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
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
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
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
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
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
assigned over how not 34. H. 6. 30. Br. Maintenance 8. If J. S. be indebted to me and I be indebted to J. D. I may assign that Debt to J. D. with the assent of J. S. otherwise not as I conceive And there also another difference is taken That Damages which are to be recovered for Trespass Battery c. cannot be assigned over because they are as yet uncertain and perhaps the Assignee may be a man of great power who might procure a Jury to give him the greator Damages If a Bond be for performance of Covenants contained in an Indenture of Lease if he assign the Lease he may assign the Bond also because they are concomitants and he hath an Interest in the Lease and therefore he may sue the Bond But if the Covenants be first broken and afterwards he assign over the Lease if the Assgnee sue the Bond it is directly Maintenance but if he assign over the Lease and afterwards the Covenants are broken if he sue there it is no Maintenance But if he assign over the Bond and reserve the Lease in his own hands and then the Covenants are broken and the other sue the Bond for the performance of Covenants it is Maintenance And to all that Cook agreed The second Point An Elegit is awarded to the Sheriffe and he extends the Lands and doth not returne it Whether it be a lawfull Execution to the party or not is the question It is a good Execution unlesse the words of the Writ be conditionall for then there must be a returne of the Writ as a Fieri facias must be returned otherwise the Execution is not well done for it is conditionall viz. Ita quod habeas pecuniam in curia c. So is it of a Capias ad satisfaciendum Ita quod habeas corpus hîc But an Elegit is not conditionall Yet Kemp the Secondary said That in the end of the Elegit is Et de eo quod inde feceris nobis in dicta cancellaria tali die ubicunque tunc fuerit sub Sigillo distinctè apertè constare facias c. And so is the forme of the Writ in Fitz. Nat. Br. 266. Tanfield That is true but it doth not make the Writ conditionall but that is the Entry of the Court and the Sheriffe and not the Entry of the Party and the Sheriff 11. H. 4. 59. by Hankford who was a man of great knowledge and lived in learned times If the Recognisee of a Statute Merchant sueth Execution of it although the Writ be not returned and the Recognisee hath Execution and afterwards the Recognisor purchaseth other Lands and afterwards the Recognisee comes and saies That the Writ is not returned and sues forth another Writ the Recognisor shall have an Audita querela in that Case and shall surmise in Fact how that execution was done by the first Writ and yet there is no Record that execution was done by the first Writ So 19. E. 3. Briefe 370. A Writ issued to have Execution in forty Towns and an Extent was made and delivered of Lands in forty Towns and the Return made mention but of Execution in eight Towns and therefore the Party would have had a new Writ and the other Party was received to averre against the Record of the Returne that the Extent was in forty Towns 12. E. 3. Scire facias 117. Upon an Elegit the Sheriffe returned extendi feci and did not say deliberavi and in truth he did deliver the Lands in extent and therefore he could not have a new Execution 20. Eliz. betwixt Colsill and Hastings Colsill had an extent upon the Lands of Hastings and the Sheriffe being a friend to Hastings did not deliver full Possession to Colsill but gave him Possession in one part in the name of all the others Hastings continued Possession of all the rest and being upon Election of new Sheriffs Colsill was not over hasty to put him out for he was in hope to have a more favourable Sheriffe and the first Writ was not returned and there being a new Sheriff he sued forth a new Writ to have Execution The Defendant said That he had before sued forth the like Writ and had Execution And Colsill said That the first Writ was not returned and yet the Opinion of the whole Court was That it was a good Execution and so it was ruled but the Case was overthrown afterwards upon another Point So the Earle of Leicester had a Statute extended upon the Land of Mr. Tanfields Mother and it was not returned and yet when he would have sued forth another Execution he could not have it allowed him by the rule of the Court because the first Execution was a good Execution although it were not returned 15 Eliz. It was the Case of the Countesse of Derby who married the Earle of Kent in an Habere facias seisinam in a Writ of Dower Execution was served but not returned and therefore she prayed a new Writ but could not obtain it because the first was well executed although it was not returned So also was the Lord Morleyes Case in the Kings Bench in 28. Eliz. the Writ was not returned and yet the Execution was well done And therefore he concluded That the Execution was good although the Writ was not returned Cook contrary An Elegit ought to be returned and it is void if it be not returned As to the Case before cited of 19. E. 3. which began 9. E. 3. 450. And all the other Cases put out of the old Books They are upon extents of Statutes and there is a great difference betwixt an Elegit and Extents upon Statutes as 15. H. 7. 14. It was agreed That where a man recovers Debt or Damages or hath a Recognisance forfeit unto him his Executors shall not have Execution without a Scire facias first sued contrary upon a Statute Staple or Merchant and the like if the Defendant dieth the Plaintiffe shall not have an Execution by Fieri facias against his Executors but he must first have a Scire facias So if the Court change as if the Record cometh into the Kings Bench by Error and Judgement be affirmed the Plaintiffe who recovered shall not have a Fieri facias against the Defendant but must first have a Scire facias But otherwise it is of a Statute like the Case of 14. H. 7. 15. Br Execution 59. The Case of 12. E. 3. doth not speak of Elegit but of Statutes and Extents Also the Elegit and the Extent differ in the Entrie for the Elegit hath a speciall and precise Entry as Elegit sibi executionem c. And a man shall not have a Capias after an Elegit as 15. H. 7. is And being a speciall Entry of Record it ought to be returned for otherwise it doth not appear that Execution is done and so there shall be great mischiefe because infinite Executions may issue forth There is not any Book in the Law directly
the Person and to that purpose he cited 15 E. 4. 29. And he agreed the Case That if the Lord improve part of the Common that he shall not have common for the Residue because of the same Land newly improved for he cannot prescribe for that which is improved by 5. Ass 2. But here he doth prescribe not in the person or in or for a new thing but that the usage of the Towne hath been That the Inhabitants shall have common and that common is not appendent nor appertinent nor in grosse by Needham 37 H. 6. 34. b. Besides he said That if the house of a Freeholder who hath used to have such common fall down and he build it up again in another place of the Land that he shall have common as before And he put a difference betwixt the case of Estovers and this Case where a new Chimney is set up for that makes a new matter of charge and he much stood upon the manner of the Prescription Gaudy Serjeant contrary and he took Exception to the Prescription for he saith that it is antiqua villa and doth not say time out of mind and such is the Prescription in 15. E. 4. 29. a. and if it be not a Town time out of mind c. he cannot prescribe that he hath used time out of mind c. And he said That if it should be Law that every one who builds a new house should have common it should be prejudiciall to the Ancient Tenants or impaire the common And so one who hath but a little land might build 20 houses and so an infinite number and every house should have common which were not reason Anderson chief Justice He who builds a new house cannot prescribe in common for then a prescription might begin at this day which cannot be and he insisted upon the generall loss to the ancient Tenants Pâ—riam Justice If it should be Law that he should have common then the benefit of improvement which the Statute giveth to the Lord shall be taken away by this means by such new buildings which is not reason So as all the Justices were of opinion That he should not have common but Judgement was respited untill they had copies of the Record And Hillary Term following the Case was moved again and Anderson and Periam were of Opinion as they were before and for the same reasons But Windham Justice did incline to the contrary But they did all allow That he who new bulids an old Chimney shall have Estovers so a house common So if a house fall down and the Tenant build it up again in another place Periam If a man hath a Mill and a Watercourse time out of mind which he hath used to cleanse if the Mill fall down and he set up a new Mill he shall have the liberty to cleanse the Watercourse as he had before And that Terme Judgement was given for the Defendant to which Windham agreed Mich. 28 29. Eliz. in the Common Pleas. 111 IN a Replevin the parties were at Issue upon the Property and it was found for the Plaintiff and Damages intire were assessed and not for the taking by it self and for the value of the Cattell by themselves for the Judgement upon that is absolute and not conditionall and also if the Plaintiffe had the Cattell the Defendant might have given the same in Evidence to the Jury and then they would have assessed Damages accordingly viz. but for the taking Mich. 28 29. Eliz. in the Common Pleas. 112 A. bargaines with B. for twenty Loads of Wood and B. promises to deliver them at D. if he fail an Action upon the Case lieth But Periam Justice said That upon a simple contract for wood upon an implicative promise an Action upon the Case doth not lie Rodes Justice If by failer of performance the Plaintiff be damnified to such a sum this Action lieth Mich. 28 29 Eliz. in the Common Pleas. 113 A Lease of Lands is made excepting Timber-Woods and Under-woods And the question was Whether Trees Sparsim growing in Hedge rowes and Pastures did passe And difference was taken betwixt Timber-wood being one Wood and Timber Woods being severall Words although it bee Arbor dum crescit lignum dum crescere nescit yet in common speech that is said Timber which is fit to make Timber Then it was moved Who should have the Lops and Fruits of them and the Soile after the cutting of them downe and also the Soile after the Under Woods and as to that a difference was taken where the words are generally All woods and where they are his woods growing And in speaking of that case another case was moved viz. If a stranger cut down woods in a Forrest and there is no fraud or collusion betwixt him and the owner of the Land Whether the King should have them or the owner of the Soile And it was holden That the owner of the Soile should have them and yet the owner could not cut them downe but is to take them by the Livery of one appointed by the Statute Mich. 28 29. Eliz. in the Common Pleas. 114. A. makes a Lease of Lands to B. for ten years rendring rent And B. covenants to repaire c. Afterwards A. by his Will deviseth that B. shall have the Lands for thirty years after the ten years under the like Covenants as are comprised in the Lease Fenner moved it as a question If by the Devise those which were Covenants in the first Lease should be Conditions in the second for they cannot bee Covenants for want of a Deed And if they should not be Conditions the heir of the Lessor were without remedie if they were not performed A Devise for years paying ten pounds to a stranger is a Condition because the stranger hath no other remedy Gaudy Justice By the Devise to him to do such things as he was to do by the Lease makes it to be a Condition which was in a manner agreed by all the other Justices Yet Periam and Rodes Justices said That the first Lease was not defeisable for not performance of the Covenants nor was it the intent of the Devisor that the second should be so notwithstanding that his meaning was that he should do the same things Periam The Covenant is in the third person viz. Conventum Aggreatum est And see 28. H. 8. Dyer where the words Non licet to the Lessee to assigne make a Condition Mich. 28 29. Eliz. in the Common Pleas. 115. BARBER and TOPESFEILD'S Case A. being Tenant in taile of certain Lands exchanged the same with B. B. entred and being seised in Fee of other Lands devised severall parcels thereof to others and amongst the rest a particular estate unto his heir Proviso That he do not re-enter nor claim any of his other Lands in the destruction of his Will And if he do that then the estate in the Lands devised to him to cease A. dieth his issue entreth into the Lands in
No Action lieth for the slandering of one in a thing which is but malum prohibitum Periam The saying of Masse is Malum in se Puckering If I say to one That he hath eaten flesh on Fridayes an Action doth not lie for that Periam Is that like this Case Note the Declaration was uncertaine viz. The places where the Masses were said c. were not alledged nor the day when they were said c. And therefore Periam said that the Action did not lie for it might be that the Masses were celebrated in France or some other place out of the Kingdom And the Statute doth not appoint any penalty If they be not indicted thereof within the year and a day c. Mich. 28 29. Eliz. in the Common Pleas. 126 An Act of Common Councell according to the Custome of the City of London was By which it was Decreed That none should bring any Sand nor sell nor use any within the City or Suburbs of London but that only which was taken out of the River of Thames c. And that if any did the contrary that he should forfeit for the first fault five Pound and for the second fault Ten Pound to be recovered in an Action of Debt wherein no Essoine Protection or Wager of Law should be allowed And such a Plaint for the forfeiture of One hundred and twenty Pound was removed out of London into the Common Pleas by a Writ of Priviledge and it was debated amongst the Justices and Serjeants Whether the Plaint should be remanded or not Anderson Chief Justice Windham and Periam Justices did greatly speak against the said Act not only for the matter and substance of the Act but also for the forme of it 1. They were informed by Snagg Serjeant That the said Thames Sand was a great deal worse then the Land Sand and yet the price of the same was greater and the measure of it lesse For of the Thames Sand there were but eleven Bushels to make a Load and of the other Sand there were eighteen Bushels which he said was a very great Deceit and Mischief And 2. they said That is against reason that any Freeman should be so restrained from Merchandizing and selling And also it might concerne the Inheritances of some who might have Sand in their Lands Also the said Justices said That they were very presumptuous in making Acts so Parliament-like viz. That no Essoine Protection or Wager of Law should be allowed c. and that they did arrogate to themselves too high Authority And they stirred up the Plaintiffe at the next Parliament to exhibite a Bill against them for it and to sue them in the King's Bench for their presumption and insolency in that their dealing and said That it would shake their Liberties and grow to a greater matter then they thought or were aware of And thereupon Anderson cited the Case 22. H. 8. Where Sir Edward Knightly Executor of Sir William Spencer made certain Proclamations in certain Townes That Creditors coming in and proving their Debts that they should be paid and for that Presumption hee was committed to the Fleet and was fined Five hundred Marks And hee said That such were the Misdemeanors of Empson and Dudlâ—y Mich. 28 29. Eliz. in the Common Pleas. 127 BOXE and MOUNSLOWE'S Case THomas Boxe brought an Action upon the Case against John Mounslowe That the Defendant had slandred him in saying That the said Thomas Boxe is a Perjured Knave and that he would prove That he the said Thomas Boxe had forsworne himselfe in the Exchequer c. and supposed the said words to be spoken in London 4. Feb. 28. El. Et praedict ' John Mounslowe per Johannem Lutrich atturnat ' suum venit defendit vim injuriam quando c. Et dicit quod praedict ' Thomas Boxe actionem suam versus cum habere non debet quia dicit quod praedict ' Thomas Boxe being one of the Collectors of the Subsidies before the speaking of the said words viz. M. 27. and 28. Eliz. in Curia Scaccarii apud Westminst ' did exhibit a Bill against the said John Mounslow containing That the said John being assessed in ten pounds in goods The said Thomas Boxe came to him and demanded sixteen shillings eight pence which the said John Monuslow did refuse to pay c. And that demand and refusall was supposed to be in London in Breadstreet Et pro verificatione praemissorum ad tunc ibidem Sacrament ' corporale per Barones praefat ' Thomas Boxe praestito The said Thomas Boxe swore the said Bill in substance was true ubi revera the said John Mounslow did not refuse c. per quod the said John Mounslow postea viz. praedicto tempore quo c. dixit de praefato Thoma Boxe praedicta verba c. prout ei bene licuit The Plaintiffe replied that the Defendant spake the words de injuria sua propria absque Causa per praefat ' Johannem Mounslow superius allegata c. Et hoc petit quod inquiratur per Curiam praedict ' defendens similiter And a Venire facias was awarded to the Sheriffe of London and it was found for the Plaintiffe and damages four hundred pound And now it was moved in arrest of judgement that there was no good triall nor the issue well joyned for the issue doth consist upon two points tryable in severall Counties viz. the Oath which was in the Exchequer and that ought to have been tried in Middlesex and the matter which he affirmed by his oath to be viz. the demand and refusall to pay the Subsidie c. and that was alledged to be in London and therefore is there is to be tried And the issue viz. de injuria sua propria absque tali causa goeth to both for the ubi revera will not mend the case as Periam Justice said and both are materiall for the Defendant ought to prove that the Plaintiffe made such oath and also that the substance and matter of the oath was not true for otherwise the Plaintiffe cannot be proved perjured And therefore the Counties here if they might should have joyned in the triall And the opinion of the Court was against the Plaintiffe for Anderson and Windham said That if this issue could have been tried by any one of the Counties without the other It should be most properly and naturally tried in Middlesex where the oath was made for the perjury if any were was in the Exchequer But they said that the issue here was ill joyned because it did arise upon two points triable in severall Countries which could not joyne whereas the Plaintiffe might have taken issue upon one of them well enough for each of them did go to the whole and if any of them were found for the Plaintiffe that he had sufficient cause to recover Gaudy moved that it should be helped by the Statute of Jeofailes which speakes of mis-joyning of issues Anderson the issue
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
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
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
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
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
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
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
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
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.
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
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
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
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
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.
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
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
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
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
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
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
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
a Capias lay upon a force although it did not lie in case of Debt Agreement c. The King is Parens Legum because the Laws flowed from him he is Maritus Legum For the Law is as it were under Covert Baron he is Tutor Legum For he is to direct the Laws and they desire aid of him And he said that all the Land of the Kings Debtor are liable to his Debt The word Debitor is nomen equivocum and he is a Debtor who is any ways chargeable for Debt Damages Dutie Rent behind c. The Law amplifies evry thing which is for the Kings benefit or made for the King If the King releaseth all his Debts he releases only debts by Recognizance Judgment Obligation Specialtie or Contract Every thing for the benefit of the King shall be taken largely as every thing against the King shall be taken strictly and the reason why they shall be taken for his benefit is because the King cannot so nearly look to his particular because he 〈◊〉 intended to consider ardua regni pro bono publico The Prerogative Laws is not the Exchequer Law but is the Law of the Realm for the King as the Common Law is the Law of the Realm for the Subject The Kings Bench is a Court for the Pleas of the Crown The Common Pleas is for Pleas betwixt Subject and Subject and the Exchequer is the proper Court for the Kings Revenues 13. E. 4. 6. If the King hath a Rent-charge he by his Prerogative may distrein in any the Lands of the Tenant besides in the Lands charged with the Rent 44. E. 3. 15. although that the partie purchaseth the Lands after the Grant made to the King but then it is not for a Rent but as for a dutie to the King And the King in such case may take the Body Lands and Goods in Execution See the Lord Norths Case Dyer 161. where a man became Debtor to the King upon a simple Contract N. When he was Chancellor of the Augmentation received a Warrant from the Privy Councel testifying the pleasure of King E. 6. That whereas he had sold to R. c. That the said Chancellor should take Order and see the delivery of c. and should take Bond and Sureties for the King for the payment of the money By force of which Warrant he sent one T. his Clark to take a Bond of W. for the payment of the money and he took Bond for the King accordingly and brought the same to the Chancellor his Master and delivered the same to him to the Kings use and presently after he deliverd the same back to T. to deliver over to the Clark of the Court who had the charge of the keeping of all the Kings Bonds and Specialties And when T. had received the same back he practised with R. and W. to deliver them the Bond to be cancelled and so it was done and cancelled And it was holden in that Case because that the said Bond was once in the power and possession of N. that he was chargeable with the Debt But the Queen required the Debt of R. and W. who were able to satisfie the Queen for the same In Mildmay's Case cited before there it was holden That the Queen might take her Remedy either against the Parties who gave the insufficient Warrant or against Mildmay himself at her Election So a man he said shall be lyable for damages to the King for that is taken to be within the word Debita In Porters Case cited before there was neither Fraud Covin nor Negligence and yet the persons who presented Porter to the King to hold the Office were chargeable for his negligence whom they preferred to be Master of the Mint But in that Case The Bodie and goods of Porter were delivered to his Sureties as in Execution to repay them the monie which the King had levied of them These Cases prove that the word Debitor is taken in a large sence That the King shall have for the Debts due to him the Bodie Goods and Lands in Execution The word Goods doth extend to whatsoever he hath 11. H. 7. 26. The King shall have the Debt which is due to his Debtor upon a simple Contract and therein the Debtor of the Debtor shall not wage his Law For after you say that you sue for the King it is the Kings Debt and the King if he please may have Evecution of it An Ejectione firme was brought in the Exchequer by Garraway against R. T. upon an Ejectment of Lands in Wales and it was maintainable in the Exchequer as well as a Suit shall be maintainable here for an Intrusion upon Lands in Wales upon the King himself and the King shall have Execution of the thing and recover Damages as he shall in a Quo minus in satisfaction of a Debt which is due by his Debtor to the King 8. H. 5. 10. There the Kings Debtor could not have Quo minus in the Exchequer The Case there was That a man Indebted to the King was made Executor and by a Quo minus sued one in the Exchequer who was indebted unto his Testator upon a simple Contract as for his proper debt and the Quo minus would not lie because the King in that Case could not sue forth Execution and every Quo minus is the Kings Suit and is in the name of the King 38. Ass 20. A Prior Alien was arrear in Rent to the King The Prior brought a Quo minus in the Exchequer against a Parson for detaining of Tythes here is a variance of the Law and the Court for the Right of Tythes ought to be determined by the Ecclesiastical Law and it was found by Verdict for the Prior. A Serjeant moved That the Court had not jurisdiction of the Cause To whom it was answered that they had and ought to have Jurisdiction of it For that when a thing may turn to the advantage of the King and hasten his business that Court had Jurisdiction of it and divers times the said Court did hold jurisdiction in the like Case and thereupon issue was joyned there and the Reporter made a mirum of it But it seems the Reporter did not understand the Kings Prerogative For it is true That such Suit for Tythes doth not fall into the Jurisdiction of the Kings Bench or Common Pleas but in the Exchequer it is otherwise And if the Suit be by Quo minus it is the Kings Suit At a common persons Suit the Officer cannot break the house and enter but at the Kings Suit he may And a common person cannot enter into a Liberty but the King may if it be a common Liberty But for the most part when the King granteth any Liberty there is a clause of Exception in the Grant That when it shall turn to the prejudice of the King as it may do in a special Case there the King may enter the Liberty and a house is a Common Liberty and 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
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
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
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
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-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
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
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
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