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
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
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
said Goe not to such a one c. it is actionable without question Slander of one in his Trade will bear an action And so all being connexed alike it ought to be intended that he killed him in respect of his skill In Cases of Defamation Sir George Hasting's Case Thou didst lye in wait to kill me with a Pistoll were actionable So if one touch another in respect of his skill in that that he professes it will maintain an action c. And Yelverton to the same purpose for there is a difference between a Profession and a particular Calling As if words are spoken of one that is a Iustice of Peace he ought to shew that he was then a Iustice of Peace for he is removable and may be changed every Quarter Sessions But as to a Calling the Calling of every man is his Free hold 43 E. 3. Grant of an Annuity to one pro consilio and he professes Divinity Physick and Law there the grant is pro consilio generally for Physick if that be his usuall Profession And it is intended that a man alwayes dyes in his Calling If he said to I. S. Thou art a murtherer it shall not be intended of Hares for the Iudges are not to search so far for construction Loquendum ut vulgus intelligendum et sapiens If one sayes of a Merchant Put not your Son to him for hee 'l starve him to death These words are actionable for that that it comes within the compasse of the disgrace of his Profession And so of a School-master Put not your Son to him for hee 'l come away as very a dunce as he went Harvey If one sayes of a Iudge He is a corrupt Iudge it cannot be meant of his body to be corrupt but it shall be intended of his Profession Peitoes Case before HEnden for the Defendant the Case is thus A Rent is granted for life out of Lands which descend to the Heir and he makes a Lease of parcell of the Land to the Grantee for years who surrenders the term Whether the Rent shall revive or suspend during the term And it was said by him it shall revive First For that that it is the act of him who is lyable to the Rent to accept the surrender And there is a difference where there is a determination barely by the act of the party there it shall not be revived For the first 21 H. 7. 9. Tenant in Tayl of a Rent is infeoffed of Land and he makes a Feoffment of Land with a warranty to B. with Voucher as of land discharged of that Rent And so it is 19 H. 6. 55. Ascue put this Case Grantee of a rent in Fee and Donee in Tayl of Land infeoffs the Grantee who grants that over and afterwards the issue in Tayl recovers in a Formedon yet the rent shall not be revived But if it had been the joynt act of the parties as so by surrender it should have been revived First It is clear that if a Chattell personall be suspended by Sute it shall be gone for ever As if a Feme marries the Obligor 11 H. 7. 25. unless suspension be in anothers right if it be by the act of the party there it shall be revived As if a Feme Executrix marry with the Obligor and he dyes the suspension is determined and they are revived against the Executors 7 H. 6. 2. In one Gascoines Case Lessee surrenders to the Lessor upon condition the rent be suspended but if the Lessor enter for conditions broken the Rent is revived Which in effect is our case A rent is granted to the Daughter and the land descends to her and her other Sister who make partition The Rent is revived for it is the joynt act of both parties Plow 15. If a man had a Rent and disseises the Tenant of the land and after the Disseisee re-enters Where there is a revivor of the land there is a revivor of the Rent for the disseisin was the cause of the suspension and that now is gone Secondly Because that when the Lessee for years surrenders the term is determined to all purposes and the Lessor is in of his Estate is Fee and there is a diversity of surrender in respect of a stranger for to a stranger it may have Essence after surrender But as to himself it is otherwise extinct And he cannot say that it had any Essence 5 H. 5. 12. But in respect of a stranger it ha's continuance as if an Executor surrenders yet it shall be assets And all acts done upon Lessee for ltfe before surrender shall have a continuance after And so he prayed Iudgement for the Avowant But more after Wakeman against Hawkins IT was said That if an Executor was sued in this Court by Originall he shall not put in Bayl. But if he be arrested in an inferiour Court and removed by Habeas corpus he ought to put in Bayl. Stamford and Coopers Case STamford and Coopers Case was thus I. S. acknowledges a Statute to Cooper the 22 January and afterwards he confesses a Iudgement to Stamford the 23 of January next ensuing the Statute And it is extended And Stamford brought a Scire fac against Cooper to wit now because he ought not to have the land by Elegit And the Question was whether the Iudgement by relation shall defeat the Statute And it was resolved That the Iudgement shall have relation to the Essoin day which is the 20 day of Ianuary for that is the first day of the term legally and the fourth day after is the first day of the Term open Dyer 361. Pla. 10. A Release was pleaded after the last continuance and it bore date the 21 of Ianuary which was after the day of Essoin de Octab. Hil. And for that nought because that it came late for it ought to have been after the last continuance and before the last day c. 33 H 6. 45. Nisi prius was taken after the day of the return and before the fourth day after and adjudged nought because that the day of the return which is the Utas is the first day of the term and the fourth day after but a day of Grace and that is the difference If a man be obliged to pay money the first day of the Term he shall not pay it but upon the fourth day after for that is the first day in all common acceptance But in all legall proceedings the first day is the Essoin day And so it was adjudged 16 Eliz. And in the Kings Bench it was in one Williams Case A Iudgement was given the 20 of Ianuary and a Release of all Errours the 21 Ianuary and adjudged that that bars the Iudgement given the 20 Ianuary although it was not entred the fourth day after A Iustice in the Kings Bench examined an Infant upon inspection the Essoin day and found him to be under age and would not permit him to confess a Iudgement although that he would
was not shewed within two 2 daies And Bents Case and Hoptons were adjudged accordingly See 30 Eliz. rot 126. In the Case of a Sheriff there Wroth against Harvey DOwer was brought against an Infant and upon default Iudgment was given against the Infant and there was something assigned for error but notwithstanding Iudgement was affirmed as to that But afterwards an other errour was assigned in the record For that that the entry is obtulit se per Clerk atturnatum suum and names him not And so was the Case where such an one by Higgius atturnatum suum obtulit se And for that cause naught And Dyer 93. Because in waste the obtulit is per atturnatum suum and names him it was naught But Richardson said upon the first obtulit se it is not requisite to name the Attourney but upon the second Barleys Case NOte It was said by Richardson If a man says in his sickness I give 20 l. to I. S. and does not make Executors Yet I. S. shall recover against him who has the goods Crook said that 3 H. 4. That a devise is void if a Legacy be given and no Executors made Winchcombe against Shepard IN an action of the case for cutting of the bank of the River of Charwell by which the water run forth and drowned his meadows The Defendant pleads in bar that one Brooke was seised of a Mill called Gammons Mill and that there is a certain rivulet betwéen Gamors Mill aforesaid and Clyftons And that he and those whose Estate he had in Gamons Mill have used time out of mind c. as often as the said Gammons mill should be ruinous to cut the aforesaid bancks of the aforesaid rivulet in which the Trespass aforesaid is supposed to be done and to let out the water in old Charwell to repair the mill And he shews that the mill was ruinous and that he cut as aforesaid to repair and the water run out of the said old Charwell and so justifies And there was an exception taken by Atthow to this bar For that that he does not answer nor justifies to the place where the Trespass was done For he said that there is quidem Rivulus which is always to be intended of a strange thing As 6 E. 6. Dyer 70. In Trespasse the Defendant said quod quidam I. S. granted the part to him and afterwards said again quod quidam I. S. granted And because that he conveys two grants to himself by two persons for so the second quidam shall be intended And it shas ruled to be naught See the 33 and 34 Eliz. Debt by Lowe against Wotton The Defendant pleads that a long time after the Obligation was made by himself and Bassett quod quidam Iohannes Bassett acknowledged a Statute to the Obligor And because that he says quidam which shall be intended a strange person it was no plea. And the debt upon the Obligation is gon by the acknowleging the Statute See 9 H. 6. 16 17. In a quare impedit for the King of the Chauntry of St. Tho. and alleges a presentation The Defendant says that there is a Chapel of St. Thomas in the same Village and that the Defendant and all his Ancestors have béen Patrons of the same Church It was held no plea for there is no answer to the title made by the King For it shall be intended of another Chapel But here because that he said virtute cujus he cut the aforesaid banks of the rivulet aforesaid in quo transgressio praedict fieri supponitur A sufficient answer was made to the same place so ruled by the opinion of all the Iustices But it was objected that this barre was not good upon the matter For although he might let it out yet he ought not to drown any ground But because that the fault was in the banks of old Charwell He is not punishable for that lawfull Act which he had done Otherwise if he had not prescription 6 E. 4 6. If I have a pond I cannot so let it out that it shall surround the ground of my neighbour Another exception was taken for not pursuing the prescription For he does not shew that the place where the cutting was alleged was between them two mills whereof he makes mention Yet adjudged contra querentem And afterwards this judgement was reversed by errour because he had made his prescription local and that ought to be pursued But for the overflowing after the letting out It was by all held that it is not punishable Ienkins's Case THomas Ienkins as heir to Iohn Ienkins brought errour upon a Iudgement given upon an indictment upon the Statute of 1 Eliz. of Recusancy and assigns this error For that the Indictment was contra formam Statut. edit 23 Ian. 1 Eliz. Where the Parliament began 25 Ian. And for that it was held erroneous 3 Eliz. Dyer 203. Other matter was alleged for that that the Statute is that it shall be taken before Iustices of the Peace or Gaol delivery The Indictment was before the one and the conviction before another But that was thought a small matter And it was beld by the Iustices that the heir might have a writ of Error upon such a Iudgement As upon execution of a Statute after the death of his father It was objected that he brought error as heir but does not shew how he is heir But nothing is answered to that Keene against Cox IN an action upon the case brought by Keene for saying He is falsly forsworn before the Iustices of Assize between A. and B. Adjudged that it lies Mercer Ux. against Cardock Ux. MErcer Ux. brought debt against Cardock and his Wife as Administrators of one Tox. And upon plene administr pleaded The Plaintiff replies that they had assetts to satisfie the aforesaid Defendant whereas it should have been Plaintiff And because that it was but the misprision of the Clark It was held that it might be amended the record now being brought before them by errour Calthrop against Allen. IN Debt the demand was of 19 l. 17 s. and declares upon five several contracts and shews the certainty upon every of them which being cast up amounted to 20 s. more than was demanded And because that he does not shew how he was satisfied of the remnant It was held quod nihil cap. Goodridges Case AN Indictment of Murder was brought against Goodridge and this exception was taken because that the Indictment was That the said Francis who was murdered such a day apud quondam Down vocat Westmen Downe in the County of Hampton insultum fecit quod ibidem habuit tenuit quoddam gladium in his right hand praedict Franc. percussit and does not say ibidem percussit And therefore naught For it is not of necessity to be intended that the percussion was at the same place Also he said whereof instanter obiit that is no certainty but by argument that he died in the same place
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
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
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
seisin Et si vous alleadger ceo uncore nest traversable mes avowry do et ee sur le matter Et Incroachment ne avoyer issuit lou measnalty nest conveigh forsque al surplusage seisin nest traverseable Incroachment ne noier Et pur ceo est hors de 32 H. 8. Et ceo ne scavoy Cases lou de rent seck est distrainable de commrn droit seisin Poet ee traverse si foret alleadge Et si ascun puist ee monstre jeo ne doubt mes ceo voet ee alleadge per ascuns des freres come rent sur partition attend sur le terte c. issuit cest rent seck que est sane per cest Stattute ala one le mannor et est parcel de ceo come 21 As 23. rent seck est parcell est mannor ou auterment le defendant ad Title al ceo c. Objection est que est cy veiel que le comencement de ceo ne Poet ee conus et est nul fait de cest rent Et coment ne doies alleadge seisin de ceo in Avowry uncore jeo poy monstre que navera seisin deins 40 anns c. Respons est que cest rent comence dee rent seck per primo Ed. 6. cest Stattunte avoit mesme le force a preserver cest rent hors de 32 H. 8. come un fait ou record ad e'e Et le Stattute al rent est sicome le prophette que raise de mort le fitts dl widdow done vie al lui de fitts fait in vie devant mes uncore bien Poet ee dit que le prophet done vie al lui issuit cest rent fuit occide per les premises del Stattute per 1 E. 6. le saueing sa it ceo un in vie que est le al me de cest rent Et pur ceo ceit saluo do et ee monstre in avowry pur cest donque 7 E. 4. 27 29. E. 44. St le comencement del Suory Poet ee monstre ne do et ee alleadger seisin issuit de rent et coment que jeo doye in mon Avowry monstre que la fait ou rent service devant cest Stattute uncore ceo doye rely sur le saueing de cest Stattute 35 H. 6. 3 4. 22 H. 6.3 Avowry 73. Si Suor confirme a tener per meinder services si soiet recite in Avowry est sufficient sans seisin nul inchroachment pius tiel Confirmation noyer donque est un fait original ou un confirmation sur in case dee hors de ceo Stattute de 32 H. 8 issuit voile le Stattute de primo E. 6. Crook ad agree si le saueing ad ee particular de 18 al Suor Windsor que est que cest case nest deins 32. donque averment fait ceo cy certain Et si le saueiug est ee al le Suor Windsor All rents by which the Land is held of him donque avoit est bone et hors de 32 H. 8. Objection est icy est generall que nihil certi implicat c. mes certum est quod certum reddi potest come les cases mise cite per Hutton quel jeo conceave auxi sur le matter al primes le Roy graunt easdem Libertates que S. avoit Poet ee fait certain per averment que S. ad tiels Liberties c. Objection 32 H. 8. do et ee prise liberallmentâ—… Voier que all Avowries Conusances mes le Stattute est de petit faire car si replevin soiet convert al trespasse est hors de de cest Stattute 10 H. 6. 1. Long 5 E. 4. 87. Et in trespass poier traverse le tenure non solement le seisin hors dl Avowry in que le Avowant est Actor c. Objection 32 H. 8. suit sait pur le repose quiet des homes c. Respons solement in Actions deins cest Stattute in eux le Stattute avera liberall Construction que urors ne serra inveigle quel daunger cest icy pur ceo que le Stattute fait Title ee Accounter est nul mischief car poies traverse le tenure ou seisin devant le Stattute de primo E. 6. c. Mes adee dit que Stewards books Courts Rolls ou Bailiffs accounts poieat ee monstre port eins pur Title al rents extinct per leases ou c. uncore jeo die que ceux matters doient ee laise al Iury tiels choses in eux mesmes sout bone Evidences nous veiennus 7 Rep. Farmors Case que le stattute de Fines est avoid per fraud agreement des parties ad ee confesse poiet toller Le Case hors de 32 H. 8. come release Executrix of Henry Hassel IOne Hassel makes a Lease to H. Rassel of 3 Closes for 20 years if he should so long live Henry Hassel dies and debt is brought against his Executor for rent reserved upon that Lease who pleads that before the day of payment he assigned two of the Closes to a Stranger And upon demurrer Iudgement was given for the Plaintiff For if there had been an assignment of Henry If he did not give notice to the Lessor in acceptance of the rent he shall be charged Quod nota Iudgement in Debt IF Iudgement be given in debt and a Scire facias brought against the Executor who pleads ne unque Executor ne unque Administrator c. And it was found against him yet it was agreed by the Court that the Execution shall be de bonis Testatoris tantum For that that the Execution shall have relation to the Iudgement And the Scire facias is to make known that they had not Execution upon the first Iudgment which extends to the goods only of the Testator And so it was said by Moyle Prothonotary that it was rul'd in 5 lac in this Court If a Iudgement be given in Debt and the mony is paid to the Attorney of the Plaintiff Although that the mony miscarry with the Attorny yet the payment is good But if a Scrivener is imployed generally to put mony to use for a year and the mony is paid to the Scribener who breaks or does not pay the mony The payment does not excuse the party But if he receives it by special Command c. that is a good cause of Equity In Avowry IN an Avowry for Dammages feasant the verdict is found for the Avowant And a Returno habend granted for the Cattell and a Capias ad satisfaciendum for the Costs and Dammages are payed The Sheriff cannot execute the Returno habendo But if it be executed and Costs afterwards paid upon the Returno habendo A Writ De si constare poterit shall issue to the Sheriff for delivering the Cattel upon a surmise and payment of the costs c. A Prohibition DAvenport moved for a Prohibition for that that an Executor who resided within the Tower which is a peculiar Iurisdiction as it was surmised was sued in the Prerogative Court
Rent 5 R. 2. Annuity 21. Debitum Judex non leperat Then when it does not appear that the Action lyes for the 15. s. for the half year and the Iury assessed Damages intirely it is voyd as 10 Rep. 130. Osborns Case And it appears that by his computation of time it is not a year and an half from the time of the Assumpsit made Richardson said That it is not secundum ratum for then he might divide the Rent and no day is limited for the payment of it for if a Lease be made for two years or at will paying annually at Michaelmas 30. s. and the Lease is determined after half of the year although that it be by the Lessee himself he cannot make any Rent But Yelverton said that that is not a Rent but a collaterall sum And debt does not lye for that And in the Declaration it is said Quod permisit ipsum reentrare and does not say what time which was nought by all but Hutton And it ought to be also that he did de facto re-enter Hutton said There being it is said So long as you shall occupy the Land you shall pay annually c. That he may demand half of the year But the whole Court against him and so Pro hoc tempore judgement was stayed Grange and his Wife against Dixon A Lease was made by Baron and Feme and another Feme and the Lessee Covenants by the same Indenture to find sufficient mans meat and horse meat to the Baron and Feme and to the other Feme or to their Servants at their coming to London at his house in Southwark The Baron and Feme dye and the other Feme takes an husband The Opinion of the Iustices was that he was not bound to find sustenance for the husband but only for the wife or for her servants and not for both at one and the same time because the Covenant was in the disjunctive But it was doubted if he shall find them Victualls for one meal only at their coming or for all the time of their staying there Johnson against Williams and Uxor IT wad said If an Obligation be made by a Feme sole and afterwards she takes an husband and an Action of debt be brought upon that Obligation against the Baron and Feme and they deny the Deed the Baron shall be taken for the Fine as well as the wife for the wife had nothing whereof to pay the Fine And so in Trespasse against Baron and Feme dum sola fuit and they are both found guilty both shall be taken for the Fine which the Prothonotaryes agreed Jeakill against Linne IN a Writ of Covenant the Plaintiff counts upon an Indenture of Lease of the Parsonage of Dale by which the Defendant Covenanted to pay him the Rent the which he had not payed And the Defendant said that before any day of payment of the said Rent incurred one A. Ordinary of the same place sequestred the said Parsonage for non payment of the first fruits Iudgement If an Action c. And by the Court that is not a Plea for he does not shew that any Act was done by the Plaintiff himself in his default Nor he does not confesse and avoid the interest of the Lessor as to say that the Lessor was a disseisor and made a Lease to him after that the disseisee re-entred and so he might confesse and avoid the Lease notwithstanding the Deed indented But he cannot say that the Lessor had nothing at the time of the Lease made And if the Defendant had been bound in an Obligation for the payment of the said Rent in debt brought upon that that should not have been a Plea for he had bound himself to pay the said Rent And the occupation is not materiall where the Lease is for years or for life But otherwise of a Lease at will Davies against Fortescue IF a man it was said be seised of a Mannor whereof there are divers Copy-holders admittable for life or for years and he Leases the Mannor to another for term of life the Lessor may make a Demise by Copy in reversion to commence after the death of the first Copy-holders and that is good enough But the custome of some Mannors is to the contrary and that is allowed Doyly an Infants Case A Man seised of Lands makes a Feoffment in Fee by Deed indented rendring a Rent with a clause of Distresse and afterwards he is bound in a Statute and the day is incurred Vpon which an Execution is awarded to the Conusee and upon the Extent the Sheriff returns that the party was dead and that he had extended the said Rent And the heir of the Conusor being within age because the Rent was extended during his nonage brought an Audita querela and Hutton said That it is maintainable enough because there is an Exception in the Writ of Extent That if Land be descended to any Infant that the Sheriff shall surcease to extend And although that Writ issued against the party himself who made the Conisance yet when it appears by the return of the Sheriff that he is dead the Infant shall be aided by an Audita querela or otherwise the Extent shall be void which is made upon the possession of the Infant Jeffryes Case IN a Formedon the Plaintiff counts of a gift to his Father and to his heirs of his body ingendred during the life of I. S. and makes the descent to him during the life of I. S. And Yelverton seemed that the Writ is good enough for a Tayle may be made so determinable as well as a Fee simple And if a man Warrant Lands to the Feoffee and his heirs against him and his heirs during the life of I. S. That he had a Fee simple in the Warranty determinable upon the life of I. S. So here Warberlyes Case IN a Writ De valore maritagii it was moved by Henden If the Lord shall recover his Damages according to the value of the Land held of him only or according to all his Lands held also of others And Hutton and Crook said that the value of the Marriage shall be accounted as well in respect of the lands held of him as of other lands held of other Lords by Posteriority or in Soccage for there the woman by the Marriage to him shall be more advanced And the better the advancement is the better is the Marriage of the heir and the person more to be esteemed Norbery against Watkins ONe Devises the Mannor of S. to two and their heirs betwéen them to be equally divided so that they shall have part and portion alike If by that they have a Ioynt-tenancy or a Tenancy in common was the Question because there was an Act to be done for making the division And if the words had béen equally to be divided by I. S. it had béen clear that they had béen Ioynt-Tenants But Harvey said That upon such a gift made to them if the
tax cannot be made by the Church-wardens But by the greater number of the Inhabitants it may and a Prohibition was granted But by Yelverton If it be cited by ex Officio a Prohibition will not lye For so it was ex insinuatione c. For the Wardens came and prayed a Citation c. But by Richardson Harvey and Crook privately a Prohibition will lye in both Cases Commin against Carre COmmin brought Trespass against Carre for taking of two Heifers The Defendant pleads that the King was seised of a Wapentake in Yorkshire And had so large Iurisdiction as another Turn of the Sheriff And then he said that the Plaintiff plaid at Cards within that Wapentake in the House of such an one and said that that is contra formam Statuti 33 H. 8. ca. 9. And said then that he plaid at Cards another day And thirdly that he broke a Pin-fold c. And that the 24 Martii 21 Iac. warning was given to the Plaintiff he being an Inhabitant for a year before within the Iurisdiction of that Court that he ought to appear the last day of March following And said that the Court was then held and those offences were presented and that for his not appearing he was amerced 12 d. and for the playing 6 s. 8 d. and for the breaking the pound 3 s. 4 d. And now for all those amerciaments he distrained by vertue of a Warrant of the Steward of the Court and does not say what warrant And then justifies the selling of the said Heifeâ—s for 20 s. and that he retained 17 s. and offered the surplusage to the Plaintiff Atthow there is not any thing to prove any sorfeiture by the Plaintiff For the Statute is upon two branches First That no Common house of play be kept Secondly If any use those Houses and play c. That it is not said that that is a Common house of play But then it will be said that it is alleged contra formam Statuti and that will imply that But now that is not sufficient For if any inform contra formam Statuti If by his own shewing it does not appear contra formam Statuti He shall not have Iudgement Richardson A Common house of play is a House for lucre maintained for play And there the Law makes a difference between Common persons and private c. But contra formam Statuti will not serve For the offence ought to be alleged fully Yelverton made four causes of Distress selling the Distress If it be good for any it is sufficient And if there be a Iustification for three causes in Avowry If it be good by any It is sufficient 9 H 6. But so it is where a trespass c. Harvey A Iustification in a Leet That he distreyn'd and sold and delivered the overplus to the party in the Case of the King it is good But in the Case of Common persons I doubt whether he may sell And in the Case of the King he ought to deteyn the distress for 16 daies before sale But by Yelverton and Hutton All Leets are the Courts of the King and they may be used as the Courts of the King And it was said afterwards by Richardson That the Statute was grosly mistaken And that divers amerciaments were wanting And so Iudgment for the Plaintiff Traver against the Lord Bridgewater et Ux. TRavers brought an action upon the Case against the Lord Bridgewaters and his Wife Administratrix of T. D. her Husband deceased For that the said T. D. in consideration that the said Travers tradidisset deliberasset to the said T. D. divers Merchandizes he promised to pay c. The Defendant pleads that the said T. D. non assumpsit And 't was found for the Plaintiff and pleaded in Arrest of Iudgement that it was no Consideration And adjudged for the Defendant For when he said tradidisset deliberasset That they might be his own Goods Otherwise if he had said vendidisset de novo E. 4. 19. Accordingly Palmers Case IT was held by the Court If a man assume to pay mony due in consideration to forbear to sue him paululum temporis And if he forbear for a convenient time It is a sufficient consideration upon which to ground an Assumpsit The case was between Palmer and Rouse P. 40 El. rot 537. The Plaintiff counts that I. S. was indebted to him upon an Obligation and he forfeited it and dies and made the Defendant his Executor And that the Plaintiff was forced to sue the Obligation and in consideration of the premises The Defendant assumed that if the Plaintiff would forbear him pro brevi tempore that he would pay him And the Paintiff fidem adhibens c. forbore 4 years to sue him and said that the Defendant had Assets The Defendant said absque hoc that he had Assets And upon that the Plaintiff demurred and adjudged for him For the alleging of Assets in the Count is surplusage And now the consideration was sufficient for he had counted he had forbore for four years Panton against Hassel PAnton brought an action upon the Case of trover and conversion against Hassell who declared That whereas he was possessed of certain Iewels 16 April he lost them and 20 Ian. they came to the hands of the Defendant and he converted them And this was supposed to be done in Huntingtonshire The Defendant pleads that time out of mind c. the City of Bristow is and hath been a Market overt in Shops et locis apertis and the Defendant bought them in his Shop And further shews that he is a Gold-Smith by reason of which he was possessed of them as his proper Goods and converted them to his own use which is the same conversion Hutton When the Defendant had supposed an absolute property by the sale in the Market overt that Conversion after cannot be a Conversion of the Goods of the Plaintiff For of necessity there ought to be a mean time between the change of the property and the conversion Also the Custome is naught for he ought to say in locis apertis shops apertis For the cause of the change of the property is Because every one may come thereto and see if they are his Goods and there challenge them So that by some intendment in this prescription that Shop might he a private Shop And although that it be averred in facto that that Shop is apert Yet when the prescription is mislayed the Bar is naught For if Issue be taken que fuit shop apert That is not a good issue Also he prescribed that there was a Market overt every day except Sunday and Festivals and that it was not Sunday or Festival where it should have been nec Festival per que c. Harvey said That word apertis shall have relation as well to shops as to locis Hutton at Newgate Sessions seven of the Iustices being present there was a Question That if a man having Cloath
have come to full age the fourth day after The Court agreed that one may be non-suited the Essoyn day and if he confess an Action that day it shall be good And thereupon Iudgement was given that by the relation the Statute should be avoided c. Crookes Case A Feme sole leases at the will of the Lessor and after the Feme takes an husband If by the taking of the Baron the will of the Feme be determined and it was thought not Fenne against Thomas Hil. 3 Car. Com. Banc. A Man inhabiting in the most remote part of England was arrosted eight times by Latitat and no Declaration is put in Banco Reg. And the Counsell prayed Costs for the Defendant The Prothonotary said that he shall not have Costs unless he come in person But Richardson said on the contrary and he shall have Costs for it appears that he had been put to travell and a day given to shew cause why the Costs shall not be given Spark against Spark SPark brought an Ejectione firmae against Spark for lands in Hawkschurch in the County of Dorset The Case was a Copy was leased for a year except one day and that was found in the Verdict to be warranted by the Custome The sole Question is if an Ejectione firmae lyes And by Hutton If Tenant at will makes a Lease for years an Ejectione firma lyes but if it be a Copy-hold for years an Ejectione firmae will not be maintained Deakins's Case IT was said at the Bar and not gain-sayed If a man perjure himself against two the one by himself cannot have an Action upon the Statute but they ought to joyn for he is not the only party grieved Bentons Case A Man Leases for life and afterwards Leases for years to commence after the death of the Lessee for life rendring Rent the Reversion is granted Tenant for life dyes Lessee for years does not attourn And it seemed That the reversion passes without Attournment And he shall have Debt or shall Avow Williams against Thirkill AN â—…ion of Debt was brought by Williams against Thirkill Executor of I. S. who pleads a Receipt against him of 300. l. over and above which non c. The Plaintiff replies that the receipt was by Covin And so they are at issue and it was found for the Plaintiff and judgement was entred de bonis Testatoris And it was said by the by in this Case That Debt by Paroll may be forgiven or discharged by Paroll Ploughman a Constables Case PLoughman a Constable suffers one who was arrested pro quadam felonia antea fact to Escape And because it is not shewed what Felony it was and when it was done for it may be it was done before the Generall Pardon the party was discharged Hobsons Case VPon an Indictment of Forcible Entry Quod ingress est unum Messuag inde existens liberum Tenement I. S. And because he does not say Adtunc existens and without that it cannot refer to the present time scilicet of the Indictment He was discharged Sir Thomas Holt against Sir Thomas Sandbach SIr Thomas Holt brought Trespass against Sir Thomas Sandbach quare vi armis Because whereas the Plaintiff had used time out of mind c. to have a Water-course by the Land of the Defendant So that the water run through the Land of the Defendant to the Land of the Plaintiff The Defendant he said had vi armis made a certain Bank in his own Land so that the water could not have his direct course as it was wont to have Harvey It séems to me that the Action does not lye For a man cannot have an action of Trespass against me vi armis for doing of a thing in my own Soyl. But Trespass vi armis lyes against a Stranger who comes upon the Land and takes away my Cattell And such like things but not in this Case But he may have an Assise of Nusance As in Case where one makes an House joyning to my House So that it darkens my House by the erection of a new House I may have an Assise of Nusance against him who does it But Crook was on the contrary But it séemed to Richardson that he shall have Trespass on his Case but not vi armis And to that which hath been said That if one build a House to the nusance of another upon his own Land That he to whom the nusance is done may have an Assise of Nusance that is true And also if he will he may pull and beat down such an House so built to his Nusance if he can do if upon his own Land But he cannot come upon the Land of the other where the Nusance is done to beat it down per que c. Hutton of the same opinion By which it was awarded that the Writ shall abate And he put to his Action upon the Case Hitcham moved a Case to the Iustices One I. by Indenture covenants with an other that he should pay him annually during his life 20 l. at the Feast of St. Michael or within 20 daies after 10 l. and at the Feast of our Lady or within 20 daies after 10 l. The Grantée before the 20 daies passe and after the Feast of our Lady dies If the Executors of the Grantee shall have the Rent or not And the Iustices Hutton being absent said That it was a good Case And said that the Executors shall not have it Because it is not at all due untill the 20th day be past Fawkners Case A Lease was made to one for 40 years the Lessee makes his Testament and by that devises it the term to I. S. for term of his life if he shall live untill the said term be expired And if he dies before the years expire then the remainder of the years to F. for term of his life and if he die before the term be expired the remainder of the years to the Churchwardens of S. I. If the remainder to the said Church shall be good or not was the Question Because that the Wardens of the Church are not coporate so that they may take by that Grant Hutton and Harvy said that the Remainder was not good to them And said that the first Remainder was not good Peters against Field A Bill obligatory was shewed to the Court in Debt brought upon it And in the end of the Bill were these words In witnesse whereof I have hereunto set my hand and he had writ his name and put to his Seal also And because no mention was made in the Bill of no Seal to be put to the Bill It was moved to the Iustices If the Bill be good or not And it was agreed by the whole Court that the Bill was good enough Tomlinsons Case A Parson makes a Lease for 21 years The Patron and Ordinary confirm his Estate for 7 years the Parson dies The Question is Whether that confirmation made the Lease good for 21
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
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
payment of 72 l. And he alleges that the Defendant did not become bound in the Statute but that he himself delivered possession as soon as he could And upon non-assumpsit pleaded it was found for the Plaintiff And Atthowe moved in Arrest of Iudgement It is not a good consideration or promise He said that there was a Colloquium and an Agreement and in Consideration thereof c. That is not a good Consideration And the second Consideration that he delivered c. tam citius quam potuit It is not good for it is uncertain For it may be a year or two years or a day after And the other promise to pay 8 l. in the hundred deferendo diem And there is not any deferring the day for it is not shewn that it is due before and that he shall be bound in a Statute and that no sum is expressed which is uncertain Richardson There is a good Consideration and a good promise There was an Agreement touching the sale of a Banck and an acre of Land and take all alike and that perfects the Agreement And it is plain that the Agreement was for 72 l. and the delivery of the possession or making of assurance is not any Consideration But the promise is all the Consideration And he might have omitted the averment of the delivery of the possession But there is a cross and mutual promise upon which the Action might lye As many times it had been adjudged in this Court and in the Kings Bench. And for the words tam citius quam potuit the Law appoints the time scilicet so soon as he can go remove his goods things out of the House c. As in Case where one sels goods for mony the Vendee shall have for telling the mony And so here at the most till request be made And although it is not expressed in what sum he shall be bound by the Statute Yet it appears that it is for the payment of 72 l. And then the sum ought to be double in which he is bound As if one arbitrate that he pay 72 l. and enters into an Obligation for the payment of it That shall be in the double sum In which Case he said that he could shew several Iudgements of it Crook If one promise to me divers things some of which are certain It is good But also for the time of the delivery there the Law adjudges of that And the sum of the Statute shall be double as it had been said But for the Case of the Arbitrament it is adjudged contrary as 5 Salmons Case And admit that it be uncertain It is a reciprocal Assumpsit and an Action will lye upon that Hutton If a promise to enter into an Obligation there ought to be a reasonable sum as the Case requires for it And in this Case it being in a Statute which is more penal than an Obligation I conceive the same sum of 72 l. will serve And for the time of the delivery of the possession It ought to be in convenient time or upon request As 2 H. 6. And the Law adjudges of the inconveniences of time And although that he fails in the sum of his promises the end of his promise is good enough and the other is not concluded by that Action But he might allege other considerations in actions brought by him Yelverton There is but one promise against another And the sum in the Statute ought to be the same sum As the Case where an Annuity is granted of 20 l. untill the Grantee be advanced to a benefice That ought to be a benefice of the same value But I doubt whether it should be double Harvey It is there by way of promise And then one promise is the consideration of another and there is no breach for it ought to be upon request And then the Action being brought upon that side the request cannot be alleged and one promise good against another Then be the sum what it will ought the Defendant to be bound single or double The Assumpsit not being performed all agreed that the Action well lies A Verdict against an Infant NOte that it was said If a verdict pass against an Infant and the Defendant dies after verdict and it is shewn Iudgement shall not be given against him For the Court does not give Iudgement against a dead man and that is matter apparent and the other is doubtfull matter Fortescue against Jobson A Man seised of certain Lands hath Issue two Sons and devises one part of his Land to the eldest Son and his Heirs and the residue to the youngest Son and his Heirs And if both dye without Issue that then it shall be sold by his Executors and dyes The eldest Son dies without Issue And the opinion of Hutton That the Executors could not sell any part before that both are dead For the youngest Son hath an Estate tayl in Remainder in the part of his eldest Brother So that the Executors cannot sell it And if they do sell it yet that shall not prejudice the younger Brother So long as he hath Heirs of his Body Richardson said That although that the eldest Son aliens and after dies without Issue That the Exâ—…cutors may make sale For that that no interest was given to them But only an Authority to sell the Lands Dicksons Case A Writ de partitione fac against two the one appears and grants the Partition the other makes default Hutton said a Writ shall issue to the Sheriff to make Partition but cesset executio untill the other comes For Partition cannot be by Writ but between the whole Otherwise it is of Partition by agreement Rothwells Case IF a Man makes a Lease for life and the Lessee for life makes a Lease for years And afterwards purchases the reversion and dies within the Term yet the Lease for years is determined And the Heir in reversion may oust him and avoid But if one will make a Lease for years where he had nothing and afterwards purchases the Land and the Lessor dies If that be by Deed indented The Heir shall be estopped to avoid it By Hutton Crook and Richardson Sir Charles Foxes Case THe Case of Sir Charles Fox was now moved again by Henden It was objected that there ought to be an express demand at the day or otherwise he ought not to distreyn But first it appears that he had a good Title to the Rent then there being a verdict found he ought to have Iudgement upon the Statute But not admit that Yet the Demand is good for the words are legitime petit and no time expressed And although the Demand is after the day yet it is sufficient for all the arrerages for the words are tunc et ibidem but c. And the Difference is between the Demand which intitles to the Action and to the thing it self Maunds Case 7 Rep. 20. 40 Eliz. between Stanley and Read Where it was agreed That the day
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
a title be made there by prescription it is méerly coram non Judice and if they cannot meddle with the principal it is not reason that they shall tax costs And a prohibition was granted Fawkner against Bradley FAwkner and others against Bradley In false judgement given before the Sheriff of Bâ—…rkshire Bradley brought a replevin against Fawkner and the others who commanded the Sheriff to deliver the goods and summon the parties to appear The parties being demanded at the day they appeared and then the Plaintiff declared upon which it was proceeded to Iudgement And it was held to be naught For that he declared before any appearance But upon the default he might have an attachment and a distresse insuing Dame Sherleys Case DAme Sherley wife of Sir Henry Sherley sued in the High Commission Court for Alimony And Hitcham moved for a prohibition And said that alimony is not within the jurisdiction of the high Commssion For the Court of high Commission is to try ardua regni which are not tryable by the Common law Richardson The power of the high Commission is not de arduis regni but of heresies and of such other things Ecclesiastical And he said that the Court of high Commission had special words in their Commission but not in the Statute of primo and that the Statute de primo had no prerogative in that And so the question is if the King may by the Common Law grant such a Commission Hutton said that by the same reason as he may grant such a Commission They may grant Commissions for all other things Yelverton I marvail how that came within their Commission he said that in tempore Iacobi upon a debate before him Sir Edward Cook so fully satisfied the King And this matter of Alimony was commanded to be put out of their Commission And upon that Richardson said to Hitcham Move this again when the Court is full for we may advise of this Et adjournat Lynne against Coningham LYnne against Coningham in an action upon the case the matter was thus An action of debt was brought by the Plaintiff and he recovered and had a capias ad satisfaciendum to take the party The Sheriff arrests him and the Defendant made a rescous And in that if an action lies for the Plaintiff was the question And Ayliff said that the action did not lie against the party who made the rescous but against the Sheriff And he cited Fitzher Nat. Brev. 16 E. 4.3 where the difference is If an arrest be made upon a mean process and a rescous made There the Sheriff is not responsable Because that the Plaintiff might continue his processe against the Defendant But if it be upon Execution after Iudgement Now an action does not lye against the party but against the Sheriff And if he had an action against the party he shall have an action against the Sheriff also and so twice satisfied And the Sheriff shall have an action against the party and so he shall be twice charged Richardson said That the action well lies for the Case in 16 E. 4. It is séen there that it is doubted upon the mean proces execution as to the rescous the party may have an action either against the Sheriff or the rescoussers And in some cases a man shall have his election of the actions and both actions are but to recover damages A man had an execution against one He saw the man and conveyed him out of his sight And it was adjudged that an action upon the case lies against him And peradventure the Sheriff is dead then he should have no remedy if he had not an action against the party and no inconvenience follow For he that will do such a wrong it is no matter if he be charged by both If the Sheriff suffer one to escape it is an escape as to the Sheriff but the Plaintiff may have a new execution against the party if he will as it was resolved in this Court but Hutton on the contrary and that the action does not lie As if a man be imprisoned and an other help him out of prison yet an action will not lie against him by the Plaintiff And the difference is good where a man is arrested upon a mean processe and rescued and afterwards becomes non solvend so that they who rescued him is the cause of the loss of my debt It is a wrong upon which he may be indicted Yet the party shall not have a remedy against him because that he may proceed And then he should be the cause of multiplicity of actions Yelverton was of the same opinion and agreed that difference put before And that there is no difference between this case and the case put by Hutton For a rescous made half an hour after the arrest is all one as if it were a year after And Fitzherb nat brev 102. satisfies me Harvey on the contrary He who was injured the law gives him a remedy against the party who did the wrong In the Kings Bench the case how one came to take in execution by a fier fac the goods being in an house and one séeing the Sheriff came and shut close the door and adjudged that an action upon the case lies against him And there is no difference between our case and that where one comes to make execution and the other makes a rescous Richardson in Greshams case Gresham was possessor of the glasse house at Black-fryars Beresford was a Glass-mamaker and had many glasses in Greshams house Seaman recovers in debt against Beresford and coming to make Execution of those glasses Gresham standing at his door séeing them coming and knowing their purpose shut the doors Seaman brought an action upon the case against him and judgement was given for the Defendant because that the Sheriff never demanded the Key to open the house 18 E. 2. If he had demanded the Key it had been adjudged against Gresham And there if an action upon the case will lie for hindring to make execution a multo fortiori when it is actually done and then the party rescued And he denied the case put by Hutton where one is rescued out of prison And said if one be rescued from the Bayliffs the Sheriff ought to have the action Hutton upon a mean process the Sheriff never had remedy for the rescous but he shall return the rescous But upon an execution he shall not return the rescous but he shall have an action and that the party is not prejudiced for he shall have an action against the Sheriff who in judgement of law is the party lyable Crook That the action will lie is a mischief on both parts The Defendant may be twice charged and the Plaintiff may lose his Debt But I conceive the action well lies against him who made the rescous c. And if the Sheriff brings the action he may plead the recovery by the Plaintiff when the Sheriff makes his return of the
three things were moved in arrest of Iudgement which Serjeant Barkely answered There was a covenant to enter into an obligation at Michaelmas and the Plaintiff shews that he entred before So he does not perform the consideration which he conceived to be a good performance For if a man be bound to doe an act or pay money at Michaelmas a payment before is good H. 7. 17. 2. pasc It is shewn that an action of Covenant was brought after And they say that upon his shewing covenant does not lie but debt but he said that the Plaintiff had his election here to have debt or covenant As in the Lord Cromwels case the words covenanted provided and agreed give advantage of a condition or covenant If a covenant had been sor 30 l. then debt only lyes But here it is to perform an agreement Thirdly that it appears within the declaration that the action of the case was 6 years before the action brought And so by the Statute of 21. Jac. the action does not lye I agree if the cause was 6 years before yet the breach was within the 6 years and that is the cause of action 6. rep 43. In a covenant there is the deed and the breach of the covenant and that is the cause of the action And therefore being matter in Deed an accord with satisfaction is a good plea to it 13. E. 4. Attaint is grounded upon matter of record but the false oath is the cause of it For that there also accord is a good plea So in our case the non performance by default was not at the time limitted which was before the 6 years but no action was brought against the Plaintiff untill within the six years And then he is not damnifyed untill within the six years 5 Rep. 24. Richardson For the two first exceptions he agreed with Barkley as to the third he said that there can be no action before the breach of the promise or covenant But the breach here is before the six years for the non performance of the agreement is a breach and a breach is a damnificationn In one Boughtons case the non payment is a damnification But all the question here was whether that ought to be pleaded but I conceive that it need not for by the Statute-law the action is taken away And it being a general law the court ought ex officio to taken notice of it For in that after verdict if it appears that there is no cause of action although the verdict be found for the Plaintiff he shall never have Iudgement And upon the matter that latches in time amounts to a release in law the proviso cannot ayd you For every man shall be intended without those disabilities for that that he would shew that he would have advantage of it And Crook of the same opinion for the reasons given before and said that although the Statute took away the Common law yet it is good law and done for the ease of the subject and for that shall be favoured as the Statute of limitations in all cases But he said the non performance was not a damnification before the action brought As if I be bound as for surety for A. who is bound to save me harmlesse Although he does not pay it at the day There is not a breach before the arrest or Iudgement For by the Iudgement the lands and goods are liable But for the arrest his body is troubled for that now the Scriveners put in such obligations that they save harmlesse the party and pay the money at the day But for the other matters in all he agreed and cited Richardson and Burroughs Case Where a payment before the day was adjudged a payment at the day Yelverton That is not found that there is any sufficient notice given to the Defendant by the Plaintiff of the agreement made which he ought to have And he agréed in omnibus with Richardson and said that Scriveners use things ex abundanti Richardson It is said habuit notitiam in the Declaration but does not say by whom Yet after verdict it shall be intended a good notice And although that Nichols had given the notice it is sufficient If there be a Lease for years upon condition that he doe not assign the other accepts the rent of the Afsignee before notice He shall not be bound by that acceptance before notice But if notice may be proved either by the Plaintiff or by any although it be by a meer stranger It is sufficient Yelverton denied that for he said That none but privies can give the notice of it as the case is Et adjournatur Denne and Sparks Case before RIchardson If a will be of lands and goods and that was the occasion of this will the revocation is only tryable at the Common Law But when the will is of goods only the occasion of it shall be tryed only in the Spiritual Court For it is incident to the probate of the will quod fuit concessum And he said that in the case before if the will be not revoked the devise is good at the time and the administration shall be granted as of his goods for the Law will not change the property of the residue after debts and legacies paid Crooke The case here is that the Testator makes his will of his lands and goods and devises the residue of his goods ut supra to his wise his Executrix who dies before probate Denne sues to be administrator as the goods of the first Testator and alleges revocation which because that his Proctor did not goe and swear that in fide Magistri sentence was given against him Vpon that he appeals in which there was the same Obligation and affirmed by the Oath of his Proctor Yet sentence was given against him And a prohibition ought to be granted for three reasons First For that the Will is of Lands and Goods and the occasion of that tryable here Secondly they offer injustice in giving the allegation Thirdly The Wife here dying before the probate the administration ought to be granted as of the goods of the Testator and not as of the wife And also they here would inforce Denne if he had the administration to take it cum testamento annex Which shall be an admittance by him that there was not any revocation Richardson for the first reason he agréed that the revocation shall be tryed by the common law But the goods here are only in question and all the usage and practice is that a prohibition shall be granted with a quoad the lands For the second That they will not allow the allegation If they will not pursue their rules and order of Iustice That is not a cause of a Prohibition but appeal for the third It is fit that there shall be an election if debts and Legacies are owing But it doth not appear here that there are any debts or Legacies to be paid but after Harvey agréed with Crook
And for these faults and because it was Body for Body It was ruled that the Indictment was insufent Braces Case If a Feme sole Executrix of a term mary him in the Reversion and dies the term is not drowned but the Administration of it shall be committed Otherwise perhaps if she had purchased the Reversion And it was the Case of one Owen That if the Debtee mary the Debtor That the Debt is not gone but the Administrators of the Feme shall have it The Marquess of Winchesters Case THe Marquess of Winchester prayed a Prohibition and the surmise was that whereas the late Marquess his Father had made the three Lamberts his Executors which were his Bastards He also devised that they should sell as much of his Lauds as should amount to 100000 l. and does not limit any imployment of the mony inde proveniente And also that whereas by the Statute of 34 H. a man de non san memori is unable to make a Will of his Land And that the Marquess at the time of the making of the Will was not of san memori And it was held by the Court that although Land be not a testamentory thing whereof the Spiritual Court ought to intermeddle with Yet being conjoyned in the Will with the Goods they cannot do any thing with the one without the other Therefore a Prohibition shall be granted Because that for the non compos mentis it is more fit to be tryed in our Law And if cause be a Consultation shall be granted for part scil his Goods again And such a Prohibition was in Case of Lloyd against Lloyd Munday against Martin MUnday brought an Action upon the Case against Martin And declares That whereas at the request of the Defendant in November delivered to him and his Father 30 Kerseys for which the Defendant assumed to pay 40 l. to the Plaintiff The one half in hand and the other half a year after Vpon non â—…ssumpsit pleaded It was found by verdict that the delivery was made to the Defendant in August 31 next before the November mentioned in the Declaration The Question if that will maintain the count or not Ward That it will for the delivery in August is the delvery in November As upon payment of mony upon an Obligation before the day is a payment at the day And then if he does not pay it within a year after November he does not pay it with a year after August Richardson on the contrary For that cannot be intended the same promise For upon such a variance the Defendant may wage his Law And so it is if a man declares upon Debt of one day and the Déed bears date at an other day Also it is that the delivery was to the Defendant and his Father and it is found that it was to him only So that that cannot be intended to be the same Consideration Vpon another Cause upon the Declaration he cannot have Iudgement For it is in consideration quod deliberaâ—set which is in the Preter tence and therefore naught As 10 Eliz. Dyer 272. In consideration that he was bayl for his Servant the Defendant assumed Not good 37 38 Eliz. Between Gereny and Goteman in Consideration quod dedisset duas c. he promised to pay 10 l. at the day of his mariage Held no Consideration Crook To the Case of the variance of the date contained in the Deed. There it varies from that which is his warrant And the date in November cannot be the date in August Nor on the contrary The delivery raises the Consideration and the time is not material as to the Deliberaâ—set It was one Warthingtons Case That where in consideration that you will stand my bayl I will save you harmless A good Consideration Hutton For the delivery the time of the contract is not materially necessary to be shewn for certain But the day of the payment ought not to be mistaken as it is here For if the delivery was in November the payment ought to be in November too But it appears by verdict That the delivery was in August And then so the payment ought to be And then consequently the day of payment is mistaken Yelverton The Plaintiff cannot have Iudgement For then he might charge the Defendant again upon a delivery in August Atthowe If upon an Obligation the mony be paid before the day of payment It is a payment at the day if the Obligee dies not in the mean time But I do think that if he dies before that payment cannot be pleaded in an action of Debt brought by the Executors against him Sed adjournatur Sir Iohn Spencer against Scroggs SIr Iohn Spencer brought Debt against Scroggs who pleads per minas The Venire facâ—… was returned and the Iurors appear And the Array was challenged by the Defendant for Cosinage between the Sheriff and the Plaintiff Whereupon a new Venire fac was awarded to four Coroners who return the Venire fac and subscribe A. B. C. D. Coronatores And in the Habeas corpus A. B. C. D. only And Iudgement was given And upon that Error It was argued that does not lye First For that it is aided by the Statute of 18 Eliz. That no Iudgement shall be reversed after Iudgement for an insufficient return Also as it appears by 8 H. 6. Such a Return at the Common law made by the Sheriff shall be good although he was not called Sheriff But that Law was afterwards changed And only Sheriffs and Bayliffs of Franchises was provided for By which Coroners were not in Hutton The Statute of 18 Eliz. extends to insufficient matter of the Return But does not intend to toll the Statute of York He said also that he thought it was not requisite at the Common law for the Sheriff to put his name of Office upon the back of the Writ But he demanded how it might appear that they are Coroners if they are not named so Crook It hath been adjudged that Coroners ought to put their name of Office And their names are parcel of the Return So that defective insufficiency is remedied by the Statute of 18 Eliz. Richardson Without putting their names it does not appear that they are Coroners Luvered against Owen HE declares upon the Statute of E. 6. for tithes and an exception was taken For that that it was said tam pro dom rege quam pro se ipso But it was affirm'd to be good For the King is to have a Fine Hutton If an Action be brought upon the Statute de scandalis magnatum The Plaintiff may declare tam pro domino Rege quam pro se ipso And so upon the Statute of Hue and Cry It was objected that one Tomlins Case was adjudged to the contrary But that Case was Because that he demanded in this manner and the Statute when it says that he shall forfeit it shall be intended to him who had the loss So it could not be demanded for the King
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
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
day a procedendo in this case was granted Sir William Cave against Sir William Fleetwood IN debt the Plaintiff had judgement Hill 5 Car. Com. Banc. and a cap. ad satisfac was awarded against the Defendant upon which he was outlawed And Crawley moved that the Plaintiff might have an Elegit and cited 21 H. 7. 19. There are but four manners of Execution Two by the Common law levari and fieri fac And two by the Statute elegit and capias and none of them is a barre to the other unlesse there be satisfaction of it A fieri fac is no barre to the cap. although part of the Debt be satisfied 22 Ass 47. E. 3. Exec. 41. If the party pray execution of the body and had it then he shall not have resort to a new Execution For if the Defendant die in prison it is adjudged in Bloomfields case that the Plaintiff shall have an Elegit which proves that it is the satisfaction the Law looks upon and respects A fieri fac is no barre to the capias although part of the debt be levied by fieri fac and a capias may issue after Secondly the processe is determined by the Outlawry although it be after Iudgement And for that the Plaintiff resorts to his satisfactory execution again 17 E. 4. 4. Execution by Statute does not oust execution by the Common law no more than the execution by one Statute ousts the execution by another Hutton Iustice If upon an Elegit brought it be executed he can never have an execution And if a man be taken upon a capias the party now may have another execution but the outlawry here determines the process and then the Plaintiff by scire fac revives the Iudgement again and he may resort to which process he will If a man had a Iudgement and taken a capias and done nothing upon it but died the Executor is not bound by that But after a scire facias he may have an Elegit or what other execution he will Hudson and Lees case Common Bench The Plaintiff took an Elegit but because he could not upon the Inquisition find sufficient to satisfie he resorted to a capias And it was agréed that he might for that that the Elegit was not awarded upon Record But if an Elegit be awarded by the Roll and so shall be recorded the Plaintiff ought to proceed upon that But the course is not to award it upon the Roll and he said that Bloomfields case is not Law For if the party die in execution by Elegit by capias the Plaintiff had his execution and might not have any execution again And so it was adjudged in Iacksons Case in this Coutt And the making of the Statute of 21 â—…ac shews that so the Law was taken Wollaston Dixye against the Bailiffs and Burgesses of Derby IN a quare impedit the Plaintiff declares that Iustice Beamont was seised in Fée of the Advowson of St. Peters in Derby and presented his Clerk to it who was instituted and inducted c. and dies and that the Advowson descended to H. Beamont his son and heir and he died and the Advowson descended to Barbara his daughter and heir and that she being seised in fée and under the age of 21 years the Church became void and Barbara her Mother who had not any right of presenting presents her Clerk who was instituted and inducted and admitted to it And Barbara the Daughter took the Plaintiff to Husband and became of full age and then the Church became void And because the Bayliffs and Burgesses presented and the Church so full within the six months the husband alone brought that action upon which there was a demurrer Davenport said the action did not lie for the husband alone but the wife ought to joyn with him For that usurpation upon the Infant which he had by descent by the Statute of West the 2d does not turn the Infant to his writ of right Yet the Vsurper gets the inheritance and turns his estate to a right And for that he cited Cook 6. 50. Boswells case and 16. E. 3. there cited Where one seised of a Mannor with an advowson appendant dies his heir within age who suffers an usurpation and then grants the Mannor Resolved that the advowson does not passe because that the heir had but a right in the advowson after the usurpation So in our case the wife had but a title of action and than the wife ought to join As where an obligation is made to a woman who takes a husband the wife ought to joyn with the husband in the action upon the obligation But Henden said that the Husband only might have an action If a feme covert be seised of an advowson in fee and the Church void the Husband only may have an action without question Which was granted by the Court. Then here the wife being of full age before the avoidance now the feme being in possession of the Advowson again to all intents and purposes And for that by the exposition of the Statute of Westminster the force of the usurpation being upon the Infant who had it by descent continued but during the incumbency and non-age of the Infant And it was said by Richardson That the Infant at full age might present and so regain the possession without action at the Common Law by usurpation she was turned to her writ of Right And if it was a purchase he was without remedy Now I demand in this case If there be a death during the avoidance whether the Executor shall have it or the Husband upon tenant by Courtesie And he cited the Lord Stanhops Case which was That the Abbot of the Monastery of Shelford was seised of the advowson in gross and there was an usurpation in the time of the Abbot And then came the Statute of dissolutions which gave a right and title to the King So that that which was in the Abbot was now in the King Afterwards the King grants that Advowson by a general grant without recital of the case And adjudged a good grant But by Hutton Warberton and Winch Iustices were of the contrary opinion to Hubbard But that was because that there are words in the Statute that the Subject shall have all the King had which was to induce purchasers Hutton If it might appear that the Plaintiff scil the Husband presented before the Vsurpation and was disturbed that perhaps would have been a claim and so a remitter For at the Common Law the remedy for an Infant was to present and upon admission and Institution c. of his Clerk he should be remitted or might have a Writ of right if he pleased But by the Court the husband only in this case might have presented And then upon disturbance he only shall have the action But here the Church was full before the presentation Henden said the intention of the Statute was to give to the Infant at full age
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
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
action upon the case lies for retaining the servant of another And by them the retainer without being testimonial which is an offence against that Law is after the years of reteiner expired For so are the words of the Statute But they said that the Information was naught because that it does not appear that the Defendant did not retain him out of the Parish where they served before For the Statute says out of the City Town or Parish c. except he have a testimonial And the words secundum formam Statuti will not aid it And in the same Village or City c. The Statute does not require a testimonial because that there it was known c. And for these reasons after here said for the Plaintiff Iudgement was stayed if c. Jennings against Cousins IEnnings brought a Replevin against Cousins who avowes for damage feasant The Plaintiff replies that post captionam ante deliberationem he tendered 3 s. which was a sufficient amends for the Trespasse and the Defendant notwithstanding detained his Cattel contra vadum pleg c. Vpon which they demurred And by the whole Court the Replication is naught For Pilkintons Case was agreed to be good Law that the tender ought to be before pounding but any time before the impounding it is sufficient But here ante deliberationem implies that the Cattel were impounded and it is not shewn in certain that the tender was before And it was agreed in trespass That the Defendant may plead the Trespass to be involuntary and disclaim in the Title without pleading the Statute of 21 Iac. for the Statute is a general Statute Whereupon Iudgement was given for the Defendant Butts against Foster THe Plaintiff in an Action upon the Case the Plaintiff declared That whereas he was a man of good fame carriage and behaviour and free from all blot or stain Yet the Defendant with purpose to draw his life in Question and traduce him amongst his Neighbours in presentia multorum c. crimen felonae ei imposuit ea occasione illum arrestari causavit et per spatium duarum dierum in custodia detineri coram Iohanni Pettyman uno Justic ad pacem c. duci procuravit nequisfime prosecutus est c. The Defendant pleads not guilty which was found for the Plaintiff And Hitcham moved in arrest of Iudgement that the Action would not lie And of that opinion was Hutton because that he did not proceed to indictment For there an Action of that lies in the nature of a Conspiracy But if an Action should lie here it would be a mischievous Case for by that every man would be deterred to question any person for felony And it was said by Hutton If one said You have broken the Peace and I will cause you to be arrested and procures a Warrant from a Iustice of Peace by which he is arrested No Action here will lye But Berkley on the other side said to the contrary and of that Opinion was Richardson Chief Iustice that the Action will well lye And by Richardson The Defendant ought to have justified that there was a Felony done and that he suspected him c. But he pleads not guilty And it does not appear by the Declaration what was done with the Plaintiff after he was brought to the Iustice of Peace and by that it shall be implyed that he was dismissed upon his examination And here the Plaintiff was imprisoned and carried before a Iustice of Peace which is an act done as well as in the case where there is an Indictment And an Attourney of the Court cited one Danvers and Webly's Case In that very case it was adjudged that the Action lay But it was adjourned to another day Champues Case OUnson makes his will gives 200 l. to Tho. Champues son of Jeremie Champues Also to other Children of Ieremy 20 l. a piece to be paid at their several marriages or ages of 21 years And after wills that his Executor should enter into bond to the several parents to pay the several Legacies to the several Children at the ages of 21 years or their marriages And his Executor after his death gave an Obligation to Jeremy Champues to pay the 200 l to Thomas at his full age or marriage But in the Spiritual Court afterwards upon libell it was ordered that he pay the legacies presently Thomas being under age of tender years And for that Henden moved for a prohibition Richardson although the sute for a Legacy be properly in the Spiritual Court yet if there be an Obligation given for the payment of it it is not turned to a duty in the Common Law and then it is not tryable there This is one reason why a prohibition shall be granted Secondly another reason is because that they sentenced the payment of the Legacy against the Will and against Law and the Obligation here will not alter the case for it is given to another person not to the Legatee and then the Legatee notwithstanding the Obligation may sue in the spiritual Court But by Richardson it is all one for here the Will orders the Obligation to be made Which Hutton changing opinion and Harvey agréed For now because the Obligation is given if the sentence shall be given the party is liable to the Obligation also to perform that And by Richardson it seemed that the clause in the will of the Obligation to be entered into by the Executor to pay at the marriage or 21 years of age the several Legacies c. extends to the first Legacy of 200 l. to Thomas although it be coupled to the last Legacy which should be by a new and several Item And by that clause the intention of the Testator appears that the 200 l. which is given generally and no time of payment named It shall not be paid until marriage of 21 years of age And a prohibition was commanded to be granted NOte It was said by Richardson chief Iustice If a man had a way over the Land of another for his Cattel and upon the way he scares his cattel so that they run out of the way upon the land of the owner and the party who drives the Cattel freshly pursues them c. That in Trespasse he who had the way might plead this special matter in justification Green against Brouker and Greenstead IN Trover and reversion the Plaintiff declares That whereas he was possessed of a bag of hops and a bag of flax to the value of c. And that the Defendant found them and the third day of October converted them And the Defendants plead that Sandwich is an antient Village and that the custom of forrain attachment is used there as in London and that these goods were lost upon default in November and traverses absque hoc that they were guilty of any conversion in October Pasc 7 Car. Com. Banc. or any other time or day than the times before which are
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