case yet by the Office found the same is defeated Without Office the Right is in the King Com. 486. c. 5. part 52 where it is said There are two manner of Offices the one which vests the estate and possession of the Land c. in the King where he had but a Right as in the case of Attaindor the Right is in the King by the Act of Parliament and relates by the Office Com. 488. That an Office doth relate 38 E. 3. 31. The King shall have the mean profits The Office found was found in 33 Eliz. and the same is to put the King in by the force of the Attaindor which was 29 H. 8. and so the same devests the Remitter Tenant in tail levieth a Fine and disseiseth the Conusee and dyeth the issue is remitted then proclamations pass now the Fine doth devest the Remitter C. 1. part 47 Tenant in tail suffereth a common Recovery and dyeth before Execution the issue entreth and then Execution is sued the Estate tail is devested by the Execution and so here in our Case it is by the Office C. 7. part 8. Tenant in tail maketh a Lease and dyeth his wife priviment ensient without issue the Donor entreth the Lease is avoided afterwards a Son is born the Lease is revived Com. 488. Tenant in capite makes a Lease for life rendring rent and for non-payment a re-entry and dyeth the rent is behind the heir entreth for non-payment of the rent and afterwards Office is found of the dying seised and that the land is hoâ—den in capite and that the heir was within age In the case the Entry for the Condition broken was revived and the Estate for life revived 3 E. 4. 25. A Disseisor is attainted of Felony the Land is holden of the Crown the Disseisee entreth into the Land and afterwards Office is found that the Disseisor was seised the Remitter is taken out of the Disseisee which is a stronger case then our Case for there was a right of Entire and in our Case it is but a right of Action which is not so strong against the King And for these Causes he concluded That the Judgment given in the Court of Pleas ought to be reversed And so prayed Judgment for the Lord of Sheffield Plaintiffe in the Writ of Error This great Case came afterwards to be argued by all the Judges of England And upon the Argument of the Case the Court was divided in opinions as many having argued for the Defendant Ratcliffe as for the Plaintiffe But then one new Judge being made viz. Sir Henry Yelverton who was before the Kings Sollicitor his opinion and argument swayed the even ballance before and made the opinion the greater for his side which he argued for which was for the Plaintiffe the Lord Sheffield And thereupon Judgment was afterwards given That the Judgment given in the Court of Pleas should be reversed and was reversed accordingly And the Earl Lord Sheffield now Earl of Mulgrave holdeth the said Castle and Mannor of Mulgrave at this day according to the said Judgment Note I have not set here the Arguments of the Judges because they contained nothing almost but what was before in this Case said by the Councel who argued the Case at the Bar. Pasch 21 Jacobi in the Kings Bench. 418. IT was the opinion of Ley Chief Justice Chamberlain and Dodderidge Justices That a Defendants Answer in an English Court is a good Evidence to be given to a Jury against the defendant himself but it is no good Evidence against other parties If an Action be brought against two and at the Assises the Plaintiffe proceeds only against one of them in that case he against whom the Plaintiffe did surcease his suit may be allowed a Witnesse in the Cause And the Judges said That if the Defendants Answer be read to the Jury it is not binding to the Jury and it may be read to them by assent of the parties And it was further said by the Court That if the party cannot find a Witnesse then he is as it were dead unto him And his Deposition in an English Court in a Cause betwixt the same parties Plaintiffe and Defendant may be allowed to be read to the Jury so as the party make oath that he did his endeavour to find his Witnesse but that he could not see him nor hear of him Pasch 21 Iacobi in the Kings Bench. 419. THe Husband a wife seised of Lands in the right of the wife levied a Fine unto the use of themselves for their lives and afterwards to the use of the heirs of the wife Proviso that it shall and may be lawfull to and for the husband and wife at any time during their lives to make Leases for 21 years or 3 lives The wife being Covert made a Lease for 21 years And it was adjudged a good Lease against the husband although it was made when she was a Feme Covert and although it was made by her alone by reason of the Proviso Pasch 21 Jacobi in the Common-Pleas 420. NOte that Hobart Chief Justice said That it was adjudged Mich. 15 Jacobi in the Common-Pleas That in an Action of Debt brought upon a Contract the Defendant cannot wage his Law for part and confesse the Action for the other part And it was also said That so it was adjudged in Tart's Case upon a Shop-book And vide 24 H. 8. Br. Contract 35. A Contract cannot be divided
at the time of the Indictment the said Bridg was ruinous and decayed Thirdly The Indictment is that Bridges and Nichols debent solent reparare poâ—tem and it is not shewed that their charge of repairing of the same is ratione tenare 21 E. 4. 38. Where it is said That a prescription cannot be that a common person ought to repair a Bridg unless it be said to be by reason of his Tenure but it is otherwise in case of a Corporation For these Errors the Indictment was quashed by Iudgment of the Court. Trin 21 Jacobi in the Kings Bench. Intratur Trin. 20. Rot. 1609. 442. Sir THOMAS LEE and GRISSEL's Case GRissel brought an Action upon the Case against Lee in the Common Pleas and shewed that diu fuit adhuc seisitus existens of a house c. and he did prescribe that he and all those whose Estate he hath in the said house c. had used to have Common in the waste of L. and that Lee in Jacobi made Coniburies in the waste quorum quidem premissorum he lost his Common The Action was brought 18 Jacobi and Iudgment given in the Common Pleas for the Plaintiffe there and thereupon a Writ of Error was brought in the Kings Bench and it was assigned for Error First That diu seisitus is not good because it hath not any limitation of time for it may contain as well forty years as one year He laid the wrong to be 15 Jacobi and doth not shew that at that time he was seised for diu doth not express any certain time and then it is like unto the case of Waste where the Grantee of a Reversion brings an Action of waste and doth not shew that he committed waste to his disâ—heresin but doth not shew when the waste was done for it might be that it was done betwixt the Grant and the Attornment and then he had no cause to have waste or otherwise it might be that the waste was done in the time of the Grantor and then the Grantee had no cause of Action But in such case he ought to have shewed that he was seised of the Reversion at the time of the waste done 4 E. 4. 18. There Trespass was brought upon the Statute of R. 2. and the Writ was That he did enter in diversa terras tenementa There it was holden that the Writ being insufficient the Court should not make it good because it is too general In our Case it ought to have been that he was diu adhuc est seisitus Et seisitus that the Defendant did do the wrong Another Error was assigned because he doth not conclude quorum quidem premissorum praetextu he lost his Common But he saies quorum quidem premissorum he lost his Common and leaves out the word prâ—textu which word ought to have been in the Declaration The Action is brought three years after the wrong done and he ought to have shewed that he 15 Jacobi which was the time of the wrong done fuit seisitus diu ante fuit seisitus in dominico ut de feodo All before the clause quorum quidem c. is but collection and he ought to have concluded with a cause of grievance viz. quorum quidem premissorum praetextu he lost his Common 7 H. 7. 3. There it is said that this word praetextu is a conclusion that the particular wrong doth contain and doth affirm that which went before but in this case the word praetextu is wanting and a Seisin first ought to be laid and then praetextu quorum is good Vi. Bullen and Sheenes case before where the Plaintiffe first made him title to the Common viz. that he was such a time seised in Fee adhuc seisitus existens that the Defendant did dig clay Vi. Brown and Greens Case in the Common Pleas. 40 Eliz. Where a man pleaded a Feoffment and Livery Virtute cujus he was seised in fee and did not shew that he entred and yet the same was good because the Virtute cujus was a good conclusion Ley Chief Justice diu doth not denote any time certain If in a Case it had been postea or sic inde seisitus the Defendant did the wrong then the Declaration had been good but here is nothing to which diu may have reference If he had said that he being diu seisitus that the Defendant had such a day done the wrong it had been good Secondly Here ought to have been either quorum quidem premissorum ratione or praetextu he lost his Common here the Latine is good viz. quorum quidem premissorum Commoniam perdidit but it is not good in Law Dodderidge Justice You ought to have coupled the damage and the wrong and in this case there wants the coupling for want of the word praetextu for the word praetextu is the application of the precedent matter The matter of wrong is the making of the conyburies by reason of which he lost his Common and the quorum quidem here hath not any sense The Declaration wants matter of form also diu fuit seisitus adhuc seisitus existens Might you not have purchased this Common after the wrong done by the making of the conyburies for it doth not appear otherwise by the Declaration for as well as diu may comprehend forty years so it may but one moneth If it had been diu seisitus sic seisitus that he made the conyburies then the Declaration had been well but as this case is it is not good Haughton Justice Your Action ought to have contained your matter of time as well as your matter of wrong Diu includes no certainty of time and quorum quidem premissorum c. is a speech without sense If a man maketh title to have Common pro omnibus averiis and the word suis is omitted it is not good Ley Chief Justice here the wrong and damage are not knit together by these words and it might be that in this case he had lost his Common by some other means For he doth alleadge that he lost his Common but how he lost it that doth not appear to us If he had said Virtute cujus or per quod or ratione cujus he had lost his Common then the Declaration had been certain and had been well enough But here it being incertain both in the seisitus and also in the alleadging the damage The Judgment given in the Court of Common-Pleas for these Errors was reversed Trin. 21 Iacobi in the Kings Bench. 443. PYE and BONNER's Case AN Information was in the Common-Pleas by Pye against Bonner for buying of Cattel selling of them again in the same Market against the Satute Which was found against the Defendant and the Judgment was entred Quod sit in misericordia whereas it ought to have been Capiatur being upon an Information For it is a Contempt and punishable by Imprisonment And in this Case upon a Writ of Error brought in
the Kings Bench by the opinion of the whole Court the Judgment was reversed Trin. 21 Jacobi Intratur Hill 20 Jac. Rot. 137. in the Kings Bench. 444. KITE and SMITH's Case ONe Recovered by Erronious Judgment and the Defendant did promise unto the Plaintiffe That if he would forbear to take forth Execution that at such a day certain he would pay him the debt and damages And Action upon the Case was brought upon that Promise And now it was moved by the Defendants Councel That there was not any Consideration upon which the Promise could be made because the Judgment was an Erronious Judgment It was adjourned But I conceive that because it doth not appear to the Court but that the Judgment is a good Judgment that it is a good Consideration Otherwise if the Judgment had been reversed by a Writ of Error before the Action upon the Case brought upon the Promise for there it doth appear judicially to the Court that the Judgment was Erronious Trin. 21 Jacobi in the Kings Bench. 445. TOTNAM and HOPKIN's Case AN Action upon the Case was brought upon an Assumpsit And the Plaintiff did declare That in Consideration of c. the Defendant 1 Martii did promise to pay and deliver to the Plaintiffe 20 Quarters of Barley the next Seed-time Upon Non Assumpsit pleaded it was found for the Plaintiffe It was moved for the Defendant That the Plaintiffe ought to have shewed in his Declaration when the Seed-time was which he hath not done But it was answered That he needeth not so to do because he brings his Action half a year after the Promise for not payment of the same at Seed-time which was betwixt the Promise and the Assumpsit Dodderidge Justice If I promise to pay you so much Corn at Harvest next If it appeareth that the Harvest is ended before the Action brought it is good without shewing the time of the Harvest for it is apparent to the Court that the Harvest is past And here the Action being brought at Michaelmas it sufficiently appears that the Harvest is past And Judgment was given for the â—laintiffe Trin. 21 Iacobi Iatratur Hill 1â— Iacobi Rot. 652. inter Hard Foy in the Kings Bench. 446. KELLAWAY's Case IN an Ejectione Firme brought for the Mannor of Lillington upon a Lease made by Kellaway to Fey It was found by a special Verdict That M. Kellaway seised of the Mannor of Lillington in Fee holden in Soccage did devise the same by his Will in writing in these words viz. For the good will I bear unto the name of the Kellawayes I give all my Lands to John Kellaway in tail the Remainder to my right Heirs so long as they keep the true intent and meaning of this my Will To have to the said John Kellaway and the heirs of his body untill John Kellaway or any of his issues go about to alter and change the intent and meaning of this my Will Then and in such case it shall be lawfull to and for H. Kellaway to enter and have the Land in tail with the like limitation And so the Lands was put in Remainder to five several persons the Remainder to the right heirs of the Devisor M. Kellaway dyed without issue John Kellaway is heir and entred and demised the same to R. K. for 500 years and afterwards granted all his estate to Hard. Afterwards John Kellaway did agree by Deed indented with W. K. to levy a Fine of the Reversion to W. and his heirs H. Kellaway entred according to the words of the Proviso in the Will and made the Lease to Foy who brought an Ejectione Firme against Hard. And whether H. Kellaway might lawfully enter or no was the Question It was objected That in the Case there is not any Forfeiture because the Fine was without proclamations and so it was a Discontinuance only The first Question is If the Remainder doth continue The second is If it be a Perpetuity or a Limitation John Kellaway is Tenant in tail by Devise untill such time as John Kellaway or any of his issues agree or go about to alter or change the estate tail mentioned in the Will with Proviso to make Leases for 21 years 3 lives or to make Jointures Then his Will is That it shall be lawfull for H. K. to enter and to have the Land with the same limitations If it be a Perpetuity then it is for the Plaintiffe but if it be but a Limitation then it is for the Defendant The Fine was levied without proclamations and H. K. entreth for the Forfeiture Damport It is no Perpetuity but a Limitation which is not restrained by the Law as Perpetuities are Untill such time as c. shall discontinue c. The Jury find an Agreement by Indenture The act which is alleadged to be the breach is Conclusivit agreavit not to levy a Fine with proclamations but to levy a Fine without proclamations which is but a Discontinuance Yelverton If the Fine had been with proclamations then without doubt he in the Remainder during the life of him who levied it had been barred The Devise was To have to them and to the heirs of their bodies so long as they and every of their issues do observe perform fulfill and keep the true meaning of this my Will touching the entailed Lands in form following and no otherwise And therfore I M. Kellaway do devise unto John Kellaway the issue of his body the Remainder c. â—o have to the said John Kellaway and the issue of his body untill he or any of his issue shall go about to conclude do or make any act or acts to alien discontinue or change the true meaning of this my Will That then my Will is and I do give and bequeath to H K in tail And that it shall be lawfull for him the said H. K. or his issue to enter immediately upon such assent conclusion or going about to conclude c. And that H. K. and his issue shall leave it untill he or any of them go about c. C. 9 part Sundayes Case 128. where it was resolved That no Condition or Limitation be it by act executed or by limitation of an Use or by a Devise can bar Tenant in tail to alien by a common Recovery v. C. 3. part acc The Case was not resolved but it was adjourned to another day to be argued and then the Court to deliver their opinions in it Trin. 21. Intratur Trin. 20 Jacobi Rot. 811. in the Kings Bench. 447. KNIGHT's Case IN this Case George Crook said That Land could not belong to Land yet in a Will such Land which had been enjoyed with other might pass by the words cum pertinaciis As where A. hath two houses adjoyning viz. the Swan and the Red-Lyon and A. hath the Swan in his own possession and occupieth a Parlour or Hall which belongs in truth to the Red-Lyon with the Swan-house and then leaseth the Red-lyon
lawfull arrest for no time is shewed nor no place nor how it was done Ley The Jury have found it to be debito modo and in this case the arrest is not in question by matter of Plea but by Declaration and the finding of the Jury hath made the same to be good Dodderidge Justice If A. be indebted to B. B may have either an Action upon the Case or an Action of Debt for the money but in an Action of Debt unless it be in London by the Custome Concessit solvere is no good Plea But in an Action upon the Case the Plaintiff may declare That whereas A. was indebted to him in a certain sum of money that Concessit solvere and there he needeth not to shew how he became indebted unto him as he ought to do in an Action of Debt Chamberlain Justice If a man be arrested upon a void arrest and another in consideration of setting him at liberty doth promise to pay the Debt there it is a thing Collateral and an Action will lie But if the arrest cometh in question then in that Case the Action will not lie but he may avoid it by special pleading for the arrest being unlawfull there is no consideration whereupon to ground the promise Yelverton If the Plaintiff had said in the Declaration That in consideration that he would forbear his Debt that he would pay c. there for not payment the Action would have been maintainable but in this case the consideration is the setting him at Liberty and so it is Collateral At another day Ley Chief Justice If I arrest a man generally and the party promise for the discharge of the arrest to give 20l. it is no good consideration if I do not shew that he had cause to arrest him For if the arrest be upon an ill ground the consideration is not good Haughton Justice To make it a lawfull arrest the partie ought to shew the Process the Letter of Attorney and the proceedings and an agreement afterwards made will not make the arrest good Legitimo debito modo arrestatus is too general for he ought to shew how he became indebted to him For if I be bounden to make unto I. S. a lawfull assurance or conveyance of such Lands it is too general for me to say that I have made him a lawfull assurance but I ought to shew what manner of assurance it is that the Court may judge whether it be a lawfull and good assurance or not In Mich. Term followinging 21 Jacobi It was adjudged That Judgment should be arrested Trin. 21 Jacobi in the Kings Bench. Intratur Mich. 19. Rot. 5â— 453 SEIGNIOR and WOLMER's Case IN an Action upon the Case upon an Assumpsit the Declaration was general that the Defendant Assumpsit to the Plaintiff and the Jury found that the promise was made to I. N. who Seignior the Plaintif sent and appointed ad componendum agreandum the Debt of Wolmer the Defendant It was argued That the promise made to the Servant was a promise to the Master Vi. â— E. 4. Where the sale of the Servant is the sale of the Master 8 H. 5. in trespas The Defendant said that the Prior of c. was seised c. and that such a one his Steward made a Demise unto him there it was ruled that he ought to have pleaded that the Prior did demise V. 27 H. 8. Jorden and Tatams Case which is express in the point Jorden brought an Action upon the Case against Tatam and declared that he did assume to him as the words of the book are The Evidence was That Tatam came in the absence of Jorden the husband and assumed to the wife of Jorden and our Case is a stronger Case then that for there the husband gave no authority to the wife to take such Assumpsit but in our Case he did authorize I. N. and it was adjudged that the agreement of the husband afterwards made the Assumpsit to be good to the husband But in our Case I. N. had authority to take the Assumpsit viz. Seignior sent I. N. ad componendum agreandum the Debt and Wolmer assumed to pay the money c. and I. N gave notice thereof to Seignior and he agreed unto Dodderidge Justice An Assumpsit to the Servant for the Master is good to the Master and an Assumpsit by the appointment of the Master of the Servant shall bind the Master and is his Assumpsit 27 Ass If my Baily of my Mannor buy cattel to stock my grounds I shall be chargeable in an Action of Debt and if my Baily sell corn or cattel I shall have an Action of Debt for the money For whatsoever comes within the compass of the servants service I shall be chargeable with and likewise shall have advantage of the same If a Servant selleth a horse with Warranty it is the sale and contract of the Master but it is the Warranty of the Servant unless the Master giveth him authority to warrant it for a Warranty is void which is not made and annexed to the contract but there it is the Warranty of the Servant and the Contract of the Master But if the Master do agree unto it after it shall be said that he did agree to it ab initio As where a Servant doth a disseisin to the use of his Master the Master not knowing of it and then the Servant makes a Lease for years and then the Master agrees the Master shall not avoid the Lease for years for now he is in by reason of his agreement ab initio When the Servant promiseth for the Master that the Master shall forbear to sue c. and shall by such a day deliver to the Defendant the Obligation c. and the Defendant promiseth to pay the money at such a day and the Master having notice thereof agreeth to it it is now the promise of the Master ab initio for it is included in his authority that he should agree compound c. and he hath power to make a promise Judgment in the principal Case was given for the Plaintiff Trin. 21 Jacobi in the Kings Bench. Intratur Pasch 18. Rot. 139. 454. GLEEDE and WALLIS Case A Writ of Error was brought to Reverse a Judgment given in the Court of Northampton in an Action upon the Case upon a Promise The Error which was assigned was because that it appeareth that the Action was brought before the Plaintiff had made request The Case was a Contract was made betwixt Gleede and Wallis and Wallis was to pay to Gleede 10l when Gleede should require him Gleede brought an Action in the said Court 1 Martii 16 Jacobi and the Request is laid to be 7 Martii 16 Jacobi following Where a Contract is made and no time is expressed for payment of the money If the partie bring his Action before he make his request he shall not have damages but if he maketh an actual request and the Defendant doth not
Statute of West 2. First they said That Copyholds are not within the letter of the Statute which speaks onely de tenementis per chartam datis c. Secondly they are not within the meaning of it 1. Because they were not untill 7 E. 4. 19. of any accompt in Law because they were but Estates at will 2. The Statute of West 2. provides against those who might makeâ— a dissen heresin by Fine or Feoffment which Copyholders could not do 3. Because if Copyholders might give lands in tail by the Statute then the Reversion should be left in themselves which cannot be 4. The Makers of the Statute did not intend any thing to be within the Statute of Donis whereof a Fine could not be levied For the Statute provides Quod sinis ipso jure sit nullus 5. Great mischiefs would follow if Copyholds should be within the Statute of West 2. because there is no means to dock the estate and no customary conveyance can extend to a Copyhold created at this day 37 Eliz Lane and Hills case adjudged in the Common-Pleas was cited by Justice Harvey where a Surrender was unto the use of one in tail with divers remainders over in tail The first Surrenderee dyed without issue And first it was agreed and adjudged That it was no discontinuance 2. If it were a discontinuance yet a Formedon in the Remainder did not lie because there ought to be a Custom to warrant the Remainder as well as the first Estate tail For when a Copyholder in Fee maketh such a gift no Reversion is left in him but only a possibility And the Lord ought to avow upon the Donee and not upon the Donor And there is a difference when he maketh or giveth an estate of inheritance and when he maketh a Lease for life or years for in the one case he hath a Reversion in the other not 2. A Recovery shall not be without a special custom as it was agreed in the Case of the Mannor of Stepney because the Warrantie cannot be knit to such an Estate without a Custom And for express authority in the principal Case he cited Pits and Hockleâ—'s ase which was Ter Pasc 35 Eliz. rot 334. in the Common-Pleas where it was resolved That Copyholds were not within the Statute of Donis for the weakness and meanness of their estates For if they were within the Statute of West 2. the Lord could not enter for Felony but the Donor and the Services should be done to the Donor and not to the Lord of the Mannor And so and for these mischiefs he conceived That neither the meaning nor the words of the said Statute did extend to Copyholds Hill 34 Eliz. Rot. 292. in the Kings Bench Stanton and Barney's Case A Surrender was made of a Copyhold within the Mannor of Stiversden unto one and the heirs of his body and after issue he surrendred unto another And it was agreed by all the Justices That the issue was barred And Popham did not deny that Case but that it was a Fee conditional at the Common-Law and that post prolem suscitatam he might alien And so it was agreed in Decrew and Higdens case Trin. 36. Eliz. rot 54â— in the Kings Bench and in Erish and Ives case 41 42 Eliz. in the Common-Pleas in an Evidence for the Mannor of Istleworth That no Estate tail might be of Copyhold without a Custom to warrant it Mich. 36 37 Eliz. in the Kings Bench it was adjudged That a Copyholder could not suffer a common Recovery and the reason was because that the Recovery in value is by reason of the Warrantie annexed to the Estate at the Common-Law which could not be annexed to a Customary estate And another reason was given because that he who recovers in value shall be in by the Recovery and the Copy of the Court-Roll only should not be his Evidence as Littleton and other books say it ought to be And Crook said That the Statute of Donis was made in restraint of the Common-Law And it should be very disadvantagious to the Lord if Copyhold should be construed to be within that Statute And therefore he conceived that the said Statute did not extend to Copyholds by any equitable construction And such difference was taken by Popham Chief Justice 42 Eliz. in the Kings Bench rot 299. in Baspool and Long 's Case For he said That a Custom which did conduce to maintain Copyholds did extend to them But a Statute or a Custom which did deprave or destroy them did not As if one surrender to the use of one for life the Remainder in Fee where the Custom is to surrender in Fee the Custom doth not extend thereunto because a Custom which goes in destruction of a Copyhold shall be taken strictly But if a man be Copyholder in Fee he may grant a Fee conditional Harvey Justice put some Cases to prove the small account the Law had of Copyholds at the time of the making of that Statute as 40 E. 3. 28. 32 H. 6. br Copyhold 24. And he said That there is not any book in the Law but only Mancels case in Plow Comment That the Statute of West 2. doth extend to Copyholds Hill 2 Caroli rot 235 in the Kings Bench. 459. LITFIELD and his Wife against MELHERSE A Writ of Error was brought upon a Judgment given in an Action upon the Case brought by Husband and Wife in the Common-Pleas for words spoken of the Plaintiffs wife And the Judgment in the Common-Pleas was That the husband and wife should recover And that was assigned for Error in this Court because the Husband only is to have the damages and the Judgment ought to be That the Husband alone should recover But notwithstanding this Error assigned the Judgment was affirmed by the opinion of the whole Court Pasch 2 Caroli rot 362. in the Kings Bench. 460 HOLMES and WINGREEVE's Case A Writ of Error was brought to reverse a Judgment given in the Court at Lincoln in an Action of Trespass there brought for taking away a Box with Writings And four Errors were assigned 1. Because the Plaintiffe did not appear by Attorney or in person at the retorn of the Attachment against the Defendant so as there was a discontinuance for the Plaintiffe ought to appear de die in diem 2. Because in his Declaration there he saith That the Defendant took a Box with Writings and doth not make any title to the Box nor shews that the same was lockt nailed or sealed 2 H. 7. 6. a. The certainty of the writings ought to be shewed that a certain issue may be taken thereupon Com. 85. 22 H. 6. 16. 14 H. 6. 4. 21 E. 3. He ought to shew the certainty of the writings 18 H. 1. Charters in a Box sealed C. 9. part Bedingfields case C. 5. part Playters case The Declaration was insufficient because the Plaintiffe therein did not name the certain number of the Fishes 3. He pleaded That he made a
Bill Obligatory and doth not shew that it was delivered Dyer 156. Per scriptum suum gerens datum and doth not say Primò deliberatum is not good The fourth Error was That in the Replication the Plaintiffe saith dixit whereas it ought to be dicit in present tense 10 H. 7. 12. The title to the Assise took Exception to the Plaintiffs title because that he said fuit seitus of a Messuage whereas he ought to have said est seitus But yet it was there holden good because he saith that all those whose title he hath c. by which words the possession shall be intented to continue 35 H. 6. 11. 85. vi 268. A Writ a False Judgment directed to the Sheriffe Recordare loquelam que est and the form and the presidents are quae fuit 9 H. 6. 12. The Sheriff retorns Non est inveni whereas it ought to be Nom est inventus and adjudged Error And he said That Detinue is only to be brought when it self is to be recovered in as good plight and no other Action It doth appear by the Record that in this Case at Trial 18 were only retorned upon the Pannel wheras there ought to have been 24 retorned By the Statute of West 2. cap. 38. 24 ought to be retorned on the Pannel 8 H. 4. 20. More then 24. shall not be retorned 2 H. 7. 8. The Sheriffe retorned but 12. and it was ruled to be an insufficient retorn because 24 ought to have been retorned 36 H. 6. 27. Trespass is brought for a Box and Charters which concerned the Plaintiffs lands and damages were given entirely and there it was adjudged not to be good because the Plaintiffe did not make any title to the Box nor did shew that the same was locked or sealed For the Box may belong to one and the Charters to another as the Evidences to the heir and the Box to the Executors unless the Box be first locked Note The opinion of the whole Court was because that the issue was particular That he was not guilty of the Trespass and detaining untill the Plaintiff had entred into a Bond. And the Jury found him guilty of the Trespass generally That the Verdict was not good to make the Defendant guilty by implication And Justice Dodderidge said That the Plaintiff hath brought his Action of Trespass and doth not lay any possession of the Box And Trespass is a possessory Action Also he said That the Plaintiff did not set forth the Quality of the Evidences viz. Whether they were Releases Deeds of Feoffments or other particular Evidences And for these causes and for the causes before alleadged the Judgment given in the Court at Lincoln was reversed Pasch 3 Caroli in the Kings Bench. 461. Sir WILLIAM FISH and WISEMAN's Case JUdgment was given in the Common-Pleas against Sir William Fish and after the year and day Execution was awarded by Capias where it ought to have been by a Scire facias first And the Plaintiff was taken in Execution and brought a Writ of Error in this Court where the Judgment was affirmed but the Execution was reversed because the Execution was not warrantable the Process being erronious And out of the Kings Bench another Execution was awarded by Capias sicut alias within the year of the affirmance of the Judgment in the Kings Bench. And it was moved by Banks That the Execution was erronious because he ought to have a Scire facias because the year is past after the Judgment in the Common-Pleas and although that the Court be changed yet the Plaintiffe ought to have the same Process for Execution as he ought to have in the first Court 14 H. 7. 15. The first Process was reversed for Error and then he cannot have a Sicut alias but ought to have a new Original We pray a Supersedeas of the Execution for Sir William Fish the Plaintiffe and that he may be delivered out of Execution Sir William Fish had a Release and that was the cause that Wiseman would not take a Scirefacias Sir William Fish upon the Judgment in the Common-Pleas was taken in Execution and upon a Writ of Error brought Bail was put in to proceed with effect and then he was delivered out of Execution And then he cannot now be taken in Execution again upon the same Judgment 16 H. 7 2. per Curiam If one be in Execution upon Condemnation in the Common-Pleas and the Record and the body is removed into the Kings Bench by Error then the party shall find collateral Securities by their Recognisance to pay the Condemnation in case the Judgment be affirmed and further to proceed with effect In this case the body is discharged of Execution as to any Process to take the body unless he render himself to prison of his own accord to discharge his Sureties And if he will not do it he who recovereth hath no remedy but to make the Sureties to pay the Condemnation by reason of their Recognisance 2 E. 4. 8. A man is condemned in London tempore Vacationis and hath Execution in the Term and the Defendant sueth a Corpus cum causa and had his priviledge in the Common-Pleas Danby The Plantiffe shall not have Debt for at the beginning when the Defendant was in Execution the Action of Debt was gone and then he being discharged here the Action of Debt doth not lie To which Needham agreed And Choke said He did not know any remedy that the party had and conceived that he could not have a new Execution 14 H. 7. 1. If one escape out of Execution the Plaintiffe cannot take him again in Execution but his remedy is against the Gaoler The Court may supersedeat this Execution because it is erronious 34 H. 6. 45. b. An Action of Debt was brought against an Executor who pleaded that he had fully administred And it was found that he had Assets and Judgment was given against the Defendant and a Capias was awarded against him and after that an Exigent And the Court granted a Supersedeas to supersede that Erronious process For a Capias doth not lie against an Executor where he pleads c. but a Fieri facias And therefore in the principal Case Banks prayed a Supersedeas Jones Justice If Error be brought within the year of the Judgment in the Common-Pleas and the Judgment be affirmed here the party shall have a Capias although the Judgment be affirmed two years after the bringing of the Writ of Error For he shall take the same Execution in the Kings Bench as in the Common-Pleas and the altering of the Court makes no difference in it And so was Garnon's case The Writ of Error was brought within the year of the Judgment in the Common-Pleas but it was not affirmed in two years after and yet there he had the same Process in the Kings-Bench as he was to have had in the Common-Pleas Dodderidge Justice If the Execution be lawfull and upon lawfull Process
have Attaint 44 E. 3. b. 7. But if he be not partie to the Writ he shall not maintain Attaint as if he pretend Joynt-Tenancy with a stranger who is not named and the verdict pass against him he shall not have attaint But Jones Justice said that he might have Attaint Admit the first Feoffee viz. C. might have a Writ of Error yet Brooker in this case cannot because he is the second Feoffee and a Writ of Error is a thing in Action and not transferable over C. 3. part The Marquiss of Winchesters Case C. 1. part Albanies Case One recovers against A. who makes a Feoffment to B. neither the Feoffee nor Feoffor shall have Error for he viz. B. comes in after the title of Error and the Feoffor shall not have the Writ of Error because he is not a partie griev'd 34 Eliz. in the Common Pleas. Sherrington and Worsleys Case Sherrington had Judgment against Worsley and afterwards acknowledged a Statute to B. Sherrington sued forth Execution B. brought Error upon the Judgment and it was adjudged that it would not lie First because he was a stranger Secondly because he came in under and after the title of Error See the reason C. 3. part the Marquiss of Winchesters Case where it is said that a Writ of Error is not transferrable This Attaindor doth not work upon the Land and so it doth not make the Terre-Tenant privy but it works upon the person and blood of Henry Isley the Land is not touched For Henry Isley was attainted in the life of his Father and so it did not touch the Land For if Henry Isley had died without issue in the life of his father the youngest son should have had the Land by discent which proves that it works not upon the Land but upon the person Bankes for the Plaintiff and he desired that the Outlawrie might be reversed As this Case is there is no other person who can maintain Error Henry Isley had his pardon before the Outlawrie but he came not in to plead it and now having enjoyed it so long a time we hope a Purchasor shall be favoured before him who beggs a concealed title The first Exception was taken To the Devise by a person attainted I answer That that is but the conveyance to the Writ of Error Secondly it was said that none but privies or parties could maintain Error and the adverse partie would disable the heir on the part of the Mother and by Custome Thirdly he would disable the Feoffees and make them as strangers First the Outlawrie was 20 Eliz. against Henry Isley which was after the seisin of the Land and Brooker is a party able to bring a Writ of Error being the heir of the purchasor Error and Attaint go with the Land 13 H. 4 19. Dyer 90. Br. Cases 337. But Estopels and Conditions go to the heir Fitz. 21. Error brought by a special heir It is not necessary that alwaies the heir and partie to the Record have the Writ of Error but sometimes he who is grieved by the Record A Scirefacias is a Judicial Writ founded upon a Record and hath as much in privity is Error and yet a stranger to the Record shall have it 16 H. 7. 9. The heir of the purchasor brought a Scirefacias to execute a Fine It was objected that he was not a partie to the Record but it was resolved in respect he was to have the benefit that he was a sufficient person to maintain the Writ 17 Ass 24. 18 E. 3. 25. Execution was upon a Statute before the time that it ought to have been and a Feoffee brought Error It was objected that he was not partie nor privie to the Record yet because he was was grieved by the Execution he did maintain the Writ of Error Trin. 34 Eliz. in the Kings Bench Sherrington and Worsleys Case not rightly remembred Sherrington did recover in debt against Worsley who aliened the Land to Charnock afterwards an Elegit is awarded upon the Roll and Charnock brought Error and it was admitted good and Sherrington forced to plead to it Now in the principal Case we are the partie grieved by the Outlawrie and therefore may maintain the Writ 21 H. 6. 29. A Reversioner or he in the Remainder without aid prayer or Resc ' shall have a Writ of Error because they are damnified although they be not parties to the Record I agree that where one is not grieved by the Judgment there a stranger shall not have Error 21 E. 4. 23. A Recovery is in Debt and the Defendant is taken and escapes the Sheriff shall not have a Writ of Error for he is not grieved by the Record but by the escape 2 R. 3. 21. The Principal is Outlawed in Felony afterwards the Accessory is condemned he shall not have a Writ of Error to reverse the Outlawrie of the Principal for he is not grieved by that Outlawrie but by his own Condemnation Another Objection was because here was an Outlawrie against him and therefore he shall be disabled to sue I answer Our Writ of Error is brought to reverse that Outlawrie and we shall not be rebutted by that Outlawrie when we are to reverse it 7 H. 49 40. Error brought to reverse an Outlawrie the Defendant would have disabled the Plainfiff by another Outlawrie and it was not allowed because he seeks to avoid it 10 H. 7. 18. For the Mastership of an Hospital Exception was taken to the Writ because the Assise is brought to undoe the name of Master and therefore he ought not to name him Master 22 H. 6. 26. Abbot and Covent the Abbot is preferred and the Covent elected another Abbot And the Patron brought a Quare Impedit to defeat the Election It was ruled because he goes about to overthrow the Election he need not name him Abbot Garranty 29. and 18 E. 3. 8. â—o the same purpose The matter of devise is but conveyance to the Writ of Error and the Writ shall not be abated for surplusage 9 E. 4. 24. 7 E. 4. 19. Surplusage is no barr nor Estopel The Outlawriâ— was against Henry Isley and Peckham and wants these words Nec eorum alter comparuit Dodderidge Justice To say where a Feoffee shall have a Writ of Error is a large field If this Feoffee bring Error and reverse the Judgment he must restore the heir in blood and who can have a Writ of Error to restore blood but he who is privie in blood and that is the heir Jones Justice Marshes Case C. 8. part 111. was never adjudged There an Executor could not reverse an Attaindor by Outlawrie because it doth restore the blood The Case of Sherrington and Charnock was to reverse the Execution and not the Judgment An Executor shall have a general Writ of Error to reverse an Outlawrie It was adjourned Pasch 3. Car. in the Kings Bench. 466. GUNTER and GUNTER's Case A Writ of Error was brought to reverse a Judgment in the Court
also mended the high-way And for these Incertainties the Indictment was quashed Pasch 3 Caroli in the Kings Bench. 482. SAMSON and GATEFIELD's Case ERror was brought to reverse a Judgment given in the Court of Virge in an Action upon the Case where the original Process fuit a Sommons whereas it ought to have been an Attachment Pasch 3 Caroli in the Kings Bench. 483. HERN and STUB's Case IN an Action of Detinue the Plaintiff did declare upon the Bailment of a Cloak of the value of 10l. to the Defendant to be safely kept and to be redelivered unto him upon request And shewed That he did request the Defendant to redeliver it and that yet he doth detain it to his damage c. The Defendant justified the Detainer by reason of a Forain Attachment in London And said That London is an ancient City and that there is a Custom in London c. That if any one be indebted unto another that if he will enter his suit or plaint into the Counter of the Sheriff of London that a Precept shall be awarded unto a Sergeant at Mace to summon the Defendant and if he retorn Nihilâ— viz. that he hath nothing within the City by which he may be summoned and Non est inventus And if he be solemnly called at the next Court and makes default that then if he can shew that the Defendant hath goods in the hands of one within the Liberty of the City that the said goods shall be attached And if the Defendant make default at four Court-dayes being solemnly called that then if the Plaintiff will swear his Debt and put in Bail for the goods viz. That if the Debt be disproved within one year and a day or the Judgment be reversed That he he shall have Judgment for the said goods And he shewed That he entred his plaint against the now Plaintiff in the Counter of Woodstreet for the Debt of 20l. and that a Precept was awarded to a Sergeant at Mace to summon him And because he had not any thing by which he could be summoned he shewed that the now Plaintiff had goods in his the Defendants hands which were attached in his hands And that he sware his Debt and put in bail for the goods and had Judgment thereupon Upon which Plea the Plaintiff did demur in Law Ward argued for the Plaintiff There are four Reasons of the Demurrer 1. He sets forth That J. S. did levy a plaint against the now Plaintiff for the Debt of 20l. but doth not set forth expresly that he did owe him 20l. And he ought to have set down how the Debt grew due for that is traversable by the Plaintiff and now hee cannot traverse it C. 10. part 77. The generall Count in an Action upon the Case Quod cum indebitatus fuit in such a summe Super se Assumpsit without shewing the Cause of the Debt is insufficient 5 H. 7. 1. Trespass was brought for taking of a Chain of Gold The Defendant said That the Plaintiff before the trespass supposed did License him to take the same Chain and to retain it untill he paid him 200 Marks which he ought to pay him Keble took Exception because the Defendant did not alledge for what cause the 200 Marks was due which Cause the Plaintiff might traverse to which Brian acc ' 9 E. 4. 41. Trespass for taking a Bagg with Money the Defendant said That the Plaintiff was indebted unto him in a certain Summ and delivered unto him the Bagg of Money in satisfaction Littleton The plea is not good for he ought to shew how he was indebted unto him Old Entries 155 156. there in a Forraign Attachment the certainty of the Debt was expressed and averred 2. He pleads a Custom and doth not prosecute his Case according to Custom The Custom is That if the Sergeant retorn that he hath nothing within the City whereby he may be summoned And Non est inventus And at the next Court day he be solemnly demanded and make default c. And he saith That because he had nothing by which he could bee summoned but doth not say That the Officer did return that he had not any thing whereby to be summoned nor that he was not to be found nor doth he plead or say That at the next Court day he was solemnly demanded Dyer 196. b. where this Case of Forraign Attachment was there the Custom is set forth viz. That the Debt ought to be affirmed by the Oath of the party in Curia Guildhall and this was pleaded to be in Curia Vicecomit in Computatorio Also he doth not averr That he had found pledges according to the Custom and therefore the plea is insufficient because he hath not purchased the Custom 3. He sheweth that the goods were attached in the Defendants hands but he doth not shew that it was within the Liberty of the City and it might be out of the liberty of the City and all the Presidents are infra Jurisdictionem c. And the Plea of every person shall be taken strongest against the Pleader And he ought to have shewed that it was within the Liberty of the City because it is a peculiar Jurisdiction 34 E. 3. breve 789. Debt was brought in the Common Pleas the Defendant said That the Plaintiff had a Bill for the same Debt depending in the Exchequer and demanded Judgment of the Writ non allocatur for it doth not appear by the Plea that the Plaintiff or Defendant were priviledged in the Exchequer and then by the Statute of Articuli super Chart as cap. 4. it is provided That no Common plea shall be holden in the Exchequer 4 E. 4 36. a In trespass for Imprisonment the Defendant doth justifie c. there he ought to shew that the Tower of London hath priviledges c. For where a man will take advantage of a particular Priviledge and Liberty he ought to shew that he was within the Priviledge of Liberty Miâ— 2. Car-Willis was Indicted before the Justices of Northampton for frequenting of a Bawdy-house in Northampton and the Indictment was quashed for it might be within Northampton and yet out of the Liberties and Jurisdiction of Northampton 4. He doth not shew in his Plea that his Debt was a due Debt and it was pleaded Dyer 196. that it was a due Debt vi Entries 155 156. It is not enough to swear his Debt but he must sweat his Debt to be a due Debt Stone for the Defendant 1. I agree that if the Action had been brought in that Court to recover a Debt then he ought to set forth how it became due but here he pleads to bar him and not to recover and so the Debt is not traversable 5 H. 7 1. there Brian took the Exception but two Judges are against him because he brought not Debt but another Action for the Chain 9 E. 4. 41. It is good by Moile without shewing the Debt because it is by way of excuse
for the Judgment was not given upon the verdict Pasch 25 H. 8. Rot. 25. Plot and his wife against Treventry in a Writ of Error after the Record removed Diminution of the Original was alledged and there it was pretended that the Judgment was given upon another Original and one of the Originals was before and the other after the Judgment and there the Judgment was reversed because it cannot appear to the contrary but that the Judgment was given upon the later Original Trin. 18 Jacobi Rot. 1613. Bowen and Jones's Case In an Action upon the Case brought upon Assumpsit Error assigned was because that no place was limited where the payment should be made The Original was That the promise was in consideration that the Plaintiff did lend to the Defendant so much he at London did promise to pay the same to him again There were two Originals which bore date the same day Judgment was in that Case for the Plaintiff And the Defendant brought a Writ of Error and alledged Diminution of the Original then the other Original was certified The Defendant in the Writ of Error said That the Original upon which the Recoverie was grounded was an Original which had a place certain The Judges did affirm the same to be the true Original which did maintain the Judgment and agree with the proceedings otherwise great mischief would â—ollow George Crook contrarie and recited the Case viz. Hayns brought a Writ of Error against Crouch and the Writ of Error is to reverse a Record upon a Judgment which was given in the Common Pleas The Original which is certified bears date Trin. 18 Jacobi and the Ejectione firme is brought Trin. 18 Jacobi for an Ejectment which is made in September following and now upon this Errour assigned the partie had a Certiorari to remove the Record upon which you alledge Diminution For you say That the Originall upon which the Judgment was given bore date in September 18. Jacobi which was after the Ejectment The bodie of the Record is Trin. 18. Contrary to this Record you say that there was an Originall Mich. 18 Jacobi and so that is contrary to the Record Error 2. upon the Record The Originall is not part of the Record but you ought to assigne Errour in that which is alledged in Diminution 6 H. 7. 4 Fitz. 21 a. To alledge any thing against a Record is void The Ejectment was after the Originall which warrants the Record and it was after the Action brought They alledge that the Originall was not truely certified and that then after an Imparlance an Originall Writ is made to Warrant the Action Jones and Bowâ—ns Case before cited There a vitious Originall was certified and then upon the Complaint of the Defendant the true Originall was certified both were retornable at the same day And in the Case before cited of Plott and Treventris The Originall which was first certified did not bear date according to the Record which was certified But in our Case the last Originall doth not agree with the Record but the first But in the Case of Plott the Judgement was reversed for another Error The Diminution when it stands with the Record shall be allowed but when it differs from the Record then it shall not be allowed The Ejectment was layed after the first Originall purchased which agrees with the Record and after the Action brought Quod nota It was adjuorned till another Terme viz. Mich. 21. Jacobi Trin. 21. Jacobi in the Kings Bench. 489. SOMMERS Case THe Case was between Sommers and Mary his Wife Plaintiffs who Traversed an Office found after the death of one Roberts The parties were at Issue upon one point in the Traverse and it was found against the King Henden Serjeant moved The Office finds That Roberts dyed seised of two Acres in Soccage and four foot of Lands holden in Capite which was alledged Roberts had by Encroachment Sommers and his Wife pleaded That Roberts in his life time did enfeoffe them of one of the Acres Absque hoc that that Acre did discend And for the other Acre they pleaded and entitled themselves by the Will of Roberts Absque hoc that Roberts was seised thereof That I take to be an insufficient Traverse First it is found by the Office That Roberts dyed seised and that the same discended to four Daughters and One of the Daughters is the Wife of Sommers And hee and his Wife traverse the Office and confesse that the Ancestor died seised Absque hoc that the same discended The Traverse is repugnant in it self for if he did Devise it then untill Entry by the Devisee it doth discend but if they had pleaded the Devise only and Entry by force thereof it might have been a good Traverse The Office findes that it did discend to four Daughters and the Wife of Sommers is one of the four Daughters and he and his Wife Traverse the discent and that is not good for one cannot Traverse that which makes a Title to himself 37 Ass 1. The Rule there put is That a Man cannot Traverse the Office by which he is intitled but in point of Tenure he may Traverse it wherewith agrees Stamford Prerogat 61. 62. 42 Ass 23. One came and Traversed an Office and thereby it appeared that Two there had occasion to Traverse it and it was holden that they all ought to joyne in the Traverse Finch Recorder of London contr ' The Office found generally That Roberts had four Daughters and had two Acres and four Foot of Lands and that the same discended to four Daughters Sommers and his Wife Traverse the Office and plead That as to one Acre Roberts made a Feoffment thereof unto them Absque hoc that he died seised thereof 2. That Roberts devised the other Acre to them Absque hoc that the same did discend 5 Eliz. Dyer 221 Bishops Case There it is resolved That a Devise doth prevent a Remitter and then by consequent it shall prevent a Discent 49 E. 3 16. There a Devise did prevent an Escheat to the King As to the four Foot gained by Encroachment which is holden of the King in Capite They traverse Absque hoc that Roberts was seised thereof I agree that where their Title is joynt there all must Traverse but in our Case we Traverse for our selves and deny any thing to be due to the three other Sisters The four Foot of Waste was part of the Mannor of Bayhall and the Venire facias was out of that Mannor and the Towns where the other lands lay 9 E. 4. A. disseises B. of a Mannor and A. severs the Demeasnes from the Services Now B. shall demand the Mannor as in Truth it now is Henden contr ' It is no part of the Mannor of Bayhall for it is encroached out of it therefore the Venire facias ought not to be of the Mannor of Bayhall The Jury finde that he had encroached four Foot Ex vasto Manerii c.
not recited in the Statute So here our Case is within the Mischiefe of the Statute of 21. H. 8. Cap. 4. although it be not within the Example So the Statute of West 1. is That if the Gardien or Lessee for years maketh a Feoffment in Fee Tam Feofator quam feofatus habeantur pro disseisoribus yet 22. Ass is That if Tenant by Elegit make a Feoffment it is within the Statute Also it may be a doubt Whether Land devisable onely by custome bee intended in the Statute of 21. H. 8. Cap. 4. And whether Land devisable by the Statute of 32. H. 8. be within it or not viz. If a Statute of a puâ—sne time shall be taken by Equity within a more Ancient Statute and I conceive it may as 12. H. 7. the Statue of 4. H. 7. which sayes that the heire of Cestuy que use shall be in Ward shall extend to the Statute of Praerogativa Regis for if he be in Ward to the King he shall have Prerogative in the Lands to have other Lands by reason thereof Gaudy Justice did rely very much upon the word Devisees viz. that they have an Interest and that the Sale was not good Suit Justice They are both Executors and Devisees of the Lands Devisees of the Lands and Executors to performe the Will Cook he who refused to sell cannot waive the Freehold which is in him by a refusall in pars as 7. H. 2. and 7. E. 4. but ought to waive it in a Court of Record therefore he hath an Interest remaining in him Clenche Justice What if he had devised the Lands to four and made one of them his Executors and willed that he should sell could not he sell All the Court agreed that he might Cook When a man deviseth that his Executors shall sell the Fee descends to the heir yet they may sell that which is in another but the same is not like to our Case It was adjourned Mich. 28 29. Eliz. in the King 's Bench. 93. A Judgement was given upon a Bond for four thousand pound And the Scire facias was sued for three thousand pound and he did not acknowledge satisfaction of the other thousand pound Haughton moved That the Scire facias should abate As if a man brings Debt upon a Bond of twenty pound and shews a Bond for forty pound and doth not acknowledge satisfaction for 20l l it is not good The Justices would advise of it And at another day it was moved againe Whether the Scire facias was good because it doth recite Quod cum nuper such a one recuperasset four thousand pound and doth not shew in what Action or at what day the Judgment was given or the Recovery had Piggot That is not material for such is the Form in an Audita querela or Redisseisin As to the other That he doth not acknowledge satisfaction as in the Case before cited by Haughton which Case is in 1. H. 5. That is not like to an Execution for an Execution is joint or severall at the will of him who sues it forth as in 19. R. 2. Execution 163. hee may have part of his Execution against one in his life time and if he dieth other part against his Heir or Executor Note the Execution was of the whole but because the Defendant had not so much he had but part against him who had no more and therefore of the residue he had Execution against the Heir Gawdy Justice I conceive that he cannot have an Execution unlesse he acknowledge Satisfaction There is no difference as to that betwixt the Action of Debt upon a Bond and a Scire facias and the intendment viz. that it shall be intended that he was paid because he sued but for Three thousand Pound will not help him Piggot as to that vouched a Case out of 4 5. Mary in Dyer which I cannot find Suit Justice said That if the Defendant in the Scire facias say nothing by such a day that Judgement should be entred for the Plaintiffe Quod executio fiet Mich. 28 29. Eliz. in the Kings Bench. 94 JUdgement was given against an Infant by default in a reall Action of Land And a Writ of Error was thereupon brought and it was argued That it is not error for in many cases an Infant shall be bound by a Judicious act as 3. E. 3. Infant 14. Where an Infant and a Feme Covert bring a Formedon and the woman was summoned and severed And it was pleaded That where the Writ doth suppose the woman was Sole she was Covert and Judgment was demanded of the Writ and that the Infant could not gainsay it but confessed it this Confession of the Plea which abated his Writ was taken And 3. H. 6. 10. Br. Saver Default 51. An Infant shall not save his default for he shall not wage his Law See there that the Default shall not be taken against him therefore that book seems rather against it then for it Vide 6. H. 8. Br. Saver Default 50. That Error lieth upon a Recovery by default against an Infant otherwise if it be upon an Action tried so is 2 Mar. Br. Judgment 147. It was said That a generall Act of Parliament shall bind an Infant if he be not excepted The Justices did seem to incline That if Judgement be given by default that it shall bind an Infant but there was no rule given in the Case Mich. 28 29. Eliz. in the Kings Bench. 95 A Clark of the King's Bench sued an Officer of the Common Pleas and he of the Common Pleas claimed his Priviledge and could not have it granted to him for it is a generall rule That where each of the persons is a person able to have Priviledge he who first claimes it viz. the Plaintiffe shall have it and not the Defendant As if an Atturney of the Common Pleas sueth one of the Clarks of the Kings Bench yet he of the Kings Bench shall not have Priviledge although the Kings Bench be a more high Court because the other is Plaintiffe and first claimeth it Mich. 28 29. Eliz. in the Kings Bench. 96 AM Action upon the Case upon a Promise was brought but the Case was so long that I could not take it But in that Case Tanfield who argued for the Defendant said That it is not lawfull for any man to meddle in the cause of another if he have not an Interest in the thing for otherwise it will be Maintenance But if a Custome be in question betwixt the Lord of the Manor and Copy-holder all the other Copy-holders of the Manor may expend their money in maintenance of the other and the Custome and the Master may expend the money of the servant in maintenance of the servant So he in the Remainder may maintain him who hath the particular Estate Maintenance is an odious thing in the Law for it doth encrease troubles and Suites He argued also How that Bonds Obligations and Specialties might be
in the Point But I will put you as strong a Case A Judgement is given upon an Exigent by the Coronor yet by 28. Ass 49. If there be no Returne of the Exigent it is no sufficient Out-lawry and one Pleaded the same in the plainplaintiffe and said that it appeared by the Record and vouched the Record and because the Exigent was not returned it was not allowed And so was the Case of Procter and Lambert 4 5. Philip and Marie adjudged As to the Reports which are not printed vouched by Tanfield eâdem facilitate negantur quâ affirmantur Upon an Elegit if there be goods sufficient the Sheriff is not to meddle with the Lands and if there be not sufficient goods yet hee is not to meddle with the beasts of the plough If a man have an Authoritie and he doth lesse then his Authoritie all is void as here the Return of the Writ is part of his Authority As 12. Ass 24. If a man have a letter of Atturney to make Livery and Seisin to two and he makes it to one all is void and he is a disseisor to the Feoffor So 4. H. 7. If he have a letter of Atturney to make Livery of three Acres and he makes onely Livery of two Acres and not of the third Acre it is void for the whole Also the Elegit is Quod extendi facias liberari quousque the Debt be satisfied and therefore if the land be extended onely and there be no delivery made of the land ut tenementum suum liberum according to the Writ then there is no execution duly done And in the principall Case there was no delivery made of the land It was adjourned Mich. 28 29. Eliz. in the King 's Bench. 97 STRANSAM against COLBURN STransam brought a Writ of Error against Colburne upon a Judgment given in a Writ of Partitione facienda and divers Errors were assigned The first Error assigned was That the party doth not shew in his Writ nor in his Declaration upon what statute of Partition hee grounds his Action And there are two Statutes viz. the Statute of 31. H. 8. chap. 1. and the Statute of 32. H. 8. chap. 32. And yet hee groundeth his Action upon one of the Statutes As 3. H. 7. 5. Where the servants of the Bishop of Lincoln were indicted of Murder eo quod ipsi in Festo Sancti Petri 2. H. 7. felonicè apud D. murdraverunt c. and because there are two Feasts of Saint Peter viz. Cathedrae Ad vincula therefore the Indictment was not good 21. E. 3. One brought a Cessavit by severall Precipes viz. of one Acre in D. and of another in S. and of the third in Villa praedicta and because it was uncertain to which praedict shall be referred it was not good 5. H. 7. Br. Action upon the Statute 47. An Information was in the Exchequer for giving of Liveries and the partie did not declare upon what Statute of Liveries and Exception was taken to it and the Exception was not allowed because that the best shall be taken for the King but if it had been in the Case of a common person it had not been good So if a man bring an Action against another for entry into his Land against the forme of the Statute it is not good because hee doth not shew upon what Statute hee grounds his Action Whether 8. H. 6. which gives treble damages or 2. H. 2. which gives Imprisonment and single damages The second Error which was assigned by Weston was That the Declaration doth shew Quod tenet pro indiviso and doth not shew what estate they held pro indiviso And there is a Statute which gives Partition of an estate of an Inheritance viz. 31. H. 8. Cap. 1. And another which gives partition for years or for life and he doth not shew in which of the Statutes it is As if one claime by a Feoffment of Cestuy que use as 4. H. 7. is he ought to shew that the Cestuy que use was of full age at the time of the Feoffment c. for it is not a good Feoffment if he be not of full age So here he ought to shew that he is seized of such an estate of which by the Statute he may have a Writ of Partition For in many Cases there shall be Joynt-Tenants and yet the one shall not have a Writ of Partition against the other by any Statute As if a Statute Merchant be acknowledged to two and they sue for the execution upon it I conceive that the one shall not have partition against the other So if two Joynt-Tenants bee of a Seignorie and the Tenant dieth without heir so as the Lands escheat to them they are Joynt-Tenants and yet Partition doth not lye betwixt them by any Statute Therefore one may be seised pro indiviso and yet the same shall not entitle him to a Writ of Partition Shuttleworth contrary The Statute doth not give any forme of Writ but the Writ which was at the Common Law before And therefore it is not to be recited what kind of Writ he is to have As to the second point It is not necessary to shew the estate because it cannot be intended that he hath knowledge of the estate of the Defendant For if one plead Joynt-tenancy on the part of the Plaintiffe hee shall not shew of whose gift but if the Defendant or Tenant plead Joynt-tenancy of his part he ought to shew of whose gift and how 7. E. 6. Plo. Com. Partridges case In a Case upon the Statute of Maintenance The Plaintiffe may say That he accepted a Lease and shall not be forced to shew the beginning or the end of it or for what years it is In the Case of the Indictment before and the Case of severall Precipes of severall Acres in severall Towns that lyeth in the Plaintiffs Cognisance But here how can the Plaintiffe know the Defendants estate because he may change it as often as he pleaseth and therefore it is uncertain for if before he had a Fee hee might passe away the same unto another and take back an estate for years Also the Plaintiffe hath appeared and pleaded to the Declaration And therefore he shall not have a Writ of Error Gaudy Justice That is not so Shuttleworth True if there be matter of Error apparant Gaudy Justice Cannot you take notice of your own estate Cook The Declaration is not good therefore the Writ of Error is maintainable By the Common Law No partition lieth betwixt Tenants in common as these are And the Statute of 31. H. 8. gives Partition onely of an estate of Inheritance and prescribes also that the Writ shall be devised in the Chancery there he conceived the Ancient Writ is not to be used I grant for a generall rule That if a Statute in a new Case give an old Writ he shall not say Contra formam Statuti because it is not needfull to recite the Statute
or make mention of it And the Statute of 32. H. 8. Cap. 32. sayes That the Writ shall bee devised upon his or their Case or Cases If one bring a Writ upon the Statute of 31. H. 8. It is not necessary to shew of what estate he is seised but de haereditate generally But upon 32. H. 8. he ought to shew of what estate viz. for years or for life As it was in the Case where Sir Anthony Cook and Temple and Wood were parties which Case is in Bendloes Reports Mich. 7. 8. Eliz. which was a great Case twice stood upon and argued And the reason there is given That every Case is not within the Statute and if at the common Law and not within the Statute the Writ shall not be grounded upon the Statute For in the Case before they might have Partition at the common Law as one Co-parcener against the Alienee of the other Co-parcener may have Also he said That severall Judgements are to be given as the Case is upon the severall Statutes for the Judgement upon the first Statute of 31. H. 8. of Inheritances is Sit firma partitio in perpetuum but upon the Statute of 32. H. 8. it is not so for Judgment given upon that Statute shall not bind him in the Reversion for there is a Proviso in the Statute in the end of it That Partition made by force of that Statute shall not be prejudiciall or hurtfull to any persons other then such who be parties to the said Partition their Executors or Assignes But here it is observed That by intendment he cannot have knowledge of his estate Answ That is at his perill For if he cannot have knowledge of his estate there cannot be any Partition upon any of the Statutes If he will have benefit of the Statute he ought to shew that he is within the Statute and if he cannot shew it then it must remaine at the common Law But it hath been objected that we have confessed the Declaration to bee good because we have appeared and pleaded I answer That if the Declaration want substance it shall never bee made good by Plea or Confession But if it want circumstance that perhaps may bee made good by pleading or confession Tanfield contrary Two principall things are alleadged for Errour That the Declaration is uncertaine in the Estate and that it is uncertaine in the Statute I may know my own Estate but not the Estate of my Companion for it is uncertain and he may secretly change it when he pleaseth But then Cook said It must remaine as at the common Law Itane Then farewell Statute for it may easily be defrauded and no use of it for if I cannot know the Estate I cannot have an Action upon the Statute but our Case is better for our Case is that recusat facere partitionem contra formam Statuti in hoc casu provisam and that is according to the Statute for be the Estate an Estate of Inheritance Free-hold or Lease for Years we leave it indifferent to be referred to the consideration of the Law and according as our Case shall fall out Also it is but an Incertainty and you have pleaded to it and therefore it is no Error but I grant that if it were matter of substance that it were Error Yet Fitz. Nat. Br. 21. d. In a Writ of Entrie Sur disseisin if the Originall Writ want these words viz. Quam clamat esse jus haereditatem suam If the Tenant do admit of the Writ and plead to the Action and loseth he shall not assigne the same for Error because he hath admitted the Writ to be good by his Plea So in Detinue of Charters concerning Lands if the Plaintiffe in his Count or Declaration doth not declare the certainty of the Land c. if the Defendant doth admit of the Count or Declaration and plead the Declaration is made good As to the Judgement If the word Inperpetuum be in it either in the one Case or in the other it shall be construed to be but during the Estate In a Writ of Partition there are two Judgements the first That Fiet Partitio Secondly When the Partition is made and returned the Judgement is That stet firma stabilis Partitio Gawdy Justice The Writ is to be devised upon his or their Case or Cases therefore the Party ought to shew his Case in speciall and what Estate he hath And it is no answer that he cannot know the Estate of the Defendant for in a Precipe at the common Law he ought to take notice of the Estate of the Tenant or otherwise his Writ shall abate for the misprision of it for if he bring it against a Termor it is not good And if the Statute of 31. H. 8. had only been made and not the Statute of 32. H. 8. If he had brought a Writ of Partition upon the Statute he ought to have shewed that he had an Estate of Inheritance against whom he brought the Writ Suit Justice agreed with Tanfield in the whole Gawdy was strongly of the other side That he ought to shew within the purview of which Statute he was and if he will enable himself by Law to bring the Writ he must enable himselfe to be within the Law And he said That Temples Case was adjudged as it was accordingly vouched by Cook before Mich. 28 29. Eliz. in the King 's Bench. 98 DENNIE and TURNER's Case AN Action was brought upon the Statute of 5. Eliz. for Perjury and the Plaintiffe did declare That where an Action of Debt was brought Hill ultimo praeterito 27. Elizabeth whereas in truth the Action in which he was perjured was Hill 28. Eliz. And so the recitall did misse the Record Bartlet argued upon the Case put in Leicester and Heydons Case in Plowdens Commentaries where time place and number ought to be observed otherwise all is void also he said That if the party should recover here upon a Perjury committed upon a Record of 27. Eliz. and should also recover in another Action upon the Statute of 5. Eliz. for a Perjury in an Action begun 28. Eliz. that he should be double charged Cook He cannot bee double charged for it is betwixt the same Parties and in the same Cause and only a Circumstance is mistaken Clench Justice It is needfull to shew in what Action the first Perjury was committed for if hee say in Trespasse whereas in truth it was in Debt all is naught Gaudy Justice If no Action be alledged he cannot sue upon the Statute of 5. Eliz. But the Case was upon a speciall Verdict and the Verdict did find that the Action was brought at another time then any of the Parties had alledged And that Variance was first found by Verdict and no mention made of it before and therefore Cook said it was void for he said That by the book of 22. Ass 17. The Jury cannot find any other thing then the Parties have alledged
Chief Justice did conceive it might be a good custome and so also was the opinion of Rodes Justice and he vouched 11 H. 7. where the Lord had Three Pound for Pound-breach Fenner It is extortion if the amercement be not for a thing which is a common Nusans and cited 11 H. 4. to prove it Periam Justice said That hee said well Pasch 28 Eliz. In the Common Pleas. Rot. 1962. 159 GILE'S and NEWTON'S Case THE Case was That the Queen seised of the Manor of Gascoigne and of the Graunge called Gascoigne Graunge in D. did grant all her Lands Tenements and Hereditaments in D. and it was adjudged by the whole Court that the Manor did not pass And so Anderson Chief Justice said it is if it were in the Case of a common person but an Advowson shall passe by the Feoffment of the Manor without Deed without the words cum pertinentiis for that is parcell of the Manor which the whole Court granted Pasch 23. Eliz. in the Common Pleas. 160 J. S. was arrested by force of a Latitat out of the King's Bench at the Suit of J. D. and the Sheriffe took an Obligation of him with two Sureties upon condition that he appear such a day in the King's Bench and also that ad tunc ibidem he answer the said J. D. in a Plea of Trespass It was moved by Rodes Serjeant That the Obligation was void by the Statute of 23. H. 6. by which Statute no Obligation shall be said to be good if not for appearance only and this Obligation is for appearance and also that he shall answer to J. D. which is another thing then is contained in the Statute and therefore it is void But all the Justices were of opinion That the Obligation was good notwithstanding that because that the words of the Writ directed to the Sheriffe are Quod capias such a man It a quod habeas corpus ejus hîc such a day ad respondendum tali in a Plea of Trespasse and so nothing is contained in the Bond which is not comprised within the Writ directed unto him but if any other collaterall thing be put into the Obligation then the Bond shall be void for the whole 31. Eliz. in the Common Pleas. 161 BUCKHURST'S Case LEssee for ten years granted a rent charge unto his Lessor for the years Afterwards the Lessor granted the Remainder in Fee to the Lessee It was the opinion of the whole Court that the rent was gone and extinct because the Lessor who had the rent is a party to the Destruction of the Lease which is the ground of the Rent 29. Eliz. In the King 's Bench. 162 ALLEN and PATSHALL'S Case A Copy-holder doth surrender unto the use of a Stranger for ever and the Lord admits the Surrendree to have and to hold to him and his Heirs It was adjudged in this Case That if it were upon a devise that such a one should have the Copyhold in Fee and afterwards a surrender is made unto the Lord to grant the Copy-hold according to the Will and he grants it in Fee to him and his Heirs that the Grant is good But quaere in the first Case for it was there but a bare Surrender only Mich. 27 28. Eliz. in the King 's Bench. 163 STRANGDEN and BARNELL'S Case AN Action of Trover and Conversion was brought of Goods in Ipswich the Defendant pleaded That the Goods came to his hand in Dunwich in the same County and that the Plaintiffe gave unto him the goods which came to his hands in Dunwich absque hoc that he is guilty of any Trover and Conversion of Goods in Ipswich And by the opinion of the Court the same is a good manner of Pleading by reason of the speciall Justification Vide 27. H. 6. But when the Justification is generall the County is not traversable at this day Vide 19. H. 6. 6 7. Mich. 27. Eliz. in the Kings Bench. 164 BARTON and EDMOND'S Case AN Infant and another were bounden in a Bond for the Debt of the Infant The Infant at his full age did assume to save the other man harmelesse against the said Bond afterwards the Infant died It was resolved by the whole Court that upon this Assumpsit an Action upon the Case would lie against the Executors of the Infant But if a Feme Covert and another at her request had been bounden in such a Bond and after the death of her Husband she had assumed to have saved the other harmelesse against such Bond such Assumpsit should not have bound the Wife Trinit 29. Eliz. in the Common Pleas. 165 ZOUCH and BAMPORT'S Case THis Case was moved When the Defendant pleads in Bar to the Action and the Plaintiffe replies and the Defendant doth demur specially upon the Replication and the Bar is insufficient Whether the Justices shall give Judgment upon the Replication or shall resort unto the insufficient Bar the Replication being also insufficient And the opinion of the Court was That when the Action is of such a nature that the Writ and the Count doth comprehend the Title as in a Formedon and the like then because there is a sufficient title for the demandant by the Writ and the Count so as the Judges may safely proceed to Judgement for the Plaintiffe there they shall resort to the Barr. Contrary in Cases where the Title doth commence only by the Replication as in Assize Trespass and the like 40. Eliz. in the Exchequer 166 NOte it was said by Sir Francis Bacon the King's Solicitor That it was adjudged 40. Eliz. in the Exchequer That where the King had made a Lease for life who was ousted by a Stranger that the same should be said a Disseisin of the particular estate against the common ground which is That a man cannot be disseised of lesse estate then of a Fee-Simple 40. Eliz. in the Kings Bench. 167 IT was holden and adjudged by Popham Chief Justice of the Kings Bench That where a Lease was made unto the Husband and Wife for their lives the remainder to the Heirs of the Survivor that the same was a good remainder notwithstanding the uncertainty and that in that Case the Husband after the death of the Wife should have Judgement to recover the Land 33. Eliz. in the Common Pleas. 168 PROCTER'S Case IT was adjudged in this Case That the Lachess of the Clark in not entring of the Kings Silver shall not prejudice the King or the Crowne 30 Eliz. In the Kings Bench. 169 HARDING'S Case IT was holden by the whole Court of Kings Bench as it was reported by Sir Robert Hitcham Knight That if a man make a Lease of Copy-hold land and of Free-hold land rendring Rent and the Copy-hold descends to one and the Free-hold to another that the rent shall be apportioned Trinit 25. Eliz. in the Common Pleas. Rot. 1702. 170 LEONARD and STEPHEN'S Case IN Trespass the issue joyned was Whether it were a Feoffment or not and
condition 3 Jacobi in the Star-Chamber 186 RUSWELL'S Case A Man took away Corne in the night time to which he had a right and was punished for a Riot in the Star-Chamber because of his company only Hillar 3. Jacobi 187 KINGSTON and HILL'S Case AN Action upon the Case was brought for saying these words viz. Thou art an arrant Papist and it were no matter if such were hanged and thou and such as thou would pull the King out of his Seat if they durst Adjudged that the words were not actionable Et quod querens nihil capiat per Billam Pasch 3 Jacobi in the Common Pleas. 188 NOte It was holden by the Court That if a Fierifacias go to the Sheriffe to do Execution and he levieth the money and delivereth the same to the party yet if it be not paid here in the Court the party may have a new Execution and it shall not be any Plea to say That he hath paid the same to the party for it is not of Record without bringing of the money in Court Vide 11. H. 4. 50. ar Pasch 3. Jacobi in the Common Pleas. 189 DUKE and SMITH'S Case NOte That if he in the reversion suffer a recovery to divers uses his Heirs cannot plead That his father had nothing in the Land at the time of the recovery for he is estopped to say That he was not Tenant to the Praecipe And it was agreed â—That it was a good recovery against him by estoppel Quaere this case Mich. 3. Jacobi in the King's Bench 190 BIRRY'S Case BIrry was committed by the High Commissioners and removed by Habeas corpus into the Kings Bench They returned the Writ with a Certificate That they did commit him for certain causes Ecclesiasticall which generall cause the Court did not allow of They certified at another time That it was for unreverent Carriage and sawcie Speeches to Doctor Newman The Court also disallowed of that cause Birry put in Bail to appear de die in diem and was discharged It was holden That if Birry did not put off his Hat to him or not give him the wall the same were not sufficient causes for them to commit him And it was agreed by the whole Court That whereas the said Commissioners took Bonds of such as they cited to appear before them to answer unto Articles before that the party had seen the Articles that such Bonds were void Bonds Mich. 3. Jacobi in the King 's Bench. 191 ANN MANNOCK'S Case ANN Mannock was indicted in Suffolk upon the Statute of 1. El. cap. 2. for not coming to Church twelve Sundayes together which Indictment was removed into the Kings Bench and Exceptions taken unto it 1. That the Statute is That all Inhabitants within the Realme c. and it is not averred in facto that she did inhabit within the Realme and the Exception was disallowed for if it were otherwise it ought to be shewed on the Defendants part The second Exception That by a Proviso of the Statute of 28. Eliz. cap. 6. it is ordained That none shall be impeached for such offence if he be not indicted at the next Sessions and it appears by the Indictment That the Offence was almost a year before the Indictment and in the mean time many Sessions were or debuerunt to have been And that Exception was also disallowed for perhaps the truth is That there was not any Sessions in the mean time although there ought to have been The third Exception That the Indictment was That she was indicted Coram A. B. sociis Justices of Peace and it doth not name them particularly The Exception was disallowed for that it doth not appear that there were any other Justices there and what was their names And therefore it was said That it differs from the Case of 1. H. 7. of a Fine levied Câ—raâ— A. B. â—â—â—iis suis The fourth Exception was That the words of the Statute are Ought to abide in the Church till the end of Common Prayer Preaching or other Service of God in the Disjunctive and the Indictment was in the Conjunctive The Exception was disallowed for although the words are in the disjunctive yet a man cannot depart so soon as the Service is ended if there be preaching but he ought to continue there for the whole time Pasch 4. Jacobi in the King 's Bench. 192 AN Enfant did acknowledge a Statute and during his Nonage brought an Audita querela to avoid the Statute and had judgment The Conusee at the fall age of the Enfant brought a Writ of Error and reversed the judgment given in the Audita querela and the Enfant the Conusor prayed a new Audita querela but it was denyed by the whole Court Mich. 4. Jacobi in the Common Pleas. 193 PETO and CHITTIE'S Case IT was adjudged in the Court of Common Pleas in this Case That concord with satisfaction is a good plea in Barre in an Ejectione firme Mich. 5. Jacobi in the King 's Bench. 194 TWo Men were bound joyntly in a Bond one as principal and the other as surety the principal dyed Intestate the surety took Administration of his goods and the principal having forfeited the Bond the surety made an agreement with the Creditor and took upon him to discharge the Debt In Debt brought by another Creditor the question was upon fully administred pleaded by the Administrator If by shewing of the Bond and that he had contented it with his own proper Mony whether he might retain so much of the Intestates estate and it was adjudged that he might not For Flemming Chief Justice said that by joyning in the Bond with the principal it became his own Debt Pasch 5. Jacobi in the Common Pleas. 195 TAYLOR and JAME'S Case IN a Replevin by John Taylor against Richard James for taking of a Mare and a Colt in Long Sutton in a place called H. in the County of Somerset The Defendant did avow the taking and shewed That Sir John Spencer was seised of the Manor of Long Sutton whereof the place where c. is parcel and that he and all those whose estate he hath in the said Manor c. have had all Estrayes within in the said Manor and shewed that the Bailiff of Sir John Spencer seised the said Mare and Colt as an Estray and proclaimed them in the three next Market Towns and afterwards the Baiâ—iff did deliver them to the Defendant to keep in the place where c. And if any came and challenged them and could prove that the same did belong to him and pay him for their meate that he should deliver them unto him and then shewed how that the Plaintiff came and claimed them for his own and because he would not prove that they did belong unto him nor pay him for their meate c. he would not deliver them upon which plea there was a Demurrer in Law After argument by the Serjeants Cook Chief Justice said that it was a
Tenures of such men viz. A. B. C. 3. All his lands which he had by Purchase c. And the words All my Lands are to be intended all those my Lands which are within the restrictions And he said that the word Et being in the copulative was not material for all was but one sentence and it did not make several sentences and the word Et is but the conclusion of the sentence 3. They resolved That general words in a Grant may be overthrown by words restrictive as is 2 E. 4. and Plow Com. Hill Granges Case And therefore if a man giveth all his lands in D. which he hath by Discent from his Father if he have no lands by Discent from his Father nothing passeth 4. They agreed That a Restriction may be in a special Grant as in C. 4. par Ognels Case but they said that if the Restriction doth not concur and meet with the Grant that then the Restriction is void Note the principal Case was adjudged according to these Resolutions Mich. 11. Iacobi in the Common-Pleas 293. COOPER and ANDREWS Case TO have a Prohibition to the Spiritual Court suggestion was made That the Lord De la Ware was seised of 140 Acres of lands in the County of Sussex which were parcel of a Park And a Modus Decimandi by Prescription was said to be That the Tenants of the said 140 Acres for the time being had used to pay for the tythes of the said 140 Acres two shillings in mony and a shoulder of every third Deer which was killed in the same Park in consideration of all tythes of the said Park And it was shewed how that the Lord De la Ware had enfeoffed one Cumber of the said 140 acres of land who bargained and sold the said 140 acres of land to the Plaintiffe who prayed the Prohibition The Defendant said that the said Park is disparked and that the same is now converted into arable lands and pasture-grounds and so demanded tythes in kind upon which the Plaintiffe in the Prohibition did demur Hutton Serjeant By the disparking of the Park the Prescription is not gone nor extinct because the Prescription is said to be to 140 acres of lands and not to the Park and although the shoulder of the Deer being but casual and at the pleasure of the party be gone yet the same shall not make void the Prescription 2. He said that the act of the party shall not destroy the Prescription and although it be not a Park now in form and reputation yet in Law the same still remains a Park And he compared the Case unto Lutterels Case C. 4. par 48. where a Prescription was to Fulling-Mils and afterwards the Mils were converted to Corn-Mils yet the Prescription remained 3. He said Admit it is not now a Park yet there is a possibility that it may be a Park again and that Deer may be killed there again For the Disparking in the principal Case is only alleadged to be that the Pale is thrown down which may be amended For although that all the Park-pale or parcel of it be cast down yet the same doth still remain in Law a Park and a Park is but a Liberty and the not using of a Liberty doth not determine it nor any Prescription which goes with it And if a man have Estovers in a Wood by Prescription if the Lord felleth down all the Wood yet the right of Estovers doth remain and the Owner shall have an Assise for the Estovers or an Action upon the Case Vid. C. 5. par 78. in Grayes Case the Case vouched by Popham Further he said That in the beginning a Modus Decimandi did commence by Temporal act and Spiritual and the mony is now the tythe for which the Parson may sue in the Spiritual Court And a Case Mich. 5. Jacobi was vouched where a Prescription to pay a Buck or a Doe in consideration of all Tythes was adjudged to be a good Prescription And the Case Mich. 6. Jacobi of Skipton-Park was remembred where the difference was taken when the Prescription runs to Land and when to a Park In the one case although the Park be disparked the Prescription doth remain in the other not And 6 E. 6. Dyer 71. was vouched That although the Park be disparked yet the Fee doth remain And so in the Case at Bar although the casual profit be gone yet the certain profit which is the two shillings doth remain Harris Serjeant contrary And he said that the Conveyance was executory and the Agreement executory and not like unto a Conveyance or Agreement executed And said that Tythes are due jure divino and that the party should not take advantage of his own wrong but that now the Parson should have the tythes in kind And upon the difference of Executory and Executed he vouched many Authorities viz. 16 Eliz. Dyer 335. Calthrops Case 15 E. 4. 3. 5 E. 4. 7. 32 E. 3. Anuitie 245. And in this case he said that the Parson hath no remedy for the shoulder of the Deer and therefore he prayed a Consultation Hobart Chief Justice said That the Pleading was too short and it was not sufficiently pleaded For it is not pleaded That the Park is so disparked that all the benefit thereof is lost But he agreed it That if a man doth pull down his Park-pale that the same is a disparking without any seisure of the Liberty into the Kings hands by a Quo Warranto But yet all the Court agreed That it doth yet remain a Park in habit And they were all also of opinion That the disparking the Park of the Deer was not any disparking of the Park as to take away the Prescription The Case was adjourned till another day Mich. 11. Iacobi in the Common-Pleas 330. PIGGOT and PIGGOT's Case IN a Writ of Right the Donee in tail did joyn the Mise upon the meer Right and final Judgment was given against the Donee in which case the Gift in tail was given in Evidence Afterwards the Donee in tail brought a Formedon in the Discender and it was adjudged by the whole Court that the Writ would not lie For when final Judgment is given against the Donee in tail upon issue joyned upon the meer Right it is as strong against him as a Fine with Proclamations and the Court did agree That after a year and day where final Judgment is given the party is barred and also that such final Judgment should bar the Issue in tail Mich. 11 Iacobi in the Exchequer-Chamber 331 AN action upon the Case was brought for speaking these words Thou doest lead a life in manner of a Rogue I doubt not but to see thee hanged for striking Mr. Sydenhams man who was murdered And it was resolved by all the Justices in the Exchequer-Chamber That the words were not actionable At the same day in the same Court a Judgment was reversed in the Exchequer-Chamber because the words were not actionable The words
the Court of York the Plaintiffe had Judgment that the Defendant should accompt And upon that Judgment the Defendant in the Court there brought a Writ of Error in the Kings Bench. And it was adjudged That no Writ of Error lay in that case because the Judgment to Accompt is but the Conveyance and the Plaintiffe hath not any benefit until he be satisfied by the Award of the Auditors for upon their Award the final Judgment shall be given Mich. 12 Iacobi in the Kings Bench. 357. The Bishop of SALISBURY's Case IT was holden in this Case That if a Bishop Parson or other Ecclesiastical person do cut down Trees upon the Lands unless it be for Reparations of their Ecclesiastical houses and do or suffer to be done any delapidations That they may be punished for the same in the Ecclesiastical Court and a Prohibition will not lie in the Case and that the same is a good cause of deprivation of them of their Ecclesiastical Livings and Dignities But yet for such Wastes done they may be also punished by the Common Law if the party will sue there Vide 2 H. 4. 3. Trin. 13 Iacobi in the Kings Bench. 358. PRAT and the Lord NORTH'S Case A Man was distreined by the Bailiffe of the Lord North for 20s. imposed upon him in the Court-Leet for the erecting and storing of a Dove-Cote And it was said That it cannot properly be called a Nusance but for the destroying of Corn which cannot be but at certain times of the year And therefore it was conceived That the party who was presented might traverse the Nusance to be with his Pidgeons and it was said that a man might keep Pidgeons within his new house all the year or put them out at such a time as they could not destroy the corn And Cook Chief Justice said That there is not any reason that the Lord should have a Dove-Cote more then the Tenant and he asked the Question where the Statute of E. 2. saith Inquiratur de Dove-Cotes erected without Licence Who should give the Licence Ad quod non fuit responsum In Mich. Term following the Case was argued by Damport who said That the erecting of a Dove-Cote by a Freeholder was no Nusance For a Writ of Right lieth of a Dove-Cote and in the Register it is preferred and named before Land Garden c. But he said that there was a fatal defect in the Plea which was That the Presentment at the Leet was That Prat had erected a Dove-Cote unlawfully and did not say ad commune nocumentum as it ought to be otherwise it is not presentable in the Leet And therefore although it was otherwise in the Plea That it was ad commune nocumentum the same did not help the defective Presentment Mich. 10 Jacobi in the Common Pleas. 359. GREENWAY and BARKER's Case BEtwixt Greenway and Barker It was moved for a Prohibition to the Court of Admiralty and the Cause was for taking of a Recognisance in which the Principal and his Sureties his heirs goods and lands were bounden And it was in the nature of an Execution at the Common-Law and thereupon they in the Admiral Court made out a Warrant to arrest the body of the Defendant there Dodderidge Serjeant said That it was not a Recognisance at the Common-Law but only a Stipulation in the nature of a Bail at the Common-Law and he said That it was the usual course to pledge goods there in Court to answer the party if sentence were given against him Nichols Serjeant They cannot take a Recognisance and by the Civil Law if the party render his body the Sureties are discharged and Execution ought to be only of the goods for the ship is only arrested and the Libel ought to be only against the ship and goods and not against the party 19 H. 6. acc ' And afterwards Dr. Steward and Dr. James were desired by the Court to deliver their opinions what the Civil Law was in this Case and Doctor Steward said He would not rest upon the Etymologie of the word for if it be a Recognisance Bail or Stipulation it is all one in the Civil Law and in such case he said by their Law Execution might be against the sureties And he argued 1. That ex necessitate it must be agreed that there is an Admiral Court 2. That that Court hath a Jurisdiction And by a Statute made in Henry the 8. time and by another in the time of Queen Elizabeth divers things as Appeals c. were triable by the Civil Law And he said That every Court hath his several form of proceedings and in every Court that form is to be followed which it hath antiently used And as to the proceedings he said That first they do arrest the goods 2. That afterwards the party ought to enter Caution which is not a Bond but only a Surety or Security which doth bind the parties And he said That the word Haeredes was necessary in the Instrument For for the most part the Sureties were strangers And he said That Court took no notice of the word Executors and therefore the word Haeredes is used which extends as well to Executors and Administrators as to Heirs And he said That upon a Judgment given in the Court of Admiraltie they may sue forth an Execution of it in forein parts as in France c. And he said That if Contracts be made according to other Laws the same must be tryed according to the Law of that Country the Contract is made Dr. James said That in the same Court there are two manners of proceedings 1 The Manner 2 the Customs of the Court are to be observed And he said that Stipulation ought to be in the Court by coertion which word is derived à stipite by which the party is tyed as he said as a Bear to the stake or as Vlisses to the Mast of the ship And he said In a Judicial stipulation four things are considerable 1 The Judicial Sistem 2. Reparratum habere 3. Judicatum solvere 4. De expensis solvendis as appeareth in Justinians Institutes cap de Satisdationibus For Satisdatio and Stipulatio are all one in the Civil Law And after Cook Chief Justice said That it ought to be confessed that there hath been a Court of Admiralty 2. That their proceedings there ought to be according to the Civil Law And he observed four things 1. The Necessity of the Court 2. The Antiquity of it 3. The Law by which they proceed and lastly the Place to which they are confined And as to the necessity of the Court he said That the Jurisdiction of that Court ought to be maintained by reason of Trade and Traffique betwixt Kingdom and Kingdom for Trade and Traffique is as it were the life of every Kingdom 2. A mans life is in danger by reason of traffique and Merchants venture all their estates and therefore it is but reasonable that they have a place for the trial of
then the Court is to abate the Petition but after Judgment to find such a fault he must have a Scire facias and not a new Petition and in our Case there was none who gave in such matter for the King Now I come to the Statute of 31. H. 8. The particular Act for the Attainder of Francis Bigot and that he should forfeit all such Lands c. Conditions Rights c. in Fee and Fee tail saving c. and as the lands of Francis Bigott stood stated at the time of the making of this Act of 3. H. 8. the Statute did not extend to him to make him forfeit any thing In the Statute of 33. H. 8. Cap. 20. there were as many words as in this Statute of 31. H. 8. and many Cases upon the Statute of 33. H. 8. are adjudged upon the words shall lose and forfeit There is a difference betwixt an Act of Assurance and an Act of Forfeiture If the words be That the King shall enjoy and have it is then an Act of Assurance and the lands are given to the King without Office but by an Act of Forfeiture the Lands are not in the King without Office found Exceptio firmat regulam but our Case is out of the Rule Savings in Acts of Parliaments were but of late days 1. E. 4. there was a private Act A Petition was preferred against divers in Parliament for sundry misdemeanours and it was Enacted that they should forfeit unto the King and his heirs c. in that Act there was no exception of saving for it was but a forfeiture of their Rights and Savings were but of late times Trin. 8. H. 8. Rot. 4. A Petition of Right in the Chancery upon that was a plea which was after the Attainder of the Duke of Suffolk That the Duke did disseise him it was shewed that the Attainder was by Parliament and he shewed no saving to be in the Statute in the Petition and yet it was well enough Com. 552. Wyat Tenant in tail of the Gift of the King made a Feoffment and by Act of Parliament 2 Mariae was attainted of Treason by which he was to forfeit c. as in our Case I answer That within two years after that Judgment upon solemn argument it was adjudged contrarie Com. 562. It was objected that in that Case a Writ of Error was brought Com. 562. and that the Judgement was affirmed in the Case of Walsingham I answer that the same was by reason of the Plea in Barr And Com 565. there Plowden confesseth that the Judges were not agreed of the matter in Law and the Lands in question in Walsingams Case do remain with Moulton and at this day are enjoy'd contrary to the Judgment given in Walsinghams Case It was objected That although this Act of 31. H. 8. was made after the Attainder yet that it should relate to all the Lands which Francis Bigot had at the time of the Treason committed I answer That this Act of 31. H. 8 is but a description what Lands he shall forfeit viz. all the Lands which he had at the time of the Treason committed The second Point is upon the Remitter of Roger Ratcliff before the Inquisition for there was a discent to Roger Ratcliff When Tenant in Tail is attainted of Treason his blood is not corrupted C. 9. part 10. Lumleys Case And the Statute of 33. H. 8. is the first Statute which vests Lands forfeit for Treason in the King without Office found So as according to the Lord Lumley's Case C. 3. part 10. before this Statute of 33 H. 8. the Land did discend to the issue in tail The Rule of Nullum tempus occurrit Regi is to be meant for the preserving of the Kings Right but not to make the King to do wrong Com. 488. there the Remitter is preferred before the King 49. E. 3. 16. there the Devise of a Common person was preferred before the Right of the King 3. H. 7. 2. the Lord Greistock's Case The Dean of York did recover against him and before Execution the Lord died his heir within age the Dean shall have his Execution notwithstanding that the King hath right to have the Ward A fortiori a Remitter shall be preferred before the Kings Title C. 7. part 28. The Rule Nullum tempus occurrit Regi is to be intended when the King hath an Estate or Interest certain and permanent and not when his Interest is specially limited when and how he shall take it and not otherwise The third Point was Whether Ratcliff hath brought his proper Action The words of the Act of 2 E. 6. cap. 8. which giveth the Monstrans de Droit are to be considered A Remitter is within the words of the Act. Divers Errors were assigned by the other side for matter of Form 1. Because the Venire facias want these words tam milites quam alios Sheffield being a Noble man and a Peer of the Realm It appeareth by the Register 7. that the same was the ancient Form in every common persons Case but of late that Form was left 2. Admit that it were a good Exception then it ought to have been taken by way of Challenge as it appeareth 13. E. 3. Challenge 115. Dyer 107. 208. 3. The Statute of 35. H. 8. Cap. 6. makes a new Law and prescribes a Form Precipimus c. quod Venire facias coram c. 12 Liberos Legales homines c. and then if it ought to be by the Register tam milites quam alios yet here is a new Statute against it And by the Statute of 2. E. 6. Cap. 32. this Statute of 35 H. 8. is made perpetual And by the Statute of 27. Eliz. Cap. 6. the Statute of 35. H. 8. is altered in parvo and augmented in the worth of the Jurors and by the Statute of 18. Eliz. Cap. 14. It is Enacted That after Verdict c. the Judgment thereupon shall not be stayed or reversed by reason of any default in Form or lack of Form or variance from the Register The second Error assigned was because that there are two Venire facias and two Distringas after that Issue was joyned The Lord Sheffield sueth unto the King to have the first Venire facias and first Distringas quashed and it was quashed with Ratcliff's consent Secondly admit there were two Venire facias yet it ought to be intended that the proceedings was but upon one of them and that the best M. 17. Jacobi in the Common Pleas Bowen and Jones's Case In Error upon a Recovery in Debt there were two Originals certified and there the one was good and the other naught the Judges did take it that the Judgment and proceedings were upon the good Original and the Judgment was affirmed in the Kings Bench M. 15 H. 8. Rott 20. the same Case Two Originals one bearing date after the Judgment the other before the Judgment and upon a Writ of Error brought the
then the tender is good But if he be not there but at another place the notice is sufficient Dodderidge The Law requires certainty in a Declaration and the matter cannot be taken by intendment so we ought to have a certainty set forth otherwise no certain Judgment can be given It was adjourned for Dodderidge and Haughton Justices were against Ley Chief Justice But as I have heard the Case was afterwards adjudged for the Plaintiffe There quaere the Record of the Judgment Trin. 21 Iacobi in the Kings Bench. 425. A Man made a Lease for life and covenanted for him and his heirs That he would save the Lessee harmless from any claiming by from or under him The Lessor dyed and his wife brought a Writ of Dower against the Lessee and recovered and the Lessee brought an Action of Covenant against the heir And it was adjudged against the heir because the wife claimed under her husband who was the Lessor But if the woman had been mother of the Lessor who demanded Dower the Action would not have layen against the heir because she did not claim by from or under the Lessor And so it was adjudged v. 11. H. 7. 7. b. Trin. 21 Iacobi in the Kings Bench. 426. SNELL And BENNET'S Case A Parson did contract with A. his Executors and Assigns That for ten shillings paid to him every year by A. his Executors and Assigns that he his Executors or Assigns should be quit from the payment of Tythes for such Lands during his life viz. the life of the Parson A. paid unto the Parson ten shillings which the Parson accepted of And made B. an Enfant his Executor and dyed The mother of the Enfant took Letters of Administration durante minori aetate of the Enfant and made a Lease at Will of the Lands The Parson libelled in the Ecclesiastical Court for Tythes of the same Lands against the Tenant at Will who thereupon moved for a Prohibition Dodderidge During the life of the Parson the Contract is a foot but the Assignee cannot sue the Parson upon this Contract yet he may have a Prohibition to stay the suit in the Ecclesiastical Court and put the Parson to his right remedy and that is to sue here This agreement is not by Deed and so no Lease of the Tythes The Parson shall have his remedy against the Executor for the ten shillings but not against the Tenant at Will and the Executor hath his remedy against the Tenant at Will Crook 21 H. 6. A Lease of Tythes without Deed is good for one but not for more years v. 16 H. 7. And afterwards a Prohibition was granted Trin. 16 Jacobi in the Kings Bench. 427. PHILPOT and FEILDER'S Case THe Parties are at issue in the Chancery and a Venire facias is awarded out of the Chancery to try the issue and the Venire facias was Quod venire facias coram c. duodecim liberos legales homines de vicineto de c. quorum quilibet habeat quatuor lib. terrae tenementorum vel reddituum per annum ad minus per quos rei veritas melius sciri poterit c. And it was moved in arrest of Judgment That the Venire facias is not well awarded for it ought to be Quorum quilibet habeat quadraginta solidos terrae tentorum vel reddit per an ad minus according to the Statute of 35 H. 8. cap. 6. which appoints that every one of the Jurors ought by Law to expend forty shillings per annum of Freehold and it ought not to be quatuor libras terrae c. according to the Statute of 27 Eliz cap. 6. which Statute of Elizabeth doth not speak of the Chancery but only of the Kings Bench Common-Pleas and the Exchequer or before Justices of Assise Before the Statute of 35 H. 8. no certain Land of Jurors was named in the Venire facias but since the Statute of 35 H. 8. it was quadragint solidos untill the said Statute of 27 Eliz. and now it is quatuor libras in the Kings Bench Common-Pleas and Exchequer It was adjourned At another day the Case was moved again That the Venire facias ought to be 40 solidos c. according to the Statute of 35 H. 8. cap. 6. And 10 H. 7. 9. 15 were vouched That if a Statute appoint that the King shall do an act in this form the King ought to do it in the same form and manner So if a Letter of Attorney be to make a Bill in English and the same is made in Latine it is not good although it be the same in form and matter Cook lib Entries 578. Waldrons Case is That in the Chancery the Venire facias was but 40 but that Case was between 35 H. 8. and 27 Eliz. cap 6. Dodderidge and Haughton Justices It is a plain case For the Venire facias ought to be according to 35 H. 8. cap. 6. because the Statute of 27 Eliz. cap. 6. speaks nothing of the Chancery Quod nota Trin. 21 Iacobi in the Kings Bench. 428. HEWET and BYE'S Case IN an Ejectione Firme of a house in Winchester the Ejectment was laid to be of a house which was in australi parte vici Anglice the High-street Ley Chief Justice If it had been ex australi parte vici then the South part had been but a Boundary but here it is well laid Then it was moved That the Venire facias is Duodecim liberos legales homines de Winton and doth not say of any Parish in Winton But notwithstanding it was holden good For Dodderidge Justice said That it is not like unto Arundels Case C. 6. part 14. For there the Offence was laid to be done in paroechiae Sanctae Margaret de Westminster therefore the visne ought to be of the Parish but in this case it being laid generally in Winton it is sufficient that the visne come out of Winton Judgment was given for the Plaintiffe Trin. 21 Iacobi in the Kings Bench. 429 WATERER and MOUNTAGUE'S Case A Man made a Lease for six years and the Lessor covenanted That if he were disposed to lease the said lands after the expiration of the said term of six years that the Lessee should have the refusal of it The Lessee within the six years made a Lease thereof to J. S. for 21 years Dodderidge Haughton and Ley Chief Justice The Covenant is not broken because it is out of the words of the Covenant But Dodderidge said Temp. E. 1. Covenant 29. The Lessee covenanted to leave the houses trees and woods at the end of the term in as good plight as he found them and afterwards the Lessee cut down a tree that in that case the Covenant was broken and the Lessor shall not stay untill the end of the term to bring his action of Covenant because it is apparant that the tree cannot grow again and be in as good plight as it was when he took the Lease Trin. 21
Billam Trin. 21 Jacobi in the Kings Bench. 435. SHOETER against EMET and his WIFE THe plaintif being a midwife the Defendants wife said to the plaintif Thou art a Witch and wert the death of such a mans child at whose birth thou wert Midwife In an Action upon the Case in Arrest of Judgment it was moved that the words were not actionable Hill 15 Jacobi in the Common Pleas Stone and Roberts Case adjudged That an Action upon the Case doth not lie for saying thou art a Sorcerer 9 Jac. Godbolds Case in the Kings Bench Thou art a Sorcerer or an Inchanter 30 Eliz. betwixt Morris and Clark for saying Thou art a Witch no Action will lie for of the words Witch or Sorcerer the Common Law takes no notice but a Witch is punishable by the Statute of 1 Jacobi cap. 12. Pasch 44 Eliz Lowes Case Thou hast bewitched my cattel or my child there because an Act is supposed to be done an Action upon the Case will lie for the words 1. Jacobi Sir Miles Fleetwoods Case He was Receiver for the King in the Court of Wards and Auditor Curle said of him Thou hast deceived the King and it was adjudged that an Action upon the Case would lie for the words because it was in his calling by which he got his living Chamberlain Justice Since the Statute 1 Jacobi for calling one Witch generally an Action will lie For for the hurting of any thing a Witch is punishable by shame viz. Pillory in an open place Dodderidge Justice Thief or Witch will bear Action and the reason of the Case before cited by the Councel is because that the common Law doth not take notice of a Witch But punishment is inflicted upon a Witch by the Statute of 1 Jacobi and by that Statute a Witch is punishable Trin. 21 Jacobi Betwixt Mellon and Herâ— Judgment was stayed where the words were Thou art a witch and hast bewitched my child because that the words shall be taken in mitiori sensu as thou hast bewitched him with pleasure And in that sense Saint Paul said Who hath bewitched you O Galatians That case was adjudged in the Common Pleas. Trin. 21 Iacobi in the Kings Bench. 436. KNOLLIS and DOBBINE'S Case KNollis did assume and promise apud London within such a Parish that he would cast so much Lead and cover a Church in Ipswich in Suffolk and one Scrivener promised him to give him 10l for his costs and pains Scrivener died Knollis brought an Action upon the Case against Dobbins who was Administrator of Scrivener and declared that he such a day did cast the Lead and cover the said Church apud London The Defendant pretended that the Intestator made no such promise and it was found for the Plaintiffe and in arrest of Judgment it was moved That the Declaration was not good by reason that the Agreement was to cover a Church in Ipswich and he declared he had covered such a Church apud London which is impossible being 60 miles asunder and so the Declaration is not pursuing the promise Dyer 7 Eliz. 233. In Avowry for Rent upon a Lease for life c. That the Prior and Covent of c. at Bathe demiserunt Lands which was out of Bathe it was void for they being at Bathe could not make Livery of Land which was out of Bathe Vi. Dyer 270. The second Exception to the Declaration was That the Commissary of the Bishop of Norwich apud London did commit Administration of the Goods and Chattels of Scrivener to Dobbins apud London which was said not to be good because he had not power in London to execute any power which appertained unto him at Norwich Dodderidge Justice The plaintiffe declares that apud London he did cover the said Church that is not good and makes the Declaration to be insufficient because it is not according to the promise The place where the Commissary of the Bishop of Norwich did grant the Administration is not material For if the Bishop of Norwich be in London yet his power as to granting of Letters of Administration and making of Deacons and Clarks in his own Diocese doth follow the person of the Bishop although his other Jurisdiction be Local to which the Court agree And it was adjudged that the Declaration was not good and therefore Judgment was given Quod querens nihil capiat per Billam Trin. 21 Iacobi in the Kings Bench. 437. BULLEN and SHEENE'S Case SHeene brought a Writ of Error upon a Judgment given in the Common Pleas. The Case was Bullen being a Commoner intituling himself by those whose Estate he had in the Land brought an Action upon the Case against Sheene because he had digged clay in the land where the Plaintiffe had Common and had carried away the same over the Common per quod he lost his Common and by that could not use his Common in as ample manner as he did before Sheene entitled himself to be a Commoner and have common in the said land also and so justified the Entrie and set forth a prescription That every Commoner had used to dig clay there and the first issue was found for the Defendant Sheene viz. that he was a Commoner but the other issue was found for the Plaintiffe Bullen viz. that there was no such prescription That a Commoner might dig clay And the Jury did assesse damages to the Plaintiffe generally and the same was moved to be Error because that the Plaintiffe had not damage by carrying away of the clay because the same did not belong to him for that he was but a Commoner and so the Judgment given in the Court of Common Pleas was Erroneous Ley Chief Justice By the digging of a pit the Commoner is prejudiced by the laying of the clay upon the Common the Commoner is prejudiced and so the damages are given for the digging and carrying away of the clay per quod Commoniam suam amisit and the damages are not given for the clay Chamberlain Justice If he had suffered the clay to lie by the pit it had been damage to the Commoner If the Owner of the soil plough up or maketh conyburies in the Land an Action upon the case lyeth against him by the Commoner for thereby the Common is much the worse and the Commoner prejudicedS If the pit be deep it is dangerous to the Commoner and so a damage unto him for it is dangerous lest his cattel should fall into it and it will not suddenly be filled up again and so no grass there for a long time and the longer because that which should fill up the pit is carried away Haughton Justice The proceedings are Erroneous both Plaintiffe and Defendant are Commoners The wrong is in two points First That the Defendant had with his cattell fed the Common Secondly That the Defendant had digged clay there and carried the same away The Defendant makes Title to both First he prescribes to have Common there Secondly That the Commoners
pay the money there he shall recover damages besides the dutie Here the Action was brought before the request made and so no damage to the Plaintiff and the Judgment was that the Plaintiff recuperet damna predict viz. the damages laid in the Declaration Dodderidge Justice The Judgment ought to be Consideratum est quod Gleede recuperet damna quae sustinuit and not damna predict which are mentioned in the Declaration and then a Writ is awarded to enquire of the damages quae sustinuit The Judgment was reversed per Curiam Mich. 1 Caroli in the Kings Bench. Rot. 189. 455. TAYLOR and HODSKIN's Case IN an Ejectione firme upon a special Verdict it was found That one Moyle was seised of divers Lands in Fee holden in Socage and having issue four daughters viz. A B C D. A. had issue N. and died And afterwards Moyle devised the said Lands unto his wife for life and after her decease then the same equally to be divided amongst his daughters or their heirs Moyle died and afterwards his wife died and Hodskins in the right of B C D. three of the daughters did enter upon the Lands N. the daughter of A. married F. who entred and leased the Lands to the Plaintiff Taylor Whitfield for the Plaintiff The only point is Whether N. the daughter of A. one of the sisters shall have the fourth part of the lands or not by reason of the word Or in the Will It is apparent in our books C. 10. part 76 the Chancellor of Oxfords Case C. 3. part Butler and Bakers Case That Wills shall be construed and taken to be according to the intent of the Devisor And therefore Br. Devise 39. A devise to one to sell to give or do with at his will and pleasure is a Fee-simple And in our Case if N. shall not take a fourth part the word heirs should be of no effect C. 1. part in Shellies Case All the words in a Deed shall take effect without rejecting any of them and if it be so in a Deed à fortiori in a Will which is most commonly made by a sick man who hath not Councell with him to inform or direct him In this Case the three sisters who were living at the time of the Devise took presently by way of remainder and the word heirs was added only to shew the intent of the Devisor That if any of the three sisters had died before his wife that then her heir should take by discent because her mother had taken by purchase And by reason of the word heirs the heir of A. shall take by purchase and the disjunctive word or shall be taken for and as in Mallories Case C. 5. part A reservation of a Rent to an Abbot or his Successors there the word or shall be taken for and reddendo singula singulis Trin. 7. Jacobi in the Common Pleas Arnold was bound in a Bond upon Condition that he suffer his wife to devise Lands of the value of 400l to her son or her daughter and she devised the Lands to her son and her daughter And it was resolved that it was a good performance of the Condition And there the word or was taken for and And there Justice Warburton put this Case If I do devise all my goods in Dale or Sale it shall be a Devise of all my goods in both places and or shall be taken for and. In this Case the word heirs was not added of necessity for the heir of any of the sisters to take by purchase but only to make the heir of A. to take part of the Lands The Court was of opinion that it was stronger for the Plaintiff to have it or in the disjunctive For they said that if it were and then it would give the three sisters the Fee and not give the heir of A. a fourth part but being or there is more colour that she shall take a fourth part by force of the Devise It was adjourned Trin 2 Caroli Rot 913. in the Kings Bench. 456. ASHFIELD and ASHFIELD's Case THe Case was An Enfant Copyholder made a Lease for years by word not warranted by the Custome rendring Rent The Enfant at his full age was admitted to the Copyhold and afterwards accepted of the Rent The question was Whether this Lease and the acception of the Rent should bind or conclude the Enfant Crawley Serjeant argued That it was a void Lease and that the acception should not bar him It is a ground in Law That an Enfant can do no Act by bare contract by word or by writing can do any Act which is a wrong either to himself or unto another person or to his prejudice In this Case if the Lease should be effectual it were a wrong unto a stranger viz. the Lord and a prejudice unto himself to make a forfeiture of the Inheritance If an Enfant commandeth A. to enter into the land of I. S. and afterwards the Enfant entreth upon A. A is the Disseisor and Tenant and the Enfant gaineth nothing So if A entreth to the use of the Enfant and the Enfant afterwards agreeth to it in this Case here is but a bare contract and an agreement will not make an Enfant a Disseisor No more shall he be bound by a bare Deed or matter in writing without Livery 26 H. 8. 2. An Enfant granteth an Advowson and at full age confirmeth it all is void Br. Releases 49. Two Joynt-Tenants one being an Enfant releaseth to his Companion it is a void Release 18 E. 4. 7. An Enfant makes a Lease without reserving Rent or makes a Deed of grant of goods yet he shall maintain Trespass nay though he deliver the goods or Lease with his own hand the same will not excuse the Trespass nor will it perfect the Lease or make the grant of the goods good If the Contract have but a mixture of prejudice to the Enfant it shall be void ◠Jacobi in the Kings Bench Bendloes and Holydaies Case An Obligation made by an Enfant with a Condition to pay so much for his apparel because the Bond was with a penaltie it was adjudged void If Tenant at Will make a Lease for years he was a Disseisor at the Common Law before the Statute of West 2. cap. 25. 12 E. 4 12. Tenant at Will makes a Lease for years 10 E. 4. 18. 3 E. 4. 17. But if an Enfant be Tenant at will and he maketh a Lease he is no Disseisor In our Case if he had made Livery then I confess it had been a defeisible forfeiture and he mignt have been remitted by his entrie upon the Lord. Farrer for the Plaintiff The Lease is not void but voidable 7 E. 4. 6. Brian 18 E. 4. 2. 9 H. 6. 5. An Enfant makes a Lease for years and at full age accepts of the Rent the Lease is good because the Law saith that he hath a recompence Com. 54. A Lease for years the remainder
and the party be delivered out of Execution then he shall not be taken again in Execution But if he be taken in Execution upon an erronious Process if he be delivered out he may be taken again in Execution for the first Execution was erronious and is no Record being reversed Hyde Chief Justice If a man recover in Debt upon an Obligation and the Judgment be reversed by Error he is restored to his first Action and may plead Nul tiel record Dyer 59 60. Triwingards Case A man in Execution had a VVrit of Priviledg out of the Parliament upon which the Sheriff sets him at liberty by Law for a time yet he shall be in Execution again and the Law saves the others right Broome Secondarie of the Kings Bench If Error be brought after the year of the Judgment in the Common Pleas and the Judgment be affirmed here the partie may take forth a Capias within the year of the Judgment affirmed although in the Common Pleas he cannot have a Capias because the year is past For we are not to respect what process he ought to have in the Common Pleas but after the year of the Judgment affirmed here the partie is to have a Scire facias Jones Justice said That when he was a Reporter the Judges delivered their opinions in Garnons Case C. 5. part 88. That if after the year and day he bring Error and the Judgment be affirmed that he ought to have the like process here as in the Common Pleas And that was a Scire facias because that the year was past in the Common Pleas although it were within the year of the Judgement affirmed here Dodderidge Justice The Cases which Banks cited are Law but are not well applyed The whole Court was of opinion That if the Common Pleas award erronious process the Court cannot award a Supersedeas but the partie is put to his VVrit of Error here and upon that erroneous Process we cannot grant a Supersedeas but the partie is put to his new VVrit of Error And according to the opinion of the Court Sir William Fish brought a new VVrit of Error Mich. 2 Caroli Rot. 179 in the Kings Bench. 462. BELLAMY and BALTHORP's Case IN an Action of Trover and Conversion The Plaintiff did lay it that he was possessed of twenty Loads of Wheat and that he lost them and that they came to the Defendants hands who converted the same to his own use The Defendant did justifie and said That the Parish of O. is an ancient Parish in which there is a Rectorie impropriate c. and the Earl of Clare was seised of the Rectorie and made a Lease unto him of the Tythes of that Parish for one year by force of which he was possessed and that the Corn was set forth by the Parishoners and that one T. gathered the Tythe and delivered the same to the Plaintiff and that the Defendant his Servant took away the Tythe as it was lawfull for him to do Upon which the Plaintiff did demurr First because the Plea did amount to no more then the general issue viz. Not guilty and if the Plea do amount to no more then the general issue then it is no good plea but he ought to have taken the general issue 5 H. 7. 11. Ass For if in an Assise the Tenant saith that the Plaintiff did disseise him and that he entred upon him the plea is not good because it amounts but to the general issue viz. Nul lort nul disseisin and the other party may demurr upon it 22 E. 4. 40. In Trespass for Batterie it is no plea to say that he did not beat him because it is but Not guilty by Argument 34 H. 6 28. b. If I bring Trespass for breaking of my Close It is no good plea to say that I have no Close or if it be for carrying away my Goods to say that I had not any Goods but the Party ought to have pleaded Not guilty It may be objected That in this Case the Defendant makes Title to the Corn. To that we say He derives a Title to Tythes without a Deed which gives no title to them For Tythes do not pass by Demise alone without Deed but by the demise of the Rectorie without Deed they will pass So by a Feoffment of a Mannor without Deed the Services will pass but the Services alone will not pass without a Deed. 21 H. 7. 21. 19 H. 8. 12. A Warren may be demised without Deed. 9 E. 4. 47. But the profits of Courts will not pass without Deed. 22 H. 6. 34. b. By way of Contract a Demise may be of Tythes without Deed but in pleading it ought to be set forth that there was a Deed. C. 10. part 92. Where the Deed ought to be shewed which proves that there ought to be a Deed. In the Common-pleas in an Action of Trover and Conversion of certain Goods the Defendant said That A. was possessed of them and made him Executor c. And the Plaintiff did demurre and had Judgment because it amounted but to the generall Issue Dodderidge Justice The Parson may demise his Tythe to the Owner of the Land without Deed but he cannot grant them to a stranger without Deed. If the Defendant make Title from a stranger then it doth amount to the generall Issue but if both Plaintiff and Defendant make Title from one Person or Donor then the plea is a good plea. Otherwise per Curiam it doth amount to the generall Issue But the Opinion of the Court was because that the Defendant did make a title of Tythes without a Deed therefore Judgment in the principall Case was given for the Plaintiff Trin. 3 Caroli in the Kings Bench. 436. The Dean and Chapter of Carlisle's Case A Writ of Error was directed unto the City of Carlisle to remove the Record of a Judgment given there in Curia nostra whereas the Judgment was given tempore Jacobi And the Opinion of the Court was That it was not good nor the Record thereby well removed Dyâ—r 4. Eliz 206 b. There was a Certiorari to remove a Record cujusdam inquisitionis capt c. in Curia nostra Whereas in truth it was taken in the time of the predecessor of the King and so thereby the Record was not well removed Dodderidge Justice If a Writ of Error doth abate upon the Plea to the Writ and the Record be well removed the partie may have a new Writ of Error coram vobis residet c. but if the Record be not well removed as in this Case at Barr it is not then the partie shall not have a new Writ of Error here We do many times grant a Scire facias to sue forth Execution in the inferior Court which proves that the Record by an ill and insufficient Writ of Error is not removed but doth remain there still If there be variance betwixt the Record and the VVrit of Error the Record is not well
removed but if the VVrit of Error want only form but is sufficient for the matter in substance the VVrit shall not abate but the partie may have a new VVrit of Error coram vobis residet c. Trin. 3 Caroli in the Kings Bench. 464. MILL's Case ACtion upon the Case for these words Thou hast Coyned Gold and art a Coyner of Gold Adjudged the Action will not lie for it may be he had Authority to Coyn and words shall be taken in mitiori sensu Pasch 3 Car in the Kings Bench. 465. BROOKER's Case THe question was VVhether the Feoffee of the Land might maintain a VVrit of Error to reverse an Attaindor by Vtglary and the Case was this William Isley seised in Fee of the Mannor of Sundridge in Kent had issue Henry Isley who was Indicted of Felony 18 Eliz. and 19. Eliz. the Record of the Indictment was brought into this Court and thereupon 20 Eliz. Henry Isley was outlawed William Isley died seised Henry Isley entred into the Mannor and Land as son and heir and being seised of the same devised the Mannor and Lands to C. in Fee who conveyed the same to Brooker and Brooker brought a Writ of Error to reverse the Outlawry against Henry Isley Holborn argued for the King and said that Brooker was no way privy to the attaindor of Henry Isley but a meer stranger and therefore could not maintain a Writ of Error And first he said and took exception that he had not set himself down Terre-Tenant in possession Secondly he saith in his Writ of Error That the Mannor and Lands descended to Henry Isley as son and heir when as he was attainted The third exception was That he saith that Henry Isley did devise the Lands and that he could not do because he was a person Attainted Fourthly he said that Brooker was not Tenant so much as in posse 4 H. 7. 11. If it were not for the words of Restitution the partie could not have the mean profits after the Judgment reversed 16 Ass 16. Lessee for years pleaded to a Precipe and reversed it the question was whether he should be in statu quo vi Librum for it is obscure If this Attaindor of Henry Isley were reversed yet it cannot make the devise good For there is a difference betwixt Relations by Parliament which nullifie Acts and other Relations Vi. 3 H. 7. Sentlegers Case Petition 18. The violent Relation of Acts of Parliament If a Bargain and Sale be the Inrollment after will make Acts before good but a Relation by Common Law will not make an Act good which was before void C. 3. part Butler and Bakers Case A gift is made to the King by Deed enrolled and before the enrollment the King granteth away the Land the Grant is void yet the enrollment by Relation makes the Lands to pass to the King from the beginning Admit in this Case that Brooker were Terre-Tenant yet he is not a party privy to bring a Writ of Error to reverse the Attaindor of him who was Tenant of the Land and I have proved That although the Attaindor were reversed yet he hath nothing because the Devise was void and is not made good by Relation It is a rule in our Books that no man can bring a VVrit of Error but a partie or privy 9 E. 4. 13. 22 E. 4. 31 32. 9 H. 6. 46. b. Ass 6 C. 3. part in the Marquiss of Winchesters Case The heir of the part of the mother cannot have the VVrit of Error but the heir of the part of the father may So if erronious Judgment be given in the time of profession of the eldest son and afterwards he is dereigned he shall have the Writ of Error In 22 H. 6. 28. The heir in special taile or by Custom cannot have Error But yet M. 18 Eliz. in Sir Arthur Henninghams Case it was adjudged That the special heir in tail might have a Writ of Error The Baile cannot maintain a Writ of Error upon a Judgment given against the Principal because he was not privy unto the Judgment therefore it shall be allowed him by way of plea in a Scire facias I never find that an Executor can have Error to reverse an Attaindor but for the misawarding of the Exigent Marshes Case was cited C. 5. part 111. Fitz 104. Feoffee at the Common Law could not have an Audita Quaerela in regard he was not privy 12 Ass 8. 41. Keâ—laway 193. There the Terre-Tenant brought a Writ of Error in the name of the heir and not in his own name 24 H. 8. Dyer 1. There it is said That he who is a stranger to the Record shall have Error To that I answer That he in the Reversion and the particular Tenant are but one Tenant for the Fee is demanded and drawn out of him But in the principal Case at Barr no Land is demanded but a personal Attaindor is to be reversed Also there it is put That if the Conusee extend before the day there it is said that the Feoffee may have Error 17 Ass 24. 18 E. 3. 25. Fitz. 22. To that I answer That the Feoffee is privy to that which chargeth him for the Land is extended in his hands and if the Feoffee there should not have a Writ of Error the Law should give him no manner of remedy for there the Conusor himself cannot have Error because the Lands are not extended in his hands Also it is there said that the Feoffee brought a Scirefacias against him who had execution of the Land To that I answer That that is by special Act of Parliament Also there it is said That if the Parson of a Church hath an Annuity and recovereth and afterwards the Benefice is appropriated to a Religious house the Soveraign of the house shall have a Scirefacias I answer That in that Case he is no stranger for that he is perpetual Parson and so the Successor of the Parson who recovered 12 H. 8. 8. There a Recovery was against a Parson and there Pollard said that the Patron might have Error I answer That Pollard was deceived there for it is said before that the Parson hath but an Estate for life and then he viz. the Patron is as a Recoverer who shall have a Writ of Error Dyer 1. But the Parson hath the Fee and therefore Pollard was mistaken as it appeareth by Brook Fauxi fier de Recovery 51. 19 H. 6. 57 Newton A false verdict is had against a Parson the Patron cannot have an Attaint There is a difference if one be partie to the Writ although not partie to the Judgment Error 72. A Quare Impedit was brought by the King against the Patron and the Incumbent and Judgment only was had against the Patron and the Incumbent Parson brought a Writ of Error but if he had not been partie to the Writ he could not have maintained Error So in Attaint the partie to the Writ though not to the Judgment shall
of Ely and divers Errors were assigned First that he did not shew in the stile of the Court how Ely hath power to hold plea either by Charter or by prescription Secondly because he said That at such a place in Ely he did promise but did not shew that it was within the Jurisdiction of Ely Thirdly that it was upon a Consideration to â—urâ—ease a Suit in the Chancery that the Defendant did promise but did not shew that at the time of the promise there was a Suit depending Fourthly it was said That the Defendant did promise to surrender certain Customary Lands and it is not shewn what the Lands were and so no certainty for the Jurie to give damages Jermyn argued for the Defendant in Writ of Error and said The Declaration is good in substance Diversas terras Customarias proxim adjacend lib. tenem ' of the Defendant and the Defendant pleaded that he had offered predict tenem ' Customaria and so no difference is betwixt them for that Tenement is sufficiently known and although it be not so certainly laid as it ought to be in a real Action yet it is certain enough in an Action upon the Case Dyer 355 356. Only who was Sollicitor to the Councel of D. did spend 1500l circa diversa secta negotia there the Declaration was sufficient by two Judges there the Lands are certain viz. proxim ' lib. tenem ' Secondly Ely is in the Margent which is as much as the County in the Margent and then when no County is named in the Declaration wherein the land doth lie it shall be intended to lie in the County which is in the Margent Hetley Our Case differs from Onlyes Case in Dyer 355. for there 1500l was received But if I bring an Action upon the Case pro diversis merchandisis the same is not good but if I bring the Action for 10â— pro diversis merchandisis then it is good Jones Justice Chester and Durham are generally known and therefore it is good to say Placita tent apud Chester c. and the party need not shew how Chester hath Jurisdiction but it is not so of Ely Whitlock Justice Ely hath Jura regalia and we read in our books that they have had Conusans of Pleas. Hyde Chief Justice In all particular and private Jurisdictions if they come to be certified here in a Writ of Error you must set out their power But if they have their power by a Statute as Wales then it need not be set forth A Writ of Error doth not lie upon a Judgment in London but when the Plea is before Commissioners Curia We cannot grant a new Certiorare to an inferior Court but only to the Common-Pleas or Wales The writ of Error to remove the Record out of the Court of Ely is directed Justiciario nostro which proves that this Court takes notice of him as the Kings Justice And in other Courts it is Senescallo Curiae and not Senescallo nostro Whitlock Justice It is since the Statute of 27 H. 8. that it is directed Justiciario nostro de Ely for before it was Justiciario Episc Hyde Chief Justice It is a book-Book-Case If Midd. be in the margent and you say apud D. and name no County D. shall be intended to be in Midd. The Judgment was reversed Pasch 3 Caroli in the Kings Bench 467. WATERMAN and CROPP's Case Intratur M. 2 Car. Rot. 419. AN Action of Trespass for Battery and Imprisonment The Defendant did justifie the Imprisonment c. If it be not a Court of Record they cannot fine and imprison but if it be a Court of Record then they may for it is Curia Domini Regis 468. IN a Writ of Error Error was assigned That an Action was laid in Lanceston and the Venire facias was awarded de vicineto de Lanceston And it was said That the neighbourhood might be of those of which the Maior and Bailiffs had no power over viz. those out of their juridiction And therefore Error was assigned in the mis-awarding of the Venire facias 10 Jacobi in the Common-Pleas Buckley's case There the Venire facias was de vicineto civitatis Eborum and well enough for vicineto shall imply those within the jurisdiction and not the neighbours 10 Jacobi Procter and Cliffords case adjudged contrary where it was That the Venire facias was de vicineto civitatis Coventry and adjudged not good for it ought to have been de civitate Coventry Dodderidge Vicineto goeth about the Precinct When I was a Councellor then I moved for Bristol and to maintain it good de vicinetâ— de Bristol but it was ruled not good but ought to be de civitate Bristol Pasch 3 Caroli in the Kings Bench. 469. TOLLYN and TAYLOR's Case AN Action upon the Case was brought in the Common-Pleas by an Enfant who declared by Attorney The Defendant brought a Writ of Error in the Kings Bench and assigned the same for Error For he ought to have declared per Prochyn amy and not by Attorney If an Action be brought and the Defendant plead that he is an Enfant the Enfancie is to be tryed where the Writ is brought Here he assigns the Error in fact that he was an Enfant and shewed no place where he was an Enfant and so no place set where to prove it To this Error the Plaintiffe pleaded That he was at full age And upon that they are at issue upon this matter in fact And it was tryed at Halsworth in Suffolk whereas it ought to have been in this Court where the Enfancie is pleaded because he names no place where he was of full age And notwithstanding that it was found that he was of full age yet the Trial was not good The first Action was brought before the Statute of 21 Jacobi cap. 13. Hitcham Serjeant Age or not age is not local and a place must be set down for formalitie sake and so it is no matter of substance And the Venire facias might be awarded from the place where the first Action was viz. at Halsworth in Suffolk For that is a matter dependant and pursuant the first Action and now since the Statute is helped Denny contrary It hath no dependance upon the first Action but is a new thing sprung up If any place had been set down and the Venire facias had been mistaken that is helped by the Statute and not where no place is set down at all Whitlock Justice Every Venire facias properly is to be from the place where the Writ is brought unless it be drawn away by Plea He ought to have alleadged a place For this is a new matter in this Court and not helped by the Statute of 21 Jacobi nor any other for the Venire facias is totally mistaken Dodderidge Justice The Statute of Jeofaites have ever been taken strictly according to the letter For if they had been taken by equity what need had there been of more Statutes to have been made
Jurisdiction It was adjourned Mich. 4. Caroli in the King 's Bench. 502 SHUTFORD and BOROUGH's Case IN an Action upon the Case upon a Promise the Case was this The Defendant had a dog which did kill five of the Plaintiff's sheep and the Defendant in consideration the Plaintiffe would not sue him for the said sheep and also in consideration that the Plaintiff would suffer the Defendant to do away the sheep promised to give him recompence for the said sheep upon request and the Plaintiffe alledged the promise to be made 18. Jacobi and that afterwards 2. Caroli he did request so much of the Defendant for the said sheep The Defendant pleaded in Bar the Statute of 21. Jacobi cap 16. of Limitation of Actions and alledged That the Action was not brought within six years after the cause of action accrued which was the promise And it was adjudged that the plea in Bar was not good for it was resolved That where a thing is to be done upon request that there untill request there is no cause of Action and the time and place of the request is issuable And so was resolved 1. Caroli in the Kings Bench in Peck's Case and Hill 16. Jacobi in the same Court in Hill and Wades Case and in the principall Case the request was 2. Caroli and that was within the time limited by the Statute of 21. Jacobi And the meaning of the Statute was but to barre the Plaintiffe but from the time that he had compleat cause of Action and that was not untill the request made And when divers things are to be done and performed before a man can have an Action there all these things ought to be compleated before the Action can be brought And therefore If a man promise to pay I. S. ten pound when he is married or when he is returned from Rome and ten years after the promise I. S. marrieth or returneth from Rome because the marriage or the Returne from Rome are the causes of the Action that the party shall have six years after his marriage or return to bring his Action although that the promise was made ten years before And in the principall Case the cause of Action is the breach and that cannot be untill after the Request made and where a Request is material it ought to be shewed in pleading And so it was resolved by the whole Court nemine contradicente that the Action was well brought and within the time limited by the Statute And Judgement was entred for the Plaintiffe Mich. 4. Caroli in the Star-Chamber 583 FLOYD and Sr THO. CANNON's Case IT was agreed by the Lord Keeper Coventry and the whole Court in this Case That if a man did exhibite a Bill against another for oppression and layeth in this Bill That the Defendant did oppress A. B. and C. particularly and an hundred men generally That the Plaintiffe by his witnesses must prove that the Defendant hath oppressed A. B. and C. particularly and shall not be allowed to proceed against the Defendant upon the oppression of the others layed generally before his particular oppression of A. B. and C. be proved But if the charge layed be generall and not particular as if the Plaintiffe in his Bill saith That the Defendant hath oppressed an hundred men generally there he may proceed and examine the oppression of any of them And Richardson Chief Justice of the Common Pleas said That if a man exhibiteth a Bill against another for extortion there the Sum certaine which he did extort must be laid particularly in the Bill And he cannot say that the Defendant did extort divers sums from divers men generally And so was it adjudged in Reignolds Case in this Court. Also in every oppression there ought to be a threatning of the party for the voluntary payment of a greater sum where a lesser is due cannot be said extortion And afterwards the Bill of Sir Thomas Cannon was dismissed for want of proofs ex parte Querentis Mich. 4. Caroli in the Star-Chamber 504 HUET and OVERIE's Case IN a Ryot for cutting of corn It was agreed by the whole Court That if a man hath title to corn although that he cometh with a great number to cut it with Sickles it is no Riot but if he hath not any title although that he doth not come with other Weapons then with Sickles and cutteth down the Corn it is a Riot And it was agreed by the whole Court in this Case That Witnesses which were Defendants and which are suppressed by order of the Court although that afterwards there he no proceedings against them yet they shall not be allowed of at the hearing of the Cause in that Court. And this was declared to be the constant rule of that Court. Trinit 5. Caroli in the Kings Bench. 505 The Earle of PEMBROKE and BOSTOCK's Case IN a Quare Impedit Judgment was given and the same Term a Writ of Error is delivered to the same Court before a Writ to the Bishop is awarded to admit the Clark It was holden by the whole Court That the Writ of Error ought to have been allowed without any other Supersedeas because a Writ of Error is a Supersedeas in it self Whitlock Justice If in this Writ of Error the Judgement be affirmed the Defendant in the Writ of Error shall have damage 506 The Bailiffs Aldermen Burgesses and Commonalty of Yarmouth and COWPER's Case IN a quo Warranto brought against the Bailiffs Aldermen c. they did appear by Warrant of Atturney and one of the Bailiffs named in the Warrant did not appear nor agree to it It was holden by the whole Court That the appearance of the major or greater part being recorded was sufficient And it was also holden per curiam that although the Warrant of Atturney was under another Seal then their common Seal yet being under Seal and recorded it cannot be annulled Vide 14. H. 4. If two Coroners be and one maketh a return the same is good but if the other doth deny it then it is void Mich. 8. Caroli in the Kings Bench. 507 LANCASTER's Case against KIGHTLEY and SINEWS JUdgement was given in a Scire facias against the Bail A Writ of Error was brought by the Defendant in the principall Action and the Bail And the opinion of the Court was That a Writ of Error would not lie hecause the Judgements against them were severall but they ought to have severall Writs of Error And the books of 3. H. 7. 14. 3. E. 4. 10. and 2. Eliz. Dyer 180. were vouched And so was it adjudged Hill 11. Jacobi Rot. 1377. in the Exchequer Chamber in Doctor Tennants Case Where a Writ of Error was brought by the Defendant and the Bail and it was adjudged that they could not joine in an Writ of Error but ought to have severall Writs Mich. 8. Caroli in the Kings Bench. 508 EVELEY and ESTON'S Case IN Trespass It was found That a man was Tenant in tail of
the words are upon reasonable request which implies a reasonable time to consider of it And there might be many occasions both in respect of her self and of the Common wealth that she could not at that â—ime do it And Hill 37. Eliz. in the Common Pleas PERPOYNT and THIMBELBYES Case A man Covenants to make Assurances It was adjudged hee shall have reasonable time to do it In 27. Eliz. the opinion of Popham was That if a man be bounden to make such an Assurance as Councell shall advise there if Councell advise an Assurance he is bound to make it But if it were such Reasonable Assurance as Councell shall advise There If the Councell do advise That he shall enter into seale and deliver a Bond of a thousand pound for the payment of an hundred pound at a day hee is not bound to doe it because it is not reasonable Vide 9. Ed 4. 3. cap. 6. part Bookers Case Doct. Stud. 56. 14. H. 8. 23. Secondly He said That the request in the principall Case was not according to the Covenant for the election in this case was on the womans part and not on the Covenantees part and shee was to doe the act viz. to surrender And where election is given of two things the same cannot be taken from the party and if it should be so in the principall Case the Covenantee should take away the election of the Covenanter And where the manner of Assurance is set down by the parties there they cannot vary from it and in this case the manner is set down in which the Covenanter hath the election because shee is to do the act And hee said That the woman was not bounden afterwards to surrender in Court upon this request because the request was as it were a void request And it is implyed by the words That shee in person ought to make the Surrender and so hee prayed Judgment for the Defendant It was adjourned Trinit 8. Caroli in the King 's Bench. 514. HYE and Dr. WELLS Case DOctor William Wells sued Hye in the Ecclesiasticall Court for Defamation for saying to him that hee lyed And the Plaintiffe prayed a Prohibition It was argued for the Defendant that in this Case no Prohibition should goe For it was said that by the Statute of 21. Edw. 1. of Consultation When there is no Writ given in the Chancery for the party grieved in the Temporall Court there the Spirituall Court shall have the Jurisdiction and in this Case there is no Writ given by Law And Fitzherbert Natura Brevium 53. h. a Consultation doth not lie properly but in case where a man cannot have his Recovery by the Common Law in the Kings Courts for the words of the Writ of Consultation are viz. Proviso quod quicquid in juris nostri regii derogationem cedere valcat aliqualiter per vos nullatenus attemptetur And Vide Register 149. Falsarius is to be punished in the Spirituall Court And Fitzherb Nat. Brev. 51. I. A man may sue in the Spirituall Court where a man defames him and publisheth him for false Vide Linwood in cap. de foro compâ—tenti acc Trin. 6. Jacobi in the Common Pleas Boles Case Rot. 2733. A man called a poor Vicar poor rascally Knave for which the Vicar sued him in the spirituall Court And by the opinion of the whole Court after a Prohibition had been granted upon further advice a Consultation was granted 1. It was objected That the party might be punished by the Temporall Judges and Justices for the words To which it was answered That although it might be so which in truth was denied yet the party might sue for the same in the spirituall Court And many Cases put That where the party might be punished by either Lawes that the partie had his election in what Court he would sue And therefore it was said That if a man were a drunkard he might be sued in the Ecclesiastical Court for his drunkennesse and yet he might be bounden to his good behaviour for the same by the Justices so the imputed father of a Bastard child may be sued for the offence either in the spirituall Court or at the Common Law by the Statute of 18. Eliz. and 7. Jacobi So F. N. B. 52. k. If a man sue in the spirituall Court for taking and detaining his wife from him to whom he was lawfully married if the other party sue a Prohibition for the same yet he shall have a Consultation quatenus pro restitutione uxoris suae duntaxat prosequitur and yet he may have an Action at the Common Law De uxore abducta cum bonis viri or an Action of Trespasse Maynard contrary By the Statute of Articuli Clâ—ri although that the words be generall yet they do not extend to all defamations And by Register 49. where the Suit is for defamation there the Cause ought to be expressed ought to be wholly spirituall as the Book is in 29. E. 3. and C. 7. part in Kenn's Case And in the principal Case It is not a matter affirmative which is directly spirituall And therefore 22. Jacobi where a Suit was in the Ecclesiasticall Court for these words Thou art a base and paultery Rogue a Prohibition was awarded And so Vinor and Vinors Case Trinit 7. Jacobi in the King's Bench Thou art a drunken woman Thou art drunk over night and mad in the morning 2. Hee said That Crimen falsi in the spirituall Court is meant of counterfeiting of the Seal or of Forgery and Crimen falsi cannot be intended a lie If in ordinary speech one sayes That 's a lie If the other reply You lie that is no defamation for Qui primum peccat ille facit rixam Trinit 42. Eliz. Lovegrove and Brâ—wens Case A man said to a Clark a spirituall person Thou art a Woodcock and a Foole for which words he sued him in the spirituall Court and in that Case a Prohibition was awarded It was adjourned Trinit 8. Caroli in the Kings Bench. 515 GWYN and GWYN's Case A Quod ei deforceat was brought against two they appeared and pleaded severall Pleas and the issues were found against both of them and a joint Judgement was given against them both and they brought a Writ of Error thereupon in the Kings Bench. And the opinion was That the Judgement was Erroneous and that the Writ of Error would well lie So in a Writ of Dower brought against two Tenants in common who plead severall Pleas the Judgement must be according to the Writ But Barkley said That if in a Writ of right by two the Mise is joyned but in one Issue where severall Issues are the Judgment ought to be severall Quaere quia obscurè Trinit 8. Caroli in the Kings Bench. 516 BLAND's Case THE Case was this Thomas Spence was a Lessee of Lands for one hundred years and he and Jane his Wife by Indenture for valuable consideration did assign over to Tisdale yeilding and paying
the Nisi Prius the Defendant gave in Evidence That he had paid the Money to the Plaintiff before the day and that the Plaintiff had accepted of it all which Matter the Jury found specially and referred the same to the Justices And it was said by the whole Court That that payment before the day was a sufficient Discharge of the Bond but because the Defendant had not pleaded the same Specially but Generally that he had paid the Money according to the Condition the Opinion was That they must find against the Desendant for that the Speciall Matter would not prove the Issue and the Lord Dyer Chief Justice said That the Plaintiffs Councel might have demurred upon the Evidence Mich. 24. Eliz. in the Common Pleas. 15 AN Action was brought upon the Statute of 1 2 Phil. Mar. And the Statute is That no Distresse shall be driven out of the Rape Hundred Wapentake or Laith where such distresse is or shall be taken except it be to the Pound Overt within the said County not exceeding three Miles distant from the place where the Distresse was taken and the Plaintiff declared of a Distresse taken in a Hundred in such a County and that he drove it six miles out of the County and because a Hundred may be in diverse Counties and the Statute is That the driving ought not be more then 3 miles out of the Hundred and that it might be that the driving was six miles from the place where the Distresse was taken in another County and yet not three miles from the Hundred where the taking was for that Cause it was not adjudged against the party And that was after Verdict in arrest of Judgment Pasch 24. Eliz. in the Common Pleas. 16. A Feme sole seized of a Manor to which there were Copyholds One of the Copyholders did entermarry with the woman and afterwards he and his wife did suffer a Recovery of the Manor unto the use of themselves for their lives and afterwards to the use of the heires of the wife The Question was Whether the Copyhold were extinct And Anderson the Chief Justice said That if a Copyholder will joyn with his Lord in a Feoffment of the Mannor that thereby the Copy-hold is extinct The same Law is if a Copyholder do accept a Lease for years of his Copyhold which was agreed by the whole Court Pasc 24. Eliz. in the Common Pleas. 17. I. N. Doth Covenant with I. S. by Indenture to pay him forty pounds yearly for one and twenty years and afterwards I. S. doth release to I. N. all Actions The Question was Whether the whole Covenant were discharged And it was holden by all the Justices that only the Arrerages were discharged because the Covenant is executory yearly to be executed during the Term of one and twenty years for he may have several Actions of Covenant for every time that it is behind and if it be behind the second year he may have a new Action for that and so of every year during the Term several Actions for nothing shall be discharged by the release of all Actions but that which was in Action or a Dutie at the time of the release made As in 5. E. 44. and L. 5. E. 4. 41. In debt for Arrerages of an Annuity the defendant pleaded a release of all Actions which bore date before any arrerages were behind And the opinion of the Justices was there That it was no Plea and so it was adjudged for it is not a thing in Action nor a Duty untill the day of paiment comes And it is there holden by Arden That if a man make a Lease for two years rendring Rent and that the Tenant shall forfeit twenty shillings nomine poenae for not paiment at the day there a release of all Actions personals made to the Tenant before the penalty be forfeited is no Bar for it is neither Duty nor thing in Action before the failer of paiment And in 42. E. 3. 33. A man did release to his Tenant for term of life all his Right for the Term of the life of the same Tenant for life And that he nor his heirs might any right demand nor challenge or claim for the life of the Tenant for life in the said Land and afterwards he died and the Tenant committed Waste and the heir brought an Action of Waste and the Tenant pleaded the same Release and it was holden no Plea for nothing was extinct by the same Release but that which was in Action at the time of the Release made and that the Waste was not Rhodes Serjant put a Case which he vouched to be adjudged 4. Eliz. which was That if a man Covenant with I. S. that if he will marry his daughter that then he will pay him twenty pounds If a Release were made by I. S. before the marriage the same will not determine the twenty pounds if he marry her afterwards because it was not a Duty before the marriage So in the principal Case notwithstanding that the Covenant was once broken for the non-paiment at the first day yet because a several Action of Covenant lieth for every day that it was arreare the Release shall extinguish but only that which was Arreare at the time of the Release made And so Note That a Release doth not discharge a Covenant which is not broken Pasch 24. Eliz. in the Common Pleas. 18. UPon a special Verdict in an Action of Debt The Case was this I. S. and I. N. did submit themselves to the Award Order Rule and Judgemant of A. and B. for all Matters Quarrels and Debates and the Bond was made to perform the Award Order Rule and Judgement ment made by them And they Award Order Rule and Adjudge That I. S. shall pay to W. N. who was a Stranger twenty shillings The first Question was Whether the Award were good And it was holden by Anderson Chief Justice Meade and Periam Justices That the Award was void because it was out of their Submission for they cannot Award a man to do a thing which doth not lye in his power for in this Case W. N. to whom the money is to be paid is a Stranger and it is in his Election if he will accept of the money or not And so it is holden in 22. H. 6. 46. and 17. E. 4. 5. but vid. cont 5. H. 7. 2. Then if the Award be void The second Question was If yet the Bond to performe it be good or not And it was holden by the whole Court that it was void also against the Book of 22. H. 6. 46. because that the Condition was to performe that which was against the Law Quaere that Case for it seemes not to be Law at this day And it was then holden That Awards concerning Acts to be performed by them which have not submitted are void And in all Cases where each of the parties which submit have not some thing the Award is void Pasch
contract was determined and not in esse at the time of promise But he said it was otherwise upon a consideration of Marriage for that is alwayes a present consideration and alwayes a consideration because the party is alwayes married Windham to the same intent and compared it to the Case of 5. H. 7. If one sell an horse to another and after at another day will warâ—ant him to be good and sound of limb and member it is void warranty for it ought to have been at the same time that the horse was â—old Periâ—m Justice contrary for he said This case is not like to any of the cases which have been put because there is a great difference betwixt Contracts and this Action For in Contracts the consideration and promise and sale ought to concur because a Contract is derived of con trahere which is a drawing together so as in Contracts every thing requisite ought to concur as the consideration of the one side and the promise or sale of the other side But to maintain an Assumpsit it is not requisite for it is sufficient if there be any moving cause or consideration precedent for which cause or consideration the promise was made and that is the common practice at this day For in Assumpsit the Declaration is That the Defendant for and in consideration of ten pounds to him paid postâ—a silicet a day or two after super se assumpsit c. and that is good and yet there the consideration is executed And he said that Hunt and Baker's case which see 10. Eliz. Dyer 272. would prove it The case was this The Apprentice of Hunt was arrested when Hunt was in the Country and Baker one of Hunts neighbours to keep the Apprentice out of the Counter became his Baile and paid the debt Afterwards Hunt returning out of the Country thanked Baker for his neighbourly part and promised him to repay him the said summ Upon which Baker brought an Action upon the Case upon the promise And it was adjudged that the Action would not lie not because the consideration was precedent to the promise but because it was executed and determined long before But there the Justices held That if Hunt had requested Baker to have been surety or to pay the debt and upon that request Baker paid the debt and afterwards Hunt promiseth for that consideration the same is good for the consideration precedes and was at the instance and request of the Defendant So here Sydenham became bail at the request of the Defendant and therefore it is reason that if he be at losse by his request that he ought to satitfie him And he conceived the Law to be cleer that it was a good consideration and that the request is a great help in the Case Rodes Justice agreed with Periam for the same reasons and denyed the Case put by Anderson And he said That if one serve me for a year and hath nothing for his service and afterwards at the end of the year I promise him ten pounds for his good and faithfull service ended he may maintain an Assumpsit for it is a good consideration But if the servant hath wages given him and the Master ex abundantia as he said promiseth him ten pounds after his service ended the same promise shall not maintain an Assumpsit for there is not any new cause or consideration preceding the Assumpsit And Periam agreed to that difference and it was not denyed by the other Justices but they said that the principall Case was a good case to be advised upon and at length after good advice and deliberation had of the cause they gave Judgment for the Plaintiff that the Action would lie And note That they very much relyed upon Hunt and Bakers Case before cited See Hunt and Baker's Case in 10. Eliz. Dyer 272. Pasc 27. Eliz. in the Common Pleas. 41 CARTER and CROST's Case CArter brought an Action of Detinue of a chaine against Crosts and declared That Thomas Carter his brother was thereof possessed and died Intestate for which cause the Bishop of Cork granted him Letters of Administration and that the Chain came to the Defendants hands by Trover c. And declared also That he was as Administrator thereof possessed in London To which the Defendant Crosts pleaded the Generall Issue and the Jury gave a speciall Verdict and found that the Administration was committed to Carter in London by the Bishop of Cork in Ireland here and did not find that Carter was possessed of the chain in London And upon this special Verdict first it was moved That the Bishop of Cork in Ireland being in England might commit administration of things in Ireland And it was held cleerly by the Court That he might of things within his Diocesse in Ireland because it is an Authority Power or Matter that followes his Person and wheresoever his Person is there is his Authority As the Bishop of London may commit Administration being at York but it ought to be alwaies of things within his Diocesse and therefore they held That the Declaration was good in that point That the Bishop of Cork did commit Administration in London although there be no such Bishop of England The second point was If an Aministrator made by a Bishop of Ireland might bring an Action here as Administrator and it was holden That he could not because of the Letters of the Administration granted in Ireland there could be no triall here in England although that Rodes Justice said That Acts done in Spirituall Courts in Forrain places as at Rome or elsewhere the Law saith That a Jury may take notice of them because such Courts and the Spirituall Courts here make but one Court and he proved it by the Case of the Miscreancy in 5. R. 2. Tryall 54. where a Quare Impedit was brought by the King against the Clerk of a Church within the Bishopprick of Durham and counted that the Bishop who is dead presented his Clerk and that the Clerk died and the Chapter collated a Cardinall who for Miscreancy and Schisme was deprived the Temporalties being in the Kings hands Burgh He hath counted of an Avoidance for Miscreancy at the Court of Rome which thing is not tryable here Belknap Chief Justice I say for certain That this Court shall have Conusans of the Plea and that I will prove by Reason for all Spirituall Courts are but one Court and if a man in the Arches be deprived for a Crime and appeal to Rome and is also there deprived that Deprivavation is triable in the Kings Court in the Arches And if a man be adhering unto the Kings enemies in France his Lands are forfeitable and his adherence shall be tryed where his Land is as oftentimes it hath been for adherence to the Kings enemies in Scotland And so by my faith if one be Miscreant his Land is forfeitable and the Lord thereof shall have the Escheat and that is good reason For if a man
who is out of the Faith of the King shall forfeit his Land for the same à forâ—iori he who is out of the faith of God and that he swore to be Law Whereupon Burgh said Respondes ouster And so saith Fitzherbert Tryal 54. by that Plea and Judgement Miscreancy and Deprivation at Rome shall bee tryed here And there the Venire facias was awarded to the Sheriffe where the Church was and not to the Bishop of Durham and so the Miscreancy and Deprivation shall bee tryed where the Church is The third Point was Whether an Administrator might count of his own Possession although he was never possessed and the whole Court were of Opinion that he might if the Intestate at the time of his death was possessed The Administrator may declare of Goods taken out of his owne Possession although he was never possessed for of transitory things the Law casts upon him a sufficient possession to maintain an Action Possessory as the Lord before seisin may have a Ravishment of Ward c. But otherwise it is if one take the Goods of the Intestate out of his Possession before he dieth for then but only a bare right comes to the Administrator And that is to bee meant when the Goods are taken Transgressivè and not Destrictivè The fourth Point was Whether the Jury might find matter done out of the Realme and if that should abate the Writ or not And they held also cleerly That upon a generall Issue the Jury may find a Forrain matter as a thing done out of the Realme but it shall not abate the Writ if it be not matter of substance and pleaded before But here the finding of the Letters of Administration is more then they had in Issue and also is but matter of Evidence for the substance in this Case was the Possession and not the Administration for he might have an Action of his Possession without shewing the Letters of Administration And afterwards Judgement was given for Carter the Plaintiffe Mich. 27. Eliz. In the Kings Bench. 42. FUTTER aud BOOROMES Case THE Case was that the Queen by her Letters Patents anno 12. of Reign ex certa scientia mero motu c. did grant to B. totam illam portionem decimarum Garbarum in L. in Com. Norf. unà cum omnibus aliis decimis suis cujuscunque generis speciâ—i fuâ—rint in L. nuper in possessione Johannis Corbet or his Assigns nuper Abath dâ— Wenly pertinent c. And in facto the Parsonage of L. was parcell of the Abby of Wenly and out thereof was a portion appertaining to another Church And this Rectorie came unto the Queen by the Statute of dissolution of Abbyes The question was whether the Rectorie do pass by the Grant totam illam portionem there being also words in the Patent viz. Non obstante any misnosmer misrecital or other such things which are recited in the Statute for confirmation of Patents Hamon the Grant is good for this word portion shall not be said a thing severed from the Church and Rectorie And all the Tythes are parcel of the Rectorie for as 44. E. 3. 5. is before the Councel of Lateran a man might give his Tythes to what Church he pleased And when any thing is given to the Church it is a portion belonging to the Church as the Glebe is which is but a clod of Earth which is parcel of the Rectorie and a portion of it And a case in this Court in the time of this Queen was argued and there in a Rectorie there were many Priests and each of them knew his portion so as they were called portionary Priests which was in respect they had each of them interest in the Church and not because their portions were severed each from the other And 22. E. 4. 24. by Pigot it is said If a Parson hath any Tythes in another Parish as appertaining to his Church it is called a portion so as portion is not meant that which is severed by it self as in gross But by portion is meant all the Tythes appertaining to the Rectorie or the Rectorie it self For as 22. Ass 9. is If the King have Tythes of those Lands which lie out of any Parish if he grant totam portionem decimarum c. I conceive that the Tythes shall pass thereby And yet it is a thing severed from other Tythes but it doth contain all the qualitie of Tythes in that place And also if the King grant his Rectorie of D. to J. S. saving to him the Tythes and afterwards grants totam portionem Decimarum c. I conceive cleerly under correction that the Tythes shall pass And in the principal case If the Tythes shall not pass by this word portion yet the Non obstante in the Letters Patents de male nominando c. shall make it to be a good grant and that so the Tythes shall pass thereby We are also to consider if by any words subsequent in the Patent the grant be not good viz. by these words cum omnibus aliis Decimis c. in tenura occupatione Johannis Corbet c. Whereas in truth John Corbet was never Occupier of them And as to that I conceive That the words before cumâ—omnibus c. passe the Tithes And that the words after shall not abridge or controle the largeness of the precedent words and to that purpose is the Case 39. E. 3. 9. of the Grant of the King to the Earle of Salisbury c. In the end of which Grant were these words Quas nuper concessimus patri c. although that the thing granted was never granted to the Father yet the Grant was good and not restreined by those words coming after 2. E. 4. A Release was pleaded of a right which the party had in Lands of the part of his Father c. there although he had the Land from the part of his Mother yet the Release was good In the Case of the Bishop of Bath and Wells which was lately argued in the Exchequer Chamber There it was agreed That if the King grant a Faire in such a place or elsewhere in the County of Somerset if he mistake the County in putting one County for another yet the Grant is good and all that coming after the alibi shall be void He further argued That all the matter appearing by speciall Verdict is not well found for the Jury find That no Tithes were in the Occupation of John Corbet at the time of the Grant and no mention is in it that they were not in his Occupation nor in the Occupation of his Assignes for they might be in the Occupation of his Assigns although that they were not in his own Occupation For in a Verdict if it strongly imply any thing not expressed as in the Case of Trivilian where the Jury found a devise of Land without saying That the Land was holden in Socage it is a good finding of the Jury for no devise
King And as to the second Point they held the Law to be cleer That after that he hath retained as many as by the Law he may retaine and they are sub Signo and Sigillo testified to bee his Chaplains and by reason thereof have qualification to have two Benefices and have two Benefices by vertue thereof although that afterwards they are removed for displeasure or otherwise out of service yet during their lives their Master cannot take other Chaplains which may by this Statute be qualified for so every Baron might have infinite of Chaplains which might be qualified which was not the meaning of the Statute and of that opinion is the Lord Dyer in his Reports And as to the third Point they held That although he were removed from the Domesticall Service of the Family yet hee did remaine Chaplain at large and so a Chaplain within the Statute And further the Opinion of the Court was in this Case That if the party qualified to die the Queen or other Master mentioned in the Statute might qualifie another againe Quod nota The Case was entred Pasch 28. Eliz. Rot. 1130. Scot. Mich. 28 29. Eliz. in the King 's Bench. 48. ONE made a Deed in this forme Noverinit c. that I have demised and to Farme letten all my Lands in D. to I. S. and his Wife and to the Heirs of their two Bodies for thirteen years And it was moved That it was an Estate in taile and 5. E. 3. and 4. H. 4. were vouched But Clenche Justice who was only present in Court was of Opinion That it is but a Lease for years although it was put that Livery was made secundùm formam chartae and his said That if one make a Lease for forty years to another and his Heirs and makes Livery that it is but a Lease for years and he said It is no Livery but rather a giving of Possession But he would have it moved again when the other Justices came Mich. 28 29. Eliz. in the King 's Bench. 49 AN Action upon the Case was brought against an Inn-keeper upon the Custome of England for the safe keeping of the things and Goods of their Guests and he brought his Action in another County then where the Inn was and it was said by Clench Justice That if it be an Action upon the Case upon a Contract or for words and the like transitory things that it may be brought in any County but in this Case he said It ought to be brought where the Inn is Mich. 28 29. Eliz. in the King 's Bench. 50. ONE charged two men as Receivers The Question was Whether one of them might plead Ne unque son Receiver and it was moved That he could not but ought to say Nâ— unque son Receiver absque hoc that he and his Companion were Receivers Clenchè and Suit Justices held That it was well without Traverse and Vide 10. E. 4. 8. Where an Account was brought against one supposing the receipt of Two hundred Marks by the hands of I. P. and R. C. The Defendant as to One hundred Marks pleaded That he received it by the hands of I. P. tantùm without that that he received it by the hands of I. P. and R. C. And as to the other One hundred Marks he received them from the hands of R. C. only without that that he received I. P. and R. C. And there it was doubted Whether it be good or not But in the end of the Case by Fitz. Accompt 14. If an Account be brought against two and one saith He was sole his Receiver and hath accounted before such an Auditor if the Plaintiffe answer unto his Bar he shall abate his Writ because the Receipt is supposed to be a joint Receipt And it is not like unto a Praecipe quod reddat against two Mich. 28 29. Eliz. in the King 's Bench. 51. AN Action upon the Case was brought against one for that he said to another I will give thee Ten Pound to kill such a one and the Question was Whether the Action would lie It was said by Sir Thomas Coâ—kaine that such a Lady had given poyson to such a one to kill her Child within her that the words were not Actionable Also one said That another had put Gun-Powder in the Window of a house to fire such a house and the house was not fired adjudged that the words were not Actionable The Case was betwixt Ramsey of Buckinghamshire and another who said That he lay in wait to have killed him it was found for the Plaintiffe and he had Forty Pound Damages given him But of the Principall Case the Court would advise Mich. 28 29. Eliz. in the Kings Bench. 52 IT was holden by the Court That the Habeas corpus shall be alwayes directed to him who hath the custody of the Body Therefore whereas in the case of one Wickham it was directed to the Maior Bailiffs and Burgesses Exception was taken unto it because the pleas were holden before the Maior Bailiff and Steward but the Exception was dissallowed But otherwise it is in a Writ of Error for that shall be directed to those before whom the Judgment was given In London the Habeas corpus shall be directed Majori Vicecomit London because they have the custodie and not to the whole Corporation But I conceive that the course is that the Writ is directed Majori Aldermannis Vicecomitibus c. Mich. 28 29 Eliz. In the Common Pleas. 53 MARSH and PALFORD's Case OWen moved this Case That one had an upper chamber in Fee and another had the neather or lower part of the same house in Fee and he who had the upper chamber pulled it down and he which had the lower room would not suffer him to build it up again But the opinion of the Justices was that he might build it up again if he did it within convenient time And there it was said that it had been a Question Whether a man might have a Free-hold in an upper chamber Mich. 28 29 Eliz. in the Kings Bench. 54. A Question was moved to the Court Whether Tithe should be paid of Heath Turf and Broom And the opinion of Suit Justice was That if they have paid tithe Wool Milk Calves c. for their cattell which have gone upon the Land that they should not pay tithe of them But some doubted of it and conceived That they ought to say that they have used to pay those Tithes for all other Tithes otherwise they should pay tithe for Heath Turf Broom c. Mich. 28 29. Eliz. in the Kings Bench. 55. TWo Parsons were of two severall Parishes and the one claimed certain Tithes within the Parish of the other and said That he and all his Predecessors Parsons of such a Church scil of D. had used to have the Tithes of such Lands within the Parish of S. and that was pleaded in the Spiritual Court and the Court was moved for to grant
the Defendant as Bailiffe of his Shop curam habens administrationem bâ—norum The Defendant answered as to the Goods only and said nothing to the Shop And Tanfield moved the same for Error in Arrest or Judgment as 14. H. 4. 20. One charged another as Bailiffe of his house cuâ—am habens bonorum in â—â—â—existentium the Traverse was That he was not Balivus of the house prout that is good and goeth to all but he cannot answer to the Goods and say nothing to the house so 49. E. 3. 7. Br. Accompt 21. A man brought an Account against the Bailiffe of his Manor habens curam of twenty Oxen and Cowes and certain Quarters of Corne. And by Belknap If he have the Manor and no Goods yet he shall account for the Manor and it shall be no Plea to say That the Plaintiffe sold him the Goods without Traversing without that that he was his Bailiffe to render Account and as to the Manor he may say That the Plaintiffe leased the same to him for years without that that he was his Bailiffe And he took another Exception That the Plaintiffe chargeth him with Monies ad Merchandizandum and he Traverseth that he was not his Receiver denariorum ad computandum prout And so he doth not meet with the Plaintiffe and so it is no issue and if it be no issue it is not helped by the Statute of Jeofailes 32. H. 8. but mis-joyning of Issue is helped by that Statute 19. Eliz. W. Atturney of the Common Pleas did charge another Atturney of the same Pleas with a Covenant to have three years board in marriage with the Defendants Daughter and he pleaded That he did not promise two years board and so issue was joyned and tryed and the same could not be helped by the Statute because it was no issue and did not meet with the Plaintiffe So if one charge one with debet detinet and he answer to the debet only it is no issue and therefore it is not helped In 29. H. 6. in Trespasse for entring into his house and taking of his Goods the Defendant pleaded non intravit and the issue was tried and Damages given and because the taking of the Goods was not also in issue all was void 4. E. 3. One shall not account by parcells because the Action is entire Vid. 3. E. 3. 8. acc lib. Deut. 202. A President 14. H 7. That the Verdict was not full and did not go to the whole and therefore was not good Helâ— contrary And he said as to the first That there is a Case 9. E. 3. Accompt 35. Where the Plaintiffe chargeth the Defendant in Account as Bailiffe of his house and that he had Administration of his Goods viz. forty Sacks of wool And the Jury found that he was not Bailiffe or his house but they found that he had received the Sacks of Wooll to render account c. and he had judgement for the Goods although it was not found for the house Vide 5. H. 7. 24. a. Where if a Jury be charged with several issue and the one is found and the other not it makes no discontinuance or if one be discontinued yet it is no discontinuance of the whole But if the same be not helped by the common Law yet it is helped by the Statute of 32. H. 8. which sayes Non obstante Discontinuance or miscontinuance Daniel ad idem And he said That the books before of 14. H. 4. and 49. E. 3. were not ruled in the one book the Defendant pleaded That the Plaintiff gave the goods to him in the other that he sold them to him and demanded Judgement of the Action and it is no good answer for they are Pleas only before the Auditors and not in an Action of Account and although the Verdict be found for part only yet it is good for no Damages are to be recovered in an Account In Trespasse it is true if one be found and not the other and joint Damages be given the Verdict is naught for all but if severall Damages be given it is good as it is ruled in 21. H. 6. Cook 26. H. 8. is That he cannot declare generally of an house curam habens administrationem bonorum but he ought further to say viz. Twenty Quarters of Corn and the like c. In the Principal Case it is a joint charge and one charge for the Shop and Goods and he answers unto one only but he ought to answer to all or else it is no answer at all See 10. E. 4. 8. But Cook found another thing scil That there is thing put in issue which is not in the Verdict nor found nor touched in the Verdict and that makes all that which is found not good and that is not helped by any Statute I grant that discontinuances are helped by the Statute of 32. H. 8. of Jeofailes but imperfections in Verdicts are not helped It was a great Case argued upon a Writ of Error in the Exchequer Chamber and it was 〈◊〉 Case An Information was against Brache for entring into a house and one hundred Acres of Land in Stepney he pleaded Not guilty the Jury found him guilty for the one hundred Acres and said nothing for the house upon which Error was brought and the Judgement reversed and he said That it was not a discontinuance but no Verdict for part Daniel That was the fault of the Clark who did not enter it and it hath been the usge to amend the default of the Clark in another terme All the Justices said True if the Postea be in and not entred but here it is entred in the Roll in this forme Daniel Where I charge one in Accompt with so much by the hands of such a one and with so much by thehands of such a one although there be one absque hoc to them all yet they are severall issues The Court answered Not so unlesse there be severall issue joyned to every one of them But by Gaudy Justice If there be severall issues yet if one be found and the other not no Judgement shall be given Clenche Justice It is not a charge of the Goods but in respect of the Shop therefore that ought to be traversed Suit Justice The traverse of the Shop alone is not good The Queens Solicitor said That the books might be reconciled and that there needed not a traverse to the goods for the traverse of the Shop prout answers to all but now he charges him as Bailiffe of his Shop and Goods and he takes issue upon the Goods only which issue is not warranted by the Declaration And he said That if one charge me as Bailiffe of his Goods ad merchandizandum I shall answer for the encrease and shall be punished for my negligence But if he charge me as his Receiver ad computandum I shall not be answerable but for the bare money or thing which was delivered Mich. 28 29. Eliz. in the King 's
here is not mis-joyned for if the Counties could joyne the issue were good but because that the Counties cannot joyne it cannot be well tried But the issue it selfe is well enough Windham and Rodes were of the same opinion that it was not helped by the Statute but Periam doubted it Anderson said That if an issue triable in one Countie be tried in another and judgement given upon it it is errour And afterwards Lutrich the Atturney said That it was awarded that they should re-plead Nota quia mirum for 1. The Statute of 32. H. 8. Cap. 30. speaks of mis-joyning of processe and mis-joyning of issues and admit that this case is not within any of those clauses each of them being considered by it selfe yet I conceive it is contained within the substance and effect of them being considered together Also I conceive That it is within the meaning of both Statutes viz. 32. H. 8. Cap. 30. and 18. Eliz. Cap. 14. for I conceive the meaning of both the Statutes was to oust delayes circuits of actions and molestations and that the partie might have his judgement notwithstanding any defect if it were so that notwithstanding that defect sufficient title and cause did appeare to the Court. And here the Plaintiffe hath sufficient cause to recover If any of the points of the issue be found for him For if it bee found that the matter and substance of the oath be found true which might be tried well enough by those in London the Plaintiffe hath cause to recover Wherefore I conceive that the verdict in London is good enough and effectuall And note That Rodes said that hee was of Councell in suh a case in the Kings Bench betwixt Nevell and Dent. Mich. 28 29. Eliz. in the Common Pleas. 128 IN an Action of Trespasse the Defendant pleaded that at another time before the Trespasse he did recover against the same Plaintiffe in an Ejectione firme and demanded judgement And the opinion of the whole Court was That it is a good plea primâ faciâ— and that the possession is bound by it for otherwise the recovery should be in vaine and uneffectuall And Anderson chiefe justice said That if two claime one and the same Land by severall Leases and the one recovereth in an Ejectione firme against the other that if afterwards the other bring an Ejectione firme of the same Land the first recovery shall be a barre against him Rodes said That hee can shew authority that a recovery in an Ad terminum quem praeteriit shall bind the possession Mich. 28 29. Eliz. in the Common Pleas. 129 IN Trespasse the Defendant did justifie as Bailiffe unto another The Plaintiffe replied that he took his cattell of his own wrong without that that he was his Bailiffe Anderson chiefe Justice If one have cause to distreine my goods and a stranger of his own wrong without any warrant or authority given him by the other take my goods not as Bailiff or servant to the other And I bring an Action of trespasse against him can he excuse himself by saying that he did it as my Bailiffe or Servant Can he so father his mis-demeanours upon another He cannot for once he was a trespasser and his intent was manifest But if one distrein as Bailiffe although in truth he is not Bailiffe if after he in whose right he doth it doth assent to it he shall not be punished as a trespassour for that assent shall have relation unto the time of the distresse taken and so is the book of 7. H. 4. And all that was agreed by Periam Shuttleworth What if hee distraine generally not shewing his intent nor the cause wherefore he distrained c. ad hoc non fuit responsum Rodes came to Anderson and said unto him If I having cause to distrain come to the Land and distraine and another ask the cause why I do so if I assigne a cause not true or insufficient yet when an Action is brought against me I may avow or justifie and assigne any other cause Anderson That is another case but in the principall case clearly the taking is not good to which Rodes agreed Mich. 28 29. Eliz. in the Common Pleas. 130 HOODIE and WINSCOMB'S Case IN an Attaint brought by Hoodie against Winscombe c. One of the Grand Jury was challenged because he was a Captain and one of the Petie Jury was his Lieutenant And it was holden by the whole Court that that was no principall challenge Windham It hath been holden no principall challenge notwithstanding that one of the Jurours was Master of the Game and one of the Petit Jury was Keeper of his Park And in that case it was holden by all the Justices That if a man make a Lease rendring rent upon condition that if the rent be behind and no sufficient distresse upon the Land that then the Lessor may re-enter If the Rent be behind and there be a piece of lead or other thing hidden in the Land and no other thing there to be distrained the Lessor may re-enter for the distresse ought to be open and to be come by for if it should be otherwise said a sufficient distresse one might inclose money or other things within a wall and thereby the Lessor should be excluded of his re-entry Mich. 28 29. Eliz. in the Common Pleas. 131 IN a Quare Impedit the Plaintiffe counted That the Defendant being Parson of the Church in question was presented to another Benefice and inducted 15 Aprilis and that the other Church became void c. The Defendant said That he was qualified at such a day which was after 15 Aprilis without that that he was inducted 15 Aprilis And the Court was of opinion Anderson being absent that it was no good Traverse for he ought to have said generally without that that he was inducted before the day in which he is alledged to be qualified As if one declare in Trespasse done 1 Aprilis and the Defendant plead a Release 1. Feb. he ought to traverse without that that the Trespasse was done before the Release by Periam Justice Mich. 28 29. Eliz. in the Common Pleas. 132 HALES and HOME'S Case IN an Avowry for Damage feasance one pleaded a Lease made unto him by I. S. the other said that before the Lease â— S. did enfeoff him the other replied and maintained the said Lease absque hoc quod J. S. seiâ—itus feoffavit Gawdy The Traverse is not formall for the word seisitus is idle and ought to be left out for he cannot enfeoff if that he were not seised and it hath never been seen that the seisin in such Case hath been traversed but generally in Pleading the Traverse hath been absque hoc that Feoffavit without speaking of seisin which is superfluous And so was the opinion of the whole Court Mich. 28 29. Eliz. in the Common Pleas. 133 THE Queen granted Lands unto the Earle of Leicester by her Letters Patents the Patentee made a Lease of
should not kill the Coneys He cannot take them damage feasants for he cannot impound them Nor doth a Replevin lye of them 19. E. 3. and F. N. B. If the Lord surcharge the Common the Commoner may have an Action against him but in this Case he can have no Action Gaudy Chief Justice He cannot kill the Coneys because he may have other remedie Suit Justice A Commoner cannot take or distrain the Cattel of a Freeholder damage feasants And therefore he cannot kill or destroy the Coneys and he hath a remedy for he may have an Action upon the Case or an Assize against him for putting in of the Coneys if he do not leave sufficient Common for the Commoner Judgment was afterwards given for the Plaintiff Hill 29. Eliz. in the King 's Bench. 145 YARRAM and BRADSHAWE's Case YArram and Wilkenson Sheriffs of the City of Norwich brought an Action upon the Case against Bradshawe because that they being Sheriffs of N. A Capias ad satisfaciendum and shewed at whose Suit and in what action was awarded unto them And they 20. Feb. Anno 25. El. directed their Warrant in writing to three Sergeants of the same City to arrest him by force of which the Sergeants the 26. of Feb. in the same year did Arrest him in Execution and that he was rescued and escaped And that they had spent divers summs of Money in enquiring after him ad grave damnum eorum c. The Defendant pleaded Not Guilty And upon Tryal of the issue a special Verdict was found that about 20. Feb. Anno 25. such a Warrant was made by them unto the Sergeants but not 20. Feb. and that the Sergeans by force thereof about 26. Feb. did Arrest him but not the 26. of Feb. and upon the whole matter there was a demurrer in Law Tanfield for the Defendant and he said It was no Lawfull Arrest For by 8. E. 4. A Bailiff without a Warrant in writing may take goods in Execution and it is good if it be by commandment by word onely of the Sheriff but he cannot Arrest the body of a man without a Warrant in writing sigillo signatum which is not shewed here in the plaintiffs Declaration If one in debt declare per factum suum obligatorium and doth not say sigillo suo sigillatum it is not good Quaere of that for the Book of Entries is not so Secondly he said it must be a present loss or damage to the plaintiffs or else they cannot maintain the action They are chargeable but not charged for if the Sheriffs dye before he begin any Suit against them their Executors shall not be charged But if the plaintiffs have been Arrested then they are endamaged Thirdly as to the Verdict the foot and foundation of the action is the wrong and the wrong here is not found certain for it is supposed to be 26. Feb. And also that the Warrant was Circa 26. Feb. but not 26. Feb. and if it were any day before then the action is maintainable but not if it were any day after A man brings an action of Trespass supposing by his writ the same to be done 1. May If in truth the Trespass was before then it is good but if it were 2. May or at any time after 1. May then it is not good It was a great Case betwixt Vernon and Gray in an Ejectione firme The Ejectment was supposed 1. May and the Jury did finde the Ejectment to be Circa first May and adjudged not good If an Ejectione firme be brought upon a lease made 1. May and the Jury finde the Ejectment to be circa 1. May it is not good Also here they could not take him in Execution again although they had found him For if a man be once out of Execution by 14 H. 7. He shall not be taken again in Execution for the same cause The Court held it not material whether he shewed or not that the Warrant was sub sigillo sigillat ' and therefore thy did not speak to it Godfrey for the plaintiff What if they be not charged but chargeable yet they shall have their action upon the Case for the wrong done viz. The Rescous and the Escape because the Defendant shall not take advantage of his own wrong and so is the opinion of Frowick 13. H. 7. 1. Reporter Quaere For Frowick saith He shall have an action upon the Case or Trespas for breaking of prison against him and shall recover in damage as much as he lost by the escape and so he shall be helped and not by taking of him again And Fitzherbert in his Natura Brevium in the Writ of Ex parte talis holds that upon an Escape the Gaoler shall have a special Writ upon the Case against the Prisoner to answer for the Escape and the damages which the Gaoler shall sustain thereby and it was holden in a great Case viz. One Holts Case That it is not necessary to shew that there was a recovery against them Tanfeild but there it was after a Suit begun although before recovery Godfrey they have also put it in their Declaration that they have expended great sums of Money in looking for him therefore they have shewed that they were damnified Tanfeild it was foolish for them to spend their Money for they could not have taken him again although they had found him Godfrey A man shall have an action for fear of vexation or trouble or charge as one shall have a Warrantia Charta before he be impleaded A man shall have a Curia Claudenda before any breach of the enclosure As to the Verdict It is certain enough for it saith Quod tunc ibidem seipsum recussit and that cannot but be referred to a time certain before viz. 26. Feb. Tanfeild It shall be referred to circa and therefore ad tunc ibidem do remain uncertain Suit Justice Presently by the escape there was a wrong done therefore for that he may have an action Clenche Justice said That he had experience in a Case of Trespas And it was the opinion of almost all the Judges of England That if the Trespass should be done after the day wherein it is supposed to be done by the Writ Yet the Writ shall not abate and therefore he said That the difference of the Trespas done before and after the day supposed by the Writ is to no purpose Further he said that it standeth them upon to have their action before they be sued by the party at whose Suit he was in Execution for perhaps he who was in Execution might dye and other changes might happen so as they might lose all Tanfeild What damages shall the Sheriffs have here if they shall recover before any action be brought against them when as it is uncerrain whether ever they shall be sued or not and so uncertain how much they shall be damnified But notwithstanding all which was said by Tanfeild Judgment was given for the Plaintiffs Hill 29.
did admit a Copy-holder in Remainder for life That the same was a good admittance according to the Custome And that he was a sufficient Dominus pro tempore as to this purpose Although it was objected by Walmesley That the Gardian is but Servus and not Dominus But because it was agreed that he had a lawfull Interest the admittance was good and so it was adjudged 33. Eliz. In the Common Pleas. 178 SHIPWITH and SHEFFIELD'S Case THe Custome of a Copy-hold Manor was That a feme Covert might give Lands to her Husband And if it were a good Custome or not was the Question Fleetwood The Custom is good and vouched 12. E 3. That in York there is such a custome That the Husband might give the Land of his own purchase to his wife during the Coverture and it is a good Custome That an Infant at the age of fifteen years may make a Feoffment 29. E. 3. and the same is good at the Common Law and yet the same all began by custome But the Court was of opinion That the Custome is unreasonable because it cannot have a lawfull Commencement And Anderson Chiefe Justice said That a Custome that an Infant at the age of seven years might make a Feoffment is no good custome because he is not of age of discretion And in this case at Barre It shall be intended that the wife being sub potestate viri did it by the Coherison of her Husband The same Law is of a Custome That the wife may lease to her Husband Fleetwood urged That the custome might be good because the wife was to be examined by the Steward of the Court as the manner is upon a Fine to be examined by a Judge To which the Court said nothing 31. Eliz. in the King's Bench 179 AN Action upon the Case upon an Assumpsit was brought And the Plaintiff layed his Action That such a one did promise him in respect of his labour in another Realme c. to pay him his contentment And he said That Twenty five Pound is his contentment and that he had required the same of the Defendant Cook moved in arrest of Judgement it being found for the Plaintiffe upon Non Assumpsit pleaded that no place was alledged where the contentment was shewed And the opinion of the Court was against him for Gawdy and Wray were of opinion that he might shew his contentment in any Action and so it is where it is to have so much as he can prove he might prove it in the same Action Cook said That it had been moved in stay of Judgement in this Court upon an Assumpsit because the request was not certain And that case was agreed by the Justices because the request is parcell of the Assumpsit and the entire Assumpsit together in such case is the cause of the Action but in this case that he should content him is not the cause of the Assumpsit but only a circumstance of the matter and it was resembled to the Case of 39. H. 6. where a Writ of Annuity was brought for Arrerages against an Abbot pro consilio c. And the Plaintiffe declared that the Councel was ad proficuum Domus and was not alledged in certain and it was holden that the same was not materiall although it were uncertain because it was but an induction and necessary circumstance to the Action And so the Plaintiffe recovered and had Judgement Mich. 29 Eliz. in the King 's Bench. 180 THE Statute of 23. Eliz. cap. 25. is Quod non licuit alicui to engrosse Barley c. and in the Statute there is a Proviso That he may so do so as he convert it into Malt. The question was If in an Information upon that Statute That the Defendant had converted it to Malt he might plead the generall Issue Not guilty and give in Evidence the speciall matter or whether he ought to plead the speciall matter Clench Justice He may plead Not guilty c. for the Proviso is parcel and within the body of the Statute as 27. H. 8. 2. where upon an Information upon the Statute of Farmors it is holden by Fitzherbert That the Vicar may plead Non habuit seu tenuit ad firmam contra formam Statuti c. and yet the Statute in the premises of it restrains every Spirituall Person to take in Farme any Lands c. and afterwards by a Proviso gives him liberty to take Lands for the maintenance of his house c. As upon the Statute of R. 2. If he do plead That he did not enter contra formam Statuti he may give in Evidence that he entred by Title as that his father was seised and died and the same is not like unto the condition of a Bond for that is a severall thing But the Proviso and the Statute is but one Act. Mich. 29. Eliz. in the King 's Bench. 181 NOte It was said by Master Kemp Secondary of the King's Bench That there is a Court within the Tower of London but he said That it was but a Court Baron and said That he can shew a Judgement That no Writ of Error lieth of a Judgement given there And it was a question Whether Process might be awarded to the Lieutenant of the Tower for Execution upon a Judgment given in the Kings Bench because the Defendant was removed and dwelt within the Liberty of the Tower And it was said It could not but the Writ ought to be awarded to the Sheriffs of London and if they returne the Liberties of the Tower then a Non omittas shall be awarded But some Counsellors said That although a Non omittas be awarded yet the Sheriffs durst not go unto the Liberties of the Tower to serve the Process 2 Jacobi in the Common Pleas. 182 The Lady STOWELL'S Case IT was adjudged in this Case That the wife who is divorced causa adulterii shall have her Dower 3. Jacobi in the Common Pleas. 183 WARNER'S Cafe LEssee for twenty years doth surrender rendring rent during the term It was adjudged a good rent for so many years as the term might have continued 3. Jacobi in the King 's Bench. 184 WHITLOCK and HARTWELL'S Case TWO Joint-Tenants for life the one demised and granted the moyty unto his companion for certain years to begin after his death Adjudged void because it is but a possibility And so is it of a Covenant to stand seised to the use c. as it was adjudged in Barton and Harvey's Case 37. Eliz. 3. Jacobi In the Kings Bench. 185 PINDER'S Case A. devised lands in Fee to his son and many other lands in tail And afterwards he said I will that if my son die without issue within age that the lands in Fee shall go to such a one Item I will that the other lands in tail shall go to others and doth not say in the second Item if the son dieth without issue within age It was adjudged That the second Item should be without
commit his house to his servants and the one doth assent to the Livery and departeth the house if the other do continue there and Livery be made it is no good Livery of Seisin Mich. 6. Jacobi in the Kings Bench. 216 IT was holden for Law in this Court That if a man do offend against any Penal Law the Informer ought to begin his Suit within one year after the Offence done otherwise he shall not have the moity of the Penalty And if the Informer hath put in his Information although that the party be not served with Process to answer it yet the same doth appropriate the Penalty unto him Hill 6. Jacobi in the Common Pleas. 217 PEREPOYNT'S Case PErepoynt procured one to convey the daughter of a Gentleman and to marry her to a Ploughman in the night and procured a Priest to marry them and was there present for which matter he was excommunicate by the Ordinary of the Diocess and after absolution he was for the same committed to Prison by the High Commissioners It was holden by the Court That matters concerning Tithes Marriage or Testaments are not examinable before them yet because that he had suffered imprisonment for such things and that neither the Statute of 23. H. 8. nor the Cannon doth extend to the High Commissioners it was resolved That if upon submission to the Commissioners they would not set him at liberty that this Court would do it Mich 6. Jacobi in the Star-Chamber 218 IT was resolved by the whole Court of Star-Chamber That if a man doth assist one who is a Plaintiffe in that Court that it is not maintenance because that it is for the benefit and advantage of the King But if a man do assist an Informer in another Court in an Information upon a Penall Law the same is such a Maintenance for which he may be punished in this Court 6. Jacobi in the Common Pleas. 219 IT was adjudged in this Court That if Land which was sowed be leased to one for life the Remainder to another for 〈◊〉 That if the Tenant for life dieth before the severance of the Corn 〈…〉 in the Remainder shall have the Corn. Mich. 6. Jacobi in the King 's Bench. 220 THE Lessee of a Copy-holder was distrained for rent behind in the time of his Lessor and the Lessee did assume and promise That he would satisfie the Lord his rent if he would surcease the suing of him It was adjudged by the whole Court That it was a good Assumpsit and a good consideration Mich. 7. Jacobi in the King 's Bench. 221 PIGGOT and GODDEN's Case NOte It was in this Case agreed by the whole Court and so adjudged That in an Ejectione firme a man shall not give colour because the Plaintiffe shall be adjudged in by title Mich. 7. Jacobi in the King 's Bench. 222 TWo Tenants in Common brought an Action upon the Case for stopping of a water course against a Stranger whereby the profits of their Lands were lost and it was shewed in pleading that the water had run time out of minde ante diem Obstructionis and Judgment was given for the Plaintiffs And two Exceptions were taken by Coventry First that Tenants in Common ought to have several Actions and not have joyned Secondly that the Custom ought to have been pleaded to continue ante usque die Obstructionis and both the Exceptions were dissallowed by the Court and it is not like the Case of Falsefails in which Action they must join because the same is in the Realty Mich. 7. Jacobi In the King 's Bench. 223 CROSSE and CASON's Case AN Action of Debt was brought upon due Obligation the condition of which was that the Obligee the 18. of August anno 4. Jacobi should go from Algate in London to the Parish Church of Stow-Market in Suffolk within 24. hours and the Obligee shewed that he went from Algate to the said place and because he did not shew in his Declaration in what Ward Algate was It was holden not to be good Mich. 7. Jacobi in the King 's Bench. 224 NOte That it was adjudged to be Law by the whole Court that if a man bail goods to another at such a day to rebail and before the day the Bailee doth sell the goods in market overt Yet at the day the Baylor may seise the goods for that the property of the goods was alwaies in him and not altered by the Sale in market overt Mich. 7. Jacobi in the Common Pleas. 225 ZOUCH and MICHIL's Case AN Enfant Tenant in tail did suffer a Recovery by his Gardian It was holden by the Court that the same should binde him because he might have remedy over against the Gardian by Action upon the Case But otherwise if he suffer a Recovery by Attorney for that is void because he hath not any remedy over against him as it was adjudged 4. Jacobi in Holland and Lees Case Pasch 8. Jacobi In the Common Pleas. 226 WILSON and WORMAL's Case IN an Evidence given to a Jury it was admitted without Contradiction that if judgment in an action of Debt be given against Lessee for years and afterwards the Lessee alieneth his Term and after the year the Plaintiff sueth forth a Scire facias and hath Execution That the Terme is not lyable to the Execution if the Assignement were made bona fide Also in that Cook Chief Justice said that if Lessee for years assignee over his Terme by fraud to defeat the Execution And the Assignee assigneth the same over unto another bona fide that in the hands of the second Assignee it is not lyable to Execution Also in this Case it was said for Law That if a Man who hath goods but of the value of 30. pound be endebted unto two Men viz. to one in 20. pound and to another in 10. pound and the Debtor assignes to him who is in his debt 10. pound all the goods which are worth 30. pound to the intent that for the residue above the 10. pound debt he shall be favourable unto him This Assignement is altogether void because it is fraudulent in part But Foster Justice said that it shall not be void for the whole but onely for the surplusage as Twynes Case C. 3. part 81. Quaere Pasch 8. Jacobi in the Common Pleas. 227 BRISTOW and BRISTOWE's Case IN an Action of Covenant the Case was this Lessee for 90. years made an Assignement for part of the Term viz. for 10. years and the Assignee covenated to repair c. The first Lessee devised the Reversion of the Term and dyed the Devisee of the Reversion brought an Action of Covenant against the Assignee for 10. years and the question was If the Devisee of the Reversion being but a Termor were within the Statute of 32. H. 8 of Conditions Secondly whether the Action would lye because no notice was given of the grant of the Reversion Dodderidge Serjeant to the first point said that this
to the extinguishment of the Bond by the release of all Actions But the Court conceived That the Arbibitrament did consist of two matters which were distinct and might be severed For although that the Arbitrament be void as to one matter yet it shall stand good and shall be a good Arbitrament for the other matter And Foster Justice said That in that case the Award to make the Release might be severed viz. That it should be good for all Actions except the Bond. Cook contrary And said That it is so entire that it cannot be divided But the Court conceived That the Arbitrament was good as to the Bond to be made by the Defendant although it were void as to the Arbitrator At another day Dodderidge said That the Plaintiffe had not alledged any Breach of the Arbitrament for he hath put it That the Defendant and the Arbitrator had not entred into the Bond and although they two joyntly had not entred into the Bond yet it might be that the Defendant alone had entred into the Bond and it needed not that the Arbitrator enter the Bond for as to him the Arbitrament was void And that Exception was allowed as a good Exception by the whole Court. For they said That the Plaintiffe ought for to shew and alledge a breach according to the Book of L. 5. E. 4. 108. And they said That although it be after verdict yet it is not remedied by the Statute Pasch 8. Jacobi in the Common Pleas. 231 FOLIAMBES Case IN a Writ of Dower brought by the Lady Foliambe It was agreed by the whole Court That if the Husband maketh a Lease for years rendring rent and dieth the wife shall recover her Dower and shall have present Execution of the Land and thereby she shall have the third part of the Reversion and of the Rent and execution shall not cease And all the Justices said That the Sheriffe should serve execution of the Land as if there were not any Lease for years for it may be that the Lease for years is void And although it be shewed in pleading that there is a Lease for years the wife cannot answer to it and it may be there is not any Lease and therefore the Execution shall be generall And he who claimes the Lease for years may re-enter into the Land notwithstanding the Recovery and the Execution of the Dower And if he be ousted he shall have his Action Nichols Serjeant who was of Councell against the Demandant said That he would agree that the Case in Perkins 67. was not Law But the Justices said That there is a difference betwixt the Case of Perkins and this Case for in the Case in Perkins the Husband had but an estate in Remainder so as no rent or attendancy was due so as the wife during that Term could not have any benefit Also in this case it was agreed by the Court That after judgement for part the Demandant might be Non-suit for the residue and yet have execution of that part for which he had judgment Pasch 8. Jacobi in the Common Pleas. 232 RAPLEY and CHAPLEIN's Case IT was ruled by the whole Court That if a Custome be alledged That the eldest daughter shall solely inherit that the eldest sister shall not inherit by force of that Custome So if the Custome be That the eldest daughter and the eldest sister shall inherit the eldest Aunt shall not inherit by that Custome And so if the Custome be that the youngest son shall inherit the youngest brother shall not inherit by the Custome And Foster Justice said That so it was adjudged in one Denton's Case Pasch 8. Jacobi in the Common Pleas. 233 SEAMAN's Case BArker Serjeant prayed the opinion of the Court in this Case Lessee for an hundred years made a Lease for forty years to Thomas Seaman if he should live so long and afterwards he leased the same to John his son Habendum after the Term of Thomas for 23. years to be accounted from the date of these presents The Question is If the Lease to John shall be said to begin presently or after the Term of Thomas And the Justices were cleer of opinion That the Lease to John shall not be accounted from the time of the date but from the end of the Term of Thomas because that when by the first words of the Limitation it is a good Lease to begin after the Term of Thomas it shall not be made void by any subsequent words And Cook Chiefe Justice said That this is no new reason for there is the same reason given in 2. E. 2. Grants And he put the Case in Dyer 9. Eliz. 261. and said That if the Limitation be not certain when the Term shall begin it shall be taken most beneficiall for the Lessee Pasch 8. Jacobi in the Common Pleas. 234 WARD and POOL's Case AN Action upon the Case was brought for speaking these words Thou mayest well be richer then I am for thou hast coined thirty Shillings in a day thou art a Coiner of money c. I will justifie it It was moved in arrest of Judgment That the words were not Actionable because he might have a good Authority to coine Money for men who work in the Mint are said to coine Money and are called Coiners of Money And so it was adjudged Quod Querens nihil capiat per Billam Pasch 8. Jacobi in the Common Pleas. 235 CHALK and PETER's Case CHalk brought a Replevin against Peter the Defendant did avow the taking as Bailiff of Sir Francis Barrington in sixteen Acres of wood in Hatfield Chase and shewed that an Arbitrament was made by the Lord Burghley late Lord Treasurer betwixt the Lord Rich and the Ancestors of Sir Francis by which it was awarded That the said Ancestors of the said Sir Francis Barrington and his Heirs should have the herbage of a certain number of Acres within the said Chase and also that he should have to him and his Heirs the Trees and Bushes of the said number of Acres within the said Chase and that he might fell and cut sixteen Acres every year of the said Acres and that he should enclose them according to the Laws and Statutes of the Realm and that Assurance was made by the Lord Rich accordingly and that the same was confirmed by a speciall Act of Parliament with a saving of the right and interest of all strangers and said That Sir Francis Barrington did inclose and cut down sixteen Acres and did enclose the same and there took the Defendants cattel Damage feasants upon which the Defendant did demurr in Law The Question in the case was If by the Statute of 22. E. 4. cap. 7. or the Statute of 35. H. 8. câ—p 17. which give Authority to make inclosures of Woods the Commoner shall be excluded Harris Serjeant I conceive That the Commoner shall be excluded by the Statute of 22. E. 4. cap. 7. which gives Authority to inclose and exclude all Beasts and
Statute to enclose For the Statute is When any man fels trees in his proper soile so that he not being owner of the ground he is not within the Statute and that was the effect of his argument And as to the other point he did not speak at all Cook chief Justice I hold that the plaintiffe ought to have judgment all the matter doth consist upon the Statute of 22. E. 4. which is to be considered And first is to be considered what was the common Law before that Statute and that was That one who had a Wood within a Forrest might fell it as it appeareth by the Statute de Forresta and the Statnte of 1 E. 3. 2. by licence and also he might enclose it for three yeers as it appeareth by the Statute of 22. E. 4. but the enclosure was to be cum parvo fossato haia bassa as it appeareth by the Register in the Writ of Ad quod damnum so as before that Statute there was an enclosure But the Law is cleer That before that Statute by the enclosure the Commoner shall not be excluded Then wee are to consider of the Statute And first Of the persons to whom the Statute doth extend and that appeareth by the preamble to be betwixt the King and other owners of Forrests and Chases and the owners of the Soil so as a Commoner is not any person within the meaning of the Statute And for the body of the Statute you ought to intend that the sentence is continued and not perfected untill the end of the Statute and the words Without licence c. prove That no persons were meant to be bounden by the statute but the Owners of the Forrests and Chases and not the Commoners Like the case in Dyer And although you will expound the words of the bodie of the Statute generally yet they shall be taken according to the intent of the preamble and therefore the Case of 21. H. 7. 1. of the Prior of Castleacre although it be not adjudged in the Book yet Judgment is entred upon the Roll which Case is Pasch 18. H. 7. Rot. 460. By which case it appeareth that although that a Statute be made which giveth Lands to the King yet by that statute the Annuity of a stranger shall not be extinguished And the Case which hath been put by Justice Foster upon the Statute of 18. Eliz. was the case of Boswel for the Parsonage of Bridgwater That although that one who hath a lease for years of the King which was void for misrecitall might by the said Statute hold it against the King yet the Patentee in Fee shall not be prejudiced by the said Statute So I conclude That the Commoner is not a person within this Statute of 22. E. 4 Secondly It is to be considered if a Wood in which any one hath Common be within the Statute and I hold it is not but onely severall Woods For as I have said the Wood which before the Statute might be enclosed for three years was onely a severall Wood and not such a Wood in which any one had common And the statute of 22. E. 4. doth extend onely to such Woods which might be felled and enclosed for three yeers and I conceive contrary to my Brother Warburton That the Deer of the Forrest shall well enough be said to be beasts and cattell And whereas by the common Law before this statute the enclosure was onely to be as I have said cum parvo fossato haia bassa by which the Deer were not excluded now by this statute I hold that they may make great hedges to exclude aswell the Deer as other beasts And I agree with Justice Foster that if he will take advantage of the Statute that hee ought to have pleaded that first hee felled and afterwards enclosed and è contrà upon the Statute of 35. H. 8. scil that hee ought first to divide and afterwards to fell c. And also I agree with him that in that point the Statute of 35. H. 8. being contrary doth repeal the Statute of 22. E. 4. if by that Statute the Commoner shall be excluded But I am of opinion with my Brother Warburton cleerly That hee is a Vendee of the Trees and so within the Statute for it is not neeessary that in the Grant there be the word Sell or that money by given nor that it be a contract for a time onely and not to have cantinuance as it is in our case But he who hath the Trees to him and his heirs shall be said to be a Vendee well enough As to the other matter which hath been moved Whether the Statute of 22. E. 4 be a generall law or not I hold cleerly that we are to take knowledg of it although it be not pleaded because it concerneth the King for it is made for the Kings Forrests and of all the Acts made between the King and his subjects wee ought to take knowledg for so was Stowel's Case And also it was adjudged that wee ought to take knowledg of the act concerning the Creation of the Prince because it concerneth the King And Cook in his argument said That if there had not been a speciall proviosin for the Commoner in the Statute of 35. H. 8. the Commoner had not been excluded by that Statute And afterwards Judgment was entred for the plaintiffe Pasch 8. Jacobi in the Common Pleas. 236 NOte That it was holden by three of the Justices viz. Walmâ—sley Warburton and Foster Cook and Daniel being abâ—ent for law cleerly That a Tenant at will cannot by any custome make a Lease for life by licence of the Lord and that there cannot be any such custome for a lease for life as there is for a lease for years Pasch 8. Jacobi In the Common Pleas. 237 BERRY's Case NOte That upon an Evidence given to a Jury in a Case betwixt Berry and New Colledg in Oxford it was ruled by Walmesley Warburton Foster Justices in an Action of Trespass If it appear upon the Evidence that the plaintiff hath nothing in the land but in common with a stranger yet the Jury ought to finde with the Plaintiff and if the Defendant will have advantage of the Tenancy in common in the plaintiff he ought to have pleaded it Nichols Serjeant was very earnest to the contrary and took a difference where the Plaintiffe and Defendant are Tenants in common and where the Plaintiff is tenant in common with a stranger But he was over-ruled the action was an action of Trespass Quare clausum fregit c. Cook and Daniel were absent Pasch 8. Jacobi in the Common Pleas. 238 IT was holden by Walmesley Warburton and Foster Justices That if a Rent be granted to one and his heirs for the life of another man and the grantee dieth that his heir shall not be an occupant of the Rent And Foster said that the reason was because he cannot plead a Que estate of a Rent
And Warburton held that the heir should have the Rent as a Freehold descended and for that he cited 26. H. 6. Statham Recognizance But Foster said that he should not have the Rent at all Warburton and Walmesley doubted whether the Rent were devisable by the Statute and they said that although the heir should have it by descent yet it should not be in the nature of a descent of Inheritance for he should not have his Age. Cook and Daniel were absent Pasch 8. Iacobi in the Common Pleas. 239 HEYDON and SMITH's Case IN an Action of Trespass the Plaintiff declared of breaking of his Close and cutting down of a Tree viz. an Oak The Defendant pleaded that it was his Free-hold The plaintiff in his Replication shewed that he held of the Defendant by Coppy of Court Roll a Tenement whereof the place in question is parcell And that the Custome of the Manor is That all the Copy-holders within the Manor have used to take wood for house-bote hay-bote c. et pro ligno combustibili in dicto tenemento And said that he had alwayes preserved the wood and trees growing upon the said Tenement And that he had nourished and fostered the said Oake And that sufficient wood was not left upon the said Tenement for house-bote c. upon which the Defendant did demurre in Law Foster Justice Judgment ought to bee given for the plaintiff I hold that a Copy-holder of common right without any Custome shall have wood for Reparations and for fire-bote and so is 9. H. 4. Fitz. Wast 59. the opinion of Hall And I hold that the plaintiff hath an Interest in the Trees according to Palmers Case C. 5. part And 2. H. 4. 12. is That a Coppy-holder may bring An Action of Trespass for the Trees And I hold That without a Custome the Lord cannot fell the trees growing upon the Copy-hold no more then upon a Lease for years But in this Case by Implication of Custome the Lord may take the Trees if he leave sufficient for Reparations c. For the Custome is That a Copy-holder shall have sufficient for Reparations by which is implyed that he shall not have more and then the Rest the Lord shall have And I am of opinion that in this Case and in case where the trees are excepted upon a Lease that the Lord and the Lessor may enter and take the Trees although there be not any clause of ingresse or regresse But in the principall Case because there are not more Trees then are sufficient for Reparation the Lord cannot take them but Trespasse lieth against him Warburton Justice The matter of prescription is not materiall in this case for of common right a Copyholder ought to have Trees for Reparations and to that purpose he hath a speciall propertie But the onely question in this Case as I conceive is If one who hath a speciall property may bring an Action of Trespasse against him who hath the generall propertie And I conceive that he may well enough As if I lend my horse for a week and within the week I take him again Trespasse lieth Walmesley Justice For the substance I am of opinion for the Plaintiff but I doubt For I would not that Copyholders have so great libertie and he hath prescribed to take all trees and to take them ad libitum is too great a liberty And I hold that a Copyholder hath no greater property then one who ought to have Estovers And in this case hee ought to have said quando opus fuerit and he ought to have shewed that the houses were in decay for want of Reparations for which cause opus fuerat c. And so for the pleading I hold that it is not sufficient Cook chief Justice The Plaintiff ought to have Judgment For I hold cleerly That the Lord cannot take trees without leaving sufficient for Reparations no more then he can pull down or overthrow the house of the Copyholder For of common right without Custome or prescription the Trees do belong unto the Copyholder for Reparations and for that purpose hee may take them without any Custome and the Lord cannot take the Trees without leaving sufficient for the Copyholder if there be not a speciall Custome so to do But I hold that without any custome the Lord may take the Trees if he leave sufficient to the Copyholder for the Reparations Mich. 25. 26. Eliz Doylies Case A Copyholder who hath used to take Timber for Reparations brought an action of Trespasse Trinit 26. Eliz. An action of Trespasse was brought by a Copyholder against the Lord. Pasch 37. Eliz. the Case of Mutford Wood. Trinit 40. Eliz. Stebbings Case but there the action was an action upon the Case To the Exceptions taken by Justice Walmesley that the Plaintiff ought to have shewed that the houses wanted Reparations I hold as hee said That if the action had been brought against him and hee justifie the cutting hee ought to have shewed that the houses wanted Reparations But in our Case he brings the Action against another which lyeth although that the houses were not then in decay And for the signification of the word House-boot c. Bote is an ancient Saxon word which signifies in some case Recompence and in some case Reparatio For the manner of prescription That all the Tenants may take wood pro ligno combustibili in dicto Tenemento the same is no good prescription That all shall take to burn in that Tenement But for the reasons beforesaid Judgment was given for the Plaintiffe Pasch 8. Jacobi in the Common Pleas. 240 NEWTON and RICHARD's Case IT was ruled by the whole Court in an Action of Trespasse Quare clausum fregit cuniculos suos vel ipsius A. c. cepit c. was good Pasch 8. Jacobi In the Common Pleas. 241 MEERES and KIDOUT's Case UPon an Evidence to a Jury in this Case it was Ruled by the whole Court That if there be Copyholder for life and the Lord leaseth for years and the Copy-holder commit a forfeiture that the Lessee may enter for the forfeiture And Cooke Cheife Justice said That if there be Tenant for life the Remainder for life If the Tenant for life committeth a forfeiture he in the Remainder for life may enter and that the Case 29. Ass 64. is not Law For the particular estate in possession is determined by the forfeiture And if hee in the Remainder could not enter then it should be at the will of the Lessor whether hee should ever have it The same Law is if the Remainder be for yeers Foster Justice The reason that is given for an Entrie for a forfeiture is because that the Reversion or Remainder is devested by the Feoffment But in this Case because it is but interesse termini nothing is devested For notwithstanding the Feoffment the Interesse termini may be granted to which Cook agreed But Foster said that hee did agree in opinion with Cook
in Ward For Cook Chief Justice said that all Offices which are found to deceive the Crown of such an ancient flower of the Crown as Wardship should be void as to that purpose and most beneficial for the King And he cited the Case in 36. H. 8. Where the Kings Tenant made a Feoffment and took back an estate unto himself for life the Remainder to his Grand-child for 80. years and died that in that Case the Heir was in Ward and they said that in the case at Barre the Heir had power of the Inheritance upon payment of five Shillings and if the Lease for years be found and proved by witnesses yet it carrieth with it the badges of fraud And Tanfeild Chief Baron said that if a Lease for 100. years shall be accounted Mortmain à fortiori this Lease for 1000. years shall be taken to be made by fraud and collusion And Cook said that the Lord Chancellour of England would not relieve such a Lessee in Court of Equity because the begining and ground of it is apparant fraud Note the lands did lye in Springfield in Essex Trinit 10. Jacobi in the Common Pleas. 274 MEADES Case AN Action of Debt was brought upon a Bond against Meade who pleaded that the Bond was upon condition that if he paid ten pound to him whom the Obligee should name by his last will that then c. and said that the Obligee made his Will and made Executors thereof but did not thereby name any person certain to take the ten pound Sherley Serjeant moved that the Executors should have the ten pound because they are Assignees in Law as it is holden in 27. H. 8. 2. But the whole Court was of opinion that the Executors were not named in the Will for such a purpose viz. to take the ten pound For they said It is requisite that there be an express naming who shall take the ten pound otherwise the Bond is saved and not forfeited And Cook put this Case If I be bounden to pay ten pound to the Assignee of the Obligee and his Assignee makes an Executor and dieth the Executor shall not have the ten pound But if I be bounden to pay ten pound to the Obligee or his Assignees there the Executor shall have it because it was a duty in the Obligee himself the same Law if I be bound to enfeoffe your Assignees c. Wherefore it it was adjudged for the Defendant Trinit 10. Jacobi in the Common Pleas. 275 GREENWAY and BAKER's Case IT was moved and afterwards resolved in the Case of a Prohibition prayed to the Court of Admiralty That if a Pirat taketh goods upon the Sea and selleth them that the property of them is changed no more then if a theife upon the Land steales them and selleth them And in this Case it appeared by the Libell That bona piratica fuerint infra Portam Argier super altum mare And for that cause a Prohibition was denied because Argier being a forrain Port the Court could not take notice whether there were such a place of the Sea called the Port or whether it were within the Land or not Afterwards upon the mediation of the Justices the parties agreed to try the cause in the Guild-hall in London before the Lord Chiefe Justice Cook Trinit 10. Jacobi in the Common Pleas. 276. Sir FRANCIS FORTESCUE and COAKE's Case UPon an Evidence in an Ejectione firme betwixt the Plaintiffe and Defendant The Court would not suffer Depositions of witnesses taken in the Court of Chancery or Exchequer to be given in Evidence unlesse affidavit be made that the witnesses who deposed were dead And Cook Chiefe Justice said nullo contradicente That it is a principall Challenge to a Jurour That he was an Arbitrator before in the same case because it is intended that he will incline to that partie to which he inclined before but contrary is it of a Commissioner because he is elected indifferent And it was also said in this Case That one who had been Solicitor in the Cause is not a fit person to be a Commissioner in the same Cause Trinit 10. Jacobi in the Common Pleas. 277 BArker Serjeant in Arrest of Judgement moved That the Venire facias did vary from the Roll in the Plaintiffs name for the Roll was Peter Percy and the Venire facias John Percy and the postea was according to the Roll which was his true name The Court doubted whether it might be amended or whether it should be accounted as if no Venire facias had issued because it is betwixt other parties But it was holden That in case no Venire facias issueth the same is holpen by the Statute of Jeofailes and in this case it is in effect as if no Venire facias had issued forth and so it was adjudged And Cook Chiefe Justice said that if there be no Venire facias nor habeas Corpora yet if the Sheriffe do return a Jury the same is helped by the Statute of Jeofailes Warburton Justice contrary vide C. 5. part Bishops case And Harris Serjeant vouched Trinit 7. Jacobi Rot. 787. in the Exchequer Herenden and Taylors case to be adjudged as this Case is Trinit 10. Jacobi in the Common Pleas. 278 BROWN's Case IT was holden by the whole Court in this case That if a man hath a Modus Decimandi for Hay in Black-acre and he soweth the said acre seven years together with corn that the same doth not destroy the Modus Decimandi but the same shall continue when it is again made into hay And when it is sowed with corn the Parson shall have tithe in kind and when the same is hay the Vicar shall have the tithe hay if he be endowed of hay Trinit 10. Jacobi in the Common Pleas. 279 JAMES and RATCLIFF's Case IN Debt upon a Bond to perform such an agreement The Defendant pleaded Quod nulla fuit conclusio-sive agreeamentum The Plaintiff said Quod fuit talis conclusio agreeamentum de hoc ponit se super patriam The Court held the same was no good issue because a Negative and an Affirmative Trinit 10. Jacobi in the Common Pleas. 280 WETHERELL and GREEN's Case IT was said by the Pronothories That if a Nihil dicit be entred in Trinity Term and a Writ of Enquiry of Damages issueth the same Term that there needs not any continuance but if it be in another Term it is otherwise The Court said If it were not the course of the Court they would not allow of it but they would not alter the course of the Court the words of continuance were Quia vicecomos non misit brev Trinit 10. Jacobi in the Common Pleas. 281 PARROT and KEBLE's Case A Man levied a Fine unto the use of himself for life the remainder in tail c. with power reserved to the Conusor to make Leases for eighty years in Possession or Reversion if A. B. and C. did so long live reserving the ancient rent
man and his heirs such Seat and he and his heirs have used to repair the said Seat If another will libell against him in the Spirituall Court for the same Seat he shall have a Prohibition And he said That he had seen a Judgement in 6. E. 6. That if Executors lay a Grave Stone upon the Testator in the Church or set up his Coat-armour in the Church If the Parson or Vicar doth remove them or carry them away that they or the heir may have their Action upon the Case against the Parson or Vicar Note in the principall no Prohibition for the reasons before Trinit 10. Jacobi in the Common Pleas. 287 The Archbishop of York Sedgwick's Case THe Archbishop of York and Doctor Ingram brought and exhibited a Bill in the Exchequer at York upon an Obligation of seven hundred pound and declared in their Bill in the nature of an Action of Debt brought at the common Law which matter being shewed unto the Court of Common Pleas by Sedgwick the Defendant there A Prohibition was awarded to the Archbishop and to the said Court at York And Cook chief Justice gave the reasons wherefore the Court granted the Prohibition 1. He said because the matter was meerly determinable at the common Law and therefore ought to be proceeded in according to the course of the common Law 2. Although the King hath granted to the Lord President and the Councel of York to hold pleas of all personall Actions yet he said they cannot alter the form of the proceedings For as 6. H. 7. 5. is The King by his Grant cannot make that inquirable in a Leet which was not inquirable there by the Law nor a Leet to be of other nature then it was at the common Law And in 11. H. 4. it is holden That the Pope nor any other person can change the common Law without a Parliament And Cook vouched a Record in 8. H. 4. That the King granted to both the Universities that they should hold plea of all Causes arising within the Universities according to the course of the Civil Law and all the Judges of England were then of opinion That that grant was not good because the King could not by his Grant alter the Law of the Land with which case agrees 37. H. 6. 26. 2. E. 4. 16. and 7. H. 7. But at this day by a speciall Act of Parliament made 13. Eliz. not printed The Universities have now power to proceed and judge according to the Civil Law 3. He said That the Oath of Judges is viz. You shall do and procure the profit of the King and his Crown in all things wherein you may reasonably effect and do the same And he said That upon every Judgement upon debt of forty pound the King was to have ten shillings paid to the Hamper and if the debt were more then more But he said by this manner of proceeding by English Bill the King should lose his Fine 4. He said That if it was against the Statute of Magna Charta viz. Nec super eum ibimus nec super eum mittemus nisi per legale judicium parium suorum vel per legem terrae And the Law of the Land is That matters of fact shall be tried by verdict of twelve men but by their proceedings by English Bill the partie should be examined upon his oath And it is a Rule in Law That Nemo tenetur seipsum prodere And also he said That upon their Judgement there no Writ of Error lyeth so as the Subject should by such means be deprived of his Birth-right 5. It was said by all the Justices with which the Justices of the King's Bench did agree That such proceedings were illegall And the Lord Chancellor of England would have cast such a Bill out of the Court of Chancery And they advised the Court of York so to do and a Prohibition was awarded accordingly Trinit 10. Jacobi in the Common Pleas. 288 Doctor HUTCHINSON's Case DOctor Hutchinson libelled in the Spirituall Court against one of his Parishioners for Tithes The Defendant there shewed that the Doctor came to the Parsonage by Symony and Corruption And upon suggestion thereof made in the Common Pleas prayed a Prohibition Doctor Hutchinson alledged that he had his pardon and pleaded the same in the Spirituall Court And notwithstanding that the Court granted a Prohibition because the Pardon doth not make the Church to be plena but maketh the offence onely dispunishable But in such case If the King doth present his presentee shall have the Tithes Trinit 10. Jacobi in the Common Pleas. 289 NOte by Cook Chief Justice that these words viz. Thou wouldest have taken my purse from me on the high way are not actionable But Thou hast taken my money and I will carry thee before a Justice lay felony to thy charge are actionable Mich. 11. Jacobi in the Common Pleas. 290 HATCH and CAPEL's Case IN an Action upon the Case upon an Assumpsit brought against the Defendant The Plaintiffe declared How that one Hallingworth who was the Defendants Husband was indebted unto the Plaintiffe eight pound ten shillings for beer and that he died and that after his death the Plaintiff demanded the said mony of the Defendant his wife and she in consideration that he would serve her withbeer promised that she would pay unto the said Plaintiff eight pound ten shillings and for the rest of the beer at such a day certain And the Plaintiffe did averr That he did sell and deliver to her Beer and gave her day for the payment of the other money as also for the Beer delivered unto her and that at the day she did not pay the Money Cook and all the other Justices agreed That the Action would well lie and that it was a good Assumpsit and a good consideration for they said That the forbearance of the money is a good consideration of it selfe and they said That in every Assumpsit he who makes the promise ought to have benefit thereby and the other is to sustain some losse And judgement was given for the Plaintiff Mich. 11. Jacobi in the Common Pleas. 291 NORTON and LYSTERS Case IN the Case of a Prohibition the Case was this Queen Elizabeth was seised of the Manor of Nammington which did extend into four Parishes viz. Stangrave and three other And the Plaintiff shewed That he was seised of three Closes in Stangrave and prescribed That the said Queen and all those whose Estate he hath in the said Closes had a Modus decimandi for the said three Closes and for all the Demeanes of the said Manor in Stangrave And whether the Venire facias should be de parochia de Stangrave or of the Manor was the question And it was resolved by the whole Court That the Visne should be of the Parish of Stangrave and not of the Manor And the Difference was taken when one claimes any thing which goes unto the whole Manor and when only to
practices should be suffered and go unpunished that no mans life was in safety but in continual jeopardy And therefore in this case it was said that pregnant presumption had been sufficient to have acquited the Plaintiff but here the case was very cleer because the matter was confessed by the parties Defendants themselves And in this case Cook Chief Justice and the Lord Chancellour said that a conspiracy ought not to be onely false but malitiose contrived otherwise it will not be a conspiracy and such malice ought to be proved For if a poor Man travelling upon the High-way be robbed by another Man and he knows not the party if afterwards he do accuse such a one of the Robbery and the party accused be found not Guilty he shall not have an Action of conspiracy against the accuser for although he was falsly accused yet he was not malitiously accused and it might be that he took him to be the Offender because he was like unto him who robbed him Secondly It was said by them that by the Law no Man may Begg the Lands or Goods of another man upon such an accusation until the party be convict of the fact and that for divers causes 1. Because before conviction the King hath not an Interest in them for the goods are not forfeit And 2. Because the party till his conviction ought to have his goods to maintain himself with them And 3. Because the goods cannot be seised upon for the Kings use before conviction although they may be put in salva custodia and therefore they said that this was a very great slander which the Defendants layed upon the Lord Viscount Rochester viz. that he had begged the Plaintiffs goods of the King before he was convicted and it was said that if such goods should be begged before conviction of the party that the same would be a main cause that the Jury will not find the Indictment against the party when they are sure his Lands goods and other estate shall be in anothers person and so by consequence should be a great cause that the King might be defrauded of the forfeiture of the goods of Fellons and further it would be a great cause of Rebellion if such Lands and goods should be seised upon and given away before conviction of the party accused And as the Lord Chancellour said the same was the cause of the great Rebellion in the time of King Henry the sixth because the goods of divers were given away to other men before the parties were convicted And Cook said that it appeareth that this was not onely a scandal of divers Gentlemen of Worship whom the Defendants had abused in this thing But even of the King himself And it was not onely scandalum Magnatum But scandalum Magistr Magnatum And he said that it appears in Britton that if a Rebel or base fellow do strike a Man of Dignity that he shall lose his right hand à fortiori in such case when they defame and scandalize them by such impudent practices that they be grievously punished And it should be a very unhappy estate to be a Rich-Man if such Offences should not severely be punished multi delicti propter inopiam The Sentence against the said Defendants was this Reignolds being an Attorney to be degraded cast over the Common Pleas Barre and both the Defendants to lose their Eares to be marked in the Face with a C. for Conspirators to stand upon the Pillory with Papers of there Offences to be Whipped and each of them fined to the King in 500. pound and according to this Sentence Reignolds the same Mich. Term was cast over the Common Pleas Barre by the Cryers of the Court and the other part of the Sentence executed on them both Mich. 11. Jacobi in the Common Pleas. 294 COOKES Case IN a Writ Quare intrusit maritagio non satisfacto It was found for the Plaintiff but no damages were assessed by the Jury and the value of the Marriage was found to be 500. pound And now the question was whether the same might be supplied by a Writ of Enquire of Damages and the Court primâ facie seemed to doubt of the case For where the party may have an attaintment there no damages shall be assessed by the Court if the same be not found by the Jury and therefore the Court would be advised of it but afterwards in the same Term it was adjudged that no Writ of Enquire of damages should Issue But a venire facias de novo was granted to try the Issue again Vide 44. E. 3. the opinion of Thorpe acc Note this was the last Case that Cook Chief Justice did speak to in the Common Pleas for this day he was removed from that Court and made Chief Justice of the Kings Bench. Mich. 11. Jacobi in the Common Pleas. 295 WEDLOCK and HARDING's Case THE Case was this a Man seised of a Messuage holden in Socage in Fee by his will in Writing devised the same to his Cosen by these words viz. I devise my Messuage where I dwell to my Cosen Harding and her Assignes for eight years And also my Cosen Harding shall have all my Inheritances if the Law will And it was adjudged by the whole Court without argument That this was a devise of the Messuage in Fee by these words and that all his other Inheritances passed by the said Will by those generall words Mich. 11. Jacobi in the Common Pleas. 296 ROSSER against WELCH and KEMMIS IN an Action of Debt brought against the Defendants upon severall Praecipes one Judgement is given and the Plaintiffe takes forth a Capias against one of them and arrests his body and afterwards hee takes a Fieri facias against the others And the question was Whether the severall Executions should be allowed and the Court was of opinion they should not for that a man shall have but one satisfaction And therefore in the principall Case because that upon the Fieri facias twenty five pounds was levied if the other who is in prison upon the Execution will pay the other twenty five pound the whole Judgment being but fifty pound the Court awarded that the prisoner should be discharged and the Court was clear of opinion that the partie cannot have a Fieri facias against one and a Capias ad satisfaciendum against the other But it was agreed That he might have a Capias against them both As if a man hath one Judgement against seven persons he may take all their bodies in execution because the body is no satisfaction but onely a gage for the Debt and therewith agreeth 4. H. 7. 8. 5 E. 4. 4. and C. 5. part Bamfeild's Case Mich. 11. Jacobi in the Common Pleas. 297 JENOAR and ALEXANDER's Case IT was moved for a Prohibition to the Court of Requests because that the Court held plea of an Attornment for the complaint there was to compel a man to attorn upon a Covenant to stand seised to uses
And per Curiam a Prohibition shal be awarded And Cook chief Justice said That there were three Causes in the Bill for which a Prohibition should be granted which he reduced to three Questions 1. If a Copy-holder payeth his rent and the Lord maketh a Feoffment of the Manor Whether the Copy-holder shall be compelled to attorn 2. If a man be seised of Freehold Land and Covenants to stand seised to an use Whether in such case an Attornment be needfull 3. If a Feoffment be made of a Manor by Deed Whether the Feoffee shall compell the Tenants to attorn in a Court of Equity And for all these Questions It was said That the Tenants shall not be compelled to attorn for upon a Bargain and Sale and a Covenant to stand seised there needs no attronement And Cook in this case said That in 21. E. 4. the Justices said That all Causes may be so contrived that there needed to be no Suit in Courts of Equity and it appears by our books That a Prohibition lies to a Court of Equity when the matter hath been once determined by Law And 13. E. 3. Tit. Prohibition and the Book called the Diversity of Courts which was written in the time of King Henry the eighth was vouched to that purpose And the Case was That a man did recover in a Quare Impediâ— by default and the Patron sued in a Court of Equity viz. in the Chancery and a Prohibition was awarded to the Court of Chancery Mich. 11 Jacobi in the Common Pleas. 298 Sir JOHN GAGE and SMITH's Case AN Action of Waste was brought and the Plaintiffe did declare that contrary to the Statute the Lessee had committed Waste and Destruction in uncovering of a Barn by which the timber thereof was become rotten and decayed and in the destroying of the stocks of Elmes Ashes Whitethorn and Blackthorn to his damage of three hundred pound And for title shewed That his Father was seised of the Land where c. in Fee and leased the same to the Defendant for one and twenty years and died and that the Land descended to him as his son and heir and shewed that the Waste was done in his time and that the Lease is now expired The Defendant pleaded the generall issue and it was found for the Plaintiffe and damages were assessed by the Jury to fifty pound And in this case it was agreed by the whole Court 1. That if six of the Jury are examined upon a Voyer dire if they have seen the place wasted that it is sufficient and the rest of the Jury need not be examined upon a Voyer dire but onely to the principall 2. It was agreed if the Jury be sworn that they know the place it is sufficient although they be not sworn that they saw it and although that the place wasted be shewed to the Jury by the Plaintiff's servants yet if it be by the commandment of the Sheriffe it is as sufficient as if the same had been shewed unto them by the Sheriff himselfe 4. It was resolved That the eradicating of Whitethorn is waste but not of the Blackthorn according to the Books in 46. E. 3. and 9. H. 6. but if the blackthorn grow in a hedg and the whole hedg be destroyed the same is Waste by Cook chief Justice It was holden also so that it is not Wast to cut Quick-set hedges but it shall be accounted rather good husbandry because they will grow the better 5. It was agreed That if a man hath under-woods of Hasell Willowes Thornes if he useth to cut them and sell them every ten years If the Lessee fell them the same is no wast but if he dig them up by the roots or suffereth the Germinds to be bitten with cattel after they are felled so as they will not grow again the same is a destruction of the Inheritance and an Action of wast will lie for it But if he mow the Stocks with a wood-sythe as he did in the principall Case the same is a malicious Wast and continuall mowing and biting is destruction 6. It was said That in an Action of Wast a man shall not have costs of Suit because the Law doth give the party treble damages And when the generall issue Nul Wast is pleaded and the Plaintiff counted to his damages 100l. the Court doubted whether they could mitigate the damage But 7. It was agreed That in the principal Case although the issue were found for the Plaintiff that he could not have judgment because he declared of Wast done in 8. several closes to his damage of 300l. generally and did not sever the damages And the Jury found That in some of the said Closes there was no Wast committed Wherefore the Court said he could not have judgement through his own default But afterwards at another day Hobart then chief Justice and Warburton Justice said That the verdict was sufficient and good enough and so was also the declaration and that the Plaintiffe might have judgment thereupon But yet the same was adjourned by the Court untill the next Term. Mich. 11. Jacobi in the Common Pleas. 299 CLARK's Case NOte It was said by Cook chief Justice and agreed by the whole Court and 41. and 43. E. 3. c That if a man deliver money unto I. S. to my use That I may have an Action of Debt or account against him for the same at my election And it was agreed also That an Action of Trover lieth for money although it be not in bags but not an Action of Detinue Mich. 11. Jacobi in the Common Pleas. 300 IRELAND and BARKER's Case IN an Action of Wast brought the Writ was That the Abbot and Covent had made a Lease for years c. And it was holden by the Court that it was good although it had been better if the Writ had been That the Abbot with the assent of the Covent made the Lease for that is the usuall form but in substance the Writ is good because the Covent being dead Sons in Law by no intendment can be said to make a Lease But the Dean and Chapter ought of necessity to joyne in making of a Lease because they are all persons able and if the Dean make a Lease without the Chapter the same is not good per curiam if it be of the Chapter Lands And in Adams and Wâ—oâ—â—stey's Case Harris Serjeant observed That the Lease is said to be made by the Abbot and Covent and it is not pleaded to be made by the Abbot with the assent of the Covent Mich. 11 Iacobi In the Common Pleas. 301 The Dean and Canons of Winsor and WEBB's Case IN this Case it was holden by the Court That if a man give Lands unto Dean and Canons and to their Successors and they be dissolved or unto any other Corporations that the Donor shall have back the Lands again for the same is a condition in Law annexed to the Gift and in such Case no Writ of
Escheat lieth yet the Land is in him in the nature of an Escheat And the principall Case was That a prescription was shewed of a discharge of Tithes in an Abbot Prior and Covent and that the Corporation was afterwards dissolved because all the Monks died and the Abbot also And it was holden by the Court That he who is now Owner of it and holdeth the Lands shall pay Tithes for a Lay man cannot prescribe in Non decimando and the Prescription continues no longer then the Lands continued in the Abbot and Covents hands And in this Case it was said by Cook That there are only three manner of Escheats 1. Abjurat Regnum 2. Quia suspensus per collum 3. Quia utlagatus But because they sued for the treble value in the Spiritual Court a Prohibition was awarded but the Parson may sue for the double value in the Spirituall Court and no Prohibition will lie for that is given by the expresse words of the Statute of 2. E. 6. and so it was adjudged in Manwoods Case in the Exchequer And the word Forfeiture in the Statute doth not give the treble value to the King but to the Parson himself Also it was holden by Cook and Warburton Justices That if a Rent be granted to one and his Successors and the Corporation be dissolved that the Rent shall revert to the Donor and there is no difference as to the matter betwixt things which lie in Prender and things which lie in render Nichols Justice contrary That the Rent extinguishes in the Land it selâ— And in the principall Case because they sued in the Spirituall Coâ—â— for the treble value a Prohibition was granted 〈…〉 Mich. 11. Jacobi in the Common Pleas. 302 PORTER's Case IN a Writ of Dower brought the Defendant was essoygned and had the view and afterwards pleads tout temps prist to render Dower and they were at issue which was found for the Plaintiff and Judgment was given for the Plaintiff It was holden by the whole Court That before Execution be awarded the Plaintiff in Dower may aver That her husband was seised to have Damages and therewith agrees the books 14. H. 8. 25. 22. H. 6. 44. b. Mich. 11. Jacobi In the Common Pleas. 303 Sir DANIEL NORTON and SYMM's Case AN Action of Debt was brought upon a Bond which was conditioned to performe Covenants in an Indenture and it was shewed there were divers Covenants in the Deed some of which were Covenants against the Law and some not and for breach the Plaintiff alledged That it was covenanted by the Indenture that Chamberlain for whom the Defendant was a Surety being under Sheriff to the Plaintiffe should save the Plaintiffe harmelesse and should discharge all manner of escapes and should also save him harmeless from all Fines and Amercements to which he should be liable by reason of any escape And shewed â—ow that one was arrested in execution by the said Chamberlain evasit And another Covenant was That hee should not serve any Execution above Twenty Pounds without Warrant from the Plaintiffe and also that he should not return any Juries without his Privity Hutton Serjeant argued for the Defendant and said That this Indenture of Covenants was against the Law for it is as much as if he had said That he should not he under Sheriff And by the Statute of 27. El. under Sheriffs are â—â—orn to return Juries and process of Courts and therefore these Covenants are both against the common Law and Statute Law also the Covenants are in delay of Justice for Non constat when the Sheriffe will give him warrant to return Juries or to execute the Kings Writs Also the Covenant is too generall viz. That he shall save him harmelesse from all Escapes and of any other matters whatsoever and there the Bond taken to performe such Covenants is void Vide 7. H. 7. and 8. â— 4. 13. where a Bond taken to save â—â—man harmelesse against all men is voâ—id but contrary if it be to save â—â—rmelesse against one particular person so here to save harmeless from all matters whatsoever is void but if it had been only from Escapes then it had been good Vide 2. H. 4. 9. If a man be bound to save another harmlesse against all the world the Bond is void Vide 4. H. 4. 2. Will. Rices case And he compared these Covenants against the Law to Perpetuities which kill themselves Then he argued That although some of the Covenants were lawfull yet the Bond was void in all and that he said is the better opinion of the book in 14. H. 8. 25. And if A. be bounden to enfeoff J. S. of the Manor of D. and to disease J. N. of another Manor the Bond is void for the whole 3. He said That there was not a sufficient breach laid by the plaintiffe for it is only layed That such a one in Execution evasit and it is not said That the under Sheriff did suffer him to escape 4. It is not layed That the plaintiff did request the under Sheriffe to pay the Money upon the escape but he went and paid the Money voluntarily of himself and request and notice are needfull 46. E. 3. 27. 22. E. 4. 14. 40. E. 3. 20 Non damnificatus is a good plea generally and the other side ought to come and shew specially how he is damnified 5. It is not layed That he gave him warning to arrest the party in Execution for Fifty pounds and therefore as to that he was not under Sheriff because as Sheriff without warning by his former Covenants hee was not to serve any Executions but such as were under Twenty pounds and therefore he ought to have layed it That he gave him a Warrant to arrest the party upon this Execution otherwise there is no breach Harris Serjeant contrary and he said The Covenants are sufficient in part and ought to be performed and so the Bond good And as Kâ—ble said in 13. H. 7. 23. so he said That there are three conditions which are not allowable but the Case at Bar is not within the compasse of any of them and the words here Discharge and save harmelesse shall be meant from all escapes suffered by the under Sheriff himself and the words from all Amercements whatsoever shall be intended by reason of his Office And he said That when an Indenture of Covenants is good in part and void in part those Covenants which are good shall stand and ought to be performed and the book of 14. H. 8 by four Justices is that all legal and lawful Covenants ought to be performed and he vouched Lee and Golshills Case 39. Eliz. which Vide c. 5. part 82. to that purpose and he said that this Case is not like the case in 9. Eliz. Dyer of Raiâ—ure Also he said that the Defendant hath pleaded That he hath performed all the Covenants and if these Covenants be void and no Covenants then the Defendants plea is not good Also
the case which implyed their opinions to be for the Universitie And 21. H. 7. was vouched That the Patronage was only matter of favour and was not a thing valuable And in this case Cook chief Justice said That Apertus haereticus melius est quam fictus Catholicus Mich. 11. Jacobi in the Common Pleas. 310 BOND and GREEN's Case AN Action of Debt was brought against an Administrator the Defendant shewed how that there were divers Judgments had against him in 〈◊〉 Aâ—d â—â—so that there was another Debt due by the Testator which was assigned over unto the Kings Majesty and so pleaded That he had fully Administred Barker Serjeant took Exception to the pleading because it was not therein shewed that the King did assent to the Assignment and also because it was not shewed that the Assignment was enrolled The Court said nothing to the Exceptions But whereas he Defendant as Administrator did alledge a Retayner in his own hands for a debt due to himselfe The opinion of the whole Court was that the same was good and that an Administrator might retayne to satisfie a debt due to himselfe But it was agreed by the Court That an Excecutor of his own wrong should not Retayne to satisfie his own debt See to this purpose C. 5. part Coulters Case Mich. 11. Jacobi in the Common Pleas. 311 STROWBRIDG and ARCHERS Case IN An Action of debt upon a Bond the Defendant was Outlawed And the Writ of Exigent was viz. Ita quod habeas corpus ejus hîc c. whereas it ought to be coram Justiciariis nostris apud Westminster And for that defect the utlagary was reversed and it was said that it was as much as if no Exigent had been awarded at all And upon the Reversall of the utlagary a Supersedeas was awarded and the party restored to his goods which were taken in Execution upon the Capias utlagatum It was also resolved in this Case That if the Sheriffe upon a Writ of Execution served doth deliver the mony or goods which are taken in Execution to the Plaintiffs Atturney it is as well as if he had delivered the same to the Plaintiff himself for the Receipt by his Atturney is in Law his own Receipt But if the Sheriff taketh goods in Execution if he keep them and do not deliver them to the paâ—â— at whose suit they are taken in Execution the party may have a new Execution as it was in the principal Case because the other was not an Execution with Satisfaction Mich. 11. Jacobi in the Common Pleas. 312 CHAVVNER and BOVVES Case BOwes sold three Licences to sell Wine unto Chawner who Covenanted to give him ten pounds for them and Bowes Covenanted that the other should enjoy the Licences It was moved in this Case whether the one might have an Action of Covenant against the other in such Case And the opinion of Warburton and Nichols Justices was That if a Man Covenant to pay ten pound at a day certain That an action of Debt lyeth for the money and not an action of Covenant Barker Serjeant said he might have the one or the other But in the principall Case the said Justices delivered no opinion 313 Note That this Day Cooke Chief Justice of the Common Pleas was removed to the Kings Bench and made Lord Chief Justice of England And Sir Henry Hobart who was the Kings Aturney generall was the day following made Lord Chief Justice of the Court of Common Pleas. Sir Francis Bakon Knight who before was the Kings Solicitor was made Atturney Generall And Mr Henry Yelverton of Grays-Inn was made the Kings Solicitor and this was in October Term. Mich. 11 Jacobi 1613. Mich. 11. Jacobi In the Common Pleas. 314 THis Case was put by Mountague the Kings Serjeant unto the Lord Chief Justice Hobart when he took his place of Lord Chief Justice in the Common Pleas viz. Tenant in tail the Remainder in taile the Remainder in Fee Tenant in tail is attainted of Treason Offence is found The King by his Letters Patents granteth the lands to A who bargaineth and selleth the land by Deed unto B. B. suffers a common Recovery in which the Tenant in tail is vouched and afterwards thâ— Deed is enrolled And the question was Whether it was a good Bar of the Remainder And the Lord Chief Justice Hobart was of opinion That it was no barre of the Remainder because before enrollment nothing passed but only by way of conclusion And the Bargainee was no Lawfull Tenant to the Precipe Mich. 11. Jacobi in the Common Pleas. 315 WHEELER's Case IT was moved for a Prohibition upon the Statute of 5. E. 6. for working upon Holy days and the Case was That a man was presented in the spirituall Court for working viz. carriage of Hay upon the feast day of Saint John the Baptist when the Minister preached and read divine service and it was holden by the whole Court of Common Pleas That the same was out of the Statute by the words of the Act it self because it was for necessity And the Book of 19 H. 6. was vouched That the Church hath authority to appoint Holy days and therefore if such days be broken in not keeping of them Holy that the Church may punish the breakers therof But yet the Court said That this day viz. the Feast day of Sr John the Baptist was a Holy day by Act of Parliament and therefore it doth belong unto the Judges of the Law whether the same be broken by doing of such work upon that day or not And a Prohibition was awarded Mich. 11 Jacobi in the Common Pleas. 316 REARSBY and CUFFER's Case IT was moved for a Prohibition to the Court of Requests because that a man sued there by English Bill for money which he had layd out for an Enfant within age for his Meat drink necessary apparel and set forth by his Bill that the Enfant being within age did promise him to pay the same And a Prohibition was awarded because as it was said he might have an action of Debt at the common Law upon the contract for the same because they were things for his necessary livelihood and maintenance And it was agreed by the Court That if an Infant be bounden in an Obligation for things necessary within age the same is not good but voidable Quaere for a difference is commonly taken When the Assumpsit is made within age and when he comes to full age For if he make a promise when he cometh of full age or enters into an Obligation for necessaries which he had when he was within age the Law is now taken to be that the same shall binde him But see 44. Eliz. Randals Case adjudged That an Obligation with a penaltie for money borrowed within age is absolutely void Mich. 11. Jacobi in the Common Pleas. 317 SMITH's Case SMith one of the Officers of the Court of Admiralty was committed by the Court of Common Pleas to the prison of
the Fleet because he had made Return of a Writ contrary to what he had said in the same Court the day before and 11. H. 6. was vouched by Warburton Justice That if the Sheriff do return that one is languidus in prisona whereas in truth he is not languidus the Sheriff shall be sued for his false Return which was agreed by the whole Court Quod nota Mich. 11. Jacobi in the Common Pleas. 318 WArburton Justice asked the Pronothories this question If in Trespass the plaintiff might discontinue his action within the yeer To which the Pronothories answered That if it be before any plea be pleaded that he might But the Justices were of a contrary opinion that he could not because then costs which are given by the Statute should be lost Mich. 11. Jacobi In the Common Pleas. 319 LAISTON's Case IN Trespass for a Wâ—y the Defendant pleaded a plea in bar which was insufficient and afterwards the plaintiff was Non-suit yet it was resolved by the Court that the defendant should have his costs against the plaintiff But if a default be in the originall Writ and afterwards the plaintiff is Non-suit there the defendant shall not have costs because that when the Original is abated it is as if no suit had been And so was the opinion of the whole Court Mich. 11. Iacobi in the Common Pleas. 320 HILL and GRUBHAM's Case THe Case was this A Lease was made unto Grubham by a deed paroll Habendum to him his wife and his daughter successivè sicut scribuntur et nominantur in ordine Afterwards Grubham dyed and then his wife dyed And if it were a good estate in Remainder to his daughter was the Question Harris Serjeant The Remainder is void and not good by way of Remainder for the incertainty C. 1. part in Corbets case In all Contracts and bargains there ought to bee certainty And therefore 22. H. 6. is That if a Feoffment be made to two et haeredibus it is void although it be with warranty to them and their heirs Vide 9. H. 6 35. Where renunâ—iavit totam communiam doth not amount unto a Release because it is not shewed to whom the Release is and so in 29. Eliz. in the Kings Bench in Windsmere Hulbards case Where an Indenture was to one Habendum to him and to his wife and to a third person Successive it was holden that it was void by way of Remainder to any of them And there it was Resolved 1. That they did not take presently 2. That they could not take by way of Remainder And 3. that They could not take as Occupants because that the intent of the Lessor was that they should take but as one estate But the Court was of opinion against Harris And Resolved That the daughter had a good estate in Remainder and that the same did not differ from the Case in Dyer Where a Lease was made by Indenture to one Habendum to him to another successivè sicut nominantur in Charta for that those words Sicut nominantur in Charta maketh the estate to be certain enough And so they said in this Case Sicut scribuntur et nominantur in Ordine is certain enough and shall be taken to be Sicut scribuntur et nominantur in eadem charta But they agreed according to the Case in Brooks Cases That a Lease to three Habendum 〈…〉 Mich. 11. Jacobi in the Common-Pleas 321. TRAHERNS Case AN Assize of Nusans was brought against the Defendant because that Levavit quandam domum ad nocumentum c. And the Plaintiff shewed how that he had a Windmil and that the Defendant had built the said house so as it hindred his Mill And the Jury found that the Defendant levavit domum and that but two feet of it did hinder the Plaintiffs Mill and is ad nocumentum And how Judgment should be given was the question And the Court was of opinion That Judgment should be that but part of the house should be abated viz. That which was found to be ad nocumentum And it was said by some That the Assise is such a Writ which extends to the whole house and therefore that the whole house should be abated according to the Writ But a difference was taken betwixt the words Erexit and Levavit For Erexit is but when parcel of a house is set up ad nocumentum but Levavit is when an entire house is levied from the ground And it was said by Hobart Chief Justice That if the Defendant had not levied the house so high by two yards it had been no Nusans for the Jury find that the two yards only are ad nocumentum And therefore he conceived that the Writ was answered well enough and that but part of the house should be abated For the Writ is Quod levavit quandam domum c. And the Verdict is Quod levavit domum But that but two yards of it is ad nocumentum And therefore he said the Writ is answered well enough and that the Judgment should be given That that only should be abated which was ad nocumentum c. Quaere for the Case was not resolved And vid. Batten Sympsons Case C. par 9. to this purpose Mich. 11. Jacobi in the Common-Pleas 322. BAGNALL and POTS Case IT was resolved by the Court in this Case That when an Issue is joyned upon Non concessit that the Issue shall be tryed where the Land is But if a Lease be in question and Non concessit be pleaded to it it shall be tryed where the Lease was made 2. It was resolved That if Copy-hold land be given to superstitious uses and the same cometh unto the King by the Statute That the Copyhold is destroyed and the Uses shall be accompted void But it was resolved That in such Case by the Statute which giveth this Land so given to superstitious uses to the King that the King hath not thereby gained the Freehold of the Copyhold but that the same remaineth in the Lord of the Mannor Mich. 11. Jacobi in the Common-Pleas 324. JUCKS Sir CHARLS CAVENDISH's Case A Parson sued for the substraction of Predial Tythes upon the Statute of 2 E. 6. in the Spiritual Court The Defendant made his suggestion That for such a Farm upon which the Tythes did arise there was this custom That when the Tythes of the Lands were set forth that the Owners of the said Lands had used time out of mind to take back thirty sheafs of the Tythe-corn and shewed that he was the Owner of the said Farm and that according to the said custom after the Tythes were set forth that he did take back thirty sheafs thereof and thereupon prayed a Prohibition And in this Case it was said by the Court That it ought to be averred that the Farm was a great Farm for otherwise it should be the impoverishing of the Church and would take away a great part of the profit of the Parson
should be made of words as to make them actionable and words shall be taken in mitiori sensu if there be no particular description and declaration that the words were spoken maliciously And therefore general words which of themselves are actionable by construction shall be taken to bear no action as C. 4. par Stanhops case And so if a man saith of another that he hath the Pox they shall be taken in mitiori sensu because they are not described by any subsequent words which declares malice in the party And Nichols vouched a Case which was in this Court this Term where an action was brought for these words Thou usest me now as thy Wife did when she stole my Cushions that the words were not actionable Warburton Justice When words are spoken which scandal a man in his trade or profession they are actionable as if one say of an Attorney Thou cosenest Mr. Winsor of his Fees and so if words are spoken maliciously And therefore an action was brought by one who was a Jury-man for these words viz. Thou hast deceived me any my children of eight hundred pounds they were adjudged actionable And so Hill 6. Jacobi rot 1159. Thou art a Jury-man and hast been the death of a hundred men by thy false means Being maliciously spoken although in themselves they are not actionable yet they will bear an action But it was adjudged in the principal Case for the reasons given by the two other Justices that the words would bear no action to which Warburton Justice in the end did seem to agree Hill 11. Iacobi in the Common-Pleas 337. AYLIFFE and BROWNS Case A Woman who was possessed of a Term for divers years had issue two Daughters the one married to Ayliffe and the other to Brown Ayliffe had issue four Daughters and Brown had also issue and the Woman did demise Legacies to the children of Ayliffe out of the Rent reserved upon the Lease and made Brown her Executor and dyed Ayliffe required Brown in the behalf of his children to pay the money to him that he might imploy the same for the benefit of the children which he refused to do and thereupon he sued him in the Spiritual Court and there Sentence was given for the Plaintiffe Brown the Executor moved for a Prohibition and alleadged for ground of it that he was Executor and chargeable in an accompt for the money But because he came after sentence and also after he had appealed to the Court of Delegates and after a sentence given there also against him the Court refused to grant a Prohibition in the Cause and also because he did refuse to give security for the payment of the Legacies to the children Hill 11. Iacobi in the Common-Pleas 338. WORMLEIGHTON and HUNTERS Case TWo men are bounden with J. S. as Sureties in an Obligation One of the Sureties viz. Wormleighton was sued upon the Bond and the whole penalty recovered against him He exhibited an English Bill into the Court of Requests against the Defendant being the other Surety to have contribution and it was moved to the Court for a Prohibition to the Court of Request and the same was granted because by entring into the Obligation it became the debt of each of them jointly and severally and the Obligee had his election to sue which of them he pleased and take forth Execution against him and the Court said That if one Surety should have contribution against the other it would be a great cause of suits and therefore the Prohibition was awarded and so it was said it was lately adjudged and granted in the like case in Sir William Whâ—rwoods case Hill 11. Iacobi in the Common-Pleas 339. LAMBERTS Case TWo men were Partners in goods the one of the Partners sold unto J. S. at several times goods to the value of 100 l. and for the goods at one time bought he paid the money according to the time afterwards an action was brought by one of the Partners for the rest of the money and the Plaintiff declared upon one contract for the whole goods whereas in truth they were sold upon several contracts made and the Defendant in that case would have waged his Law But the Court advised the Plaintiff to be Non-suit and to bring a new action because that action was not well brought for it ought to have been a several action upon the several contract And in this case it was agreed by the Court that the sale of one Partner is the sale of them both and therefore although that one of them selleth the goods or merchandizeth with them yet the action must be brought in both their names and in such case the Defendant shall not be received to wage his Law that the other Partner did not sell the goods unto him as is supposed in the Declaration Hill 11. Jacobi in the Common-Pleas 340. WHITE and MOORS Case A Man did recover in an action of Debt brought in the Common-Pleas and had Judgment and afterwards before Execution was taken forth the Defendant in the Debt exhibited an English Bill into the Court of Requests to overthrow the Judgment and to stay Execution pretending in his Bill that there was a parol agreement betwixt him and the other that he should not be charged with that Judgment nor the payment of the money It was moved for a Prohibition in this case which was granted by the Court because the Plaintiffe there by practice did endeavour to subvert a Judgment given at the Common-Law And in speaking of this Case the Court did very much condemn the course used in the Court of Requests in taking Bonds of the parties to perform their Decrees made there for it was said that such Bonds were against Law and so it had been oftentimes adjudged Hill 11 Jacobi in the Common-Pleas 341. BALDWYN and GIRRIES Case A Parson did Libel in the Spiritual Court for Tythes and the substraction of them and grounded his Libel upon the Statute of 2 E. 6. The Defendant alleaged that he was to be discharged from the payment of tythes by reason of priviledge within the Statute of 31 H. 8. of Dissolutions and the Plaintiffe here had a Prohibition And afterwards they were at issue here Whether he ought to be discharged hy Priviledge or not and after issue joyned the Plaintiffe in the Prohibition was Non-suit And thereupon the Parson had a Consultation and proceeded in the Spiritual Court and there obtained a sentence and the sentence there was That he should recover the single damages and the same was set in certain and ulterius that recuperet duplicem valorem which was also by the said sentence set in certain And it was resolved in that Case by the whole Court That a Prohibition should be granted grounded upon the sentence because the Spiritual Court in their sentence did exceed the damages which was to be given by the Statute in that Court and it was said That although the sentence there given be not
Commission which is their authority but if it had been left out in their Commission then the Writ had been good enough And he said that when a man meddles with a thing which is but surplusage which he needed not to do he must recite the same substantially otherwise his plea will be vitious C. 4 par Palmers case And when he maketh Tho. Fleming Capit. Justic ad Placita indefinitely he varieth from the truth for the stile is Tho. Fleming Capit. Justic ad Placita coram Rege tent Haughton Justice acc ' and he said that in every Writ of Error which is to remove a Record three things ought to be expressed 1. Mention is to be made before what person it was taken as the book is in 28 H. 6. 11. 2. It is to mention betwixt whom it was 9 H. 6. 4. 3. The manner of the caption is to be mentioned whether by Writ or without Writ 2 R. 3. 2 3. and this Writ faileth in the first of them therefore he concluded that the VVrit should abate Cook Chief Justice was of the same opinion and agreed that Misnosmer and variance are not to be favoured if they be not substantial and essential quae dant esse rebus and he said that the variance in this case is of such nature For in many Records yet extant and in the time of King H. 3. it is to be found that the Chief Justice of England did sit and give Judgment in the Common-Pleas and in the Exchequer and so then Capital Justic ad Placita is too general because he might sit and give Judgment in any of the said Courts The second Exception was because that the VVrit saith Assisa capta c. and doth not say per breve nor sine breve nor doth say secundum legem consuetudinem c. For in 43 Eliz. in the Case betwixt Cromwell and Andrews it was adjudged not good to say That such an Action came into the Common-Pleas out of the Country and doth not shew that it came by adjournment or by Certlorari or Mittimus To which it was answered by Damport Councellor for the Plaintiff that it is a strong intendment that the Assise was taken per breve and therefore it needed not to be expressed because it is a general and not a special Assise Crook Justice The Exception is good for it is so general that it cannot be intended which Assise it was For put case there were two Assises betwixt the same parties it cannot be known which Assise is intended And of the same opinion was Haughton Justice Dodderidge contrary and he said Notwithstanding the Exception the Record ought to be removed by the Writ For the Judges Conscience may be well satisfied which Record is to be removed And here the Record which is to be removed is so precisely shewed that no body can doubt of it which ought to be certified And there are Records removed by Writs of Error which are more dubious then this is v. 19 Eliz. Dyer 356. 20 E. 3. But in this case the Writ is much enforced by the words Sommon Capt. For in every Assise there are four Commands to the Sheriffe 1. Facere tenementum esse in pace to quiet the possession 2. Facere recognitionem or Recognit videre tentam 3. Summoneas 4. Ponas eos per vadios c. For which cause of necessity it must be meant an Assise per Breve The third Exception was because in the Writ it was not shewed who was Plaintiffe and who Defendant Dodderidge It is generally to be agreed That the Writ of Error ought to agree with the Record which Rule is taken in 3 H. 6. 26. C. 3. par the Marquess of Wincbesters Case But yet every Variance doth not abate this VVrit For if the variance be only in matter of circumstance as it is in this Case the VVrit shall not abate vid. 9 H. 6. 4. 4 5 Phil. Ma. Dyer 164. 2 Eliz. Dyer 173. 180. 28 H. 6. 11. 12. The fourth Exception was because it doth not shew the place of the Caption of this Assise but sayes generall in Com. Norfolk Haughton held that rather to be examinable in the Parliament then here The last Exception was because the VVrit is directed to Cook Chief Justice that he certifie the Record sub sigillo suo whereas it was said the Record it self was to come in Parliament and there a Transcript thereof is to be made and the Record to be remanded V. 22 E. 3. 23 Eliz. Dyer 357. 1 H. 7. 29. against the Book of Entries 302. To which it was answered That it is at the pleasure of the Parliament to have either the one or the other 22 E. 3. 3. 8 H. 5. Error 88. To which Cook agreed And note that upon this VVrit of Error a Supersedeas was fraudulently procured and a VVrit of Attachment issued forth against Bacon who procured it And the Supersedeas was disallowed because that another Supersedeas was granted in the first VVrit of Error And a man can have but one Supersedeas But the Question in this Case was Admitting that the VVrit of Error be good and not abateable If the same be a Supersedeas in it self And the Court doubted of that point For Cook Chief Justice said That he had viewed 26 or 27 VVrits of Error which were brought in Parliament where the first Judgment was disaffirmed and but one where the Judgment was affirmed and that is in 23 Eliz. Dyer 357. the Record of which cannot be found Et quod in praxi est inusitatum in jure est suspectum The Books where Error was brought in Parliament are 2 E. 3. 34 40 in the old print 22 E. 3. 3. 42 Ass pl. 22. 9 H. 5. 23. 1 H. 7. 29. 23 Eliz. Dyer 375. And it should be mischievous for delay for a Parliament is only to be summoned at the Kings pleasure Haughton Dodderidge and Crook held cleerly That this VVrit of Error was a Supersedeas in it self and that upon the Book of 8 E. 2. Error 88. 1 H. 7. 19. where it is said That the Justices did proceed to Execution after the Judgment affirmed in Parliament and therefore ex consequente sequitur not before And therefore the VVrit of Error is a Supersedeas that they cannot proceed But there is no President of it in the Register but a Scire facias fo 70. And the Court held That if a Supersedeas be once granted and determined in default of the party himself that he shall never have another Supersedeas but otherwise if it fail by not coming of the Justices Also Cook Chief Justice held That by this VVrit of Error in Parliament Sir Christopher Heydon could not have the effect of his suit because it is to reverse a Judgment coram Rege and so the Judgment given in the Common-Pleas stands firm and Sir Christopher Heydon is put to a new VVrit of Error in this Court for the Judgment
in the Kings Bench is Judicium affirmetur stet in pleno robore effectu And it is not as the Judgment is in 20 E. 4 44. Judicium stet in aeternum And so that not being the fundamental Judgment the Reversal thereof is but the beginning of another suit 38 H. 6. 3. And admit that the VVrit of Error be a Supersedeas for the second Judgment yet it is a Question whether it shall be for the first which is not touched by the VVrit And whether they may grant Execution upon it or not Vide 13 E. 4. 4 43 E. 3. 3. 8 H. 7. 20. And therefore the Court advised Sir Christopher Heydon to sue unto the Kings Majesty by Petition to have a new Writ of Error for without Petition he cannot have the Writ 32 E. 3 1. 8 E 2. Error 88. And the Justices gave him warning to do it in time convenient otherwise they would award Execution if they did perceive the same to be meerly for delay according to the Cases in 6 H 7. 8 â— 7. And afterwards the Parliament being upon a sudden dissolved without any thing done therein Execution was awarded Pasch 12 Iacobi in the Kings Bench. 346. BLITHMAN and MARTIN's Case IOhn Blithman brought an Action upon the Case against Martin upon an Assumpsit and recovered And it was moved That because the Consideration which was the Cause of the Action was against Law that the Judgment might be stayed For the Plaintiffe did alleadge the same to be in consideration That if the Plaintiff being Goaler of such a Prison in Devâ—nshire would deliver one who was in Execution for Debt he promised to give him Twenty pounds And he alleadged in facto that he did deliver him the Debt not being satisfied And because the Consideration was to do a thing which was against the Law the opinion of the Court was that it was void and that the Plaintiffe should not have Judgment Pasch 12 Iacobi in the Kings Bench. 347. SHERLOE's Case SHerloe brought an Action of Assault and Battery and declared Quod eum the Defendant verberavit And did not shew certain nor alleadge precisely in his Declaration That the Defendant did beat him Exception was taken unto it For there is a difference betwixt a Declaration in an Ejectione Firme Debt and this Action for in those Actions such Declaration is good but not in this Action And to prove the same one Sheriffe and Bridges Case in 39 Eliz. was cited where such Declaration was adjudged void But yet the opinion of the Justices was That the Declaration was good enough notwithstanding the said Judgment in 39 Eliz. Pasch 12 Iacobi in the Kings Bench. 348. GRUBE's Case IT was moved in Arrest of Judgment upon issue joyned inter Mathiam Grub and in the Venire facias he was called Matheum Grub. And Cook Chief Justice said That the Venire facias was vitious but because that the Jury did appear upon the Habeas Corpora the Trial was well enough Pasch 12 Iacobi in the Kings Bench. 349. CROOK and AVERIN's Case CRook Merchant brought an Action upon the Case against Averine for speaking these words viz. Mr. Crook came into Cornwal with a blue Coat but now he hath gotten much wealth by trading with Pirats and by cosening by tale of Pilchers and by Extortion And Cook Chief Justice said That the Law giveth no favour to those verbal Actions and we see there is not any such Action brought in our old Law-books And therefore he said Words ought to be certain And he examined the words in this Case by themselves and said That the first words are not actionable because they are not material And the other words by trading with Pyrats are too general for an honest man might trade with a Pyrate not knowing him to be a Pyrate and so no damage might come to him But as to the other words he gave no opinion Pasch 12 Jacobi in the Kings Bench. 350. CLAYDON Sir JEROM HORSEY's Case CLaydon brought an Action upon the Case against Sir Jerom Horsey for erecting of a house in a certain place called Risborough Common and alleadged in certain That every one who had Common in Risborough pred c. and did not alleadge That the Common is in the Mannor of Risborough But he declared That there is such a Custome within the Mannor of Risborough And the opinion of the Court was That the Declaration was good because there is but one Risborough alleadged and therefore of necessity it must be meant de Manerio Pasch 12 Iacobi in the Kings Bench. 351. The CLOTHWORKERS of IPSWICH Case THe Masters and Wardens of the Clothworkers of Ipswich in the County of Suffolk brought an Action of Debt for 3l. 13s. 4d. against D. and declared That the King who now is had incorporated them by the same name c. And had granted unto them by Charter Quod nullus exerceat artem sive occupationem in aliqua shoppa domo sive camera infra villam predict of a Clothworker or Tailor nisi ante eos vel duos eorum probationem faceret quod Apprentic fuit per spacium 7 annorum per eos sive duos eorum sit approbat sub paena 3l. 13s. 4d. pro qualibet septimana qua exerceat predict artem contra hanc constitutionem And layed in facto That the Defendant had used the Trade of a Tailor for the space c. against c. The Defendant pleaded That he was retained in service with one Mr. Pennel Gen of Ipswich and had been an Apprentice for the space of seven years in tali loco c. And that he made garments for his said Master and his wife and their children infra c. quae quidem exercitio est eadem exercitio artis which is supposed by the Plaintiffs in their Declaration Upon which the Plaintiffs did demur in Law Goldsmith for the Plaintiffs That the Plea in Bar is void For every Plea in Bar ought to confesse and avoid traverse or deny that which is alleadged in the Plaintiffs Declaration But this Plea in Bar had not done any of them and therefore was void For the exercising of the Trade which he hath confessed in his Bar cannot be intended the same matter with which the Plaintiffs have charged him in their Declaration and therefore it is no good bar at all And to prove the same vide 14 H. 6. 2. 35 H. 6. 53. 12 H. 7. 24. 27 H. 8. 2. Sir Robert Hitcham for the Defendant And he held that the matter is well confessed and avoided because that usage which he hath confessed in the Bar is colourable the same usage with which the Plaintiffs have charged him in their Declaration As in a Writ of Maintenance the Defendant saith That he was of Councel with the party being a Serjeant at Law c. which is the same Maintenance which is supposed by the Plaintiffe vide 28 H. 6. 7. 12. 19 H.
the time of King Henry the 8. said That if the King should arrest him of High-Treason that he would stab him with his dagger and it was adjudged a present Treason So was it also adjudged in the Lord Stanley's Case in the time of King Henry the 7. who seeing a Young-man said That if he knew him to be one of the Sons of E. 4. that he would aid him against the King In the like manner a woman in the time of Hen. 8. said That if Henry the 8. would not take again his wife Queen Katherine that he should not live a year but should die like a dog So if discontented persons with Inclosures say That they will petition unto the King about them and if he will not redress the same that then they will assemble together in such a place and rebell In these Cases it is a present Treason and he said That in point of Allegiance none must serve the King with Ifs and Ands. Further Cook Chief Justice said That Faux the Gunpowder Traitor being brought before King James the King said to him Wherefore would you have killed me Faux answered him viz. Because you are excommunicated by the Pope How said the King He answered Every Maunday-Thursday the Pope doth excommunicate all Herâ—tiques who are not of the Faith of the Church of Rome and you are within the same Excommunication And afterwards Owen was found guilty and Judgment of Treason was given against him Mich. 13 Jacobi in the Kings Bench. 364. SIMPSON'S Case RIchard Simpson a Copy-holder in Fee jacens in extremis made a Surrender of his Copyhold habendum to an Enfant in ventrefamier and his heirs and if such Enfant die before his full age or marriage then to John Simpson his brother and his heirs The Enfant is born and dieth within two moneths Upon which John was admitted and a Woman as Heir-general to the Devisor and to the Enfant is also admitted and entreth into the Land against whom John Simpson brought an Action of Trespasse and it was adjudged against the Plaintiffe And two points were resolved in this Case 1. That a Surrender cannot begin at a day to come no more then a Livery as it was adjudged 23 Eliz in this Court in Clarks Case 2. That the Remaindor to John Simpson cannot be good because it was to commence upon a Condition precedent which was never performed And therefore the Surrender into the hands of the Lord was void for the Lord doth not take but as an Instrument to convey the same to another And it was therefore said That if a Copy-holder in Fee doth surrender unto the use of himself and his heirs because that the Limitation of the use is void to him who had it before the Surrender to the Lord is void Trin. 13 Jacobi in the Chancery 365. The Lord GERARD'S Case IT was holden in the Chancery in the Lord Gerards Case against his Copyholds of Aâ—dley in the County of Stafford That where by antient Rolls of Court it appeareth that the Fines of the Copyholds had been uncertain from the time of King Hen. the 3 to the 19 of H. the 6. and from thence to this day had been certain Except twenty or thirty That these few antient Rolls did destroy the Custome for certainty of Fine But if from 19 H. 6. all are certain except a few and so incertain Rolls before the few shall be intended to have escaped and should not destroy the Custome for certain Fines Hill 13 Jacobi in the Common-Pleas 366. BAGNAL and HARVEY'S Case IN a Writ of Partition it was found for the Plaintiffe And a Writ was awarded to the Sheriffe that he should make the partition And the Sheriffe did thereupon allot part of the Lands in severalty and for other part of the Lands the Jurors would not assist him to make the partition All which appeared upon the Retorn of the Sheriffe And an Attachment was prayed against the Jurors who refused to make the Partition and a new Writ was prayed unto the Sheriffe And the Court doubted what to do in the Case whether to grant an Attachment or not and whether a new Writ to the Sheriffe might be awarded And took time to advise upon it and to see Presidents in the Case Hill 13 Iacobi in the Kings Bench. 367. BLANFORD'S Case A Man seised of Lands in Fee devised them unto his Wife for life and afterwards to his two Sons if they had not issue males for their lives and if they had issue males then to their issue males and if they had not issue males then if any of them had issue male to the said issue male The wife died the sons entred into the lands and then the eldest son had issue male who afterwards entred and the younger son entred upon the issue and did trespasse and the issue brought an Action of Trespasse And it was adjudged by the whole Court that the Action was maintainable because by the birth of the issue male the lands were devised out of the two sons and vested in the issue male of the eldest Crook Justice was against the three other Justices Hill 13 Iacobi in the Kings Bench. 368. BROOK and GREGORY'S Case IN a Replevin the Defendant did avow the taking of the Cattle damage feasants And upon issue joyned it was found for the Plaintiffe in the Court at Winsor being a Three-weeks Court And the Defendant brought a Writ of Error and assigned for Error That the Entry of the Plaint in the said Court was the 7. day of May and the Plaintiffe afterwards did Declare there of a taking of the Cattel the 25. day of May. And whether the same was Error being in a Three-weeks Court was the Question and 21 E. 4. 66. was alleadged by Harris that it was no Error But the Court held the same to be Error because no Plaint can be entred but at a Court and this Entry of the Plaint was mesne betwixt the Court dayes and so the Declaration is not warranted no â—ustome being alleadged to maintain such an Entry 2. It was holden by the Court in this Case That 〈…〉 est erratum is pleaded the Defendant cannot alleadge Dimâ—â—â—tion because there is a perfect issue before 3. It was holden That a 〈◊〉 cannot alleadge Diminution of any thing which appeareth in the Râ—â—â—d to be 〈◊〉 And because the Defendant â—id alleadge Diminution 〈◊〉 Case of the Record and by the Record it was certified that the 〈◊〉 was entred the 25 day of May the same was not good after issue joyned and after Judgment is given upon the â—â—â— Record upon the first Dâ—â—â—aration and Pleading in the said Court of Winsor And therefore the Judgment was reversed by the opinion of all the Justices Hill 13 Iacobi in the Kings Bench. 369. BISSE and TYLER'S Case IN an Action of Trover and Conversion of goods the Defendant said That J. S. was possessed of the said goods and sold them unto him in open market
duty did survive with the wife or were extinguished by the entermarriage was the Question And Hâ—bart Chief Justice and Warburton were against Winch and Hutton Justices That the marriage was a Release or discharge of the 100â— Quaere Hill 15 Jacobi in the Kings Bench 380. PLOT' 's Case AN Enâ—ant brought an Assise in the Kings Bench for Lands in Mich depending which The Tenant in the same Assise brought an Assise for the same Lands in the Common-Pleas which last Writ bore date and was recornable after the first Writ And the Demandant in the second Writ did recover against the Enfant by default by the Aâ—â—â—se who found the Seisin and Disseisin And upon a Plea in 〈◊〉 of the first Assise of that Recovery the Enfant by way of Replication set forth all the special matter And that the Deâ—andant at the time of the second Writ brought was Tenant of the Land And prayed that he might 〈◊〉 the Recovery And it was adjudged That he might falsifie the Recovery For in all Cases where a man shall not have Error noâ—â—â—taint he may Falsifie But in this case he could not have Error nor Attaint because the Judgment in the Common-Pleas was not given only upon the Default but also upon the Verdict And it should be in vain for him to bring an Attaint because he shall not be 〈◊〉 to give other Evidence then what was given at the first Trial. Also he shall falsifie the Recovery because it was a practise to defeat and take away the Right of the Enfant and to leave him without any remedy whatsoever Pasch 16 Iacobi in the Kings Bench. 381 INGIN and PAYN'S Case LEssee for years was bounden in a Bond to deliver the possession of a house unto the Lessor his heirs and assignes upon demand at the end of the term The Lessor did bargain and sell the Rendition by Deed enrolled to two One of the Bargainees at the end of the term demanded the Delivery of the Possession The Lessee refused pretending that he had no notice of the bargain and sale It was adjudged that the Bond was forfeited Pasch 16 Iacobi in the Common-Pleas 382. JERMYN and COOPER'S Case A Man by Deed gave Lands to A. and to a Feme sole and to their heirs and assigns for ever Habendum to them and to the heirs of their bodies the Remainder to them and the survivor of them for ever And it was adjudged by the Court That they had an Estate in tail with the Fee-simple Expectant Pasch 16 Jacobi in the Kings Bench. 383. A Man was Indicted De verberationem vulnerationem of J. S. and the words vi armis were left out of the Indictment And the same was adjudged to be helped by the Statute and that the Indictment was good Mich. 16 Jacobi in the Kings Bench. 384. BARNWEL and PELSIE'S Case A Parson did Covenant and grant by Deed with one of his Parishioners That in consideration of Six pounds thirteen shillings and four pence per annum be paid unto him that the said Parishioner should be discharged of all Tythes upon condition to be voyd upon default of payment Afterwards the Parson against his grant did sue the Parishioner in the Spirituall Court for Tythes in kind and it was moved for a Prohibition But the Court would not grant it because that the Originall viz. the Tythes do belong to spirituall jurisdiction But it was said that the Parishioner might have an Action of Covenant against the Parson upon the Deed in the Temporall Court 385. Posch 16 Jacobi in the Kings Bench. AN Action upon the Case was brought for speaking of these words viz. J. S. 34 years since had two Bastards and hath paid for the nursing of them And the Plaintiff shewed that by reason of these words contention grew betwixt him and his wife almost to a Divorce And it was adjudged That an Action would not lye for the words And the Chief Justice said That an Action upon the Case doth not lye for every ill word but for words by speaking of which the Plaintiff is damnified and that cannot be in this Case the time being so long past And the causes wherefore a man shall be punished for saying that a man hath a Bastard are twoâ— the one because by the Statute of 14 Eliz. the offender is to be punished for the same And secondly because the party by such means is discredited or hindered in his preferment Hill 16 Iacobi in the Kings Bench. 386 HURLSTON and WODROFS Case HEnry Hurlston was Plaintiff against Robert Wodroffe in an Action of Debt upon a Demise of a Messuage with a Sheep-walk the Latin word being Ovile And it was moved in arrest of Judgement after a verdict found for the Plaintiff That the sheepwalk was not alledged to be appurtenant nor pleaded to be by Grant by Deed. But notwithstanding that it vvas ruled by the vvhole Court because it rested indifferent whether there was a grant by Deed or not That when the Jury find that the Sheep-walk did passe it shall be intended that there was a Deed. Dodderidge Justice in the Argument of this Case did hold That by the word Ovile although it be translated in English a Sheep-walk yet a Sheep-walk did not passe by it but a Sheep-Cote and by that the Land it self did passe Hill 16 Iacobi in the Kings Bench. 387. HILL and WADE'S Case HIll brought an Action upon the Case against Wade and declared upon an Assumpsit to pay mony upon request and did not alleadge the Request certain but issue was joyned upon another point and found for the Plaintiffe That the failing of certain alleadging of the Request in the Declaration made the same insufficient And so it was adjudged by the Court with this difference where it was a duty in the Plaintiffe before and where the Request makes it a duty For in the first case the Plaintiffe need not alleadge the Request precisely but otherwise in the later Dodderidge Justice put this Case If I promise J. S. in consideration that he will marry my daughter to give him 20â— upon request there the day and place of the request ought to be alleadged in the Declaration Montagu Chief Justice cited 18 E. 4. and 5 H. 7. to be contrary viz. That the finding of the Jury made the Declaration which was vitious to be good As if Executors plead That they have nothing in their hands the day of the Action brought it is insufficient But if the Jury find Assets it is good and so by consequence the Verdict shall supply the defect of Pleading But the Court held these books to be good Law and not to be contrary and well reconciled with this difference For there the Plea was naught only in matter of circumstance but otherwise it is where it is vitious in substance as in this case it is And a difference also was taken where the Verdict doth perfect all which is material and ought to be expressed
and where not For in the principal Case notwithstanding that the Jury find the Assumpsit yet the same doth not reach to the Request and without that the Assumpsit is void Dodderidge Justice cited 5 E. 4. That if the Declaration be vitious in a point material and issue is taken upon another point there the finding of it by the Jury doth not make the Declaration to be good And so in the principal Case Judgment was given for the Defendant In this Case it was agreed That if a man bring an Action of Trover and Conversion and not alleadge a place where the Conversion was Although the issue for the Trover be found for the Plaintiff yet he shall not have Judgment Hill 16 Iacobi in the Kings Bench. 388. GODFREY and DIXON'S Case COrnelius Godfrey brought an Action of Debt upon a Lease against Dixon and declared That Cornelius Godfrey his Father being an Alien had issue Daniel Godfrey born in Flanders the Father is made a Denizen and hath issue the Plaintiffe his second son born in England The Father dieth Daniel is Naturalized by Act of Parliament and made the Lease to Dixon for years rendring Rent and dyed without issue And the Plaintiffe his brother brought an Action of Debt for the Arrearages as heire and upon that it was demurred in Law And George Crook in his Argument said That Inheritance is by the Common-Law or by Act of Parliament And that three persons cannot have heirs in travnsersali linea but in recta linea viz. 1. A Bastard 2. A person Attainted 3. An Alien see for that 39 E. 39. Plow Dom. 445. 17. E. 4. 1. 22 H. 6. 38. 3 E. 1. sitz t' Cousinage 5. Dr. Student And he said That Denization by the Kings Charter doth not make the heir inheritable 36 H. 8. Br. to Denizen and C. 7. part 77. And he said That he who inheriteth ought to be 1. Next of blood 2. Of the whole blood and 3. He ought to derive his Pedigree and discent from the stock and root Bracton lib. 2. fol. 51. And he said That if a man doth covenant to stand seised to the use of his brother being an Alien that the same is not good and the use will not rise But that was denyed by the Court. And he said That an Alien should not have an Appeal of the death of his brother And he took a difference betwixt an Alien and a person Attainted and said that the one was of corrupt blood the other of no blood and cited 9 E. 4. 7. 36 Eliz. Hobby's Case Dodderidge upon the argument of this Case said That if a man claim as Cousin and Heir he must shew how he is Cousin and Heir but not when he claims as Brother or Son and Heir The Case was adjourned Hill 16 Iacobi in the Kings Bench 389 GRAY'S Case AN Action of Debt was brought upon a Bond with Condition to stand to an Arbitrement and also that he should not begin proceed in or prosecute any suit against the Obliger before such a Feast The Obliger did continue a Suit formerly brought George Crook said That the Bond was forfeited because it is the act of the Obliger to continue or discontinue a suit and profit accrues to him therefore it shall be adjudged his act But it is otherwise of an Essoin because that that may be cast by a stranger And he cited the books of 36 H. 6. 2. 5 H. 7. 22 14 E. 41. 18 H. 6. 9. And he held That it was a good Award to continue or discontinue a suit because it is in the power of the party to do it or not Hill 16 Jacobi in the Kings Bench. 390 SLYE'S Case IN a Scire facias to have Execution the Sheriffe retorned That by vertue of a Writ of Fieri facias he took the goods in Execution ad valentiam of 11l. which remained in his custody for want of buyers and that they were rescued out of his possession Mountagu Chief Justice and Dodderidge Justice The Plaintiffe shall have an Execution against the Sheriff relyed upon the book of 9 E. 4. 50. 16 E. 4. Faulconbridge Case 7 Eliz. Dyer 241. 5 E. 3. t' Execution C. 5. par Pettifers Case And Dodderidge said That by this Retorn he had concluded himself and was liable to the value of 11l. And he took this difference where the Sheriffe by vertue of the Writ Venditioni exponas sels the thing under the value there he shall be discharged but otherwise where he sels the goods ex officio Crook and Haughton Justices The Plaintiffe shall not have a Scire facias against the Sheriffe but where he hath the money in his purse And they said That the Plaintiffe must have a Distringas directed to the new Sheriffe or a Venditioni exponas Note the Court was divided in opinion But the Law seems to be with Crook and Haughton and the books before cited prove their difference and warrant it Hill 16 Iacobi in the Kings Bench. 391 Sir JOHN BRET and CUMBERLAND'S Case IN an Action of Covenant brought by Sir John Bret against Cumberland Executor of I. C. the Case was this Q. Eliz. by her Letters Patents did demise a Mill unto the Testator for 30 years reserving Rent and these words were in the Letters-Patents viz. That the Lessee his Executors and Assignes should repair the Mill during the Term. The Lessee assigned over all his interest unto Fish who attorned Tenant and paid the Rent to the Queen and afterwards the Queen granted the Reversion to Sir John Bret and Margaret his wife The Assignee is accepted Tenant the Mill came to decay for want of Reparations and Sir John Bret brought an Action of Covenant against the Executor of the first Lessee And it was adjudged for the Plaintiffe And Dodderidge Justice gave the reasons of the Judgment 1. Because that by the Statute of 32 H. 8. all the benefit which the Queen had was transferred to the Grantee of the Reversion 2. It might be parcel of the Consideration to have the Covenant against the Lessee For a Mill is a thing which without continual Reparations will be ruinous and perish and decay And he said That the Assignee had his election to bring his Action against the Lessee or against the Assignee because it was a Covenant which did run with the Land Mountagu Chief Justice said That the reason of the three Cases put in Walkers Case is in respect of the Interest And took a difference where there is privity of Contract and where not It was adjourned Hill 16 Jacobi in the Kings Bench. 392. WEBB and TUCK'S Case IN an Action of False Imprisonment it was agreed That a Fine may be assessed for Vert and Venison And it was said in this Case by the Justices That a Regarder is an Officer of whom the Law takes knowledge and so are Justices in Eyre 2. It was agreed That such things of which the Law takes notice
ought to be pleaded 3. That if a man in his pleading is to set forth the jurisdiction of the Court of Justices in Eyre if he say Curia tent c. he need not set forth all the Formalities of it And Mountagu Chief Justice in this Case said That if a man do justifie for divers causes and some of the causes are not good the same doth not make the whole Justification to be void but it is void for that only and good for the residue Hill 16 Iacobi in the Kings Bench. 393 CULLIFORDS Case CVlliford and his Wife brought an Action upon the Case against Knight for words And declared upon these words viz. Thou art Luscombs Hackney a pockey Whore and a theevish Whore and I will prove thee to be so which was found for the Plaintiffe And in arrest of Judgment it was moved that the words were not Actionable which was agreed by the whole Court quia verba accipienda sunt in mitiori sensâ—â—â— And Judgment was staied accordingly Hill 16. Jacobi in the Kings Bench. 371. IN an Action upon the Case for Words The Plaintiffe did relate that he was brought up in the Studie of a Mathematition and a Measurer of Land And that he was a Surveyor and that the Defendant spake these words of him viz. Thou art a Cosener and a cheating Knave and that I can prove And the opinion of the Court was That the words were actionable And Montague Chief Justice said that it was ruled accordingly in 36 Eliz. Rot. 249. betwixt Kirby and Walter And a Surveyor is an Officer of whom the Statute of 5. E. 6. takes notice And he said that Verba de persona intelligenda sunt de Conditione personae And he said that the words are Actionable in regard it is a faculty to be a Measuror of Lands But Dodderidg Justice put it with a difference viz. Betwixt a Measurer of Land by the Pole and one who useth the Art of Geometrie or any of the Mathematicks for he said that in the first Case it is no scandal for that his Credit is not impeached thereby but it is contrary in the other Case because to be a Geometritian or Mathematitian is an Art or faculty which every man doth not attain unto And he put this Case If a man be Bailiffe of my Mannor there no such words can discredit him and by consequence he shall not have an Action for the words because the words do not found in discredit of his Office because the same is not an Office of Skill but an Office of Labour quod nota Hill 16 Jacobi in the Kings Bench. 395. BISHOP and TURNERS Case IN a Prohibition it was holden by the whole Court That for such things as a Church-Warden doth ratione officii no Action will lie by his successor against him in the Spiritual Court and a Churchwarden is not an Officer but a Minister to the Spiritual Court But it was holden that a Churchwarden by the Common Law may maintain an Action upon the Case for defacing of a Monument in the Church Trin. 16 Jacobi in the Kings Bench. 396. BLACKSTON and HEAP'S Case IN an Action of Debt for Rent the Case was this A man possessed of a Tearm for 20 years in the right of his Wife made a Lease for 10 years rendring Rent to him his Executors and assignes and died The Question was whether the Executors or the Wife should have the Rent Haughton and Crook Justices against Montague Chief Justice Doddridg being absent that the Rent was gon But it was agreed by them all that the Executors of the Husband should not have it But Montague held that the Wife should have it But it was agreed that if Lessee for 20 years maketh a Lease for 10 years and afterwards surrendreth his Tearm that the Rent is gon And yet the Tearm for 10 years continues And in the principal Case If the Husband after the Lease made had granted over the Reversion his grantee should not have the Rent But Montague said that in that Case the Wife in Chancery might be Releived for the Rent Mich. 16 Iacobi in the Kings Bench. 397. WAIT and the Inhabitants of STOKE'S Case WAyte a Clothier of Nubery was robbed in the Hundred of Stoke of 50l upon the Saboth day in the time of Divine Service The Question was whether the Hundred were chargeable or not for not making out Hue and Cry And 3 of the Justices were against Montague Chief Justice that they were chargeable For they said that the apprehending of Theeves was a good work and fit for the Saboth day and also fit for the Commonwealth Montague Chief Justice agreed that it was bonum opus and that it might be lawfully done But he said that no man might be compelled upon any penalty to do it upon that day For he said That if he hath a Judgment against I. S. and he comes to the Parish-Church where I. S. is with the Sheriffe and shews unto the Sheriffe I. S. upon the Saboth day and commandeth the Sheriffe to do his Office If the Sheriffe do arrest I. S. in Execution upon that day it is good but if he doth not arrest him it is no escape in the Sheriffe And he took a difference betwixt Ministerial Acts and Judicial Acts for the first might be done upon the Saboth day but Judicial Acts might not But the case was adjudged according to the opinion of the three other Justices Pasch 17 Iacobi in the Kings Bench. 398. SPICER and SPICE'S Case UPon a special Verdict the Case was this A man seised of Gavil-kind Land devised the same to his Wife for life paying out of it 3l per annum to his eldest son and also devised the Land to his second Son paying 3l per annum to his third Son and 20s to such a one his Daughter and whether the second Son had the Land for his life or in Fee was the Question And it was adjudged that he had a Fee-simple in it by reason of the payment of the Collateral Sums of 3l and 20s to his brother and sister which charge to the brother might continue af-after the death of the Devisee and if he should have but an estate for life his charge should continue longer then his own estate And so it was adjudged Mich. 17 Iacobi in the Kings Bench. 399. IN a Habeas Corpora which was to remove two men who were imprisoned in Norwich The Case was this That within Norwich there was a Custom that two men of the said place should be chosen yearly to make a Feast for the Bailiffs and upon refusal for to do it that they should be Fined and imprisoned which two men brought to the Barr by the Habeas Corpra were imprisoned for the same cause It was urged and much stood upon That the Custom was no good Custom for the causes and reasons which are delivered in Baggs Case in C. 11. part But yet at the last the Court did remand
Execution the Defendant A secretè fraudulenter vendidit amovit disposuit of all the Testators goods For which cause the Sheriffe was constrained to retorn Nulla bona c. Ley Chief Justice said That the Action would well lie because the Sheriffe could not retorn a Devastavit because the goods were secretly conveyed away so as the Sheriffe could not tell whether he had sold or otherwise disposed of the said goods and also because the Plaintiffe is destitute of all remedy by any other Action To which Dodderidge Justice did agree But Haughton Justice was against it For he said That if one be to bring an action of Debt against the Heir if the Heir selleth the Land which he hath by discent from his ancestors before the action brought an action upon the Case will not lie against him for so doing Dodderidge said That the Case which was put by Haughton was not like to this Case For in this Case if the Sheriffe had or could have retorned a Devastavit the action upon the Case would not have lien But here the Sheriffe hath not retorned any Devastavit And the sale being secretly made the Sheriffe could not safely retorn a Devastavit for so perhaps he might be in danger of an action upon the Case to be brought against him for making of such a Retorn The Case was adjourned till another day Pasch 21 Jacobi in the Kings Bench. 409. WILLIAMS and GIBB's Case NOte in this Case it was said by Ley Chief Justice That whatsoever is allowed for Divine service or whatsoever cometh in lieu of Tythes and Offerings the same is now become a thing Ecclesiastical And Dodderidge Justice also said That no Law doth appoint that the Vicar or Parson should read Divine Service in two several Parish-Churches but only the Ecclesiastical Law Pasch 21 Iacobi in the Kings Bench. 410. STEWRY and STEWRY'S Case A Bill was exhibited into the Court of Chancery for the traversing of an Office who found one to be in Ward to the King and the parties were at issue super seperales exitus And a Venire facias was awarded out of the Chancery retornable in the Kings Bench directed to the Sheriffe Quod venire faciat 12 homines triare placita traversiae super seperales exitus And it was moved That the several Issues ought to be expressed in the Venire facias Dodderidge Justice It ought not to be Placita traversiae For it shall never be called Placitum but when it is at 〈◊〉 Kings suit And the opinion of the Court was That the Venire facias should be amended and that the several Issues should be expressed therein and Young's Case 20 Jacobi was cited for a President in the very point Pasch 21 Jacobi in the Kings Bench. 411. ASTLEY and WEBB'S Case IN an Ejectione Firme the words vi armis were omitted out of the Plaintiffs Declaration And although this was the default of the Clark yet the same could not be amended but it made the Declaration not to be good Pasch 21 Jacobi in the Kings Bench. 412. WHITE and EDWARD'S Case IN Trespasse Edwards the Defendant being a Clark of the Chancery after an Imparlance could not be suffered to plead his Priviledge It was moved in this Case That the Declaration was viginti opali vocatè Wythies And it was said it should have been anglicè and not vocatè But the opinion of the Court was that vocatè was as good as anglicè Then it was moved that the Declaration was That the Defendant had felled twenty Pearches of Hedging whereas it ought to have been that the Defendant had felled a Hedge containing twenty Pearches for a man cannot cut a Mathematical Pole But the Court said That the Declaration was good notwithstanding that and cited 17 E. 4. 1. where a man sells twenty Acres of Corn and there Exception was taken to it as it is here viz. That it ought to have been twenty Acres sowed with Corn but it was no good Exception there No more was it as the Court said in this Case for it is the common speech to say Twenty perches of hedging A pint of wine An acre of corn c. And therefore the Declaration was ruled to be good notwithstanding these Exceptions which were taken to it by Serjeant Headley Pasch 21 Jacobi in the Kings Bench. 413. BRIDGES and MILL's Case AN action upon the Case was brought for speaking of these words viz. Thou inuendo the Plaintiffe hast ravished a woman twice And I will make thee stand in a white sheet for it Henden Serjeant moved in arrest of Judgment That the action would not lie for the words For he said That by the Common-Law Rape was not Felony but Trespass v. Stamford 23. 6. But now by the Statute of West 2. cap. 34. it is made Felony And he said That the later words viz. stand in a white sheet doth mitigate the former words by reason that in the former words the word Felonice was omitted as the Case is in C. 4. par 20. Barhams Case where the words Thou didst burn my Barn and did not say My Barn full of Corn nor that it was parcel of his Mansion-house and therefore the action would not lie For unlesse the Barn were full with corn or part of a dwelling-house it is not Felony Like unto Humfries Case adjudged in the Common-Pleas where an action upon the Case was brought for these words Thou hast pick'd my Pocket and taken away ten shillings And it was adjudged that the action would not lie For he did not say that he had stollen ten shillings But if he had said nothing but Thou hast pick'd my pocket then the action would have been maintainable Ley and Dodderidge Justices By the Common-Law Rape was Felony and in the said Statute the word Felony is not although it be used in the Indictment It was adjourned But the opinion of the Court seemed to be That the action would lie for the words Pasch 21 Iacobi in the Star-Chamber 414. Sir HENRY FINES Case IN the Case of Sir Henry Fines in the Star-Chamber Exception was taken to one of the Witnesses viz. to Dr. Spicer because that he stole Plate and had been pardoned for it But notwithstanding the Exception the Court did allow of the Testimony of the said Dr. Spicer And then Hobart Chief Justice of the Common-Pleas cited Cuddingtons Case Hill 13 Jacobi to be adjudged Cuddington brought an action upon the Case for calling him Thief The Defendant justified that such a day and year he stole a Horse The Plaintiffe replied That the King had given him a Pardon for all Felonies And it was adjudged that the Action did lie Afterwards at another day Jones and Dodderidge Justices put the Case more largely viz. Cuddington committed Felony 44 Eliz. and 1 Jacobi by the General Pardon he was pardoned And they said That he who procures a Pardon confesseth himself to be guilty of the offence But by the general Pardon
Execution of Justice is no wrong when it is for the King The King hath the precedency for the payment of his Debts to him as it appeareth in Stringfellows Case cited before by Justice Dodderidge And when Lands are once lyable to the payment of the Kings debts let the Lands come to whom you will yet the Land is lyable â—o his debt as it appeareth in Cavendishes Case Dyer 224 225. which was entred Pasc â— Eliz. Rot. 111. in the Exchequer 50. Ass 5. A man bindeth himself and his heirs and dieth and the heir alieneth the Land the Land is discharged of the Debt as to the Debtee But in the Kings Case if at any time the Land and Debt meet together you cannot sever them without payment of the Kings debt Vid. Littleton Executors and soe Administrators are chargeable in an Account to the King and the Saying of Mr Littleton are adjudged for Law and are Judgments A sale in Market over nor a Fine and Nonclaim shall not bind the King and so it is of things bought of the Kings Villeyn because Nullum tempus occurrit Regi A common person in London by Custom may attach a Debt in anothers hands As he may come into Court and shew that his debtor hath not any thing in his hand to satisfie his debt but only that debt which is in the hands of another man and that Custom is allowable and reasonable And if it shall be reasonable for a Subject so to attach a Debt will you have it unreasonable for the King Before the Statute of 25. E. 3. cap. 19. The King might protect his Debtor as it appeareth by the Register 281. and Fitz. 28. 6. But the Statute of 25. E. 3. gave the Partie a liberty to proceed to Judgement but doth barr him from taking forth of Execution upon the Judgment untill the King be satisfied his Debt In Dyer 296 297. a man condemned in the Exchequer for a Debt due to the Queen was committed to the Fleet and being in Execution he was also condemned in the Kings Bench at the Suit of a Subject upon a Bill of Debt in Custodia Mariscalli Marisâ—alciae Afterwards upon prayer of the Partie a Habeas Corpus cum causa was awarded out of the Kings Bench to the Warden of the Fleet who retorned the Cause ut supra and he was remanded to the Fleet in Execution for the Debt Afterwards a Command was given by the Lord Treasurer upon the Queens behalf to suffer the Prisoner to go into the Countrie to collect and levie monie the sooner to pay the Queen her Debt In that Case the Subject brought an Action of Debt against the Warden of the Fleet upon the Escape who justified the Escape by the said Commandment It was holden in that case That although the Partie was in Execution for both the Debts yet before the Queen was satisfied the Execution for the Subject did not begin For the King cannot have equall to have interest in the Body of the Prisoner Simul cum illo But if the Case were as Lassels case 3. Eliz Dyer then he might be in Execution for the King and for the Subject Lassels was taken in Execution at the Suit of a Subject and before the Writ was retorned a Writ for the Queen came to the Sheriffe and Lassels was kept in Execution for the Queen In that case Lassels was in Execution for them both viz. the Queen and the Subject So there is a difference where the Partie is first taken for the King and where he is first taken for the Subject Now I will consider of the Case at Barr Whether the Land might be extended notwithstanding the Conveyance made The Kings Debt is to be taken largely and so Goods in such case are to be taken largely and so is it likewise of Lands viz. any Land be it Land in Use upon Trust by Revocation By the Law Debts are first to be paid then Legacies then childrens preferments There is a difference where the Land was never in the man and where it was once in him C. 8. Part. 163. Mights Case Might Purchased lands to him and to his heir It was resolved that this original Purchase could not be averred to be by Collusion to take away the Wardship which might accrue after the death of Might for they were Joynts and the survivor shall have the whole Note that there was no fraud for that it was never in him but if it had once been the Lands only of Might and then Might had made the conveyance to him and his heir then it would have been fraud to have deceived the King of the Wardship In the Case at Barr Hatton hath not aliened the land For an Alienation is alienum facere and here he hath not made it the land of another having a power of Revocation Sir John Packington Mortgaged his lands for 100l The Mortgagee enfeoffed W. and within the time of Redemtion Packington and he to whom the money was to be paid agreed that Packington should pay him 30l of the said 100l and no more and yet in appearance for the better performance of the Condition it was agreed that the whole 100l should be paid and that the residue above 30l should be repaid back to Packington which was done accordingly It was resolved in that Case that the same was no performance of the Condition because it was not a payment animo solvendi And so in this Case there was not any allienation animo 〈◊〉 For Sir Christopher Hatton gave the Lands but yet he kept the possession and received the profits of them And if Sir Christopher Hatton had given the land with power of Revocation or reserving as in this Case he did an Estate for his own life it had been all one If a man deviseth the profits of such lands the lands themselves do pass And a Conveyance of lands upon Condition not to take the profits is a void condition in Law Lit. 462 463. A Feoffment is made upon confidence and the Feoffor doth occupie the land at the will of the Feoffees and the Feoffees do release unto the Feoffor all their right Litt. 464. there it was said that such a Feoffor shall be sworn upon an Inquest if the lands be of the value of 40s per annum and that by the Common Law Therefore it seemeth that the Law doth intend That when a man hath Feoffees in Trust that the lands are his own and then if in such case the Commonwealth shall be served shall not the King who is Pater reipublicae be served so as he may be satisfied his debts If the Case of Walter de Chirton had never been yet I should now have the same opinion of the Law in such Case as the Judges then had The King is not bound by Estopels nor Recoveris had betwixt strangers nor by the fundamental Jurisdiction of Courts as appeareth 38. Ass 20. where a Suit was for Tythes in the Exchequer being a meer spiritual
Soccage may grant the Ward but he cannot forfeit him C. 3. part 3. Right of Actions reals because they are in privity by general words of a Statute are not given to the King v. Dyer 67. String fellow's Case That which is in custodia Legis cannot be taken as a Distress in a Pound overt cannot be taken out of the Pound upon another Distress The third Point is If he were remitted And I conceive that he was remitted When Tenant in tail is attainted of Treason the issue at the Common Law should inherit as if he had not been attainted Lit. 747. C. 1. part 103. for as to the Estate tail there was no corruption of blood C. 10. part 10. If Tenant in tail before the Statute of 26. H. 8. commit Treason the land shall discend to his issue for the issue doth not claim by the Father but per formam doni◠C. 8. part 166. such a discent shall take away entrie But in our Case Ratcliff had both possession and right and therefore is remitted the speciall Verdict finds that he was remitted and the Judgment given in the Court of Pleas in the Exchequer was that he was remitted It was objected that the Remitter was destroyed by the relation of the Office but the same is not so for the Office relates only to avoid Incombrances viz. acts done by himself but to devest the Freehold and to settle the same in the King the Office shall not relate And if it should relate then the King should lose many Lands which he now hath Com. Nichols Case Tenant for life upon condition to have Fee c. If the Office shall relate then the same takes away the Freehold out of the person attainted à principio and then the Fee cannot accrue and so by that means the King should lose the lands A Remitter is no incombrance for it is an ancient right and the Act of the King cannot do wrong C. 1. part 44. b. 27 Ass 30. There Tenant for life with clause of re-entrie is attainted the reversioner entreth the Office shall not relate to take the Freehold out of the reversioner C. 3. part 38. Relatio est fictio juris and shall never prejudice a third person and the Office found in the life of Katherine shal not prejudice him C. 9. part Beamounts Case the husband and wife are Tenants in tail the husband is attainted of Treason and dyeth yet the wife is tenant in tail when it is not to the damage or prejudice of the King there tempus occurrit Regi C. 7. part 28. Baskervile's Case From 29 H. 8. untill 33 H. 8. Katherine and afterwards Ratcliff had the possession and then the Law was taken to be that Ratcliff had a lawfull possession For these reasons he concluded that the Judgment ought to be affirmed In Trinity Term following viz. Trin. 21. Jacobi Regis the Case was argued again and then Coventry the Kings Attorney general argued for the Lord Sheffield That the Judgment given in the Court of Pleas in the Exchequer ought to be reversed He said I will insist only upon the right of the Case Whether upon the right of the Case Ratcliff may maintain a Monstrans de Droit First If by the Attainder the right of the old Estate tail as well as of the new Estate tail be forfeited Secondly Admitting that the old right of entail be not forfeited then if the Office do overreach the Remitter for then a Monstrans de Droit doth not lie but a Petition for the reason of the discontinuance First it is evident that when Ralph Bigot Tenant in tail in possession 6 H. 8. made a Feoffment that that was a discontinuance and it is as clear that the right of the old Estate tail vested in Francis Bigot The Feoffment made by Francis Bigot 21 H. 8. did not devest the right of the old tail First for the weaknesse of the Feoffment Secondly for the inseparableness of the Estate tail which is incommunicable and not to be displaced by weak assurance That Feoffment was made according to the Statute of 1 R. 3. and not by the Common Law but only by force of the said Statute The Feoffment is without Deed and so nothing passeth but only by way of Livery or else nothing at all Also at the time of the Feoffment in 21 H. 8. the Feoffees were in seisin of the Lands and Ratcliff shews in his Monstrans de Droit that Francis Bigot did disseise the Feoffees and so the Feoffment had no force as a Feoffment at the Common Law but only by the Statute of 1 R. 3. For at the Common-Law if Cestuy que use had entred upon the Feoffees and made a Feoffment nothing had passed There is a difference betwixt a Feoffment at the Common Law and a Feoffment according to the Statute of 1 R. 3. which operates sub modo Feoffments are the ancient Conveyances of Lands but Feoffments according to the Statute of 1 R. 3. are upstarts and have not had continuance above 150 years In case of Feoffments at the Common Law the Feoffor ought to be seised of the lands at the time of the Feoffment but if a Feoffment be according to the Statute of 1 R. 3. in such Case the Feoffor needeth not be in possession Feoffments at the Common Law give away both Estates and Rights but Feoffments by the Statute of R. 3 give the Estates but not the Rights In case of Feoffment at the Common Law the Feoffee is in the Per viz. by the Feoffor but in case of Feoffments by the Statute of R. 3. the Feoffees are in in the Post viz by the first Feoffees 14 H. 8 10. Brudnel says that a Feoffment by Cestuy que use by the Statute of 1 R. 3 is like to fire out of a flint so as all the fire which cometh out of the flint will not fasten upon any thing but tinder or gunpowder So a Feoffment by Cestuy que use by force of the Statute of 1 R. 3 will not fasten upon any thing but what the Statute requires 5 H. 7. 5. 21 H. 7. 25. 8 H. 7 8. 27 H. 8. 13. 23. by these books it appeareth that if Cestuy que use maketh a Leafe for life during the Lease he gaines nothing and after the Lease he gains no reversion for the Lessee shall hold of the Feoffees and of them he shall have aid and unless it be by deed Indented in such a Case a Reservation of Rent is void and the Lessor in such a Case cannot punish the Lessee for waste for he makes the Lease meerly by the power which the Statute gives him 8. H. 7. 9. Cestuy que use makes the Feoffment as servant to the Feoffees and if not as servant to the Feoffees yet at least as servant to the Statute of 1 R. 3. If a man entreth upon another and maketh a Lease for life he gains a reversion to himself and shall maintain an Action of Waste but
but in Francis Bigot which may be regained in due time Dyer 340. there was Scintilla juris as here in our Case 19 H. 8. 7. Where Tenant in tail maketh a Feoffment and the Feoffee levieth a fine and five years pass there it is said that the Issue in tail shall have five years after the death of Tenant in tail who made the Feoffment and the reason is because he is the first to whom the right doth discend This Case was objected against me yet I answer that Tenant in tail in that Case hath right but he cannot claim it by reason of his own Feoffment he cannot say he hath right but another may say he hath right In our Case Francis Bigot cannot say he hath a Right in him but another may say he hath a Right It is like where Tenant in Fee taketh a Lease for years by Deed Indented of his own Lands He during the years cannot say that he hath Fee yet all other may say that he hath the Fee C. 4. part 127. The King shall avoid the Feoffment for the benefit of a Lunatique which Feoffment the Lunatique had made and shall not the King avoid a Feoffment which a Lunatique hath made for his own benefit viz for the benefit of the King himself I conceive that he shall Secondly Admit the right be in the person viz. in Francis Bigot yet they object that it is a right of Action and so not forfeited If this right be in the person at the time of the Attainder it shall be forfeited if it be not in his person but in Nubibus yet it shall be forfeited Tenant in tail makes a Feoffment unto the use of himself and his wife in tail if the old right of entail rest or not in his person it is forfeited to the King 34 Eliz. this very Point was then adjudged Where Tenant in tail before the Statute of 27 H. 8. of Uses made a Feoffment unto the use of himself and his wife in tail It was resolved upon mature deliberation by all the Judges of England that the old Estate tail was in such case forfeited for Treason Set this Judgment aside yet it rests upon the Statute of 26 H. 8. A general Act for forfeiture for Treason and the particular Act of 31 H. 8. which was made for the particular Attaindor of Francis Bigot I will argue argue only upon the Statute 26 H. 8. which hath three clauses First to take away Sanctuary Secondly to provide that no Treason be committed and the Offender punished The third which clause I am to deal with which giveth the forfeiture of Lands of Inheritance c These three clauses do depend upon the Preamble It was high time to make this Statute For when H. 8. excluded the Pope he was to stand upon his guard And that year of 26 H. 8. there were five several Insurrections against the King therefore it was great wisdom to bridle such persons King Ed. 6. and Queen Mary repealed divers Statutes for Treason and Felony yet left this Statute of 26 H. 8. to stand in force Anno 5 E. 6. cap. 5. this Statute of 26 H. 8. somewhat too strict was in part repealed viz. That the Church lands should not be forfeited for the Treason of the Parson This third branch doth insist upon a Purview aâ—d a Saving and both agree with the Preamble The Purview is ample Every Offender and Offenders of any manner of High Treason shall forfeit and lose c. I observe these two words in the Statute shall Forfeit those things which are forfeitable and Lose those things which are not forfeitable But it shall be lost that the heir of the Offender shall not find it shall Forfeit and lâ—se to the King his heirs and successors for ever so it is a perpetual forfeiture shall forfeit all his Lands which includes Use Estate and Right by any right title or means So you have Estate Right Title and Use Here Francis Bigot shal forfeit the Castle and Mannor of Mulgrave unto the King his heirs and Successors and he must forfeit the Land Right Title and Use otherwise it cannot be to the King for ever and what is saved to strangers all shall be saved and what will you not save to the Offender and his heirs all his Lands Right c. as was saved to strangers It was objected that it was not an Act of Assurance but an Act of Forfeiture which is not so strong as an Act of Assurance I do not doubt of the difference but how much will that difference make to this Case doth the Statute goe by way of Escheat it doth not but in case of Petty Treason Land shall Escheat but when the Statute of 25 E. 3. speaketh of High Treason the words of the said Statute are Shall forfeit the Escheat to the King But is the Right devided from the King Truely no the word Forfeit take it in nomine or in natura is as strong a word as any word of Assurance Alienare in the Statute of West 2. cap. 1. Non habeant illi potestatem alienandi so non habent illi potestatem forisfaciendi is in the nature of a Gift Com. 260. Forfeiture is a gift in Law Et fortior est dispositio legis quam hominis and so as strong as any assurance of the partie If a Statute give the Land to the King then there needeth not any Office 27 H. 8. Br. Office Com. 486. The Right vests before Office It was objected that the statute of 26 H 8. doth not extend to a right of Action but to a right of Entrie The purpose of this Act of 26 H. 8. is not to attaint any particular person as the Statute of 31 H. 8. was made for the particular Attaindor of Francis Bigot 5 E. 4. 7. Cestuy que use at the Common Law did not forfeit for Felony or Treason but by this Act of 26. H. 8. Cestuy que use shall forfeit both Use and Lands out of the hands of the Feoffees 4 E. 3. 47. 4 Ass 4. The husband seised in the right of his wife at the Common Law for Treason shall not forfeit but the profits of the lands of his wife during his life and not the Freehold it self but by this Act of 26 H. 8. the Freehold it self is forfeited 18 Eliz. in the Common Pleas Wyats Case C. 10. Lib. Entries 300. And if the Statute of 26 H. 8. had had no saving all had been forfeited from the wife 7 H. 4. 32. there it is no forfeiture yet by this Statute it is a forfeiture A right of Action shall not Escheat 44 E 3. 44 Entre Cong 38 C. 3 part the Marquess of Winchesters Case and Bowtiâ—s Case and C 7. part Inglefieldâ—s Case A right of Action per se shall not be forfeited by the Rules of the Common Law nor by any Statute can a right of Action be transferred to another but by the Common Law a right of Action may
38 H. 6. 14. If the Law doth not lie for parcel then it is suspended for the whole where the debt is an entire debt And so it was adjudged in this Case Pasch 21 Jacobi in the Kings Bench. 421. NOte it was cited by Chamberlain Justice 15 Jacobi to be adjudged That where a man brought an Action upon the Case against another man for calling of him Bastard that the Action was maintainable The Defendant brought a Writ of Error and shewed for Error That the Plaintiffe did not claim any Inheritance or to be heir to any person certain But notwithstanding that Error assigned the Judgment was affirmed And he said That if one saith of J. S. that his Father is an Alien that an Action upon the Case will lie because it is a disability to the Son Quaere Trin. 21 Jacobi in the Kings Bench. 422. YOUNG and ENGLEFIELD'S Case Intratur Pasch 21 Jac. Rot. 102. YOung brought an Action of Trespass for entring his Close c. abutted upon one side with Pancras and butted on the other side with Grayes-Inne-Lane Upon Not guilty pleaded the parties were at issue Aud the Record of Nisi prius was Graves-Inne-Lane And thereupon the party was Nonsuit And now it was moved to have a Venire facias de novo And a Case was cited expresse in the point betwixt Farthing and Dupper 9 Jacobi Rot. 1349. Where in an Action upon the Case upon Assumpsit the Plea-Roll was Six weeks and the Record of Nisi prius Six moneths And the Jury being sworn the Plaintiffe was Nonsuit and a Venire facias de novo was awarded and the Nonsuit was recorded Ley Chief Justice You cannot have a new Venire facias if the Nonsuit be recorded And if the Record of Nisi prius varieth from the Record then it can be no Nonsuit because there is no Record upon which the Nonsuit can be and the Nisi prius was prosecuted without warrant Judicial Procss are of Record because they are by the Award of the Court But if the Transcript of a Record be mistaken by a Clark it issueth out by the Award of the Court and if it vary then it is no Record The president cited is direct in the point There was a Venire facias de novo But I conceive there is a difference where the Jury is sworn as it is in the President and then the Plaintiffe is Non-suit but in our Case the Plaintiffe was Nonsuit before the Jury was sworn But per Curiam the Case is the stronger to have a new trial Trin. 21 Iacobi in the Kings Bench. 423. PRITCHARD and WILLIAMS Case IN an Ejectione Firme the Jury found for the Defendant Now it was moved for the Plaintiffe That the Defendant might not have Costs because the Venire facias is mistaken And the Defendants Councel cited a President in the Case viz. Mich 18 Jacobi betwixt Done and Knot where the Defendant had Judgment for his Costs notwithstanding that the Plaintiffe mistooke his Venire facias in an Ejectione Firme where the Jury found for the Defendant Trin. 21 Iacobi in the Kings Bench. 424. WISEMAN and DENHAM'S Case Wiseman brought an Action upon the Case against Denham Parson and declared that there is a Custom within the Town and Parish of Landone of which the Defendant is the Parson That every Parishoner who keeps so many Kyne within the said Parish should give and pay to the Parson for his Tythe-Milk so many Cheeses at Michaelmas and shewed how that he kept so many Kyne viz. 20 c. within the said Parish and that he did tender apud Landone so many Cheeses at Michaelmas to Denham the Defendant being Parson who refused them and to take them away but suffered them to be and continue in the Plaintiffs house for which cause he brought the Action The Defendant did demur upon the Declaration George Crook the Action will lie for the Plaintiffe hath a damage by reason that the Parson doth not take away his Tythe-Cheese And it is like unto the Case in 13 H. 4. Action sur le Case 48. Where a man sold unto another Hay and because that the Vendee took not away his Hay an Action upon the Case did lie for it was a damage to the Plaintiffe to let it stand upon his ground for he durst not put his Cattel into his ground to feed lest they should eat the Hay and spoil it and so he should be lyable to an Action to be brought by the Vendee So if Tythe be lawfully seâ—forth and the Parson refuseth the Tythe but will sue in the Spiritual Court for the Tythe an Action upon the Case will lie à fortiori in this Case for the Cheeses may be cumbersome and troublesome to the Partie so as he cannot make the best use or benefit of his house Paul Crook contrarie and he took exception because the tender is alledged to be apud Landone and it is not shewed that it was at his house at Landone or in any place certain and he said that the Action will not lie because here is no damage to the Plaintiffe and it is like the Case when a man makes a Lease rendring Rent Cheese or Corn and the Tenant tendreth it and the Lessor refuseth it the Lessee cannot have an Action upon the Case against his Lessor but he may plead the matter in barr in an Action brought by the Lessor And the Case of 13 H. 4. before put is not to the purpose for there it was part of the Bargain to take it away by such a time And in our Case the Plaintiffe may plead the matter in barr to the Plaint ' 43 Eliz. betwixt Crispe and Jackson an Action upon the Case was brought for suing in the Ecclesiatical Court for Tythes which were due and he recovered damages Secondly Admit that the Action doth lie then it is because it is a damage unto him that they remain in his house but it doth not appear that the tender was made at his house but apud Landone which might be a mile from the house and so because it was his own fault the Action will not lie as this Case is by reason of the tender George Crook It was adjudged in a Cornish Case that an Action upon the Case lieth against a Parson which doth not take away his Tythe corn or hay because it spoyles the ground upon which it stands and because the partie cannot have the free use of his Land So in our Case he cannot have the free aâ—e of his house the cheeses cumbring his house and offending him with their smell Haughton Justice If the Action were well laid it would lie for the Cause but in this Case it is not well laid If any thing makes the Action to lie it is the damage which the Plaintiffe doth sustain by the cheeses being in his house but here it is laid to be tendred apud Landone and it is not said at his house and non constat how the
Iacobi in the Kings Bench. 430. OWFIELD against SHIERT A Writ of Error was brought to reverse a Judgment given in an Action of Debt The Action of Debt was upon a Concessit solvere c. pro diversis summis pecuniae and the opinion of the Court was That Debt doth not lie upon Concessit solvere pro diversis summis c. because it is incertainty But the same Term in another Case viz. Stacies Case That by Custom of London it was holden that Debt doth lie upon a Concessit solvere pro diversis summis And it was then said That in an Action upon the Case it was good to say That in consideration de diversis summis Concessit solvere and so it hath been adjudged Trin 21 Jacobi in the Kings Bench. HAWKSWITH and DAVIES Case Intratur 431. Pasch 19. Jur. Rot. 83. LEssee for years of divers parcels of Lands reservant Rent and for not payment a reentrie The Lessee assignes part of the Land to A. and other part to B. and keeps a part to himself afterwards the Lessee levies a Fine of all the Lands unto the use of the Conusee and his heirs afterwards the Lessee paies the Rent for the whole unto the Conusee and afterwards the Rent becomes behind and the Conusee enters for the Condition broken and made a Lease to the Plaintiffe who thereupon brought an Ejectione firme and all this matter was found by special Verdict and it was moved that by the assigning of the Lessee of part of the lands to one and part to another that the Condition was gone and destroyed but notwithstanding it was agreed by all the Justices that the Condition did remain and was not gone nor destroyed And they said that this Case was not like unto Winters Case in Dyer 308 309. where the Lessor did assigne over part of the Reversion to one and part unto another for that in that Case the Lessor by his own Act had destroyed the Condition but in this Case it is the Act of the Lessee and therefore no colour that the Condition be gone and destroyed And so it was resolved for the Plaintiffe and Judgment given accordingly Trin. 21 Jacobi in the Kings Bench. 432. KILLIGREW and HARPER'S Case HArper in consideration of 100l. doth assume and promise to Killigrew That the Lady Weston and her Son shall sell to Killigrew such Lands Proviso that Killigrew such a day certain pay to the said Lady and her Son 2000l At which time the Lady and her Son shall be ready to assure and convey to Killigrew the said lands And for want of payment of the said 2000l at the said day that Killigrew shall lose the said 100l. and that the Contract for the Land shall be void Killigrew brought an Action upon the Case sur Assumpsit against Harper and all this matter was found by special Verdict Athow Serjeant argued that the Action would lie because the Lady and her Son were to do the first act viz. to make the Assurance 22 H. 6. 57. Rent is reserved upon a Lease for years in which are divers Covenants and a Bond is given for the performance of all the Covenants within such Indenture of Lease the Rent is behind the Bond is not forfeited unlesse the Lessor doth make a demand of the Rent because the Lessor is to do the first act viz. to demand the Rent Yelverton contr ' That the Action will not lie The question is Of whose part is the breach The Assumpsit is grounded upon the Consideration and not upon the Promise The Jury find that Killigrew was not ready to pay the 2000l. and that the Lady and her Son were not ready to assure the land The Agreement was for which not time is expressed That the Lady and her Son should convey such lands Then the Agreement was That Killigrew should pay at such a day certain at which day the Lady should be ready c. and if Killigrew made default of the payment of the 2000l. then he was to lose the said 100l. which he gave to Harper to procure the Bargain and also that the Bargain should be void Ley Chief Justice If Killigrew had paid or tendred the 2000l. at the said day and the Lady and her Son had not been ready at that time to have assured the lands Killigrew should have had an Action upon the Case for the 100l. and recovered damages If the Lady had been to have done the first action then the Action would have been maintainable but in this Case Killigrew is to do the first act and therefore the Action will not lie Dodderidge If it had been indefinite then the Assurance and Conveyance is to be before the Payment but here the bargain is to pay the mony first Harper promiseth to Killigrew in consideration of 100l. that Killigrew shall buy such lands then comes the time of payment and assurance of the land at that time shall be made Proviso that if he do not pay the 2000l then Killigrew to lose the 100l. and the Contract to be void so there are two penalties so as of necessity the 2000l must first be paid for otherwise how can the Contract be void for not payment For if the Conveyance shall be first made then it was present before the mony paid and so the clause viz. Then the Contract to be void should be of no effect Haughton Justice agreed Chamberlain Justice You have bound your self with a penalty and the bargain ought to be performed as it was made And so being made that the mony should be first paid at which time the conveyance shall be made and for want of payment that Killigrew should lose the 100l. and also the Contract to be void The opinion of the whole Court was against the Plaintiffe that the Action would not lie and so Judgment was given Quod nihil capint per Billam Trin. 21 Jacobi in the Kings Bench. 433. Sir ARTHUR GORGE and Sir ROBERT LANE'S Case AN Action of Debt was brought upon a Bond for not performance of Covenants The Case was Lane did marry with the daughter of Gorge and in consideration of marriage and also of 3000l portion given in marriage by Gorge Lane did covenant That he within one year would make a Jointure of lands within England then of the value of 500l per annum over and above all Reprises to his said wife so as Sir Henry Yelverton and Sir John Walter Councellors at Law should devise and advise In Debt for the breach of these Covenants Lane pleaded That he did inform Gorge of lands which he was determined should be for her Jointure but neither Yelverton nor Walter did devise the Assurance Paul Crook did demur upon the Plea and first shewed That Lane did not give notice to Yelverton and Walter as he ought to have done by law For in this case it is not sufficient to give notice to Gorge but the notice ought to be to the Councellors otherwise how could
they devise the assurance for her jointure 2. Heer is no place named where the Notice was for it is issuable whether he gave Notice or not and then there being no certain place named no visne can be upon it 3. He doth not shew where the Lands are for it might be as in truth it was the Lands were out of England and by the Covenant they ought to be within England 4. He doth not shew that the Lands were of the value of 500l per annum over and above all Reprises as they ought to be by the Articles 5. He sheweth that they were his Freehold but doth not shew that the lands were his lands of Inheritance of which a Jointure might be made The opinion of the whole Court was that the Exceptions were good and that the Plea in bar was no good plea. Dodderidge If the word had been Such as his Councel shall devise then the Notice ought to have been given to the party himself and he is to inform his Councel of it 6 H. 7. 8. But here two Councellors were named in certain and therefore the Notice ought to be given to them for he hath appointed Councellors The whole Plea in bar is naught For if he hath an estate in tail then there ought to be a Fine in making of the Jointure and if there be a Remainder upon it then there ought to be a Recovery So because that Lane hath not informed the party what estate he had in the lands they could not make the Assurance Ley Chief Justice Where a man is bound to make such Assurance of lands as J. S. shall advise here he need not shew his Evidences but he ought to shew to the party what the land is and where it lieth and the Obligee is to seek out the estate at his peril And then J. S. may advise the Assurance conditionally viz. That if he hath Fee then to have such an assurance and if an Estate in tail then such an assurance and if there be a Remainder over then to devise a Recovery Curia All the Errors are material The Bail for Lane before any Judgment given against him brought Lane into Court and prayed that they might be discharged and Lane taken into custody Dodderidge Justice said There is a difference betwixt Manucaptors which are that the party shall appear at the day for there the Court will not excuse them to bring the party in Court before the day But in case of Bail there they may discharge themselves if they bring the body of the Defendant into Court at any time before the Retorn of the 2. Scire facias against the Defendant For when one goeth upon Bail it is intended that he notwithstanding that is in â—â—stodia Mariscalli For the Declarations are in custodia Mariscalli Marschalsiae Quod hota so is the difference Trin. 21 Jacobi in the Kings Bench. 434. WHEELER and APPLETON'S Case AN Action upon the Case was brought for these scandalous words viz. Thou hast stollen my Peece and I will charge thee with suspition of Felony Which were found for the Plaintiffe It was moved for the staying of Judgment That the Action was not maintainable For the Declaration is A Peece innuendo a Gun And here the innuendo doth not do its part for it might be a peece of an Oak or a 225. peece of Gold which is commonly called a Peece and in this Case the words may be intended such a Peece 17. Jacobi in the Kings Bench betwixt Palmer and Râ—ve Thou hast the Pox and one may turn his finger in the holes of his legs Adjudged that for these words the Action would lie because it cannot be meant otherwise then of the French pox 41 Eliz. in the Kings Bench the Defendant said of the Plaintiffe Thou art forsworn and thou hast hanged an honester man then thy self the Action did lie For the first words Thou art forsworn no Action will lie C. 4. part 15. but the later words prove that it was in course of Justice and that he was perjured So in this Case admitting that the first words will not bear an action yet the later words make them actionable For the first words ought to be meant of a thing which is Felony Heck's Case C. 4. part 15. there it was adjudged for the Plaintiffe although the first words would not bear action yet the later words make them actionable I will charge thee with suspition or flat Felony an Action doth not lie Hecks Case proves it Another Councellor argued that the Action would not lie The first words are not actionable For so many things as there are in the world so many peeces there may be and here it might be a peece of a thing which could not be Felony Betwixt Roberts and Hill 3 Jacobi in the Kings Bench it was adjudged Roberts hath stollen my wood the words were not actionable for it might be wood standing and then to cut and take it away it is not Felony but Trespass Ley Chief Justice I charge thee with flat Felony If the words be spoken privately to a man no Action lieth for them but if they be spoken before an Officer as a Constable or in a Court which hath conusance of such Pleas then the Action will lie for the party by reason of such words may come into trouble But if a man charge one with flat Felony and chargeth the Constable with him then an Action will not lie because it is in the ordinary course of Justice C. 4. part 14. If a man maketh a Bargain with another to pay him twenty Peeces for such a thing it shall be taken by common intendment twenty 22s. peeces of gold which vulgarly are called Peeces But to endite a man for 20 Peeces is not certain and therefore such Indictment is not good and the Action in our Case will not lie for my Peece is an incertain word Dodderidge Thou hast stollen my Peece What is that For we call 22s. in gold a Peece You ought to tell it in certain And here the innuendo will not make the scandal but the words of scandal ought to proceed out of the parties own mouth and an Innuendo cannot make that certain which was uncertain in the words of the speaker And therefore the Action here will not lie Haughton Justice If the whole matter had been set forth in the Declaration as to have shewed that the parties before this speech had had speeches of a Gun then the Action in this case would have been maintainable but here the word Peece is incertain and the Action will not lie Chamberlain Justice If the speeches had been concerning a Gun lost then upon these words spoken the Action would have lien but not as they are here spoken For the two words there ought to have been matter subsequent as upon the charging with Felony to have delivered him to an Officer And so by the whole Court it was adjudged Quod querens nihil capiat per
by prescription have used to have and dig clay there The first point is found for the Defendant and the last issue is found against the Defendant and damages are given generally All the question is upon the Declaration Coepit asportavit the clay which implies a propertie and interest in the clay to be to the Plaintiffe It is not said that the clay was carried over the land I conceive that the property of the clay is in issue and the Commoner hath nothing to do with that So damages being given to him for that which doth not belong unto him I hold the Judgment to be Erroneous and that it ought to be reversed Dodderidge The Declaration is well enough and of necessity it cannot be otherwise Here the Plaintiffe challengeth nothing but Common In an Action upon the Case there ought to be injurie and damage which is the consequent upon injurie For an Action upon the Case will not lie for an injurie without damage Here Bullen doth not complain for any thing but the loss of his Common which is the first wrong The second wrong is the digging of the pit in the which his cattel may fall and perish The third wrong is for carrying away of six loads of clay over the Common which is a great detriment to the Common to carrie it either by Carts or otherwise and for these three wrongs he concludes his damages ratione cujus he could not have his Common in as ample manner as before he was used to have it and he doth not conclude any damage for the clay Every one of these injuries doth increase the damages and so it would have been if he had left the clay to lie upon the land by the pit for thereby so much Common would have been lost Here he makes himself title only to the Common and these Acts do increase the damages only 2. E. 4. 7 E. 4. Where one was unlawfully and falsly imprisoned and being imprisoned compelled to levie a Fine or make a Feoffment or other Deed. In an Action of false Imprisonment the Jurie gave damages by reason of his restraint of his Liberty and increased them by reason of the levying of the Fine or making the Feoffment or other Deed which he then made The Jurie found that he is not to have any clay and coepit asportavit doth not alter the Case for that is a special Action of trespass And by three of the Justices against Haughton the Judgment given in the Court of Common Pleas was affirmed Trin. 21 Iacobi in the Kings Bench. 438. CAlthrope Councellor cited this Case to have been adjudged 25 Eliz. The husband seised in the right of his wife of Copyhold Land made a Lease for years and it was holden by the Court then That by the death of the husband the forfeiture of the Copyhold was purged and that the wife should have the land again notwithstanding this forfeiture by the husband by making a Lease for years without Licence And the Court seemed to allow of the said Case to be Law And afterwards this very Term the like Case came in question in this Court betwixt Severn and Smith where in an Ejectione firme a special Verdict found That a Copyholder seised in the right of his wife made a Lease for years and it was a question whether it were a forfeiture of the inheritance of the wife Hitcham Serjeant said it was no forfeiture Dodderidg Justice took this difference Where a Feme Sole is a Copyholder and she takes a husband who makes a lease for years without licence the same is a forfeiture because it is her folly to take such a husband as will forfeit her Land But where a Copyhold is granted to a Feme Covert and the husband maketh a Lease without Licence in such case it is no forfeiture and so in the Case of a Feme Lessee for life at the Common Law against Whitinghams Case C. 8. part 44. It was adjourned Trin. 21 Iacobi in the Kings Bench. 439. NOte It was the opinion of all the Justices and so declared That if the Plaintiffe in an Ejectione firme doth mistake his Declaration That the Defendant in such Case shall have his Costs of the Plaintiffe by reason of his unjust vexation Trin. 21 Iacobi in the Kings Bench. 440. FOur several men were joyntly Indicted for erecting and keeping of four several Inns in Bathe It was moved that the Indictment was insufficient because the offence of the one is not the offence of the other like unto the Case in Dyer 19. Where two joyn in an Action upon the Case for words 't is not good but they ought for to sever in their Actions because the wrong to the one is no wrong to the other Dodderidge Iustice One Indictment may comprehend several offences if they be particularly laid and then it is in Law several Indictments It may be intended that the Inns were lawfull Inns for it is not laid to be ad nocumentum and therefore not punishable but if they be an anoyance and inconvenient for the Inhabitants then the same ought particularly to appear otherwise it is a thing lawfull to erect an Inn. An Action upon the Case lyeth against an Inn-keeper who denies lodging to a Travailer for his money if he hath spare lodging because he hath subjected himself to keep a common Inn. And in an Action upon the Case against an Inn-keeper he needeth not to shew that he hath a Licence to keep the Inn. If an Inn-keeper taketh down his Signe and yet keepeth an Hosterie an Action upon the Case will lie against him if he do deny lodging unto a Travailer for his money but if he taketh down his Signe and giveth over the keeping of an Inn then he is discharged from giving lodging The Indictment in the principal case is not good for want of the words ad Nocumentum Haughton and Ley Iustices argreed Ley If an Indictment be for an Offence which the Court ex Officio ought to take notice to be ad Nocumentum there the Indictment being general ad Nocumentum contra Coronam dignitatem is sufficient without shewing in what it is ad Nocumentum But for Inns it is lawfull for to erect them if it be not ad Nocumentum c. and therefore in such Indictments it ought to be expressed that the erecting of them is ad Nocumentum c. and because in this Case there wants the words ad Nocumentum the Indictment was quashed Vi. The Lord North and Prat's Case before to this purpose Trin. 21 Iacobi in the Kings Bench. 441. BRIDGES and NICHOLS's Case THey were Indicted for the not repairing of such a Bridg and the Indictment was debent solent reparare pontem c. It was moved that the Indictment was insufficient because it is not alledged in the Indictment that the the Bridg was over a Water and no needfull that it be amended Secondly It did not appear in the Indictment that
house and then by his Will deviseth his houses called the Swan The rooms of the Lyon which A. occupied with the Swan shall pass by the Devise although of right those rooms do belong to the Lyon-house Pasc 36 Eliz. Ewer and Heydon's Case A man hath a house and divers lands in W. and also a house and lands in D. And by his Will he deviseth his house and all his lands in W. D. there the house which is in D. doth not pass for his intent and meaning plainly appears that his house in D. doth not pass But if he had devised all his lands in W. and had not spoken of the house the house had passed A Case was in the Common-Pleas betwixt Hyam and Baker The Devisor had two Farms and occupied parcel of one of the Farms with the other Farm and devised the Farm which he had in his possession The part of the other Farm which he occupied with it did pass with the Farm devised Dodderidge Justice The Devise is in the Case at Bar All his Farm called Locks to his eldest Son and all his Farm called Brocks to his younger Son And the Land in question was purchased long after that the Devisor purchased Brocks but that Land newly purchased was not expresly named in the Will and therefore it shall discend to the heir viz. the eldest Son Land is not parcel of a house and in strictness of Law cannot appertain to a house Yet Land is appertaining to the Office of the Fleet and the Rolls but that is to the Office which is in another nature then the Land is For the Land newly purchased the Jury did not find the same to be usually occupied with Brocks it shall not pass with Brocks although it be occupied together with Brocks I do occupie several Farms together and then I devise one of the Farms called D. and all the lands to the same belonging the other Farms shall not pass with it although they be occupied all together Haughton Justice What time will make lands to belong unto a house All the profits of the lands used with the house for a small time will serve the turn Ley Chief Justice There are two manner of belongings One belonging in course of Right and another belonging in case of Occupation To the first belonging there ought to be Prescription viz. time out of mind But in our Case Belonging doth borrow some sense from occupying for a year or a time And then another year to occupie it will not make it belonging in the later sense In strictness of Law Land cannot be said to belong to a house or land but in vulgar reputation it may be said belonging And in such case in case of grant the Land will not pass as appertaining to Land C. 4. part Terringham's Case But in our Case it is in case of a Will Usually occupied is not to be meant time out of mind Here other lands were belonging to Brocks and so the words of the Will are satisfied But it might have been a Question if there had been no other lands belonging to it Dodderidge Justice If the Devisor had turned all the profits thereof to Brocks then it had passed by the Will Ley Chief Justice This occupying of it promiscuously doth make it belong to neither At another day Ley Chief Justice said Here is nothing which makes it appear to us that this Land doth belong to Brocks For the Jury find not that it was occupied either with Brocks or Locks and so this Land belongs to neither of them Dodderidge There is not any Question in the Case It is not found that it doth belong And then we must not judge it belonging The ground of this question ariseth out of the matter of fact and it ought to be found at the least that it is appertaining in Reputation Haughton The Jury find that Knight was seised of Brocks and of lands belonging to it And that he was seised of Locks and of lands belonging to that And lastly they find that he was seised of this Land in question but they do not find that it was any wayes belonging to Brocks or Locks It was adjudged for the Plaintiff and that the Land did not pass by the Devise but that it did discend to the heir Trin. 21 Jacobi in the Kings Bench. 448. SELY against FLAYLE and FARTHING IN an Ejection Firme the Verdict was found for the Defendant Three of the Jurors had Sweet-meats in their pockets and those three were for the Plaintiffe untill they were searched and the Sweet-meats found with them and then they did agree with the other nine and gave their Verdict for the Defendant Haughton Justice It doth not appear that these Sweet-meats were provided for them by the Plaintiffe or Defendant and it doth not appear that the said three Jurors did eat of the Sweet-meats before the Verdict given And so I conceive there is not any cause to make void the Verdict given but the said three Jurors are fineable Dodderidge Justice Whether they eat or not they are fineable for the having of the Sweet-meats with them for it is a very great misdemeanour And now we cannot tell which of the Jurors the three were and because it was not moved before the Jurors departed from the Bar it is now too late to examine the Jurors for we do not know for which three to send for The nine drew the three which had the Sweet-meats to their opinions and therefore there is no cause to stay Judgment But if the three Jurors had drawn the nine other to them then there had been sufficient cause to have stayed the Judgment but as this case is there is no cause And therefore per Curiam Judgment was given for the Defendant according to the Verdict Trin. 21 Iacobi in the Kings Bench 449. NOte It was vouched by George Crook and so was also the opinion of the whole Court That by way of Agreement Tythes may pass for years without Deed but not by way of Lease without a Deed. But a Lease for one year may be of Tythes without Deed. Trin. 21 Iacobi in the Kings Bench. 450. THe Plaintiffe recovered in Debt in the Kings Bench and a Capias ad Satisfaciendum was awarded and immediately upon the awarding of the Capias the Defendant dyed Quaere if in such case an Action of Debt lieth against the special Bail The Executors having nothing a Scire-facias doth not lie against the Bail And in the Common-Pleas in that case the Court was divided two Judges being against the other two Judges Ideo quare Trin. 21 Jacobi in the Kings Bench. 451. LEONARD's Case IN a Scire facias to have Execution of a Recognizance the Case was That a special Supplicavit for the Peace was directed out of the Chancery to A. and B. Justices of the Peace and to the Sheriffe of the County of c. to take a Recognizance of L. M. N. for the Peace and good behaviour and the
Commission was to A. B. and the Sheriff cuilibet eorum The Supplicavit was delivered to the two Iustices who took a Recognizance from L. but M. N. could not be found The Sheriffe was afterwards out of his Office because his year of Sheriffwick expired The new Sheriffe made a Retorn That M. N. non sunt inventi in balliva mea And also Retorned That A. B. had taken a Recognizance of L. as appeareth per quandam schedulam huic annex in haec verba c. This Case was argued and 21 H. 7. 20. 21. vouched That if the Writ be first delivered to the Sheriffe then he only is for to execute the Writ and retorn the Supplicavit But if it be first delivered to the Iustices then they ought to execute it and retorn it 9 E. 4. 31. A Supplicavit is a Iudicial Writ and cannot be executed by a Deputy but a Ministerial Writ may be executed by a Deputy In this case the succeeding Sheriffe did retorn the Writ and it was not directed unto him And the same being delivered to the Chancellor whether the same should be a Record or not was the Question 4 H. 7. 17. Debt was brought upon an Obligation The Kings Serjeant prayed the Bond for the King because that the Plaintiffe was a person Outlawed Bryan Iustice You ought to bring a Writ of Detinue to recover the Bond which is a legal course for the King And so in this case here is no Record for the King because the Recognizance comes not in by a legal course viz. a lawful Retorn for it was retorned by the new Sheriffe and also by him who did not execute the Commission Heath said cleerly There was no Record for the King and vouched 21 H. 7. 20 21. Note the whole Case there 1. Where it is said In casu superiori ipse Justiciarius qui primo illud breve de Supplicavit recepit tota executione ejusdem Brevis tantummodo tenetur reliqui sociorum suorum tangent dictum Breve exonerentur Justiciarius hanc recipiens nomine suo proprio illud retornabit And in our Case it was directed to the Sheriffe and Iustices and being delivered to the Iustices the Sheriffe had not to do to make Certificate of it and in this case he is but as a private man This suit is a Scire facias to have Execution upon the said Recognizance A Dedimus potestatem is directed to two and one of them doth execute it the other cannot certifie it for the Execution of it ought to be upon his own knowledge A Record taken by one cannot be certified by another for if it be it is not any Record upon which a Scirefacias can be awarded In our Case the Justices made the Record and the Sheriffe did certifie it Ley Chief Justice When the Recognizance is put to writing or Notes of Remembrance taken of the Recognizance before the Commissioners it is immediately a Record One takes Notes of a Recognizance and dyeth He to whose hands the Notes come may certifie the same for it is a perfect Record by the taking of the Notes of Remembrance But that is to be understood when no Writ is directed to Commissioners but when a Justice takes is In our Case the Sheriffe may retorn the Writ ex officio and also retorn That executio istius brevis patet in quadam schedula annexa And it doth not appear but that the now Sheriffe was at the Execution of this Commission But admit that he was not yet now the Writ being retorned into the Chancery your pleading and taking issue upon another matter hath made it a good Record And therefore I hold that the Judgment ought to be given for the King according to the Verdict Haughton Justice Judgment cannot be for King If the Record doth not come duly into the Chancery according to course of Law it is not any Record upon which there can be any Procution If a Judge take a Fine and dyeth before it be certified a Certiorari ought to be directed to the Executors of the Judge v. 2 H. 7. 10. but the Certiorari ought not to be to a stranger If two Iustices of Peace have Commission to take a Recognizance and one of them taketh it and dyeth the Certiorari must be to his Executors and not to the other Iustice In this Case the Record came into the Chancery by undue course The Commission was several Cuilibet eorum and those who took upon them the Execution thereof are now made Officers by the express words of the Writ and it is not so here retorned and therefore Iudgment ought to be against the King A Dedimus potestatem is directed to four to take a Fine of Lands in several Counties Two of them take it in one County and they certifie it and the two other take it in another County and they certifie it None of the Certificates are good Dodderidge Iustice Iudgment ought to be against the King There are two Questions in the Case 1. Whether the Sheriffe as this Case is may onely make the Retorn 2. Admitting that he cannot but the same being retorned and the Chancery accepting of it and sending it to this Court whether we can damn the Record 1. This is a special Recognizance upon the grievance of the party and by the Kings Commission they are made especial Iudges in this case And when the party who sues delivers the same to the two Justices the Sheriff cannot entermeddle therewith for then the Justices ought to retorn the Recognizance by vertue of that Commission 21 H. 7. 20 21. there the Case is direct in the point That they to whom the Writ is first delivered they only are to execute it and retorn it for they only have power by vertue of the special Commission The Writ was against three and two of them are not to be found The Sheriff cannot retorn Non sunt inventi for the two by force of this Commission and he is not to make his Retorn as a Minister or Officer to the other because the Writ is Judicial If a Challenge be to the Sheriff and Coroners and process is directed to Esliors they are to execute the process as particular Officers by vertue of the Writ and they are to retorn the same and not the Sheriff because their authority is by vertue of a special Writ To the 2. point it hath been said That the Record is in the Chancery and the partie hath pleaded to it to issue and it is now sent into this Court and now fault is found with it but not before Though all this be so yet we cannot accept of it here if it have not due proceedings If process be directed to the Coronors for Challenge to the Sheriff and then a new Sheriff is made against whom there is no cause of challenge yet the Coronors must execute and finish the process and not the new Sheriff for the Law will not endure that Offficers do
make a mingling of their Offices Vi. 13 E. 4 10 E. 3. By Hill and Herle For Trials out of the Chancery the Chancery and Kings Bench are but as one Court and if the Record come not in duely as it should the Court was never well seised of the Record Ley Chief Justice The coming of the Writ to the hands of one or two of the Commissioners shall not stay the Commission but the receipt of the one of them is the receit of them all having notice of it and the others may joyn with him to whom the Commission is delivered So it is in all cases every one of the Commissioners are interessed therein upon notice and not he only to whom the Commission is delivered If one Justice of peace taketh a Recognizance and dieth before it be certified the Certiorari shall be directed to the other Justice to certifie it if it come to his hands and he may retorn the Recognizance and it shall not be directed to the Executors of the Iustice who have not the Recognizance for the Certiorari is but the hand for the Court to receive it for otherwise the King might lose the benefit of the Recognizance And in our Case the Sheriff by a special Commission hath Authority to take the Recognizance and to retorn it upon Record One may do part of the Office as to make and take the Recognizance and the other may retorn it but one cannot execute a thing in part and another in another part the taking of the Recognizance by the two Justices doth exclude the Sheriff from medling with the taking or making of it but it doth not hinder him but that he may retorn it well enough and the Writ or Commission is general Vicecomiti which may extend as well to the new Sheriff as to the old Sheriff The Case was adjourned for by two Iudges the Supplicavit and Recognizance were not well retorned by the new Sheriff but Ley Chief Justice was against them Quaere Trin. 21 Iacobi in the Kings Bench. 452. RANDAL and HARVEY's Case THe Case was Harvey in consideration that Brown might go at large who was arrested at the suit of Randal gave his word that Brown should pay the money at such a day certain and for non-payment of the money Randal brought his Action against Harvey and being at issue upon the promise it was found for the Plaintiff Yelverton moved in arrest of Iudgment that the arrest of Brown was not warrantable by Law and that being the consideration the Promise was void and he said A man cannot make another his Attorney to arrest another man without Deed neither can the Sheriff give Warrant to his Baylie to arrest another without a Deed sealed And in the principal case Randal gave one a VVarrant to T. being an Attorney to demand receive and recover money from Brown but it did not appear by the Declaration that the VVarrant was by Deed in writing George Crook said that it was no Exception For be the Arrest lawfull or unlawfull yet he said the consideration was good Randal gave to his Attornie Authority to receive demand and recover thereby he gave him Authority to arrest Brown because the arrest is incident to the Recoverie 2 R. 2. Grants One grants to another all the Fish in his Pond he may fish with Nets For when he giveth the principal the incidents do follow VVhen Brown had yieldded himself to be lawfully arrested and then Harvey in consideration that Brown might go at liberty made the promise the same was good The Declaration was That Randal gave Authority to T. being an Attorney to receive deliver and recover the Debt by force of which Letter of Attorney T. did arrest Brown and so in the Declaration it is shewed that the Warrant was a Letter of Attorney Yelverton 34 H. 6. In Debt upon a Recoverie in the 5 Ports If a man will declare and set forth a thing in particular if he faileth in any thing it overthroweth his Action But if a man alledge generally a Recoverie in the 5 Ports then the same is good enough I agree the Case of 9 E. 4. Where a man gives leave to another to lay Pipes of Lead through his Lands that he may dig the ground to lay them there because it is incident to it And I agree the Case of 2 R. 2. for there the one thing cannot be done without the other viz. the Fish cannot be taken without Nets but in this Case the partie might have come by his money by Outlawrie and so there needed no arresting of the partie Ley Chief Justice If he had declared debito modo arrestatus it had been generally good and it must be intended that the Arrest was by vertue of a Letter of Attorney For he alledges that he gave him Authority to recover and then he shall have and use the means to recover as to arrest the partie or to outlaw him Haughton Justice Things incident and accessary may be comprehended in the principal as to dig for to mend the Pipe 9 E. 4. Because he grants him leave to lay them in the ground and so he may dig and justifie the same for the amending of the pipes If A. Licence B. to hunt in his Park and to kill a Deer yet B. cannot carry away the Deer for that is not incident to the thing granted In this case the Declaration is not good for he ought to set forth that the VVarrant was by Deed in writing and yet one may plead a Judgment generally quod debito modo he recovered and the same is good but here in this case he ought to set forth and shew the VVarrant and Authority by which he was arrested but not so in the case of pleading of a Judgment because there it doth refer to matter of Record Dodderidge Justice The promise was to free him from the arrest and if the arrest was unlawfull then there was no consideration and so by consequent the promise was void It ought to be shewed that Brown was lawfully arrest and if the arrest had been only matter of inducement and no cause of the Action then it had been sufficient to have said debito modo arrestatus but in this case the arrest it self is material and the Plaintiff hath shewed that the arrest was per debitum legis Cursum by vertue of a VVarrant of Attorney and it doth not appear but that it was a Letter of Attorney to deliver Seisin and so because the Plaintiff hath not shewed the arrest to be lawfull there was no good consideration whereupon to ground the promise and so no cause of Action Yelverton took another Exception viz. That the Plaintiff doth not shew that the arrest was per breve Regis or how it was Chamberlain Justice If the partie had brought an Action of false Imprisonment this Plea had not been good and in this case there appeareth to be no good consideration for it doth not appear that it was a
The want of a letter out of a word is out of the Statutes C. 8. part You should have alleadged some place The Statute of 21 Jacobi is not of any Venire facias which is misawarded generally but the Statute helpeth when there are two places and the visne ought to come from both places and the visne comes but from one place and when there is but one place and the visne comes from two places If Enfancie be to be tryed sc If he were at such a time within age it ought to be tryed by the Country This matter is collateral to the first Record and it is a new Record sc upon Error The whole Court was of opinion that it was out of the Statute and a Repleader was granted Whitlock Justice There is no Trial at all for there is no Venire facias at all Dodderidge Justice If the Defendant in Error plead an ill plea he shall replead But if in this Action he had alleadged a place of his Enfancie sc at Dale and the Venire facias had been of Sale there it had been good trial and there he should not replead for that he hath pleaded well but there he shall have a Venire facias de novo Pasch 3 Caroli in the Kings Bench. 470. DAY 's Case DAY was Indicted for erecting of a Cottage It was moved that the Indictment was insufficient for that the words of the Statute of 31 Eliz. cap. 7 are Shall willingly uphold maintain and continue And the Indictment is only That he continued and so wants the words voluntarily upheld according to the Statute 2. It did not appear in the Indictment that it was newly erected for it is only that he continued but not that he erected The Indictment was quashed because being a penal Law it was not pursued Pasch 3 Caroli in the Kings Bench. 471. MAN's Case MAN was Indicted That he fuit adhâ—â—c est a common Barrettor and no place is expressed where he was a Barrettor so as no trial can be Dodderidge Justice If he be a Barrettor in one place he is a Barrettor in all places The Indictment was Per quod he did stir up contentions Jurgia And no place alleadged where he did stir up Jurgia contentions And it was said that in that case the place was very material And so the Indictment was quashed for want of setting forth the place where he did stir up many Contentions Jurgia c. Pasch 3 Caroli in the Kings Bench. 472. GREEN and MOODY'S Case AN Action of Debt was brought for Rent and it was found for the Plaintiff Thyn Serjeant moved in arrest of Judgment and set forth the Case to be That a Lease was made for years to begin at Michaâ—lmaâ— after And the Plaintiff in the Action of Debt for the Rent did declare Virtuâ—e cujus the Lessee did enter and did not shew what day according to Cliffords Case 7 E. 6. Dyer 89. But the Court said It is said in this Case Virtute cujus dimissionis he did enter and was possessed and that must be intended at Michaelmas Alexander and Dyer's Case 33 Eliz. was resolved accordingly And Cliffords Case Dyer 89. is not virtute cujus dimissionis And the Court held a difference betwixt Debt and Ejectione firme Cliffords case was an Ejectione firme but here it is Debt Jones Justice If he did enter before Michaelmas yet Debt will lie for the Rent upon the privity of contract for the Lessee cannot destroy the contract unless he make a Feoffment It was adjudged for the Plaintiff Quaere If when the Lessor in the case which Jones put hath brought his action and recovered when the Lessee hath entred before the day If the Lessor shall put him out as a Disseisor by reason of the Recovery in the action of Debt in which he hath admitted him to be Lessee for years Or if the Lessor after he hath recovered in Debt dyeth whether his heir shall be estopped by the Record to say otherwise then that he is in by the Lease Or whether the Recovery in Debt hath purged the wrong Like unto the Case 14 H. 8. 12. by Carret If one entreth into my lands and claims 20 years therein and I suffer him to continue there and accept of the Rent and afterwards he committeth Waste I shall maintain an action of Waste and declare upon the special matter If one entreth into my Land claiming a Lease for years per Curiam he is a Disseisor and he cannot qualifie his own wrong Dyer 134. Traps case But Sir Henry Yelverton said That I may admit him to be Tenant for years if I accept of the Rent or bring Waste as Carret said 14 H. 4. But he hath not but for years in respect of his claim But I am concluded by acceptance of the Rent or by bringing of the action of Waste So here by the bringing of the action of Debt the Lessor is concluded But Quaere if it shall bind his heir It was conceived it shall because it is by Record the strongest conclusion that is Pasch 3 Caroli in the Kings Bench. 473. SMITH's Case A Lease for years was made of Lands in Middlesex and the Lessor brought Debt in London against the Assignee The opinion of the whole Court was that it was not well brought but the Action ought to have been brought in Midd. Jones Justice Debt for Rent upon the privity of Contract may be brought in another County but if it be brought upon the privity of Estate as by the Grantee of the Reversion or against the Assignee of the Lessee then it ought to be brought in the County where the Land is Quod nota Pasch 3 Caroli in the Kings Bench. 474. CREMER and TOOKLEY's Case AN action of Debt was brought for suing in the Court of Admiralty against the Statutes of 13 R. 2. cap. 5. 15 R. 2. cap. 3. whereby it is enacted That of manner of Contracts Pleas and Complaints arising within the body of the Counties as well by land as by water the Admiral shall in no wise have conusans And the Statute gives damages part to the party and part to the King And the Plaintiff in the action of Debt did declare That the Defendant Tookley did implead Cremer the Plaintiff in the Court of Admiralty And in his Declaration set forth That one Mullâ—beck was Master of a Ship c. and that the Contract was made in London And that Tookley the Defendant did force the Plaintiff to appear and prosecuted the suit upon the Contract in the Admiral Court And by special Verdict it was found That a Charter-party was made betwixt Mullibeck and Cremer at Dunkirk And that Tookley did prosecute Cremer in the Admiral Court by vertue of a Letter of Attorney and so that he as Attorney to Mullibeck did prosecute the suit there The Case was argued by Andrewes for the Plaintiff There are two points The first upon the Jurisdiction of the Admiralty the Contract
Deed which bears date beyond Sea that the Action will not lie 13 H. 4. 5 6. An Obligation bore date in France and was made according to the Law of France 6 R. 2 cap. 2. Where the Specialtie bears date there the Action shall be brought The first book that speaks of Deeds bearing date out of England 20 H. 6. 28 29. 20 E. 4. 1. 21 E 4. 72. You must suppose then That it was at a place in England and that is but a fiction of Law and you shall never make a man subject to the penalty of a Statute upon a fiction of Law C. 11. part 51. A Disseisor makes a Lease for life or years the Disseisee shall not not have an Action of Trespass vi armis against him because he comes in by title For this fiction of Law That the Frank-tenement hath always been in the Disseisee shall not have Relation to make him who comes in by title to be a Trespassor vi armis 18 H. 6. 23. A Reversion is expectant upon an estate for life and in the mean time betwixt the Grant and the Attornment the Lessee commits Waste yet although the Attornment relate to make the Grant good ab initio yet the Relation being a fiction of Law will not make the Lessee punishable for Waste Then in this our Case the Deed bears date beyond the Sea and then to make Dunkirk to be in England by a fiction in Law shall not be prejudicial to the Defendant Com. 369. The preamble of a Statute is the best Interpreter of the Statute In the Statute of 13 R. 2. the preamble saith Because the Admirals and their Deputies do hold their Sessions c. in prejudice of the King and of the Common-Law and in destruction of the common people c. But this Deed bearing date beyond the Sea is no prejudice to the King nor to his Franchises nor to his people to be sued in the Admiralty 32 H. 8. cap. 14. The suit within the Admiralty ought to concern Charter-partie and Fraighting of a Ship For by that Statute it was enacted That if any Merchant-stranger as Mullibeck was by long delaying and protracting of time As in our Case otherwise then was agreed between the said Merchants in or by the said Charter-partie c. shall have his remedy before the Admiral which Lord Admiral shall take such Order c. In our Case at Bar It was a Charter-partie made beyond Sea 2. It was for the freighting of a Ship 3. For the breach of it was the the suit in the Court of Admiralty But admit that this point be against me then for the second point I do conceive that he who is punishable by the Statutes must be Prosecutor which the Defendant is not for what he hath done he did by vertue of a Letter of Attorney and he did it in the name of another and it is the Act of the other C. 9. part 76. Combes Case If a man have power to do an Act by force of a Letter of Attorney it ought to be done in the name of him who gives the power 3 Ma. Dyer 132. If Surveyors have power to make Leases if they make the Leases in their own names it is not good but they ought to be made in his name who giveth the power 11 Eliz. Dyer 283 The Statute of R. 3. giveth power to Cestuy que use to make Leases and he makes a Letter of Attorney the Attorney must make the Leases in the name of Cestuy que use who hath the power by the Statute C 9. part 75. A Copyholder may surrender by Attorney because it is his own surrender Vi Perkins 196. 199. A Feoffment with a Letter of Attorney to the wife to make Livery is good but then the wife must make the Livery in the name of her husband Secondly in this Case at Barr the beginning and the prosecution of the Suit was altogether for the benefit of Mullibeck and so it appears by the Records of the Court and no notice is there taken of the Attorney but of the Master L. 5. E. 45. A Writ is directed to the Sheriff and the Under-Sheriff makes a false retorn the Sheriff shall be amerced and not the Under-Sheriff for the Law doth not take notice of him 7 Eliz. Dyer 239. The Customer himself and not his Deputie shall be charged And so in our Case Mullibeck being partie to the whole ought to be accounted the partie prosecuting within the words of the Statutes The Statute of 4 H. 7. cap. 27. is so as they pursue their claims within five years such prosecuting or pursuing ought to be by the partie himself C. 9. part 106. If one of his own head make claim it is not good claim for to avoid the Fine c. The Statute of 16â— R. â— cap. 5. of Premunire makes against me for there the Procurours Councellors Sollicitors Abettors and Attorneys are named by the express words of the Statute and there is an express provision against them But in our Case it is not so for if our Statute had intended to extend to Councellors Attornies c. it would have expresly named them There are divers exceptions which I take to the Verdict First There is variance in the place betwixt the Declaration and the special Verdict for the Declaration layeth the Contract to be made at Dunkirk in England and the special Verdict finds it to be made at Dunkirk extra partes transmarinas Secondly The Declaration is to take in Mariners and the special Verdict is to take in Men. Thirdly the Declaration is A Ship to be prepared and the Verdict is to be in readiness Fourthly The Statute of 15 R. 2. and 2 H. 4. gives the Action by way of VVrit and here it is by Bill 42 Ass 11. There one was taken in Execution and escaped and there a Bill was exhibited for the escape and it was holden because the Statute of West 2. gave a Writ of Debt it shall not be extended by equity to a Bill of Debt Com. 38. a. and Com. 36 37. Plats Case There the Judgment is given upon a Bill for an escape but Mr Plowden said that it seemed to divers a hard Case The Statute of â—8 Eliz. cap. 5. of Informers is in the negative viz. That none shall be admitted or received to pursue any person upon any penal Law but by way of Information or original Action and not otherwise Mich. 29 Eliz. in Clarks Case it was resolved that the Statute of 18 Eliz. was a penal Law and the partie must not be sued by Bill but as the Statute hath prescribed 27 H. 6. 5. There upon Premunire facias it was adjudged good by Bill but there the Action was not directed so precisely by the Statute viz. in what manner the partie should proceed There are no presidents that an Action of Debt hath been brought for pursuing in the Court of Admiralty but in such Case a Prohibition granted only
by vertue of the Act of 31 H. 8. A Feoffment in Fee is made unto the use of A. in Tail he hath the Use by the Statute of West â— cap. 1. Now when the Statute of 27 H. 8. cap. 10. came he hath the possession by force of that Act viz. of 27 H. 8. and not by force of the Statute of West 2. If the King be not in by the Statute of 3 H. 8. then he shall not have every of the Priviledges which the Act of 31 H. 8. giveth C. 2. part The Bishop of Canterburies Case The Colledg of Maidstone was Religious but not Ecclesiastical and it was adjudged that the Purchasors of the Lands of the said Colledg were not discharged from the payment of Tythes because the Colledg was not Ecclesiastical but Religious only and Religious and not Ecclesiastical came not to the King by the Statute of 31 H. 8. 18 Jacobi in the Common Pleas Wrights Case The Priory of Hatfield being of small value viz. not having Lands of the value of 200l per annum was dissolved by the Statute of 27 H. 8. and the Lands were not Tythe-free in the hands of the Purchasors because the Priory came not to the King by the Statute of 31 H. 8. and yet they were Tythe-free in the hands of the Prior himself The second point upon the Statute of 32 H. 8. The words are That the King shall have all Rights Interests and Priviledg as it was in the hands of the Abbots Priors c. It is objected To be free from payment of Tythes is a Priviledg I answer That neither Right Interest nor Priviledg do free him from the payment of Tythes First there is no discharge of Tythes by the word Interest in the Statute for that is plain Then the question is if the word Priveledg will discharge the Lands from the payment of Tythes and if that word would have sufficed to have discharged the Tythe what need was there of the special Clause to discharge Tythes The Statute of 27 H. 8. dissolves Chaunteries and there it is said That the King shall have and enjoy c. and there also all Priviledges are given then the Statute of 1 E. 6. came and gave all Chauntries to the King and there the word Priviledg was not in the Act yet by those words the Lands were not discharged from the payment of Tythes The Statute of 31 H. 8. is Conditions and Rights of Entrie yet there was another Act made to give Conditions to the King But admit that the King himself be discharged yet his Patentees are not discharged The Priviledg was personal and personal Priviledges are not transferrable 35 H. 6. 56. A Statute dissolveâ— the Templers and gives the Lands to the Hospitalers to hold by the same service as the Templers did which was Frankalmoign yet the Grantee held by Fealty for that Frankalmoign is a personal priviledg and cannot be transferred by general words The King it's true shall have the priviledg for he is a priviledged person for of his goods he shall not pay Tythes if he do not grant them over and the Grants prove That unless he had granted them he should have paid no Tythes The Statute of 31 H. 8. sayes All Conditions which the Abbots c. have yet untill the Statute of 32 H 8. no Purchasor could take advantage of a Condition Hill 44. Eliz. in the Common Pleas Rot. 1994. Spurlings Case The Purchasors of Lands of the Hospital of St Johns of Jerusalem were not priviledged from the payment of Tythes Pasch 8. Jacobi in the Common Pleas Vrry and Bowyers Case In a Prohibition it was holden by Cook and Nichols That the Purchasor of St Johns of Jerusalem should pay Tythes but Winch and Warburton cont 18 Jacobi in the Common Pleas All the Judges but Warburton held that the Purchasor should pay Tythes 10 Eliz. Dyer There it doth not appear whether they were of the Order of Templers or Cistertians The third point in this Case The Defendant doth make no title to the Discharge for he hath not averred that the Priory were Ecclesiastical persons If a man plead that A. is professed the Court cannot take notice of it that he is a dead person in Law But if he saith that he was of such an Order he ought to set forth of what Rule the Order is Secondly The manner of their discharge was when they did Till and sow their Lands propriis sumptibus manibus If they grub up Roots and make the Lands fit for Tillage but if their Tenants sow the Lands they shall pay Tythes for they had the priviledg in respect they should not be idle unless all these do concur they shall pay Tythes viz. plough sow reap and carrie the Corn. These Priviledges are to be taken stritly because they are to defeat the Church of her endowment and therefore in this Case the Defendant doth not well entitle himself to the Discharge unless he do shew that he did occupie the Land for one whole year before and that he did plow sow and â—eap the corn But he ought for to have shewed that such time he plâ—â—ed the Land such a time he sowed it and such a time he reaped the 〈◊〉 Otherwise the Court will intend that another man did plow and sow the land and that he only reaped it For if Lessee of the Hospital doth plow the Land and sow it and afterwards doth surrender to the Prior of the Hospital who reaps the same he shall pay Tythe of the same for the Priviledge was granted unto them who were Labourers And the Defendant perhaps might have the Lands to halfs that is to say to have half the Corn growing upon the Lands The pleading is not good When you plead two Bars each Bar must stand of it self and the surplusage of the one Bar shall not help the defect of the other Bar. The word Priviledge in the Act of 32 H. 8. doth not extend to Tythes If it doth yet the Purchasor shall not have the Priviledge Dodderidge Justice The Statute of 32 H. 8. was made because that those of S. Johns of Jerusalem said that they could not surrender their Hospital because they had a Supreme Head over them viz. their great Master the Pope Crawley Serjeant argued for Weston the Defendant The pleading was over-ruled to be good the last day the Case was argued We have well entitled our selves to the Discharge For we have pleaded that we had the occupation of the Lands for one whole year and that Weston the Defendant plowed sowed and reaped the Corn upon the lands at his own costs and charges And the Plaintiff hath not shewed that any other plowed sowed or reaped the same Our title is by prescription which is confessed This Society was erected in the time of King Henry the 1. and it continued untill 32 H. 8. 44 Eliz. in Spurlings case there were two reasons of the Judgment 1. There the Statute of 31 H. 8.
was not found and so the King was not entitled to rights and priviledges and by consequence so was not his Pattentee 2. It did not appear that the Councel of Lateran 15 Johannis did extend to these Orders which was said to have been created 17 E. 3. whereas indeed it was created in the time of Henry the 1. Regularly this priviledge is not transferrable for it is ratione Ordinis As when the King makes a Duke and gives to him possessions those possessions annexed to the Dukedom are not transferrable over but by special Act of Parliament 35 H. 6. 36. Moile There if there had been special words in the Act of Parliament it had been Frankalmoigne This Priviledge is transferred to the King by the Act of 32 H. 8. and that Statute requires no aid of Regular or Ecclesiastical persons Secondly the words are special And all other things of theirs This Case opposeth not the Bishop of Canterbury's Case C. 3 part For that refers to the Statute of 1 E. 6. which had not so large words The intent of an Act shall be taken largely and beneficially to inlarge the Kings possessions as the grants of the King shall be taken largely and beneficially for the King There is a difference betwixt this Statute of 32 H. 8. and the Statute of 27 H. 8. The copulative words of the Statute of 27 H. 8. are To have all Rights and Interests and Hereditaments C. 11. part 13. pro omnibus demandis c. there the demand shall extend to Temporal demand so All rights and Interest and Inheritance shall be construed All temporal rights c. But the Statute of 32 H. 8. is larger viz. Of what name and nature soever If by the words of the Statute of 31 H. 8. Priviledges Tythes had been given to the King without especial provision after made then what needed the special Clause after was the Objection which hath been made I answer The special Clause was necessary For in pleading otherwise he ought to have shewed what Priviledge and Discharge it was in particular and so the Clause was added for the case of pleading C. 9. part The Abbot of Strata Mercellos case there it is said That if a man plead to have such priviledges as such a one had he ought to shew in particular what those priviledges were But this provision in the Statute of 31 H. 8. was made for the benefit of pleading The Statute of 17 E. 2. which gave the Tythes to the Hospitalers give them by the word of Priviledges for they had their possessions as it were by a new purchase Cook Entries 450. there the Case much differs from this so then the general word Priviledges doth extend to Tythes 14 H. 8. 2. By a grant of All trees Apple-trees will not pass yet if it be of all trees cujuscunque generis naturae nominis aut qualitatis then they will pass C. 3. part 81. By grant of all goods Apparel will not pass Here are special words in the Statute cujuscunque naturae nominis c. Nominla sunt symboa rerum And then call them what you will they are given to the King and intended to be transferred to the King and so there needs no special provision for the discharge of the Tythes For to say that the Priory was of the Order of the Cistertians is sufficient Admit then that the King shall have the Tythes as I have argued he shall then his Pattentee shall have them It is a real discharge in the King and not a discharge in respect of his person only Priviledges of discharge may be transferred as well as Priviledges of profit Then the question further is Whether they of S. Johns of Jerusalem were Ecclesiastical They were Regular as appeareth by the Statute of 32 H. 8. for that saith that they shall be free from Obedience Trin. 8. Jacobi in the Common-Pleas Bowyers case Whore Cook Nichols Warburton and Winch did agree that they were Ecclesiastical Priests The Prior had Parsonages and none could have Parsonages but Ecclesiastical persons 3 E. 3. 11. They had Appropriations which could not be unto Lay-men 22 E. 4. 42. There a Writ of Annuity was brought against the Prior of S. Johns of Jerusalem and it was ruled there that he ought to be named Parson which proves that he was Ecclesiastical 26 H. 8. cap. 2. there it is said That he shall pay First-fruits as other Parsons which proves that he was Parson 42 E. 3. 22. there they are called Ecclesiastical 35 H. 6. 56. they were seised in the right of the Church Linwood lib. cap. 47. de Judiciis That they were Ecclesiastical It was objected that Knight-hood cannot be given to Ecclesiastical persons and they were Knights Popham once Chief Justice of this Court said That he had seen a Commission directed unto a Bishop to Knight all the Parsons within his Diocese and that was the cause that they were called Sir John Sir Thomas and so they continued to be called untill the Reign of Queen Elizabeth Jones and Dodderidge Justices They were Ecclesiastical persons although they were divided from the jurisdiction of the Bishop The Case was adjourned to be further argued Pasch 3 Caroli in the Kings Bench. 479. LANGLEY and STOTE's Case IN an Ejectione firme the Plaintiff declared of an Ejectment 26 Martii 23 Jacobi contra pacem dicti Domini Regis nunc which could not be because King James dyed the 27 of March and so it was not contra pacem Caroli Regis 8 H. 4. 21. An Appeal of Maheim was brought and the Plaintiff declared That he meyhemed in the time of the King that now is and the Writ did suppose the same to be in the time of King R. 2. And for that cause it was adjudged Quod nihil capiat per Breve Pasch 3 Caroli in the Kings Bench. 480. MUTLE and DOE's Case DEbt was brought upon a Bond aud the Plaintiff in his Declaration doth not say hic in Curio prolat It was holden by the Court That although it be in the election of the Defendant to demand Oyer of it yet the Plaintiff ought to shew it The Judgment also was entred Concessum est whereas it ought to have been Ideo consideratum est And for these causes the Judgment was reversed So was it adjudged also the same Term in this Court in Barret and Wheeler's Case Pasch 3 Caroli in the Kings Bench. 481. Serjeant HOSKIN's Case HE was Indicted for nor paving of the Kings high-way in the County of Middlesex in S. Johns street ante tenementaâ— sua And in the Indictment it was not shewed How he came chargeable to pay the same Nor was it shewed that he was seised of any house there nor that he dwelt there nor was it averred that he had any Tenement there The opinion of the Court was that the Indictment was incertain for it might be that his Lessee dwelt in the house and so the Lessee ought to have repaired it and
39 H. 6. 9. is ruled in the point there the Attachment is in his own hands there the other pleaded there was no debt It is there ruled that the debt is not traversable for if there be no debt then he shall have restitution in London upon the pledges It was objected That he is to swear his debt to be a true debt I answer It ought to be so intended and then if he lay a Custom to swear the Debt and we say we have sworn our Debt then we have pursued the Custom 3. It was objected that it is not shewed where the goods were whether within the jurisdiction of the City 4 E. 4. 36. there the place came not in question But in our Case we lay That the Custom is that the goods must be in London Old Entries 155 156. there it is not alleadged that the goods were within the City of London at the time of the Attachment If a Precept be awarded to the Officer who retorns that he hath not any thing within the City and upon the allegation of the Plaintiff that such a one hath goods of the Defendant in his hands was the Objection I answer If we have not proceeded well yet the Process is well enough for here is a Judgment against him in London then so long as the Judgment is in force against him he cannot have the goods 21 E. 4 23. b. It is a Rule That a stranger unto a plaint shall not be received to alleadge discontinuance in the process So the Sheriff shall not excuse himself upon an Escape that there was Error in the Judgment nor a privy shall not take advantage of it Ognels Case Trim. 31 Eliz. there lies no process of Capias by the Law upon a Recognisance but Extent or Levari facias Yet there a Capias was awarded and if the party taken escape the Sheriff shall not take advantage of the Erronious process So I desire Judgment for the Defendant And he took an Exception to the Declaration In Detinue if the Declaration be general it is good sc Licet sepius requisitu c. But here he shews that he delivered the Cloak to be redelivered upon Request and he doth not shew any particular Request but sayes generally Licet sepius requisitus Ward There is a difference betwixt Detinue and Action upon the Case For in an Action upon the Case he ought to shew a particular Request 26 H. 6. If I bail goods to redeliver upon request yet I may seise them without request Dodderidge Justice The reseisure of the goods is a Request in Law a Request with a witness a Request with effect and untill Request he hath just cause to keep them Jones Justice In Debt and Detinue the very bringing of the Action and demand of the Writ is a demand and request And if he appear at the first Summons then he excuses himself otherwise he shall be subject to damages but the Request ought not to be so precisely alleadged But if a collateral thing be to be done upon Request there to say sepius requisitus is not sufficient So if I sell a horse for 10â— to be paid upon Request there the Request must be precisely laid for it is parcel of the Contract And in Action upon the Case and upon Debt you must lay a Request Dodderidge Justice The Request is no part of the Debt for the Debt is presently due but if I make the Request to be part of the Contract there it is otherwise As if I deliver goods to redeliver to me there needeth no precise Request but if it be to redeliver upon Request there the Request ought to be alleadged for there the Request is part of the Contract The Case was adjourned till the next Term. Pasch 3 Caroli in the Kings Bench. 484. MOLE and CARTER'S Case IN an Action upon the Case upon an Assumpsit it was moved in arrest of Judgment That the Plaintiff declares that he was possessed of certain Goods viz. such c. at London And that in consideration of two shillings That the Defendant at London did promise to carrie the said Goods aboard such a Ship if the Plaintiff would deliver the Goods to him And he shewed that he did deliver the Goods to him and that he had not carried them aboard He shewed that he was possessed of the Goods but did not shew when or where he delivered the said Goods to the Defendant but said only deliberavit c. And then the Law saith that they were not delivered Jones Justice The same is but matter of Inducement to the promise and ought not to be shewed so precisely Pasch 3 Caroli in the Kings Bench. 485. FRYER and DEW'S Case DEW being sued prayed his Priviledg because he is a Commoner in Exeter Colledg in Oxford and brought Letters under the Seal of the Chancellor of Oxford certifying their Priviledg and he certifies that Dew is a Commoner as appeareth by the Certificate of Doctor Prideaux Rector of the said Colledg Whereas he ought to certifie that he is a Commoner upon his own knowledg and not upon the Certificate of another But afterwards Certificate was made of his own knowledg and then it was allowed as good The Declaration came in Hill 2 Caroli The Certificate bore date in the Vacation and he prayed his Priviledg this Easter Term. After Imparlance he comes too late to pray his Priviledg The Certificate is not that at the time of the Action brought he was a Commoner in Exeter Colledg but that now he is a Commoner And the Certificate bears date after the Action brought He ought to have said that at the time of the Action brought and now he is a Commoner in Exeter Colledg The Priviledg was allowed per Curiam Trin. 21 Jacobi in the Kings Bench. 486. TANFIELD and HIRON'S Case THe Plaintiff brought an Action upon the Case against the Defendant for delivering of a scandalous Writing to the Prince and in his Declaration he set forth what place he held in the Commonwealth and that the Defendant seeking to extenuate and draw the love and favour of the King Prince and Subjects from him did complain that the Plaintiff did much oppress the Inhabitants of Michel Tue in the County of Oxford and that he did cause Meerstones to be digged up which might be a cause of great contention amongst the Inhabitants of Tue. The Plaintiffe denyed the oppression alledged against him and the Defendant did justifie and said that I. S. being seised of the Mannor of Tue did demise certain Lands parcel thereof unto I. F. for eighty years who made a Lease of the same at Will and afterwards I. S. did Enfeoff Tanfield the Plaintiff of the said Mannor to whom the Tenants did attorn Tenants And the Defendant shewed That time out of mind the Inhabitants of the Town of Tue had Common in the Waste of the said Mannor and that a great part of the said Mannor was inclosed and the Meerstones removed
but doth not shew by whom And shewed that the Lands inclosed out of which the Inhabitants had their Common And said That there were divers other Grievances to the Inhabitants of Tue but did not shew by whom they were nor what they were and shewed that at a Parliament the Defendant did deliver such a Writing to the Prince as one of the Peers of Parliament supposing that the grievances were set upon the Inhabitants by the Plaintiff by reason the Plaintiff occupied the Lands so inclosed and for Reformation thereof that he delivered the Writing to the Prince Absque hoc that he did deliver it in any other manner And upon this Plea in Barr Tanfield the Plaintiff did demurr in Law Noy for the Plaintiff said That the Defendant complains of wrong and doth not shew any wrong to be done by Tanfield the Plaintiff It is a grievous scandal to deliver this Writing for it is a scandalous Writing and no Petition for therein he doth not desire any Reformation but complains generally Betwixt John Frisel and the Bishop of Norwich The Case touched in 21 E. 3. was That Frisel brought a Prohibition to The Bishop and the Bishop excommunicated him for the delivering of it unto him The Bishop was fined And there it is said As Reverence is due to the King so it is due to his Ministers Our Action is brought at the Common Law and not upon the Statute of R. 2. de scandalis magnatum M. 18 E. 3. Rot. 162. Thomas Badbrook sent a Letter to Ferris one of the Kings Councel the effect of which was That Scot Chief Justice of the Kings Bench and his Companions of the same Bench would not do a vain thing at the Command of the King yet because he sent such a Letter to the Kings Councel although he spake no ill yet because it might incense the King against the Judges he was punished for it might be a means to make the King against his Judges We are to see here if the Defendant hath made any good Justification If there were no wrong then there was no cause to complain Secondly If he had demeaned himself as he ought he ought to have had the wrong if there were any reformed and that he did not do 11 H. 4. 5 H. 7. A voice of Fame is a good cause for to Arrest a man of Felony but then some Felony ought to be committed 7 H. 4. 35. A certain person came and said to one that there were certain Oxen stoln and that he did suspect such a one who he arrested upon the suspition It is a good cause of Justification if any Oxen were stoln but if no Fellony was committed if one be arrested upon suspicion that he hath committed Fellony it is not good If Fellony be done then a good cause to suspect him but if no Fellony be done nor he knoweth nor heareth of any Fellony committed there is no cause for to suspect that the partie hath committed Fellony but there ought to be suspition that the partie hath committed such a particular Fellony Where Fellony is committed certainly one may be arrested upon suspition but unless a Fellony be committed he cannot be arrested For where no Fellony is committed at all he shall not be drawn to a Tryal to clear himself of the suspition but if a Fellony be certainly committed and he be arrested upon the suspition there he being forced to answer to the Fellony he may clear and purge himself of the infamy upon his tryal and so the infamy is not permanent as in case when no Fellony is committed for there he may bring his Action upon the Case Here he saith that parcel of the Waste is inclosed and doth not shew what parcel so as no certain issue can be taken upon it Moor and Hawkins Case in an Ejectione firme It was alledged that he entred into parcel of the Land and the Land was alledged to lie in two several Towns and it was not good because no certain issue could be thereupon He saith the same was inclosed but doth not shew by whom it was inclosed viz. whether by the Feoffor or Tanfield the Feoffee he complains of many grievances but doth not shew what they are and he ought not to be his own Judge Secondly He hath not demeaned himself as he ought for he hath not desired in the Letter any Reformation but only he complains of the oppression of Tanfield He ought to have directed the Writing unto the Parliament and he directed the same unto the Prince by name In the Letter he doth not shew that Tanfield the Plaintiff did oppress but that the Plaintiff was an oppressor but he doth not shew in what thing The Case was adjourned Trin. 21 Iacobi in the Kings Bench. 487. SCOT'S Case PRoborum legalium hominum is omitted in the Certificate of an Indictment by the Clark of the Sessions Curia If it had been in Trespass the omission of the said words had vitiated the Indictment but not in Case of Felony Quaere the reason Trin. 21 Iacobi in the Kings Bench. Intratur M. 19 Jac. Rot. 322. 488. CROUCH and HAYNE'S Case IN a Writ of Error the Record is removed out of the Common Pleas The Defendant pleads in nullo est Erratum and a Demurrer is joyned and the Defendant afterwards alledgeth Diminution of the Original 7 E. 4. 25. The Assignement of Errors is in lieu of the Declaration 4 E. 4. Error 44. After that in nullo est erratum is pleaded the Defendant shall not alledg Diminution for they are agreed before that that is the Record The Writ of Error was general and did not shew when the Judgment was when the Ejectment was what the Lands were and nothing is certain in the Writ of Error but the persons and the Action He shall not be concluded by the general retorn of the Record by the Chief Judg of the Common Pleas. Fitz. 25. a. C. 6. Entr. 231. The Record was removed and a Scire facias awarded ex recorde and Diminution was alledged for omitting of certain words yet the Retorn there was of the Record omnia ea tangentia Dyer 330. The Court certifie that the partie was not essoigned there then cannot be any Certificate of the Chief Justice to the contrary The Principal Case was An Original bore date in June 18 Jacobi and another Original in September 18 Jacobi and both were retornable S. Mich. And the Trespass was done after the first Original sued forth and before the later and both the Writs are in Court The question was upon which of the Originals the Judges should judge 4 E. 4. 26 27 28. There it is holden that the Judges ought not to suppose any Error 22 E. 4. 45 Error was brought to reverse a Judgment in a Writ of Dower And the Error assigned was That there was not any Issue joyned but because there was sufficient matter upon which the Judges might give their verdict therefore the Judgment was affirmed
Dodderige Justice the encroachment doth not make it to be no parcell of the Mannor Ley chief Justice it is not layed to be a Disseisin but an Encroachment and therefore it is not so strong as a Disseisin with a Discent but in Right it belongs to the Mannor Tenant in Tail makes a Feoffment to the use of himself and deviseth the Lands to A. the Devise doth prevent the Remitter Haughton Justice the Discent is Traversed The Father dieth seised and hath issue two Sons and that the Lands discended to him the other may say That the Land is borough English and that the Lands discend unto him Absque hoc that they discended to the Eldest Dodderidge Justice Regularly you shall not Traverse the Discent but by the dying seised but in this Case it ought to be of necessity sc â— in case of a Devise the Traverse must be of the Discent for here they cannot traverse the dying seised for if they traverse the dying seised then they overthrow their own Title sc the Devise but here in Case of a Will the partie shall traverse the Discent for he cannot say that it is true that the Lands did discend and that he Devised it c. The heir cannot traverse that which entitles him by Discent but here his Title is by the Devise and not as heir Finch Recorder the Devise is not of the four Foot for if we confess the dying seised of the four Foot which was holden in Capite then we should overthrow our own Devise The Office finds that he died seised of the whole and therefore of the four foot He being never seised we traverse the dying seised thereof and we deny that he ever had it so the Traverse is good without making of us any Title unto it for we desire not to have it Dodderidge Justice If a man deviseth to his heir it is a void Devise for the discent shall be preferred But if one hath Issue four daughters and he deviseth to one of them it is good for the whole Land so devised to her and no part of the Land so devised shall discend to the other the Lands being holden in Socage Ley Chief Justice and the whole Court did agree That they might deny and traverse the four Foot if the Ancestor had no Title unto it and Judgment was given accordingly against the King quod nota Trin. 21 Jac. in the Kings Bench. 490. PAYNE and COLLEDGES Case AN Agreement was made between Payne and Colledg That if Payne being Chirurgion did Cure Colledg of a great Disease viz. A Noli me tangere That then he should have 10l and that if he did not cure him That then for his pains and endeavours Colledg would give him 5l In an Action upon the Case brought by Payne he doth not shew in his Declaration in what place he used his endeavour and Industry And there is a difference where the Plaintiff is to do any thing of Skill and Industry for there he may do the same at several times and in several places and so this Case differs from the Cases in our books 15 H. 6. Accord 1. is expresly in the point There the Defendant pleaded an Accord That if the Defendant by his Industry c. And exception was taken because that he did not shew a place 3 E. 4. 1. Debt brought by a Servant and declares that he was reteined by the predecessor of the Defendant c. and that he had performed his Service c. It was moved in Arrest of Judgment and Exception taken as in our Case because he did not shew where he did the Service for that is issuable and Denly there said That he need not shew the place because he might do it in several places Bridgeman Serjeant contrarie If the issue had been upon a Collateral matter it had been good enough but here the issue is taken upon an endeavour and you ought to alleadg a place for the tryal of it Dodderidge Justice The Jury was from the place where the Agreement was made the verdict will not make good the Declaration although the Jury have found the whole matter of fact for it doth not appear to us That that was the Jury which could try his endeavour The Case of 3 E. 4. of the Servant was to serve him seaven years and there he need not shew any place where he did his Service but only that he obeyed his Master in his Service for the seaven years If the Plaintiff in this Case had shewed but any one place of doing his endeavour in it had been sufficient but here he sheweth no place at all And therefore Judgment was given That Querens nihil Capiat per Billam Trin. 21 Jacobi in the Kings Bench. 491. The Lord ZOUCH and MOORES Case IN an Action of Trespass for cutting down of Trees in Odiham Park in Hampshire It was found by special Verdict That King Henry the eighth was seised of the Mannor and Park of Odiham And by his Letters Patents 33 of his Reign did grant unto Genny the Office of Stewardship of the said Mannor and the Office of Parkership of the said Park with reasonable Herbage and by the same Letters Patents did grant unto him the Mannor of Odiham cum pertinaciis and 100. Loads of Wood excepting the Park the Deer and the Wood for fifty years if he should so long live Then they found That after that Genny did surrender and restore the Letters Patents in the Chancery to be cancelled and that in truth they were cancelled and that the said Surrender was made to the intent to make a new Lease thereof unto Pawlet and that this Lease of 33 H. 8. being surrendred That King Henry the 8. Anno 36. of his Reign reciting the Letters Patents made to Genny to be dated anno 32 H. 8. whereas in truth they were dated 33 H. 8. and that they were surrendred and that the intent of the Surrender was to make a new Lease to Pawlet Did grant the same to Pawlet as before they were granted to Genny excepting as before They further found That King Philip and Queen Mary 5 6 of their Reigns being seised of the said Mannor and Park in jnro Coronae reciting that Henry the 8. anno 36 of his Reign had granted unto Paulet as before omitting the Proviso which was for 50 years if he should so long live and the Exceptions before And reciting that those Letters-Patents were surrendred ea intentione to make a new Lease in forma sequente They in consideration of good service and 200l paid did grant the Office as before and by those Letters-Patents did grant Herbage generally whereas the first Patent was reasonable Herbage And by these Letters-Patents did grant to him the Mannor cum pertinaciis except the grand trees and woods in the Park and Felons goods which were granted by the first Letters Patents for 50 years And here was a Rent reserved and a Proviso that for doing of Waste that the
Letters-Patents should be be void And there was no such Proviso in the first Letters-Patents 27 Eliz. Queen Elizabeth reciting the Letters-Patents of 5 6 Phil. Mary verbatim and truly did grant the Parkership unto Secretary Walsingham and Leased the Mannor unto him with the Appurtenances with power to take 100 loads of wood Excepting the Deer Habendum from the end of the Lease to Pawlet either by surrender or forfeiture for 21 years rendring rent and for not payment a Re-entry Walsingham granted the same to H. who granted to the same to Moor and others Defendants King James anno 1. of his Reign granted the said Mannor and the Offices of Stewardship and Parkership all by one Letters-Patents to the Lord Zouch who thereupon entred Moore entred upon him and cut down the Trees and the Lord Zouch brought the Action of Trespass Sir Henry Yelverton argued for the Plaintiff and said 1. The Lease made unto Pawlet 36 H. 8. is a void Lease in Law 2. The second Lease unto Pawlet made by King Philip and Queen Mary 5 6. is also void in Law 3. The Lease made by Queen Elizabeth to Walsingham anno 27 of her Reign is also void in Law And that the Lease made by King James is good in Law and the Action of Trespass brought by him will well lie The first Lease is void For it is granted upon a false suggestion made by Genny scil a supposed Surrender For the Lease which he did surrender did not bear date 32. but 33 H. 8. and the Surrender to the King was false for the Lease supposed to be surrendred by Genny beareth date 32 H. 8. whereas there was no such Lease made to Genny And therefore both being the suggestions of the party the King was deceived For what Lease Genny had the King could not know but by the suggestion of Genny and upon his information the King was contented to accept of a Surrender which was but a shew of a Surrender The King could not know with what Genny treated him but by his Information and in both the King was deceived For it was not the Kings intent to charge the lands but with one Lease C. 6. part The Lord Shandoe's Case The reason of the Judgment there proves our Case For there all which grew by the Information of the party was true and then the King made a wrong Collection thereupon but that which he collected was not upon the Information of the party And there it was agreed That if in any part the party had mis-informed the King that the whole had been void Dyer 35â— Lessee for 6â— years of the Queen made Lease for 80 years The 60 years expire the Assignee doth surrender unto the Queen his Lease for 80 years ea intentione that the Queen shall make unto him a new Lease for 20 years The Queen reciting that the said Lessee did surrender a Lease for 80 years did grant to him a Lease for 20 years The Lease for 20 years was adjudged void For he did surrender no Lease unto the Queen And there Dyer said That it is all one where the Consideration is false and where the Information is false there and here is but a shew of a surrender And it was not the Queens intent to pass more then she took by the Surrender Henry the 8. recites That Genny hath surrendred up the Patent which bore date 32 H 8. And there was not any such Patent Genny suggested that he had given up the Patent dated 32 H. 8. when he had not any such Patent So the King was deceived in the suggestion A difference hath been taken betwixt Consideration and Information Here the Consideration was Service and Two hundred pounds paid And it was objected That he took here by the Consideration and not by force of the Information But I say that the Information was the ground upon which the Patent was made For it was not the Kings intent to charge the lands with two leases C. 2. part 17. there it is cited That in a Patent of King Henry the 7. four Letters viz. H R. F. H. of the first words were left out intending afterwards propter honorem to be set out with gold but the great Seal was put to the Patent leaving out the said four letters and yet the Patent was adjudged good being referred to the Inrollment Privy-seal c. For thereby it appeareth that it was the grant of the King If Queen Elizabeth recite That whereas her Father made such a Lease and doth not recite it by the name of Henry the 8. her Father it is good enough if Henry the 8. made such a Lease But in such case if Henry the 7. made the Lease then the Lease of the Queen had not been good for that she mistook her Ancestor for Henry the 7. was her Grandfather 10 H. 7. 20. 20 H. 7. 7 8. The Kings Patent may be without Date for he may resort to the Inrolment and Privy-Seal and so help it But in such case if he doth surmise a false Date the same makes the Patent void 21 E. 4. 45. Misrecital of the year of the Reign of the King will make void a Patent And in our Case by the misrecital of the year of the King there is a year gained It was objected That it shall be helped by the Statute of 34 H. 8. which helps Mis-recital and Non-recital But in our case it is not a Mis-recital For Mis-recital is when part of that which is recited is true and part false but Non-recital is when nothing at all is recited But in our Case it is a false Recital of the subject in the thing which is surrendred Genny surrendred nothing and the King took nothing Trin. 9 Jacobi Roper and Roden's Cases Henry the 8. reciting by his Grant That where he had a Reversion expectant upon a Demise made unto M. whereas in truth it was made unto N He granted the Reversion unto Roden It was adjudged That that recital was not helped by the Statute of 34 H. 8. for that the King had not any such Reversion 19 Jacobi Tucker and Carr's Case was adjudged upon the same point Doddington's Case C. 2. part There a general Grant is not helped by the Statute of 34 H. 8. In our Case here is a mistaking of the thing it self If he had recited the same to be 33 H. 8. and then had mistaken any thing in it it had been helped by the Statute of 34 H. 8. Dyer 195. Kemp was Nonsuit there 32 H. 8. was mistaken for 33 H. 8. There the Surrender was of a Patent bearing date 32 H. 8. whereas in truth it bore date 33 H. 8. And there it is adjudged That the Patent of 32 H. 8. cannot be the Patent of 33 H. 8. by which the Office was granted to him And therefore it was adjudged void notwithstanding the Act of 34 H. 8. and other Statutes of Misrecital So in our Case 33 H. 8. is mistaken
taking be before the Action brought R. is excused We say That postea antè the purchasing of the Bill and I suppose we need not lay down any day but the postea antè makes it certain enough If the viz. be repugnant to our allegation it is surplusage 41. Eliz. in Communi Banco Bishops Case Trespass is brought for a Trespass supposed to be done 4. Maii 39. El. It is ruled in that Case That the videlicet doth not vitiate the premises because it is surplusage Trinit 34. El. in the Kings Bench Garford and Gray's Case In an Avowry it was shewed That such an Abbot surrendred 32. H. 8. and that the King was seised of the possessions of the said Abby and that postea scilicit 28. H. 8. the King did demise and that the same descended to King Ed. 6. there it was ruled that postea had been sufficient though he had not shewed the year of the demise of the King so here postea ante do expresse that he was taken before the Bill brought Dodderidge Justice If the day had been certain at the first and then he cometh and sueth that postea videlicet such a day and alledgeth another day which is wrong there the videlicet is not material but if the first day be uncertain then the videlicet ought to be at a certain day otherwise it is not good Curia If you had left out your time your videlicet it had been good for you must expresse a certain time for when the time is material it ought to be certain If you had layed down a certain day of the purchase of his Bill then the ante would have been well enough Dodderidge Justice If a thing is alledged to be done in the beginning of the Term quaere if that shall be intended the first day of the Term if you can make it appear that it must be intended of necessity of the first day of the Term then you say somewhat and then the videlicet is void and surplusage Judgement was given for the Plaintiff Pasch 3. Caroli in the Kings Bench. 498 DEAN and STEELE's Case AN Action upon the Case for words was brought for words spoken in the Court of Sudbury and it was layed That he did speak the words at Sudbury but did not say Infra jurisdictionem curiae 2. The Judgement in the Action upon the Case was capiatur And for these two Errors the Judgement was reversed Pasch 3. Caroli in the Kings Bench. 499 GOD and WINCHE's THIS Case was put by Serjeant Astley A Lease is made for life by Husband and Wife and the Covenants were That he should make such reasonable assurance as the Counsel of the Lessee should advise and the Counsel advised a Fine with warranty by the Husband and Wife with warranty against the Husband and his Heirs and the Defendant did refuse to make the assurance in an Action of Covenant brought it was moved That it was not a reasonable assurance to have a Fine with Warranty because the Warranty did trench to other Land But the Court did over-rule it and said That it is the ordinary course in every Fine to have a Warranty and the party may rebut the Warranty Pasch 3. Caroli in the Kings Bench. 500 IT was cited to be adjudged That if a man purchase the next avoidance of a Church with an intent to present his son and afterwards he doth present his son that it is Symony within the Statute of 31. Eliz. Ter. Mich. 4. Caroli in the King 's Bench. 501 HILL and FARLEY's Case IN Debt brought upon a Bond the Case was A man was bound in a Bond That he should perform observe and keep the Rule Order and finall end of the Councel of the Marches of Wales And in Debt brought upon the Bond the Defendant pleaded That the Councel of the Marches of Wales nullum fecerunt ordinem The Plaintiffe replied That Concilium fecerunt ordinem that the Defendant should pay unto the Plaintiffe an hundred pound The Defendant did demurre in Law upon the Replication And the only Question was If the Plaintiffe in his Replication ought to name those of the Councel of Wales who made the Award by their particular names Jermyn who argued for the Plaintiffe said That he ought not to name the Councellors by their proper names and therefore he said That if a man be bounden to perform the Order that the Privy Councel shall make or the Order which the Councel should make That in Debt upon the same Bond If the Defendant saith that he hath performed Consilium generally of the Councel without shewing the particular names of the Councellors it is good And he vouched 10. H. 7. 6. 10. E. 4. 15. and Com. 126. Sir Richard Buckleys case That the number of the Esliors ought not to be particularly shewed But in an Action brought upon the Statute of 23. H. 6. he may declare generally that he was chosen per majorem numerum and that is good And 10. E. 4. 15. In debt upon a Bond That the Defendant shall serve the Plaintiffe for a year in omnibus mandatis suis licitis The Defendant said That he did truely serve the Plaintiff untill such a day as he was discharged And it is there holden that he is not compellable to shew the certainty of the services Banks contrary and said That he ought to name the Councel by their particular names And therefore in this case he ought to have pleaded specially as in 9. E. 4. 24. If a man will plead a Divorce Deprivation or a Deraignment he ought to shew before what Judge the Divorce Deprivation or Deraignment was So 1. H. 7. 10. If a man will plead a Fine he must shew before what Judges the Fine was levied although they be Judges of Record And he took this difference That the Judges ought to take notice of the Jurisdiction of generall Courts which are Courts of Record and of the Customes of those Courts but of particular Courts which have but particular Jurisdictions and particular Customes the Judges are not to take notice of them nor of the Lawes and Customes of such Courts if they be not specially shewed unto them And therefore although it was alledged That it was the generall usage to plead Awards or Orders made before the Councel of the Marches of Wales as in the principall Case yet he held that the Judges were not to take notice thereof And therefore the Councellors who made the Order ought to be particularly named 2. He said that the Replication was not good because the Plaintiffe in his Replication doth not shew that the Order was made by the President and the Councel for by the Statute of 34. H. 8. it ought to be made by the President and the Councel 3. He said That the Replication was not good because the Plaintiffe doth not shew within the Record that the matter of which the Order was made was a matter which was within their
of his eldest son in tail and afterwards he married a wife and died that the wife should not be endowed for when he had limited the use to himself for his life he could not limit arâ— Remainder over And Edwards Case adjudged in the Court of Wards which was That there was Tenant for life the Remainder in tail he in the Remainder granted his Remainder to I. S. and his heirs and afterwards Tenant for life dyed and then the grantee dyed his heirs within age it was adjudged that the heir of the garntee should not be in ward because the Tenant in tail could not by his Grant grant a greater estate then for his own life But he said That in the principall Case it appeareth That the Tenant in tail in Remainder hath particularly recited his estate And where it appeareth in the Conveyance it self that he hath but an estate in tail a greater estate shall not passe As if Tenant for life granteth a Rent to one and his heirs the same at the first sight seems to be a good Rent in Fee but when it appeareth in the Conveyance that the grantor was but Tenant for life there upon the Construction of the Deed it self it cannot be intended that he granted a Fee but that an estate for life passed only in the Rent Secondly he argued That although the estate in tail in the principall case was an abeyance Yet a Common Recovery would barr such estate tail in abeyance And therewith agreeth C. 2. part Sr Hugh Cholmleys Case 3. He said That the estate was out of the King and vested in the party without any Offence found as 49. E. 3. Isabell Goodcheaps case A man devised houses in London holden of the King in tail and if the Donee dyed without Issue that the Lands should be sold by his Executors The devisee died without Issue The bargain and sale of the Lands by the Executor doth divert the estate out of the King without Petition or Monstrans de Droit So If there be Tenant in tail the Remainder in tail and Tenant in tail â—n Remainder levieth a fine of his Remainder to the King and afterwards dyeth without Issue the Kings estate is determined and there needs no Petition or Monstrans de Droit 4. He said That in the principall case nothing was in the King because it doth not appeare that there was any seisure or Offence found to entitle the King And the Tenant in tail in the Remainder died in the life of King James and then if the Kings estate were then determined as before by the death of the Tenant in taile the King which now is never had any title And hee said that he needed not to shew a greater title then he had And hee took a difference when Tenant in taile doth onely defend or make defence and when he makes title to Lands in the one Case he ought for to shew That the Tenant in taile died without issue and in the other Case not And therefore in the principall case he demanded Judgment for the Defendant The Case was adjourned to another day Mich. 4. Caroli in the Star-Chamber 511 TAILOR and TOWLIN's Case A Bill was preferred against the Defendant for a Conspiracy to Indict the plaintiff of a Rape And the Plaintiff aleadged in his Bill That an Indictment was preferred by the Defendant against the Plaintiff before the Justices of Assise and Nisi prius in the County of Suffolk And did not lay it in his Bill that the Indictment was preferred before the Justices of Oyer and Terminer and Gaole delivery and the same was holden by the Court to be a good Exception to the Bill for that the Justices of Assise and Nisi prius have not power to take Indictments But afterwards upon veiw of the Bill because the Conspiracy was the principall thing tryable and examinable in this Court and that was well layd in the Bill the Bill was retayned and the Court proceded to Sentence And in this Case Richardson Justice said That in Conspiracy the matter must bee layed to be falsè et malitiosè and if it be layed for a Rape It must be layd that there was recens persecutio of it otherwise it will argue a Consent And therefore because the Defendant did not preferre an Indictment of Rape in convenient time after the Rape supposed to be done but concealed the same for half a years time and then would have preferred a Bill of Indictment against the plaintiff for the same Rape he held that the Indictment was false and malitious And Hyde Chief Justice said That upon probable proof a man might accuse another before any Justice of Peace of an Offence and although his accusation be false yet the Accuser shall not be punished for it But where the Accusation is malitious and false it is otherwise and for such Accusation he shall be punished in this Court Trinit 8. Caroli in the King Bench. 513 JONES and BALLARD's Case AN Action upon the Case was brought for these words viz These Jones are proper Witnesses they will sweare any thing They care not what they say They have already forsworn themselves in the Chancery and the Lord keeper Committed them for it Jermyn took Exceptions because it was not said to be in the Court of Chancery nor that it was in any Deposition there taken upon Oath But it was adjudged per Curiam That the Action would lie and Jones Justice said that the Addition in the Chauncery was as much as if he had said he was perjured there And Hâ—msies case was vouâ—hed by him Where one said of a Witness presently after a Tryall at the Guild Hall in London You have now forsworn your self That it was adjudged that the words were actionable Trinit 8. Caroli in the Kings Bench. 513. SYMME's and SMITH's Case A Woman being entituled to copyhold Lands of the Manor of D did covenant upon reasonable request to be made unto her to surrender the Copy-hold Land according to the Custome of the Manor And it was found That the Custome of the Manor is That a surrender may be made either in person or by Letter of Atturney and that the plaintiff did request the woman to make the surrender by a Letter of Atturney which shee refused to do And whether shee ought to surrender presently or might first advise with her Councell was the Question It was argued for the plaintiff that shee ought to do it presently And Munser's Case C. 2. part and 16. Eliz. Dyer 337. Sir Anthonie Cooks Case were vouched that she was to do it at her perill And the Election in this Case was given to the Covenantee and hee might require it to be done either in Court in person or by Letter of Atturney And C. 2. part Sir Rowland Heywards Case and C. 5. part Hallings Case was vouched to that purpose Rolls contrary for the Defendant And he said That the woman was to have convenient time to do it and
adjourned Pasch 10. Caroli in the Kings Bench. 518 BARKER and TAYLOR's Case IN an Ejectione firme the Case upon the Evidence was this Two Coparceners Copy-holders in Possession the one did surrender his reversion in the moity after his death Charles Jones moved That nothing did passe because he had nothing in Reversion Vide C. 5. part Saffyns Case If a man surrendreth a Reversion the Possession shall not passe 2. It is not good after his death so was it adjudged in C. 2. part Buckler and Harvey's Case Curia The Surrender is void and the same is all one as well in the Case of Copy-hold as of Free-hold and so was it adjudged 26. El. in Plats Case and so also was it adjudged in this Court 3. Caroli in Simpsons Case Pasch 13. Caroli in the Kings Bench. 519 HUMFREYS and STUDFIELD's Case IN an Action upon the Case for words the Plaintiff did declare That he was Heir apparant to his Father and also to his younger Brother who had purchased Lands but had no Issue either Male or Female and that the Defendant with an intent to bring him in disgrace with his Father and also with his younger brother and thereby to make the Father and younger Brother to give away their lands from the Plaintiff did maliciously speak these words to the Plaintiff Thou art a Bastard which words were spoken in the presence of the Father and younger Brother by reason of speaking which words the Father and younger Brother did intend and afterwards did give their Lands from the Plaintiff And by the opinion of the whole Court it was adjudged That the words were Actionable and Judgement entred accordingly FINIS I have perused this Collection of Reports and think them fit to be printed Per me JOHANNEM GODBOLT Unum Justiciar ' de Banco 18. Jun. 1648. An Alphabetical TABLE A ABatement of Writs 9 34 64 By Death 66 68 For Surplusage 380 Abeyance 313 314 319 443 Accâ—ptance 47 39 384 385 425 When a man is bound to accept c. 39 Accessary 65 Accusation before a Justice 444 Acts which purge the wrong before 384 Act subsequent where lawfull 28 29 First Act 337 Action 337 Another Action hanging 258 In what County 42 See County there where it bears date 388 Possessory 34 Before Seisin c. Special 186 Accord see Arbitrament Account 30 43 56 90 291 155 122 123 210 As Baiâ—y ad Merchandizandum 58 Against Executors 291 292 Acquittal 19 Acquittance 104 Addition de Parochia 203 Administrator is found to be an Executor 26 Surety in debt is Administrator c. 149 Administrator counts of his own Possession before he be possessed 34 see 40 Retains for his own debt 217 Administration 33 34 2 Durante minori c. 30 Sues to Execution the Executor comes of age 104 Admiralty upon a stipulation or bill there the body of the stipulators who are for the most part Masters of ships and Merchants transeuntes may be taken no execution can be upon lands It s jurisdiction 260 261 Admiralty Court its jurisdiction things partly done on land 386 387 388 389 390 Advâ—wson 17 38 128 129 passes in Grants 425 Equity in Statutes 308 Agreement disagreement 180 After an arâ—est 360 After Assumpsit 361 Alien 275 Amendment 57 286 103 Amercement 49 135 Distress for it without Presentment 190 Annuity 4 144 Ancient Demesn pleaded 64 320 Appeal 275 Appendant Appurtenant 40 352 353 Apportionment of rent 95 118 139 Apprentices bound by Covenants though Infants 122 Appropriation 1â—4 Approvement of common 116 Arbitrement 13 241 25 276 165 185 in part good 256 Arreers 12 Array triers of it 429 430 Arrests 125 358 lawful 360 Assault and battery 251 Assent of parties 429 430 Assets 29 30 31 averred 176 Assignment 18 of Debts 81 c. Assignee 3 16 70 271 277 120 162 Assize 4 for erecting houses 189 Assurance as counsel shall advise 435 bound to assure 445 446 Assumpsit 13 31 274 72 73 94 159 the arrest is void 360 337 338 350 138 144 358 to the servant 361 Attachment of Debts by custome 297 196 401 402 403 404 Attainder 267 275 303 325 376 Attaint 271 378 279 Atturnment 19 25 320 142 Atturney for livery 39 Atturney must not do acts unlawful 387 what he may do 389 Receipt by him 217 Audita querela 257 104 155 377 Averment of uses 269 214 in a devise 131 432 that Cestuy que vie is alive 195 Avowry 24 302 320 upon whom 368 Authority must be persued 39 84 195 389 naked 307 to recover a debt without more 358 359 Ayde 318 B BAil 148 339 Debt against them 354 Bailment of Goods 160 403 Bankrupts one Commissioner hath right to the land 319 division where but one bond 195 196 Bargain and sale 270 156 Bar Pleas in Bar 253 434 Insufficient 138 two bars 397 Barretor 384 Bastard 275 281 Battery a base fellow strikes a man of dignity 207 Benches 246 247 Bill Suits by bill 389 Bill for oppression or extortion 438 By-Lawes 50 Bishops their Acts 342 Borough English 3 C CApias 39 257 83 372 373 Case Action of c. 13 40 54 55 58 64 240 241 73 285 98 155 160 381 412 liâ—s 329 330 338 344 346 137 176 200 362 426 against an Inn-keeper 42 See Slander Vi armis c. 426 Trover c. 267 274 Challenge 234 110 193 428 429 to the Sheriff and Coronets 357 Chancery 262 Chaplains 41 Charge 3 Charters 370 Things in point of Charter 93 Church-Wardens 279 Cessavit 84 Certainty incertainty 14 93 336 220 once in a deed 198 Certiorari Certificate 14 356 404 Citation out of the Diocess 190 Claim 333 389 of the Lessee 105 Clark of a Parish 163 Colledges are Corporations 394 Collusion Covin 78 298 Colour 159 Commission Commissioners 105 193 High Commissioners 58 Common 4 21 96 97 185 168 169 170 171 Surcharged 182 Digging in the Common c 343 344 making Coney Boroughs 327 Where woods are inclosed 267 What the Commoner may do upon the ground 123 12â— Conclusion by the word praetextu 344 Condition assignee 162 c. 3 9 29 38 39 75 99 101 against Law 250 void 293 Lessee assignes Rent 336 broken acceptance by rent after 47 performance 299 that neither A. B. or C. shall disturb c. 60 61 not to implead A. 72 to assure lands as Councel shall advise 338 339 360 Confession 80 to save harmlesse c. 134 Confirmation 25 Consideration 13 31 32 94 134 159 437 against Law 251 to forbear a debt 303 306 See assumpsit 428 Conspiracy 76 206 447 Consultation 446 447 Contract 31 98 176 intire 154 Continuance to some intents 309 in Courts 195 Contribution for one surety against another 243 Conviction before it lands not to be begged 206 nor seised there 365 366 Copy-hold 2 11 47 233 268 129 130 140 Admittance 269 143 extinguished 101 Statutes extend to it 15 369 tailed 20 21 367 Fines 265 Leases
Inrollment 7 270 142 Intent Intendment 130 121 381 Common 332 Interest not dividable 18 77 78 Interesse termini 2 3 175 Interruption 22 48 Joyning in action 43 283 90 116 160 345. Husband and Wife 10 Joint-charge 56. 57. Joint-tenants 129. Joinâ—ture forfeited by 11 H. 7. 6. 339. Issue lâ—giâ—tim are born after ten moneths c. 281. Issue not proved by the special matter 10. Of Issues see 23. 286. 92. 100. 108. 154. A thing in Issue not in the verdict 57. Mâ—â— joyned no issue 56. Several issues 57. Repugnant 62. Negative and affirmative 194. tried 233. Jury 334. their finding things 33. 34. 65. 274. 88. 171. 359. Examined sworn 209. Forein matter ibid. Strongly imply a thing 36. Three with Sweet-meats in their pockeâ—s 364. Returned 370. Judges sworn to procure the Kings profit 201. Judgment in a Writ of Error 27 66. in Account 258. Husband and wife 369 80. False 176. depending on another 176. staid 177. joint 448. voidable 96. entred Concessum est 399. Justification 277. 137. Jurisdiction of Courts 45. 240. 427. 163. 196. 197. shewing how 380 381. K. KIng usurped upon 7. 8. adhering to his enemies in France 34. To direct the lawes 237. his Prerogatives 290. 291. 292. 293. 294. 295. 296. 297. 298. 299. Prerogative-law Common-law 295. Lands once in the King 441. 442. devest without Office 443. Intrusion upon the King 133. Knights of S. Johns of Jerusalem 393. Lay 394. their possessions Ecclesiastick 393. 395. 396. 397. 398. 399. Templars 394. L. LAches in not entring the Kings silver 139. Laps 129. Lâ—w against the rule of the Common-law to meddle with blood 393. The Law preserves things in its custody 316. Not alterable by grant 201. Leases Term extinguished 2. 3. 5. 268. 129. on Continge â—ie rule 419. 420. Exception of timber-woods and underwoods 98 99. In certain beginning 24. 25. 166. may be avoided 323. 324. and revive 325. within 32 H. 8. 102. Joining to Lease 211. Lease for life by Copyholder 171. of an infant Copyholder 364. of a stock of sheep 113. windfals 117 118. by a Parson 302. by Tenant in tail 9. wants a beginning 419. Legacies for children security to be given 243. A verbal Legacie after the will made 246. 247. To be paid at full age 182. Suit for them 41. Liberty to cleanse a Water-course 98 Licence to erect Dove-cotes 259. 82. 93 93. Limitation by Law statute 5. Limitation of an Estate 19. 103. Of time for actions according to 21. Jac. 437. Livery 9. 25. 84. 93. 301. 158. Right extinguished by it 314. London insolency of the Common-Councel 106 107. Custome there 127. Lunatick M MAâ—hem 67 Maintenance 81 159. 450. hem Mannor 3. 135 Market 131. Marshaâ—sey Judgment there 184. Marriage 2 Is a Release 271. Master and Servants acts of and to the Servant 361 Mines 5. 28. Misnaming 35. 38. 283. Mirâ—cital 36. 170. in the Kings Grant 416 417. 420 421 422. of a Statute 178. Mistake of the day 125 126. of the date 433. Monasteries 1. 392 393. what houses within the Stat. 31 H. 8. there 394 Monstrance of Deeds c. 85. 111 112 114 115. How things are done 61. 126. Of the Place 187 188. 359. 412 413. time 391. Of Letters of Administration 34. Of a Bond must be 39. In what Ward c. 160. Of more then needs and that false 189. That the place is within the Jurisdiction c. that he ought to be priviledged c. 402. Inducement to a matter need not be showne precisely 404. Number and names to be shown 436. before whom c. 437. Monstrance of right 301. 304. Mortmain 192. Murder Manslaughter se defendendo 288 289. within the Stat. of King James 154. N NAme 17. in a Writ 40. 379. 398. Nihil dicit 135 Nisi prius 10. 328. Nomine poenae 12. 154. Non compos 302. 316. 321. Non obstante in the Kings Grants 37. Nonsuit 328. 220. Non use 235. No such Record See Record Notice 23. 162. 339 Nusance 4. 259. 58 59. 183. then when an Action upon the Case when an Assise of Nusance part of an house in Assise abated 233 O OAth putting to a mans Oath 151. Obligation the Condition against Law 13. see 152. 177. see 192. to save harmless 212. not within 13 Eliz. 29. by the High Commissioners 148. Bond to deliver Possession the Assignee of Reversion demands it 272. taken by the Sheriff 136. 212 213. to pay when out of his apprenticeship c. 153. Occupant occupancy 52 172. 220. Offices Officers 21. 47 48. Insufficient 390 391. Coroners 64 89. 105. Regarder 277. Steward of the Leet 71. Office found 312 313. 322. Rights vest without Office 325. void if in deceit of the King 192 Omission of word in a Certificate 407. Ordinarie 30. 191. Ordinances 253. 106 107. Over-sea 268 Outlawry 83. 119. Oyer of a Record not to be denied 186. P PAyment before the day 10 Parceners 3. 129 130. Parceney 3. Park-keeper for what things accountable 419 Forfeits 419. Parker forfeits not his Office by Attainder 418. Parks 237. 425. Chasing 169. beasts of it there 171. Pardon 378. Parliament Summoned at the Kings pleasure only 250. held at the Kings pleasure Writ of Error there must be the Kings Licence 247 by Petition 250 Parsons heretofore Knights 399 Parsonage 34 Partition 3 4. 265. 14 84 85 86. by word 94 Partners in Trade 244. 90. Patents 21. 37. Exposition of them 418. void 254 Perjury 88 89. 179. Perpetuity by devise 102. 350 351. Perquisite 27. Petition of Right 304. Place to be alleadged 48. 187 188 189. 382 384. Plaint entred 266. Pleas 6. 43. 91. 95 96. 145. 121. Certainty 93. in debt 359 360. Amount to a general issue 374. General where they should be specially 10. taken strictly 70. mistaken 121 not entred new Plea 176. Plwalitâ—es 23. 153. Portiâ—n of Tythes 35. Pâ—ssâ—ssion unity 4 Possibility 20. 25. may pass by a grant 26 146 325. Premunire 308 389. Praecipe 6 16. 87. 152. Preâ—ogative see King Presentation 265 179. as Precurator 319. Pâ—â—seâ—â—mentsâ—n â—n Courts c. 59. 〈◊〉 14 15 16. 262. 54 Rules of it there and 237. â—7 184. in a Court 48. one against another 183. Principal and accessory Prâ—vily 19. to sue 377. 379. Prviledg 10. 81. 286. 90 372. Priviledges not transferrable 396 397. of discharge 398. Pleaded 398. time to pray it 404. Probate of Wills Exception of the 23 H 8. 214. Proceedings of Law the form must be kept 201. Procedendo 442. Proclamation 107. Proces 73. Erronious 371. Judicial 328. A Summons for an Attachment 400. Proof 254. Profession trial of it 393. Prohibition 260. 259. 45. 51. 63. 216. 234. 243. 246. 273. 163. 164. 196. 200. 301. 446. 447. Promise 13. 32 271. 94. 134. 349. 350. 216. Property 26 27 117. 118. 193. Changed by tender 330. 331. in things 〈◊〉 naturae 123. Protection 299. 366. Proviso 18. gives power to lease 195. No proper place for it 418. Purchase by
Tenant for life and the administrator of Lessee for years where the term was to begin after death of Tenant for life 1 2. Two named as Joint-purchasers 180. Taking by purchase 363. Q. QVare impedit 263. Quae plura 191. Que estate 172. Quod ei deforceat 2. 448. Quo minus 291 296 297 Quo warranto 91 92 93. R. RApe the Indictment must be preferred in convenient time 444. Raâ—â—shment of Ward 14. 34. 426. Rebutter 310. by that which is sued to be reversed 379. Recognisance 142. Notes only taken 356. for good behaviour 22. 311. Recital of a Statute 86. of the particular estate c. 423. Recâ—rd 103. 356. No such record pleaded there 178. 373. Removed well or not 375. Brought from one Court to another 14. 249. Transcript in Parliament 247. see 328. Recovery common an invention of the Judges found out in Ed. 4 his time 308. All the rights barred 311. before inrolment of the bargain 218. Estoppes 147. by an Infant 161 Recovery in actions 6. Baâ—s 19. 134. Erronious 27. Rectory Glebe c. 35 Recusancie 148. Recusant convict his advowson 216. Relation 270. 313. 317 325. 140. 388. To avoid mean acts 312 Makes acts good before 376. Release of all actions 11. 12. of all his right ibid. where a Covenant is not broken ibid. 29. 30. 310. 220. with Warranty 158. Relief Remainder 19. 51. 52. 265 319. 220. Acts by him in remainder 9. good yet incertain 139. of a term 26. 316. Remitter 69. 312. 320. 326. Rent 3. 279. 146. 156. to cease during minority c. paid to one who has but a right for a time 156. to A. and his heirs for life of B. 172. the word 〈◊〉 449. Replevin 96. 124. 187. Replication 96 insufficient 138. Reputation 17. 353. Request 49. 274. 144. 40â— 438. in an action of the case upon promise 362. Resceit Rescuous 276. 126. Plea in it 91. Reservation 19. 283. 101. Husband leases his wifes Lease reserving rent 279. reservation to the wife 448 449. Restitution upon a Iudgment reversed 27. 376. Retraxit Retorn 217 265. 276. 82. 355. 357. 389. by Coroners one denies 439. general retorn of a Record 408. Reviving 4. of estates and rights 326. Revocation 133 289. Riot 146 438. Rights 301. 313. 314. forfeited 310. 322. 323. given away by conveyance 319. 320. see Livery Executor sels the land hath right c. 31. Robbery on Sunday no Hue and cry 280. S SAle 244. by Executors 77. in a market 160. 349. of goods taken by Pyrats 193. Satisfaction acknowledged 79. 80 Scire fac 79. 83. 155. 371. 379. Seats in a Church 200. sin to be shown 347. 121. Seigniâ—ry services 4â— 28. 38. Sheriffe collects Fines c. after a pardon 178. Simony 390. 202. 435. Slander 40. 43. 239. 241. 242. malitiously spoken there 152. 273. 278. 88. 284. 287. 88. 89. 90. 106. 147. 151. 157. 167. 327. 328. 304. 341. 181. 375. 391. 202. 214. Of a Physitian Lawyer c. 441. Forâ—sworn your self 444. 445. Calling one Bistard 451 Statute-Merch c. General Statutes particular Interests 168. a third person there Statutes 11 H 7. of Jointures forfeiâ—ed 6. 1 2. P and M. of Distresses 11. the Statute of Wiâ—â—es 38 H. exâ—ends not to Copyholds 15 34 H. 8. of Mistakes 416. 32 of H. 8 17. 32 H. 8. of Leases 102. 13 Eliz. of Covenants c. for enjoying spiritual Livings 29 2 M. concerning Preachers 245 4 H 7. Heir of Cestuy que use 79 2 West 1. of Feoffments there 5 Eliz. of Per jury 89 26. H. 8. of Estates tail forfeited for Treason 307 308 309. 27 H. 8. Statuâ—e of Fermors 145 22 E. 4 35 H. 8 of inclosure of Woods 167 Statutes extend not to Superiors unnamed 395 General Statutes bind insants 80 Some particular in 160 Some points 169 Construction where the King is concerned 308 Such Statutes are general 171 of Penal Statutes 315 Savings in Statutes 304. 324 Steward of a Mannor-Court 142 Surety in Debt 149 to pay the Condemnation c. 372 Suit for part 196. in Temporal and Spiritual Courts 447 Sumâ—oâ—s and Severance Sunday 280 Supersedâ—â—s 249 250 Supplicavit for the Peace 355 Surpâ—usâ—ge 248. 73. 434. Surrender 14 15 16. 52. 265. 268. 153. 425 Surrender to the use of A. for ever the Lord admits him in Fee 137 Surrender c. after his death 451 Suspension 4â—9 T TAil-Tenant his Acts Leases 9. 301 302. 308. 323. could not levie a Fine at the Common Law 300 Estate-Tail without the word Heirs 19 Tenant grants Rent acknowledges a Statute 442 Tenant in Tail the remainder in Tail to another who grants his Estate to the King c. 441. 543. tot Stat. suum 442 Forfeited for Treason 307 308 309 321 shewing that the Tenant died without issue 443 the Tenant cannot be barred to alien by common Recovery 351 Tales de circumstantib 204. tried 430 Tenant in common 2. 16. 282 283. 129. Two Lords Tenants in Common of a Waste 156 Tenant by Curtesie 15. 25 cannot grant his Right living his wife 323 In Dower see Dower In Tail after possibility c. at Will Leases c. 15 319. 364. Tender 39. 330 331 332 Tenure 20. 101 Things in action 12 in grols 38 Trade 25 254 Travers 24. 43 56 57 of a Debt 402. to an Office 410. of Discents 411. Rule 253. 111. of Seisin in Fee or the gift in Tail 427 Treason a Papist who after refussing to take the Oath of Allegiance spake these words It is lawfull for any man to kill the King c. 263 264. in the point of Allegiance none must serve the King with ifs and ands ibid. Forfeitures for Treason 322 323 324 a mad man may commit Treason 316 presumed in Law no man will commit Treason 325 Trespass 6. 16. 33. 133. 200. 270 271. barr 134 by one who has special property 173 for taking Conies 174 medling with the Soil 52 53 Pleas 55 Rule 53 Troâ—er 210 Trust not conveyed 64. joynt 77 78 Feoffment in trust 299 broken 432 Tryal 33. 257. 50 51. 196 197. 433 things done in a forrein Port 193 of things done beyond sea 76. 204. see Admiralty Tythes Lands discharged by the Statute 31 H. 8. L. 392. 211. 395 396 discharged by grant 273. 35. 44 45 50 51. 329 330 331. 333 Modus 63. the Parson to have all where 64 Prescription 60. 237 238. 120 after Tythes set out that the owner may carry away 30 sheafs 234 Substraction 245 Leased 333 by Deed 354 not 374 Modus after endowment 180. s 194 of lopping 175 The King to pay no Tythes priviledges of discharge to be taken strictly 396 397 398 V VAâ—iance 248. 88. 362 Valore maritagii 189 Writ of Error 249. 375 Venditioni exponâ—s 276 Venire facias 257. 251. 305. 328. 334 335. 381 382 203. 411 none 194 Verdict 126. 354 Vnperfect 27 incertain 36 special favoured 37 Villein presented to a Benefice by the Lord 179 Visâ—e 48. 54 335. 381 382 383 Void Acts and voidable 311. 318 319 161 Vou 307 Vsage 5 Vse 7. 265 Acts of Cestu que use 303. 306 307. 318 319 makes attorney to make livery 314 Tenant in tail cannot stand seised to an use expressed 269 Superstitious 233 Vsurpation 7 8. 263 W WAger of law 244 79 296 not for part 327 Waife Waining estates 79 100 Wales what Process runs into Wales 214 the Marches 243 President and Councel 437 Ward 79 320 Warreâ— 124 184 Warrant of Attorney 73 74 apparence by it 439 Warrant to receive mony c. 358 Warranting an horse sold 31 a Lease 48 Warranty 5 130 320 368 entring into it 152 Warrantia chartae 152. lies there Waste 5 28 52 70 114 115 116 117 118 132 164 209. When done must be shewn 347 Way drowned 52 Wills 15 construed 363 Witnesses 16 288 326 327 439 Woods underwoods 5 256 inclosed in Forrests according to Statutes 167 168 1â—9 190 171 Words for a grant 7 17 the word portio 35 36. successive 51 Ovile 274 89. omitted in a Writ 286 or 363 Writs not formal divertit for coarctavit 58 the true words not used 64 admitted good 87 demands in them 6 insufficient 347 Two originals 306 408 409 Trespas after the first purchased 407 409. of Right c. 239 Writ mistakes the time of one King for another 399 Of right of advowson 6 263 Writ untrue yet good 115 Writing scandalous words under pretence of a Petition delivered to the King 405. FINIS
in tail may have a Formedon against the Bishop But in our Case it is otherwise Tenant in tail maketh a Feoffment and takes back an estate unto himself in tail the remainder in Fee to his right heirs The Bishop in such case shall not have the land forfeited for Treason because that the Bishop cannot have the estate tail but in such case the King shall have the Land by the Statute of 26 H. 8. cap. 13. And the Bishop in such case shall not have the Fee because it is one estate and the King shall not wait upon the Subject viz the Bishop The Right waits upon the possession For 11 H. 7. 12. If the son and a stranger disseiseth the father and the father dyeth this right infuseth it self into the possession and changeth the possession And it is a Release in fact by the father to the son 9 H. 7. 25. Br ' Droit 57. A Disseisor dyeth seised and his heir enters and is disseised by A. The first Disseisee doth release unto A. all his right All the right is now in the second Disseisor viz. A. because the right and the possession meet together in A. 40 E. 3. 18. b. Tenant in tail makes a Lease for life with warranty If Tenant for life be impleaded by the heir to whom the warranty doth discend he shall rebut the right in tail being annexed with the possession for that is in case of a saving of the land by that right But where one demands land there all the Right ought to be shewed 11 H. 4 37. If a man be to bring an Action to recover then he ought to make a good title by his best right if he hath many rights But if a man be in possession and an Action be brought against him then he may defend himself by any of his rights or by all his rights 11 H. 7. 21. Tenant in tail maketh a Feoffment to his use upon Condition and afterwards upon his Recognisance the land is extended and afterwards the Condition is performed yet the interest of the Conusee shall not be avoided For although the Extent come upon the Fee and not upon the Tail yet when the Extent was it was extracted out of all the rights C. 7. part 41. A Tenant in tail makes a Lease for life now he hath gained a new Fee by wrong and afterwards he makes a Lease for years and Tenant for life dyeth He shall not avoid his Lease for years although he be in of another estate because he had a defeicible title and an ancient right the which if they were in several hands shall be good as the Lease of the one and the Confirmation of the other And being in one hand it shall be as much in Law as a saving of the Right In our Case the Right and Possession both were in Francis Bigot And Ratcliffe is entitled to the old estate tail and to the new also There is a difference betwixt him who claims the land so forfeited to the King and the heir of the body of the person attainted Littâ—719 Land is given to A and the issue males of his body the remainder to the heirs females of his body If the Father commit Treason both heir male and female are barred for they both claim by the Father but if the heir male after the death of his Father be attainted of Treason the King shall have the lands as long as he hath issue male of his body and then the heir female shall have the lands for she shall not forfeit them because she claimeth not by the brother but by the father Com. in Manxels case A man hath three several rights of estate tails and comes in as Vouchee If the Recovery pass it shall bar all his Rights for one Recompence and they shall be all bound by one possession There is a difference where the Kings title is by Conveyance of the party and where for forfeiture for Treason by this Statute of 26 H. 8. cap. 13. v. the Abbot of Colchesters Case The Abbot seised in the right of his house did commit Treason and made a Lease for years and then surrendred his house to the King after the Statute of 26 H. 8. The question was whether the King should avoid the Lease It was adjudged That the King was in by the surrender and should not avoid the Lease and not by the Statute of 26 H. 8. But if the King had had it by force of the Statute then the King should have avoided the Lease Com. 560. Tenant in tail the reversion to the King Tenant in tail maketh a Lease for years and is attainted of Treason The King shall avoid the Lease upon the construction of the Statute of 26 H. 8. which gives the lands unto the King for ever The third point is upon the Remitter This point had been argued by way of Admittance For as I have argued The ancient right is given away unto the King and then there is no ancient right and so no Remitter There is a difference where the issue in tail is forced to make a Title and where not In point of defence he is not so precisely forced to make his Title as he is in case of demand Whereas the Defendant demands the lands from the King the Discent will not help him because the Attaindor of the Ancestor of Ratcliffe hinders him in point of title to make a demand Dyer 332 b. In this case he ought to make himself heir of the body of Francis Bigot and Katharine C. 8. part 72. C. 9. part 139 140. There Cook couples the Case of Fine levied and the Case of Attaindor together C. 8. part 72. Land is given to husband and wife and to the heirs of their two bodies The husband alone levies a Fine with proclamations Or is attainted of Treason and dyeth The wife before Entry dyeth The issue is barred and the Conusee or King hath right unto the land because the issue cannot claim as heir to them both viz. father and mother for by the father he is barred 5 H. 7. 32 33. C. 9. part 140. Husband and wife Tenants in tail If one of them be attainted of Treason as it was in our Case the lands shall not discend to the issue because he cannot make title And there Cook puts the Case That if lands be given to an Alien and his wife they have a good estate tail and yet it is not discendable to the issue The Consequence then of all this is That if Ratcliffe cannot take advantage of the discent by reason of the disability by Attaindor à fortiori he shall not be remitted And yet I confess that in some Cases one may be remitted against the King Com. 488 489 553. But that is where the King is in by matter of Law by Conveyance but in this Case the King is in by an Act of Parliament and there shall be no Remitter against a matter of Record Another reason is because that
the possession is bound by the Judgment of Attaindor and the Act of Parliament 5 H. 7. 31. 7 H. 7. 15. 16 H. 7. 8. A discent of land shall not make a title against the King or any other who hath the land by an Act of Parliament But then in our Case If there should be a Remitter yet the same is overreached by the Office 〈◊〉 part 10. before the Statute of 33 H. 8. cap. 20. there ought to have been an Office found in the Case of Attaindor of Treason Br. Cases 103. Brook Office Devant c. 17. I do not mean an Office of intitling but an Office declaratory of a conspicuous title C. 5. part 52. There are two manner of Offices One which vesteth the estate and possession of the land c. in the King Another which is an Office of Instruction and that is when the estate of the land is lawfully in the King but the particularity thereof doth not appear upon record And the Office of Instruction shall relate to the time of the Attaindor not to make Queen Elizabeth in our Case in by discent but to avoid all meâ—ne Incombrances And is not this Remitter an Incombrance And for that purpose the Office shall relate For in things of Continuance Nullum tempus occurrit Regi C. 7. part 28. For so the rule of Nullum tempus c. is to be understood of a thing of Continuance and not a thing unica vice v. Fitz. Entre Congeable 53. Trav. 40. where it is said Where the King hath cause to seise for the forfeiture of Tenant for life if the Tenant for life dyeth the Reversion may enter for in that case Tempus occurrit Regi and the King cannot seize after the death of the Tenant for life 35 H. 6. 57. There is no discent against the King and if there be no discent then there is no Remitter The consequence of all this is That the Office doth relate to the Right And that the Monstrans de Droit doth not lie And the want of Office found for all this time was the fault of the Kings Officers and shall not prejudice the King But if the Office should not relate then the Monstrans de Droit would lie because then the King was in but by one single matter of Record We shew in the Office 33 Eliz. That there issued forth a Commission directed to certain of the Privy-Councel to enquire of the Treason and if Francis Bigot upon the Treason were Indicted And in our Case we shew immediately another Commission was directed to the Lord Chancellor and the two Chief Justices c. to arraign Francis Bigot And all that is confessed by Ratcliffe himself viz. modo forma And therefore the Objection which Glanvile made was frivolous viz. That it did not appear that Francis Bigot was attainted by Verdict by Confession or by Outlawry And so he concluded That for these causes the Judgment given in the Court of Common-Pleas ought to be reversed George Crook argued for Ratcliffe and he prayed that the Judgment might be affirmed I will argue only these points following 1. That Francis Bigot had not so much as a right of Action at the time of his Attaindor for he had not any right at all 2. Admit that he had a right of Action If this right of Action be given to the King by the said Statutes of 26 31 H. 8. It was objected That the right being clothed with a possession that the same is given to the King But I will prove the contrary 3. When Francis Bigot being Tenant in tail and being attainted and executed for Treason and then Katherine his wife dyeth being one of the Donees in tail 21 H. 8. and the lands discend to Ratcliff If the Office afterwards found shall relate to take away the Remitter I say it doth not but that his Remitter doth remain to maintain his Monstrans de Droit and he is not put to his Petition The chief point is What right Francis Bigot had at the time of his Attaindor 1. When Ralph Bigot being Tenant in tail 6 H. 8. made a Feoffment in Fee what right remained in Francis his Son The right is in abeyance viz. in nubibus that is in custodia Legis And then Francis Bigot had no right of that entail 21 H. 8. when he made the Feoffment Com. 487. There Jus is divided viz. Jus recuperandi Jus in randi Jus habendi Jus retinendi Jus percipiendi Jus possedendi but here Francis Bigot had not any of these rights Com. 374. if the Discontinuee of Tenant in tail levieth a Fine with proclamations and five years passe and Tenant in tail dyeth the issue in tail shall have other five years because he is the first to the right 19 H. 8. 7. C. 7. part 81. If Donee in tail maketh a Feoffment in Fee in rei veritate the Donee hath not jus in re neque ad rem C. 3. part 29. Litt. 649. There it appeareth that the right to an estate tail may be in abeyance Com. 552. Walsinghams Case There the King gave land in tail to Wyat who made a Feoffment unto Walsingham Afterwards Wyat was attainted of Treason and there the estate tail of Wyat was forfeited but the cause there was because that the reversion was in the Crown and so no discontinuance by his Feoffment because that the reversion was in the Crown In our Case no right of the estate tail was in Francis Bigot after the Feoffment unto his own use but the right is in abeyance It was objected That the Writ of Formedon is Discendit jus and the Monstrans de Droit was so I answer It is so in point of form in the Writ but not in substance C. 7. part 14. Tenant in tail makes a Lease for life and Tenant for life dyeth Now he hath an ancient right and the Donor may avow upon the Tenant in tail notwithstanding his Feoffment but that is by reason of privity and not by reason of any right he hath Jus recuperandi did discend to the issue in tail viz. Francis Bigot 21 H. 8. He who hath a right of Action giveth the same away by his Livery and Feoffment as appeareth by the Cases put in C. 1. part 111. It was objected That Cestuy que use was an Attorney or Servant therefore he doth not passe his own right for he cannot make an Attorney to make Livery and 9 H. 7. 26. was cited to be adjudged so But it is adjudged to the contrary M. 25 H. 8. in the Kings Bench rot 71. betwixt the Bishop of London and Kellet as it appeareth in Dyer 283. and Bendloe's Reports and C. 9. part 75. For there it is expresse that Cestuy que use may make a Letter of Attorney to make Livery which proves that he makes not the Feoffment as a Servant but as Owner of the Land It was objected That Cuesty que use was as an Executor but that I deny 49
and for these causes he prayed Judgment for the Defendant Observe Reader the Argument of Calthrope he doth not speak to the point where part of the thing or Contract is upon the Sea and part upon the Land as it was urged by Andrews who argued on the other side The Case was adjourned Pasch 3 Caroli rot 362. in the Kings Bench. 475. IT was cited to be adjudged That if a man purchase the next Avoidance of a Church with an intent to present his son and afterwards he present him that it is Symony within the Statute Pasch 3 Caroli in the Kings Bench. 476. SUTTON the Chancellor of Gloucester's Case IN the Case of Sutton who was Chancellor of Gloucester and put out of his place for insufficiency in the Ecclesiastical court Trotman moved for a Prohibition to the Spiritual Court and said that the Bishop had power to make his Chancellor and he only hath the Examination of him and the allowance of him as it is in the Case of a Parson who is presented to the Bishop and said that if his sufficiency should be afterwards reexamined it would be very perilous Doddridg Justice If an Office of Skill be granted to one for life who hath no skill to execute the Office the grant is void and he hath no Frank-tenement in it A Prohibition is for two causes First to give to us Jurisdiction of that which doth belong unto us And secondly when a thing is done against the Law and in breach of the Law then we use to grant a Prohibition Jones Justice Brook had a grant of the Office of a Herald at Arms for life and the Earl Marshal did suspend him from the execution of his Office because he was ignorant in his profession and full of Error contrary to the Records and it was the opinion of the Justices that because he was ignorant in such his Office of Skill that he had no Freehold in the Office In the Principall Case the Prohibition was denyed And afterwards Sutton was put out of his Office by Sentence in the Spiritual Court for his insufficiency Pasch 3 Caroli in the Kings Bench. 477. SYMM'S Case TWo men having speech together of John Symms and William Symms one of them said The Symmses make Half-crown peeces and John Symms did carrie a Cloak-bag full of clippings And whether the Action would lie was the Question because it was incertain in the person For he did not say these Symmses but The Symmses Like unto the Case where one Farrer being slain and certain persons being Defendants in the Star-Chumber one having speech of them said These Defendants did murder Farrer and it was adjudged that the Action would not lie for two causes First because the words These was uncertain in the person And secondly it was incertain in the thing For it might be that they had Authority to do it as in Mills Case 13 Jac. in the Kings Bench Thou hast Coyned Gold and art a Coyner of Gold Thirdly a Cloakbag of clippings that is also uncertain for it might be clippings of Wooll or other things or it might be clippings of Silver from the Goldsmith For the Goldsmith that maketh Plate maketh clippings And fourthly It is not shewed any certain time when the words were spoken And for these causes it was adjudged that the Action would not lie Pasch 3 Caroli in the Kings Bench. 478. WHITTIE and WESTON'S Case AN Action of Debt was brought upon the Statute of 2 E. 6. and the Plaintiff declared That at the time of the Action brought he was Parson of Merrel and that Weston the Defendant did occupie such Lands and sowed them with corn Anno 21 Jac. and that he did not fet forth his Tythe-corn c. The Defendant pleaded in barr of the Action That W. W. Prior of the Hospital of St John of Jerusalem was of the Order of Hospitalers c. and that he held the said Lands free from the payment of Tythes and that the Priory came by the Statute of 32. H. 8. to the King By vertue of which Statute the King was seised thereof and that the same descended to Queen Elizabeth who granted the Lands unto Weston to hold as amply as the late Prior held and that he was seised of the Lands by vertue of that grant Et propriis manibus suis excolebat Upon this Plea the Plaintiff did demurr in Law Noy argued for the Plantiff There are three points in the Case First If these Lands the possessions of the Hospitalers of St John which they held in their own hands were discharged of Tythes Secondly If there be any thing in the Statute of 32 H. 8. by which the Purchasor of the King should be discharged Thirdly Admitting that it shall be a discharge if the Defendant hath well entitled himself to such discharge or Priviledg First it is not within the Statute of 31 H. 8 cap. 13. for that Statute did not extend to the Order of St John Secondly the Statute of 31 H. 8. cap. 13. doth not discharge any but what was then dissolved Thirdly The Statute of 32 H. 8 cap. 24. gives the possessions of the Hospitalers of St Johns to the King and not the Statute of 31 H. 8. Note that the Defendant did recite the branch of the Statute of 31 H. 8. cap 13. That as well the King his heirs and successors as all and every such person and persons their heirs and assignes which have or hereafter shall have any Monasterie c. or other Religious or Ecclesiastical houses or places shall hold c according to their Estates and Titles discharged and acquitted of the payment of Tythes as freely and in as large and ample manner as the said Abbots c. had or used Also he recited the Statute of 32 H. 8. cap. 7 which Enacts that none shall pay Tythes who by Law Statute or Priviledg ought to be discharged The Statute of 31 H. 8. recites that divers Abbies c. and other Religious and Ecclesiastical houses and places have been granted and given up to the King The Statute enaâ—ts that the King shall have in possession for ever all such late Monasteries c. and other Religious houses and places c. And also enacts that the King shal have not only the said Monasteries c. but also all other Monasteries c. and all other Religious and Ecclesiastical houses which hereafter shall happen to be dissolved suppressed renounced relinquished forfeited given up or by any other means come to the King and shall be deemed adjudged vested by Authority of this present Parliament in the very actual possession and seisin of the King for ever in the state and condition they now be Vi. The Statute And shall have all priviledges c. in as ample manner and form as the late Abbots c. had held or occupied c. The Question then is Whether the men of the Hospital of St John at Jerusalem are intended to be within the