the Iustices it should be a confirmation during the life of the Feme If Iudgement be given in an action at Common law the Chancellor cannot alter or meddle with the Iudgement given against him But he may proceed against the Person for a corrupt conscience because he took advantage of the Law against his conscience quod nota c. William Watsons Case AN action of Battery was brought against William Watson for battery committed by him insimul cum I. Watson And Iudgment was given against him and dammages and levyed and payed to the Plaintiff And after in another Action which was brought against I. Watson and he also was found guilty And Diggs moved in arrest of Iudgement for that that he had recoveted and had execution against W. Watson But by the Court Where several actions are brought against two for the same battery and a recovery is had against the one and an action is brought against the other and that found also The Court can never intend that to be the same Battery Because he may commit 20 Batteries in one day But if he may take any advantage of the first recovery it ought to be shewed in pleading But if there be but one Original against both and several Declarations produced when he hath recovered he hath dammages against the other But if he recover against the other before he had execution against the first Then he had his election to have whether dammages given against the first or the dammages given against the other And Coo. lib. 11.56 Heydons Case by Richardson is to the same effect Eve against Wright Eve brought a Replevin against Wright who was known as Bayliff to the Lord Peters For that the Lord Peters had a Court Léet within the Mannor of Writtle And that he distreined for an amerciament upon the Plaintiff at that Court Leet of the Lord c. And upon issue that he had not such a Léet The Iurors found that the Lord Peters at the time when c. had a Leet within the Mannor and that the Tenants ought to come to his Léet But also they found that the Warden and Fellows of New College in Oxford had a Rectory also within the Mannor of Writtle called the Roman fee And that they time out of mind c. had a Léet within that Rectory and that the Plaintiff is a Resiant within the Roman fee But whether upon the whole matter the Lord Peters had a Leet upon all the Resiants within the Mannor of Writtle they prayed the discretion of the Court in that And it was said by Richardson That the matter is found expresly for the Lord Peters And if the Court séemed to be agréed then he assess'd dammages and that Verdict was clearly for the Defendant And if the matter in Law might well come in question as the Iurors intend scilicet whether a Person will be compellable to two Léets yet Iudgement shall be given for the Lord Peters For it might be a general Leet of the Hundred or a special Leet within a Mannor within the Hundred As it is expresly 21 E. 3.34 And the Case of the Countess of Northumberland and Devonshire was in this Court before this time agreed Crook Iustice 18 Iac. Banc. Reg. One Cooks and Sables Case there was agreed to this purpose Though a man is not compellable to be attendant to two Leets although they be held at several daies Yet by that Custom they may be attendant Like to Walgraves Case which was adjudged in this Court That a Mannor may be held by Copy of another And that the Lord of a Copyhold-Mannor may grant Copyhold And this Iudgement was affirmed good in the Kings Bench in a Writ of Error For Custome hath abolisht that And the opinion of the Court was That he cannot be attendant on two Leets if they be held at several daies It was said by Richardson That the Lord of the Roman fee shall not be Subject to the Leet of the Lord Peters As appears by 21 E. 3.33 And Crook said That that Book was good Law For there when the party is amerced in the one Court he cannot be punished in the other Court for the same offence And afterwards Richadson and the whole Court said That he himself shall be subject to another Court for his resiance or otherwise he should be exempt from every Leet Humbletons Case MOre of this you have before Now they afterwards come and the Case was recited in some thing different from the former scilicet That there being such a Communication as afore the consideration was That Palmer having now brought an Action against him he should defend the said Sute in maintenance of their Tytle of Common and that immediatly after Iudgement given he should pay him half his costs or 40 l. Vpon which this Assumpsit is brought And the Issue was Whether he defended the Sute in maintenance of their Title of Common and it was found against the Defendant And by the whole Court the Plaintiff had well declared the consideration For the words are that he maintain the Title against Palmer for the promise was after the acttion brought And the Plaintiff is not to prescribe what Plea hee 'll plead but that he defend that Sute And then when Palmer is not owner of the Soyle as appears in the evidence in the Kings Bench. And so if a pretence to common fail he should be punisht for a Trespass where he ought not Palmer being an Introcer upon the King And every Commoner may break the Common if it be inclosed Although he does not put cattel in immediately But he may infriender by the other Commoners or his Tenents and his Title of Common only excuses him of the Trespass And also the Iury had found that it was in maintenance of the Title of Common expresly And so Iudgement was entred for the Plaintiff pleno consensu Dorothy Owen against Owen Price DOrothy Owen brought an action of the Case against Owen Price upon a trover of Conversion of one Load of Wheat and one other of Barley within the Rectory of Broody And upon not guilty the Iury found a special Verdict to this effect viz. Marmaduke Bishop of St. Davies seised of the Rectory of Broody and a Mannor parcell of the Bishoprick 3 August 27 El. makes a Lease of them being formerly demised to Anne-Davyes and the two Daughters P. and C. habendum a die datus for their lives successively viz. to A. and her Assigns for her life rendring the antient rent and afterwards the first of September 27 El. makes a Letter of Attorny to I. S. to enter in the Rectory and Mannor and there to deliver seisin secundam formam Cartae which he did accordingly The Lease is confirmed the Bishop dies and Wilburn his Successor accepts the rent of A. and without any entry makes a second Lease for two lives to the Defendant and he is translated Laude the next Successor before any acceptance makes another Lease for
was found for the Plaintiff And Atthowe moved in arrest of Iudgement First for that That in the Record it was entred that the Issue was inter praedict Robertum where it should have been Radulphum And secondly that the words were not actionable Richardson said as to the mistake it was helped by the word aforesaid And although that it was inter praedict Andrews it should have been well For it cannot be intended but the same Andrews And Crook Iustice cited Dyer 260. Cook and Watsons Case to be the same Case and 11 H. 7. Penningtons Case That the words were actionable For the Statute punishes forgery and the procurers of forgery And it is all one although he did not say falsly procured as the precise words of the Statute are Yet it shall be intended that that is implyed in the word Forge But if it had been said the Deed given in evidence was forged that was not actionable Wood against Symons VVOod against Symons in a Prohibition in which Symons libels for Tithes of Hay And Wood suggests for the Prohibition That he used to pay tithe of Hay in specie in consideration whereof he used to be discharged for all Doles Green-skips and Headlands not exceeding the breadth that a Plough or a Teame might turn about the Lands And Henden moved for a Consultation For that it is said about c. that is circa terras arabiles When the truth is there are Skips at the side of Lands as broad as the Lands themselves and then he would be discharged of them also Whereas it ought to be at the end of the Head-lands only Richardson said that in arable lands inclosed Pasture is at the end and at the sides which is mowed and yet discharged of tithes But the Court in respect there was a Prohibition granted said That he ought to joyn Issue or demurre upon the Declaration Summons IN a Writ of partition after the Summons an Estrepment was granted and generally against the Parties and their servants For in partition no dammages are to be recovered Quod nota Escape IF a Sheriff remove his Prisoners out of the County without being commanded it is an escape But if he remove them from one place to another in his County as he changes his Gaol it is not an Escape But if he remove prisoners for their ease and delight in the same County it is a Escape As the Case was cited by Harvy That one went with his Prisoner to a Bear-bating in the same County And it was adiudged an Escape And Hutton Iustice said So that if a Sheriff permit his Prisoners to go to work for their benefit it is an Escape And the Question was if in an Audita Querela for a voluntary Escape of one in Execution there should be bayl and the opinion of the Court was That if it appears That the Cause upon which the Audita Querela is grounded is called a good proof by the Record and that he should not be bayled unless good and special bayl Duncombe against Sir Edward Randall IN an action upon the Case betwéen Duncombe and Sir Edward Randall for diversion and stopping of a River It was agreed by the Court That if one had antiently Ponds which are replenisht by Chanels out of a River He cannot change the Chanels if any prejudice accrew to another by that And yet the effect by prefluxions is to have the Ponds fed out of the River But sic utere tuo ut ne laedas alieno The Vicar of Hallifaxes Case A Chaplain that was under the Vicar of Hallifax libells against him for his Sallary And he prescribes that the Vicar ought to pay the Chaplains four pounds a year And the Vicar prays a Prohibition First for that he alleges That the Chaplains were eligible by himself And because that Chaplain was not elected by him He is not Chaplain But he is in of his own wrong c. Secondly That prescription for Sallery was tryable at the Common law Yelverton the Sallery is spiritual as the Cure it self is spiritual for which it is to be payed As the Case in Dyer 58. Pl. 4. But a Prohibition was granted untill it was determined to whom the election appertained And that now depends by Prohibition in this Court Assault and Battery TRespass of Assault and Battery was brought against two and the one of them appeared and a Verdict was found against him The other was in the insimul cum And dammages were taxed against him who appeared But the Court by view of the Plaintiff increase the dammages from 30 l. to 40 l. And afterwards a verdict was given against the other Defendant and dammages also were taxed And Thime moved that the other Defendant had murdered the Officer who came to serve the Execution upon him for the 40 l. And so they by possibility might recover nothing against him that the Court would increase the dammages against this Defendant upon another view of the wound But the Court denied that For they can have but view one time in this Action But if they had brought several Actions then it had béen otherwise But he directed him to stay all untill the first Defendant was hanged And then they may make a view and increase the dammages Margery Rivets Case A Iudgement in Debt was brought against Margery Rivets Administratrix durante minori aetate of her Son And in a Scire facias against her she pleaded in Bar that she was Administratrix c. and that such a day her Son came to full age scilicet 17 years and that after she refused before the Ordinary And that the Administration was granted to a Stranger And that she had delivered all the Goods in her hands at the time of the Writ brought or after c. The Plaintiff replies and confesses all the Bar But that before the delivery of the Goods and Administration granted by the Ordinary devastivit and does not say that praedicta Margery devastavit The Defendant joyns Issue Quod praedict Margery non devastavit Which was found for the Defendant And Hitcham the Kings Sergeant moved in arrest of Iudgement For that that there was no Issue For every Issue ought to be returned certain and the Issue grows upon the affirmative Then the word of the Defendant quod praedict does nothing for the affirmative makes the Issue Coo. Countess of Salops Case A Bar may be taken upon Common intent But a Replication ought to be precise and certain In the Exchequer Chamber Tho. Harris's case One pleads that he was seised of White acre and Infeoffac .. And adjudged naught for it ought to have been feofavit inde For he may be seised of White acre and enfeofft of another acre And also it may be said that another devastavit although that the wife was Administratrix Atthowe observed all the course of the Reeord there is not a word of Margery in the Replication but only in the recital But says ante diem quo devastivit And
them the word Iudas is material here for loquendum ut vulgus If he had said you have plaid the Iudas with your Clyent without doubt is actionable Which Richardson also agreed and said if one says of an Attorney that hes a false Attorney an action lies Sed adjournatur Hawes's Case IN Dower the Defendant pleads ne unque seise que dower It was found by the Iury that the Husband was seised and died seised and assess dammages to the Plaintiff generally And it was moved in arrest of Iudgment because that the Iurors did not enquire of the value of the land and then ultra valorem terrae tax dammages as much as is the usual course as the Prothonatories informed the Court. For the Statute of Merton gives dammages to the Wife scil valorem terrae And the Statute of Glouc. cap. 1. gives costs of sute But by the Court Iudgement was given for the Plaintiff although the dammages are given generally and certainly intended for the value of the Land And there might be in the Case a Writ of Error Hil. 5. Car. Com. Banc. Simcocks against Hussey SImcocks brought waste against Hussey for cutting 120 Oakes and the Iury upon nul wast pleaded found him guilty of cutting 20 in such a field and so sparsim in other fields which was returned upon the Postea but nothing said of the other 20. where in truth the Iury found him not guilty of them but the Clark of Assizes took no notice of that By the Court If the Clark had taken notice there might have been an amendment by them But here they gave direction to attend the Iudge of Assize to examine the truth of it And if they could procure the Clarks to certifie the residue they would beleeve it Dower DOwer was brought for the moiety of 45 acres of land and for part non tenure was pleaded which was found for the Plaintiff and for other part Ioyntenancy which was after imparlance Whereupon the Plaintiff demurred and Bramston prayed Iudgement and answered farther for that that it was after imparlance and cited one Doctor Waterhouses case in Dower where it was adjudged that non-tenure after imparlance was not a plea And by the same reason shall not joyntenancy be 32 H. 6. 29. And by the Court it was adjudged quod respondeat ouster But otherwise it would have been if there had been a special imparlance tam ad breve quam ad narrationem And it was prayed to have Iudgement upon the verdict And by the Court it was said that they should have Iudgement And that there might be two Iudgements in this action for the several parts of the land Sir Francis Worthly against Sir Thomas Savill HE brought an action against Sir Thomas Savill for batterie In which it was found for the Plaintiff in not guilty pleaded and 3100 l. damages was given Which verdict was last Term. And in this Term it was shewn to the Court that the Declaration entred upon the imparlance roll was without day moneth and year in which the battery was committed Which was observed by the Atturneys and Counsel of the other part and that a blank was left for it But afterwards in the time of this vacation in the night time the Key of the Treasury being privily obtained by a false message from Mr. Brownlow Prothonotary the record was amended and some things were interlined to make it agree with the Issue Roll which was perfect And these things were affirmed by severall affidavits Whereupon Atthowe moved that those parties privie to this practice might be punisht and that the record might be brought in Court and made in statu quo prius Crew on the other side demanded Iudgement for the Plaintiff for whether there is an imparlance Roll or no. If none then the matter is discontinued and that ayded by the Statute If you will have an Imparlance Roll then I think these omissions are amendable by the Clarkes although after verdict Harvey The Course of the Court is for I am not ashamed to declare that I was a Clark for 6 years in Brownlowes Office If the Declaration was with a blank and given to the Attourney of the other side if in the next term the Atturneys of both sides agrée upon the Issue Roll Vpon this agreement the Clark for the Plaintiff had always power to amend the Declaration Because that by the acceptance of the other side there was an assent Richardson The imparlance Roll is the original Roll and ground for the Issue Roll which is the Record of the Court And I agrée that it is reason to amend the nisi prius Roll. Harvey gave an excellent reason whereupon the Pregnotaries were demanded what was the course of the Court Brownlow Gulston and Moyle all agréed that the course is That an imparlance roll may be amended if no recordaâ—uâ— That if no recordatur or rule be to the contrary and a Declaration delivered with blanks the Clarks have always amended it And Brownlow shewed where the book of 4 E. 4. was objected to the contrary and he had séen the Record and there was a recordatur granted Richardson Debt is brought against one as heir and there is omitted ad quam quidem solutionem haeredes suas oblig shall that be amended And it was said by all the Pregnotaries it should And Moyle said that in 13 Iac. there was a case between Parker and Parker upon a trover and conversion and the Imparlance Roll was entred with a blank as here and upon non-guilty pleaded it was found for the Plaintiff and I fear it will be mended By the Court this difference will reconcile all the books scil where there is a recordatur and where not It was agreed by some one of the Iudges that a recordatur might be granted out of the Court. And so Brownlow cited a president Pas 4 E. 4. rot 94. to the same purpose And so Iudgement was given for the Plaintiff Starkeys Case before IVdge Yelverton now being in Court the Counsel of the Plaintiff prayed his opinion and shewed the reasons given before to have Iudgement And Yelverton said that the word Iudas here did not bear an action It was two of the Apostles names and the betrayer Iudas was a Traytor to Heaven and therefore this reason should not be drawn to earth to cause Actions between men But for the word common Barrettor being spoken of a common person is not actionable until conviction he is not punishable for it If he called him convicted Barrettor Convicted Barrettor to a common person is actionable it is actionable But being spoken of an Atturney or an Officer of Iustice it is actionable Littleton tells us what they are they are meant stirrers up of unjust sutes which is a grand offence in an Atturney And they put the case of Sir Miles Fleetwood One called him the Kings Deceiver which was adjudged actionable and that it ought to be understood of his Office And for that in
agreed clearly that a Covenant to stand seised of as much as should be worth 20 l. per annum is méerly void And so by the Court it was lately adjudged Flower against Vaughan FLower sued Vaughan for tithes of hay which grew upon Land that was heath ground and for tithes of Pidgeons And by Richardson If it was mere waste ground and yeeld nothing it is excused by the Statute of payment of tithes for 7 years But if sheep were kept upon it or if it yeeld any profit which yeeld tithes then tithe ought to be payed As the case in Dyer And for the Pidgeons which were consumed in the house of the Owner he said that for Fish in a Pond Conies Deer it is clear that no tithes of them ought to be paid of right wherefore then of Pidgeons Felony to take Pidgeons out of a Dove-coat quod nemo dedixit and a day was given to shew wherefore a Prohibition should not be granted And the Court agreed that it was Felony to take Pidgeons out of a Dovecoat And afterwards a Prohibition was granted but principally that the Pidgeons were spent by the Owner But by Henden they shall be tithable if they were sold Clotworthy against Clotworthy IN Debt upon Obligation against the Defendant as Heir to Clotworthy scil son of Clotworthy without shewing his Christian name And Iudgement was given against the Defendant upon default and upon that Error brought and that assigned for error and after in nullo est erratum pleaded But Henden moved that it might be amended and he cited one Wosters and Westlys Case Hil. 19. Iac. rot 673. where in a Declaration in Debt upon an Obligation there was omitted obligo me haeredes and after was amended And he said that in this Case the Plea roll was without Commission of the Christian name then by the Court the Plea roll may be amended by the Imparlance roll but not è converso And the Case of the Obligation is the misprision of the Clark But here there was want of instructions Dennes Case IN Dennes Case of the Inner Temple issue was joyned in a Prohibition whether the Will was revoked or not and for a year the Plaintiff does not prosecute nor continue it upon the Iury roll And by the Court now it is in our discretion to permit it to be continued or not which the Prothonotaries agréed Mosses Case IN one Mosses Case in an Assumpsit for debt which was out of the 6 years limited by the Statute of 21 Iac. part within the time If the Iury found for the Plaintiff and taxed dammages severally The Plaintiff recovered for that that is within the time and not for that that was without But if dammages are intirely taxt the Plaintiff cannot have Iudgement of some part Which was granted by the Court. And by Richardson where an Action is brought upon an Assumpsit in Law and the Request is put in which is not more than the Law had done the Request there is not material But where a Request is collateral as in Pecks case there it is material Hutton said that in Pecks Case it was agréed by the whole Court that a Request was material but they conceived that the postea requisitus was sufficient For which afterwards it was reversed in the Kings Bench. Richardson said if one sells an Horse for money to be paid upon Request and no Request is shewn he can never have Iudgment which was not denied Boydens Case BOyden Executer of Boyden brought a scire facias to execute Iudgment given against Butler for the Testator which was directed to the Sheriff upon nihil habet returned testatum a scire fac is directed to the Sheriff of S. who returns Ployden terretenant of the Mannor which Butler was seised of at the time of the Iudgement Ployden appears and demands Oyer of the scire fac and of the return and pleads that long time before A. B. and C. were seised of the Mannor in fee and before the first return makes a feoffment to the use of one Francis Boyden for life who makes a Lease to the Defendant for 80 years And because that Francis Boyden aforesaid is not returned terretenant demanded Iudgement of the writs aforesaid Bramston said that the conclusion here to the writ is naught for a writ shall never be abated where we cannot have a better The matter here is the return of the Sheriff that Mr. Ployden is terretenant to which he makes no answer but by Argument And in all Cases where a special non tenure is pleaded it is used to be a Traverse upon which issue may be taken 8 E. 4. 19. 7 H. 6.16.17 But in our case no issue was taken and here all the matter alleged may be found c. For the matter although general non tenure is no plea yet a special non tenure may be pleaded 7 H. 6. 17. 25. 8 H. 6. 32. In real actions non tenure of a Franktenement is good But here a Chattel is only in question 2ly he may plead non tenure of Franktenement where the Lessee shall be concluded and bound But here here Edw. Boyden is not bound Crawly said that the plea is good and for the matter the difference is between the general and the special non tenure The general non tenure is no plea but in a praecipe quod reddat as it is But a special non tenure is a good plea in a scire facias nomina praecipe 31 H. 6. non tenure 21 Statham scire fac The Plaintiff in a scire fac does not demand Land but execution Yelverton In Holland and Lees Case in the Kings Bench this point It was adjudged that the Writ shall abate Richardson This Writ is a judicial Writ and by that Plea a better Writ given you For where before it was against the Terre-tenants generally he might have now a particular scire fac against Francis Boyden and both waies are good either to demand Iudgement of the Writ or Iudgement of the Court if execution ought to be against him quod concessum per totam curiam And agreed also by the Prothonotaries that a special scire facias might issue against Francis Boyden Turner against Disbury TUrner against Disbury in Trespass Where the Writ was quare domum clausum fregit but the Declaration was quare domum clausum canem molossum cepit which was found for the Defendant And it was moved by Hitcham for the Plaintiff in arrest of Iudgement to prevent costs for it That there is not a material difference between the Original and the Declaration For that that there is more in the Declaration than in the Original And then here is no Original to warrant part of the Declaration But this variance was between the Original it self which remained with the custos brevium and the Declaration For the Original as it was recited in the Declaration according to the usage in this Court agreed with the Declaration
Executor shall have the Land and yet the heir cannot have the rent Harvey In this Court it was the case of one Asham who had a purpose to enclose a Common and one Tenant was refractory wherefore Asham made him a Lease of the soil in which he had Common and afterwards he surrenders it again And it was agreed that the Common was suspended during the term Crook A Lease for years is by the contract of both parties and the surrender may revive the rent but by the surrender the arrearages shall not be revived And suppose that the surrender was by Indenture and a recitall of the grant that is a grant and then it is expresse that by the surrender their intent was that the rent should be revived 3 H. 6. A surrender determines the interest of all parties but of a stranger But it is determined to themselves to all intents and purposes Crook It was one Cooks Case against Bullick intrat 45 Eliz. rot 845. Com. ban It was there adjudged and this diversity was taken If one devise Lands in Fee and after makes a Lease for years of the same Lands to the Devisee to commence after his death it is a countermand of his will if the Lease was to commence presently it is no countermand and the reason is In the first case both cannot stand in Fee the Devise and the Lease But when the Lease commences immediately he may outlive the Lease And this Case is put upon the intents of the parties But Henden This Case is also adjudged If two Tenants in Common are and one grants a Rent charge the Beasts of the other are not distreinable But if a Tenant in Common takes a Lease for years of another his Cattel are discharged again But Yelverton and Hutton doubted that Case and so it was adjourned to be argued c. Thomsons Case THompson libells for delapidations against the Executors of his predecessor and Henden moved for a Prohibition for that that Thompson is not incumbent for his presentment was by the King ratione minoritatis of one Chichley and the King had not any such Title to present for where the King mistakes his Title his Presentment is voyd and he is no Incumbent 6 Rep. 26. Greens Case And Sir Thomas Gawdys Case where the King presented jure praerogat when he had another Title and the present Action was adjudged voyd and whether he is incumbent or not that shall be tryed But by the Court a Prohibition was denyed because that he was now incumbent And the Iudges would not take notice of the ill Presentment of the King But in case of Symony the Statute makes the Church voyd and then the Iudges may take notice of that and grant a Prohibition if the Parson sues for Tythes But if a quare impedit be brought and appears that the King had not cause of Presentment then a Prohibition may be granted which also was granted by all the other Iustices Richard Youngs Case RIchard Young was Demandant in a Formedon and admitted by Prochein amy and the Warrant was allowed by a Iudge and it was certified and entred in Gulstons Office in the Roll of Remembrance but it was not entred in the Roll as the course in the Common Bench is and after Iudgement is given for the Plaintiff And for that Formeden the Defendant brought a Writ of Errour and removed the Record and assigned it for Errour And before in nullo est erratum pleaded And Davenport moved that it might be mended for he said that there was a difference between that Court and the Kings Bench as it is in the 4 Rep. 43. Rawlins Case for the Entry of the Roll was Richard Young came et obtulit se per atturnat suum where it should have been proximum amicum And the Entry in the Remembrance Roll was That he was admitted per Gardianum Richardson said that all the Books are That an infant ought to sue by Prochein amy and defend by his Guardian and so is a Demandant But the Court agreed That that should be amended according to the Certificate As a speciall Verdict should be amended according to the Notes given to the Clerk And Davenport said that he would venture it although it was by Guardian for he held it all one if it were by Guardian or by Prochein Amy. See afterwards more of this The Vicar of Cheshams Case THe Earl of Devonshire had a Mannor in the Parish of Chesham in Buckinghamshire which extended to Latmos where there is a Chapell of Ease and the Vicar of Chesham Libells for Tithes against one of the Tenants of the Mannor And Henden moved for a Prohibition for that that the Earl prescribed that he and all his Tenants should be acquitted of all the Tythes of Land within Latmos paying 10. s. per. ann to the Chaplin of Latmos And he said that such a Prescription is good as it was adjudged in Bowles Case And a Prohibition was granted Wildshieres Case IT was agreed by the whole Court That for Executing of a Capias utlagatum or for a Warrant to Execute it or for a return of it no Fee is due to the Sheriff c. It was afterwards agreed upon an Habeas corpus sued by Wiltshiere who was imprisoned being under-Sheriff by the Lord Chamberlain for arresting Sir George Hastings Servant to the King upon a Cap. utlagat That he may well doe it upon the Servant of the King for it is the Sute of the King himself and he is sworn to serve it and there is no cause of the Commitment returned but only a recitall of the Commitment unless he was released by the Lord. And the Iudges took exception to that and said that it ought to be unless he can be released by the Law and said if no cause be returned they ought to dismisse the Prisoner And they ordered the Keeper to inform the Lord Chamberleiâ— and that their Opinion was and so was the Opinion of all the Iudges of England That he who procured the Commitment of the under Sheriff ought to pay all the Charges and Expences Quod nota Wentworth against Abraham THe Lord Wentworth brought an Action upon the Case against Abraham upon an Assumpsit and declares that the Defendant 1 die Maii Anno Dom. 1625. in consideration that the Plaintiff would permit the Defendant to re-enter in a Messuage and Croft in which the Defendant had dwelt before promised that he would pay to him 30. s. yearly during the time that he should enjoy it And that he permisit ipsum reentrare and that he should enjoy it a year and an half which ended at Michaelmas 1626. And for that he would not pay 45. s. he c. And upon non Assumpsit pleaded it was found for the Plaintiff And it was moved by Davenport in Arrest of Iudgement for that that the Assize is to pay 30. s. Annuatim then before the Action be determined nothing is due and the Plaintiff cannot divide the
from the Bishop to be confirmed They cannot but walk in the steps of the Bishop And a day was given to shew why a Prohibition should not be granted And so it was ruled Feakes against ONe was sued in the Councel of Marches upon a Bond of 500 l. to pay 40 marks per annum And he alleged that he did not intend to take the forfeiture of the Bond but to compell him to pay the 40 Marks per annum And a Prohibition was granted to the Court at the motion of Hoskins For that their instructions were not to hold Plea but for c. And if this should be permitted it is but a window to draw more within their Iurisdiction and also the King would lose his Fines But he ought to have an Action of Debt Harvy If an Obligation was to perform an Annuity of such a sum by another Deed. The party may bring his Action upon the Obligation or Annuity And Yelverton said If it were to perform a Collateral thing or if the Condition was all one with the Obligation they cannot sue for the performance there Quod nota Intra Mich. 3 Car. rot Banc. 633. Watson against Vanderlash VVAtson brought an Action upon the Case against Vanderlash for scandalous words and declares that whereas he was skillfull in the art of Chirurgery and that he made much gain of that Art of the Kings Subjects that now is c. Et colloquio tunc ibidem habito de peritia sua in arte Chirurg c. et de quodam Matthews nuper ante sub cura ejus who is now dead He spake these words Thou didst kill Mr. Matthews thou didst kill him And upon not guilty pleaded it was found for the Plaintiff and an hundred pound dammages given And now this was urged in arrest of Iudgement by Crew That he does not allege that he was a Chirurgean at the time of the words spoken So that his allegation to be a Chirurgean does not include the time c. that he spoke those words And then his profession is not discredited Secondly he does not allege thac he died under his cure but that he is dead For if those had been alleged it would have been more questionable And for that the words are not Actionable Now a man may kill a man divers wayes and justifie it As a Minister of Iustice 14 Eliz. in the Kings Bench Yates and Bostocks Case Thou wast the cause that I. S. did hang himself and that I. N. did cut his own throat And adjudged that they are not Actionable for he might have committed an Offence and because the other prosecuted him he might cut his own throat or hang himself and so this man might be under his cure and he doe his best endeavour to save him but yet he might dye And the Court does never extend words further than the Law directs them Coo. 4. 15. Stawloeps Case and Hexts Case fol. 20. Barhams Case The Court there does not supply that which the words doe not directly imply And here in this Case where the words may have a qualification they shall be taken in mitiori sensu Henden The word kill generally will bear an Action because that it shall be intended to be felonionsly as in the Lady Cockains Case Although it was not Felony in facto But here the words so spoken and particularly applyed they will not bear an Action They had a discourse of his skill in Surgery and of one Matthew who was sick of a dangerous disease Then that cannot to be intended it was Felony objecting the fayler of skill will not bear an Action As if I should say of a Lawyer He hath lost his Clients Cause And as it may be taken in mitiori sensu it cannot be strained to Perjury And so here there can never be intended a voluntary killing But Bramston and Finch on the other side That although there are not these words Tunc existenti Chirurgeon yet there are other words which supply them for it is That when Matthews was under his cure he was a Chirurgeon c. And the words are actionable without other reason for that he impeaches his credit and implies misbehaviour in his Art Hutton For the Exceptions we ought to intend that he continued a Surgeon and that his skill continued And also it is supplyed Then being speech of his skill c. Which proves that then he was a Sureon And Then ought to be intended that he is a Chirurgeon for it is not to be supposed that he laid aside his profession in the mean time And for the words if he had said For lack of skill of Chirurgery c. thou didst kill him will bear an Action for that is a slander to his profession And if one had said Goe not to such a one for he hath no skill in Chirurgery if he be a Chirurgeon if is actionable Or if of a Lawyer Goe not to such a one c. for he will deceive you And the Question will be whether it ought to be intended that he killed him for want of skill If one sayes Such a one was found dead and you killed him there it should be intended murderously And for the Case put by Crew I agree that a man may be a cause that another hangs himself by imagination But if one sayes You did kill such a one as hanged himself or cut his own throat that will bear an Action And so it ought to be intended also that when he sayes of a Chirurgeon c. That it was for want of skill Goe not to such an Inne the Plague hath been lately there These words are actionable for it drives away Guests Then these words were spoken to hinder him in his profession and benefit And because that he dyed under his hands it ought to be necessarily intended that it was for want of skill Harvey of the same Opinion Also there is sufficient matter to prove that he was a Chirurgeon at the time of the speaking the words c. When he came to the words it is saie that there was a speech between them c. and the speech was of his skill and of Matthews death If he had said Thou hast killed I. S. or murthered I. S. whereas he is living that will not bear an Action And so also it was that he dyed of his disease it must be by consequence that he did not kill him But it is said that he dyed that may be by killing And for that the word kill without doubt will bear an Action for if it be not murther it may be Man-slaughter And so it shall be intended if you cannot make a Iustification as a Minister of Iustice or se defendendo And then when he sayes that he killed him it shall be meant for want of skill which is actionable I. S. hath no more Law than a Horse If he had resembled him to any thing but a Beast it would not maintain an action But if he
not but a liberty given by the Conisee to the Conisor to be at large That does not release the Execution Dolbins Case IN a Replevin the parties were at Issue and the Plaintiff sued a Venire f. c. returnable such a day at which day the Sheriff does not return the Writ Wherefore the Avowant by Ward prayed a Venire fac with a proviso for him And it was granted by the whole Court Fossams Case A Man after the Statute of 27 H. 8. makes a Feoffment in Fee to the use of himself for term of his life and after his decease to the use of I. S. and his Heirs The Feoffor does waste And I. S. brought his Action of Waste And now if his Writ shall be general or special was the Demur in Iudgement And Hutton and the other Iustices were clearly of opinion That the Plaintiff ought to have a special Writ And so it was adjudged afterwards Doswell against Iames. IN Debt brought upon an Obligation Iames shews that the Obligation was endorsed with a Condition to perform all the Covenants comprised in an Indenture and he pleads that all the Covenants were fulfilled And does not shew in certainty the Covenants nor how they were performed And Hitcham said that the Plea was not good For there is a Diversity when one pleads in the Affirmative and when in the Negative For if in the Affirmative he shews in the certainty how the Condition or Covenants were performed And there is no diversity in my opinion between the Conditions which were upon the dorsed Obligation and the Covenants in the Indenture And it is to be thought that he who knows more of the Truth should shew it in his Plea And therefore he who pleads the Affirmative shews how the Conditions are performed Because it lyes much in his knowledge Whether he hath performed them or not But where he pleads in the Negative otherwise it is For there he is not to shew the certainty And yet I will agree that if one brings an Action of Debt upon an Obligation indorsed with a Condition The Defendant may plead the Conditions performed generally But otherwise it is of Covenants in an Indenture And in an Obligation with a Condition endorsed if he pleads the Conditions performed and he shews what thing he hath done If it be in the Affirmative he ought to shew the certainty of it also So that for that cause the Plea will not avayl Also it is incertain and doubtfull to the Iury. For if in that Case we are at Issue upon such a general Plea Although it shall be tryed by the Iury Yet it would be strange to enquire of such general things Wherefore c. Gerrard against Boden AN Annuity was brought by Gerrard against the Parson of B. And the Plaintiff counts That the said Parson granted an Annuity of 40 l. pro bono consilio suo imposter impenso for term of life of the said Parson And for 30 l. of arrerages this Action was brought Finch thought the Count not to be good And first it is to be considered If that Annuity might be assigned and granted over or not And as I think it cannot For an Annuity is not but as a sum of mony to be paid to the Grantee by the Grantor And not at all to the realty if the Land be not charged by express words in the same Deed. And to prove it If a man grant an Annuity to me and my Heirs without naming of my Heirs If the Annuity be denied it is gone Because my Person is only charged with the Annuity and not the Land So if a man grants to you the Stewardship of his Mannor of D. and to your Heirs you cannot grant that over And so of a Bayliwick But peradventure it may be said That an Annuity may be granted over in this Case Because in the Habendum It is said to the Assignees of the Grantee But that is nothing to the purpose as I think For I take a difference when a thing comes in the Habendum of a Deed which declares the Premises of the Deed For there it shall be taken effectuall but otherwise not As if Lands be given to a man and his Heirs habendum sibi haered de corpore suo procreat That is a good tayl But if a thing comes in the Habend which is repugnant to the Premises of the Deed and to the matter of the thing which is given by the Deed Then the Habend is void for that parcel As in the Case at Bar it is meerly contrary to the nature of the Annuity to be assigned over to another And there is no remedy given for it but an Action and it is Common learning that a thing in Action cannot be assigned over unless it be by the grant of the King Also by their Declaration they have acknowledged it to be no more than a chose in action Then a Rent seck for which he had not any other remedy but an Action after Seisin For he said that he was seised in his Demesn as of Franktenement of the Rent aforesaid Then it ought to be a Rent-seck For of no other Rent can a man be seised in his Demesn because they lye in prend As of Advowsons common for years and of Estovers And I will not agree that difference put by Littleton in his Book to this purpose For of such things which lye in manual occupation or receipt A man shall not say that he was seised in his Demesn as of a Rent Because it lyes in the prend Pasc 4 Car. Com. Hanc And in the 21 E. 4. The Case is doubtfull And Crawley of the same opinion Hitcham of the contrary And at another day Hutton said that the parties were agreed Hitcham We desire to have your opinion notwithstanding for our learning Hutton said We are agreed that the Annuity may be granted over and it is not so much in the personalty as hath been argued by Finch And in some Books it is said that a Release of personal Actions is not a Plea in a Writ of Annuity Groves against Osborn THe Case was thus A man makes a Lease for life the Remainder for life upon Condition that if the second Lessee for life dye in the life of the first Lessee That the Remainder in fee shall be to another And it was said That that Remainder might commence upon that Condition well enough It was said by Atthowe That where a Remainder depends upon a determination of another Estate So that none shall take any Estate by the Remainder upon Condition then the Remainder is good As if a man give Lands to A. for life upon Condition that if I. S. pay me 40 s. before such a day That the Remainder shall be to him That is a good Remainder But when an Estate is to be defeated by a Remainder depending upon that Then the Remainder is not good As if I lease Lands for life upon Condition That if the Rent be in
of the Demand cannot be made parcel of the Issue 31 Eliz. rot 1137. Com. Banc. Dennis Varneys Case There the Book was agreed If it be to be demanded generally it may be at any time if it be tunc petit otherwise For otherwise it would be a Rent-charge at one time and a Rent-seck at another And the Distress it self is the Demand As it is in Lucas Case If one be obliged to pay mony upon Demand The Action brought is a sufficient demand And Barkley Sergeant He shews in the Avowry that such a one was seised of 20 acres and grants a Rent out of them and others by the name of all his Lands in Rustock and Ollerton For that he said that Ollerton is not charged Because that it is not pleaded that he was seised of that But the whole Court on the contrary And that it is an usual manner of pleading And that it shall be intended that he was seised of Ollerton First the words are per scriptum c. he granted a Rent and then he pleads that per scriptum suum he gave a power to distreyn And then it shall be taken that it was not made by any other Deed and the Distress given by the second Deed shall not make the Rent a Rent-charge And he cited Buts Case Then if it be a Rent-seck and the Distress gives a nomine paenoe There ought to be an actual Demand and that upon the day as it appears by Maunds Case And Pilkintons Case 5 Rep. 5 Eliz. Dyer If it was a Rent-charge the Distress it self serves for a Demand As it was many times adjudged Secondly The words are If the Rent be in arrear any day of payment or 14 daies after The last instant of the 14th day is the legal time for demand of it And the words existent legitime petit ought to refer to the daies expressed immediately before As 39 H. 6. A man obliges that his Feoffees shall do such an Act si quisuerunt Those words shall have reference to the Feoffées And Dockwrays Case If a Man be obliged that his Children which he now hath so also existent Being words of the Present tence refer to the days now mentioned and otherwise there would be a great inconvenience For it cannot be intended the same tenant to be alwaies upon the Land Barrows Case 20 Eliz. A Feoffment upon Condition to re-enfeoff upon demand at such a place It cannot be demanded without notice to the Feossée For that that he shall not be compelled to be there alwaies expecting And the same inconvenience alwaies would follow If the demand should not be upon the day of payment by which c. Richardson If the Rent had béen granted out of 20 acres in Rustock and then he had granted by another Déed that he should destreyn in other Lands being in the same County or not and is the same That that is but a Rent-seck 10 Assise 21 Ass And the Distress is not but a penalty And if that Rent is granted by one Deed and the distress upon the Land by another Deed If it be not delivered at the same time then there shall be a Rent-charge and there shall be also a Rent-seck And when also it is said that ulterius he grants per scriptum suum and does not say praedict It shall be intended another Deed then without averment that it was delivered at the same time It shall be intended at another time But admit that it be a Rent-charge and that it issue out of Ollerton where the demand of it was Yet he ought to maintain that actually In Maunds Case The distress is a sufficient demand For it is not but to inable him to destreyn and that is where the demand is limitted generally But if a Rent be granted and if it be demanded of the person of the Gruntor he may destreyn Then there may be an actual demand that was adjudged As in the Court 15 Jac. Com. Banc. Iackson and Langfords Case and in one Armerys Case And in another upon the same point So if you will grant a Rent-charge demandable at a special and particular place If it was at another place than the Land charged Without doubt there ought to be an actual demand So if it be upon a special place from the Land charged or demanded for the distress ought to be pursued as the Grant is And that is upon such a demand But where it is restrained by the words of the Grant And the same Law is where you will limit the time of the demand If the Rent be granted payable at such a day and grants over that ad tunc being demanded there a legal and general demand will not serve But there ought to be an actual demand And also it is as much although not in express words for the sence and meaning carries it If it be arrear at such a day existent petit The demand ought to be at the day mentioned before If I be bound in Obligation the Condition to pay mony at such a day being demanded There ought to be a demand at the day of payment or there shall not be a forfeiture And now then there is not a demand at the time so no cause of distress And although the Verdict be found if it be collateral matter yet it will not help For when it appears upon the whole matter that there is not any Title to distreyn the Tryall will not help it And so Iudgement shall be given for the Plaintiff Hutton Harvy and Yelverton agreed That if it was a Rent-seck and the distress a penalty there ought to be an actuall demand at the time limited But in case of a Rent-charge although the demand is limited to be made upon parcell Yet they all held that a generall demand will serve And that shall be at any place at any time For Harvey said There is no oddes whether it is limited to be demanded generally or to be demanded upon Dale If it be material it ought to be observed in the one Case as well as in the other Stanleys Case IN one Stanleys Case in an Action of Battery Sir Thomas Crew moved for mitigating the dammages Where the Iudgement was given upon a non sum informatus and afterwards a Writ of enquiry of dammages But the Court said That in such Cases they never will alter the dammages And Crook said that he was once of Councel in an Action of Trespass pedibus ambulando in the Kings Bench in such a Case upon a Writ of enquiry of dammages 10 l. was given That he could never have a mitigation by the Court c. Outlary NOte it was said That an Outlary in the same term for error may be reversed in the Common Bench Or in any term if it be void upon any Statute As for want of Proclamations c. And an Outlary was reversed for that the Writ was praecipimus tibi where it should have been vobis to the Sheriffs of London
and Yelverton And a prohibition was granted Holmes against Chime before PResidents were shewn that such actions were brought scil Hill 3. Car. Elwin against Atkins and Hill 1. Car. Cophin against Cophin both in this Court. And Richardson said although the book makes a doubt of it yet his opinion was that the action would lie For it would be a miserable thing that all things should be shewed precisely And so Iudgement was given for the Plaintiff Port against Yates IN a replevin the case was The Defendant was known as Bayliff to Thomas Kett and the land was Copyhold land And 10 Maii. 3 Car. When it was granted by the Lord of the Mannor to the wife of Thomas Kett. The Plaintiff confesses that the Land is Copyhold land but that the Lord granted 1 Iacob to Robert Salter in Fée who had two daughters the wife of the Plaintiff and the wife of Thomas Kett and dyed seised and that the land descended to them upon which they demurred Berkely The first grant shews that the Defendant was in of all and the descent to the wife but for the moyety whereupon the grant of the whole is not traversed nor confessed and avoided And he cited Dyer 171. Pl. 8. to be the same case in effect and so ruled But Hutton Harvey and Crooke held what difference there was betwéen this case and the case in question Hutton the descent here which is pleaded makes the second grant void But by Richardson although that it be avoided Yet it is not confessed And afterwards for that that upon the whole truth of the matter disclosed It appears that a Copartener cannot distrein the lands of another damage feasant and the matter of form in pleading ought not to be regarded by the Iudges upon the Statute of 21 Eliz. cap. 5. Iudgement was given for the Plaintiff Cockett against Delayhay COcket brought an action upon the case in Bristow against Delahay for these words Cockett hath forged a deed and because of that came out of his own Country And the Defendant justifies that he did forge a Déed in Middlesex of lands in Hartfordshire without that that he spoke in Bristowe Richardson said that that plea was naught either with traverse or without the Traverse Whereupon Henden altered his plea scil That he forged a déed of those lands at South Mimms in Middlesex where the lands lie By vertue of which he justified the words at Bristowe Richardson It is a good plea for now the other can plead nothing but de injuria sua propria And then the tryal shall be in Middlesex And by Crooke if there be a Demurrer there shall be a writ of inquiry of damages issue to Bristowe Issue IF the issue be not made up it may be tryed by Proviso But if the Plaintiff neglect that there may be called a non-sute upon the roll for there it shall be discontinued quod nota Page against Tayler PAge brought an Action against Tayler as Receiver c. which was found against him c. And Iudgement was given that he accounted and before the Auditors he pleaded that before the Action brought there was an arbirement that he should pay to the Plaintiff 11 l. in satisfaction of all accounts and demands which he had performed And it was ruled by the whole Court that that was not a good plea in discharge before Auditors but a plea in bar of the account And by Crooke an accord with satisfaction may be pleaded in Bar not in discharge Which the Court seemed to agree And by Crooke If the Defendant had any other matter to shew on the Declaration before Auditors it might be shewn c. Richardson Although that the Arbitrament was made after the action brought it cannot now be pleaded but he ought to have his Andita querela Manninghams case In Manninghams case The doubt was this A condition of an obligation made to Manningham was that he should pay after his death to his Executors after his death 10 l. per annum to the use of the Children of Manningham And Manningham dyed and there was no Executor whether the payment should be to the Administrator and so the obligation forfeited Berkly said that it ought to be payed to the Administrator for an Executor includes an Administrator And this money is as assets if not to satisfie debts yet to perform this case which is illsgal 5 H. 7. 12. 26 H. 8. 7. And also if a man limit a thing to be done to his Executors that may be done to his Administrators So that the nominating of the Executor is not but an expresse intention to whom the money shall be paid viz. to him who presents his person And he compares that to the case of 46. E. 3. 18. A rent upon a condition reserved to the Executors goes to the Administrators 15 E. 4. 14. Dy. 309. Cranmers case Where it seemed that if a lease be made to one for life and after to his Executors for years that the Executors shall not have the term as assets 32. E. 3. A quid juris clamat Fitzharb A Lease for life to his Executors for years in remainder Lessee for life atturns saving the term which proves that the Executor had that as privy not as strangers And he cited Chapmans and Daltons case the principall So that the Infant and the Executors shall have the money in right of the testator and therefore it goes to the Administrator Secondly The Executor extends to an administrator 8. rep 135. there kindes of Executors and an Administrator is an Excecutor datinus 3 H. 6. An action is brought against divers executors by the Statute when some appears upon the distresse it answers that extends to an Administrator although the Statute names only Executors Thirdly It does not appear here that Manningham made not Executors for it may be that he made Executors and that they dyed intestate or before probate And he cited 18. H. 8. And Shelleyes case 1. rep and 33. Eliz. If Executors dye before probate It is in Law a dying intestate Richardson Here is but meer trust and as it hath been said It doth not appear whether he had made Executors or not For if he dye and makes Executors and they dye before probate or refuse he dyes ab intestato but not intestate Nor shall it be questioned if the obligation had been to pay to Manningham only or to him and his Executors But it goes to the administrators But because that he had specially put his Executor Whether he ought to have the forfeiture of the obligation or whether he ought to have the sum to be annually payed to the Administrator Berkley the letters of administration make mention that he dyed ab intestaro Atthow That is matter de hors but by the declaration it is clear that he dyed intestate And the action brought by Administrator who who had not any cause of action Secondly admitt that there was an Executor and the money payed to him that
afterwards at another time he spoke these words of him That he was a Common Barrettor and a Villain and he would make him lose his practice And upon not guilty pleaded it was found that the Defendant spoke thâ—se words Thou art a Common Barrettor and a Judas and a Promoter But not the other words And 50 l. dammages was given to the Plaintiff Vpon which Ayliff moved in arrest of Iudgement because the words were too general And if they had béen spoken of another person they would not lye Hil. 30 Jac. Hawk against Moulton I will not leave thee any thing thou art a common Barrettor And there was demurrer joyned upon the Declaration but no Iudgement The words are here found without relation to his profession But if the last words had béen found it would have been questionable Mich. 41 Eliz. Hather an Attorney brought an action for these words Thou art a Flagging Jack and a Cousener and wouldst have cousened me And adjudged not actionable Because it does not appear that they were spoken with relation to his profession But Hitcham Barkley and Heidley of the other side And that the words were actionable being spoken of an Attorney scil to say he is a Common Barrettor For although there is a doubt if it be spoken of a Common person Yet these are scandalous to an Attorney for no man now will retain him in his Business If one had said of an Attorney That he is a Common stirrer up of Sutes and a disturber of the peace and so a mover of unjust actions without doubt it had been actionable And a common Barrettor comprehend aâ—l that Hil. 8. It was doubtfull whether a Thief were actionable without alleging when and what he had stoln But it was adjudged actionable For Thief intimates that he had done all that which might make him a Thief And so Banckrupt to a Merchant A Common Barrettor in 8 Coment is said to be a Common mover of strifes and there it is said that he ought to be fined and imprisoned if he be convicted Westminster 2. cap. 32. There it is ordained that a Sheriff shall not permit a Barrettor to remain in the County much less this Court will not permit him to be an Attorney For it is that an Attorney ought to be discréet and of honest behaviour 4 H. 4. cap. 18. 3 Jac. cap. 7. They ought to be men of sufficiency and honest disposition These words touch him in his honesty and disposition An Attorney ought to be a man of good conscience 20 E. 4. 9. There it is said that if a Clyent will put in a Plea which the Attorney thinks in his Conscience is not true He may plead non sum informatus and disceit does not lye against him then if the words should be true he touches him in his profession and he might never more be an Attorney In Birchleys Case 4 Rep. You are a corrupt man These are smaller words and more general yet actionable Yet such words make a man to mistrust him and trust next skil is most requisite in an Attorney 14 Jac. Com. Banc. Rot. 1753. Small an Attorney against Moon He is a forgeing Knave adjudged actionable yet to a common person they shall not be accomptable and the case before Distrey an Attorney brought an action against Dorrel in the Common Bench for these words Take heed of him for he is the falsest Knave in England and he will cut your Throat And judged actionable and that the words shall be understood false as an Attorney And a Common Barrettor is more infamous than any of these And the word Judas here ought to be accepted according to the usual understanding of it scil for a betrayer And what can be more scandalous to an Attorney than to be a Betrayor of his Clyents For which he prayed Iudgement for the Plaintiff Richardson said It is doubtfull whether the words will bear an action Barrettor is a notorious offender and if he be to be convicted he is to be fined and bound to his good behaviour And it is hard to make a definition of a Common Barrettor but a description may be made that he is a mover of Sutes and contentious in dispositions and practice But whether the words shall have relation to him as Attorney is the Question Birchleys Case A corrupt man This directly relates to his practice so of Cousener But such a thing which ought not to be applyed to him as Attorney is not actionable Common Brabler Swaggerer Breaker of the Peace which Barrettor comprehends being spoken of an Attorney are not actionable For they do not refer to him as Attorney And the Statute cited before of Westminster 2. It is to be intended if he be found to be a Barrettor And then he should be put out of the Court. And here if there had been a communciation of him as an Attorney then it would be actionable But it ought to be laid habens Collequium of him as Attorney For then of necessity it ought to be understood of his Office And so also the words Trust him not he will cut your Throat ought to be understood of him as Attorney he will cut the throat of your Cause Hutton and Harvey on the contrary And said the words here are as well applicable to his profession as if it had béen found that there was a Colloquium of him as Attorney For it is laid that he was an Attorney and that he lived by that profession and that the Defendant maliciously to hinder him in this profession spoke these words It hath been said what a Common Barrettor is and his punishment is appointed by 24 E. 3. Littleton also mentions speaking of Feoffments made to Barrettors scil Quarrellors then being spoken of an Attorney none but quarrelsome men will go to quarrelsome Attorneys For although he deals in Sutes yet his carriage and practice ought to be fair and peaceable And without Question if it be said Thou art a cousening Attorney an Action lies But by Harvey perhaps Cousening generally will not And if of a common person it be said He is convicted of common barretry It will bear an Action And by Hutton to say of an Attorney he is a Recusant convicted it will bear an Action If it be said of a Iudge that he is a Common Barrettor an action lies And if it be actionable for speaking so of a Iudge it is so of an Attorney For he is in an inferiour ranck a Minister of Iustice and he ought to be chosen of the most honest discreet and religious men and these words if true make him incapable of being Attorney here As in Smalls Case before it was held To say of a Bishop he is a Papist will bear an Action For then he cannot hold his Bishoprick If one said of a Merchant he is a poor man is not actionable But if he said he is worth nothing had been questionable Because that it tantamounts to a Banckrupt And by
Case 164 Male against Ket 172 N NOrtherns Case 57 Norbery against Watkins ibid. Norris against Isham 81 Norton Joyce et al. against Harmer 88 Newton against Sutton 105 Nortons Case 110 The same 117 Napper against Steward 133 Nurse against Pounford 161 O OWen Dorothy against Owen Price 22 Owen against Price 29 Overalls Case 157 Overalls Case 158 P PAston against William Manne 5 Provender against Wood. 32 Peto Sir Edward against Pemberton 52 Perriman against Bowden 59 Palmers Case 62 Panton against Hassell ibid. Pease against Thompson 66 Peitoe's Case 71 Plowmans Case 73 Peters against Field 75 Perkins against Butterfield ibid. Mrs. Peels Case 107 Port against Yates 114 Page against Taylor ibid. Pinsons Case 125 Plummers Case 130 Countess of Purbecks Case 131 R REadings Case 18 Rowes Case 32 Margery Rivers Case 35 Rivets Case 60 Roberts and others 61 Rothwells Case 91 Rowe and Dewbancks Case 94 Rolls against How 117 Read against Eaglefield 122 Rises Case 147 Rawlings's Case 161 Rawling against Rawling 163 Raveys Case 175 S SMith against Dr. Clay 3 Smith against Secheverill 51 Score and Randalls Case 57 Score against Randall 66 Symons against Symons 66 Stamford and Coopers Case 72 Spark against Spark 73 Saulkells Case 78 Swintons Case 84 Stanleys Case 93 Dame Sherleys Case 95 Sacheverills Case 105 Strange against Atthowe 116 Spencer Sir John against Scroggs 121 Stone against Walsingham 123 The same 128 Smith al. against Pannel 132 Scot against Wall 133 Starkey against Taylor 139 Simcocks against Hussey 142 Starkeys Case 143 Sheriff Surrey against Alderton 145 Springhall against Tuttersbury 157 Stone against Tiddersly 177 T THomas et Ux. against Newark 2 Taylor against Phillips 10 Thomas's Case 38 Thomsons Case 53 Tomkins's Case 57 Traver against the Lord Bridgewater et Ux. 62 Tomlins's Case 64 Thomas against Morgan 67 Tomlinsons Case 75 Executors of Tomlinsons Case 76 Thornells Case 93 Thomas and Kennis's Case 97 Thompson against Thompson 110 Turner against Hodges 126 Taylors Case 136 Turner against Disbury 149 Tomlins's Case 163 Tomlinsons Case 168 Tomkins's Case 171 V VIner et Ux. against Lawson 14 Viner against Eaton 86 W VVIlcocks Case 27 Wood against Simons 34 Wilkin against Thomas 52 Wildshires Case 54 Wentworth against Abraham 55 Warberleys Case 57 Winchester Bishop against Markham ibid. Wilkinsons Case 56 Waterton against Loadman ibid. Winchesters Mayor and Commonalties Case 57 Wolfes Case 59 Wilkinsons Case 59 Waddingtons Case 59 Williams against Bickerton 63 Wilkins against Thomas 65 Watson against Vanderlash 69 Wakeman against Hawkins 72 Williams against Thirkill 73 Wilkinsons Case 76 Wimberley against Taylor et al. ib. Whiddons Case 77 Wakemans Case 78 Wiggons against Darcey 79 Woolmerstons Case 85 Warmer against Barret 87 Walsingham and Stones Case 107 Wroth against Harvey 119 Winchcombe against Shepard ib. Marquess of Winchesters Case 120 Wilson against Peck 129 Wats against Conisby 132 Dr. Wood and Greenwoods Case 135 Sir Francis Worthly against Savill 142 Wardens Case 146 Wood against Carverner 147 Williams against Floyd 168 Waters against Thomson 171 Y YOungs Case 54 A TABLE OF THE PRINCIPAL MATTER IN THIS BOOK A THe assumpsion of the Husband shall in an Account charge the Wife fo 1. Action upon a libellous Letter 10 Action for perjury and what makes it 12 Where a demand intitles to an Action 13 16 Whether a Tenant in Quid juris clamat may attourn without being sworn to do fealty to the Lord. 16 Action for words brought by a Maid 18. An arrest on Christmas day going to Church in the Church-yard may be censured 19 Attourney fined for arresting in Actions of Debt without original 29 Assumption upon mariage 30 Action for saying one forged Deeds 31 Action on the Case for stopping a River 34 An Action for words brought by a Counstable 36 Consideration upon an Assumpsit is not traversable but he ought to plead the general Issue 50 Action upon the Statute de Scandalis magnatum 55 Those who sue at the Assise have protection 33 Action for words 63 Action for words against a Chirurgeon 69 70 71 Warrant of Attorney may be entred after the Record removed 59 Action for words he hath forged a Deed c. 114 Action for saying he is falsly forsworn before c. 119 Whether in an Account there ought to be a certainty for what 85 106 113 122 Alimony is not within the High Commission Court 95 High Commissioners have no conusans of Adultery 108 Administrator has the same power as an Executor 116 Appearance by Attorney saves an Obligation given to the Sheriff to appear 117 Action for calling one a Daffidowndilly 123 Action the Case for words against Attorney 139 Convicted Barretor spoken to a common person is actionahle 143 A man having Land in right of his Wife in trust they cannot both join in the Action but the Hushand only ib. Action for words Thou hast stollen my corn out of my Barn 172 An Action for Welsh words 175 B VVHere a Bayliff shall be charged for money levied by him without warrant 12 Iustification as Bayliff upon a Distress ib. Recovery in Battery had against one the other in another Action for the same Battery may plead the First 20 33 49 Garton against Mellows in Battery 50 In Battery against Baron and Feme the wife ought to plead as wel as the Baron 10 C VVHat amounts to a forfeiture of a Copihold 6 7 In consideration the Testator was indebted and you l forbear good consideration 8. 62 A Chanceller cannot alter a Iudgement at Common see how he may proceed against him 20 One may distreyn for amerciament in a Court Leet 21 62 Iudgement given in an Inferiour Court shall not be executed by Writ of a Superiour Court 26 Officer of Common Pleas ought to be answered in any Action de die in diem 29 They may examine in Chancery before Tryal 30 Appearance of Clarks in Court ought to be in proper person 36 Writ of Covenant brought upon a Lease of a Parsonage 54 Cestui que use in tayl what remedy 57 Where Habeas Corpus on occasion may be returnable immediate 2 Custom the life of a Copihold 6 Leet is the Kings Court 62 If a Chattel personal be suspended by sute it is gone for ever 71 The breach of the Covenant is the cause of Action 212 If Copiholder make a Lease for years to commence at Michaclmas 't is a forfeiture presently 122 Where Custome ought to be shewed and where not 159 A Writ of Enquiry may be granted after Verdict when the Jury omit the dammages 161 Upon Contracts the party shall have the Action to whom the Interest belongs 176 D NO discontinuance after Verdict 3 To deny the Rent is a Disseisin 6 Demand of Rent ought to be according to the reservation in the Deed. 59 Declaration or Replication ought to be certain to all intents 60 Debt by Paroll discharged by Paroll 73 Beasts distrained for Dammage fesant not put in the
Sergeant Henden moved for a Prohibition for that that their Instructions are Whereas there be divers Books News and Tales spread abroad and Libells made by which the Subjects are abused and the Peace may be broken you shall proceed against such Persons till the Authors be found out and they be punished by fines imprisonments papers set on their breasts and the like And he said that those words are not accomtable at Common-law and therfore are not as they seem within their Instructions But admit that yet they have not power to give dammages to the Party Richardson said In the Star-Chamber libellous Letters that are spitefull and scandalous to defame any although that they bear not an Action at Common-law yet they are punishable there and also they give dammages to the Party wronged But there is difference betwéen the Star-Chamber and that c. Henden said that Magna Charta makes the difference Quod nullus liber homo capietur aut imprisonetur nisi secundum legem terrae So by the Common Law and their instructions they have not power to give damages to the party Richardson chief Iustice said that no prohibition should be granted for the Fine of the King for they have power in that Case without question and to the punishing in that matter And if they err in Iudgement for the Libellious Letter and adjudge it to be Libellious where it is not We cannot award a prohibition nor grant error But for the damages that Court differs from the Star-chamber for the Star-chamber had its power by its self and differs from the Common Law But that Court is by Commission and therefore they ought to follow their Instructions And therefore a prohibition as to the damages shall be granted And Yelverton also was of the same opinion but he said there was another clause in their Instructions And for that a prohibition as to the damages shall be granted Hutton and Harvey said That if the sute was by information than it is clear that damages cannot be given But it is by Bill so in nature of an Action as I conceive which concludes that they were damnified But it is now brought too late to grant a prohibition where the parties have admitted the action But a day was given to shew cause why a prohibition should not be granted quoad the damages And so they concluded for that time Note that it was said by the Court That if money be lent upon Interest and the Scrivener who makes the Obligation reserves more then 8. l. in the 100. l. That that is not an usurious Contract See the cause c. Eaton and Morrisâ—s Case EAton and Morris being reputed Churchwardens but they never took any Oath as the Office requires present a Feme Covert upon a Common report for Adultery c. And the husband and wife Libel against them in the Ecclesiastical Court for that defamation And when sentence was taken and ready to be given for them the Churchwardens appeal to the Arches and for that that that presentment cannot be proved but by one witness they sentenced the Baron and Feme And now Ward who that term was made a Serjeant by a special call moved for a prohibition but it was denied by the Court for they were Plaintiffs first And also it is a cause which this Court had not any Conusance of Marshes Case before MOre of Marshes Case which is before Richardson Hutton Harvey and Yelverton said That the consideration also is good For although that it be not expressed that the Plaintiff himself shewed the accounts yet it appears fully that they were upon the request of the wife viewed And it shall be intended by Common presumption that the Plaintiff himself shewed them for he had the custody of them and is owner of them And the Books of Merchants are their secrets and treasure and they will not shew them by their good will Now it is not like to the case of an Obligation for there the certainty of the debt was before and he was compellable to shew it But the certainty here cannot appear without great search and labour and there can be no compassion to shew their Books And by Hutton Iustice There is no question but if the promise had been made after the Sute commenced it haâ—… been good No question by Richardson and it is agreed by all That if the Defendent had required the Books to be brought to his house or to another place it should have been good And there is not any difference although the Books were shewen in the shop by the servant for he permitted his Books to be viewed c. And Yelverton said that Beechers Case and Banes Case is more infirm than this Case is And yet adjudged there to be good And so it was awarded that Iudgement should be entred for the Plaintiff Si non c. Of a Communication of Marriage A Communication between I.S. and A. was of the Marriage of I S. being possessed of a term for years and of certain goods promised to A. that if she would be married to him and they had issue a son that he should have the term If a Female that she should have the moyetie of the goods And after they intermarry and have issue B. a daughter The husband dies and B. brings an action upon the Case against the Administrator of I.S. By the Court she cannot bring the action unless as Administratrix of A. or in the name of A. And the Case of Stafford was recited Where there was a Communication between Stafford and a woman That if she would marry with him that Stafford would leave her at his death 100. l. And after the intermarriage and death of the husband in an action brought by the wife the question was whether the promise was extinguisht by the intermarriage And after grand disputes it was resolved that the intermarriage was but a suspension of the promise And so it was concluded Kitton against Walters KItton brought debt upon the Statute of 5. Eliz. cap. 9. for Perjury against Walters for an Action of Trespass for Battery was brought against him by I. S. and he pleaded not guilty and that the Defendant was brought as a witness And that he falsely and corruptedly deposed and did not speak voluntarily that the Plaintiff in the Trespass was wounded and beaten c. And that he could not labour for half a year c. And upon the general issue pleaded it was found for the Plaintiff and Hendon moved to have Iudgement But it was objected that the party grieved shall not have that Action for that he did not say voluntarie deposuit c. For although that he falsly deposed wherein voluntary is not but a conclusion and voluntas ought to be in the premisses and corruptive does not include that and so was the opinion of the whole Court And it was awarded that the Plaintiff nil capiat per breve A servant of a Bayliffs Case IT was awarded
convict DEbt is brought upon an Obligation And the Defendant pleads that the Plaintiff is Recusant and convicted according to the Statute of 21 Iac. cap. 5. and demanded Iudgement of the Action The Plaintiff replies Nul tiel Record And a day was given to bring in the Record Crowley Justice demanded what course he would take to make the Record come in And said that the Indictment was before the Iustices of Peace And the Court said that the Defendant ought to have pleaded the Iudgement if he shall be answered For the disability is not but quousque c As of an excommunicate Person 8 E. 3. Crook Iustice If a Plea be in disability of the Person and be pleaded in Bar it is peremptory And so was the opinion of the Court. And the Debt of a Recusant is not forfeited to the King as in Outlary But if he fail of payment of the Penalty imposed by the Statute Then c. And the Court said that if Nul tiel Record be pleaded in Bar it is an Issue and Iudgement shall be given upon failer of it And the direction of the Court for the bringing in of the Record was That a certiorari should be directed out of that Court to the Iustices of Peace where the Indictment was taken For Presidents were alleged that that Court sent a Certiorari to the Iustices of Assise a fortiori to certifie that in the Exchequer and so come by times into that Court c. Creedlands Case CReedland Administrator durante minori aetate of a Son of his Brother and the Son died and made the Wife of Hindman his Executor who called Creedland to account in the Spiritual Court for the Goods And he pleads an Agréement betwéen him and Hindman and that he gave 80 l. in satisfaction of all Accounts But they did not accept the Plea For that a Prohibition was prayed to be granted Richardson If the party had received the mony in satisfaction for which there shall not be Prohibition granted but if there had béen only an agreement without payment of mony then otherwise Crook It is a spiritual matter and they having Iurisdiction for to determine of all things concerning that But the agreement prevents that it cannot come into the Spiritual Court c. Giles against Balam GIles libells against Balam before the High Commissioners for an assault made upon him being a spirituall Person And Atthowe prayed a Prohibition For that although their Commission by express words gives them power in that Case yet that Commission is granted upon the Statute of 1 Eliz. And it is not within the Statute although it be within the Commission yet they have not Iurisdiction The words of the Statute are That such Iurisdictions and Privileges c. as by any Ecclesiastical power have heretofore been or may be lawfully exercised for the visitation of Ecclesiastical Estate and Persons and for reformations of the same and for all manner of Errors Heresies Schismes Abuses Offences Contempts and Enormityes c. Those words extend only to men who stir up Dissentions in the Churrh as Schismaticks or new-fangled Men who offend in that kind Henden Sergeant The Sute is there for reformation of Manners and before that new amendment of the Commissions Prohibitions were granted if they meddled with Adultery or in Case of defamations But now by express words they have power of those matters And that matter is punishable by the Commissioners for two Causes First there is within the Act of Parliament by the words annexed all Iurisdictions Ecclesiastical c. Secondly It gives power to the Commissioners to exercise that And that is meerly Ecclesiastical being only pro reformatione morum c. The King by his Prerogative having Ecclesiastical Iurisdiction may grant Commissions to determine such things 5 Rep. Ecclesiastical Cases fol. 8. And Richardson said the Statute de Articulis Cleri gave Conusance to the Ordinary for laying violent hands on a Clerk But you affirm that all is given to the Commissioners And for that they should take all power from the Ordinary But by the Court The Commissioners cannot meddle for a stroke in Church-land nor pro substractione decimarum And yet they have express Authority by their Commission For by that course all the Ordinaries in England should be to no purpose And so upon much debate a Prohibition was granted On an Arrest on Christenmas day It was said by Richardson chief Iustice That upon arresting a man upon Christmas day going to Church in the Church-yard He who made the arrest may be censured in the Stat-chamber for such an Offence Quod nota It was also said by Richardson If a man submit himself out of the Diocess to any Sute that he can never have a Prohibition Because that the Sute was not according to the Statute 23 H. 8. commenced within the proper Diocess as it was adjudged Quod nota Manser against Lewes MAnser brought debt against Lewes the Bishop of Banger and had Iudgement and a fieri fac upon that to the Sheriff of Middlesex who returns That he was Clericus benefaciatus habens nullum Laicum feodum And Hitcham Sergeant to the King moved for direction of the Court what Process ought to issue or may have a Writ to the Metropolitan to make sequestration as it is 21 H. 6. 16 17. 34 H. 6. 29. Richardson said If you can satisfie us That the Sequestration ought to be against the Bishop as against a Clerk Then the Metropolitan shall do execution Hutton said A Bishop had Temporalties and for that the Sheriff ought not to return nollum habet Laicum feodum Richardson demanded whether the Statute of Westm the second which gives Elegit extends to the Temporalties of a Bishop Hutton not Harvey and Crook said That he ought to have first a Testatum est and then we may dispute of that But Hitcham doubted whether a Testatum est may issue to Wales Richardson an Elegit may issue and why not then a Testatum est And they in the Kings Bench grant it without doubt Stevens against the Bishop of Lincoln c. STevens and Crosse were Plaintiffs against the Bishop of Lincoln Holms Incumbent and Holsworth Defendents in a Quare impedit And the issue was where the Prochein avoydance It was given in evidence that a Feme was seized for life of the Advowson And he in reversion in Fee being an Infant grants the prochein avoydance And after when he in the remainder came to full age He reciting that grant concessit confirmavit praedictam advocationem habendam quando contigerit vacare And afterwards the Wife dies and the Church happens to be void And it was said by Davenport That that is not a new Grant but only a confirmation Crook Coo. lib. 6.14 Treports case Tenent for life and he in remainder makes a Lease if the Tenant for life dye the Declaration should be that he in the remainder made the Lease And so also by all
to make it actually void For if the words are pursued strictly then it shall be void immediately against the Bishop himself Then the Successor in lieu of a benefit shall take an advantage of the Statute For he cannot make Leases but of things usually demised 32 Eliz. Sale and Sale against the Bishop of Coventry in a Quare impedit It was adjudged That a Quare impedit well lies by an Executor for disturbance made to the Testator And also that a Lease for years is good notwithstanding the Statute The Statute does not intend the benefit of the Lessee but of the Successor himself And the Successor had his Election to accept the Rent or the Land And if it should be voyd his Election is gone Tallengers and Dentons Case 4. Jac. A Lease is made by the Bishop of Carlisle of the Tithes which is out of the Statute And there it is void against the Successor For that that he hath no remedy for the Rent reserved upon it And that point is so adjudged upon the Statute of the 13 Eliz. Walters Case before resolved that a Lease made by Dean and Chapter not warranted by the Statute is but voydable against the Successor Pas 6 Iac. rot 1041. Wheeler and Danbies Case Robert Bishop of Glocester 30 Eliz. makes a Lease to Iasper habendum a die datus to him for life the remainder to William rendring the ancient Rent The first Lessee dies the Successor having notice of it and that divers Rents were behinde commanded his Bayliff that he should receive the Rents The Bayliff enters them and receives Rent of that Lessee the Bishop having notice of it And these points were resolved First the Iury finding a Lease a die datus might be intended good for that the Entry was made after the day yet the Iury finding a thing impossible does not conclude the Iudges Secondly that a Lease in remainder is not warranted by the Statute 1 Eliz. Thirdly that the Lease was but voydable by the Successor for the Statute was made for the benefit of the Successor but the grand Question was of the manner of acceptance and resolved Fourthly that the acceptance binds the Bishop and the Authority given to the Bayliff and also his receipt For it differs where the Bayliff of his own accord receives Rent Dyer And they also say that that was to perfect an estate setled And it differs from an Attournment which is to perfect an estate setled For there notice is requisite c. Gammons Case again HEndon said that a Scire facias does not lie upon that record because an action of debt well lies For no president can be shewn that a Iudgement given in an inferiour Court may be executed so For first that Court shall not make an Instrument to execute Iudgement given in another Court It is seen that an Attaint lies of false Iudgement given in an inferiour Court Take the Case in 14 H. 4.4 And so if issue be joyned in an inferiour Court without custom It shall not be removed to be tryed so And so it is our Case c. Secondly the Statutes do not give them power viz. 26 H. 8. 34 H. 8. makes the matter clear that it cannot be Error in an Assize before the Iustices of Assize will not lye in this Court. For Iudges Itinerant are superior And those Iudges are appointed by Act of Parliament and so the Iudges also in Wales are by Act of Parliament And having power a Oyer et terminer It is not found that after Iudgement a Certiorari had been received to remove the Record out of an Inferiour Court And the mischief would be if Iudgement should be given for 20. l. it should be executory through all the Realm where they have but a special Iurisdiction And also the tenor of the Record is only removed and execution cannot be out of the tenor of the Record Dyer 369. Plow 52. Richardson The question is whether when the Record is so removed whether it shall be idle If Iudgement be given in an Inferiour Court which holds Plea by prescription or by grant and removed by Writ of Error if the Iudgement be affirmed we may award Execution 16 Iac. There is an express president of a Iudgement in an Inferiour Court and a Scire facias is granted so And also a Scire facias is granted in lieu of an action of debt For by the Common Law he might not have a Scire facias after the year but an action of debt And by the Common Law debt lies in that Case Harvey and Crook Iustices said that Court shall not be an Instrument to execute Iudgement in an inferiour Court which they cannot And also the Land of the Defendant shall be lyable to an execution in any place in England where before only the Land within the place was lyable And also the purchaser could never finde out what executions might be upon the Land Richardson said that the mischief would be great on both sides For otherwise what Iudgement was given The Defendant would remove his goods out of the Iurisdiction of the Court and then the Plaintiff had no remedy but by new original And Crook Iustice If a man brings an action in a Court he ought to examine what the end of that will be For it is a president a man ought to respect things in their end For it is his own folly to commence an action where he cannot have execution For that he may commence his action and have execution in any place in England And although that a forrain Plea in an Inferiour Court may be tryed so yet it is by Act of Parliament viz. 6 E. 1. 12. which proves by the Common Law there was no remedy Tithes of Pidgeons and Acorns A Parson Libels in the Spiritual Court for Tithes of Pidgeons and Acorns And the Defendant prayed a prohibition Because the Pidgeons were spent in his own house and the Acorns dropt from the Tree and his Hogs eat them And it was said by the Court Acorns are Tithable 11 Rep. 49. But then they ought to be gathered and also sold And a prohibition was clearly granted Thomas Wilcocks Case MOre of the Case of the Vniversity of Oxford Thomas Wilcocks Mr. of Arts in St. Mary Hall in Oxford was sued in the Chancellors Court there by Anne wife of Ralph Bradwell and Christian her daughter For calling the wife Bawd and old Bawd and the daughter Whor. and scurvey pockey-faced whore And they procured two Sentences against Wilcocks and upon them he had two prohibitions And Davenport moved for a Procedendo for that that by their Charter which was confirmed by Parliament The Chancellor or his Deputy shall have Conusans of all causes personal where one of the parties is a Scholar And the Charter was shewed in Court which was to this purpose That they shall hold Pleas c. or Secundum morem Universitatis or Secundum legem terre And the custom was to proceed according to
it shall be lawfull to the Lessor to reenter without any demand of the Rent The Rent is in arrear by 40 daies after the Feast of Saint Michael and no demand of the Rent made by the Lessor Whereupon the Lessor entred If that Entry were lawfull was the Question And by Hutton it is not For a demand of the Rent is given by the Common law between Lessor and Lessée And notwithstanding the words without any demand it remains as it was before And is not altered by them But if the Rent had béen reserved payable at another place than upon the Land There the Lessor may enter without any demand But where no place is limitted but upon the Land otherwise it is Richardson to the contrary For when he had covenanted that he might enter without any demand The Lessée had dispensed with the Common law by his own Covenant As the Lessor might by his Covenant when he makes a Lease Sans impeachment dl waste He had dispenced with the Common law which gives the Action of Waste Harvey of the same opinion If a Man leases Lands for years with a Clause That if the Rent be in Arrear by forty daies after the day of payment That the term shall cease If the Rent be in arrear by the said forty daies after the day of payment The Lessor may enter without request Conyers's Case ONe Thompson makes a Lease for forty years to Conyers by Indenture and in the same Indenture covenants and grants to the Lessee That he shall take convenient House-boot Fire-boot and Cart-boot in toto bosco suo vocato S. wood within the Parish of S. And those Woods are not parcel of the Land leased but other Lands Atthow I would fain know your opinion if that Grant of Estovers out of an other place than was the Lease be good Also what Estate the Grantée of House-boot and Fire-boot shall have by that For the words are from time to time and hath limited no time in certain And lastly If the Lessée be excluded to have House-boot and Fire-boot in the Land leased or if he shall have in both places Also if the Executors by that Grant to the Lessee shall have House-boot and Fire boot And it was agreed by Hutton and Harvey That that Grant was good and that the Grantee shall have it during the Term. And that that grant does not restrain him But that he shall have house-boot and fire-boot in the land leased also Atthowe If there be no great Timber upon the land leased and the houses are in decay if the Lessor ought to find and allow to the Lessée sufficient Timber for the making the reparations or if the Lessée at his own costs ought to find the Timber for the reparations of the house Hutton said That the great Timber shall be at the costs of the Lessor if no Timber be upon the land leased nor no default be in the Lessee in suffering the great timber to go to decay or to putrifie And it was agréed if the Lessor cut a tree and carry it out of the Land That the Lessee may have an Action of Trespass And if Stranger cut a tree the lessee shall have an action of Trespass and recover treble dammages As the lessor should recover against him in an action of waste Wakemans Case A Man seised of a Mannor parcell demesn and parcell in service devises by his Testament to his wife during her life all the demesn lands also by the same Testament he devises to her all the services of chief Rents for 15 years And moreover by the same Testament he devises the same Mannor to another after the death of his wife And it was agreed by all the Iustices That the devise shall not take effect for no part of the Mannor as to the stranger untill after the death of the wife And that the heir after the 15 years passed during the life of the wife shall have the services and chief Rents Jenkins against Dawson IN a Formedon the Demandant makes his Conveyance in the Writ by the gift of I. S. who gave it to ◠D. er haeredibus de corp suo legitime procreat And shewes in the Writ that he was heir to the Son and heir of I. D. Son and heir of W. D. the Donee And Hitcham demanded Iudgement of the Writ for this Cause And the Court said that the Writ was not good for he ought not to make mention in the Writ of every heir as he does here But he ought to make himself heir to him who dyed last seised of the Estate Tayl as his Father or other Ancestor Also that word procreat ought not to be in the Writ but Exeuntibus But the Court thought that it might be amended And Harvey said If false Latin be in the Writ it shall be amended as if in a Formedon the Writ be Consanguineus where it should have béen Consanguineo Hutton and all the other Iustices said that that might be amended by the Statute Saulkells Case IN an Attaint the grand Iury appeared and the petit Iury and the parties also and one Rudstone Master of the Servant in the Attaint came to the Bar and there spoke in the matter as if he had been of counsell with his Servant Crawley said to him Are you a party to this Suteor for what cause do you speak at the Bar And he answered that he had done this for his Servant And if he had done any thing against the Law he knew not so much before Hutton You may if you did owe any mony to your Servant for his wages give to his Counsel so much as is behind of it and that is not maintenance Or you may go with your Servant to retein Counsel for him So that your Servant pay for his Counsel But that that you have done is apparent maintenance And the Kings Sergeant prayed That he may be awarded to the Fleet and pay a Fine And Hutton upon advise sent him to the Fleet. Wiggons against Darcy DArcy was in Execution upon a Statute Merchant and his Body and Goods were taken And the Conisee agreed that the Conisor should go at large and he went at large Atthowe moved If that were a discharge of the Execution or not And Richardson said it was For his imprisonment is for his Execution And if he release his imprisonment he releases his Execution And so if two men be in Execution for one Debt and the Plaintiff releases to one of them That is a release to both And so if one had two acres in Execution and the Plaintiff release the Execution of one of them It enures to both Harvey on the contrary opinion Yet I will agree That if a man be one time in Execution The Plaintiff shall not another time have an Execution For after a cap. ad satisfac an Elegit does not lye But in the Case where the Conisee does release the imprisonment only and not the Execution for it is
it may be against the Bayle otherwise it is Hill 4 Car. Com. Banc. Plummers Case IF a Recusant bring an action c. and the Defendant pleads that he is a Recusant Convict and then the Plaintiff conform which is certified under the Seal of the Bishop And upon that orders that the Defendant plead in chief and then the Plaintiff relapses and is convicted again The Defendant cannot plead indisabilitity again As it was adjudged by the Court. Sir John Halls Case SIr Iohn Halls case in a quare impedit It was given for the Plaintiff who was presented by the King to a Church void by Symony That it was apparently proved that the Plaintiff had a writ to the Bishop of Winchester who returns before the writ accepted scil Such a day which was after the Iudgement the Church was full by presentation out of the Court of Wards because that a livery was not sued These returns that the Church was full before the receipt of the writs are always ruled to be insufficient For the Bishop ought to execute the writ when it comes to him 9 Eliz. Dyer in a scire fac c. 18 E. 4. 7. The difference here is That the King presented If the presentee of one without title is admitted and instituted the Patron may bring a quare impedit with presentation for it is in vain for him to present when the Church is full But if a common person recover and had a writ to the Bishop if the Ordinary return that it is full before of his own presentment it is good As if one recover he may enter if he will without a writ of execution to the Sheriff And in this case the second presentation does not make mention of the other presentation or revoke it But if the Ordinary had returned an other presented by Symony under the great Seal And that the other in that was revoked that is good For it is an execution of the Iudgement may be pleaded in abate of the Writ But if this return should be allowed by this trick all the recoveries in a quare impedit should be to no purpose Harvey only present agreed that the Iudgement ought to be executed and that that is a new devise And if the presentment under the seal of the Court of wards was returned then the question would be whether the great Seal or this Seal should be preferred but the presentation is not returned Whereupon they two agreed That the Bishop should have a day to amend his return And not that a new writ should be taken against him Hill 4. Car. Com. Banc. Andrews against Hutton Hutton Farmer of a Mannor Andrews and other Churchardens libels against him for a tax for the reparation of the Church Henden moved for a prohibition because that first the libel was upon a custom that the lands should he charged for reparations which customs ought to be tryed at the Common law And secondly he said That the custom of that place is that houses and arrable Lands should be taxed only for the reparations of the Church and meadow and pasture should be charged with other taxes But the whole Court on the contrary First That although a libel is by a custom yet the other lands shall be dischargeable by the Common law But the usage is to allege a custom and also that houses are chargeable to the reparations of the Church as well as land And thirdly that a custom to discharge some lands is not good Wherefore a prohibition was granted Sir Iohn Halls case again IT was moved again and Henden endeavoured to maintain that the return was good And he said where the King had Iudgement upon the Statute of Symony The King may choose if he will have the Writ to the Bishop For if he present and the Bishop admits his Clerk it is a good performance of the Iudgement And admit that the King had a former title this title remains notwithstanding that Iudgement And it is not necessary to return it For if the title be returned it is not traversabe Henden If the return was that the Church was full by presentation of a stranger it is clearly void Richardson in Bennet and Stokes case there was a rule and adjudged that if a Clerk be admitted pendente lite ex praesentatione of a stranger who is not a party at all to the sute Yet such a plenarty returned is not a good return And upon superinstitution their titles ought to be tryed Yelv. The King presents one under the great seal of the Court of Wards this second presentation is not a revocation of the first but it is void Richardson And so is the second void because the King is not fully informed of his title but if he be then perhaps it would be otherwise Henley One is Patron and a Stranger presents who has not title by Symony all is now void But the King is not bound to present by Symony but may present as Patron Yelverton and Richardson The Bishop ought to obey the Writ of the King And when the Clerk is instituted that the incumbents may try their rights in trespass in Ejectione firm or otherwise the parson who recovered should be shut up Dawthorn against Sir Iohn Bullock IN a Replevin for taking of his goods and Cattel The cattel and goods were delivered in pawn to the Defendant for mony and the Plaintiff did not pay the money at the day yet in the absence of the Plaintiff coming with the Sheriff who replevyed them The Defendant avows for the cause aforesaid And Atthow demurred upon the avowry generally For that that it appeared that the Defendant had a special property in the goods and therefore he ought not to avow but justifie the same Richardson and Yelverton being only present awarded that judgement should be for the Defendant because that now by the Statute they may give Iudgement upon the Right and the Avowry is but a form upon which the Replevin is barred But he cannot have a returno habendo The Countesse of Purbecks Case HEnden moved for a prohibition for the Countesse of Purbeck who was censured in the High Commission Court for Adultery with Sir Robert Howard son to the Countesse of Suffolk and the sentence there was that she should be imprisoned without bayl or mainprise until she found security for to perform the sentence and she was fined 400 marks But Henden alleged that they had not power to inflict such punishment For the offence is spiritual and the punishment temporal And the High Commission had not power to impose a fine and imprison for Ecclesiastical causes For the liberty of the Subject is Precious And therefore the censure in the Ecclesiastical Court ought to be only by excommunication before the Statute of 1 Eliz. there was not any question of it as appears by Articuli Cler. And the Statute does not make alteration of it but only in the things there named Hil. 42 Eliz. Smiths Case
only upon the Land in possession but also the rights to the same the one in point of Giving The other in point of renouncing The Land in possession could be but in one that is in the Offenders and so it was given but the rights to the same Lands might be in sundry persons in the Offendor or in his Heirs or in Strangers Now when the Statute saith the King shall have the Land without saving the Rights of the Offendors or his Heirs or any claiming to their use Tenant in tayl discontinues and after disseiseth his Discontinuee and is attainted of Treason he forfeits his Estate gained by the Disseisin and also his right of Entayl for he cannot take benefit of his ancient Right against the King by force of the Statute of 26 H. 8. and 32 of H. 8. and this agrees with the reason and the rule in the Marquess of Winchesters Case for if the Traytor have right to a Strangers land that shall not be given to the King for the quiet of the Stranger being Possessor for the quiet of his possesion but such right shall be given to the King being Possessor for the quiet of his possession and the word Hereditament in the Statute 26 H. 8. are both sufficient and fit to carry such right in such Cases and no man will dispute but they are sufficient to save naked rights to the Lands of strangers therfore it is not for the count of words but because it is alleged it was not meant so it was said in Digbies Case and so hath Antiquity expounded it for the good of the Subject against the King and against the letter of the Law But can any man imagine that the Parliament that gave the Land to the King should leave a right in the Traytor in the same Land to defeaf him again of it since the Statute gives the right and the Land and this gives a forfeiture of all rights belonging to the Person attainted of Treason and their Heirs for the benefit of the Kings forfeiture is of so great importance that if it be not taken as large as I take it it is an avoiding of all the Statute even that 33 H. 8. cap. 20. for though they have the word Rights in both Statutes even that of 33. doth not include the right of Action to the Lands of Estrangers by an Equity against the Letter So for this time the Case was abruptly broken off by reason the King had sent for all the Iudges of every Bench. Springall against Tuttersbury IN Springall and Tuttersburies Case It was agreed by the Court If a verdict be given at a nisi prius and the Plaintiff or Defendant die after the beginning of the Term yet Iudgement shall be entred for that relates to the first day of the term Overalls Case ONe Overall was sued in London and for that that he was of the Common Bench a Writ of Privilege issued which is a Supersedeas and staid the Sute wholly and not removed the Cause And if the Plaintiff had cause of Action he ought to sue here And then by the course of the Court a Clark shall not put in bayl Foxes Case THe Lord Keeper in the Star-chamber cited one and Butchers Case to be adjudged 38 Eliz. An Vnder-Sheriff makes his Deputy for all matters except Executions and restrained him from medling with them And it was adjudged a void Exception So if it be agreed and covenanted between them that the Deputy should not meddle with matters of such a value It is a void Covenant And that was agreed by Richardson to be good Law Hil. 5 Car. Com. Banc. Overalls Case IT was agreed at another day in Overalls case by all the Clarks and Prothonotaries of the Court that the Course always was that if an Atturney or Clark be sued here by bill of Privilege he needs not put in bail But if he be sued by original and taken by a Capias as he may be if the Plaintiff wil Then he ought to put in bail quod nota MEmorandum that on Sunday morning in the next term ensuing which was the 24. day of Ianuary Sir Henry Yelverton puisne Iudge of the Common Bench dyed who before had been Attourney general to King Iames and afterwards incurring the displeasure of the King was displaced and censured in the Star-chamber and then he became afterwards a practicer again at the bar from whence he was advanced by King Charls to be a Iudge He was a man of profound knowledge and eloquence and for his life of great integrity and piety and his death was universally bewailed Termino Hill 5 Car. Com. Banc. Honora Cason against the Executor of her Husband HOnora Cason sues Edward Cason Executor of her Husband and declares by bill original in nature of debt pro rationabili parte bonorum in the Court of Mayor and Aldermen of London and alleges the custom of London to be That when the Citizens and Fréemen of London die their goods and chattels above the debts and necessary funeral expences ought to be divided into three parts and that the wife of the testator ought to have the one part and the Executors the second part to discharge Legacies and dispose at their discretion And the children of the Testator male or female which were not sufficiently provided for in the life of the Father to have notwithstanding the Legacies in the will the third part And the custom is that the Plaintiff in this action ought to bring into the Court an inventory and sue before the Mayor and Aldermen And that she had here brought an Inventory which amounted to 18000 l. so that her third part was 6000 l and demanded it of the Executor who unjustly detained c. And it was removed to the Common bench by writ of Privilege And now Hitcham Serjeant moved for a procedendo And the Court séemed to be of the opinion to grant it Because that the custom is that the sute ought to be before the Mayor and Aldermen and then if they retain the action here the custom would be overthrown But they agreed that a rationabile parte bonorum may be remanded here and that they may proceed upon it in this Court And that there be divers presidents to this purpose And they agreed that a rationabile parte bonorum is the original writ by the Common Law and not grounded upon the Statute of Magna Charta But that it does not lie but where such a custom is which custom they ought to extend to all the Province of York beyond Trent Richardson chief Iustice said that in the principal case The Plaintiff in London might have declared without alleging the custom As it is in 2 H. 4. Because that the custom is well known But otherwise Where custom ought to be shewed and where not where an action is upon the custom in a place where the custom does not extend There it ought to be shewn And afterwards at another
all was false and written of set purpose and that for that the Lord displaced him it would be more difficult But for any thing as appears to us there is not any thing for which he might be justly displaced And also it was not said in the Declaration that the Defendant had any fee for his Office And Richardson also said That if it had been found as my Brother Hutton said Yet it is known that it should be more strong But then I conceive that the Action does not lye For it is apparent that nothing in the Letter may be applyed to a particular misbehaviour in his Office And by the Court Although the Declaration be laid falsely and maliciously Yet if the words be nâ—…t scandalous yet it ought to be laid falsely and maliciously And he said that it was adjudged in this Court Where an Action upon the Case was brought for conspiracy to indict a man and upon the Indictment the Iury found Ignoramus There the Indictee was clear And yet for the conspiracy the Action laid which was Blakes Case And it was said by Hutton If I have Land which I intended to sell and one came and says maliciously and on purpose to hinder my sale that he had a Title to it That that is actionable Which Harvey agreed without Question if he does not prove that he had a Title If one says of an Inue Go not to such an House for it is a very cutting House Agreed by the Court not Actionable Mich. 5 Car. Com. Banc. And Iudgment was given quod querens nil cap. per bil Pasc 6 Car. Com. Banc. THis Term there was nothing worthy the reporting as I heard of others For I my self was not well and could not hear any thing certum referre c. Trin. 6 Car. Com. Banc. Tomlins's Case IF the Husband makes a Feoffment to the use of himself for life the Remainder to his Son in tayl By the Court That is a dying seised in the Husband For the Wife shall have dammages in Dower And so it was adjudged in the Lady Egertons Case But the Husband ought to dye seised of an Estate tayl or Fée simple which might descend to his Heir Mich 6 Car. Com. Banc. MEmorandum That Sergeant Atthowe died at his House in Northfolk who was a man somewhat defective in Elocution and Memory but of profound Judgement and Skill in pleading NOte it was was said by Hutton and Davenport That if an Inferiour Court prescribe to hold Pleas of all manner of Pleas except Title to Freehold That that is no good prescription For then it may hold Plea of Murther which cannot be c. Note It was said by Richardson chief Iustice that if two conspire to indict an other of a Rape and he is indicted accordingly If the Iury upon the Indictment find Ignoramus Yet that Conspiracy is not punishable in the Starchamber Father purchases Lands in his Sons name who was an Infant at the age of seaventeen years and he would have suffered a Common recovery as Tenant to the Praecipe But the Court would not suffer him Rawling against Rawling THe Case was thus A man being possessed of a Lease for 85 years devises it as follows viz. I will that R. Rawling shall have the use of my Lease if he shall so long live during his life he paying certain Legacies c. And after his decease I devise the use thereof to Andrew Rawling the residue of the term with the Lease in manner and form as R. Rawling should have it Crew said That after the death of R. Rawling and Andrew the term shall revert to the Executors of the Devisor But by the Court not But it shall go to A. Rawling the last Devisée and in manner and form shall go to pay Legacies And by all a strong Case And together with the Lease be by strong words The Archbishop of Canterbury against Hudson of Grays-Inne THe Archbishop of Canterbury prosecuted against Hudson of Grays-Inne in an Information upon the Statute of E. 1. of Champerty Henden Sergeant for the Plaintiff moved upon the Plea that it was insufficient Because that the Defendant had prayed Iudgement of the Writ when he ought to have pleaded in Bar For the Statute of E. 1. had appointed a special Writ in this Case as the Defendant said But by him the Information is upon the Statute of 32 H. 8. which gives that Action by sute in Chancery which before was only by sute at Common Law Richardson chief Iustice said That the Plea is not to the matter but to the manner for the Plaintiff had mistaken his Action For the Action is given to the King only And therefore said to Henden demur if you will The Case was that the Defendant purchased Lands in anothers Name hanging the Sute in Chancery for it And after rules for Publication was given in the Cause Malins Case AYliff moved in arrest of Iudgement in an action of Battery c. And the cause that he shewed was An issue mistaken cannot be amended It was brought against William Malin of Langlee and in the Record of nisi prius It was William Langley of Malin But by the Court it ought to be amended For it is a misprision apparently of the Clark For the whole Record besides is right And the Record of nisi prius ought to be amended by the Record in the Bench according to the 44 E. 3. But if the issue had been mistaken otherwise it had been Arrerages for rent upon an estate for life cannot be forfeit by Outlawry NOte That it was agreed by the whole Court That arrerages of rent reserved upon an Estate for life are not forfeited by Outlawry because that they are real and no remedy for them but a distress Otherwise if upon a Lease for years c. Hill 6 Car. Com. Banc. MEmorandum that this term Sir Humfrey Davenport puisne Iudge of the Common Bench was called into the Exchequer to be Chief barron Browns Case AN Information upon the Statute of 5 Eliz. pro eo that one Brown was retained an Apprentice in Husbandry until the 21 year of his age and that he before his age of 21 years went away And the Defendant absque ullo testimonio detained him contra formam Statuti And by Hutton and Harvey Iustices only shewed the branch of the said Statute which says And if any servant retained according to the form of this Statute depart from his Master c. Hil. 6 Car. Com. Banc. And that none of the said reteined persons in Husbandry until after the time of his reteiner be expired shall depart That is not to be intended of an Apprentice in Husbandry but of an hired servant For the Statute did not intend to provide for the departure of an Apprentice because that an Apprentice ought to be by Indenture And then a writ of Covenant lies upon his departure to force him to come again And by the Common Law an
contained in the Declaration That the Defendants were guilty before scil October Vpon which the Defendants demurre and Iudgement was given for the Plaintiff Although it was objected that the Iustification here by the Custom before had taken away the property And I shall be debarred in Detinue and so in Trover But the Court was of the contrary opinion That the Defendants Plea in barre here shall not be good without traverse as it is and therefore the time is not made material but any time before is sufficient Méer possession sufficeth to maintain a Trover Pasc 7. Car. Com. Banc. Eaglechildes Case FInch Sergeant said that 6 Car. in the Kings Bench it was ruled upon Bill of Exchange betwéen party and party who are not Merchants There cannot be a Declaration upon the Law of Merchants but there may be a Declaration upon the Assumpsit and give the acceptance of the Bill in Evidence Crompton against Waterford WAterford was sued in the Spiritual Court for saying these words of the Plaintiff she will turn tayl to tayl with any man intimating that she would be naught with any man And sentence was given for the Plaintiff Whereupon he appealed to the Delegates propter gravamen And the Delegates overruled it and assesse costs for the wrong appeal Then there was a prohibition granted because the words were idle words and not punishable in the Spiritual Court Hutton seemed That the costs taxed by the Delegates are not taken away by the Prohibition Richardson on the contrary For the principal is prohibited and the costs are incident And because that a prohibition stays all proceedings the costs are taken away If the costs are to be executed by the Delegates then the prohibition to them will help But if the costs are remanded to the inferiour Court as well as the cause then the prohibition to the Inferiour Court will help So quacunque via data the costs are to be discharged And the party if excommunicat be dissolved And so agreed by the Court. Alleston against Moor. ALleston an Attourney of this Court brought an action upon the Case against Moore for calling him cheating knave and it was not upon speaking of him as an Attourney And for that by the Court in arrest of judgement It is not actionable If he had said you cheat your Clients it would be actionable One said That my Lord Chief Baron cannot hear of one ear colloquio praehabito of his administration of Iustice And it wad adjudged actionable Otherwise it had been if they had had no discourse of his Iustice Trin. 7 Car. Com. Banc. Coxhead against Coxhead IN Debt upon an Obligation the Condition was to perform an Arbitrament and the Defendant pleads nullum fecere arbitrium The Plaintiff replies that they made such an arbitrament and recites it the Defendant rejoyns that the Condition was to make an arbitrament of all things in controversie and that other things were in controversie whereof no arbitrament was made The Plaintiff sur-rejoynes that the Defendant did not give notice of those upon which issue was taken and no place alleged where notice was given And that exception was moved in arrest of Iudgement And upon that Iudgement was stayed Trin. 7. Car. Com. Banc. NOte It was said by Richardson Chief Iustice If a man sends his servant to a Draper to buy cloath for his Master and makes not the contract in his own name That the Master shall be charged and not the Servant Which was not denied 11 E. 4.6 Tomlinsons Case IF an Executor is sued in the Ecclesiastical Court for a Legacy and the Executor pleads plene administravit a Prohibition shall not be granted if they will not admit that plea. For they ought to judge there if he had administred fully or not But upon suggestion that they did not reject any administration which our law allows A prohibition shall not be granted as Richardson said which was not denied by the whole Court Williams against Floyd WIlliams was Plaintiff by an English Bill to the Council of Marches against Floyd in the nature of Debt upon an Escape and there was a Latin Declaration upon an Escape turned into English because that the Defendant being Sheriff of Canarvan suffered one against whom the Plaintiff had a Iudgement being taken by capias utlegat to escape To his damage of 40 l. And by the whole Court a prohibition was granted Although that by their Instructions they had power of personal actions under 50 l. For this is intended a meer personal action As debt detinue c. But Debt upon a Iudgement or debt upon an escape or upon the 2 E. 6. for not setting forth of tithes an action upon 8 H. 6. or any other action upon matter of Record or Statute In such cases they have not Iurisdiction And the Defendant there might have pleaded nul teil record and then he might have proceeded further But the misdemeanour here in permitting the party to escape might have been punished there by Information Gee against Egan GEe an Attorney of this Court brought an Action upon the Case against Egan and declares that he was an Attorney for many years late past and still is and that he had taken the Oath of an Attorney to do no fraud nor deceit in his Office as Attorney And that colloquio habito et moto inter one Rise Brother in Law to the Plaintiff and the Defendant concerning the Office of the Plaintiff as an Attorney and concerning a Bill of Costs and Expences by the Plaintiff in defence of a Cause prosecuted by one Treddiman in the Common Bench against the Defendant laid out and expended The Defendant 1 Augusti 4 Car. spoke those words to Rise Your Brother and Mr. Treddiman have cheated me of a great deal of mony c. by which the Plaintiff is in danger to lose his Office And it was moved after verdict for the Plaintiff in arrest of Iudgement by Ayliff Because that here is not any certainty in the Declaration that the words were spoken of the Plaintiff as Attorney And then they are not actionable For he does not shew at what time the speech was of him as Attorney Richardson upon reading of the Record said It was true that no time of the speech is shewen neither is it after the speech shewen upon whom he spoke those words Which might help it Neither is it said afterwards that is to say primo die but primo die Augusti he spoke c. And if it can be intended that those words were spoken of the Plaintiff as Attorney That would inforce the words to bear an Action But if such words are generally spoken of an Attourney without speech of his Office they are not actionable For he may be a Cheater at dice or in a bagain c. And here non constat that the words were spoken of the Plaintiff as Attourney Secondly it does not appear that the Plaintiff was was an Attorney in the Cause but says
put off till the next day by nine in the morning Collins against Thoroughgood AN action of Covenant was brought against the Executor and the breach assigned for default of reparation committed in the time of the Executor and damages were assessed And the question was moved by Atthow whether the Iudgement shall be de bonis propriis or de bonis Testatoris And upon view of presidents it was adjudged that it shall be de bonis Testatoris For this is the Testators Covenant and obliges the Executor as representing him And therefore he ought to be sued by that name Waters against Thomson IN an action of slander for calling him Bankrupt Iudgement was given for the Plaintiff And it was afterwards moved in arrest of Iudgement Because that in the Declaration it is said that he was a seller of Wool And Serjeant Ward said because he did not allege that he was a Merchant that it would not hold But the Court over-ruled him Tomkin's Case A Man cannot plead a former Iudgement had against the Plaintiff in an action brought by the Plaintiff against the Defendant But Outlawry he may Which was not denyed Baker against Webberly THat if a mans Dog runs at the Sheep and kills them not with his consent there will no action lie But otherwise if with his consent Recovereis suffer per gardens of the lands of the Infant MEmorandum That the 26 Decemb. 21 Iac. that letters under the privy signet and sign Mannual came unto the Iudges of the Com-Pleas importing that the King had been humbly petitioned by Mountioy Blunt being under the age of 21 yoars as well by himself as his kinred and Feoffees into whose custody the late deceased Earl of Devonshire did commit his estate in trust that he would declare unto us his liking that he might be permitted to suffer a Common recovery of the Mannor of Wansled for payment of his debts and further advancement of his means to the use of the Duke of Buckingham which his Majestie by his said Letter did accordingly Now although the Iudges did never hold such Recoveries unlawfull or void in Law yet divers motions in the like kind have been refused as holding it very inconvenient But inconveniencies are best discerned by circumstances and therfore my L. Chief Iustice Richardson acquainting the other Iustices therewith it was determined that he should send for the young Gentleman and examine him sole and secret of the reasons of this Recovery and of his own free-will Which I did and being of 18 years of age or thereabouts suffered me of his own good liking that he did conceive it to be necessary for his estate yet not therwith contented the Chief Iustice caused the Earl of Southampton the L. Davers and Mr. Wakeman the persons to whom the world knew he his Estate was committed in trust and that they had worthily performed and calling them in an open Court and questioning with them they confessed to us all that it was necessary for the young Gentleman and for his good to part with this thing and that therefore they had made means to his Majesty for this Letter in that behalf whereupon the Recovery was passed openly at the Bar the last day of Michaelmas Term against Mr. Blunt in person and the Earl of Southampton the Lord Daverâ—… and Mr. Wakeman were admitted his Guardians Brownlow and Moyle Prothonotaries shewed Presidents of the like Recoveries against Infants M. 23 H. 8. rot 441. et P. 38 H. 8 rot 128. Tr. 28 El. rot 17 et M. 26 et 27 El. rot 45. 572 P. 42 Eliz. rot 1. 5. 63 44. 45 69 70 89 91 94 P. 32 El. rot 60 T. 38 El. rot 41 44 40 El. rot 62. 124 112 M. 40 et 41 El. rot 13 M. 34 et 35 El. rot 166. per Zouch M. 39 40 Eliz. rot 82. 173. M. 41 42 El. rot 24. 106. et 72 T. 42. El. rot 20. M. 42 et 43 El. rot 173. Chamberlines Case HE brought an Action upon the Statute of Hue and Cry and after Issue joyned and entred The Record was that the Robbery was done 30 Octob. It was ordered by the Court of Common Pleas that the Record shall be amended and made the 30th of September upon the Affidavit of the Attorney for the Plaintiff that he had given direction accordingly And shews to the Court the Book of the Office Male against Kett. HE brought an Action against Kett for these words Thou hast stollen my Corn out of my Barn and verdict was given for the Plaintiff And after verdict it was moved in arrest of Iudgement That perchance the Corn was not of the value of a penny Yet Iudgement was given for the Plaintiff For it is felony although it is not great Hitcham against Cason before NOw they urged 5 Eccles If thou see the oppression of the poor and perverting of Iudgement Perverting of Iudgement is the Oppression But then he did not again manifest Injustice It was objected that he might give erroneous Iudgement and that is Injustice If they are taken all alike it is clear that they are actionable and the party himself ought not to interpret but the Iudge The Case between Palmer and Boyer M. 37 38 El. He hath as much Law as a Iackanapes spolton of Palmer being a Lawyer and adjudged actionable And they were spoken to disgrace him in his profession 7 Iac. Thou a Barrester thou a Barrettor and thou durst not shew thy face Thou study the Law thou a Dunce actionable upon he same reason Mich. 14 Iac. Com. Banc. Beck against Barneby Spoken of an Attorney Thou art a Common maintainer of Sutes and a Champerter c. It was objected there that it was lawfull for an Attorney to maintain sutes Yet because he said Champertor it was actionable And Trin. 12 Iac. Com Banc. Yeardlies case He said of the Plaintiff being an Attorney Your Attorney is a bribing Knave and hath taken 10 l. of you to cousen me Answered that the words shall be intended of him as Attorney and so actionable One exhibites a Petition where it was first against the Lord chief Baron In which he said Tanfield is a great Oppressor of the Country and did remove the Boundaries between his Land and mine And it was adjudged actionable Pasc 4 Iac. Banc. Roy. Master Kebbe is a Basket Iustice and a partial Iustice and I 'll give him 5 l. a year for all Gifts that are brought to him for Injustice done And adjudged actionable And the word Partial Iustice bears an Action Hil. 40 Car. Kings Bench. Denson is a sweet Iustice of peace who gave a Warrant to apprehend I. S. and sent him notice of it Is actionable For it is a misbehaviour in a Iustice of Peace to do so H. 6. Iac. Com. Banc. rot 1159. Lonsman against Peck The Plaintiff shews that he had been impannelled upon several Iuries upon life and death and the Defendant said Thou art a Iury man and