adjudged insufficient and a new Writ awarded but many held that in the case of a Cognisor it was well enough but not in the case of a Purchasor If one knowledge a Statute and after a Judgement is had against the Cognisor now against the Cognisor the Statute shall be preferred but not against an Executor If a man plead a Bond knowledged to the King in the Exchequer it must be averred to be a true Debt If a Debt be assigned to the King in this case no priority of Execution If one staul a Debt by 20. s. a year this shall not stay my Execution the Court were of opinion that an Extent would not be good at Barwick for the Writ runs not there If a Judgement be given in a Court of Record it shall be preferred in case of an Executor before a Statute But if a man acknowledge a Statute and afterwards confess a Judgement and if the Land be extended upon the Judgement the Cognisee shall have a Scire facias to avoid the Extent upon the Judgement otherwise in case of Goods for therein first come first served for if I have a Judgement against one and afterwards he acknowledgeth a Statute and by vertue of the Statute the Goods of him being dead were taken in the Executors hands then upon the Judgement a Scire facias was sued and afterwards a Fieri facias of the Testators Goods it was held that the Goods first extended were lawfully extended and shall be good A Judgement was had against Sir Fr. Freeman and an Extent came to the Sheriff and afterwards and before any thing was thereupon done one Fieri facias against the Executor upon a Judgement given before the acknowledging the Statute was delivered to the Sheriff and the Question was whether the Extent or Fieri facias shall be first executed And note if the Land be first extended upon the Statute and afterwards an Elegit upon a Judgement obtained before the acknowledging the Statute come also to the Sheriff the moity of the Land extended shall be delivered to the Plaintiff upon the Judgement HIll 15. Jac. The case of Villainage is within the Statute of Limitation and in the case of M. Corbet it was held that the Prescription of the Seisin of the Plaintiff and his Ancestors as Villain was more then needeth and the Issue thereupon taken was good by the whole Court after Exception taken thereupon and Judgement was given for the Plaintiff In every Elegit the Sheriff must return and set out the moity distinctly unless they be Tenants in common and in that case he must return the special matter An Extent issued out against one Greisley by the name of Greisley Esquire who was at the time of suing out the Writ made Knight and Baronet and it was naught and the Plaintiff prosecuted a new Writ MIch 10. Jacobi A Tenant by Statute Staple or Elegit that hath extended an Abbots Lease or a Lease made out of an Abbots Lease is not bound to shew it because he cometh in by Act of Law but any other that cometh in under the Lease must shew it by the opinion of the whole Court And note that in Hillary 10. Jac. two Inquisitions taken at several Dayes by several Juries upon one Statute Merchant were adjudged naught one was taken of the Land and the other for Land and Goods and Extent of the whole fourth part was naught for it should be of the moity of the fourth part and mark it was of a Lease which was but a Chattell and the Sheriff might have sold it as Goods but seeing he had extended it in this case he should receive benefit but as in a common Extent COmyrrs versus Brandling A Lessee that had a Lease of the value of 100. l. and after the Teste of the Elegit and before the Sheriff had executed the Elegit assignes his terme to one who assignes it over to the Plaintiff in the Scire facias and afterwards and before the last Assignement the Sheriff executes the Elegit and delivers the Lease to the Plaintiff tenend c. for satisfaction of the Debt which came to but 43. l. 6. s. 8. d. it was held by all the Judges that the Sheriff could not deliver the Lease at another value then what the Jury had found it at and the Sale made by the Sheriff is as strong as if it had been made in open Market and that all the Goods and Chattels are bound after the Teste of the Elegit and cannot be sold by the Owner after the Teste of the Writ If a later Extent be avoided by an ancient Extent after the ancient Extent is satisfied the later Extent shall have the Land according to his first Extent without any re-extent by the opinion of Serjeant Hutton if the Husband charge the Lease of the Wife and dieth the Wife shall hold the Land discharged HIll 12. Jac. The Earl of Lincoln against Wood the Earl of Lincoln did arrest Wood upon a Capias upon a Statute Merchant Wood being in Execution obtained in the Chancery an Audita Quaerela and did put in Bail there and had a Supersedeas and was discharged of his Imprisonment and the Audita Quaerela and Bail sent into the Common Pleas to be proceeded on The cause of the Audita Quaerela was grounded upon the performance of the Defeasons of a Statute and after this case was debated for the Bailment of Wood and held by the Court to be good it was allowed of If the Act for Dissolution of Monasteries had not given the Land to the King the Founders ought to have had them And if an Hospital or religious House is impeached upon the Statute of Superstitious uses it must be proved to be regular for they must be religious that are dissolved by E. 6. JOules versus Joules Alderman purchased Land of one against whom a Judgement was given long before the Purchase and the Vendor afterwards became unable to pay the Judgement and long after the Plaintiff in the Judgement purchased a Scire facias against the Defendant and had Judgement against the Defendant by Default and afterwards had an Elegit and by vertue of that the Sheriff extends the Land of Joules the Purchasor who prayes the aid of the Court because the whole Land was not extended but he was forced to bring his Audita Quaerela If I make a Lease for years reserving a Rent during my Life and my Wives Life if I die the Rent is gone because she is a stranger she shall never have the Rent because she hath no Interest in the Land if one of them die nothing can survive to the other and a Limitation must be taken strictly otherwise it is by way of Grant that shall be taken strongly against the Grantor If 2. Tenants in common joyn in a Lease for years to bring an Ejectment and count Quod cum dimisissent c.
certain Day specified in the Condition The Defendant pleads that the Plaintiff at the Day of Payment accepts of another Bond for the Payment of the said Money in satisfaction of the said 52. l. 11. s. and upon a Demurrer held to be a naughty Plea for one Bond cannot overthrow another LEa versus Pain Hill 14. Jacobi rotulo 953. An Action of Debt brought upon an Obligation with a Condition to perform an Award the Defendant pleads that the Arbitrators made no Award The Plaintiff by way of Replication sets forth an Award that the Arbitrators did arbitrate of all matters untill the Date of the Award which was a Moneth longer then the Submission and so pretends they exceeded their Authority The words were for all causes before the Date of the Award Another Exception was because the Arbitrators awarded that the Defendant should pay the Plaintiff such a Day of April and doth not say what year or next following and the Court held that good enough because the second Day of Payment was made to be such a Day and such a year and it was held good enough for if any new matters did arise between the Submission and Award or c. the Defendant ought to shew it Another Exception was that it was not said that the Award was made between the Parties but it shall be intended to be made between the Parties because the Award was made de super praemissis and therefore it shall be implied that it was made but of such things as they had power to deal in The Court was of opinion that the Award being de super praemissis the Court shall not say but that this was a cause submitted and except it had been discovered by pleading that there was a new cause since the Date of the Award which was made known to the Wardsmen the Court is not to take notice thereof SCot Executor versus Herbert The Plaintiff in his Declaration sayes the Testator in his life-time was possessed of Land for a terme of years and so possessed grants part of his terme to an Estranger reserving Rent and he grants his Estate to the Defendant And that the Testator died possessed of the Reversion of the terme and because the Rent was behinde the Executor brings his Action of Debt for the Rent and the Declaration was held naught for that it did not appear that he that made the first Demise was seised in Fee or in any other Estate by which he could make a Lease NOrris and Trussell Wardens of the Society of Weavers in the Town of Newbury in the County of Berks versus J. Scapes Pasch 14. Jac. rotulo 907. An Action of Debt brought and the Plaintiffs declare that Queen Elizabeth had incorporated them by such a name and given them Power to make by-laws for the better governing their Corporation c. and further shew that they made an Order which was confirmed by the Justices of Assise according to the Statute of 19 H. 7. and for the Breach of such Order brought their Action the Defendant pleaded that he owed them nothing and tried and a Verdict for the Plaintiffs and Hutton Serjeant moved in Arrest of Judgement and took three Exceptions the first because the Constitution was against Law to restrain one to exercise a lawfull Trade The second the Constitution was that the Offender should forfeit such a summ and it did not appear to whom this Forfeiture should go Thirdly the Plaintiff shews in his Count that the Queen by her Letters Patents had appointed A. B. C. to be Wardens for one year and shews not which those that brought the Action were elected which ought to be to intitle them to that Action It was against sense to barr all their own Apprentices it doth not appear how many Wardens should be and they do not intitle them to the Action by the Corporation the Law is altered and Judgement was given for the Defendant BRet versus Averder Mich. 29. 30. Eliz. Debt brought upon an Obligation to perform an Arbitrement the Defendant confesses the Arbitrement but pleads in Barr that the Plaintiff did not require him to make Payment and to that Plea the Plaintiff demurrs and it was adjudged no Plea for the Defendant at his perill ought to make Payment and the Plaiutiff ought not to make a Request HAles versus Bell Trin. 39. Eliz. rotulo 1974. The Plaintiff brought an Action of Dèbt upon an Obligation with a Condition for the Payment of 40. l. within fourteen Dayes next after the return of one Russell into England from the City of Venice and then the Obligation should be void the Defendant pleads in Barr that the said Russell was not at Venice upon which Plea the Plaintiff demurrs and adjudged a naughty Plea for where part is to be done within the Realm and part out of the Realm the Plea ought to be triable within the Realm GArret versus Harrison Executor Trin. 40. Eliz. rotulo 1651. To an Action of Debt upon a Bond brought against him as Executor the Defendant pleads six Judgements in Barr the Plaintiff replies that they were by fraud and covin and the Jury found for the Plaintiff that two of the six were by covin and Williams moved in Arrest of Judgement because the Jury ought to have found all but Glanvile said that if any part of the Plea be insufficient defective or false the Issue shall be found against you for your Plea is one intire thing and he said that the Plaintiff should have taken Issue upon one onely as in an Obligation with diverse things in the Condition Walmsley held that by the Plea the Defendant had confessed implicatively that you have sufficient to satisfie those six Judgements and no more So that if any part be found against you this is Assets and Judgement was given accordingly for the Plaintiff GReen versus Wilcox Executor To an Action upon an Obligation brought against the Defendant as Executor he pleads that the Testator was obliged to A. in 20. l. which remained due to him at his Death and that the said A. recorded against him in the Common Pleas and averres that it was a true Debt and the persons and matters to be the same and that he had no Assetts beyond that and the Plaintiff replies that the said Recovery was had by fraud and covin between them to defraud him of his Debt to which Plea the Defendant demurrs specially because he had in his Plea averred it was a true and just Debt so that it could not be by covin Trin. 44. Eliz. It was adjudged for Law by the whole Court that if a Fieri facias be directed and delivered to the Sheriff he may not break the outer Door of the House and enter and do Execution but if the outer Door be open then he may enter by that and then he may and ought to break the Door of an Entry or Chamber which is locked and break
open any Chest which is locked and take the Goods in that in Execution and if he doth it not an Action of Case will lie against him In Debt if it be demanded by Original the Process is Summons Attachment and Distress and for Default of sufficiency upon a Nichil returned Process to the Outlary if the Summons or Attachment be returned an Essoyn lies And Wager of Law lies if the Count be upon a simple Contract And if the Parties be living which made the Contract or Debt against an Heir the Writ shall be brought in the Debet but when it is brought against an Executor or Administrator or of Chattels it shall be in the Detinet tantum The Judgement in Debt where the Demand is in the Debet detinet is to recover the Debt Damages and Costs of Suit and the Defendant in misericordia but if the Defendant denies his Deed then a Capias for his Fine issues out And if the Original be in the Detinet for Chattels then the Judgement is to recover the thing in Demand or the value thereof and Costs and Damages and the Process of Execution is a Distress to deliver the Chattels or the value and Damages And if the cause of Action be against Executors or Administrators the Judgement is to recover the Debt and Damages of the Testators Goods if the Executor hath so much in his hands and if he hath not then the Damages of the Executors or Administrators proper Goods And if the Sheriff upon a Scire facias return a Devastavit then a Fieri facias or Elegit may be sued out to levy the Debt and Damages of the Executors or Administrators proper Goods And if the Executor plead that he never was Executor and it is found against him that he hath administred but one Penny the Judgement shall be to recover the Debt and Damages of the Executors own Goods Debt brought upon a Record the Execution shall be brought where the Record remaines MIch 9. Jac. rotulo 2304. Throckmorton Administrator versus Hobby The Aministrator releases and afterwards the Administration is revoked and declared by Sentence to be void and null and then the Release is void TRin. 9. Jac. rotulo 917. Brookesby Vaux versus M. Tresham Executor of the Testament of T. T. and Exception was taken to the Defendants pleading because the Defendant pleads divers Statutes to divers persons and the Plaintiff shews that some were by fraud and that others were for performance of Covenants that were not broken and for other Statutes that they were satisfied and the Defendant in pleading a Statute by three sayes two of them did not pay and doth not say that the three nor any of them have not paid In pleading of a Statute it must be generally pleaded that it is a true Debt And my Lord Cook held that a man without a Defeasance may plead that the Statute was acknowledged for Payment of a lesser summ and it was held that if the Count be good and the Plea naught and Replication naught if it appears that the Plaintiff had good cause of Action the Plaintiff shall have Judgement And Warburton said that one may plead generally that the Statute was acknowledged by fraud without shewing the special matter SPeak versus Richards The Plaintiff brought an Action of Debt for Money levied by the Sheriff upon a Levari facias and not paid to the Plaintiff upon the Sheriffs Return upon the Levari issued out of the Chancery and that it would well lie But note the Plaintiff had concluded his Demurrer ill for he demurring to the Defendants Plea which was grounded upon a Release should have demanded Judgement if the Defendant should be admitted to plead a Release which was made after the Sheriff had made his Return TRin. 15. Jac. rotulo 1630. Parson versus Middleton Action of Debt brought to be tried in Durham and the Record sent to the Chancellor of Durham because the Bishops Sea was empty and before the Day given by the Judges a Bishop was elected and he sent the Record and not the Chancellor MIch 15. Jac. rotulo 2118. Maddock versus Young The Plantiff brought an Action of Debt for an Escape against the Sheriff upon a Capias utlegat after Judgement the Defendant pleads that there was no such Record of the Recovery of the Debt and Damages to which Plea the Plaintiff demurrs pretending he had not directly and plainly answered the Declaration but Judgement was given for the Defendant Where a Capias is not the Process a Capias ad satisfaciendum is not the Execution and no Capias lies against a Countess or Baroness and at Common Law no Capias ad satisfaciendum would lie but onely where the Action was Vi armis but onely a Levari facias MIch 14. Jac. rotulo 3140. Bawkey versus Isted An Action of Debt brought upon the Statute of E. 6. for not setting forth of Tithes of Land lying within the Parish of Horsted parva the Defendant pleads Nil debet per patriam and after Triall and a Verdict Exception was taken to the Venire facias because the Venire facias was of Horsted parva and not of the Parish of Horsted parva but the Court were of opinion that it might be either of the Town or Parish of Horsted parva and Judgement was given for the Plaintiff because both the Town and Parish were named in the Record An Action of Debt brought against an Administrator who pleads that the Intestate was indebted to him and that he had fully administred and that he had no Goods or Chattels which were the Intestates beyond Goods and Chattels to the value of 10. l. which the Administrator retains towards satisfaction of the said Debt to him due the Court were of opinion that the Administrator ought to plead generally fully administred else the Debtor should be prejudiced in taking Issue upon that Plea the Case was between Fox and Andrew PAsch 6. Jac. rotulo 751. Sharpley versus Hurrell Action of Debt brought upon an Obligation and the Defendant pleads the Statute of Usury and sets forth that one Ship went a fishing to New-found-land which Voyage might be performed within eight Moneths the Plaintiff delivered fifty pounds to the Defendant to pay sixty pounds upon the Return of the Ship to Dartmouth from fishing and if the Ship should not come to New-found-land by reason of Leakage or Tempest should return to Dartmouth then the Defendant should pay the principal Debt and if the Ship should never return he should pay nothing and it was held by the Court that it was not Usury for if the Ship stayed at the New-found-land two years he should pay but 60. l. An Action of Debt brought against an Executor who pleads that he had nothing in his hands at the time of the Writ purchased and saith not nor any time after the Plea is not good but if the Plaintiff had took Issue
that he had Assets at the Day of the Writ purchased and it had been found for the Plaintiff now the Plea is made good If an Action of Debt be brought against two Executors and one of them onely appear and confess the Action the Judgement shall be against both of them of the Goods of the Testators in the hands of all the Executors and the Damages of him that appeared onely TRin. 16. Jac. rotulo 988. Houldsworth versus Barker An Action of Debt brought upon a Bill the Defendant pleads the Bill was delivered to the Plaintiff upon a Condition not performed and it was held a naughty Plea by the whole Court HIll 13. Jacobi rotulo 842. Harrison al. at the Suit of Fleet. An Action of Debt brought for 32. l. and the Plaintiff counts upon an Emisset Harrison pleads that he and the other do not detain from the Plaintiff the said 32. l. nor any Penny thereof and the other pleads to Issue and a special Entry made that the Issue should remain untill the said Harrison had perfected his Law or made Default and he at the Day did wage his Law and Judgement was that the Plaintiff should take nothing by his Writ PAsch 16. Jac. rotulo 1200. Rayson versus Winder An Action of Debt brought upon an Obligation with a Condition to perform an Award which was good in part and void in part and the Breach assigned upon the good part and the Award was to pay Money but no time of Payment afterwards it was demanded the Award is good GAsington versus Burcher Knight Turner Jones and Bowden for 1800. l. Burcher was outlawed Turner and Jones appeared by Supersedeas and Bawden appeared by another Attorney and the Plaintiff declared against them three that appeared upon an Account Turner offered to wage his Law and the others plead Nil debent per patriam and the Court was moved pretending that Turner shal not be admitted to wage his Law because the Defendants should not sever in Plea but the Court upon sight of divers Presidents were of another opinion although it was urged that Turner Jones joyned in a Supersedeas and therefore pretend that Turner should not sever in Plea from Jones that pleaded Nil debet per patriam but that Exception was disallowed for although two appear by Supersedeas yet they may vary in Plea MIch 16. Jac. rotulo 581. and the Imparlance entred 16. Jac. rotulo 1727. An Action of Debt brought by Lee versus Arrowsmith upon an Emisset for divers Parcels and upon an Account and the Parcels and Account amounted to the summ of 300. l. but in the Imparlance Roll the Parcels and summ accounted for did not amount to 300. l. by 6. l. And this variance was moved in Arrest of Judgement after a Verdict but the Court were of opinion that it was amendable because Ball the Attorney made Oath that he commanded his Clerk to summ the Account for 6. l. to maintain his Writ and therefore the Roll was amended HIll 36. Eliz. rotulo 1908. Action of Debt brought by Gage versus Gilbert upon an Obligation for 500. l. bearing Date first of February Anno 25. Eliz. The Defendant pleads a general Release made to him by the Plaintiff bearing Date after the making of the Bond of all Dues and Demands whatsoever except an Award made between the Plaintiff and one G. W. why R. R. then dead and one Obligation of 500. l. for performance of the said Award bearing Date 29. April 25. Eliz. and whether these words bearing Date 29. April shall have reference to the Arbitrement or Bond was the Question upon a Demurrer upon the Replication in which the Plaintiff shewed the special matter that the Award was made the 29. April and that the Bond was made the said first of February and it was adjudged that these words bearing Date should have reference to the Award and not to the Bond. And if the Heir pleads Ciens per discent besides one Acre if the Plaintiff please he may have Execution of that Acre or if the Plaintiff plead that he hath Assets beyond that Acre and it be found that he hath ten Acres more the Plaintiff shall have Execution of the Land onely and not of his person as it is where the Heir pleads that he hath nothing by Discent generally and it is found against him that Land and all other his Land which he hath and his Body are liable to the Judgement by a Capias ad satisfaciend Fieri facias or Elegit If a man be retained in London to serve beyond Sea he may have his Action for his Wages in England in any County And the like of an Obligation bearing Date at Roan in France it may be sued in England alleadging the place to be in such a County where he brings his Action And note that Debt may be brought in the Common Pleas without Original against any Officer or Minister of the said Court by Bill exhibited to the Court but no Process of Outlary lies upon that and the Judgement upon that is that the Plaintiff shall recover his Debt and Costs and shall have an Attachment ad satisfaciendum but no Exigont for because it is not by Original and all the Process by Bill shall be returnable at a Day certain but no Bill lies against a Serjeant at Law And note that the Judges Serjeants and Officers Clerks Attorneys and Ministers of the Court may have an Attachment of Priviledge out of the said Court without an Original to arrest any to them indebted or for any personal cause to proceed upon it as if it were by Original but no Process of Outlary lies thereupon and such Process of Attachment shall be returnable at a Day certain and not at the common Return and they may be returned from Day to Day If a man be bound to perform an Award of Arbitrators and they make an Award accordingly that one shall pay Money he may have his Action of Debt for the Money and declare upon the Award and afterward may have another Action upon the Obligation for not performing the Award by the opinion of the whole Court Mich. 5. Caroli An Action of Debt brought by an Executor the Defendant pleads an Outlary in the person of the Executor and demands Judgement if he ought to answer his Writ the Plaintiff demurrs in Law to that Plea and Judgement was given that the Defendant should answer over WOlly versus B. and his Wife Trin. 37. Eliz. rotulo 1306. An Action of Debt brought by Husband and Wife as Executrix the Defendant pleads in Barr an Outlary in the Testator by an Estranger which is in its force and upon a Demurr and solemn Debate adjudged a naughty Barr. Trin. 40. Eliz. rotulo 507. The like Plea pleaded to an Executor that brought an Action of Debt and adjudged no Plea And Dixon Administrator of Collins exhibited a Bill against
Fawden an Attorney of the Common Pleas and he pleads in Barr an Outlary against the Administrator and adjudged no Plea MIch 4. Ed. 4. rotulo 144. An Action of Debt was brought against J. R. de W. in Com. L. Chapman the Defendant appeared by his Attorney and offered to wage his Law and essoyned and at that Day the Plaintiff appeared and the Defendant being solemnly required one J. R. came to answer the Plaintiff as Defendant in that Action in his proper person and offered to wage his Law the Plaintiff said that J. R. now appearing to wage his Law ought not to be admitted because the said J. R. is not that person which the Plaintiff prosecutes because this I. R. appearing is I. R. de W. in Com. L. Jun. Chapman and he who the Plaintiff prosecutes is I. R. de W. in Com. L. Sen. Chapman both of them at the purchasing the Plaintiffs Writ living at W. and that he agreed with the Defendant so to do therefore because I. R. de c. hath not appeared to wage his Law prayes Judgement the Defendant confesses such matter and sayes that he beleiving that the Writ was prosecuted against him appeared by his Attorney and offered to wage his Law and prayes to be discharged of the Debt and the other I. R. being exacted appeared not and the Court would advise but no Judgement for the Plaintiff HIll 26. Eliz. rotulo 420. The Lessor makes a Lease by Indenture for years and the Lessee grants over his whole Terme and the Lessor grants over the Reversion and it was adjudged that the Grantee of the Reversion should have an Action of Debt for the Arrears of Rent against the Assignee of the terme and not against the first Lessee HIll 43. Eliz. Pasch 41. Eliz. rotulo 425. An Action of Debt brought against an Executor in the Debet detinet for Rent due in the time of the Executor upon a Lease made to the Testator upon a Judgement given in the upper Bench and that Judgement was reversed in the Exchequer because it was not in the Detinet alone but afterwards in the upper Bench. Int. dominum Rich. Frank Administrator for Arrears due after the Death of the Intestate it was adjudged good in the Debet detinet and also in the Common Pleas Trin. 11. Jac. rotulo 2013. MIch 30. 31. Eliz. rotulo 907. An Action of Debt brought to which the Defendant pleads an Outlary against the Plaintiff in its force the Plaintiff replies the general Pardon granted by Parliament the Defendant demurrs and Judgement that he should answer over MIch 40. 41. Eliz. Ralph Rogers brought an Action of Debt upon an Obligation of 400. l. and Judgement was entred by the Clerk upon a Nichil dic that the said Roger should recover c. and for that Default the Defendant brought his Writ of Error to reverse the Judgement given for Ralph and when the Record was certified the Judges of the then Kings Bench would not proceed And afterwards the Judges of the Common Pleas upon a motion and before another Writ of Error brought amended the Mistake of the Clerk And Justice Walmsley would have committed Keale the Clerk to the Fleet for his carelesness but afterwards the Amendment was withdrawn by the Court and upon further advice the Roll made as it was before An Action of Debt was brought upon a single Bill for Payment of Money upon Demand and the Plaintiff declares generally that he often had requested c. and Serjeant Harris demurres to the Declaration and the opinion of the Court was that he ought to plead yet if the Defendant had demanded Oyer of the Bill and upon that have demurred it had been a good Demurrer because one special Demand was in the Bill and no special Demand alleadged in the Count. MIch 3. Iac. Burnell versus Bowes Action of Debt brought upon a Bond and the Plaintiff in the Imparlance Roll had counted upon a Bond made the tenth of March and an Imparlance thereupon untill the next Terme and in the next Terme he declared as of a Bond made the tenth of May and the Defendant pleaded per Dures and it was entred of Record and the next Terme after Entry thereof the Plaintiff moved that that Mistake might be amended and at first it was denied to be amended because the Defendant had pleaded to it and by that Amendment his Plea should be altered as if he had pleaded that it was not his Deed and the cause of his pleading that Plea was the the Mistake and if that Mistake should be amended he would be trised and overthrown and upon the first motion it was denied to be amended but afterwards granted to be amended by the whole Court for the Imparlance was entred Hillar first of James and the Issue was Pasch second of James but the Defendant was admitted to plead a new at his pleasure MIch 3. Jac. rotulo 2575. Fitch versus Bissie An Action of Debt brought upon an Obligation with a Condition to pay Money yearly according to the forme and effect of the Indenture made between the Plaintiff and Defendant the Defendant pleads that there was not any such Indenture made between the Plaintiff and Defendant as is in the Condition supposed and the Plaintiff demurrs upon that Plea for that the Defendant is estopped to plead that Plea KIng and his Wife Executrix of J. Wright Plaintiffs brought a Scire facias after the said Executrix came to full Age against Death and his Wife Administratrix of W. D. to have Execution of a Judgement had by J. D. and H. E. Administrators during the minority of the Executrix upon a Bond entred into to the Testator and whether a Scire facias lay by the Executrix or no was the Question and by the better opinion of the Court it did not lie MAyor and Burgesses of Linn Regis in Norfolk Mich. 10. Jac. rotulo 2413. brought an Action of Debt upon a Bond against one Pain and it was Ad respondendum Majori Burgensibus de Linn Regis in Comitatu Norfolciae Pain pleads that it was not his Deed and a special Verdict was found that the Mayor and Burgesses were incorporated by the name of Majores Burgenses Burgi de Linn non per aliud And whether the omission of this word Burgi should barr the Plaintiffs was the Question and Judgement was given by Cook Warburton and Nichols for the Plaintiff for Cook said that if the essential part of the Corporation was named it was sufficient and in this case the Mayor and Burgesses was one essential part and Linn Regis is another essential part and those two were duly expressed and sufficient to maintain the Action and Cook said that those words Et non per aliud shall be intended to be Non per aliud sensum non literae and of the same opinion were the other Judges there NIchols versus Grimwin Mich.
year to year the Defendant wages his Law and at the Day to wage his Law the Court refused to accept it for that he ought not to wage his Law for Wages yet if the Retainer were not for a year at least the Court seemed to be of opinion that he might wage his Law VErnon versus Onslow Pasch 12. Jac. rotulo 1047. Upon an Action brought upon a Bill for 80. l. the Defendant demands Oyer of the Bill was Pro octogesimis libris and to that the Defendant demurrs and Judgement for the Plaintiff Hutton cited the Case in Cooks 10. Rep. Rowlands Case And another in Mich. 44. 45. Eliz. rotulo 131. Proseptingentis libris and the Bond was Proseptungentis libris And another Mich. 11. Jac. upon a Bill for seventeen pounds and adjudged a good Bill YOung versus Melton Trin. 10. Jacobi rotulo 3434. An Action brought upon a Bond for performance of Covenants the Defendant pleads Conditions performed The Assignes the Breach for non-payment of Rent and pleads in this manner that in December he demised to the Defendant one Wine-Cellar c. for one year and if the Defendant would hold the Wine-Cellar for three years paying 40. l. yearly during the said terme and alleadges non-payment of the Rent of on Quarter in the first Year and the Defendant demurrs and the Court were of opinion that the reservation had reference as well to the first year as to the two years following and in that case Cook said that if a man demise c. reserving Rent to himself the Heir shall not have the Rent but if the Rent be reserved generally the Heir shall have it WHickstead versus Bradshaw Pasch 14. Jac. rotulo 2175. There was Judgement entred against the said B. and after the Bail of Bradshaw brought a Habeas Corpus to the Marshalsey Bradshaw being a Prisoner there to have his Body before the Judges of the Common Pleas to be committed in Execution in Discharge of the Bail but before the Returne of the Habeas Corpus the said Bradshaw had brought a Writ of Error returnable the Day following and when he came to be committed the Court doubted that their hands were tied by a Writ of Error by reason he could not be committed upon the Judgement and yet they would have discharged the Bail if they knew which way therefore Quaere GErrard al. versus Dannet Hill 9. Jac. rotulo 2015. Judgement was had upon a Bond by Non sum inform and a Writ of Error brought for that the Christian name of the Defendant Attorney was left out in the Imparlance Roll but it was in the Roll whereupon the Judgement was entred and a Warrant of Attorney entred accordingly and the Court was moved that it might be put into the Imparlance Roll which was granted upon sight of the Judgement Roll and Warrant of Attorney entred If a man be bound by Award to pay one 20. s. And I at the Day offer it and he refuseth it or comes not to receive it I must plead that I was ready to pay and shall not plead an Vncore prist because it is upon a collateral matter An Obligation was made to pay 10. l. 8. s. and eight not saying Pence or any thing else An Action of Debt lieth for the 10. l. 8. s. WIlde versus Vinor Trin. 7. Jac. rotulo 1629 or 2629. Debt upon an Obligation to perform an Award The Defendant pleads that the Arbitrators made no Award the Plaintiff replies that the Defendant by Writing did revoke and null the Authority of the Arbitrators Foster held the Bond was forfeited although he might revoke the Plea was that he did discharge the Arbitrators against the form of the Condition My Lord Cook held that the Power was countermandable if the Submission be by Writing the Countermand must be by Writing if by word I may countermand by word If two binde themselves one cannot countermand alone If Obligor or Obligee disable by their own Act to make the Condition void the Bond is single 14 H. 7. If I am bound to infeoff A. and I marry her before the Day the Bond is forfeited 18 E. 4. 18. 20. the great doubt was because no express notice but notice was implied And the Bond forfeited because he did not stand to it Judgement for the Plaintiff PArker versus Rennaday Trin. 6. Jac. Action brought upon a Bond for 60. l. the Bond was in Italian in these words In cessanta libris and held a good Bond for 60. l. O. K. ux ejus Admin versus Needham who was bound to the Intestate in a Bond and pleads that Administration of the Intestates Goods was committed to him by the Archbishop the Intestate having Bona not Abilia before it was committed to the Plaintiffs Wife The Plaintiff replies that the Administration committed to the Defendant was revoked and made void to which the Defendant demurrs pretending his Administration to be a Release in Law but it was otherwise adjudged But if the Debtor were made Executor then the Debt is released like unto an Administrator during the minority he may do all for the good of the Infants but nothing to their prejudice if an Executor marry the Debtor it is no Release in Law Judgement for the Plaintiff by the whole Court LAwrance and Althams case if I have no means to gain my Right but by Action if I release my Action I release the thing it selfe because I release my means to come to my Right If I release all Actions I may have Jus prosequendi A Release made by the Testator shall be no Barr to the Executor to bring a Writ of Detinue because it continues a wrong still to the Executor A Bond to pay Money at Michaelmas may be released because it is a Debt otherwise it is of a Rent reserved by Lease the like it is of a single Bill to pay Money at four Dayes if the first Day be broken no Action untill all the Dayes be past but in case of a Lease after the first Day Debt doth lie in the first it is a Debt but not in the other Quarrels Controversies and Debates are all one that is all Causes of Quarrels Controversies and Debates are more large then Actions and Suits are more then q. c. d. and by Release of Suits Executions are gone Release of Duties Executions are gone neither Fraud nor Might can take a Title without Right Demand is most large and by it Rents are gone Executions gone Incidents gone as Releif Warranties gone all Causes of Demand gone Actions and a mans Right gone When a condition is to arbitrate of all matters between c. there if the matters be not made known to the Arbitrators they are not bound to arbitrate more then they know for if it appear to the Court that all matters committed to the arbitrators be not arbitrated the Award is void but if the submission be of all matters between c. so that now all must be
in the upper Bench. BRownsworth versus Trench Trin. 10. Iacobi rotulo 3628. An Action of Debt brought upon an Escape against a Bailiff of a Liberty and after a Triall Exception was taken to the Declaration because it was not alleadged therein that the Sheriff made a Warrant to the Bailiff upon the Execution but it was onely alleadged that at A. aforesaid by vertue of the Warrant aforesaid he took the Prisoner and saith not within his Liberty aforesaid and the Exception was held void Trin. 10. Iacobi An Action of Debt brought by Executors and the Defendant pleads that the Plaintiffs were not Executors and tried and found for the Defendant and the Defendant upon the Statute for Costs desired Costs because the Jury found against the Plaintiff that he was not Executor and if a Verdict passe against one that is not an Executor he shall pay Costs but Costs were denied by the whole Court for the Jury might finde an untruth BAlder versus Blackborn Trin. 16. Iacobi rotulo 465. An Action of Debt brought for Rent reserved upon a Lease for years the Case this Land was devised to a Woman in this manner that she should have the profits of the Land untill the Daughter of the Devisor should be eighteen years old and the Woman made the Lease in question reserving Rent and afterwards married and then died and if the Husband after her Death should have the Land untill the Daughter of the Devisor came to eighteen years old was the question and adjudged he should hold the Land for the Devise of the profits is the Devise of the Land and is not like a Lease made by a Guardian in Socage which ends by the Deâ—… of the Guardian the Declaration was for one Mesuage demised the fourth of May 15. Jac. for one year and so from year to year as long as both parties should agree paying twenty four pounds by the year and Nil debet per patriam was pleaded and the Jury found it specially that one I. W. was seised of the Tenement and held it in Socage and made it his last Will in writing and by that did devise to A. his Daughter the said Tenement and her Heirs for ever at the full Age of eighteen years the words of the Will were Item I will that my Wife and Executrix shall have the Education of my Daughter with the portion of Money and profits of my Land to her own use without account untill my Daughters Age aforesaid provided she shall pay the out-rents and keep her Daughter at School and by that Will made his Wife Executrix and the said W. died and his Wife survived and took upon her the Executorship and married with one P. the Woman performed the Condition and afterwards died and Judgement was given for the Plaintiff that it was a terme and that the Husband should have it An Action of Debt was brought against an Executor and the Case was thus Administration was committed to one during the minority of the Executor who wasted the Goods of the Testator and after the Executor attained the Age of seventeen years an Action of Debt was brought against the Executor and the opinion of the Court was prayed whether he might plead generally ne unques Executor or excuse himself by pleading the special matter and the Court doubled but most safe to plead the special matter An Action of Debt was brought for Rent reserved by Indenture payable at two Feasts or within twenty daies then next following and the Plaintiff declared upon a Lease for the Rent and because ten pound at the Feast of the Anunciation 10. Jacobi was behind and unpaid the Action was brought the Defendant pleads Non demisit and a Verdict for the Plaintiff and after a Triall exception was taken to the Declaration because it was not alleadged that the Rent was arrere at that Feast and twenty daies after but it was not allowed after a Verdict because he should have taken advantage thereof before RAtliff versus Executors Pasch 15. Jacobi An Action of Debt brought upon an Obligation to perform Covenants in an Indenture The Defendant pleads performance of the Covenants the Plaintiff alleadges a breach upon this Covenant that the Lessee should injoy the Land without any lawfull interruption or disturbance of the Lessor or his Executors and shewes that the Executors entred upon him in the Land and outed him and shews not any interruption for any just cause and adjudged good in the upper Bench. WHitton versus Bye Trin. 16. Jacobi It was adjudged in the upper Bench in an Action of Debt brought by a Lessor against a Lessee for years for Rent reserved during the Tearme being behind and unpaid that a Release pleaded to be made by the Lessor to the Lessee six years before the Rent was arrere of all Demands was a good Barr One cannot reserve a Rent to a stranger it must be reserved according to the privity WAinford Administrator Kirby versus Warner Trin. 13. Jacobi rotulo 1906. An Action of Debt brought upon a Bond to which the Defendant pleads that the intestate was indebted to him in such a sum and that he retained c. in his hands to satisfie himself of the Debt due to him And that he had not assets over to satisfie the Plaintiff to which Plea the Plaintiff demurrs because he did not plead generally fully administred but an Exception was taken because he shewed not that the Condition of the Bond was for payment of Money STone versus Goddard Trin. 14. Jacobi rotulo 2258. An Action of Debt brought upon divers Emissets of divers Wares Videlicet unum ahenum for five shillings unum scabum for six shillings and so divers other words which the Court could not understand what they signified in regard no Anglice was put to them and the Defendant pleaded Nil debet per patriam and the Jury gave a Verdict for the Plaintiff and Damages given for the whole Debt and moved in Arrest of Judgement and Judgement that the Plaintiff should have no Judgement for the insufficiency of his Declaration WEeks versus Wright unum Clericorum R. B. The Plaintiff exhibited a Bill against the Defendant for Money due upon an Obligation and Issue was joyned and the Cause tried and a Verdict for the Plaintiff and after Triall the Defendant moved in Arrest of Judgement that the Bill was not filed that it was not helped by the Statute of Jeofayles nor within that Statute for it is an Original but afterwards the Court granted that a new Bill should be filed so that the matter might be put to arbitrement and if the Arbitrators could not determine the matter the Court would And note the Court seemed to be of an opinion that the want of a Bill is not helped by the Statute WItchoct Linesey versus Nine Trin. 9. Jacobi rotulo 726. An Action of Debt brought upon an Obligation to perform the Covenants contained in an
of Clanrickard with whom Yelverton was of Councel it was resolved that if the Issue be upon the custome of Tithing and that it be found against the Defendant he shall pay the value expressed by the Plaintiff in his Declaration for because by the collateral matter pleaded in Barr the Declaration is in whole confessed SMith versus Smith Trin. 6 Jacobi one Bisse made K. his Wife and John his Sonne being one year old Executors and K. solely proved the Will and afterwards married the Plaintiff and they two brought an Action of Debt as Executors against the Defendant and the Defendant pleads in abatement of the Bill that John was made Executor with K. and is yet in life and not named the Plaintiffes reply that John was but of the age of one year and that K. proved the Will and had Administration committed to her during the minority and that John is and was at the time of the Writ purchased within the age of seventeen years and upon that Yelverton demurred and adjudged for the Defendant that the Bill should abate for both of them in truth were Executors and ought to be named in the Action and although by the Administration granted during the minority K. had the full power yet the Infant ought to be named he being Executor GOmersall versus Ask Trin. 6. Iacobi The Defendant brought an Action of Debt against the Defendant as Administrator of her Husband upon two former Judgements given in two Actions of Debt against the intestate and shews the recoveries the Defendant pleads that the intestate entred into a recognisance 35 El. in Chancery to Sir Henry Bechel and shows that after the Judgements had by the Plaintiff Sir H. obtained a Judgement against the intestate upon the Recognisance and that she hath not assets to satisfie the Plaintiff of the intestates Goods beyond Goods that are chargeable and liable to the Judgement upon the Recognisance to which Plea the Plaintiff demurres and by Fennor and Williams justifies the Plea in Barr was good for although the Plaintiffes Judgements mentioned in his Actions are before Sir H. Judgement yet because the Plaintiff by his Action doth not demand Execution of the Judgements but onely his Debt recovered for this Action brought it as an originall and in the same Court as if he did demand the Debt upon the first Obligation and therefore because the Plaintiff had not sued out a Scire facias to execute the first Judgements but had prosecuted a new originall the Plea is good and allowable as it had been upon the said Obligation but Yeluerton and Fleming were of a contrary opinion for the Plea had not been good against the intestate himself and the Executor or Administrator represents his person and therefore the Plea is not good but onely in excuse of a Devastavit and they were of opinion that the Action brought by the Plaintiff was in nature of a Scire facias for he demanded the Debt in another course then it was at first for that Debt which was but matter of escript is now become by the Judgement to be Debt upon Record and of so high a nature that the Judgement being in Force he can never have an Action upon the Obligation which is adjuged in Higgins Case Co. 6 Rep. but Cook doubted and the Plaintiff dying the Court did not resolve APleton versus Baily Mich. 6. Jacobi Apleton as Executor of Apleton brought an Action of Debt against Baily for the Arrerages of diverse Rents as well Copy-hold Rents as Free-hold Rents pertaining to a Mannor whereof the Testator was seised and thereof died seised and the Rents were not paid to him in his life time by reason whereof they belonged to the Plaintiff as Executor And the Defendant though he was requested had not paid against the form of the Statute of the 32 H. 8. And the Court that the Action did not ly for the Arrerages of Copy-hold Land for the Statute of the 32 H. 8. doth not extend to them but only to Rents out of Free Land Secondly It lies not for the Rent of free Land because the Plaintiff hath not shewed in his Declaration that the Defendant had attorned to the Testator in his life And although in pleading it is good to alledge a Feoffment of a Mannor without pleading any Livery or of any Attornment of Tenements but when the Rent of any Free-hold Land comes in Debate it behoves both the Owner of the Mannor and and his Executor that demands it to convey the privity between the Tenant and the Lord which ought to be by attornment for Rents and Services rest not without Attornment which mark PEirson versus Ponuteis Mich. 6. Jacobi The Plaintiff as Executor of Peirson brought an Action of Debt against Jo. Ponuties of London Merchant that he should render to him three and thirty pounds twelve shillings in that the Defendant 5. Oct. 1598. at London c. By his Bill obligatory hath acknowledged himself to owe to the Testator 1518. Florens Polish which then amounted to thirty three pounds twelve shillings to be paid to the Testator Ad solucionem festi purificat c. Called Candlemas day next insuing and to that payment had obliged himself by the same Bill And the Plaintiff avers that Predicti soluciones dicti festi purificat c. Next after the making the Bill were according to the use of Merchants the twentieth of February 1598. Yet the Defendant had not paid the 1518. Florence Polish or the thirty three pounds twelve s. to the Testator nor to the Plaintiff The Defendant pleads Non est factum and found against him and moved in arrest of Judgment that the Declaration was not good because first the payment of Candlemas is not known in our Law but that was not allowed for that which is unknown in ordinary intendment is made manifest and helped by the Averment in the declaration because that payment among Merchants is known to be upon the twentieth of February and the Judges ought to take notice of those things that are used amongst Merchants for the maintenance of traffick and the rather because the Defendant doth not deny it but pleads non factum by which he confesses the Declaration to be true in that averment Secondly it was objected that as the Case is the use of Merchants is not materiall because the Testator by any thing that appears was not a Merchant but it was not allowed because the defendant that bound himself to pay was a Merchant and the Testator ought to take the Bill as the defendant would make it and he chose to make the payment according to the use of Merchants and not according to the Ordinary intercourse between party and party which mark this by the whole Court TAlbot versus Godbold Mich. 6. Jac. Godbold 28 Eliz. sealed a Bill to the Plaintiff made in this manner memorandum that I have received of Edw. Talbot who was the Plaintiffes Testator to the
Statute and if the Words do not extend to that then the Equity of the Statute shall not extend to that and he said that Copy-hold is not within any of the Statutes which are made in the same yeare as the Statute which gives Elegit and such like and to Littleton that an Estate by copy is where Lands are given in Fee-simple Fee-taile and that Formedon lies for that with which agrees 10 Ed. 2. Formedon 55. It seems that the Estate taile here mentioned shall be intended Fee-simple conditionall at the Common Law and the Formedon in Discender which was at the Common Law for alienation before Issue And so Littleton shall be intended For the Estate is within time of memory see Heydons case that a Copy-hold Estate is an Estate in being within the Statute of 31 H. 8. And Manwood there said that insomuch the Estate of that is created by custome and the Estate taile is created by Statute yet it shall not be within the Statute and he said that the case of 15 H. 8. B. Copy of Court 24. is repugnant in it self in the words of Formedon for he saith though that Formedon was given by Statute and was no otherwise in Discender yet now this Writ lies at the Common Law and it shall be intended that this hath been a custome there time out of minde c. And so he concluded and prayed Judgment for the Plaintiff Pasche 9. Jacobi 1611. in the Common Bench. Yet Bearblock and Read SEE the beginning before Hillary 8. Jacobi this Case was argued by Hutton Serjeant that the Plaintiff in the Action of Debt ought to Recover for if Executor may pay Debt due by the Testator by Obligation before Debt due by Judgement this shall be a Devastavit as it is resolved in Trewinyards Case 6. and 7. Edward 6. Dyer 80. 53. And he shall be charged for the Iudgement with his owne goods And so it was adjudged between Bond and Hales 31. Eliz. that Judgement at the Common Law shall be first satisfied before the Statute which is but a Pockett Record and Medium redditer in invitum Also it was adjudged in Harrisons Case 5. Coke 28. b. That Debt due upon an Obligation shall be first payd before Statute with Defeasans for performing of Covenants the which Defeasens is not broken and also it is adjudged between Pemberton and Barkham here cited that Judgement shall be satisfied before Statute Merchant or Staple or Recognizance though that the Statute be acknowledged before the Judgement had by the Testator See this Case in Harrisons Case 5. Coke 28. b. and in 4. Coke 60. a. Sadlers Case upon which he infers that if an Executor first satisfie a Statute or a Recognisance before a Judgement that this shall be a Devastavit as well as if he satisfies an Obligation first as in Trewynyards Case and that when the Plaintiff which hath Judgement the Executor may aid himselfe by Audit a querela by this matter subsequent Quere of Doctor Druryes Case as in 7 H. 6. 42. in Detinue against Gamishe and Judgment had for the Plaintiff If the Judgement be reversed restitution shall be made to every one which hath losse So here by Audita Querela if the Executrix hath not more then was taken in execution by the Statute and it seemes to him that the Judgement in the Scire Facias shall not be a Barr in this Action for the Judgment remaines Executrix and the Plaintiff may have Action of Debt upon that But of the contrary if the Plaintiff had brought Action of Debt upon the Judgement and had been barred then shall be barred in Scire Facias also But the Plaintiff this notwithstanding may have Scire Facias upon surmise that there are new assets come to the hands of the Executor and so he concluded and praied Judgement for the Plaintiff Nicholls Serjeant for the Defendant relies only upon the Judgement had upon the Scire Facias and that till that he Defeated the Plaintiff cannot maintaine Action of Debt for the Action of Debt is nothing but demanding of Execution and for that till the first Judgement be Defeated the Plaintiff hath no remedy at the Common Law All things which barr the Execution of the Judgement in Scire Facias these shall be Barrs in an Action of Debt as in Baxters Case here last adjudged in an Action upon the Case for slanderous words the Defendant pleads that he had justified the speaking of these words at another time in another Action brought against him and had a verdict and Judgement upon that and so demands Judgement and adjudged a good Plea till the first Judgement is reversed for Judgement is the saying of the Law and 13. Eliz. Dyer 299. 34. in Debt for Costs recovered in a Writ of entry the Defendant pleads that the Plaintiff hath sued an Elegit which was Executed and a good Barr in an Action of Debt and so 1. and 2. P. and M. Dyer 107. 24. In Debt for Dammages recovered in Assise the Defendant pleads in Barr that after the verdict given and before Judgement the Plaintiff entred into the Land and there no Judgement is given But it seemes if the Plaintiff fayl of Course that the Common Law prescribes that then he shall not have Execution for of those things which rightly are Acted let there be Executions but if the Defendant in the first Action had pleaded a release and Judgement was given upon that against him he cannot plead that againe for it runs into the thing Judged 34. Ed. 3. in Debt against an Executor and part of the assetts found the Plaintiff cannot have new Scire Facias without Averrment that there are new assetts and 34. H. 6. Action with averment that there are assets and Judgement good both waies and presidents shewed of both Courts And he intended that the Executor could not have helped himselfe by Audita Querela unlesse he feares to be impleaded but after Execution he cannot have Restitution and so concluded and praied Judgement for the Defendant Coke cheife Justice that there cannot be a Devastavit in the Wife unlesse that it be voluntary payment by her for the Statute of 23. H. 8. gives present Execution of a Statute Staple without Scire Facias So that the Wife had no time to plead the Judgement and for that this unvoluntary Act shall not be a Devastavit for she is no agent but only a sufferer And at the Common Law if the Plaintiff hath Judgement in an Action of Debt after the yeare he hath no remedy but new Originall and this mischeife was remedied by the Statute of Magna Charta which gives Scire Facias in place of new Action But it seemes to him that the Barr in the Scire Facias shall remaine good Barr till it be reversed as in 2 Rich. 3. A man hath election to have action of Detinue or action of Trespasse and he brings his action of Detinue and the Plaintiff wages his Law and after
executed for then it would be too late for then the Estate is transferred to another as it was in the cases put by Anderson in Corbetts Case But here all the Estate limited to him which made the forfeyture shall be determined and also he intended that the Reason that the Replication containes that the parties being in actuall possession are only to satisfie the words of the Condition And so he concluded and praied Judgement for the Plaintiff In dower the Demandant recovered Dower of tenths of Wool and Lamb and how execution shall be made was the question And the Justices intended that the Sheriffe might deliver the tenths of every 3 yard land and assign the Yard Lands in certain Bâ—t after it was conceived that this would be uncertain and unequall and for that the Sheriffe was directed to deliver the third part of all in generall and yet the first was agreed to be good but onely in respect of Inequalities as in dower of a Mill the third Toll dish and of a Villayne the third dayes work as in 23 H. 8. And it was also agreed that the Sheriffe may assign this dower without a Jury It was moved if an Attachment be granted against a Sheriffe for contempt after he is removed out of his Office and the Justices intended that not insomuch that now he is no Officer and for that he cannot be now fyned and without fyne they did not use to Imprison but the Judges would be advised to see the Presidents of the Court in such a case Mâ—chaelmas 1611. 9. Jacobi in the Common Bench. Kemp and Philip his Wife James and Blanch his Wife Plaintiffs against Lawrere and Trollop and the Wife of Gunâ—er Executrix during the minority of the Wives of the Plaintiffs THe case was An Executrix during the nonage for so it was and not Administratrix that is shee was ordained Executrix till the Wives of the Plaintiffs came to their full age or were marryed and then they should be Executrixes And this Executrix during the minority brought an action of Debt and recovered and before Execution the women Executrixes took Husbands and brought Scirefacias upon the Record to have Execution upon the Judgment against these Defendants as Ter-tenants which pleaded specially that they had nothing in the Free-hold nor in the Land but only a lease for yeares and that the free-hold was in another stranger upon which Plea the Plaintiffs demurred in Law And Nicholls Serjeant for the Plaintiffs that there is the difference betwixt this Executor and an Administrator during the minority as in 26 H. 8. 7. a. if an Administrator have Judgment and dyes before Executors or other have sued out their Letters of Administration they shall have no execution of this Judgement insomuch as he comes in paramount the first Administrator and as immediate Administrator to the first Intestate as it is agreed in Shelleys case So the Administrators of one Executor shal not have execution of a Judgment given for the Executor as it is resolved in Brudenels case 5 Coke the 9. b. And in 21 Edw. 4. It is agreed if two are made joynt-Joynt-Executors and one of them dies the other shall be sole Executor to the Testator and if hee make his Executor and dyes his Executors shall be Executors to the first Testator And also there is in Fox Gretbrooks Case in the Com that one may be Executor for certain years and another after and this differs from the other cases for in this case all these Executors were in privity one to another but in the other case one comes paramount the other But here they are all made by the first Testator and the Will And he cyted the 2 Case in the Lord Dyer and 18. and 32 Edw. 3. there cyted where a Purchasor brought a Writ of Errour and was not privy to the first Record And Grantee of a Reversion brought a Scire facias against Conusee of a Statute-Merchant alledging that he had received satisfaction So if a Parson of a Church recovers an Annuity and after the Church is appropriate to a house of Religion the Soveraign of the said house shall have a Scire facias And so if union be made of two Benefices and yet in all these cases there was no privity to the first Judgement so he in reversion shall have Errour in Attainâ— upon Judgment against his Lessee for life and the Reason is given in Brudenels Case that is they which may have prejudice may have scire facias and it is not like where two Joynt-tenants are and one makes a Lease for years and dyes the other shal have the Rent insomuch that he comes in by survivorship and not in privity But here the Executors come in in privity as in case of two Executors are joyntly one â—yes the other which survives shall have Execution of Judgement given for them for Administrator during the nonage is only to the use commodity and profit of an Executor and of a Testator so that he being Executor to the Testator he shall have execution And to the second that is that the Defendants have nothing but for yeares and that the free-hold is to a stranger he intended that this is not good yet he agreed that in scire facias where a free-hold is to be recovered speciall non-tenure is a good plea as in 8 Edw 4. 19. and 8 H. 6. 32. but not of the contrary and there also generall non-tenure is no plea But here where the free-hold is not to be recovered nor one nor the other is a Plea for it may be averred that the Defendant hath a release from him that hath the reversion and as in 14 H. 4. 5. in scire facias to accompt against an Executor who pleads that the Testator was never his Bayliffe to give an accompt and yet it is agreed that this hath been a good plea for the first Defendant and this is the reason that it was not taken nor was allowed for a good plea in the 11 H. 4. 11. Insomuch that this amounts to non-tenure and in 44. and 45. Eliz. Mich. Rot. 834. it was adjudged in Scire facias where the Defendant pleads that he was not Tenant of the Free-hold and adjudged no plea And so he said it was adjudged in the case of All-soules Colledge in Scire facias to have execution of a Judgment in Ejectione firme and the Defendant in the Scire facias pleads that he was but Lessee for years and adjudged no Plea insomuch that nothing was to be recovered but only the tearm and not the Free-hold and so he concluded and prayed Judgement for the Plaintiff in Scire facias Harris Serjeant argued to the contrary and he intended that the Return of the Sheriffe is void insomuch that the Writ commanded him to give notice to the Tenants of the Land in Fee-simple and hee did not return that those which he had returned were Tenants of the Land in Fee-simple and
the Arbitrator awards that one party shall enter into Bond to another for injoying of certain Lands and doth not say in what Sum and adjudged void for the uncertainty and so in this case by which c. But it was answered and resolved that the Arbitrement was good And to the first objection it was resolved and agreed that every award ought to have respect to both parties if it be not a matter which concernes one party only and neither recompence nor acquittall due to the other party in which case the award shall be good And it was resolved in the principall case that the award was made of both parties for one was to have money and the other though there was no expresse mention that the other should be discharged of his Assumpsit yet the award was a good discharge in Law and may be pleaded in Bar upon an Action brought upon the Assumpsit and so it was for both parties And to the second objection it was agreed that where submission is with Ita quod c. as above that there the Arbitrators ought to make arbitrement of all the variances and controversies referred to their arbitrement and if they do make no arbitrement of all the matters of which the submission is made the award is void but if the submission be generall as of all matters in variance or controversie between them There if the Arbitrator makes his award of all matters which are known to him the award shall be good As my Lord Coke conceived though that there are other matters in variance of which the Arbitrator hath no notice as if divers Creditors sue a-commission upon the statute of Barkrupts and an another person to whome the Bankrupt was indebted doth not come in as a Creditor nor give notice to the Commissioners that the Bankrupt was indebted to him he shall not take benefit of the commission for the Commissioners cannot releive those Creditors of which they have no notice as it appeares by the case of Bankrupts in 2. Coke And to the third objection it was answered and resolved that the award was good notwithstanding that no place be expressed where the money shall be paid for in Law that ought to have resonable construction and the party ought to have reasonable time for the payment of that but Foster conceived that it is not good for it seemed to him that if the award shall be good that the Obligation of submission shall be immediatly forfeyted for that there was neither time nor place where the money should be payd but this was answered with the Bookes of 3. H. 7. 16. Ed. 4. Where it is said that if an Arbitrator award that one party shall pay such a sum of money at such a day and keeps the award in his Pocket till such a day be past that yet the Obligation shall not be forfeyted And so it was resolved and adjudged by all the other Justices that the award was good and Judgement was entred accordingly Hillary 7. Jacobi 1609. In the Common Bench. Foster against Jackson RICHARD Foster Plaintiff in Scire Facias against Anno Jackson and Myles Jackson Executors of Thomas Jackson upon Judgement had against the said Thomas in an Action of Debt The Defendants pleades that the said Thomas Jackson the Testator was taken upon a Capias ad Satisfaciendum awarded upon the sayd Judgement and in execution for the sayd Debt by force of the said Capias and there died in execution and so demands Judgement c. And the sole question was if the said Testator being in execution for the said Debt by force of the said Capias and there dies if this be satisfaction of the Debt or not And Dodridge the Kings Serjeant which argued for the Plaintiff in the sayd Scire Facias conceived that it is no satisfaction but that notwithstanding the Debt remaines for the words of the Writ are Capias ad satisfaciendum and all others Executions as Fire Facias and Eligit are satisfactory But the Capias is but a restraint of his liberty till he hath satisfied the Debt and for that it is no plenary satisfaction but only restraint of his liberty which the Law more respects then Goods or Lands and for that Custodia ought to be Salva stricta So by this the party may be Inforced to pay his Debt Salva to the party so that by this the party may be safely detained till he hath satisfied the Debt and Stricta to the King so that by this Justice may be satisfied and for that Bracton saith that it is only to compell the party to make satisfaction And it is resolved in the 33. H. 6. 47. That it is no satisfaction but that the Body should remain as a Pledge till satisfaction a were made or as return Irreplevisable and yet neither the one nor the other are satisfaction And the words of the Writ are Capias ad satisfaciendum the party but if he will satisfie then there is no reason that the Defendant shall be Imprisoned by the Writ But if he will not pay then he shall continue in Prison Quousque satisfecerit by which it appeares that the Imprisonment is no satisfaction and it appeares also by the Register and Fitz. Na. Bre. 246. b That if a man recover Damages of Trespasse before the Justices of Oyer and Terminer and hath the party in execution by force of this Judgement now if the parry which is in execution dies in Prison he which recovered may sue Certiorari to the Justices to remove this Record into the Kings Bench that the Justices there may make upon that Record as the Law will in such case And it seemes by this that the party shall have execution by Elegit or by Fieri Facias for it is not reasonable as it is there sayd that the death of him which died in Prison shall be satisfaction to the party which recovered but Fitzh here saith Tamen quere for he doubted of that but in the Register there is a speciall Writ of Certiorari to this purpose that is to remove the Record into the Kings Bench so that the Justices may do there upon that as the Law will and if the Law will not allow the party to have new execution it were in vain to have such Certiorari for other course cannot be taken and the end of every suit is to have payment and so is the Judgement that the Plaintiff should recover his Debt and so is the Writ and the count and the Capias also and to the end of Justices in Suum cuique tribuere And the party hath not any of these ends if the death of the Defendant in prison shall be satisfaction and in the 47. Ed. 3. Fitz. execution 41. Persey said that if in Trespasse the Plaintiff recover and the Defendant is taken for the Kings Fyne if he pray that the Defendant continue in Prison till he have made agreement with him perchance he shall not
Defendant replies that the Plaintiff had entred into part of the Premises the Day before the Day of Payment and so at Issue upon that and Exception was taken because the Plaintiff had alledged no Demand to be made and the Court held that was implied by the Issue and that it was not necessary FRyer Administrator of Mary Costiden of the Goods not administred by Mary Fryer Executrix of the said M. C. versus Jacobum Gildiich Executor of N. Pope Hill 11. Jac. rotulo 1990. The case was this two were bound to one and the Obligee makes the Wife of one of the Obligers his Executrix and one of the Obligers makes the same Woman Executrix and she dies and the Plaintiff takes Administration of the Goods of the Woman not administred and Judgement was given for the Defendant by the whole Court If an Executor hath a Lease and purchaseth the Fee-simple the Lease is gone but it shall be Assets in the Executors hands if a persnal thing be once gone it is extinct for ever If the Husband had survived the Wife he should be charged HArcock Executor of Harcock versus Wrenham Administrator of Wrenham Hill 11. Jac. rotulo 1963. A Scire facias brought to revive a Judgement had against the Intestate and the Defendant pleads Plene administravit which was held a naughty Plea by the whole Court for he cannot pay so much as Funerals before he pay the Judgement and therefore that general fully administred is naught The Jury found that the Intestate in trust conveyed one Lease to Fisher and that Fisher promised upon the Payment of 300. l. to re-assure the Interest to Wrenham and after his Death the Administrator the Defendant preferred a Bill in the Chancery as Administrator against Fisher and that the Chancery ordered that Fisher should pay the Defendant for his Interest in the Lease more then the summ received the summ of 1060. l. which was paid the Defendant accordingly and whether that should be Assets was the Question and it was held to be Assets If an Executor make gain of the Testators Money that gain shall be Assets the Doubt in this case was because this was but in Use and now whether the Court shall take notice of this Use they shall being found by the Jury Judgements shall be paid before Statutes or Recognances and Judgement was given for the Plaintiff and although in this case the Barr of generally administred be naught yet an Issue taken thereupon and tried shall not arrest the Judgement for the Plaintiff PEase and Stilman Executors Hanchet against E. Meade Mich. 11. Jac. rotulo 945. An Action of Debt brought upon an Obligation with a Condition if Meade his Executors Administrators or Assignes or any of them shall pay 20. l. within the Porch of the Parish Church of R. unto such person or persons as the said Hanchet shall by her last Will and Testament in writing limit nominate or appoint the same to be made in manner c. The Defendant pleads that the said Hanchet by her last Will and Testament in writing hath not nominated limited or appointed to what person or persons the said 20. l. should be paid The Plaintiff replies and sues that the Testator made him Executor and died and that he took upon him the burden of the Will and that the Defendant did not pay the Executor the Money and a Demurrer thereupon And if it had been to pay to her Assignee that she should name the Executor should have it such things as go by way of Executorship shall be to the Executor without nomination or appointment STannard versus Baxster Trin. 9. Jac. rotulo 1123. An Action of Debt brought for Damages recovered in an Assise of Nuzans for stopping the way before special Commissioners The Defendant pleads no such Record and the Record was delivered into the Court by the special Commissioners TRin. 8. Jac. rotulo An Action of Debt brought upon a Bond with a Condition for performance of Covenants of an Indenture The Defendant confesses the Bond and that after the making the Bond and before the purchasing the Plaintiffs Writ the Indenture by the consent and assent of Plaintiff and Defendant was cancelled and the said Plaintiff cancelled the said Indenture and it was held a naughty Plea by the said Court for it did appear but that the Bond might be forfeited For he ought to have pleaded performance of Covenants untill such a Day which Day the Indenture was cancelled BRook versus Smith Hill 9. Jacobi rotulo 829. Two Tenements in Common make a Lease and reserve a Rent and Covenant that neither should release and one of them releaseth his part this is a Breach for that in Debt they both should joyn and now by the Release the Action is gone LAny versus Aldred and another Executor Trin. 10. Jac. vel Pasch 9. Jac. rotulo 504. An Action of Debt brought against them as Executors one pleads that he was Administrator and that the Administration was committed to him by the Bishop and pleads a Recovery against him as Administrator and that he had fully administred and had no Assets to satisfie the Judgement and the other Executor acknowledged the Action and the Plea was held a good Plea but it was said the Defendant might have defeated the Action which was brought against him as Executor and therefore they would infer that it was no good Plea but it was a good Plea and it was held by the chief Justice that if an Executor of his own wrong be sued with a rightfull Executor in one Writ the Executor of his own wrong shall not by his Plea prejudice the rightfull Executor MArsh versus Curtis Hill 38. Eliz. rotulo 132. An Action of Debt brought upon an Obligation for performance of Covenants in a Lease upon which Rent is reserved and the Condition was that if the Rent should be behinde then lawfull to re-enter and the Rent was behinde and before re-entry the Rent was accepted The Question was whether he may enter for the Condition broken after the acceptance of the Rent Sir Edward Cook was of opinion that by the acceptance of the Rent he did confirm the Estate but if a Bond be entred into to perform Covenants in a Lease whereupon Rent is reserved and a Fine to be paid with a Condition of re-entry for not paying the Rent or Fine and if the Rent be received and the Fine not paid the acceptance of the Rent doth not take away the Condition for not paying the Fine R. Milton versus R. Pearsey Trin. 10. Iacobi rotulo 445. An Action of Debt brought and in the Venire facias the Defendants name was mistaken for the Venire was to impannell a Jury between R. Milton Plaintiff and I. Pearsey Defendant in a Plea of Debt and the Court held the Venire as none and a new Triall awarded and the like Judgement was given Trin. 7. Iacobi rotulo 787.
the Plaintiff shews that the Rector of M. had 2. parts of the Tithes in 3. parts to be divided that the Vicar of the same place had the third part of the Tithes and layeth this by Prescription as to the manner of the taking the Tithes shews further how the Parson Vicar by several Leases had demised the Tithes to him so he being Proprietor of the Tithes the Defend sowed 10. Acres within the Parish to wit Wheat Rie c. carried it away without setting forth the Tithe to his Damage c. And upon a Nil debet per patriam pleaded it was found for the Plaintiff and moved in Arrest of Judgement that the Plaintiff had in that Action comprised severall Actions upon the Statute and that it appeared by his own shewing for the Plaintiff claimed not the Tithes under one Title but under the severall Tithes of Parson and Vicar and Fennor Justice held they could not joyn and no more could the Plaintiff who claimed severally under them and it seemed to him that the Parson could not have this Action against severall Tenants for not setting forth their severall Tithes because he could not comprehend two Actions in one but the whole Court besides held the contrary for although the Parson and Vicar could not joyn in this Case because they claim their Tithes severally by divided Rights yet when both their Tithes are conjoyned in one person as it is in the Plaintiffe then the the Interest of their Title is conjoyned also in one and it suffices generally to shew the Plaintiffe is a Farmer or proprietor of the Tithes without saying of what Title for it is but a personall action grounded meerly upon a contempt against the Statute for not setting forth Tithes and also Tithes are not demanded by this Action although the Title may come in debate yet it was agreed by all the Judges that the Plaintiffe should recover his Tithes in dammages and shall not demand them again by any suit after a recovery in this Action which Mark. BErket versus Manning Pasch 3 Jacobi Action of Debt brought against the Defendant as Administrator of J. S. The Defendant pleads fully administred the Plaintiffe replies that himself had assets and it should have been that the Defendant had assets and this was moved in arrest of Judgement but amended by the Court being the Clerks misprision onely as where it is entred predict Defend similiter and it should have been predict quer similiter and this hath been often amended by the Court. PAler versus Hardman Pasch Jacobi Hardman and his wife Executrix J. H. brought an Action of Debt in the common Pleas against Paler and as that they should restore a tun of Iron to the value of twelve l. and declare upon a Bill for the delivery of the said tun of Iron within such a time and that the Defendant had not delivered it to the Plaintiffes dammage of c. and upon non est fact pleaded it was found for the Plaintiffe and Judgement was given that the Plaintiffe should recover the Tun of Iron or the value of the same and if he should render the tun then by the oath c. should inquire what the tun of Iron was worth and before any return of the writ to inquire of the dammages the Plaintiffe in the common Pleas takes out a Capias upon the Judgement and on Exigent upon that and the Defendant brings a writ of Error and it was adjudged erroneous for two causes first because the Judgement was in the disjunctive that the Plaintiffe should recover the tun of Iron and if not the value thereof so in detinue as it appears by the Judgement in this Case that the Plaintiffe may choose whether he will have the Iron or the value thereof which he cannot do for if the iron be to be delivered he shall recover that onely but if it be not to be delivered then the value and not as before Secondly for that the Judgement is not perfect untill the writ to inquire be returned with issues to the Sheriffe to distrain the Defendant to render the Iron and also to inquire of the value and before the return thereof nothing in certain appears One which to ground any writ of Execution for the Judgement comprehends no certainty but is to be made certain by the return of the writ to inquire with the whole Court granted CArpenter versus Collins Mich. 3 Jacobi An Action of Debt brought by the Plaintiffe for rent arere and declares upon a Lease made to the Defendant at Will to be held from Mich. as long as both parties should agree yeelding and paying three pounds yearly and shews that Collins entred and occupied from the Feast c. unto the Feast of Mich. and upon nil debet plenius the Jury foundthat J. Norrington had issue a Son and a daughter and Devises that his Son shall have his Land at the age of twenty four years and gives forty pounds to his Daughter to be paid her at the age of two and twenty years an further wills that the Plaintiffe should be his Executor and should repair to his houses and have the oversight and doing of all his Lands and moveable Goods untill the severall ages aforesaid and after dies and Carpenter the Executor makes the Lease before mentioned and the Jury further find that the Son died but find not at what age he was at his death but that the Daughter at the Sons death was nineteen and no more and find the Lease made by the Plaintiffe and that the Lessee by force thereof entred and continued possession from Michaelmas for one year and more and find that within that year the Daughter entred and that the Defendant atturned to the Daughter and refused to continue Tenant to the Plaintiffe and by Fennor Yelverton and W. Judgement was given against the Plaintiffe for the Plaintif took no interest in the Land by the Will for the oversight and doing of his Lands shall be intended but in Right of the Heire and to his use because the Testator though not his Son of discretion and government untill the age of twenty four years and in the mean time appointed his Executor to oversee and order the Land to the profits of the Heâ—â—e that wanted discretion 28 H. 8. D. 26. where it is declared that J. S. shall have as well the governing of c. as the disposing setting letting and ordering of his Lands and by the Court held that J. S. had them onely to husband for the profit of his children and no otherwise but he was of opinion that the Plaintif had an estate in the Land upon a limitation determinable at the Sons age of four and twenty years and it appears not at what age he died being not found by the verdict therefore it is incertain and the Entry of the Daughter lawfull for the limitation looks but to the age of the Sonne and
use of my Master Mr. Serjeant Gaudy the sum of forty pounds to be paid at Mich. following the Plaintiffe brought an Action of Debt upon this Bill and declared verbatim as the Bill was and demanded the four pound to which Declaration the Defendant demurred and his pretence was as he supposed because he had received the money but as a servant to another use and so he ought not to be charged as a principall Debtor for the Bill is but a Testimony of the Receit as is the 1 H. 6. and 2 H. 6. in account for there an Indenture testifying the Receit which under Seal did not alter the nature of the first account but it was adjudged for the Plaintiff for although the first part of the Bill witnesse the Receit to be to anothers use yet in the last clause of the Bill for the payment of the money he doth not say to be repaid by his Master for then it would not charge him but the clause is generall to be repaid which of necessity ought to bind him that sealed for otherwise the party shall loose his Debt because he had no remedy against Serjeant Gaudy and because the Debt appears to be due it shall be intended to go onely in satisfaction of a due Debt which mark ALexander versus Lamb Mich. 6 Jacobi the Plaintiff brought an Action of Debt upon an Obligation of forty pounds against Lamb as Executor P. the Defendant pleads that P. in his life time was indebted to him in forty pounds due Debt and that the goods of the Testator to the value of ten pounds came to the Defendants hands which he retained towards satisfaction of his Debt and averred that no more goods beyond the goods to the value of ten pounds came to his hands to be administred the Plaintiffe replyed and shewed that the Defendant is Executor in his own wrong to P. and that he hath many other goods of P. to be administred at S. in the County of Norfolk and concludes hoc paratum est verificare c. the Defendant rejoyns and demands judgement if the Plaintiffe shall be admitted to say that the Defendant is Executor of his own wrong seeing by his Declaration he had affirmed him to be Executor of the Testament the Plaintiffe demurres in Law to this Plea and as to the matter in Law all the Court was for the Plaintiff for he may well reply that the Defendant is Executor of his own wrong notwithstanding the Declaration for there is no other form of declaring as is adjudged in Coults Case 5 Rep. fol 30. but the whole Court held the whole Plea to be discontinued for the Defendant having pleaded as to the Goods to the value of ten pounds which he retained in his hands for a Debt due to him and that he had no other Goods and concludes hoc paratum est definire which is not good for he ought to have said hoc petit quod inquiratur per patriam for there being a surplusage of the Goods denied by the Defendant and urged by the Plaintiff it ought to come in issue but could not by reason of the ill conclusion but in the same Term between West the Plaintiff and Lane Defendant West demanded four pounds Debt against Lane as Executor as above and all the rest of the Plea is as above and Judgement was given for the Plaintiff because the Defendant had confessed Goods to the value of ten pounds in his hands which was more then the Defendant demanded and therefore although by Judgement of Law an Executor of his own wrong cannot retain Goods to pay himself and although the other proceedings in the Plea are naught yet Judgement shall onely be given upon the confession of the Defendant and so it was entered with Mark GReen versus Eden Mich. 6 Jacobi The Plaintiff brought an Action of Debt upon an Obligation for a hundred pounds dated September the third 1 Jac. the Condition was that if the Defendant the fourth of September anno 20 Jacobi pay a hundred pounds to I. S. at such a place and also save the Plaintiff harmlesse from any suit which should be brought against the Plaintiff by reason of the Bond in which he was bound to J. S. as Surety for the Defendant then c. the Defendant pleaded that true it was that he by his Obligation bearing Date September the third 1 Jac. did become bound to the Plaintiff in two hundred pounds but further said that the said Obligation was not delivered as the Defendants deed untill the seventeenth of September in the second year of King James and then it was first delivered and further sayes that he had found the Plaintiff harmlesse c. to which plea the Plaintiffe demurres and adjudged for the plaintiff for the Bond mentioned in the Declaration is not answered for the plaintiffe indeed shows that the Defendant was obliged to him by his Obligation bearing date the same Day c. which is laid to be a perfect Bond the same day as the Plaintiff counts and then for the Defendant to come and say that it was first delivered the seventeenth of September 20 Jacobi which is a year after is no good Argument but naught without taking a traverse without that it was made the third of September 10 Jacobi Secondly as the Defendant hath pleaded he hath made part of the Condition idle and vain for by the Condition it appears that there is a Condition for the payment of a hundred pounds at a Day to come to wit the fourth of September in the second year and now the Defendant by his Plea hath made the Day of payment passed before he supposes the Bond to be delivered within a manner takes away the effect of the Plaintiffs suit and if the Condition had not stood upon two Branches but upon one onely and the Defendant will plead the Delivery after the Condition becomes impossible to be performed then is the Obligation become single for the whole two hundred pounds which mark by the whole Court BArret versus Fletcher Pasch 7 Jacobi The Plaintiff brought an Action of Debt upon an Obligation of five hundred pounds with a Condition to stand to the Award of J. S. and J. D. so that c. the Defendant pleads if the Arbitrator made no Award the Plaintiff replies and shews the Award made verbatim and concludes that they had made an Award and doth not assign any breach The Defendant rejoyns that the Award pleaded is not the Deed of the Arbitrators and Issue being joyned upon that there was a Verdict for the Plaintiff and Yelverton moved in arrest of Judgement because the Plaintiff in his replication had not assigned any breach of the Award and so had shewed no cause of Action for the replication is not for any Debt but is guided by the Condition and is for the performance of a collaterall thing to wit of an Award and although the Defendant had not answered any thing
is no parcell of the Bill and for that it need not to be contained in the Count 9 H. 6. 15 16. A thing which doth not intitle the Plaintiff to action need not to be contained in the Count 36 H. 6. 6. If the condition be indorced or subscribed it need not to be contained in the Count but if it be contained before the in witnesse then it ought to be contained in the Count 21 Ed. 4. 36. If a man be bound to pay ten pounds when the Obligee carries two hundred load of Hay to his House there the condition is precedent and it ought to be contained in the Count 22 Ed. 4. 42. accordingly so here the matter is subsequent to the in witnesse and there is not any other matter upon which the action is founded nor contained in the body of the Bill nor to be performed by the Obligee and for that he prayed Judgment for the Plaintiff Shirley Serjeant for the Defendant that the sealing is immediately after the Proviso and is adjoyning to the Bill in writing and for that be it to be performed of the part of the Plaintiff or Defendant it ought to be mentioned in the Count for this intitles the Plaintiff to his Action of the case in 36 H. 6. 6. It is a condition subsequent and there need not to be shewed but if the condition be precedent and contained in the writing before the insealing there it ought to be mentioned in the Count and in this principall case this is either a condition Precedent or nothing for it is that he shall not be compelled to pay the sayd ten pounds untill he had recovered thirty pound and if he never recover he never shall pay the ten pound and it is a condition of the part of the Defendant and it is adjudged in Vssards case that where a condition is precedent there it ought to be contained in the Count but where it is subsequent otherwise it is So 15 H. 7. 1. Grant that when the Grantor is promoted to a Benefice that he ought to give to the Grantee ten pound this is precedent but in the principall case it is a Condition or Covenant and though that it be subsequent yet it may stay the Suit as well as an acquittance which is to be an acquittance if he be vexed otherwise not but a condition that he shall not sue the Bill is void for it is contrary to that and barrs him of all the fruit of that and precedent condition may be placed after the in Witnesse as well as before so he prayed Judgment for the Defendant Coke cheife Justice said that this which is after in witnesse is not part of the Deed but may be a Condition or Defeasance but if it be not in witnesse in the Deed then it shall be parcell of the Bill but though that this be put after the in witnesse yet it shall have his force as Defeasance but it need not to be contained in the Count for in Bonds and personall things there need not such strict words as in other Deeds and for that this shall be a good Condition or Defeasance but then the Defendant ought to have that so pleaded and not demurr for this makes the Bill conditionall VVarberton and Foster agreed VValmesley did not gainsay it and for that it was adjudged for the Plaintiff if the Defendant did not shew cause to the contrary by such a day which was not done Note It was adjudged by all the Justices that fealty gives seisin of all annuall services sufficient to make seisin in avowry but not in Assise but of accidentall services this gives seisin in Assise and a man cannot take excessiive distresse for that for this is more sacred service as Littleton saith of Homage the most honourable See 42 Ed. 3. 26. 11 H. 4. 2. Note Two retaine an Attorney both dye the Executor or Administrator of the survivor shall be onely charged and not the Executors of them both for a personall contract survives of both parties otherwise of reall contracts as warranty See 16 H. 7. 13. a. 3 Coke Sir William Harberts Case 30 Ed. 3. 40. 17 Ed. 3. 8. The Attorney brought an Action of Debt against both and the Executors of both the parties which retained him for his Fees and both pleaded joyntly that they detained nothing and it was found for the Plaintiff and upon motion in arrest of Judgement the Judgement was stayed insomuch that the Executor of the survivor was onely chargeable notwithstanding the pleading and admission of the Parties Note That it was agreed by all the Justices that by the Law of Merchants if two Merchants joyne in Trade that of the increase of that if one dye the other shall not have the benefit by survivor See Fitzherberts Natura brevium Accompt 38 Ed. 3. And so of two Joynt Shop-keepers for they are Merchants for as Coke saith there are foure sorts of Merchants that is Merchant Adventurers Merchants dormants Merchants travelling and Merchants residents and amongst them all there shall be no benefit by survivor Jus accrescendi inter Mercatores locam non habet Note That Arbitrators awarded that every of the parties should pay onely five shillings for writing the award to the Clark and agreed that the award was voyd to that part and good for the residue for they cannot award a thing to be made to a stranger Action upon the Case was brought for these words He is a Cozening Rogue and hath cozened Richard Wood of thirty pound and goeth about to doe the like by me and agreed that the action doth not lye So for Rogue or Cozener for it is without aspersion and gentle and words shall be taken in the gentlest sense Devise that Executors shall sell Land with the assent of J. S. if J. S. dyes before that he assents the Executors shall not sell notwithstanding the death of J. S. was the act of God and in the life time of J. S. they could not sell without his consent and so it was agreed in the Case concerning Salisbury Schoole where the under Schoole-Master was to be placed by the head Schoole-Master with the assent of two cheife Bailiffs and it seems the head Schoole-Master cannot place without their consents Note it was said to be adjudged that the Inhabitants of a Town cannot be incorporated without the consent of the major part of them and incorporation without their consent is void In action upon the case the case was this The Brother of the Defendant spoke these words to the Plaintiff that is Thou Theif thou Goale whelpe thou hast stolne a peice of Silver from my Master Hocken and the Defendant sayd as insued that is That which my Brother spake is true I will justifie it and spend a hundred pounds in proofe thereof and it seems to the Court that the Action doth not lye against the Defendant insomuch that it doth not appeare by the Court that
upon the Estate and to the Livery made after two Rent dayes incurred he intended that Livery is good that notwithstanding for the deferring of the Execution of a letter of Attorney shall not defeat the Lease or other meane act which amounts to a Command for the Lessâ—r takes the profits in the mean time and it is not like to Littletons case that if a man devise his land to his Executors to be sold and they take the profits and do not make Sale that the Heir may enter insomuch that the Executors have not performed the Condition and it was not the intent of the Devisor that they should take the profits in the Interim to their own use and he intended that the declaration was not repugnant for it is of the aforesaid Church and not of the Dean and Chapter aforesayd and also there need not such congruity as it were the Foundation of the Action insomuch that this is only Allegation of the truth of the matter see 1 H. 7. 18. For variance upon shewing in Deed and 17 Ed. 3. 33. b. and here the aforesaid shew that it is the same in substance though it vary in words and though that the name is altered yet are the same persons in substance and the same Body and though that it be as it is intended to be of another part yet it is but name and the Foundation then is not Issuable as if the King H. 8. had been the Founder and made speciall provision in the Foundation that after the Time of Ed. 6. it shall be said to be the Foundation of Ed. 6. this shall be good and so he concluded and prayed Judgment for the Plaintiff see after adjudged Michaelmas 9. Jacobi 1611. In the Common Bench. The Bishop of Ely THE Bishop of Ely granted an Office with the Fee for the exercising of that if it be an ancient office it is a good grant and if the Fee be newly increased yet Foster Justice thought that the Grant shall be good for the Office and for so much of the Fee as hath been anciently granted with the Office Michaelmas 1611. 9. Jacobi in the Common Bench. Holcroft against George French IN an Action upon the Case upon an Assumpsit if the consideration be Executory then the Declaration ought to contain the time and place where it was made and after it ought ro be averred In Facto when it was performed or executed accordingly but if it be by way of Reciprocall agreement then the Plaintiff may count that in consideration that he hath promised for the Defendant the Defendant hath promised to do another thing for him there he need not that the Declaration contain time or place for the consideration or otherwise that it is performed and executed But if in the first case where it is executory that is also an averment that it is executed there if the Defendant plead Non Assumpsit generally and do not plead the speciall matter he cannot after take exception to that Count for the Default aforesayd where he pleads specially to that as in an action of Trover the Conversion ought to be averred to be in a certain place and so in submission and Arbitrement they are contained in the declaration it need not to expresse any time or place certain but if the Defendant pleads that the Arbitrators made no award or that the parties have not submitted themselves to their award there the Plaintiff may reply that the Arbitrement or Submission was made at such a place and this was agreed by all the Justices Michaelmasse 1611. 9. Jacobi in the Common Bench Sir Edward Puncheon against Thomas Legate IT was adjudged in the Kings Bench and affirmed upon a Writ of Errour in the Kings Bench that an action upon the case upon an Assumpsit made by the Testator is very well maintainable against the Executor and this was for Money borrowed and so the Count speciall but not upon generall Indebitatus Assumpsit but is good without any averment that the Executors have assets over the payment of Debts due by specialty and Legacies and he sayd that the Record of the Case of 22 H. 8. with this agrees and that the book in this is misprinted and so Coke cheife Justice who publickly reported this Judgment in the Common place sayd which was adjudged in the 11 H. 8. in this Court Note that Land of which a Writ of Right Close lyeth shall be assetts in a Formedon and it is a Free-hold and not a Copy-hold and so are all Lands in ancient Demesne 3 Ed. 3. 14 H. 4. It is no matter what is known to the Judge if it be not in the form of Judgment Pasche 1611. fol. 50. HAughton Serjeant for the Defendant argued that the entry of him in Remainder is not lawfull insomuch that he intended it is not any forfeiture of the Estate tayle and first he argued that the condition is not good but repugnant to Law and for that voyd and yet he agreed that Tenant in tayl may be distrayned from making unlawfull Acts but here the condition tends to restraine him from doing of things which are lawfull as if a man makes a Gift in tayl upon condition that the Wife of the Donee shall not be indowed or that the Husband of the Donee shall not be Tenant by the Curtesie or that a Feoffee shall not take the profits of the Land though that the profits may be severed from the Land as in 16 Ed. 3. Formedon was brought of the profits of a Mill yet the condition is voyd insomuch that it is against the nature of an Estate tayl or in Fee-simple to be in such manner abridged so if a man makes a gift in tayl upon condition that the Donee shall not make waste the condition is void for the making of wast is a priviledge which is incident to an Estate tayle and for that the condition restraynes the Tenant in tayle of a thing which the Law inables him to do the condition is yoyd so a Donee in tayle upon condition that he shal not make a Deed of Feoffment or Lease for his own life as it is agreed in Mildmayes Case so here when the condition restraynes Tenant in tayl of concluding and agreeing the which in him is not any wrong no more then if a man should make a gift in tayl upon condition that the Donee should not bargaine and sell the Land this is voyd insomuch that he doth not make any wrong or discontinuance So in the case here for the thing which is restrayned that is concluding agreeing is in it self a lawfull act and also this is only the affections and qualities of the minde that they cannot make an Estate conditionall if an open act be not annexed unto it but he agreed that if a man make a gift in tayle or a Lease for life of white acres upon condition that the Donee or Lessee shall not take the profits of Black acre this is
appears by 9 Edw. 4. 33. 37 H. 6. 32 H. 6. 1. Ed. 4. 2. 50. Ed. 3. And he conceived that the burying is not any Administration nor the taking of the goods into his custody to preserve them no more then in Trover and Conversion when a man takes the goods for to preserve them And he agreed that where a man intitles himselfe to goods by Administration committed by any but by the Bishop he ought to pleade specially that he which committed it had power to doe it But here it is not so but only conveiance and for that need not here such precise pleading of that insomuch it is only execution of Administration and for that it is good without intitleing the Arch-Deacon And he agreed that an Executor of his owne wrong may pay Debts due to another and shall be discharged And he agreed also that the Confession of one Executor shall bind his Companion and that Judgement shall be given upon that for the Plaintiff And they all agreed that the pleading that the Defendant hath no goods besides the goods which do not amount c. it was not good and for these causes they all agreed that Judgement ought to be given to the Plaintiff Trinity 10. Jacobi in the Common Bench. Tyrer against Littleton 9. Jacobi Rot. 299. IN Trespasse for taking of a Cow c. Upon not guilty pleaded by the Defendant the Jury gives speciall Verdict as it followes that is that the Husband of the Plaintiff was seised of eighty Acres of Land held of the Defendant by Harriot service that is the best Beasts of every Tenant which died seised that he had at the time of his death and that the Husband of the said Defendant long time before his death made a Feoffment of that Land in consideration of marriage and advancement of his Son to the use of his Son and his Heires with such agreement that the Son should redemise to his Father for forty yeares if he so long lived and that after the marriage was had and the Son redemised the Land to his Father and the Father injoyed that accordingly and paied the Rent to the Lord and after died and that the Plaintiff had no notice of his Feoffment and that the Husband at the time of his death was possessed of the said Cow and that the Defendant took it as the best Beast in name of Harriot and also found the Statute of 13. Eliz. of fraudulent conveiances to deceive Creditors and so praied the direction of the Court and this was agreed by the Plaintiff aforesaid Nicholls Serjeant first that all conveiances made upon good consideration and Bona Fide are by speciall Proviso exempted out of the Statute of 13. Eliz. chap. And he conceived that this is made upon good consideration and Bona Fide and for that it is within the said Proviso and also he said that as upon the Statute of Marlebridge there is fraud apparent and fraud averrable as it appeares 12. H. 4. 16. b. Where in ward the Tenant pleads that his Father levied a Fine to a stranger the Lord replies that this was by Collusion to re-enfeoff the Heire of the Tenant at his full age and so averred that to be by Collusion to out the Lord of his Ward and this is fraud averrable But if the Tenant had enfeoffed his Tenant immediately in Fee-simple this is apparent without any averment and the Court may adjudge upon it And so upon the Statute of 27. Eliz. chap. 4. it appears by Burrells Case that the Fraud ought to be proved in Evidence or confessed in pleading or otherwise this shall not avoid conveiance for it shall not be intended 6 Coke 78. a. and see 33. H. 6. 14. b. Andrew Woodcocks case upon which he inferred that this is but a fraud averrable if it be a fraud at all and of this the Court could not take notice if it be not found by the Jury and he said upon the Statute of 32 H. 8. Of Devisees as it appeares by Knights Case 8 Coke and 12. Eliz. Dyer 295. 8 9 10 10 11 12 13 14 15 16 17. And so he concluded and praied Judgement for the Plaintiff Harris Serjeant for the Defendant argued that the Circumstances which are found in the speciall Verdict are sufficient to satisfie the Court that it is fraud for as well as the Court may give direction to the Jury upon Evidence that it is fraud and what not as well may the Court Judge upon the special matter being found by special Verdict at large as in 9 El. Dyer 267. and 268. that is the special matter being found by special verdict at large as in 9 El. Dyer 267. 268. that is the speciall matter is found by Inquisition upon Mandamus and leave to the Court to adjudge if it be fraud or not and in 12 El. 294. and 295. 8. the speciall matter was found by Jury upon Eligit directed to the Sheriffe and by him returned to the Court And in Trinity 27. Eliz. between Saper and Jakes in Trover the Defendant pleades not guilty and gives in Evidence as assignement of a Tearme to him with power of revocation And the Court directed the Jury that this was fraudulent within the Statute of 27. Eliz. to defraud a purchasor and in Burrells Case 6. Coke 73. a. before the fraud to the Court upon Evidence to the Jury and the Court gave direction to the Jury that it was fraud and that upon the Circumstances which appeares upon the speciall Evidence And so in this case he conceived that insomuch the circumstances appear by the Verdict that the Jury may very well adjudge upon it and so he concluded and praied Judgement for the Defendant Coke cheife Justice that the Statute of 13. Eliz. Doth not aid the Defendant insomuch that the Feoffment was made for good consideration and for that shall be within the said Proviso for if that shall be avoided at all that shall be avoided by the Statute of Marlebridge which is ouly affirmance of the Common Law and this is the reason that not withstanding the Statute speakes only of Feoffment by the Father to his Son and Heire apparent yet a Feoffment to a Cosin which is Heire apparent is taken to be within the Statute and in the 24. of Eliz. in Sir Hamond Stranges Case It was adjudged that if the Son and Heire apparent in the life time of his Father purchase a Mannor of his Father for good consideration this is out of the Statute and so it was adjudged in Porredges Case also he said that the Law is an Enemie to fraud and will not intend it being a conveiance made for consideration of a marriage to be fraudulent no more then if the Father had made a Feoffment to the use of a stranger for life the remainder in Fee to his Son and Heire the which is not within the Statute of Marlebridge as it is agreed in Andrew Woodcocks Case 33.
47 Edw. 3. 17 Edw. 4. and 21 H. 7. that have been remembred to the contrary is only that it is reason that the Plaintiff should have the same process which was at the Common Law and there was not any such processe as Capias in debt at the Common Law and 21 H. 7. may be understood that the Elegit was not returned and so no record of that And 50 Edw. 3. a man may recover in Debt and pray Elegit and after brings Debt upon the Record but it doth not lye And he agreed to the Book of 23 H. 6. For there the Defendant was bound in an Obligation to make satisfaction of Debt and hee dyed in Prison and this cannot be satisfaction according to the Condition And in the Case of Fitz. Nat. Brev. the same doubt of that and this was the more strong case then the case at the Barr and if he doubted of that is the cause that he doubts also And cyted Williams and Cuttis case Rot. 88. in the point where the reason of the Judgment was for that that the Plaintiff had his plain and full satisfaction and saith that it was apparent difference between that and Blunfields case for there was 2 Defendants and here if one dyes there shall be no satisfaction and so these reconciled And so if a man be taken upon a Statute Merchant and dyes in execution that shall not be satisfaction for this is speciall processe given by statutes And 14 H. 7. 1. If a man being in Execution escape he shall not be taken againe and in the 14 H. 7. in debt upon an Obligation Capias profine was awarded and the Defendant taken by that And the Plaintiff prayed that he might be in Execution for his debt also and could not for that he had sued Fierifacias and it doth not appear if the Sheriff have that executed or not And so he concluded that the Judgment should not be revived by the Scire facias against the Executors and that Judgment shall be given for the Defendants in the Scire facias Walmsley Justice accordingly He specially observed the forme of the Writ which suggests quod executio adhuc restat facienda c. And to that the Defendants in the Scire facias plead that Capiás was awarded at the suit of the Plaintiff and upon that the Defendant was taken in execution and there dyed by which it appears that the words and suggestion of the Writ was answered directly and upon that the strongly relyed and then said that there were 3 ways to have Execution that is by Fieri facias Capias and Elegit And there is a speciall order to be observed in the suing of that for a man may have Fieri ficias and if the Defendant have not goods may have Elegit or Capias But if he make his Flection to have Capias he cannot have Fieri facias nor Elegit or if he sue Elegit he cannot have a Fieri facias nor Capias In 33 H. 6. and 44 Edw. 3. which have been cyted the Plaintiff sues Elegit and after that would have sued Capias supposing that he had not accepted the Elegit but of the other part it was said that the Sheriff had made Execution of it the which he could not contradict it And if the Plaintiff had Fieri facias and goods delivered to him in Execution and the Writ returned he shall not have a second Execution and so if Elegit executed and returned 14 H. 7. 15 H. 7. and said that Executions are tickle things for if the party escape he delivers himselfe out of Execution and the Plaintiff shall not have other Execution against him for that he hath had one Execution 2 Edw. 4. And so if a man sues a Writ of Priviledg out of Parliament and by that is delivered out of Execution he shall not be taken again And so if a man be delivered upon a Writ of Error for when the Party hath made his Election to take processe against the body it was his folly that he made such Election for though that death be the act of God yet for that that statutum est omnibus semel mori and for that God hath done no wrong for he hath but performed his Eternall Decree and for that it is not the act of God only but the folly of the party to make such Election and the Book of 47 Edw. 3. by Percy is but his opinion and more other Books are against that and 〈◊〉 H. 6. Danby and Prisot are against Lacon and though that the death of the Party in Execution is no satisfaction in rei veritate yet in Law it is satisfaction for that that the party hath no other remedy the Writ in the Register is certiorari ad faciendum in omnia singula que secundum legem consuetudinem fieri c. And there is not any Law nor Custome to warrant any such Course and here is not any other proceedings upon it But if he may have a Writ of Scire facias ostensurus quare satisfactionem habere non debet then it may be that the Defendant's ought to give another answer but for that that there is not any such Writ it seems that Judgment shall be given for the Defendants Coke chief Justice seemed the contrary and he agreed with Foster and he said that it is vexata et spinosa questio for the Books vary and great arguments have been made of both parts There are three things considerable 1. Reasons 2. Authorities 3. Answers of Objections And for the Reasons First he considered in whom the default is for which the Plaintiff shall lose his Debt 2. That the Debt remains after the body is taken in Execution 3. If the body taken in Execution be satisfaction 4. If the dying in Execution be a discharge 5. The Mischiefs if so they shall be And to the Objections First Escape which is the wrong and act of the Party it is no satisfaction nor discharge and here is the act of God and election of the party 2. Execution by Elegit If Lands be extended upon that this is no satisfaction And so if he be delivered by a Writ of Error and so in this case And for the first the fault was in Jackeson for he did not keep his day in the Condition and upon this was sued then he pleaded a false plea and upon that Judgement was given against him in all which actions the default was in the Defendant and no default in the Plaintiff for he took the Body which is the visible execution not in satisfaction but to satisfie and the Defendants have not pleaded fully administred but confesse that they have Assets and there is more reason that the Plaintiff shall be satisfied then the Executors keep the goods to their own use for it is Summa Injustitia nocentem habere totum lucrum innocentem totum damnum Second reason was that it is no satisfaction for the Defendant to dye
in Prison and agreed that if 2 Precipes are contained in one Originall there shall be but one satisfaction But if one be taken by Capias and remains in Execution Capias shall be awarded against the other and he shall remain in Prison till satisfaction be had for execution is no satisfaction as it is said in 29 H. 8. b. Execution 132. adjudged See 4 Ed. 4. 38. 5 Ed. 4. 4 H. 7. 8. And Hillaries case 33 H. 6. And to the third that is that the Debt remains after the taking of the body in execution and agreed that when execution is made of goods or lands no Debt remains but otherwise it is of execution of the Body as it appears by 29 H. 8. before cyted B. Execution 132. and 41 Assis 15. where a man was condemned in Damages in Trespass and committed to Prison by Capias and escaped the Gaoler dyed the Plaintiff prayed debt against his Executors and could not have it for they are not charged without specialty and the Plaintiff alleadged that the Defendant was vagrant in the County of M. and prays Capias to the Sheriff of M. to take him and it was granted for his remedy against the Sheriff was determined and this proves also that the Debt remains after escape scire facias is licet Judicium redditum sit tamen executio restat ad huc facienda de debito for the body is but as a pledg the form of the Writ in the Register Capias ad satisfaciendum and not in satisfaction which proves that there is no satisfaction but upon the payment of the money his body shall be delivered out of Prison this is execution with satisfaction for there are two Executions that is Medius finalis the first is the Capias the second Satisfaction which is Vltimus Finis And it is a good rule quod nihil videtur factum ubi aliquid restat faciendum and here is aliquid faciendum that is Satisfaction for in all acts there is a beginning progression and consummation Consummation in this case fails Mors est horendum divortium which is the act of God And when the act of God hath delivered him which lyes in prison for his own default it is no reason that the Plaintiff should be prejudiced 43 Ed. 3. 27. A man enfeoffs the Father with Warranty which infeoffs an estranger which enfeoffs the son the father dyes the son may vouch for it is the act of God And to the Mischiefs nec crudelis creditor nec delicatus debitor sunt audiendi for they play at Bowls and keep Hospitality in the Prison Or if a man be arrested and makes a tumult and is slain in indeavouring to break the Prison and breaks his Neck it is no reason that he by such act should defraud the Plaintiff of his Debt the opinions against him are coupled with absurdities as 7 H. 6. 8. Martins opinions is also imparted with absurdity 33 H. 6. 48. The opinion of Lacon is also coupled with another absurdity and 22 Assis b. Execution is also coupled with absurdity that is if the Defendant escape this determines the debt and is satisfaction and 15 Edw. 3. Quare Impedit 174. in Writ of Right of Advowson the Plaintiff hath Judgment and habere facias sesinam in the life time of the Incumbent and after his death sues Scire Facias the first is Execution but not with satisfaction and the last is satisfaction for by this he hath the fruit of his Judgment So 19 Ed. 3. Execution 12. a younger statute is extended and Liberate sued executed and returned And after an elder statute is extended and after satisfaction of that he that hath the youngest may sue Scire Facias and have execution of the youngest So of Beasts distrained and put into the Pound and there dye he which distrayned may distrayâ— again for this is no satisfaction of his Rent 14. H. 4. 4. 15 Edw. 4. 10. 11 Eliz. Dyer 280 And so Capias ad computandum is not Accompt nor Capias ad acquietandum Acquital Register 30. 39. 285. And it is said in Bract. lib. 7. Chap. 17. Sunt brevia Magistralia fâ—rmata the first are made by Masters of the Chancery the others which are Originall by Cursitors which are founded by acts of Parliament and cannot be changed without Parliament and as Fitzherbert in his Preface to his Na. Bre. saith that every Art and Science hath certain Rules and Foundations to which a man ought to give faith credence and the Writ of Fieri facias being founded upon a Statute and the form that executio adhuc restat facienda he saith that this was the Judgment of the Parliament that the first Execution was not Satisfaction But as the Writ is also in the Register 245 That where a man is condemned in Trespasse and committed to prison detinendum quousque he satisfie the party by this it appears that he is but a pledge And Fitz. Na. Bre. 63. 65. 67. and Register If a man be taken by Capias Excommunicatum ad satisfaciendum parendum Clavibus Ecclesiae and is delivered by Writ which issues improvide another Writ of Capias shall be awarded And to the matter of Election he agreed that if Elegit were awarded the party cannot have Fieri facias nor Capias for there is Entry made quod Elegit sibi executionem de meditate But when Fieri facias or Capias is awarded no entry at all is made But if any of them are returned executed then he cannot resort to another Processe and with this difference agrees all the Books of 15 H. 7. 15. 21 H. 7. 19. 30 Ed. 3. 24. 31 Edw. â—3 Process 52. 19 H. 6. 4. 34 H. 6. 20. 45 Edw. 3. 19. 50 Edw. 3. 4. and 5. 18 Edw. 4. 11. 20 Edw. 4. 13. 11 Eliz. Dyer 296. And to the case of Williams and Cuttrys cyted to be adjudged 43 Eliz. the which he cyted as Lambs case he said in this was many apparent Errors in forme of pleading so that the matter in Law cannot come to Judgment 35 H. 6. Prisot seemed that by the law of God the Imprisonment of the body of a man was no satisfaction for by that the Creditor may sell his Debtor and his Children for the payment of his Debts Matth. chap. 18 vers 24. 4 Kings 4 Chap. vers 1. Matth. chap. 5. Luke chap. 12. And so he agreed with Foster in opinion and concluded that the death of the Defendant in the action of Debt was no satisfaction nor determination of the Processe nor of the election But that the Plaintiff may have new Execution against the Executors and by consequence that Judgment shall be given for the Plaintiff in the Scire facias but no Judgment was given for that there was equality of opinions that is Coke and Foster against Walmesley and Warburton Danyel being dead and for that it was adjourned Pasche 8. Jacobi 1610. See Hillary 7. Jacobi the beginning Chalke
a man off an action of a higher nature 219 Vsage its exposition 222 Usitatum whom it doth advantage ibid Variance what 239 Valuable consideration out of the statute 102 Vnity of possession 26 Uoluntas donatores how to be taken 77 Vexation unjust remediable how 100 Vniversity of Oxford was removed for a certain time 244 Vniversity not locall ibid Variance what 245 W WAles councell and presidents Jurisdiction 29 Wast 46 150 168 Wittall who 37 Westminster 2 chap 35 expounded 92 93 94 95 Writs 147 Warrantia chartae 169 Warranty to a tenant pur view 191 Warrantia chartae not upon two deeds 56 Writ of error 137 208 Wife joyn with her husb in feoff what shall bind 141 Wager of law 255 FINIS Case for words You are a Bastard tried by the Countrey Judgement arrested because the Plaintiff did not averr that he was an Attonrney at the time of the words spoken Case for words which dâ—d amount to but petty Larceny For calling one Witch no Action will lie If Felony be committed good cause to arrest one for it but not to speak words to defame one A Feme covert cannot convert Action upon the casebrought upon a collateral consideration and good Judgement reversed by Writ of Error because Sheriffs name was omitted on the venire fac Case for words not actionable Gase for words A man shall not be punished for mistaking the Law Case for words The like The like for Words Judgement arrested because the Plaintiff omitted to shew in his Declaration the words were spoken of himself The Defendants Justification adjudged naught because he justified for words that were actionable To do a thing allowable by Law is no conversion The Defendants Justification amounted but to Noguilty and adjudged naught Judgement arrested for want of certainty in the Count. Judgement arrested for that the consideration was not valuable Case forwords for calling an Attourney Bribing Knave Judgement arrested being mis-tried An inuendo will not maintain an Action Difference between a promise executory and executed quod nota Non cul pleaded where Non assumpsit should have been pleaded and adjudged a good Issue Action of case for words upon the statute of 1. Jac. against Invocation of Spirits Ehe Imparlannce role supplied by the Issue being perfect Judgement arrested for not shewing the Letters of Administration Judgement arrested for that the Communication did not appear but by the Inuendo Action of the Case for calling a man mainsworn fellow Moved in Arrest of Judgement because no Demand alleadged but not allowed Judgement arrested for incertainty in the Declaration By a general Pardon both Punishment and Fault taken away Promise upon condition notice not necessary Nota. Judgement arrested for incertainty in the Count and for that the promise was made by an Infant Justification for calling a man perjured dis-allowed because he was t convicted Action of the Case will not lie for calling a Currier Barretor For this word Papist no Action will lie unless spoken of a Bishop Nota. Action of the Case for double prosecution of a fieri sac Upon a non est invent returned upon an Outlary where the party escaped the Plaintiff hath his Election where to bring his Action Judgement arrested for want of an Averment Judgement arrested for the incertainty of the Count. For collateral matters which are not Duties a Request is necessary The word Witch will not bear an Action An implied promise where it is upon the reality will not lie except upon a collateral cause An Indebitat assumpsit for money ruled good without expressing for what Action against the Sheriffs of London for discharging one who was arrested coming to defend a suit depending there The Court cannot discharge one arrested except he be arrested in the face of the Court. Judgement stayed for variance between the Count and Writ to inquiry Release by the Husband pleaded in Bar to an Action brought by the Wife after his Death for money to be allowed her after his Death and adjudged no Bar. Action for calling an Attourney Champertor The Roll mended after the Record was certified by Writ of Errour it being the Clarks misprision He is a forging Knave spoken of an Attourney actionable Implyed words will not beare an action Trover brought by Administrator as of his owne goods and adjudged good Demand and demall makes a Conversion The Sheriff justifies by vertue of a Process out of the Exchequer to levy of the Occupiers of S. Lands 59. s. arrear upon the said Lands Common appurtenant cannot be divided Mis-triall the Venn being mistaken Judgement arrested for a mistake of the Jury In consideration the Plaintiff would agree the Testators son should marry the Plaintiffs daughter adjudged a good consideration Rents arrear no Plea in Covenant Difference between Covenant and Debt to bring an Action Difference between Covenant and Debt to bring an Action Breach assigned in default of the Party that never sealed the Indenture of Covenants Covenant lies against the first Lessee upon breach of Covenant made by the Assignee Difference between Covenant and Debt Covenant upon a void Lease is good Action would not lie because if the Covenant was not performed Piracy is no excuse to perform a Covenant Judgement arrested for default in the Declaration A Covenant in Law shall not be extended to make a man do more then he can A Suit in Chancery no Disturbance Judgement arrested for defects in the Declaration Breach that one entred and shews not by what Title and naught Release cannot be given in Evidence upon a Plea that the Defendant was never a Receiver of the Plaintiffs Money In Account the Process are sum Attaint and Distress In Account two Judgements and upon a Nichil Process of Vlamy lies Account against a Baily local The Defendant may wage his Law if the Receit be per manus proprias Nota. In Account the Writ abates the Death Nota. Nota. Nota. Matter in discharge of the Actions shall not be pleaded in Bar. Nota. Nota. Judgement in Account upon a special Verdict Misprision of the Clerk amended after Verdict No Tenant at the time of the Writ purchased nor afterwards and if c. no Disseisin Note upon the Kings Grant View to be there where the Office is performed Another Writ brought and hanging a good Plea in abatement Assise taken by default against Harvey and the other Tenant pleaded in abatement of the Assise that there was a Quare impedit depending Nota. The King cannot create an Office to the Queen who may bring an Assise No Costs in a non-suit in Assise The Court was denied a Supersedeas the surmise being onely matter in suit Nota. A Writ of Covenant brought against more then acknowledged and prayed to be amended and denied Lease made to one during the life two if one die the Lease is ended Nota. A case of Jointure Nota bene Difference between Tenant at will and sufferance Joynt Debt and Contract cannot have several Pleas. Nota. Nota.
Nota. If I command one to do a Trespass an Action will lie against him Wife not bound to perform Covenants of the Lessee Nota. No Action for small Tithes Administration granted during minority not within the Statute 21 H. 8. Nota. Ordinary cannot make a Divident of themselves Legacy of Land shall not be sued for in Court Christian Nota. For Tithes Nota. Nota. Recitall shall not inlarge the Grant Nota. Money paid by an Executor upon a usurious Contract is a Devastavit Proportiament of Rent No Attornement necessary for Acts in Law Nota. For Tithes Nota. Note how far Proof extends Nota Difference Nota. Nota. Nota. Nota. Copy-hold land extendable upon Statute of Bankrupt Being a member of the Cinque Ports will not free one from Arrest Difference of things that are in Prender and that are in Render Nota. Omission in awarding the venire of these words Quoad triand c. held good Local things shall not be made transitory A Tales prayed by the Defendant upon the Plaintiffs Distring in another Terme but denied If Chamberlain of Chester make an ill Returne the Sheriff shall be amerced No Distress in a Court Baron but by Prescription Actions upon penal Statutes not within the Statute of Jeofailes Nota. Judges not meddle with matters of fact Nota. Information against three and two appear may declare against those two Nota. Return of a Sheriff insufficient upon a Statute Merchant for omitting that he had no other Lands c. Nota. A Statute first acknowledged shall be preferred before a Judgement afterwards retained The case of Villainage within the Statute of Limitation Nota in Elegit Two Inquisitions taken at several Dayes by several Juries upon one Writ naught Nota. All Goods and Chattels bound by the Teste of the Elegit and cannot be sold afterwards Audita Quaerela and Bail put in in the Chancery and held good The Act of E. 6. for Dissolution reaches onely to such that are regular Nota. Nota. Nota. Nota. Deed of Gift for things in Action Supersedeas granted because Capias ad satisfaciendum was not returned Nota. Nota. A Juror who hath appeared cannot be passed by and to swear others Goods cannot be sold upon a Levari facias in a Court Baron without a Custome Sheriff returned but 21. upon a Venire facias and naught Nota. Judgement that it was a good Devise The property is not altered upon the Sheriffs taking of goods upon a Fieri facias but remains in the Defendant Nota. Alien born no Plea in a Writ of Error Nota. Issue cannot be bastarded after Death Nota. Where the principal is omitted cannot be supplied by Writ Nota. King could not grant precedency in publique things Nota. Ancient Demesne tried by Doomesday Book The Venire facias was Album Breve and denied to be amended Lessee at will cannot grant over his Estate Note difference between Tenant at will and sufferance Nota. One committed bailed being no cause expressed Attorneys name put out of the Roll for a mis-demeanour Nota. Nota. Nota. Writ of Entry filed after the Death of the Tenant Ordinary to place and displace in the Church Fraud shall never be intended except apparent and found Nota. High Commission nothing to do with matters of instance for Tithes Nota. Nota Master shall not be corporally punished for his Deputies Offence Nota. Nota. Nota. One at seventeen years old may be an Executor No new notice needs if the Attorney be living If no place of Payment be in a Will must be a Request Nota. Warrant of Attorney filed upon a motion after Writ of Error brought and Error assigned Nota. Warrant of Attorney filed after Writ of Error by Order of Court Attornement of an Infant is good An Attorney ought to have no Priviledge as on Attorney Husband shall pay for his Wives Clothes though bought without his privity A mans Wife or Infant cannot be examined One Bond cannot overthrow the other Exceptions to an Award pretending the Arbitrators had exceeded their Authority but adjudged good Judgement for the Defendant for insufficiency in the Count. Judgement ' for the Defendant upon a by-law The Defendant at his perill ought to make Payment If part of a Condition be to be performed within the Realm and part without ought to be triable here Defendant pleaded six Judgements in Barr and two found to be by fraud and Judgement for the Plaintiff The Sheriff cannot break open the outward Door to do Execution but that being open he may break open any other Exception taken to the Defendants Plea Nota. Debt lies for Money levied by the Sheriff upon a Levari Nota. Nota. Exception taken because the Venire facias was of the Town and not of the Parish but ruled good Creditor administred and is sued ought to plead fully administred generally Debt brought for 60. l. tr be paid at the Return of a Ship from New-found-land to Dartmouth onely 50. l. lent is not Usury Plea made good by Verdict Nota. Judgement against both of the Testators Goods and Damages of him that appeared onely Nota. Nota. If no time of Payment in an Award due upon Demand Though two appear by one Supersedeas yet they may vary in Plea The Imparlance amended after Triall upon the Attorneys Oath Nota. Bene case A Servant hired to serve beyond Sea may have his Action in England Nota. Nota. Outlary in the Executor no Pled Outlary in the Testator in Barr adiudged naught A wrong man of the same name offers to wage his Law Lessor and Lessee for years one Assignes his terme and the other grants his Reversion Grantee of the Reversion shall have Action of Debt against the Assignee Nota. Nota. Default of the Clerk amended and afterwards upon advice made as it was at first A Bill to pay Money upon Demand must lay a special Demand Amendment of Issue Roll by the Imparlance Roll. Estoppell Repleader awarded Money due upon a Mortgage payable to the Heir and not to the Executor Money to be paid fifteen Dayes after return c. he proving his being there Court divided which proof shall be precedent or subsequent Condition that an Vnder-Sheriff shall not intermeddle with Executions of such a value held void Judgement arrested because the whole matter laid was found and part was not actionable Bail discharged upon the principals rendring his Body in another Terme after a case returned Quaere An Award good in part and naught for part and Breach assigned in the good part and held good If the Plaintiff be non-suit yet no Cost upon the Statute of Perjury Nota. Amendment of the Imparlance demed after Error brought A thing out of the Submission awarded and void Nota. Defendant wage his Law upon a Recovery in a Court Baron A man cannot send his Apprentice beyond Sea except he go with him Vpon a nul tiel Record though some Variances yet the Debt and Damages agreeing Judgement for the Plaintiff Bond taken to appear in the Court of Request void Return of the Habeas
Corpus amended Debt upon two Bils and one not due and tried for the Plaintiff and moved in Arrest the Plaintiff released his Damages and had Judgement upon the Bill due Lessee of the Vicars Gleab-land shall pay Tithes Nota. Venire facias de D. or within the Parish of D. or de Parochia good Scire facias upon a Recognisance may issue out into any County Deprivation of a Minister may be given in evidence Best to have Damages severed upon two Contracts Breach for not acknowledging a Fine Nota. Feossment of Land in satisfaction of Debt upon a single Bill held naught A Steward of a Leet within the Statute of E. 6. against buying of Offices One thing in Action cannot be a satisfaction for another thing in Action Vpon a Request and none ready to receive and after a Request Damages shall be paid from the Request Nota. Nota. Nota. An Almoner would have acknowledged satisfaction and doubted Judgement against the Plaintiff for incertainty of his Count. Nota. Judgement for the Plaintiff Nota. Because the first Contract was not usurious the latter shall not No Action of Debt for Soliciting Fees Defendant pleads the Plaintiff was indebted to him and he took Administration and retained his own Debt in his hands Bailiff of a Colledge claims the Liberty of the University but denied to him Special Verdict Nota well Appearance though at another Day the same Terme saves the Bond. Demand necessary for a Nomine penae Costs omitted in the Roll and Error brought and demed to be amended Nota. The Venire facias mis-awarded The Defendant pleads that be was ready to grant and naught No Demand necessary Note this diligently Fully administred no good Plea by an Administrator to a Scire sacias to revive a Judgement had against the Intestate An Executor an Assignee in Law Nota. Nota. Nota. An Executor by wrong shall not by his Plea prejudice a rightfull Executor Condition of non-payment of Rent to re-enter the Rent was behinde but before re-entry accepted the Estate is confirmed by the Acceptance The Defendants name mis-taken in the Venire and a new Triall awarded No costs against an Executor Devise of the profits of the Land it self Debt brought against an Excutor after full age for Goods wasted by the Administrator during his minority Release of all Demands a good Barr in Rent not then due Judgement arrested for improper words without an Anglice The want of a Bill not helped by the Statute of Jeofayles To forbid no Breach The Defendant pleads a Plea by which he pretends the Plaintiff to be barred in another Suit but no Barr. One by his own Election cannot be Executor for part and not for part Tenants in common Severall Debts Debt lies by him to whose use money is delivered Debt upon a Statute of Perjury at a Commission issuing out of Chancery not ly Outlary pleaded in Barr and Nul tiel record pleaded and in the mean time the Outlary reversed Judgement that the Defendant should answer over No Escape lies against a Sherif vpon a Capias upon a Recognisance out of the Chancery Request to make Assurance generally and good Appearance upon warning and for default adjudged naught Action of Debt upon the Statute of E. 6. for Tithes Sufficient to say the Plaintiffe is Proprietor without shewing the Title Misprision of the Clerk amended after Triall Judgement reversed by Writ of error being in the disiunctive The Plaintiffe had no Interest but 〈◊〉 rendring of the Land Lessee at Will cannot determin his will within the year but must answer the whole Rent The Plaintiffe not bound to alleadge a speciall breach when the Defendants Plea continues speciall matter Debt for Flemish Money but demanded by the name of 39. l. English If the Obligor marry the Obligee the Bond gone Judgement obtained by an Administrator and after Administration revoked and party took in Execution and delivered because erroneous To plead an Appearance and not say Prout patet per Recordum naâ—gâ—… Nota. Award void for the incertainty for being the Judgement of one it ought to have plainness and certainty Judgement obtained by President of the Colledge of Phisicians his Successor after his Death and not his Executor shall have Execution Assurance Tithe shall be paid of Wood above twenty years growth if it be not Timber Variance between the Obligation and count shall not be shewed after imparlance Demand of Rent must be at the place of Payment Judgement reversed in an inferior Court for want of this word Dicit Want of an Original after a Verdict no Error but a vitious Original is Error Plea naught for want of a Traverse Nota. Plaintiff in Debt for Tithes need not be named Rector in the Plaint in the upper Bench. Tithes cannot be leased without Deed Judgement reversecâ— for Error in the Judgement If a Suggestion in part need proof and part doth not no Costs Judgement reversed for Error in changing the Defendants Additions Action upon the Statute for Tithes the Statute mistaken yet it being according to divers Presidents ruled good Bill abated for not naming an Infant Executor in the Action although Administration was granted during his minority Action upon the Statute 32 H. 8. of Arrerages of Rents Action lies not upon that Statute for Arrerages of Copy-hold Rents Action of Debt brought upon a Bill for money received to another use An Executor of his own wrong cannot retain Goods in his hand to pay himself Primo deliberat shall not be pleaded without a Traverse If the Plaintiff assign no breach he shall never have a Judgement though he hath a Verdict Rent reserved at Michaelmas or within ten dayes after due at Michaelmas A Judgement reversed by Writ of error notwithstanding a Verdict and the Statute of 18 Eliz. Executor shall not pay Costs upon the statute of 4 Jacobi cap. 3. How a reservation for Rent shall be construed One must not plead in discharge of the Obligation but of the Condition contained in the Obligation A contingent Debt cannot be discharged False Latine shall not overthrow an Obligation A Deed of gift good against him that makes it notwithstanding 13 Eliz. and against his Executors and Administrators Action brought upon an Obligation to stand to the Award of four or two of them Award made by two good Debt Judgement arrested for Nil shewing in what Court the Deed was inrolled Judgement reversed for want of these words in a Tales at Assises nomina Jurat c. By a Release of all demands money to be paid at a day to come may be released before the day If the Defendant confess he hath Assets the Sheriff may return a Devastavit Action of Debt brought against the Sheriff upon an Escape for one taken upon a Capias upon a Recognisance and adjudged that it would not lie Debt brought upon a Lease made to an Infant One may take his Executioâ— either against the principall or Bail at Election An Action of Debt brought upon a Bond
him according to his promise The Defendant pleads Non assumpsit And a Verdict for the Plaintiff and moved in Arrest of Judgement for that the Plaintiff at the time of the Contract was an Infant and that he could not perform his promise by reason of his Infancy and therefore the promise void and another Exception for that it was not alleadged in what sum the Plaintiff and his Surety offered to be bound and Judgement was that the Plaintiff Nihil capiat per breve JAcob versus Songate Trin. 9. Jac. rotulo 2776. An Action upon the case brought for this word Perjured The Defendant justifies that it was found by Verdict that the Plaintiff was perjured but no Judgement entred upon that Verdict And whether the Plea were good being there was no Judgement was the Question and it was adjudged no Bar because no Judgement was given in the first-Action and so Judgement entred for the Plaintiff CRuttall versus Hosener Pasch 16. Iac rotulo Action of the case for these words He meaning the Plaintiff hath caught the French Pox and brought them home to his Wife And Judgement for the Plaintiff THornton versus Iepson The Plaintiff being a Currier brought an Action upon the case for these words He is a common Barretor but the words would not lie for a man of that Profession but would lie for a Justice of Peace or Lawyer IReland versus Smith Hill 9. Iac. rotulo Action upon the case brought for these words You Norgate take part against me with Ireland who is a Papist and hath gotten a Pardon from the Pope and can help thee to one if thou wilt The Plaintiff laid a communication between the Defendant and Norgate and alleadges himself of the age of 40. years and not above because it might appear to the Court that he was born within Queen Elizabeths Reign The Court held the Action would not lie as it was adjudged in Halls case and for this word Papist no Action will lie If I deliver my Goods to you to keep and I request them and you deny the Delivery of them now an Action of Trover will lie otherwise it is without a Deniall if I distrain Cattle I must not use them WArter versus Freeman Mich. 15. Iac. rotulo 1941. Action upon the case brought for that the Defendant sued out a Fieri facias upon a Judgement which he had against the Plaintiff upon which Judgement the Defendant had before sued out a Fieri facias and the Sheriff of Oxford had upon the first Fieri facias returned that he had levied the Debt and Damages and that they remained in his hands for want of Buyers and the Defendant knowing that the Sheriff had levied the Debt and Damages and intending to charge him again prosecuted another Fieri facias and that the Sheriff had again levied the said Debt and Damages and hath paid the Debt and Damages to the Plaintiff to wit at Westminster in Com. Middlesex where the Action was brought and Judgement after Debate was given for the Plaintiff though the Defendant alleadged that the Fieri facias was an Act in Law and so no cause of Action against him PArkhurst versus Powell vic Denbigh Mich. 15. Iac. rotulo An Action of the case for a false Return of a Capias utlagat and declares that he prosecuted a Capias utlagat directed to the Sheriff of Denbigh where the Defendant inhabited and delivered the said Writ to the Sheriff to be executed and the Defendant being then in the company of the Sheriff and might safely have arrested him did not but suffered him to escape and returned that he was not to be found and upon Not guilty pleaded it was tried in the County of Middlesex where the Action was brought and moved in Arrest of Judgement that the Triall ought to be in Denbigh because the not arresting was the principal matter but because the Action was grounded upon double matter the Plaintiff had his Election to bring his Action either in the County of Denbigh or Middlesex by the whole Court BLand versus Edmonds Pasch 16. Jac. rotulo 444. Action upon the Case brought for these Words Videlicet George Bland is a troublesome Fellow and he did combine with thee to trouble the Countrey and I hope to see thee at the next Sessions indicted for Barratry or for sheep-stealing as George Bland was at the last Sessions for Bland was indicted the last Sessions for sheep-stealing And it was held by the whole Court that those Words would not bear an Action the Plaintiff layed the Words to be spoken to one Jo. Eagle and the Declaration was held naught and insufficient because it was not averred that the Plaintiff was not indicted at the Sessions BRadshaw versus Walker Hill 16. Jac. rotulo Action upon the case brought for these words Videlicet Thou art a filching Fellow and didst filch from A. B. 4. l. And Judgement that the Plaintiff should take nothing by his Writ for it shall not be intended that he stole the money ADams versus Fleming Hill 16. Jac. rotulo 890. Action of the case brought for these words Videlicet He hath forsworn himself before the Councel of the Marches meaning the Councel of the Marches of Wales in the Suit I had against him there and I will sue him for Perjury there And after Verdict for the Plaintiff moved in Arrest of Judgement that the words were not actionable for their uncertainty because the Court could not take notice that they had authority to hold plea in matters of record Judgement for the Plaintiff for these words Thou art a false forsworn Knave for thou didst take a false Oath before a Judge of Assise to hang a man GOre versus Colthorpe Trin. 5. Jac. rotulo The Declaration was in consideration that the Plaintiff would give credit to E. C. then servant to the Defendant for any thing the said E. should deal for to the use of the Defendant with the Plaintiff promised that he would see the Plaintiff contented that which the said E. should deal for with the Plaintiff for the use of the Defendant any way when the said Defendant thereof after it should become due should be requested and a special Verdict by which it was found that the Defendant promised to see the Plaintiff contented that which the above named E. C. should deal with the Plaintiff for the use of the said Defendant any way The Judgement of the Court was that the Verdict did not maintain the Declaration because for collaterall matters which are not Duties a Request is material and are not like a Duty as for Debt which is due and no Day of payment expressed that shall be alleadged to be when he shall be thereunto requested generally For if I sell my Horse for ten pounds and no Day of payment that shall be alleadged in the Count Cum inde requisitus esset And one case of Peters was cited which was
Berwick Gaol for stealing of a Mare and other Beasts and after a Verdict for the Plaintiff it was moved in Arrest of Judgement that the words were not actionable and so it was adjudged for that he did not directly say the Plaintiff was a Thief but onely implied Hill 15. Iac. rotulo An Exception taken to a Declaration in Trover brought by an Administrator because he declares that whereas he was possessed of divers Goods and Chattels as of his own proper Goods and should have said as was pretended as of the Goods and Chattels of the intestate at the time of his Death but the Exception was over-ruled by the Court. Exception to an Action of the case brought and the Plaintiff declares that whereas the Plaintiff had delivered the Defendant unum statum salis Anglicae a Bushel of Salt pretending that statum had another proper signification but because it was shewed to the Court that statum by one Dictionary was Latine for a Bushel Judgement was given for the Plaintiff In Trover it is usual to prove no more but that you requested the Goods and the Defendant refused to deliver them this is a Conversion When a Justification arises upon a Sale then I need traverse no more but the place alleadged and not go to the whole County but where it is a transitory Trespass as for Battery taking of Goods and the like then the whole County must be traversed CAtford versus Osmond Mich. 16. Jac. rotulo 1063. Action of Trover brought for two Steers the Defendant being an Attourney of the Common-pleas justifies the taking as Under-sheriff by reason of Process from the Exchequer to levy of the Occupiers of the Lands of divers persons in a Schedule in the said Writ named the Debts therein specified and doth not recite the Schedule and he being Under-sheriff took the Steers in the Land of the Plaintiff which was lately one Stones who was Debtor to the King in 59. s. being behinde upon the Land and Exception was taken for that it was not directly alledged that the Land such a Day was the Land of the said S. The Writ commanded to levy the summs in the said Schedule mentioned and if they could not to take their Bodies and it was adjudged a good Warrant to levy of the Occupiers of the Lands that were the said S. 59. s. COles versus Flaxman Hill 14. Jac. rotulo 2175. Action of the case brought for disturbing the Plaintiffs Common The Defendant pretends Title to the Common by reason of Common appurtenant to certain customary Land of part of which he conveys a Title to himself but not of the whole and the Question was whether it were Common appurtenant or appendant and if appurtenant it could not be divided KEymes versus Moxham Trin. 15. Jac. rotulo 559. Action of the case brought for a promise made at C. for the Delivery of a Mare which the Plaintiff delivered the Defendant to plow his ground in P. And shews the Defendant did so excessively and immoderately labor and work the said Mare that the Mare died The Defendant confesses the promise and that the Mare at the time of the Delivery was infirm and that he worked her moderately and traverses the excessive labouring of the Mare and after a Verdict it was moved in Arrest of Judgement that it was mis-tried because the Venn was of C. which was naught and there was no place alleadged where the excessive labouring was for the Venn ought to come from that place where the laboring was HArbin and his Wife versus Green Trin. 14. Jac. rotulo 2263. Action upon the case brought for not grinding his Corn at the Plaintiffs Mill and shews that the Bishop of Salisbury was seised of four customary Mils called A. in his Demesne as of Fee in right of his Bishoprick and prescribes that all Inhabitants and Residents within the City of Salisbury holding any ancient Mesuages of the said Bishop in right of his Bishoprick were time out of minde used and ought to grinde all their Corn whatsoever spent in their houses or exposed to sale in the said City at the said Mils of the said Bishop and no where else without the licence of the said Bishop and to pay Toll therefore to the said Bishop his Successors Bishops or their Farmors for the time being and in consideration thereof the Bishop his Successors or Farmors for the time being of the said Mils time out of minde have been used and accustomed at their own charges from time to time to keep and maintain a Servant expert in grinding as well by night as day there attending to grinde their Corn as soon as conveniently might be and the Plaintiff shews that such a Day the Defendant was and yet is an Inhabitant in one ancient Mesuage in the said City held of the Bishop and so possessed intending to deprive the Plaintiff of the profit of his Mill did such a day grinde divers sorts of Corn in other Mils without the Bishops leave to his damage of c. The Defendant pleads Non cul The Jury finde the Defendant guilty for a longer time then the Plaintiff had interest in the Mill and gave Damages intire and upon a Motion in arrest of Judgement adjudged naught GResley versus Lother and his Wife Executrix of R. B. and declares that communication was had between the Testator in his life and the Plaintiff concerning a Marriage to be had and solemnized between one T. B. son and heir apparent of the said R. B. and Jane Daughter of the Plaintiff and heir apparent of John F. deceased the said Testator such a Day and Year in consideration that the Plaintiff at the special instance and request of the said R. B. then and there would agree that the said T. B. should marry the said J. promised to pay 20. l. and adjudged a good consideration GOwland versus Mason Hill 17. Jac. rotulo Action of the case for these words I charge him with Felony for taking of money out of the pocket of Henry Sparry and I will prove it and the Court was divided in opinion whether the words would maintain an Action or no. SMith and his Wife versus Stafford Executor of Stafford Hill 15 Jac. rotulo 906. Action of the case brought upon a promise made to the Woman when she was sole in consideration the Woman would marry the Testator he promises that if the Woman should over-live the Testator that then he would leave her worth 100. l. and they averr that she did marry him and after the Husband died and did not leave her worth 100. l. and the Defendant pleads Non assumpsit and found for the Plaintiff and it was moved in Arrest of Judgement that by the Inter-marriage the Promise was drowned and released Three Judgeâ—…r the Plaintiff and one for the Defendant The like Observations in Actions of Covenant DRury versus Allen al. Mich. 6. Jac. rotulo 926. Action of Covenant
agreement was not by him performed CRockhay versus Woodward Hill 15. Jac. rotulo 2001. An Action of Covenant brought upon this Writing Videlicet Memorandum that I John Woodward do promise and assume unto B. C. to pay to him such Moneys or other Goods as Josias my son shall imbessell mispend or wrongfully detain of his during the time of his being Apprentice with him within three Moneths next after request to me in that behalf made and due proof made of such imbesselling or wrongfull detaining in witness c. and the Plaintiff shews that the Defendants son did imbessell Goods of his Masters and shewed what Goods and left out in his Declaration these words Videlicet and due proof likewise made of such imbesselling or wrongfull detaining The Defendant demands Oyer of the Writing and pleads that he did not imbessell and it was tried for the Plaintiff and after Triall Exception taken because the Plaintiff did not alleadge any proof made and for that reason Judgement was arrested BRagg Assignee of Bragg versus Wiseman Executor of Fitch Mich. 12. Jac. rotulo 538. Action of Covenant brought and the case was this that Fitch and his Lady were seised of Land in right of his Wife for terme of her life and joyn together in a Lease by Deed indented in which were these words demise and grant and afterwards Fitch dieth the Lady enters and avoids the Lease and maketh a new Lease to a stranger whereupon an Electione firme is brought against the first Lessee and Judgement thereupon and the first Lessee put out of Possession whereupon the first Lessee brings his Action of Covenant against the Executors of Fitch upon the words demise and grant The Defendant demurrs The words were have demised granted and to farm letten for years if the Wife should so long live and Judgement for the Difendant A Covenant in Law shall not be extended to make one do more then he can which was to warrant it as long as he lived and no longer The Law doth not binde a man to an inconvenience If Tenant for Life make a Lease for twenty years and covenant that the Defendant shall injoy it during the terme that shall be during his Life for the terme endeth by his Death but otherwise it is if the Covenant be during the terme of twenty years by the word Demise an Action of Covenant lieth although he never enter and this word Demise implieth as much as Dedi concessi An Action of Covenant brought for that the Defendant covenants to bring again a Ship Perils and Damages of Sea onely excepted and he to excuse himself saith that the Hollander in a warlike manner by force and armes took the Ship and much doubt was where the Issue should be tried and the opinion of the Court was that the Action should be tried where it was laid COwling versus Drury Action of Covenant brought for that the Defendant did not pay a Rent with which the Land was charged the Defendant replies he was to injoy the Land sufficiently saved harmless and answers not the Breach and adjudged a naughty Bar by the whole Court SElby versus Chute Trin. 11. Jac. rotulo 3804. Action of Covenant brought and the Breach was alleadged that the Plaintiff should quietly injoy the Land demised to him and he shews that Chute exhibited a Bill in Chancery against him pretending the Lease was made in trust and it was decreed to be otherwise and whether the exhibiting this Bill was a Breach of Covenant there being no Disturbance at Common Law was the Question and the Court were of opinion that it was no Breach of Covenant for it was no Disturbance at Common Law nor Entry and the Law could not take notice of it and Judgement for the Defendant HOlder versus Tailor Pasch 11. Jac. rotulo 1358. An Action of Covenant brought upon this Covenant that the Lessee should repair the House provided alwayes and it was agreed that the Lessee should have such necessary Timber to be allowed and delivered by the Lessor and the Breach was that the House wanted Reparations and that so many Loads of Timber were necessary and that the Lessor allowed them according to the form and effect of the Indenture and a general Request laid and Exception was taken to the Declaration for that the Plaintiff did not alleadge a special request to the Defendant and that it was laid in the Declaration that a stranger brought the Timber which was held to be naught by the whole Court for it amounted to an Entry upon the Lessees Possession Exception taken to a Breach laid in Covenant for Repairs because it was generally alleadged and not shewed in what but being after a Verdict it was helped by the opinion of the whole Court TIsdale versus Essex Trin. 12. Jac. rotulo 2131. Action of Covenant brought upon these words covenant promise and agree that the Lessee should quietly occupy and injoy the Lands demised for and during the terme of seven years and the Plaintiff shews that an Estranger entred upon the Land and shews not that he entred by Title and the Court was of opinion that it was naught because it did not appear that he had a good Title to enter Dedit concessit imply a Warranty for Life and Judgement was given for the Defendant because the Breach was naught HIcks versus Action of Covenant brought and the Land alleadged to be in Weston alias Weston Vnderwood and the Venn was de visu de VVeston Vnderwood and it was alleadged by the Defendant that the Venn was mis-awarded because it was not of VVeston onely but the Court was of a contrary opinion that it was well awarded and Judgement for the Plaintiff CAstilion al. versus Smith Exec. Smith Trin. 17. Jac. rotulo 1849. Action of Covenant brought against the Defendant and the breach of Covenant alleadged to be in the time of the Executor and the Judgement was entred of the Goods of the Testators the Breach was for plowing of Land contrary to Covenant RIdent versus Took Hill 13. Jac. rotulo 3516. Action of Covenant brought to discharge the Plaintiff of a single Bill in which he was bound for the Debt of the Defendant and he alleadges for Breach non-payment and a Suit and recovery at Law for the Money which remained in force The Defendant pleaded that he paid the Money at the Day and thereof gave the Plaintiff notice before the purchasing his Writ the Plaintiff demurs and the Court held the Plea naught and Judgement for the Plaintiff Actions upon Account WIlloughby against Small An Action of Account brought against the Defendant as Receiver of the Plaintiffs Money The Defendant pleads that he never was Receiver where he hath a Release from the Plaintiff whereby he shall lose the benefit of his Release for that he cannot give that in Evidence upon such Issue The Process herein is Summons Pone Distress and upon a Nichil returned
Damages c. An Assise brought and the Grant was of the Herbage and Pannage c. and whether this were good or no some held it void for the incertainty of the Grant when it should begin Sir Edward Cook held the Grant good for if the King make a Lease for Life and granteth the Land without reciting the state to one for life this is a good Grant for Life of the Reversion to begin immediately after the Death of the Tenant for Life Trin. 7. Jacobi rotulo 35. An Assise brought for the Office of a Harald at the Funeral of the Earle of Exceter and the great Question was where the view should be made and it was alledged that it should be made in the place where he exercised his Office but the Court doubted of that but they were examined of the view made in the Abbey of Westminster being the place where the Funeral was performed and the Court were of opinion that in Dower where Tithes are demanded no view lies for of things that are invisible no view lies but the Tenant in such case shall be denied it SIr William Saint Andrew brought an Assise de Darrein Presentment against the Arch-bishop of York the Countess of Shrewsbury and F. H. for the Church of O. in the County of Nott. The Archbio p and H. appeared and the Countess did not appear and though the Countess made Default yet the Assise was not taken against her by Default but a re-summons was awarded against the Countess and the same Day given to the Arch-bishop and H. and a Habeas Corpora against the Recognisors And note the Tenants that appeared pleaded in abatement that a Writ of Quare impedit for the said Church was hanging in such a Court between the same parties and the Assise was brought afterwards and with this agrees the Register and it was adjudged a good Plea The Writ was returned in this manner Pleg de prosequend John Doo Richard Roo The within named Arch-bishop and Countess are attached and either of them is attached per Pleg H. S. N. J. And the within named H. hath nothing in the Sheriffs Bailywick by which he may be attached nor hath a Baily within his Liberty nor is therein found and the residue of the Execution c. and Judgement given that the Writ should abate and the like was in the Earle of Bedfords case where two Quare impedits were brought one after another and the last Writ abated J. Lovelace versus Baronissam Despencer R. Harvey Clericum Trin. 12. Jac. rotulo 74. de Darrien Presentment for the Church of M. And the said H. being solemnly exacted came not and the Sheriff made a Return that he was summoned by J. O. and W. C. and therefore the Assise was to be taken against him by Default but the said Baromsh by T. her Attourney faith the Assise ought not to be so taken and confesses the said J. was the person last presented but conveys a Title to her self of the Mannour to which the presentation belongs and that being so seised the Plaintiff in the Assise by usurpation presents the Clerk in the Count whereupon the Defendant brought a Quare impedit and hanging the Writ the Clerk in the Count dies and the Plaintiff presented the Clerk that made Default who by vertue of that presentation is yet Parson of the said Church by which she is seised of the Advowson as in her former Estate and so she saith that the Presentation of the said J. by the said L. made ought not to prejudice her and a Demurrer upon this Plea and that the Assise should remain to be taken c. for want of Recognisors and the Sheriff was commanded to distrain them c. and Judgement given that the Plea was good but quaere of the Declaration whether sufficient because it was not alleadged that he that presented was seised of the Advowson Pasch 8. Jac. rotulo 31. An Assise brought for the Office of Clock-keeper of and it was held that it must be an ancient Office and because they could not prove that it was an ancient Office the Plaintiff was non-suit and the Plaintiff shewed a Grant of the same in E. 6. time but that was held no ancient time Pasch 6. Jacobi It was held by the whole Court that an Assise of Sadler to the Queen would not lie being granted to one by the King but was held void by the whole Court for the King cannot make an Officer to the Queen and by the Patent no place was expressed where he should injoy and exercise his Office and take the Profits and therefore the Jury could not have the view and for that cause an Assise cannot be taken and if the King should grant the Office of Usher to his Son the Prince an Assise would not lie An Assise brought against Demetrius the Plaintiff was non-suit and Demetrius moved to have Cost and it was denied by the whole Court because an Assise is not within the words of the Statute Audita Quaerela BIrd versus Kirton Trin. 13. Jacobi rotulo 3118. An Audita Quaerela brought and the case was this Bird and Milles were bound to Kirton and Kirton makes a Bond to Milles in the summ of 100. l. that if Milles be not sued upon the first Bond then that shall be void and it was alleadged that Kirton did both sue Milles and Bird and that he had no notice of the second Bond that he might have pleaded it and so pretends that the second Bond should be a Defeasance of the first and Judgement was given for the Defendant BEck brought an Audita Quaerela and surmises the matter following that Boon Administrator of C. brought his Action of Debt upon an Obligation and before Judgement that Administration was revoked and Administration granted to another and notwithstanding the Revocation he procured Judgement and the second Administrator released and the rest brought an Audita Quaerela upon that Release and the Court would not grant a Supersedeas because the Revocation was but matter in fait for that Revocation was not under Seal and the first Administrator might appeal Cases in Law and Notes IF a Writ of Covenant be brought against two and if one acknowledge the Fine before one of the Justices and the other acknowledge by Dedimus or before another Justice that Fine cannot be proceeded upon these two acknowledgements by the opinion of the Court. A Writ of Covenant was brought against three men and their Wives and onely two men and their Wives acknowledged the Fine and the other Husband and Wife never acknowledged and the Fine was sued as a Fine acknowledged by all and it was desired the Fine might be amended and the Man and Wife that did not acknowledge might be put out but the Court would not grant it If I make a Lease for years reserving Rent during the Life of A. and B. if one of them die
omit to take them every other year I cannot take them in the third year But for Rent and such other things that are in the Render I ought to have it when ever I demand it as it best pleases me And note that in such case one prescribed for eight Loads of Wood to be cut and taken as appertaining to a Messuage which was held naught by the whole Court for the Prescription should be laid for Estovers to be imployed upon Repairs of the said Messuage or to be spent in it for a man cannot prescribe to have a Prescription to come and cut down my Wood which is as much as I that have the Free-hold can do For the claim to take and sell my Wood cannot be good And the Court held it a good Prescription to prescribe to have Common every other year although you shew not the Commencement as to shew what time of the year when it begins If a man hath Common of Pasture in divers Closes and parcels of Ground where he hath some Land of his own there and in all other cases where one is to prescribe he need not to make his Title to every peice but to say he hath Common in loco in quo c. in t alia and need not to speak of the rest of the Land in the residue of the Feild because he hath Land of his own Common appendant belongeth to arrable Land not to Pasture Land If two Issues be joyned and in the awarding the Venire facias these words Videlicet Quoad triandum tam exit istum quam praedictum alium exit superius junct were omitted and after a Verdict such Default was moved in Arrest of Judgement and the Exception over-ruled and held good notwithstanding that omission The whole Court were of opinion that local things shall not be made transitory by laying the Action in a forrain Shire as for Corn growing in one Shire and an Action of Trover brought in another COmes Cumbr. versus Comitem Dorset It was moved by the Defendant that whereas the Plaintiff had prosecuted a Distring Jur. and onely eleven of the Jury appeared and the Inquest remained to be taken for want of Jurors and that at such time neither Plaintiff nor Defendant desired a Tales and afterwards the Defendant in another Terme prayed a Tales of that Writ which the Plaintiff had prosecuted and the Court denied to grant it because he prayed not a Tales when the Distress was retorned and if he would have a Tales he must purchase anew a Plur. distring and if then the Jury fill not the Defendant may pray a Tales and the Court ought to grant it And note upon the first Habeas Corpus the Defendant shall not have a Tales but in Default of the Plaintiff IF the Chamberlain of the County Palatine of Chester make an insufficient Return to the Court of Common Pleas upon a Writ issued out of that Court the Sheriff shall be amerced because the Sheriff is the Officer responsible to the Court. The King hath power to make and create a Leet anew where none was before A Distress is incident of Right but in a Court Baron a Prescription must be laid to distrain J. Rogers versus Powell My Lord Cook held that the Surrender of a Copy-hold in Tail is not any Discontinuance and Justice Foster of the same opinion In Doctor Husseys case in a Ravishment de gard wherein the Judgement is penal the Habeas Corpus was denied by the Court to be amended being a blank Writ after a Verdict but was adjudged Error For the Proviso in the Statute of Jeofailes 18 Eliz. excepts Actions upon penal Statutes One Jury was impannelled of the Town of Southampton and called to the Bar and made Default and the men of that Town shewed to the Court a Grant made to the Inhabitants of that Town that no Return should be made of the men of that Town to be of any Jury and prayed the Allowance of their Charter and the Court appointed them to plead their Charter and it was done accordingly TRier versus Littleton A special Verdict was found whether Fraud or not Fraud and the Jury did not finde the Fraud expresly but they found Circumstances that the Deed might seem thereby to be fraudulent but the Court will not adjudge it Fraud where the Jury do not expresly finde the Fraud for the Judges have nothing to do with matter of Fact and so by the whole Court no Fraud Tenant for Life Remainder for Life Remainder in Tail Remainder in Fee the first Tenant for Life suffereth a Recovery the Remainder in Tail is barred although the second Estate for Life be no party Baron Feme seised of the Wives Land for Life of the Wife Remainder to the Husband and Wife in Tail and afterwards the Husband doth bargain and sell the Land by Deed inrolled and a Precipe is brought against the Bargainee and he voucheth them in Remainder this is a good Recovery to barr the Estate Tail If an Information be brought against three upon the Statute of Maintenance and two of them appear and the third doth not appear the Plaintiff may declare against the two that do appear before the other appears for it is but a Trespass and Contempt as in Trespass and Conspiracy but it is otherwise in Debt upon a joynt Contract for there the Plaintiff cannot declare against one untill the Process be determined against the other by the opinion of the whole Court If Judgement be entred in Trespass of Oct. Hillarii the Writ to inquire of Damages may bear teste of any other Return of that Terme besides of Octab. Hillarii for the Terme is as one Day and so hath been adjudged upon a Writ of Error in the upper Bench but it is otherwise held in the Common Pleas. If a Bargain and Sale be void in part it is void in all If an Officer or priviledged person of the Court of Common Pleas sue another priviledged man of any other Court whatsoever yet he of the Common Pleas that first sued shall force the other priviledged person to answer in the Common Pleas but if a priviledged man be sued with another as Executor no Priviledge lies Summons and Severance lies between Executors Plaintiffs and if one of the Executors be outlawed or excommunicated he may be demanded and if he comes not shall be severed by an award without Process after he hath appeared and the other shall proceed without him but if he had not appeared then Summons and Severance shall issue out against him FLetcher versus Robson An Extent upon a Statute Merchant issued out against Robson the Cognisor and the Sheriff returned that the Cognisor was possessed of divers Goods and seised of Lands which he delivered to the Cognisee and that the Cognisee accepted of the Land and because the Sheriff did not return that he had not any other Lands Goods or Chattels it was
that is naught for it is a several Lease of their Moities and you must declare Quod cum one of them demised one moity and the other the other moity and good If a Tenant in Socage hath Issue and die his Issue being under the age of 14. years the next Freind of the Heir to whom the Inheritance cannot descend shall have the Guard of the Land untill the Heir come to the age of 14. years and he is called Guardion in Socage and in pleading a Lease for Life you are never to alleadge the place where the Lease was made because it passeth by Livery which was executed upon the Land He that pleads a Demise ought to shew that the Lessee entred and he that pleads a Descent ought to shew that he entred and an Exchange is a good Plea in Bar but it shall never be adjudged a good Exchange except this word Escambium be used in the Charter of Exchange HOpkins versus Radford A Defendant shall take no benefit of his own wrong In Sir James Harringtons case the Original was returned Quinque Pasch and the issue joyned that day and the Venire facias returned that day and held naught by the Court upon the first motion A future Lease cannot be surrendred but drowned For things in Action a Deed of Gift is void as Debts without Specialty although he say Goods Chattels and Specialties but for other Debts by Specialty and Goods it is good and for the Debts in Action after the Death of the Party Administration is to be granted and the Administrator is to have the Goods RAiner versus Mortimer One had Judgement upon a Scire facias to have Execution and a Capias ad satisfaciendum returnable 15. Martini and that Writ was returned Album Breve and a Testatum thereupon and the Defendant taken and this matter was moved to the Court and a Supersedeas prayed that the Testatum issued out erroneously because the Capias was not returned and it was granted by the whole Court because the Capias was not returned One seised in Fee may bargain and sell grant and demise Land to others and their Heirs to the use of one for years because he hath a Fee-simple but Lessee for years cannot bargain and sell his Lease to the use of one for years If a Marriage is intended between two men and one of them in consideration that the other hath upon the Marriage assured Land to his Son he doth assume to pay to my Son such a Summ immediately after the Marriage if the Money be not paid the Son must have the Action and not the Father MIch 5. Jacobi 61. One Jury-man appear in Court and when he came to the Barr to be sworn he informed the Court that he was eighty years old and prayed to be dischargâ—d and the Court could not grant it nor pass him by and swear others without committing Error except the Parties would consent for it is Error to skip a Juror who is returned if he appear and therefore the Juror was drawn by the consent of the Parties TRin. 6. Jacobi Upon a Levari facias out of a Court Baron Goods cannot be sold without a Custome to sell the Goods and if Goods be attached by Pone out of a Court Baron the Defendant shall not lose his Cattle otherwise it is if it be a Process out of the Common Pleas then the Defendant loseth his Cattle for not appearing if you lay that you have a Court time out of minde to be held before a Steward you must shew what Pleas you have used to have Conusance of A Sheriff returned but 21. onely upon a Venire facias and at the Triall ten onely appeared and a Decem tales was awarded and tried and Verdict for the Plaintiff and this matter was moved in Arrest of Judgement for that the Sheriff had returned but 21. and the Court were of opinion that if 12. of them had appeared that it had been good notwithstanding but because 10. onely appeared of the principal therefore it was naught and Judgement arrested for that cause If a Juror be sworn of the principal and the Jury remain when the Jury comes again he shall be sworn again TRin. 6. Jac. rotulo 251. Dunnall versus Giles A special Verdict and the Question was a man being possessed of a terme devises the whole terme to A. for Life and if he dies within the terme to B. during the minority of C. and that C. when he comes to full age shall have the Remainder of the terme and held a good Devise To devise Land or Terme or Lease all one it is an Executory Devise If one surrender Land to the use of an Estranger that is to resty the use in Reversion for the Land is in him immediately If a man hath a Rent in esse you cannot grant that in Reversion after your Death but if I surrender to the use of one after my Decease is not good by his opinion of Warburton and Daniel If the Sheriff shall by vertue of a Fieri facias levy the Debt and Damages of a man and make a Return that the said Goods remain in his hands for want of Buyers the Property remains still in the Defendant although the Sheriff hath Possession of the Goods A Sheriff may sell Goods levied upon a Fieri facias out of his County In Watermans case the Issue was whether a Copy-holder in one Town had Common in Land lying in another Town and the Plaintiff shews that he is Lord of the Hundred of C. within which Hundred one of the Villages lie and prayes a Venire facias of the Town next adjoyning to the said Hundred and it was granted and tried and Exception to the Triall for that the Venire was not of both Villages An Alien born being no free Denizen may defend and bring a Writ of Error and it is no Plea to say that he is an Alien born Note by the Common Law the Lord of the Mannour may come and take away a Tree cut down upon the Copy-hold Land by his Copy-holder without laying a special Custome for it If there be an unlawfull Marriage as the Brother doth marry his Sister and they have Issue and one of them dieth before any Divorce had between them now after the Death of one of them the Issue cannot be bastarded as in Cordies case 39 E. 43. 22 E. 4. After a general Imparlance one cannot plead an Outlary in Barr to an Action of Trespass or Case but it must be pleaded in abatement except he be outlawed after the last Continuance for you shall plead nothing in Barr but what goeth to the pit of the Action now the Damages in Trespass or Case are not forfeited by Outlary as Debt because of the incertainty To the Owner of the Soil on both sides of the way of common right belong the Trees that grow in the Lane whether
12. Jacobi rotulo 1609. or Hill in the same year rotulo 3027. The Plaintiff brought his Action upon a Bond the Condition whereof was performance of an Award for and concerning all matters Causes Suits and Demands whatsoever had moved or depending c. so as the said Award be made c. The Defendant pleads no such Award made the Plaintiff by Reply sets forth the Award it was made De praemissis to wit that the said I. should clearly depart with and avoid out of her House in which she then lived and that the said I. should carry away all the Hay c. The Defendant re-joynes and sayes no such Award and a Verdict for the Plaintiff the Defendant moved in Arrest of Judgement for that the Award was made but of one part and so void but Judgement was given for the Plaintiff for though the Award be made but of one part yet if the Defendant may plead it in Barr of the other Action brought against him for the same cause in all such cases the Award is good But my Lord Hubbart and Nichols took this Difference upon these words so that for then the Arbitrators must make their Award of all such things which are in Controversie and in such manner as the Condition prescribes but if the Parties put themselves by Parroll if the Arbitrement be made of one part it is good And Hubbart said that in all Arbitrements whether by Bond or Parroll they ought to be reciprocal and to be made in such manner that it may make an end of all Controversies between the Parties For if a man be bound in a single Bill and put it to Arbitrement and the Arbitrators order that the Obligor pay to the Obligee a summ and do not award that the Obligee shall seal a Release or that the Money paid shall be in Discharge of the said Bill the Award is void But in Barpools case the Submission was by Parroll for Money due before the Submission and the Award was that he should pay such a summ for the same Debt and good for the Award shall inure to a Dischage See Paschals case 8. Rep. STutfield Plaintiff Grony Defendant in Trinity Terme 13 Jacobi rotulo 859. The Defendant pleads to a Bond taken by the Sheriff for his Appearance in the Kings Bench Die Sabbati proximum post Oct. Martini that he appeared at the Day and the Court of Common Pleas gave him a Day to bring in the Record of his Appearance by Mittimus issuing out of the Chancery the Record was certified Videlicet that he appeared Lunae post xv am Martini which was after the Day yet it was adjudged good for if the Appearance was the same Terme it is good though it be not the same Day SErle against Harris Trinity Terme 9. Jacobi rotulo 1321. Judgement is there entred by Non sum inform against Harris Harris brings a Writ of Error upon that Judgement and assignes for Error that the Record was Fr. Harris de Brownton and the Original filed to warrant that Judgement was Fr. Harris de Browton and there reversed for that Variance HAmond versus Jethrell Mich. 8. Iacobi rotulo 2354. Hamond brought his Action of Debt upon a Bill obligatory for the Payment of Money and no Day limited in the Bill for the Payment thereof but after the words In witness whereof c. these words were written Nevertheless it is agreed that the said Jethrell shall not be hereby compelled or required to pay the said 30. l. untill the said Jethrell have recovered against B. Hudson the summ of 30. l. or more upon a Bond of 40. l. wherein the said Hamond c. The Defendant demands Oyer of the Bill and hath it Memorandum that J. W. J. c. and demurrs in Law and shews that the Plaintiff had not alleadged any Day of Payment nor when it was requested and the Declaration adjudged good notwithstanding and my Lord Cook held that whatsoever comes after these words In witness c. is no part of the Bill but words after In witness c. may be a Condition and must be pleaded and not demurred upon and 21 Henry the sixth direct in this point and so the third Report An Action of Covenant brought upon words of Covenant in Indenture after In witness c. and above the Seal and held good and maintainable SAaint-John versus Cracknell Mich. 12. Jacobi rotulo 1153. An Action of Debt was brought upon the Statute of the 24. of Henry the sixth for 40. l. for Election of Burgesses in Parliament and it was tried and a Verdict for the Plaintiff And Serjeant Moor moved the matter insuing in Arrest of Judgement First the Statute directs the Sheriff to issue out his Warrant to the Mayor if there be one and if no Mayor then to the Bailiff and it appeared by the Court that the Sheriff made his Warrant to the Bailiff and do not shew that there was no Mayor there and the Exception disallowed for if there was a Mayor the Defendant ought to shew it by Plea Secondly that the Plaintiff doth not alleadge that the Warrant made to the Bailiff was under the Sheriffs Seal as the Statute directs and the Court held the Count good notwithstanding because the Declaration was that the Sheriff by vertue of a Writ to him directed made his Warrant to the Bailiff and if it was by vertue of the Writ it shall be intended to be under his Seal HOpe versus Holman Mich. 10. Jacobi rotulo 3612. Debt upon an Obligation the Defendant pleads a forreign Attachment in London and the Plaintiff demurrs and the Exceptions were first that the Defendant had attached the Moneys in his own hands by way of Retainer and so the Custome unwarrantable Secondly it appeared that Judgement was given in the Mayors Court by the Default of him in whose hands the Money was attached and it appeared that the Defendant which brought the Action in London and he in whose hands the Attachment was made and that made Default was the same person and it is a contrariety that the same person should appear and not appear and a Prescription for that is naught and the Custome is in London that the Recoveror in London ought to finde Sureties that if the Debt be discharged within a Year and a Day then to pay the Money and did not appear by the Record that he found Sureties which was an incurable Fault and so adjudged by the Court. POtter versus Tompson Hill 14. Jacobi rotulo 3449. To one Obligation with Condition to make Assurance of Lands to such Uses therein expressed the Defendant pleads that he made a Feofment of the same Lands to other Uses which the Plaintiff accepted the Plaintiff demurrs and it was adjudged a naughty Plea for he ought not to vary from the Condition HIggenbotham versus Armot Hill 8. Jac. rotulo 906. Action of Debt brought upon a Retainer in the Office of an Husbandman for one year and so from
arbitrated or else it is void and in every award there must be satisfaction of that which was awarded POwel versus Crowther trin 9. Jacob. rotulo 313. det port e un three executors which appeared at several terms and plead severally ne unques execut the plaintiff proceeds to triall against one of them and was non-suit And then one of the other defendants take the record down by proviso and the plaintiff was again non-suit and both the defendants desire costs before the third issue was tried but costs was onely given to the first and denied to the second for his trial was erroneous because by the first triall the originall was determined If a defendant wage his law no excuse of sickness or water can save his default but in real actions he may excuse himself by such accidents If the condition of a Bond be to discharge a messuage of all incumbrances there one may plead generally that he did discharge it of all incumbrances but if it be to discharge it of such a Lease there he must shew how NOrton versus Sims Pasch 11. Iacob rotulo 346. debt upon a Bond entred into by an under Sheriff to his high Sheriff that the under Sheriff shall not meddle with the execution of executions and shall discharge the Sheriff from all escapes and the plaintiff shewes a breach in the under Sheriff for an escape by reason whereof the Sheriff paid the debt and damages question was whether this covenant be good or not Judgment for the plaintiff A high Sheriff may make an under Sheriff to be at will An under Sheriff hath the same authority an high Sheriff hath it is a void condition to save a man harmless from all men but good if it be special if the condition be to discharge and acquit I must shew how An under Sheriff was before the Conquest A Bond made to the Sheriff by the under Sheriff to discharge of all escapes this is good and lawful If any part of the condition of a Bond be against a Statute-law it is void in all but otherwise if part be against the common-law See Boswels case 10. Rep. when a man is under Sheriff he may do all ministerial things the Sheriff may do but not judicial If the under Sheriff will covenant that he will not meddle with executions above 20. l. this covenant of his own accord is good if a Sheriff binde his under Sheriff that he shall not return Venire Facias nor intermeddle with executions untill he be acquainted it is against Law and naught by all the Court A Bond to perform divers Covenants some against Law and others lawfull it is good for lawfull things and void for the rest The Death of one of the Parties in an Original Writ doth abate the Writ it is otherwise in a Judgement If Husband and Wife sue a Scire facias and the Husband dieth the Scire facias shall abate for it is no more a judicial Writ but as it were an Original to revive a Judgement The Court were of opinion in the case of Sir H. Dowckray that where he had delivered Money to his Servant to provide Victuals and the Servant buyes the Victuals in his Masters name and payes not for them and afterwards an Action is brought against the Master for the Money and he offers to wage his Law and the Court held he could not safely wage his Law because the Victuals came to his own use and therefore he is chargeable and must have his Remedy against his Servant But if the Master did forbid the Tradesman to deliver any Wares except his Man paid for them in that case if the Tradesman deliver Wares the Master may safely wage his Law as it was adjudged in Sir H. Comptons case MAntell versus Gibbs Trin. 7. Jacobi rotulo 1254. An Action of Debt brought upon an Obligation to which the Defendant pleads that an Estranger was imprisoned by another stranger and kept in Prison untill the Defendant as Surety of the stranger made the Bond and it was held a naughty Plea and a Repleader awarded ALston versus Walker Mich. 6. Jacobi rotulo 1342. Land was Mortgaged and a Promise that if the Mortgager at such a time and place should pay the Money to the Mortgagee his Heirs or Assignes that then the Mortgage should be void the Mortgagee died and the Money was paid to his Executors and it was adjudged to be no performance of the Condition for the Executor was not named and the Money ought to be paid to the Heir who should have the Land if the Money were unpaid and not the Executor STurges versus Dean Trin. 7. Jacobi rotulo 2915. An Action of Debt brought upon a Bill for Money to be paid within fifteen Dayes after his Return from Ierusalem he proving his being there the Defendant pleads that he did not prove-his being there to which the Plaintiff demurrs he making proof that is if it be true Sir Edward Cook and Daniel held that the proof should be made upon the Triall and the proof should be subsequent But Warburton and Foster held that the proof shall be precedent because it was restrained to a certain time but it had been otherwise if no time had been appointed NOrton versus Goldsmith Trin. 7. Iac. rotulo 3100. An Action of Debt brought upon an Obligation with a Condition that Chamberlain his Under-sheriff should not meddle with Executions beyond such a summ and alleadges a Breach for intermeddling with Executions contrary to the Condition and the opinion of the whole Court was that the Bond was void PAin versus Nichols Trin. 8. Iac. rotulo 134. An Action of Debt brought upon the Statute of Ed. 6. for not setting forth of Tithes and the Plaiutiff declared as well for Prediall Tithes for he might well bring his Action and for other Tithes as of Lamb and Wooll for which no Action would lie and upon a Triall the Jury found for all as well for those that would as would not bear an Action and after a Verdict this Exception was taken and Judgement arrested BOoth versus Davenant Trin. 8. Iacobi rotulo 805. A Bail taken in the then Kings Bench and an Action of Debt brought upon that Recognisance which was that if it happened the Defendant in that Action to be convicted then the Manucaptors granted and every of them granted that as well the Debt as Damages and Costs which should in that Action be adjudged the Plaintiff should be levied upon their Lands and Chattels And in Easter Terme 7 Iacobi the Defendant upon a Capias ad satisfaciendum awarded against him did not render his Body but afterwards Mich. 7. Jacobi he did render his Body and the Court accepted of it and discharged the Bail and whether the Bail should be discharged or not was the Question and the Court held the Bail should be discharged and Judgement was given for the Defendant RAyson versus Winder Pasch
16. Jac. rotulo 1200. An Action of Debt brought upon an Obligation for performance of an Award which was void in part and good in part and the Breach alleadged for that part which was good and the Award was to pay Money but no time of Payment alleadged in the Award and afterwards it was demanded and such Demand was held good KIng versus Law Trin. 16. Jac. rotulo 507. An Action of Debt brought upon the Statute of Perjury in which the Plaintiff was non-suit and the Defendant moved to have Costs upon the Statute of 23 H. 8. upon these words or upon any Statute for any Offence or Wrong personally immediatly supposed to be done to the Plaintiff or Plaintiffs and the Plaintiff after Appearance c. be non-suited c. but the whole Court held that he should not recover Costs upon that Statute because the Statute of 5 Eliz. was made long after the Statute of 23 H. 8. and upon the Statute of 7 Jacobi the Defendant shall not recover Costs for if the Plaintiff had recovered he should have recovered no Costs and so no Cost was given to the Defendant in that Action PAnnell versus Metcalfe Trin. 17. Eliz. rotulo 2722. Action of Debt brought against the Defendant as Administrator and he pleads a Recovery had against him in the City of Norwich and alleadges a special Custome that time out of minde that they had Cognisance of Pleas and in pleading the Custome he omitted this word Cur and held naught FEtherston versus Tapsall Mich. 13. Jacobi rotulo 3409. The Imparlance was entred and Hill 13. Jacobi rotulo 715. The Issue was entred An Action of Debt was brought upon a Bond and in the Imparlance the Bond was alleadged to be made at Newcastle and in the Issue Roll it was alleadged to be made at York and tried and afterwards a Writ of Error was brought and the Record was certified and upon a Scire facias that Error was assigned and the Court of Common Pleas was moved that the Imparlance Roll might be amended but the Court would not grant it GAtes versus Smith Mich. 16. Jac. rotulo 945. An Action of Debt brought upon an Obligation to perform an Award the Defendant pleads that the Arbitrators made no Award the Plaintiff by way of Replication sets forth the Award and that the Arbitrators had awarded the Defendant to pay such a summ and that he should be bound with another in such a summ and shews that the Defendant did not become bound with the other and the Defendant demurred for because it was out of the Submission and it was not in the Defendants power to perform it JAckson versus Comin Trin. 16. Jac. rotulo An Action of Debt brought upon an Obligation to perform an Award so that the Award be signed sealed and delivered and in pleading of an Award upon the Defendants saying there was no Award made the Plaintiff omitted in his Plea to set forth that the Award was signed and it was tried and a Verdict for the Plaintiff and this was moved in Arrest of Judgement and stayed by the Court. CLempson versus Bate Trin. 17. Iacobi rotulo An Action of Debt brought upon a Recovery in a Court-Baron and declares that every Court was held before the Steward onely and not before the Suitors and a Declaration there for Rent reserved upon a Lease for years behinde and the Court held the Declaration void and that these words according to the Custome of the Mannour time out of minde would not help the Declaration and the Defendant was admitted to wage his Law presently if he would COventry versus Windall Hill 13. Iac. rotulo 2588. An Action of Debt brought upon a Writing thereby shewing that whereas one T. before the sealing of that Writing had become bound to the Defendant to stay with him and serve him as his Apprentice for the terme of eight years and Woodall covenants with the Plaintiff that he before such a Day would receive and take the said Apprentice for the residue of the said terme of eight years then to come and would teach keep and imploy the said Apprentice in his House and Service in the Art and Mystery of Surgery which the said Woodall then used and professed if the said I. should so long live and bindes himself in 20. l. the Plaintiff alleadges that the Defendant did receive the said Apprentice in his Service at London c. and further sayes that the Defendant within the time to wit such a Day and Year sent the said Apprentice in a certain Voyage in a Ship called the Dragon from the House of the Defendant unto the East Indies there to stay and that the Apprentice did there arrive and doth yet there remain for which he brings his Action The Defendant pleads that he for the better instruction of the Apprentice sent the Apprentice to the Indies to use and exercise his Art and to this the Plaintiff demurrs and Judgement for the Plaintiff that the Defendant could not send the Apprentice out of England except himself went with him although it be in his own House and own proper Service but clearly he might send the Apprentice to Chester or any other part of England GArrard al. versus Dennet Hill 9. Iacobi rotulo 516. The Defendant after a Judgement entred brought a Writ of Error and assigned for Error that the Christian name of the Attorney for the Defendant was left out in the Imparlance Roll but it was in the Judgment Roll and also in the Roll with the Clerk of the Warrants was perfect to wit Henry Snag and therefore the Imparlance was made perfect and Henry put into the Imparlance Roll after assignement of Error by the Court. COwchman versus Hawtry Hill 14. Iac. rotulo 2167. Action of Debt brought against a Bailiff of a Liberty upon a Recovery in a Court of Record The Defendant pleads no such Record The Plaintiff brings the Record into the Court and there were divers Variances between the Record upon which the Plaintiff declares and the Record certified Videlicet in the name of the Bailiff and Continuances for in the Record certified there were divers Continuances which were not in the Record in Court and divers other Differences but the Judgement and Recovery of the Debt and Damages agreed and the other Variances were not material and Judgement was given for the Plaintiff notwithstanding DOminus Rex Iacobus versus Castle An Action of Debt brought upon an Obligation taken in the Kings name in the Court of Request with a Condition to appear before the Master c. and the Declaration is generall that the Defendant such a Day and Year by his Obligation did acknowledge himself to be bound to the King in the said 60. l. to be paid c. and it was adjudged naught for it did not appear to be taken in a Court of Record CHilde versus Peisley Hill 14. Jac. rotulo 2184.
Habeas Corpora returned by the Sheriff and these words omitted Videlicet Quilibet Iur. per se seperatim Attach est per Pleg I. D. R. R. exitus eor cujuslibet x. s. R. W. M. L. Vic. and it was amended by the Court. ANdrews versus Delahay an Attorney of the Common Pleas Hill 14. Jac. rotulo 3057. A Bill filed against the Defendant as an Attorney upon two Bills obligatory for payment of Money and one of the Bills was not payable and due at the time of exhibiting the Bill and the Defendant pleads to Issue and the Cause received a Triall and a Verdict for the Plaintiff and afterwards the Defendant in Arrest of Judgement moved that one of the Bills were not payable at the time of exhibiting the Bill against him and thereupon the Plaintiff remitted his Damages and had Judgement for the Bill that was due HArris versus Cotton As long as the Vicar occupies his Gleab-land in his own hands he shall pay no Tithes but if he demise it to another the Lessee shall pay Tithes to the Parson that is impropriate If the Vicar sow the Land and die and his Executor takes away the Corn and doth not set forth his Tithe and the Parson brought an Action of Debt upon the Statute of 2 Ed. 6. and the Court seemed to incline that it would lie DArrell versus Andrew Mich. 14. Iaeobi rotulo 2327. An Action of Debt was brought in London for Rent reserved upon a Demise of Lands in Cawson in the Parish of D. in the County of War and of one capital Messuage The Defendant pleads Extinguishment of Rent because the Plaintiff had entred into one House called the Wooll-house and into one Buttry at the upper end of the Hall of the said House and in one House called the C. parcell of the Premises before demised upon the Defendants motion and had expelled the Defendant out of the Possession thereof and the Venire facias was of Cawson within the Parish of Dale and Exception taken because it was Infra Parocham but my Lord Hubbard said that where Land is laid in Dale in the Parish of Dale that the Venire facias may be made of Dale or within the Parish or of the Parish and both good HAll versus Winkfield An Action of Debt brought in London for a 100. l. and the Plaintiff declared upon a Recognisance taken at Serjeants Inn in Fleetstreet London before the Cheif Justice of the Common Pleas and afterwards inrolled in the Common Pleas at Westminster in Middlesex And the Defendant demurred to the Declaration and the Question was whether the Action should be brought in London or Mid. And note the Recognisance as soon as it is acknowledged is a Record and shal relate to the time of the taking to binde Serjeant Hutton said that a Scire facias may issue upon a Recognisance taken out of Court into any County and none is bound to sue Scire facias where the Recognisance is taken but after it is inrolled in the Court an Action of Debt shall be brought in the County of Middlesex At the Common Law the Execution was by Levari facias and after the Year an Action of Debt it is not a Recognisance consummate untill it be inrolled in the Court yet it taketh its life by the first acknowledgement for if you have an Action of Debt or Trespass in a forrain Shire when you have recovered Debt or Trespass your Debt or Trespass is now altered and made new My Lord Hubbard held that if I bring Debt in Norfolk and I have Judgement and bring an Action of Debt upon that Judgement it must be brought in Middlesex and so in Trespass The Inrolment of the Recognisance is but a fortification of the Recognisance MOrtimer versus Freeman Hill 9. Iacobi rotulo 2001. An Action of Debt brought for not setting out of Tithes to which the Defendant pleads Nil debet per patriam and to prove that the Plaintiff was not Parson he shewed a Deprivation of the Plaintiff for Drunkenness by the high Commissioners and the Court held for such a common Fault after Admonition the high Commissioners might deprive a Minister but because this Crime of Drunkenness was committed before the general Pardon and that the Sentence was given after the Pardon the Sentence was void For Wooll or Lamb no Action lieth upon the Statute for they are not predial Tithes nor for small Tithes If an Action of Debt be brought upon two Contracts and both found for the Plaintiff in that Case the Jury may tax Damages intire but the safer and better way is to sever the Damages for it may come to pass that an Action will not lie for one of the two and if it will not lie then your labour and charge is lost An Action of Debt brought for 300. l. upon an Obligation The Defendant after a general Imparlance demands Oyer of the Bond and pleads specially that it was but for 30. l. and it was not allowed after a general Imparlance And the Defendant pleaded that it was not his Deed which was the proper Plea in that Case PReston versus Dawson Pasch 11. Jacobi rotulo 2310. An Action of Debt brought upon a Bond for performance of Covenants in an Indenture in which Indenture was this Covenant following that the Vendor should make further Assurance at the cost and charges in the Law of the Purchasor and for Breach it was alleadged that a Note of a Fine was devised and ingrossed in Parchment and delivered to the Vendee to acknowledge the Fine at the Assises which he refused to do and the Plaintiffs Breach was demurred upon because he did not offer Costs to the Vendee and the Court held it to be idle GLyver versus Lease Trin. 11. Jac. rotulo 734. An Action of Debt brought upon a single Bill The Defendant pleads that he did infeoff the Plaintiff of Lands in satisfaction of that Debt and the Plaintiff demurred upon it and upon reading the Record ruled to be a naughty Plea to a single Bill otherwise it had been upon a Bond with a Condition to pay Money WIlliamson versus Barnsley Trin. 12. Jac. rotulo 1291. An Action of Debt brought upon an Obligation with a Condition to perform Articles that he before Easter Terme next following at the Request of the Plaintiff should surrender and yeild up to the Plaintiff his Letters Patents of the Stewardship of Bromsgrove to the intent that he might renew the said Letters Patents in his own name and it was objected at Barr that the Office of a Steward of a Court Leet or Court Baron was within the Statute of 5 E. 6. made against buying of Offices that were for Ministration and so Winch held the Stewardship of a Leet to be within the Statute and so was adjudged in Grays Case but the Question was whether the agreement to surrender be within the Statute or no the words
of the Statute are to have and injoy and Winch said it was within the Statute and so the Office of a Cursitor was within that Statute Exception was taken to an Action of Debt brought upon the Statute of E. 6. for not setting out of Tithes because the certainty of Loads of Corn were not expressed but it was held good notwithstanding HAwes versus Birch Hill 12. Jacobi rotulo 1843. An Action of Debt brought upon a Bond of 6. l. for the payment of 3. l. upon the 16. of April The Defendant pleads that an Estranger at the Defendants request the said 16. of April made an Obligation to the Plaintiff in lieu of the first Debt and adjudged naught by the whole Court for one thing in Action cannot be a satisfaction for another thing in Action but this being done by a stranger is good by no means Pasch 12. Jacobi The Court was of opinion that if Money be tendred and none ready to receive it and afterwards he to whom the Money is payable demands the Money and the other refuse to pay and afterwards an Action is brought and a Tender pleaded the Court held that the Defendant should pay Damages from the time that the Money was demanded FLeet versus Harrison Hill 13. Jac. rotulo 841. An Action of Debt brought against two Defendants one of them pleads Nil debet per patriam and the other lets a Judgement go by Default and he that waged his Law at the Day appointed performed it and Judgement that the Plaintiff should take nothing by his Writ for a Respectuatur of the Judgement was entred untill the other had done his Law WIlliamson versus Spark Mich. 13. Jac. rotulo 3511. Upon a cire facias brought against the Bail upon an Attachment of Priviledge The Defendant pleads a Release made after the Verdict and before Judgement which was before the Recognisance was forfeited and if the Recognisee may release before the Damages are ascertained or no was the Question and it seemed he might An Action of Debt brought against a Baker for a Fine imposed on him in a Court Leet and an Exception was taken because it was not alleadged that he sold Bread against the Assise of Bread made to sell for a man may make and bake Bread for his own use under the Assise limited BAcon versus Pain Trin. 14. Jac. An Action of Debt brought and declare that such a Day and Year the Defendant was a Brewer and for one Year then next following and that the Defendant the said Day at K. bought of the Plaintiff the fourth part of the Grains that the Plaintiff that Year next following should make in brewing for 3. l. to be paid upon Request The Defendant pleads that he ought him nothing and after a Triall an Exception was taken to the Declaration because the Plaintiff did not aver that he made Grains in that Year LOrd versus Huxly An Action of Debt brought on a Judgement thereupon and the Defendant taken in Execution upon that Judgement and afterwards the Plaintiff became Felo dese by which the Almoner seised of all his Goods and afterwards the Almoner would have acknowledged satisfaction of the Debt and Damages in that Judgement and doubted that he could not SAwyer versus Crompton Hill 14. Jac. rotulo The Plaintiff brought an Action of Debt for Costs given before the Judges of the Marshalsey newly erected 9 Jac. by Letters Patents of the same King within the Virge And the Plaintiff declared that whereas at the Court of the said King for the Houshold held at S. in S. within the Virge of the Houshold then at Whitehall such a Day and Year before T. B. Knight Marshall c. and F. B. c. Judges of the said Court to hear and determine all Pleas personal within the Virge between Persons not being of the Houshold arising by vertue of Letters Patents bearing Date such a Day and Year in due manner made came c. and the Court held a repugnancy in the Count and the whole Court against the Plaintiff If it had been brought upon the ancient Court it must be between two of the Houshold and they held that cost lay and the Exception was because the Plaintiff had not shewed the Grant to hold the Court. If a Bond be made to one and he doth not say in the Bond that it shall be paid to the Obligee in this case the Plaintiff must shew that it is to be paid to him though not expressed in the Bond. HOnne Executor of R. Hutton and E. May Pasch 40. Eliz. rotulo 433. An Action of Debt brought upon an Obligation with a Condition that the above bound T. G. or his Heirs do or shall at any time before the Purification of the blessed Virgin which shall be in the year 1596. according to the Custome of the Mannour c. Surrender into the hands of the Lord of the same Mannour for the time being all those c. to the use of the said R. Hutton his Heirs and Assignes for ever in such wise as the said R. Hutton his Heirs and Assignes shall or lawfully may by the custome of the Mannour be admitted c. or if after such Admittance the Premises shall be recovered against the said Rich. his Heirs or Assignes by one W. K. within four years then if he shall pay upon notice c. The Defendant pleads that the Plaintiff ought not to have his Action because the said R. Hutton after the making of the Bond and before the said Feast of the Purification which was in the year 1696. to wit the sixth of October 38 Eliz. at B. died The Plaintiff demurs and Judgement for the Plaintiff If one be indebted to one and he dieth intestate and after his Death Administration is committed to the Debtor this is no Release of the Debt If he marry the Executrix of the Debtee and the Executrix dieth the Husband shall be charged with the Debt after her Death VAughan versus Chambers Trin. 20. Eliz. rotulo 145. An Action of Debt brought upon a Bond the Defendant pleads the Statute of Usury and shews a corrupt Agreement for Money lent in the year 32. to be paid in 33. and afterwards in 35. a new Bond given for part of the first summ and it was pretended that this Bond was void but it was adjudged because the first Bond was no Corruption the later should not be LEech Attorney versus Phillips Executor of Phillips rotulo 3415. An Action of Debt brought for soliciting a Cause in the upper Bench and it was adjudged by the whole Court that an Action of Debt for Solicitors Fees would not lie but ought to bring an Action of the Case and afterwards the Court held an Action of the Case would not lie PAsch 12. Jac. Grove versus Jourdain An Action of Debt brought against an Administrator who pleads that the intestate was indebted to him
by Obligation and that he retained the Money in his hands to satisfie the Debt The Plaintiff replies that the Money was not due and payable to him at the time of the Intestates Death and that he took Administration after the Day of Payment and if the Administrator had pleased he might have took Administration before the Day of Payment and the Court held the Defendants Plea good but he shall not have the Forfeiture CArrell versus Paske Trin. 13. Jac. rotulo 1018. Debt brought upon an Obligation made at C. in the County of Surry The Defendant pleads the Priviledge of Cambridge granted to them by the Queen Eliz. for Scholars Bachelours Masters and their Servants upon Contract made within the University and shews the Bond was made in Cambridge and that he was a Servant of the Scholars to wit Bailiff of Kings Colledge in that University and inhabiting within the Town of Cambridge and Precincts of that University and therefore a priviledged Person of the same and upon reading the Record it seemed that the Defendant being a Bailiff of the Colledge is not capable of the said Priviledge PReist versus Cee Trin. 12. Jacobi rotulo 2197. An Action of Debt brought upon a Bill bearing Date 17 Novomber 1604. by which Bill the Defendant did acknowledge himself to owe the Plaintiff 10. l. to be paid to the Plaintiff at two Payments to wit 5. l. to be paid upon the 19. of November then next following and other 5. l. to be paid upon the 10. Day of December then next following The Defendant pleads it was not his Deed. The Jury finde it specially that the Defendant the 17. of November 1604. sealed and delivered to the Plaintiff one Bill obligatory shewed to the Jury bearing Date the Day and Year above and finde the Bill in haec verba Be it known c. to be paid at two Payments that is to say 5. l. to be paid the 19. of November which is the present of this Moneth and the other 5. l. on the 10. of December The Question was whether the Bill maintain the Count for the first Payment and adjudged it did RAwdon versus Turton Trin. 13. Jac. 1011. An Action of Debt brought upon a Bond for Payment of Money such a Day The Defendant pleads that he the same Day made an Obligation for the Payment of the said Money another Day which the Plaintiff accepted for the Money and Issue taken thereupon and tried for the Defendant and after the Verdict the Plaintiff moved the Court to have Judgement though the Verdict passed against him because the Plea was insufficient and that he confessed the Debt but the Court would not grant it The like Mich. 6. Jac. rotulo 1061. And the like Hill 12. Jac. CArter versus Freeman Mich. 13. Jac. An Action of Debt brought upon a Bond with a Condition that the Defendant should appear before the King at a certain Day Videlicet Die Jovis post Octobras Martini and upon a Nul tiel Record pleaded the Defendant brought his Record of Appearance Lunae post xvam Martini and this was held by the whole Court an Appearance at the Day in the Condition by the whole Court GRubham versus Thornborough Hill 12. Jac. rotulo 1773. An Action of Debt brought for Rent and for a Nomine penae the Rent due 14 November Anno 9. and no name alleadged for the Nomine penae therefore the Action would not lie for the Nomine penae but it would for Rent PAsch 44. Eliz. Elliot versus Golding An Action of Debt brought and Judgement given for the Plaintiff and a space was left in the Roll for the Costs of the Judgement and after the Year and a Day a Scire facias was brought to revive the Judgement and in the Scire facias the Costs are put in and so Judgement by Default and afterwards a Writ of Error brought and the Error was assigned because there were no Costs put into the principal Roll and afterwards the Record was removed the Count was moved that Costs might be put into the Roll but it was denied upon the first motion and afterwards Pasch 13. Jac. it was denied by the whole Court BOnd versus Green Administrator An Action of Debt brought against him as Administrator he pleads divers Judgements amounting to 670. l. and the Assignement of 100. l. Debt to the King by Deed inrolled and he pleaded that he retained his Debt in his hands and he might have given this in Evidence or pleaded it at the Liberty of the Defendant COoper versus Bacon Action of Debt brought upon the Statute of E. 6. for Tithes and the Plaintiff declares that one was seised of the Rectory of Elveley alias Kirkley in Kingston upon Hull in his Demesne as of Fee and being so seised such a Day and such a Day at Elveley alias Kirkley did demise to the Plaintiff the said Rectory with the Appurtenances to have and to hold c. for years and that by vertue thereof he hath been and is thereof possessed and that the Defendant such a Day and before and alwayes afterwards hitherto had held and occupied 30. Acres of Land in Swandland in Kingston in a place called T. and that the Tithes did belong to him The Defendant pleads Nil debet per patriam and after a Verdict it was alleadged in Arrest of Judgement that the Issue was mis-tried because the Venire facias was of Elveley alias Kirkley and it should have been of Swandland where the Tithes grew CHapman versus Pescod Trin. 11. Jac. rotulo 2106. An Action of Debt brought upon an Obligation with a Condition to give and grant to him his Heirs and Assignes The Defendant pleads that he hath been ready to give and grant and adjudged naught for he must plead that he did it otherwise it had been if the words had been as Councel should devise MAncester versus Draper Hill 10. Jac. rotulo 2613. An Action of Debt brought upon a Bond with a Condition to pay Money if C. R. shall be then living and shall before the same 20. Day of O. by due form and course in Law perfect levy and knowledge a Fine and a Recovery before his Majesties Justices of his Highness Court of Common Pleas of and in certain Houses and Tenements with the Appurtenances which the said Draper lately had and purchased of the said C. R. the Defendant pleads that C. R. was living and did not levy c. and a Demurrer and the Question was whether Draper or Ro. should levy the Fine and held that Draper should levy the Fine BAker versus Pain Hill 10. Jac. rotulo 3139. An Action of Debt brought upon a Bond to pay Rent and perform all the Covenants Grants Payments and Conditions contained in a pair of Indentures and the Defendant pleads the Indenture and performance thereof The Plaintiff assignes the Breach that the Defendant had not paid the Money The
Indenture the Covenant was for quiet injoying without let trouble interruption c. The Plaintiff assigned his Breach that he forbad his Tenant to pay his Rent this was held by the Court to be no Breach unlesse there were some other Act and the Defendant pleaded that after the time the Plaintiff said that he forbad the Tenant to pay the Rent the Tenant did pay the Rent to the Plaintiff LEvel versus Hall Pasch 9. Jac. rotulo 805. An Action of Debt brought upon an Obligation to which the Defendant pleads that the Plaintiff brought another Action upon the same Bond in London to which the Defendant there had pleaded Non est factum and it was there found that it was not the Defendants Deed and in London the Entry is upon such a Verdict that the Defendant shall recover Damages against the Plaintiff and that the Defendant should be without day c. but no Judgement that the Plaintiffe should take nothing by his Writ and therefore no Judgement to be barred in another Suit but barr the Plaintiffe for it is onely a triall and no Judgement and the Plea was adjudged naught by the whole Court MIch 15. Jac. Rotulo 2215. One made another his Executor and that Executor died and made another his Executor and the last Executor refused to own his first Will as to his goods and this matter was pleaded in his Action of Debt brought by an Administrator of the Goods of the first Executor pretending the Administration was void although the Executor refused to be Executor as to the Goods and the Court held the Administration void for the Executor cannot be Executor for part at his own Election and not for part and the Defendant pleaded that the Executor should not bring his Action as Administrator but as Executor WHerwood versus Shaw Mich. 44. and 45 Eliz. Shaw Executor of A. brought an Action of Debt against Wherwood Administrator of Feild upon a Bill made by Field to A. by which Feild doth acknowledge himself to have received of one P. forty l. to be equally divided between the said A. and B. to their use and upon a Judgement given in the Common Pleas Wherwood brings a Writ of Error and the Judgement was affirmed the matters moved were i. because the forty pounds was given to be equally divided between A and B. therefore they were Tenants in common of it and Shaw should have joyned B. in the Action with himself as Tenants in common are to joyn in personall action but over-ruled that in this case there were severall Debts to wit twenty pound to one and twenty pounds to the other as in case of ten pounds rent reserved upon a Lease to wit five pounds at the Feast of Michaelmas and five pounds at the Feast of the Annunciation yet it is but one Rent and this case is not to be resembled to the Cases of Interest as in the 20 Eliz. where Land or Lease be giuen to two equally to be divided for there they are Tenants in common The second thing moved was whether Debt or account did ly and adjudged that although no contract was between the parties yet when either money or goods are delivered upon consideration to the use of A. A. may have an Action of Debt and of that opinion was Mountain 28 H. 8. in Core and Woods Case and also there is a President of such Actions of Debt in the Book of Entries BRoad versus Owen Mich. 44 and 45 Eliz. The Plaintiffe brought an Action of Debt upon the Statute of 5 Eliz for Perjury against the Defendant the case was thus one Low was Plaintiffe against Brode in the high Court of Chancery and upon Bill and Answer such matter appeared to the Lord Keeper that he ordered that one Labourer should become party to the Bill against Brode and afterwards one Commission issued out of Chancery between Labourer and Brode to examine Witnesses by which Commission Owen the now Defendant was examined on the behalf of Labourer and did depose directly for Labourer against Brode by reason whereof one Order and Decree was made in the Chancery against Brode and for that cause Brode brought his Action of Debt against Owen upon the Statute of Perjury 5 Eliz. for one party grieved by the Oath and Deposition of another and Owen demurrs in Law and by the opinion of Gaudy and Yelverton Justices the Action would not lie for the words of the Statute are where a man is grieved and damnified by a Deposition in one Suit between party and party and in this Case it appeared that Labourer was no party to the Suit but came in by an Order and no Bill depending either against him or brought by him and so out of the Statute for it is penall and to be taken strictly and quaere if he in the Reversion joyn in aid and is grieved and prejudiced by an Oath and Deposition may maintain an Action of Debt upon this Statute for he may undoubtedly by the Common Law have an Attaint GReen versus Gascoin Pasch 1. Jacobi An Action of Debt brought upon an Obligation for an hundred pounds to which the Defendant pleads in Barr to the Action an Outlary against the Plaintiff and shews it incertain the Plaintiff replies Nul tiel record and the Defendant had Day till the next Term to bring in the Record and in the mean time the Plaintiff reverses the Outlary by which it is become in Law no Record according to the 4 H. 7. 12. And Yelverton moved the Court for the Defendant that although in Law there was a Failer of the Record yet the Defendant ought not to be condemned but shall answer over according to the 6. of Eliz. Dier fol. 228. where it is adjudged that Failer of the Record is not peremptory and so adjudged for it was no Default in the Defendant his Plea being true at such time as it was pleaded with mark WEaver versus Clifford Action of Debt brought for an Escape the Case was thus upon the Nichils returned against a Conusor in Chancery a Capias was awarded out of the Chancery against him by vertue of which he was taken by the Sheriff and suffered to escape and adjudged that no Action would lie against the Sheriff in this Case for a Capias lies not upon a Recognisance but onely a Scire facias and therefore when a man is taken upon the Capias he is not a Prisoner by the course of Law for the Law hath not ordained any means to arrest him and is therefore in Custody without Warrant and no Escape and it is an illegal Commitment and so is the â—ratuâ—e of Westminster the 2. to bâ— constâ—ued which gâ—… Action against the the Gaolor to wit where the party is in Execution by course of Law and although the Chancery doth award a Capias upon a Recognisance and that there are divers Preâ—â—lents of it et it is bâ—t the use of that
not to the age of the Daughter for the age of the Daughter shall be intended to be set down for the receit of her legacy of forty pounds and for no other purpose and the Defendant within the time in which the Rent demanded is supposed to be due had not determined his Will as appears by the Verdict but Fennor and W. said that by the Verdict that the Defendant entred by force of the lease and occupied the land at the time comprised in the Declaration and more and that the Tenant at will cannot determine his will within a little time before the year end for that would prove very mischeivous to the lessor that his Tenant at will should determine his will within the year and refuse to occupy the land twenty dayes before the year end and in 21 H. 7. Crooks Reports it appears that a Lessee at will cannot determine his will within the year to the prejudice of the Lessor but that he shall answer the whole Rent to the Lessor but note it appeared that the Lessee at will was expulsed by the Plaintif that was Lessor and no other thing although done by his agreement can determine the Lease against the Lessor for it is Covin if the Lessee be not privy and acquainted with it which was granted by the whole Court and all of them agreed in the Title against the Plaintif but as the Reporter affirmed Popham was absent and hearing the Case was of opinion that the Plaintif had an interest by the words of the will JEffry versus Guy Mich. 3. Jacobi An Action of Debt brought upon an Obligation with Condition that if Jeffry the Defendant perform all Covenants in such an Indenture that then c. and one Covenant was that he should permit Guy the Plaintiffe from time to time to come and see if the House Leased by Guy and K. his Wife were in repair the Case was thus J. Bill and K. his Wife were Tenants in Tail of a house and had Issue J. B. dies K. marries Guy the Plaintiffe and they two make a Lease by Indenture to Jeffry for twenty years yeelding and paying to them and their Heirs three pounds Rent by the year with the Covenant as aforesaid Jeffry pleads in Barr the former intail and the death of R. and that VV. the Issue in Tail such a day entred before which Entry the Condition was not broken Guy replies that William came with him upon the Land to see if reparations c. and traverses the Entry of William in manner and form prout c. and Issue joyned upon the traverse and found for the Plaintiffe and Judgement given in the common Pleas upon which Judgement Jeffry brought Writ of Error in the Kings Bench and Judgement affirmed there but it was assigned for Error the Jury had not assigned any breach of Covenant in Jeffry and so had showed no cause of action but the Court held he need not in this Case for by the speciall Issue tendred by Jeffry the Plaintiffe was inforced one speciall replication to that point tendred and the Plaintiffe could not proceed error and it is not like the Case of an arbitrement wherein Debt upon an Obligation to perform the award the Defendant pleads nullum fecer arbitrium then the Defenâ—… in his replication ought to set forth the award and assign his breach because the Defendants Plea is generall but if in such Case the Defendant should plead a release of all demands after the Arbi-Arbitrement by which he offers a special point in Issue there it suffices if the Plaintiff answers to the Release or other special matter alleadged by the Defendant without assigning any Breach so in this Case the special Plea of the Defendant had disabled the Plaintiff that he could not assign any Breach of Covenants but of necessity ought to answer to the special matter alleadged RAstell versus Draper Mich. 3. Jacobi An Action of Debt brought for nine and thirty pounds the Plaintiff declares that the first of May primo Iacobi sold to the Defendant twenty Northern Clothes for sixty pounds Flemish Money to be paid upon Request which sixty pounds Flemish Money amount to nine and thirty pounds English Money and that the Defendant though often requested had not paid the nine and thirty pounds to his Damages of c. The Defendant pleads Nil debet per patriam and found for the Plaintiff and moved in Arrest of Judgement that the Plaintiff should have demanded the summ according to the Contract which was for sixty pounds Flemish and to have shewed that it amounts to nine and thirty pounds English but the whole Court against it for the Debt ought to be demanded by a name known and the Judges are not skilled in Flemish Money and also when the Plaintiff hath his Judgement he could not have his Execution by that name for the Sheriff cannot tell how to levy the Money in Flemish and also it is made good by the Verdict for the Jury have found the Debt demanded to wit nine and thirty pounds But if the Contract had been for so many Ounces of Flemish Money or a Barr of Silver and Gold now it cannot be demanded by the name of twenty pounds or such a summ which is not Coin nor used in Trade or Merchandise but in such Case must have a Writ of Detinue and in that recover the thing or the value and so in the Book of Entries fol. 157. is the President where Debt was brought upon two severall Obligations and demands eight and twenty pounds and declares severally that by one Obligation he owed eight and twenty pounds of Flemish Money and 34 H. 6. 12. 9 E. 4. 46. But note in that Case the Plaintiff if he would might have declared in the Detinet and it had been good ROlles versus Osborn Mich. 3. Jac. The Plaintiff brought an Action of Debt against the Defendant upon a Bond of a thousand pounds and Serjeant Nichols moved the Court for the Defendant and shewed that the Plaintiff and Defendant were obliged each to other in a thousand pounds a peice that they should intermarry before such a Day and both their Obligations were forfeited and each of them sued the other and the Defendant prayed that common Bail might be accepted of her and she would accept of common Bail of the Plaintiff and the Court held it reasonable but said if they would marry both their Bonds might be saved BArneshurst versus Yelverton Hill 3. Jacobi The Plaintiff as Administrator of I. S. brought an Action of Debt against the Defendant upon a Bond and obtained a Judgement and afterwards the Administration is revoked yet notwithstanding the Plaintiff proceeded and took the Defendant in Execution and upon a Motion in the Court the Court held the Execution void and that the Defendant ought to be discharged because it issued out erroneously for the Letters of Administration being revoked the power of the Plaintiff is gone
whole Court for they said that the Demand must be made at the place of payment although it be of the Land FIeld versus Hunt Mich. 5. Jacobi Hunt in VVorcester Court obtained a Judgement after a Verdict in Debt upon a Contract for twenty Sheep and after it was removed by a Writ of Error into the Kings Bench and generall Errors assigned but upon opening the Errors it was shewed the Court that there was no Declaration in VVorcester Court for the Declaration was thus Raphael Hunt complains against H. Field of a Plea that he render to him twenty pounds which he owes unto him and unjustly detains and whereof the same Plaintift by M. his Attorney whereas the said Defendant c. and by Fennor VVillams and Cook it is no Declaration for Default of this word Dicit and the sense is imperfect and although Yelverton objected that a Declaration is sufficient if it be good to a common intent and Quer. being writ short it may be Queritur and then it is and whereof the same complaines but the Court held that would not help for it is not certain to whom the word Idem should refer whether to the Plaintiff or Defendant and of the two it should rather refer to the Defendant which is the next Antecedent and the Court held it matter of substance which is wanting and therefore naught but if it had been 4. and whereof the same Raphael quer being writ short it had been good for because the party Plaintiff is certainly named and then Quer. could have no other sense then Queritur and Judgement reversed which mark HArrison versus Fulstow Mich. 5. Jacobi The Plaintiff brought Action of Debt for fourscore and six pounds in the Common Pleas against T. Harrison and the Capias was continued accordingly against T. Harrison but the Plur. capias was against William Harrison which was the very name of the Defendant and that was but for fourscore and five pounds which varied from the first Entry and William Harrison appeared upon the Exigent and the Plaintiff declares against William and he pleads and they are at Issue by the name of William and a Verdict for the Plaintiff and Judgement accordingly against William and upon a Writ of Error it was assigned for Error that the Original did not maintain the Proceedings for the Original is against Tho. and the Proceedings against William and the Plaintiffs Counsel would have excused it because the Judgement being against William and the Original against Tho. as it is certified it cannot be the Original against William and so the Judgement against William being without Original it is aided by the Statute after a Verdict but the Court held it to be Error for there is great Difference between no Original and a naughty Original for the want of an Original is helped but not a vitious Original and Judgement was reversed for upon Diminution alleadged that this Original was certified as the Original in that Suit or else there was no Obtulit at all LOthbury versus Humfrey Mich. 5. Jacobi Lothbury and his Wife Administratrix of VV. R. brought an Action of Debt as Administrator upon an Obligation of forty Marks dated 4. April 38 Eliz. made by the Defendant to the Intestate 1. the Defendant pleades that Ridge the Intestate October the first Jacobi made his Will and made the Defendant his Executor and devised the Obligation and the Money therein contained to one H. Son of the Defendant and died after whose Death the Defendant takes upon him the burthen of the Executorship and administers divers Goods of Ridges and that he is ready to aver this to which Plea the Plaintiff demurrs generally and adjudged for the Plaintiff for the Defendants Plea is not good without a Traverse that Ridge died intestate For the Action is brought as Administrator and they count upon a dying intestate and that being the ground of the Action ought to be traversed as it is 9 H. 6. 7. Debt brought against one as Administrator of J. and counts that J. died intestate the Defendant pleads that J. made his Will and made him Executor and held no Plea without a Traverse and the same Law 7 H. 6. 13. Debt brought against one R. Executor of R the Defendant pleads that R. died intestate at such a place and held no Plea for if the Plaintiff maintain that R. made the Defendant Executor and the other say that R. died intestate at such a place this makes no Issue and therefore the Defendant ought to traverse that R. died intestate without that that he made him Executor and 4 H. 7. 13. the very Case in question is adjudged that such a Plea in Barr is not good without a Traverse to wit to say without that that R. died intestate according to the 3 H 7. 14. and this was agreed by the whole Court without Argument CHeyney versus Sell Mich. 5. Jac. Cheyney as Executor of Cheyny brought an Action of Debt upon an Obligation against Sell the case was that the Testator had put himself as an Apprentice to Sell for seven years and Sell bound himself to pay to his Apprentice his Executors or Assignes 10 l. at the time of the end or determination of his Apprentiship the Apprentice serves six years and then dies and it was moved by Towse that the Money was due at the time of his Death because then his Apprentiship ended for he said if a man make a Lease for one and twenty years to another and oblige himself to pay to the Lessee ten pounds at the end and expiration of his Term and within those years the Lessor infeoffes the Lessee so the term expires and the ten pounds should be paid instantly but Cook denied that Case because the Lessee hastened the end of his terme but he said that if a man lease Land to another for seven years if the Lessee should so long live and the Lessor oblige himself to pay ten pounds at the end of his terme and he die within seven years there he was of opinion the Money was presently due upon his Death but in the principal case the whole Court held the chief Justice being absent that the Obligation was discharged and that the Money should notbe paid WIllot versus Spencer Mich. 9. Jacobi The Plaintiff brought an Action of Debt for Tithes of Wood upon the Statute of 2 E. 6. and Forster argued that Judgement ought not to be given for the Plaintiff because the Plaintiff did not shew in his Plaint that he was Parson for he ought to bring his Action according to that name that he claimed the Tithes by and this ought to be expressed in the Queritur and therefore if a man bring his Action to recover any thing as Heir Executor or Sheriff he ought to name himself so in the Queritur 30 H. 6. 9 H. 4. but Towse said the same Exception was taken between Merrick and Peters and disallowed Fleming Justice said
that if it had been by Writ he must have shewed it but need not it being by Plaint if the truth appear in that and if a man bring his Action as Assignee he need not shew it in his Plaint if the truth appear in the Declaration but it is otherwise in an Original and a Plaintiffe in Kings Bench as an originall but not in all things and if the Plaint be incertain the Defendant in that Court shall plead in Abatement of the Plaint as to an Original in the Common Pleas and at last two Presidents were shewen one between Champion and Hill and the other between Merrick and Wright that were allowed without naming of the Plaintiff Rector in the Queritur and Judgement was given for the Plaintiff by the whole Court Note it was agreed by all the Court of Kings Bench Mich. 5. Jac. and hath many times been ruled that if a man sell his Tithes for years by word it is good but if the Parson agree that one shall have his Tithes for seven years by word it is not good by the opinion of Fleming Cheif Justice because it amounts to a Lease and he held strongly that Tithes cannot be leased for years without a Deed. COb versus Hunt Hill 5. Jac. Cob sued a Prohibition in the Common Pleas against Hunt Parson of D. in Kent and suggests a Modus demandi as to part of the Tithes demanded against him in the Spiritual Court and as to the residue suggests a Contract executed and performed between him and the Parson in satisfaction of the residue and because he proved not his Suggestion within six Moneths Hunt the Parson had a Consultation and Costs assessed by the Court to fifty shillings and Damages fifty shillings by the Statute of the 2 E. 6. they shall be doubled but in truth no Judgement was given to recover them because these words Videlicet Ideo considerat fuit qd recuperet was omitted yet Hunt thinking that all was certain and perfect brought an Action of Debt in the Common Pleas for the Costs c. and declared of all the matter above and that the Damages were assessed upon which it was adjudged that he should recover c. and that the Costs were not paid Per quod Actio c. And had a Judgement against Cob by Non sum informat and thereupon Cob brought his Writ of Error as well in the Record and Processe c. of the Prohibition as of the Record and Processe in the Action of Debt for the Costs and assigne the general Error but Yelverton assignes two Errors in special first that there was no Judgement in the Prohibition for Recovery of the Costs but onely an Assessement of Costs without any more which is not sufficient for the Assessement of Costs onely is but matter of Office in Court but no Judgement of Court to binde which was confessed by the whole Court The second Error was that no Costs ought to be assessed or adjudged in the Cause above because the Prohibition is grounded solely upon the Modus decimandi which needs proof and upon the Contract between the parties which requires no proof and the Suggestion being intire and part of it needing no proof they could not give any Costs for that is onely where the whole matter in the Suggestion needs proof and therefore the mixing the Contract with the manner of Tithing priviledges the whole as to the matter of Costs but they might grant a Consultation as to that part of the Suggestion which concerned the manner of Tithing but not for the rest which was granted by the whole Court and so both the Judgements were reversed which mark MArkham versus Mollineux Hill 1. Jac. Mollineux sued out an Original in the Common Pleas in an Action of Debt upon a Bond against Markham by the name of John Markham Alderman de D. and all the mean Processe are continued against him by the name of Alderman Markham he appeared and the Plaintiff declared against him by the name of Markham of D. Esquire and afterwards the parties were at Issue and it was found for the Plaintiff and Judgement entred and it was reversed by Writ of Error because it did not appear that that Markham was the same Markham against whom the Original was prosecuted and the Processe continued but it seemed rather that he was another person by reason of his severall Additions of Alderman and Esquire which mark OLiver versus Collins Pasch 6. Jacobi The Plaintiff brought an Action of Debt upon the Statute for not setting forth of Tithes and shews that he is Parson of the Parish Church of Little Lavar in Com. Essex and that the Defendant had so many Acres within the Parish of Little Lavor sowed with Wheat whereof the tenth severed from the ninth part came to eight and twenty pounds and shews that the Defendant at Little Lavor aforesaid took and carried away the Wheat without setting forth the Tithes contrary to the Statute by reason whereof he forfeited threescore Pounds and upon Nil debet pleaded it was found for the Plaintiff and moved in Arrest of Judgement first that the Statute was mis-recited for whereas the the Plaintiff declared that the 4. Novemb. 2 E. 6. it was inacted it was said that there was no such Statute for the Parliament commenced 1 E. 6. and continued by prorogation untill the 4. Novemb. 2 E. 6. and therefore the Plaintiff was mistaken in that but that Exception was not allowed for there were an hundred Presidents against it and in respect of the continual use in that form as the Plaintiff had declared the Court said that they would not alter it for that was to disturb all the Judgements that were ever given in that Court. And secondly it was objected that the matter was mis-tried and there ought to be a new Triall because the Venire facias was of Parva Lavar whereas by their pretence it ought to have been of the Parish of Little Lavar to which Yelverton made Answer that the Triall was well enough for by that Action no Tithe is demanded nor recovered but the Defendant is onely punished for his Contempt against the Statute in not setting forth his Tithe and the wrong done to the Plaintiff complained of is laid onely in the Village of Little Lavor and not in the Parish for all the places in the Declaration where the Parish is named are onely matter of Conveyance and inducement to the Action and not of the substance for the substance is onely that where the wrong and grievance is done to the Plaintiff and that arises onely in Parua Lavor which was granted by the whole Court upon a grand Debate at severall Dayes and Judgement was given for the Plaintiff and the like Judgement was given between Barnard and Costerdam in an Action upon the same Statute upon the last point for the Venn and this hath been twice adjudged but in Costerdams Case which concerned the Earl
the Judgement it is made to be by the Coroners yet it is not helped in this Case for the warrant of the Roll is the Clerk of the Assises Certificate and thus is that the Tales was returned by the Sheriff and the Court cannot intend it to be otherwise then is certified and thirdly the name of the Juror in the Tales which is Gregory is made in the Entry of the Judgement to be George and although the will shall be amended in this point according to the Certificate of the postea then in the other point of the Return of the Tales by the Sheriff it is not amendable and so it is error every way and the Judgement was reversed by the whole Court BRidges versus Enion Hillar 9 Jac. The Plaintiff declares how that he and the Defendant February tenth Anno 7. submitted themselves to the Award of S. R. Bodenham who awarded they should be friends and that the Defendant should pay the Plaintiff ten pounds at Miasummer following at such a place and the ten pounds being unpaid the Plaintiff brought his Action the Defendant pleads in Barr a release made by the Plaintiff to him of all demands which was made the tenth of April before Midsummer when the Debt was to be paid and the release was of all demands from the beginning of the world untill the tenth of April and shows the Release to the Court to which the Plaintiff demurres and adjudged against the Plaintiff for although the sum of Money awarded is not grounded upon any precedent Debt or contract between the parties yet by the opinion of the Court it lies in demand presently and the Plaintiff might assign it by his will and the Executor should have it and by the spirituall Law Administration may be granted of it before the day of payment if the Plaintif dye before yet it is not recoverable before Midsummer nor will any Action ly for it but it is a duty presently by the Award and as the award is perfect presently as soon as it is pronounced so are all the things contained in the Award if they be not made payable upon a condition precedent on the part of one of the Parties as if an award be made that if the Plaintif shall give to the Defendant at Midsummer one load of Hay that then upon the Delivery of the Hay the Defendant should pay the Plaintif ten pounds in this case the ten pounds cannot be released before the Day for it rests meerly in a possibility and contingency for it becomes a Duty upon the Delivery of the Hay onely and not before and therefore it is like the Case 5 E. 4. 42. of a Nomine pene waiting upon the Rent which cannot be released untill the Rent be behinde for the not paying the Rent makes the Nomine pene a Duty and the Case in question is like the Case Littleton 117. where a man is bound to pay Money at a Day to come for a Release of Actions before the Day cuts off the Duty because by 7 H. 7. 6. it is a Duty presently and the Case is stronger here because the Release is of all Demands which observe MOrgan versus Sock Pasch 10. Jacobi Sock brought an Action of Debt upon an Obligation of fourteen pounds entred into by Ar. Morgan Anno 1. Jac. against Tho. Morgan his Administrator the Defendant pleads that after the Death of Arth. and after Administration was to him committed to wit the 16 of September Ann. 6. the Plaintiff brought his Original against him of which he had no notice nntill the 24. of February Ann. 6. before which Day the Defendant was upon the Exig for not appearing which Exig was returnable Tres Pasch after and that the 17. of Febr. which was before the notice his Letters of Administration were revoked by the Archbishop and granted to Rich. M. the Brother of Arth. which Rich. is now Administrator and that he at the time of revoking the Administration had divers Goods of the Intestates in his hands and shews them what they were to the value of two hundred pounds and that he after the Administration revoked and before notice of the Suit had delivered them over to Rich. to wit the 22. of February 6. Jacobi and that he at the time of the Administration revoked had fully administred all the Goods of the Intestates besides the Goods delivered to Rich. c. The Plaintiff replied that the Administration was revoked by Covin between the Defendant and Rich. and upon that they are at Issue and the Jury found it to be Covin by reason whereof the Plaintiff had a Judgement to recover the Debt and Damages of the Goods and Chattels of the said Arth. at the time of his Death being in his hands to be levied and upon that Judgement he brought a Writ of Error and assigned for Error that the Judgement ought to be conditional to wit to recover the Debt of the Goods of the Intestate if so much remain in his hands and not absolutely But the Judgement was affirmed by the whole Court for where the Judgement may be final and certain there it shall never be conditional And because it appears by the Defendants Plea that he had two hundred pounds in his hands of the Intestates Goods it would be in vain to give Judgement against him if he had so much in his hands seeing he himself hath confessed by his Plea that 〈◊〉 more in his hands then would satisfie that Debt and if 〈…〉 could not levy the Debt in the Defendants hands he may upon the Defendants 〈…〉 Damage return a Devastavit and this by the opinion of the whole Court and then there was shewed to the Court a President in the Common Pleas to that purpose DOnghty versus Fawn Mich. 11. Jacobi The Plaintiff declares upon an Obligation of an hundred and twenty pounds dated 2. Novemb. 43. Eliz. And the Condition was that one Edw. Astle by his last Will in writing of such a Date had disposed the Wardship of the Defendant whereof the Defendant was possessed c. if therefore the Defendant do save and keep harmlesse the Plaintiff c. from all Charges and Troubles c. which may happen to the Plaintiff c. for or by reason of the last Will of the said Ed. A. or from any thing mentioned in that touching or concerning one M. Fawn or any Legacy or Bequest to her given or bequeathed or otherwise from Ed. A. to her due then the Obligation c. The Defendant pleads that the Plaintiff was not damnified The Plaintiff replies that after the Obligation made one M. Smith in the behalf of Jo. and Ed. A. Sons of the said Ed. A. named in the Condition did exhibite a Bill against the Plaintiff as Administrator of A. in the Chancery for the payment of the Portions of the said Sons to which Bill the Plaintiff by way of Answer pleaded fully administred and for the making good thereof sets
Puttenhams Case the Reason because he was not in Execution before And for the second Objection although the Capias did not lie yet it is but Error for if the Court had Jurisdiction to hold plea of the Cause although the Process be naughtily awarded it is but Error of which the Sheriff shall not take benefit and therefore if a Woman have recovered in Dower and hath Damages in the Common Pleas and thereupon the party takes a Capias for the Damages and the party be taken and suffered to go at large it is an Escape 10 Hen. 7. 23. and if a Capias be awarded in the Common Pleas after the Record removed it is but Error and so ruled 13 E. 3. Title Barr 253. But if the Court hath no Jurisdiction in the cause as a Formedon brought in the upper Bench as it is 1 R. 3. 4. or an Appeal in the Common Pleas or where a Writ is awarded out of the Chancery returnable in Chester these are void and coram non Judice and there ought not to be any arrest upon such a Writ and he cited a Case Trin. 31. and 37. Eliz. in the Exchequer Woodhouse and Ognells Case ruled accordingy and as concerning the difference taken there is no other form of pleading but only quod prosecutus fuit quoddam c. without saying that it was by the award of the Court and the Court at that time did strongly incline that it was but Error at the most but Mich. 11 Ja. It was adjudged by the whole Court that the Capias could not ly and that it was onely Error of which the Sheriffe shall not take the benefit KKetleys Case Pasch 11 Jac. An Action of Debt brought for arrearages of Rent brought against R. upon a Lease for years the Defend pleads in Barr that the time of the Lease made he was within age to which the Plaintiff demurres and upon the first reading of the Record the question was whether a Lease made to an Infant be void and it was said it should be void otherwise it might be very prejudiciall to Infants whom the Law intends not to be of sufficient discretion for the mannaging of Land and also the Rent may be greater then the value of the Land to the great impoverishing of the Infant and took this difference where it is for the apparant benefit of the Infant a sa Lease made by an Infant rendring Rent and the like and when it is but an implied benefit as here for the Law intends that every Lease is made for the benefit of the Lessee although prima facie it seems to be but tail and trouble but the Court held it onely voidable as Election for if it be to the Infants benefit be that benefit apparant or implied it shall be void in no Case prima facie as 21 H. 6. 31. b. but the Infant may at his Election make it void for he shall before the Rent day come refuse and waive the Land an Action of Debt will not ly against him for otherwise such a Lease shall be more strong then any Fine or Record and great mischeif would insue and as to the prejudice it well be answered for if more Rent be reserved then the value of the Land he ought to have set it forth that it might have appeared to the Court which is not done for then clearly he should not have been bound for there had been no profit to the Infant as Russells Case is 5 Rep. 27. for if an Infant release it is not good except he hath received the money and it also appears by 21 H. 6. that if he did not enter and manure the Land that an Action of Debt would not ly against him but the principall Case was without colour for the Rent and taking the profits were Land as one day of the Reservation and secondly it was not shewed that the Rent was of greater value and thirdly the Defendant was of full age before the Rent day came HIggins Case Pasch 11 Jac. Action of Debt brought by Higgins against Yelverton was of an opinion at the Barr that if one be arrested upon a Processe in that Court and he puts in Bail and afterwards the Plaintiff recovers that he might at his Election take out his Execution either against the principall or Bail but if he took the Bail or arrested him or had him in Execution for the Debt although he had not full satisfaction he could not meddle with the Plaintiff but if two be Bail although one bee in Execution yet he may take the other also and Coderidge Justice was of the same opinion and Man the secondary said it was the daily practice there and so if the principall be in Execution he cannot take the Bail HAukinson versus Sandilands 11 Jacobi The Plaintiff brought an Action of Debt upon an Obligation for forty pounds against the Defendant who demanded Oyer of the Condition and afterwards pleads that the Obligation was made and delivered by him and one M. who is still living at D and demands Judgement of the Writ to which the Plaintiff demnrres the words of the Obligation were Noverint universi c. adquam solucionem bene fideliter faciend Obligamus nos vel quemlibet nostrum And whether this was should be accounted a Writ Obligation or Severall at the Election of the Plaintiffe was the question and Ger. Cook was of opinion that it should be brought against both and his onely reason was that at most the Plaintiffe had but an Election for the word vel could not be taken for et as it is 11 H. 7. 13. a Grant made to J. S. at J. D. is void and 20 H. 6. grant to two to them or to the Heires of one of them is not good and then if he had only an Election he hath made that already for the Defendant hath pleaded and averred that is was made by two joyntly by the appearance whereof he hath agreed to take it accordingly but Yelverton argued in this manner that although the words in an Obligation be not proper and apt yet if they be substantiall it is enough and therefore 28 H. 8. 19. utrumque nostrum is adjudged good and the 21 R. 2. 939. ad quam quidem solucionem obligamus nos singulos nostrum is adjudged severall and joint and for a direct authority he cited 7 H. 4. 66. where an Obligation was nos vel alterum nostrum and the Plaintiff brought severall Precipes and adjudged good that he might make it severall or joynt and all the Judges were clearly of an opinion that the Action was well brought for as it hath been said the Plaintiff had his Election and that Election would be said to be executed by the joynt Delivery for there was no cause to make Election untill the Bond was perfected and therefore though one delivers it at one time and the other at another yet the Plaintiff may have a caput Precipe if he
BAnks against Barker Hill 12. Jac. rotulo 1979. In an Action of Trespass the venire facias was well awarded upon the case of the venu in Westown and of the Mannor of D. and the Writ of Venire was mistaken to wit of the venu of Westown and exception being taken after tryall the Court was moved for the amending of the venire facias by the roll and it was denyed because the Jury did come of another venu then they ought by the Law of the Land to come and therefore could not be amended but afterwards the Court seemed to be of an opinion that the awarding of the venu in the roll was mistaken because it was of the venu of the Villiage and Mannor and it should have been of the Mannor only being to try a custome of the Mannor FOrrest against Headle Hill 13. Jac rot 1123. An Action of Trespass brought and a continuando of the Trespass unto the day of the shewing forth the Plaintifs Originall to wit the 20. day of November which day was after the shewing forth of the Originall and because the Jury gave damages for the whole time which ought not to be it was proved that the Judgment upon the verdict might stay but by the whole Court the videlicet was held idle and Judgment given for the Plaintiff COcks against Barnsley Hill 10. Iac. rotulo 2541. An Action of Trespass brought and a speciall verdict found and the question was whether Land held in ancient Demesne was extendable for debt and an action of Trespass brought for that cause And Justice Nichols held it was extendable for otherwise if it should not be extendable there would be a fayler of Justice for if a Judgment should be had against a man that had no other Land but what was in ancient Demesne and that it could not be extendable there would be a fayler of Justice which the Law doth not allow of but an Assize or a re-disseisin doth not lye of Land in ancient Demesne because of the Seisin that must be given by the Common Law and it would be prejudicial to the Lord which the Law allows not and Wynch and Hubbard were of the same opinion For ancient demesne is a good plea where the Free-hold is to be recovered or brought in question but in an action of Trespass it is no plea. And note that by this execution neither the Free-hold nor Possession is removed but only the Sheriffe enters to make execution upon a Judgment had in the Common bench in debt which is a proper Action to be brought there WRight and his Wife against Mouncton Hill 12. Iac. rotulo 43. An Action of Trespass brought to which the Defend pleaded not guilty And the Husband only made a challenge that he was servant to one of the Sheriffs and prayes a processe to the Coroners and the Defendant denies the challenge and therefore notwithstanding the challenge the Venire issued to the Sheriffs and after a tryall exception was taken because the woman did not joyne in the challenge and it was held that the Husband and Wife should joyn in the challenge although the cause of challenge proceded from the Husband only but after tryall it was helped by the Statute of Ieofailes and judgment given for the Plaintiff BIde against Snelling Hill 16. Iac. rotulo 1819. An Action of Ejectment brought and also a Battery in one and the Writ and after a verdict it was moved in Arrest of Judgment because the Battery was joyned with the Ejectment The damages were found severally and the Plaintiff had released the damages for the Battery and prayed Judgment for the Ejectment Winch held the Writ naught but Judgment was given for the Plaintiff notwithstanding STeward and his Wife against Sulbury An Action of Trespass brought wherefore by Force and Armes the Close of the Wife while she was sole at D. hath broken and the wood of the said D. to the value of 1005. there lately growing hath cut down and carried away and in his Count shews that he hath cut downe two acres of wood and exception was taken because he declared of so many acres of wood and not of so many loads of wood to wit twenty c. loads and held by the Court to be a good exception BLackeford against Althin Trin. 14. Jac. rotulo 3376. An action of Trespass brought wherefore by Force and Armes a certain Horse of the said Plaintiffs took away c. The Defendant conveys to himselfe a certain annuity granted to him by one John Hott The Plaintiff shews that one William Hott Father of the said Iohn Hott the Grantor was seised of Land in Fee which Land was Gavel-kind Land and devised it to his Wife for life the remainder to Iohn Hott the Elder and Iohn Hott the Younger his Sonne and the Heirs of their bodies And afterwards William dyed and the Woman entred and was seised for life and the two sonnes entred and were seised in tayl and being so seised Iohn Hott the younger had issue Iohn Hott c. and traverses without this that Iohn Hott the Father at the time of granting the annuity was seised of the Tenements aforesaid with the appurtenances in his Demesne as of fee as c. And the Defendant as before saith that the said J. H. the Father at the time of the granting the annuity aforesaid was seised and after the tryall it was moved in Arrest of Judgment supposing it was mistried because the issue was that the said J. H. the Father at the time of the grant c. And it doth not appear that the said J. H. was nominated Father neither could it appear that the said J. H. was the Father and so the word Father was idle and the Court were of opinion that it was helped by the Statute of Ieofailes and the word Father was idle and judgment was given for the Plaintiff A. brought an Action of Battery against the Husband and Wife and two others the Wife and one of the others without the Husband pleads not guilty and the Husband and the other pleaded seu assault demesne and tryed and alledged in arrest of Judgment because the Woman pleaded without her Husband and Judgment was stayed and a Repleader alledged and this case was confirmed by a case which was between Yonges and Bartram HArvy against Blacklole Trin. 8. Jacobi rotulo 1749. An Action of Trespass brought wherefore by force and Armes his Mare so strictly to a Gelding did fetter that by that fettring the Mare aforesaid did dye If a stranger take a Horse that cometh and strayeth into a Mannor the Lord may have his action of Trespass If my stray doth stray out of my Mannor and goeth into another Mannor the day before the yeare be ended I cannot enter into the other Mannor to fetch out the stray If I take an Horse as a stray and onother taketh him from me the Action lyeth not by the Owner against the second taker
elect him See the Statute of 25 H. 8. That a Canon against Common Law confounds the Roiall Prerogative of the King or Law of God is void and Custome of the Realme cannot be taken away but by act of Parliament See 21 Ed. 4. 44. the Abbot of Saint Albones hath a Charter of the King to be discharged of Collection of tenthes granted by Parliament or Convocation The Clergy grants tythes in Convocation there is a clause in the grant that no one of them who shal be chosen to be collector shal be discharged of collection by colour or force of any Letters Patents and after they return the Abbot of St. Albones Collector who pleads his Letters Patents in discharge of Collector and resolved by the Court that the clause in the grant of tenthes doth not take away the exemption of discharge by the Letters Patents granted And it was resolved that if the Parish clark misdemene himselfe in his office or in the Church he may be sentenced for that in the Ecclesiasticall court to Excommunication but not to Deprivation And after Prohibition was granted by all the court and held also that a Prohibition lyeth as well after sentence as before Trinity 8. Jacobi Common Bench. ON was cited to appear in the Prerogative Court of Canterbury which was out of the Diocesse of Canterbury and upon that he praied Prohibition upon the Statute of 32. H. 8. Which willeth that none shall be cited to appeare out of his Diocesse without assent of the Bishop and Prohibition was granted And yet it was said that in the time of H. 8 and Reigne of Mary that the Arch Bishops of Canterbury had used to cite any man dwelling out of his Diocesse and within any Diocesse within his Province to appeare before him in the Prerogative Court and this without the assent of the Ordinary of the Diocesse But it was resolved by the Court that this was by force of the power Legantine of the Arch-Bishop that as Lynwood saith ought to be expressed in the Prohibition for the Arch-Bishop of Canterbury York Pisa and Reymes were Legati nati and others but Legates a Latere Hillary 1610. 8. Jacobi in the Common Bench. Beareblock against Reade IN an Action of Debt brought by Beareblocke against Reade Administratrix to her Husband upon a Judgement given in this Court The case was this the Plaintiffe had Judgment against the Husband and after sued him to an Vtlagary and upon that he brought a Writ of Errous and removed the Record into the Kings Bench and reversed the Judgement for the Vtlagary But the first Judgment was affirmed and then the Husband acknowledged a Statute and dyed And the Wife took out Letters of Administration and then the Statute is extended against the Wife and all the goods which shee had of the Intestates taken in execution After which Beareblock in the Kings Bench sueth a Scirefacias upon the said Judgment against the said Administratrix to have execution and shee pleads upon that the said Statute in Barre and the extent of that and that more then that shee hath nothing to satisfie and this was adjudged a good plea. And then the Plaintiffe being not satisfied he hrought an action of debt upon the said Judgment in this Court and in Barr of that the Wife pleaded all this matter in Barr as aforesaid upon which the Plaintiffe demurred in Law and the Judges seemed to incline that this was no Barr for though that the Wife hath not any means to aide her selfe or to prevent the extent of the Statute yet it seemed to them that this should not prevent the execution upon the Judgement and that the Wife might have Audita quaerela against the Connusee of the Statute and so to make the extent void It was not argued at this day but the point only opened see 3. Eliz. Dyer 7. H. 6. See Pasche 9. Jacobi the Residue Petty against Evans IN an Ejectione firme brought by the Lessee of a Copy-holder it is sufficient that the count be generall without any mention of the License if the Defendant plead not guilty then the Plaintiff ought to shew the Lycense in Evidence But if the Defendant plead specially then the Plaintiff ought to plead the License certainly in his replication and the time and place when it was made and in this case the Plaintiff replied that the copy-holder by License first then had of the Lord did demise and did not shew what estate the Lord had nor the place nor time when it was made and all the Justices agreed that it is not good For the License is traversable for if a copy-holder without License of the Lord make a Lease for yeares The lessee which enters by calour of that is a Disseisor and a Disseisor cannot maintain an Ejectione Firme and the Defendant cannot plead that the Plaintiff by license did not demise for this is a pregnant negative also it ought to appeare what estate the Lord had for he cannot give license to make a lease of longer time in the Tenancy then he hath in the signiory And for that if he be Lessee for life of a Mannor and he licenses a copi-holder to make a Lease for 21. yeares of a copy-hold and then the Lessee for life dies the license is for that determined though that the copy-holder be of Inheritance for the Inheritance of the Lord is bound by that And for that the Plaintiff replies that the copy-holder by license of the Lord first therefore had made the Lease that is not good by Coke and Walmesley expresly and though that the Defendant confesse the Replication by Implication by pleading Yet this shall not ayd the Plaintiff for that it is insufficiently pleaded which note Hillary 8. Jacobi 1610. in the Common Bench. IN action upon the case upon an Assumpsit the Plaintiff counts that when he such a day at the speciall instance and request of the Defendant lent to the Defendant the same day ten pound And that the Defendant the same day in consideration thereof assumed and promised to the Plaintiff to pay the same summ of ten pound at an other day to come And it was moved in arrest of Judgement that the consideration was too generall and for that the action not maintainable and all the Justices but Foster seemed the consideration was good but Foster it seems was in some doubt of that but Judgement was entred for the Plaintiff according to the verdict And Coke cheife Justice said that such a like action was maintained against Kercher his Chaplain as Executor of his Father and it seems for good Law Legates Case ONe Legate was committed to Newgate Prison for Arrianisme for denying of the Trinity by the high Commissioners and it was moved on the behalfe of Legate to have a habeas Corpus and it was granted and it was said by Coke cheife Justice that the Statute of 5. H. 4. Chapter 10. Inhibits Justices of peace to commit any man to
that the Husband was subject to that then by consequence it was intended that all persons which were chargeable by the common Law shall be chargeable by the Statute and by the action which is formed upon that and by the common Law the Husband was chargeable and by consequence shall be chargeble by the Statute and he intends that there would be difference between actuall wrongs and others which are come by omission and if the VVife be the person which did the wrong then she shall be punished as well by Statute as she was before by the common Law also she shal be out-lawed and it hath been agreed that Ravishment of Ward shall be maintainable against the Husband and the wife if they both are Ravishers and also if the wife be Ravisher before marriage and after takes a Husband the Husband shall be charged with the damages and his Body shall be imprisoned and by consequence shall be abjured also shee may make an Executor by the consent of her Husband but admitting that she could not then the remedy is given against the Heir and she shall be within this Statute as well as other Statutes made in the time of the said King as the Statute of Westminster 1. 37. And shall be a Disseisor with force and shall be imprisoned whether the Husband joyn with her or not as it is adjudged 16 Assise 7. for all Statutes which provide for actuall wrong a married VVife shall be intended within them as it is 9 H. 4. 6. But the pleading of Joyntenancy there the Plea is the act of the Husband and so fayling of Record upon the Statute of 34 Ed. 3. as it is 16 Assise 8. for the Husband propounds the exception but if the VVife propounds the exception then she shall be within the Statute and shall be imprisoned 21 Assise So if a married VVife make actuall disseisin with force she shall be imprisoned 9 H. 4. 7. b. 8 Ed. 3. 52. 22 Ed. 2 Damages 20. 27 H. 6. Ward 118. And so the President Trinity 33 H. 8. Rot. 347. in a case between Thomas Earle of Rutland against Lawrence Savage and his VVife in Ravishment of Ward at the Nisi prius the Defendants make default and the Judgment was that the Husband and the VVife should be taken and upon that he inferred that the Husband should be subject and charged with the damages and so it is taken upon the statute of 35. Eliz. That the Husband shall be charged with Debt for the Recusancy of the VVife and shall be imprisoned for the not payment of it as to the verdict it seems that this is good and it shall be intended the VVard was marryed by the Defendants as in 33 Ed. 3. Verdict 48. It is found by verdict that Mulier enters and resolved that this shall be intended in the life of the Bastard or otherwise it is nothing worth and in Fulwoods case 4 Coke the Jury found that the Defendant acknowledged himself to be bound and that shall be intended according to the statute of 23 H. 8. and so here though that it be not found that the VVard was married by these Defendants yet it shall be so intended notwithstanding that nothing is found but only that he appeared married and so he concluded and prayed Judgment for the Plaintiff This case was sollemnly argued this Tearme by all the Justices that is Coke and Walmesley Warberton and Foster and upon their selemn arguments Coke and Walmesley were of opinion that a married wife is not within the statute and Warberton and Foster were of the contrary opinion and so by reason of their contrariety in opinion the Judgment was staid Trinity 9. Jacobi 1611. in the Common Bench. Burnham against Bayne THE case was A Man seised of divers Lands the halfe of them were extended by Elegit and before Judgement was had against him a new Elegit Awarded and if all the halfe which remaines or but the halfe of that which was the fourth part of all should be extended was the question And it was agreed by all the Justices that but the halfe of that which remaines and not the halfe of all which he had at the time of the Judgement But the halfe of that which he had at the time of the Elegit And if all which remaines be extended the Extent shall be void by all the Justices see 10. Ed. 2 Execution 137 16. E. 2. Execution 118. And here the principall case was A man hath a Rent of forty pound reserved upon a Lease for years and two Judgments in Debt were had against him at the Suit of Sir Thomas Cambell and three Judgments at the Suit of the Plaintiff the halfe was first extended by Elegit upon the first Judgment had at the Suit of Sir Thomas Cambell and after upon the Judgment had at his Suit the halfe of the residue was extended and after upon the Judgment at the Suit of the Plaintiff all the residue was extended and all the Justices agreed that the Extent was void for they ought to extend but the halfe of that which remaines and that was but the fourth part Trinity 9. Jacobi 1611. In the Common Bench. Trobervill against Brent THE Case was A man makes a Lease for yeares rendring Rent and after grants the Reversion for life to which Grant the Lessee for years attornes the Grantee acknowledgeth a statute and after surrenders his Estate the Conusee extends the Statute and distraines for the Rent and in Replevin avowes for the cause aforesaid and adjudged that the Avowry was good Agreed that Creditor may sue the Executors and the Heir of the Debtor also but he shall have but one Execution with satisfaction see the Statute of 23 H. 8. for such course in the Exche quer Note that no Court of Equity may examine any matter of Equity after Judgment which was precedent the Judgment see the Statute of 4 H. 4. chapt 23. Trinity 9. Jacobi 1611. In the Common Bench. Hamond against Jethro THe case was this Edward Hamond was Plaintiff in Debt upon a Bill against VVilliam Jethro and the Bill was made in this manner Memorandum that I VVilliam Jethro do owe and am indebted unto Edward Hamond in the Sum of ten pound for the payment whereof I binde my self c. In witnesse and after the in witnesse it was thus subscribed Memorandum that the said VVilliam Jethro be not compelled to pay the said ten pound untill he recovers thirty pound upon an obligation against A. B. c. And in the Count was no mention made of this Subscription but this appears when the Defendant prayes hearing of the Bill the which was then entered Verbatim of Record and upon that the Defendant demurred in Law Harris Serjeant for the Plaintiff agreed that if it had been in the Body of the Bill it ought to have been contained in the Count to inable the Plaintiff to his action but that which is after in witnesse
not the accidentall as here it is but it is the substantiall forme and every one knows that Meale of Wheat is the same as Pepper beaten in a Morter and Pepper and all other Spices so that it is the same in number existence substance and essence and he intended also the same in intention for Meale is Victuall and is dead Victuall be it Corne or Meale and Corn grownd and made in Meale then sold yet that remains dead Victuall and Meale is the same dead Victuall though that it be not the same Corne and to prove that Corn is Victuall he cyted the Statute of 25 Edw. 3. 5. Stat. Chap. 7. Which provides that no Forester shall make any gathering of Victuals by colour of their Office and hee intended that Corne was within this statute and so also of the statute of the 3. P. and M. Chap. 15. Rastal Universities which provides that to the Purveyor Bargainor for any Victuals within 5 miles of any of the Universities of Oxford or Cambridg where Grain and Victuall are joyned together So the Statute of 25 H. 8. Chap. 2. abridged by Rastall Victual 15. which inhibits the transportation of Victuall if it be not of Meal and Butter into Ireland by which it appears that Meale is dead Victualls And he said that Victuals is that which refresheth men and Victualls are those things which to the use of eating and drinking are necessary So that Meale is the same in number though that the Corne were turned into Meale And he cyted Peacock and Reynolds Caâ—e to be adjudged 42 Eliz. That if a man buy Corne and convert that into Meale and so sell it it is within this Statute And hee said that if a man be made a Knight hanging his action that this shall abate his action but yet he remains the same person but his name is changed which is the cause of the abatement of his action 7 H. 6. 15. Also the Defendant is concluded by his demurrer upon the Information to say that it is not the same thing for this is confessed by the Demurrer and though that the name be changed this is not materiall if the substance be the same and he agreed that a Baker which buys Wheat and makes it into Bread is not within the Statute for he furthers that to the use of man as a Curryer makes the Leather more fit and apt for use but so doth not he which makes it into starch for he furthers the abuse for it is no lawfull Occupation but idle and friâ—olous furtherance of vanity of men And in 35. H. 6. 2. If a man enter into the Land of another man and cut Trees and that square and make into Boards yet if the Owner enter hee may take them But if it be made into a House otherwise it is for there it is mingled with other things as it is 5 H. 7. 15 16. So Iron made in Anvill But of Leather made in Shooes otherwise it is insomuch that it is mingled with other things 12 H. 8. 11. a. A dead Stag is not a Stag but is a certain dead thing and flesh As a man dead is not a man but agreed the Book of H. 7. 15. and 16. That Corne converted into Meale cannot be restored nor reprized no more may that if it remains in Corne if it be not in Baggs And hee said that upon the Statute of Merton the Re-disseisin after the Recovery in Assise if the same Disseisor makes Re-disseisin the Sheriffe may examine that c. And it is agreed in 27 H. 6. That if Tenant in tayle be disseised and recover in assise and is put in possession and after his Estate is altered and he become Tenant in tayle after possibility of Issue extinct and then the Disseisor makes Re-disseisin that this is aided by the statute not that it is alteration of the Estate And also he saith it appears more fully by the Proviso by which it is provided that Barley turned into Malt and Oates turned into Oatmeale if it be by Ingrossing it is within the purview of the statute So if it be by way of Fore-stalling or if they sell them again before that they are converted shall be Regrators And to the Objection that other things that is Water and Fire are added to that he saith that none of them remains for the Fire dryes the water and the fire also goeth out and so he concluded and prayed Judgment for the King and the Informer and it was adjourned Michaelmass 1611. 9. Jacobi in the Common Bench. IN Dower against Infant which makes default upon the grand Cape returned and agreed by all the Justices that Judgment shall be given upon the Default for the Infant shall not have his age and so it was adjudge upon a Writ of Error Charnock against Currey Administrator of Allen. IN debt upon an Obligation against the Defendant as Administrator as above he pleads Judgment had against him in an action of debt and over that hath not to satisfie to which the Plaintiff replies that this Judgment was for penalty and the condition was for a lesser sum and that the Plaintiff in the first action had accepted his due debt and had promised to acknowledg satisfaction of the Judgement at the request of the Defendant and at his charges and the Administrator which was the Defendant did not make request upon fraud and Covin to avoid the Plaintiffs action Upon which the Defendant hath demurred and so confesseth the matter of the Plea But Foster seemed that the Plaintiff ought to aver that the Plaintiff in the first action hath offered to acknowledg satisfaction and that otherwise he should be put to his action upon the Case but Coke and Warberton intended that the Replication is very good without such averment for it shall be intended that the Plaintif will perform his promise But further this Demurrer which was only for part was also for another part an Issue joyned for the other part which was to be tryed by the Country and which shall be tryed of the Issue or of the Demurrer was the question and it was agreed by them all that the Issue or Demurrer shall be first at the discretion of the Court see 11 H. 4. 5. 38. Ed. 3. Commission is granted to the Councel in Wales of which the President Vice-president or Cheife Justice to be one And the question was if they might make a Deputy and it was agreed that a delegate power could not be delegated but they might make an Officer to take an accompt in any such act Note that a Caveat was entred with a Bishop that he should not admit any without giving notice that the admission this notwithstanding is good but if he admit one which hath no right he is a disturber but otherwise the Caveat doth nothing but only to make the Bishop carefull what person he admits Foster Justice seemed that if the Ordinary now after the statute of
so these words of the Writ are not answered and so no Tenant is returned at all And it is not like to the Case in 2 H. 4. for there the Return was according to the Exigent of the Writ but here it is not so And to the first matter he intended and agreed that an Executor of an Executor may sue execution had by the first Executor insomuch that hee comes in in privity But he said that so it is not in this case and that there is no difference betwixt this case and the case cyted in Shelleys case that is that Administrator of Administrator shall not sue execution insomuch that he comes in peramount Administrator and accords with this Case 2 Eliz. in the Lord Dyer If two Joynt-Tenants are and one makes a Lease for years rendring Rent and dyes the Survivor shall not have the Rent insomuch that hee commeth in peramount him and to the other he intended that the speciall non-tenure is a good plea as well in Scire facias to have execution of damages as of Free-hold as in 24 Edw. 3. 31. and 5 H. 5. 1. and 9. H. 5. 11. It is resolved that in Scire facias speciall non-tenure is a good Plea and the books of 8 H. 6. 31. cyted before there is Joynt-tenancy pleaded to one part and speciall non-tenure to the other part by Lease for years and the question is if it might be pleaded a part And in 8 Edw. 4. 14. Is Scire facias upon Recovery by Writ of Right Patent in base Court and that the Defendant cannot plead release of the Lessor and so the joyning of the Mise may be forfeiture of his Estate And he said that it was adjudged in 16 Edw. 3. Scire facias 5. that scire facias to have execution of a Fyne shall not be sued against a Lessee for years but against him which hath the Free-hold but where Debt or Damages are to be recovered there it may be sued against him which hath only Lease for years insomuch that the possession is to be charged and so he concluded and prayed Judgement for the Defendants and it is adjourned Michaelmas 1611. 9. Jacobi in the Common Bench. Crogate against Morris THe case was this Copy-holder prescribes to have common in the Waste of the Lord and brings action of Trespasse against a stranger for his Beasts depasturing upon the Common there and Harris Serjeant argued that this action is not maintainable for two causes First insomuch that he is a Commoner for as it is said by Brook Justice 12. H. 8. 2. a. Commoner cannot have an action of Trespasse for the Common is not Common but after the Commoner hath taken that and then before that he hath taken that he hath no wrong nor damage but the damage is to the Tenant of the Land As if a Lessee for years be outed and he in reversion recovers in Assise hee shall not have damage insomuch that the damage was made to the Lessee and the 22 Assis 48. 15 H. 7. i 2. b. agreed that Commoner cannot maintain action of Trespas nor no other but the owner of the Soil but 13 H. 8. 15. by Norwich 15 H. 7. 6. 5 H. 7. 2. 24 Edw. 3. 42. Commoner may distrain and avow for doing damage 2. He intended that this action is not maintainable insomuch that every other Commoner may also have the action of Trespasse for if it be wrong to one it is wrong to every one of them and so the stranger shall be infinitely punished as in Williams Case 5 Coke 72. b. where it was adjudged an action of the Case doth not lye for the Lord of the Mannor to prescribe that a Vicar ought to administer the Sacraments in his private Chappell to him his Men-servants and Tenants within the Precincts of the said Mannor and adjudged that it doth not lye insomuch that then every of his Tenants might also have action and so the Vicar shall be alwayes punished So in 27 H. 7. 27. a. A man shall not have an action upon the Case for nusance made in the high way so it is 5 Ed. 4. 2. for trenching in the high way see 33 H. 6. 26. a. accordingly and so he concluded that the action is not maintainable and prayed Judgement for the Defendant Dodridge the Kings Serjeant to the exception which hath been made by the other party that the Plaintiff ought to averr that he hath Beasts which ought to Common there and that his Beasts have lost their Common that need not to be averred but it shall be pleaded by the other party for if he have distrayned the Beasts of a stranger doing damage he need to averr no more in this action and to the other matter and the two Objections which have been made by the other part First that the Commoner hath no right to the Common till he have taken it by the mouth of his Beasts to that he said that the Commoner hath right to that before that it be taken by such mouths of his Beasts and notwithstanding that it seems by the time of Ed. 1. That Commoner cannot grant his Common till he have Seisin of that yet 12 H. 8. is otherwise and that a Commoner may have an action the name implyes for he hath Common with others and a stranger which is no Commoner cannot do wrong but this is damage to him and he cyted Bracton 430. that there are two forms of Writs 1. Cursitory Writs 2. Commanding Writs The first of those which are formed and are of course and the others such of which there is no form but are to be formed by the Masters of the Chancery according to every particular Case So that there is not any Case but that the Law affords a Writ and remedy for that as in 28 Edw. 4. 23. Action upon the Case was framed against an Officer which gave priviledge to one as his servant which was not his servant and it is not like to the Case in 11 H. 4. 47. a. where a School-master brings an action upon the Case against another for erecting of a School in the same Towne to his damage but this was damage without Injury But here the Commoner hath received wrong and damage but yet he agreed that the Commoner could not have action of Trespass why he broke his Close for that is proper for the owner of the Soile But it hath been agreed to him that he might distrain them doing damage and the reason of that is insomuch that he hath received damage and amends may be tendered unto him in recompence of his damages without any regard to other Commoners as it is agreed in 24 Edw. 3. 42. And to the Objection that if one Commoner may have action then every Commoner may have the action and so the stranger shall be infinitely punished And to that he said it is a Publique losse and private and when the publique wrong includes private damage to any man there he
Inhabitants to it Sixtly He conceived that the constitution is not pursued for the constitution is that if any Water-man carries any passenger willing to go by the Bardge that such Water-man shall pay for every such passenger two pence And it is not averred that the passengers which the Defendant hath carried were willing to be carried by the Bardge and so not pursued Seventhly The Constitution is further that no Wherry-man shall carry any passenger before the Bardge be fully dismist and transmist and this is not good for it may be the Bardge will not passe to London at all this Tyde and for that it ought to be averred that the Bardge departs in convenient time after that it is furnished for otherwise custome that none shall put his Beasts into such a place till the Lord hath put in his Beasts is not good for it is resolved in 2. H. 4. 24. And the reason is insomuch that it may be that the Lord will not put in his Beasts at all And to the objection that the By-Law shall not bind a stranger he conceives that if all other circumstances had been concurrent that had been very well insomuch that it was within the place where they had power to make By-Lawes and also for the publick good and this as well as the custome of Forraine bought and Forraine sold the which is only for strangers And to the objection that they are severall owners of severall Bardges and for that ought not to joyne in this Action he saith this doth not appeare by the Count but it is said that they were possessed and for that they shall be intended Joynt Owners and so he concluded that Judgement shall be arrested Trinity 10. Jacobi 1612. in the Common Bench. Downes against Shrimpshaw Trin. 9. Jacobi Rot. 334. IN action of Trespasse for Assault and Battery the case was this The Plaintiff in his Count supposeth the Trespasse to be made the first day of May 8 Jacobi at such a place The Defendant pleads that the Plaintiff the same day would have assaulted and beaten him and that the Defendant laid his hands upon him to defend himselfe and if any hurt came unto him it was by his own wrong the which is the same Trespasse for which the Plaintiff hath complained him The Plaintiff replyes of his own wrong without such cause upon which Issue was joyned and at the Nisi prius for Justification the Defendant produced Witnesses which proved an assault to be made by the Plaintiff upon the Defendant long time that is by the space of a yeare before the day contained in the Count and that at this time the Defendant to defend himselfe hath assaulted the Plaintiff And upon this Evidence the Plaintiff demurred insomuch that this proves an assault made at another day then is contained in the Count and the Defendant by pleading hath confessed an Assault and Battery made upon the Plaintiff the day contained in the Count and now upon Evidence proves his Justification at another day and if this Evidence were sufficient to prove his Justification was the question And if by this pleading the day be made materiall in which it was agreed by the Court and Councell also That if the Defendant had pleaded not guilty the day had not been materiall But the Plaintiffe might have given in Evidence any Battery before the day contained in the Count or after before the action brought and this is sufficient to prove his Declaration but the Parties that is the Plaintiff by his Count and Replication and the Defendant by his Justification have agreed of the day And for that if they may now vary from that it was moved and so it was adjourned Trin. 10. Jac. 1612. in the Common Bench. Laury against Aldred and Edmonds IN Debt against the Defendants as Executors of William Aldred dead upon an Obligation made by him in his life time of 50. l. The case was this one of the Defendants confessed the action the other pleaded that the Testator dyed such a day and that he intending to have letters of Administration caused the Corps of the Testator to be buryed and his goods safely to be preserved and kept and that after administration was granted to him by the Arch-Deacon and that after that one Harnego brought action against him as Administratrix by letters of Administration committed to her by the Commissary of the Bishop being Ordinary there and recovered and averred that this was a true Debt and that he had no goods which were the Testators besides the Goods and Chattels which did not amount to the said Debt and so demanded Judgment if action and upon this the Plaintiff demurred in Law Davis Serjeant argued for the Plaintiff that the Defendant ought to have confessed and avoyded or traverse the point of the action and not conclude Judgement if action See 1 Eliz. Dyer 166. 10. When intermedling made men Executors of their owne wrong that is when he meddles without any colour of title or authority as receiving Debts and disposing the goods to his owne use But if a man administer about the Funeralls or be made a Coadjutor or Overseer this shall not make him Executor of his own wrong or by reason of a Will which is after disproved by probate of one Letter and in these cases if he be charged as Executor he ought to plead speciall matter without that that he administred in other manner and in 20. H. 7. 27. a. 28. b. adjudged in Debt against one as Executor which had Letters ad Colligendum bona definisti only which pleaded the speciall matter without that that he administred any other way and other manner was out of the pleading for he did not administer in any manner with Intermedling by the letters ad colligendum and 9 Ed. 4. 33. b. If an action be brought against an Executor of his owne wrong and after administration is committed to him by the Ordinary this shall not abate the action upon which Books he inferred that the Defendant ought to have traversed that he administred as Executor and insomuch that hee hath pleaded that he hath not so pleaded the plea was not good and also insomuch that he hath pleaded that he hath no goods of the Intestate besides goods which doe not amount c. And this is uncertain and not good for he ought to have shewed what goods he had in certain and the value of them insomuch that they remain as Assets in his hands and so he concluded and prayed Judgment for the Plaintiff Barker Serjeant for the Defendant argued that though that the action in which Harnego recovered was begun after the action now hanging yet insomuch that judgment was first had in that now that shall be preferred otherwise before Judgment for till Judgement the elder action shall be preferred And he conceived that if the Writ was abateable and the Defendants would not abate it by plea that shall not prejudice the Plaintiff which
awarded good because it comes in Lieu of Goods which they had as Executors and shall be Assets in their hands as the Goods should have been and for that it is well brought in the Detinet only And they said that in the principall case it shall be mischeivous if the Action shall be brought in the Debet and Detinet for it may be the Rent reserved is of more worth then the Profits of the Land will amount unto and that the Executors or Administrators have no other Assets now shall be the Executor or Administrator be charged with his own proper Goods which shall be mischeivous and the case of 10. H. 7. 5. and 6. that is direct in the point was often times cited and all these three things which were of councell with the Defendant informed the Court that they were of Councell with Hargrave when the Judgement given in the Kings Bench was reversed for Error in this very point and for this cause because the Action was brought in the Debet and Detinet where it should be in the Detinet only And so they praied that the Judgement should be hindered But by the whole Court except Yelverton And so it was adjudged that the Action was well brought as it is and especially for the reasons given in Hargraves Case 5. Coke 31. And to that which hath been said by Yelverton Justice that in all cases where Executors are charged by the name of Executors or Administrators that there the Action shall be against them in the Detinet only Flemming cheife Justice answered that â—rue it is in all personall things where they are named as Executors Action shall be in the Detinet But as it is an Action of Debt for Rent reserved upon a Chattell reall and an Executor is as an Assignee in Law and so charged as privy in Estate and not meerely as Executor and if he have no more Assets then the Rent which he is to pay he may plead nothing in his hands against all the World and to that that hath been said that the Executor hath been charged of his own Goods If the profits be not more then the Rent or the Rent more then the profits to this he said that in this case where the Executor hath the Tearme and hath not any other Assets that they may wave this Tearme And in Action of Debt brought against him for the Rent may plead to the occupation and that recover The reason of the diversity between this case and the case of 28. H. 8. Dyer 14. is plain for in an Action of Debt against the Termor himselfe Non habuit nec occupavit is no Plea for there was a contract between them and for this privity of contract is the Lessee charged though he did not occupy But in the case of an Executor the privity of the contract is gone and so may be a difference But yet it seemes if he have Assets sufficient to pay the Rent he cannot wave it And to the case 14. H. 4. 28. that hath been cited that doth speake nothing how the Action should be brought And the Justices have seen the record of Hargraves case and the Reversall of that And they said the same error which was in Hargraves case is in this case and for that bring your Writ of Error in the Exchequer chamber if you will for we so adjudge And then it was moved that the Lord Rich was Tenant in Tayle of part of the reversion and Tenant in Fee-simple of the other part and so it seemes that he ought to have two Actions because he hath as two reversions But it was resolved by all the Court that if a man have a reversion of part in Fee-simple and of the other part in tayl and makes a Lease for yeares rendring a Rent he shall have but one Action both being in the hands of one But otherwise it had been if the reversion had been in severall hands they should not Joyne in Debt and for that Fenner put this case two Coparceners are of a reversion and they make partition now the Rent is apportioned and they shall sever in Debt But if one dies without Issue and the part discends to the other Parcener now he shall have but one Action of Debt againe and so it is if a man makes a Lease of two Acres rendring Rent and after grants the reversion of one Acre to J. S. and of the other Acre to J. N. now they shall sever in Debt for this Rent but if J. S. and J. N. Grant their reversions againe to the first Lessor he shall have but one Action of Debt and so the exception dissalowed by all the Court and the Judgement given for the Plaintiff according to the Verdict Yates and Rolles THe case was this J. S. covenants by Indenture with J. N. I. D. and A. B. to enter Bond to pay ten pound to J. N. and J. N. dies and his Administrator brings a Writ of covenant and the question was insomuch that this ten pound was to be paid to J. N. if his Administrator shall have Action of Covenant or if the Action shall survive to the other two and it was moved by Stephens that the Action shall be well brought by the Administrator for this shall be taken as a severall covenant and this now is in nature of a Debt and enures only to him which shall have it also the payment of the money which is the effect of the covenant shall be to him only Ergo the Damages for the not performing of it shall goe to him also and by consequence to his Administrator But it was adjudged insomuch that this was a joynt covenant that this shall survive to the others and not well brought by the Administrator So also resolved that insomuch that the words are that he would enter Bond and doth not say to whom that this shall be intended to the Covenantees and though that the Solvendo is but to one of them yet that is very good as an Obligation made to three Solvendum to one of them is good by Fenner and by Williams Obligation to two Solvendum ten pound to one and ten pound to another both ought to joyne in Debt upon this Obligation and Judgement for the Defendant Sammer and Force THe Case was this The Lord of a Copy-hold Mannor where Copy holders are for life grants Rent-charge out of all the Mannor one Copy-hold Escheats the Lord grants that againe by Copy the question was If the Grantee shall hold it charged or not and by the whole Court but Fenner he shall not hold it charged because he comes in above the Grant that is By the custome the same Law of Statutes Recognizances or Dowers but the 10. of Eliz. Dyer 270. by the whole Court that he shall hold it charged but this hath been denyed for Law in a Case in the Common Bench between Swaine and Becket which see Trinity 5. Jacobi But to Coke Justice it seemed that
if a Copy-holder be of twenty Acres and the Lord grants Rent out of those twenty Acres in the tenure and occupation of the sayd Copy-holder and name him There if this Copy hold Escheat and be granted againe the Copy-holder shall hold it charged for this is now charged by expresse words Trinity 8. Jacobi 1610. In the Kings Bench. Goodyer and Ince GOodyer was Plaintiff in a Writ of Error against Ince and the Case was this Ince brought an Action of Debt upon an Obligation in the Common Bench against Goodyer and had Judgment to recover and by his execution prayed an Elegit to the Sheriff of London and another to the Sheriff of Lancaster and his request was granted and entred upon the Roll after which went out an Elegit to the Sheriff of Lancaster upon a Testatum supposing that an Elegit issued out to the Sheriff of London which returned Nulla bona and Quod Testatum sit c. That the Defendant hath c. in your County c. upon which Elegit upon this Testatum the Sheriff of Lancaster extended a forme of the Defendants in a grosse sum of a hundred pounds and delivered this to the party himselfe which sold that to another and now the Defendants brought a Writ of Error and assigned for Error that this Elegit issued upon a Testatum where no Writ of Elegit was directed to the Sheriff of London and so this Writ issued upon a false supposall and upon that two points were moved in the Case First As this Case is if this were Error in the Execution or not Secondly Admit that it were Error if the Plaintiff shall be restored to the tearme againe or if to the value in Money and it was moved by Davenport of Grayes Inne that this was no Error and to that he took this difference That true it is when a man brings an Action of Debt in London and hath Judgment that without request of the Plaintiff he is to have his Elegit to the Sheriffs of London where originally the Action was brought and in such Case he cannot have Elegit to the Sheriff of another County without surmise made upon the returne of the first Elegit and the surmise ought to be true or otherwise it is Error but where upon the request the Elegit is granted to both Counties at the first and so entred upon the Roll It seems to him that insomuch that he may have both together that if the surmise be false that this is but a fault of the Clarke which shall be amended and shall be no Error and to that he cyted the Case of 44 Edw. 3. 10. Where an Elegit issued upon a Recognizance of a hundred Markes and the Writ of Extent was a hundred pounds and the Sheriff extended accordingly of the Land of the Defendant and he came and shewed this to the Court and praied that the Writ should abate and a new Writ to the Sheriff that he might have restitution of his Tearme and Thorp said this is but a misprison of the Clark and the Roll is good and he shall have the Land but till the hundred markes are Levied and after this you shall have restitution of the Land which case proves as he conceives that if the Roll warrant a writ in one manner and the Clark makes it in another manner that this shall not be Error and so in this case the Roll warrants an Elegit originally to the Sheriff of Lancaster and though that this is made upon a Testatum this shall not be Error because warranted by the Roll And to the second point he would not speake for if that were no Error the second point doth not come in question Hillary 7. Jacobi 1609. in the Kings Bench. Marsam against Hunter IN Trespasse the case was this Copy-holder of a Mannor within which Mannor the custome was that the Copy-holders should have Common in the wast of the Lord The Lord by Deed confirmes to a Copy-holder to have to him and his Heires with the appurtenances and the point was insomuch that his Copy-hold was now distroied whether he shall have his Common or not And Davyes of Linclones Inne argued the Common is extinct and his reason was that this Common was in respect of his Tenure and the Tenure is distroid Ergo the Common and he cited the case of 5 Ed. 4. fol. ult Where the office of the King of Herraulds was granted to Garter with the Fees and profits Ab Antiquo and also ten pound for the office and there it is resolved if the office be determined the Annuity is determined also and the case in 7. Ed. 4. 22. b. Where an Annuity was granted to John Clark of the Crown and for Tearme of life and after he was discharged of the office and the oppinion of the Justices then was that the annuity was determined and in 19. Ed. 3. Assis 83. 12 Assis 22. A man gives Land to his Daughter and I. S. within the years of marrying in frank-marriage the Husband sues Divorce the marriage being dissolved the Wife from whom the Land first moved shall have the Land againe so in the principall case insomuch that this common was in respect of Tenure the Tenure being distroied the common is gone and this was all his argument and he prayed Judgement for the Plaintiff and another day Brautingham of Grayes Inne seemed that the common remaines for three reasons First of the nature of a prescription and to that there are three manner of prescriptions First personall prescription and in that Inhabitants may prescribe as for a way or matter of ease as it is said in 7. Ed. 4. 15. Ed. 4. and 18. Ed. 4. and 6. Coke Gatwoods case Secondly reall prescription and this is Inherent to the Estate and this is where a man prescribeth that he and all those whose Estate he hath c. Thirdly locall prescriptions an that is where a man prescribes to have a thing appendant or appurtenant to his Mannor and this is so fixed to the Land that whether soever the Land goes the prescription is concommitant unto it and it seemes to him that this common is annexed to the Land by prescription and so locall and cannot be seperated but alwaies shall go with the Land into who soever hands that comes but Dixit non Probant And for this he supposed that the custome of Copy-hold is that the Copy-hold shall discend to the youngest Son if the Copy holder purchase the Free-hold and the Fee-simple of the Copy-hold so that this is made Free-hold this shall discend to the youngest Son so if a Copy-holder by custome is discharged of payment of Tythes in kind so the office of the master of the Rolles hath many liberties pertaining to it and this is granted but Durante placito yet if the King grant that in Fee as he may yet he shall have all the Fees and Priviledges annexed to that and so it seemes to him that
Grant his Intent was cleerly to pass all but Williams if he had sayd Totum Molendinum suum or all his Estate in the Mill there paradventure it should haue been otherwise and so a difference where he saith he grants the Mill and all his Estate in that and where he grants all his Estate in the Mill for in the first case all passes by the Grant of the Mill and these words which are after are but words explanatory as â—rooke sayd and it was adjourned And after in Easter Tearm next insuing Hitcham the Queens Attorney came again and prayed that the Judgment be affirmed and Yelverton of Grayes Inne sayd that he hath considered of Nokes Case 4. Coke and this was all one with this case for the case was thus A man lets a House in London by these words demise Grant c. That the Lessee should injoy the House during the Tearm without eviction by the Lessor or any claiming from or under him and the Lessor was bound to peform all Covenants Grants Articles and Agreements as our case is and there by the whole Court that the sayd express Covenant qualifies the generalty of the Covenants by the Words Demise and Grant which is all one with our case for first he granted Totum Molendinum and after covenant that he should injoy c. against himself and all which claime in by from or under him and after binds himself to perform all Grants Covenants Articles and Agreements and so it seems to him that it is au expresse Covenant in this Case as well as in other and qualifies the generall Covenant implyed by the word Grant and then the Grantee being outed by a title Paramount no Action of Debt upon such Obligation and prayed that the Judgment be reversed and the Justices sayd they would consider Nokes Case and the next day their opinions were prayed again and the cheife Justice sayd that he had seen Nokes case and said that there is but a small difference between the cases but he sayd that some diflemay be collected For first in our case is a Recitall of the Estate of the Grantor that is that all belongs to him as Survivor and for that this was a manner of Inducement of the Grantee to be more willing and forward to accept of the Grant and to give the more greater consideration for it but in Nokes case there is no recitall and so this may be the diversity Secondly In Nokes Case the Tearm past all in Interest at the first and the Grantee or Lessee had once the effect of this Lease in Interest of the Lessor but in this case when two Tenants in Common and one grants Totum molendinum there passes but a half at the first and so the grant is not supplyed for the other halfe and then if the speciall Covenant shall qualify the generall c. The Grantee shall not have any remedy for a half at all and this may be the other diversity but admitting that none of these will make any difference then he sayd that all the Court agreed that this point in Nokes Case was not adjudged but this was a matter spoken collaterally in the case and the case was adjudged against the Plaintiff for other reasons for that that he did not shew that he which evicted this Tearm had title Paramount for otherwise the Covenant in Law was not broken and for this reason Judgment was given against the Plaintiff and not upon the other matter and so the whole Court against Nokes Case And the cheif Justice sayd that to that which is sayd in Nokes case that otherwise the speciall Covenant shall be of no effect if it cannot qualify the generalty of the Covenant in Law he sayd that this serves well to this purpose that is that if the Lessor dyes and any under the Testator claim the Estate that the Action of Covenant in this case lies against his Executors which remedy otherwise he cannot have for if a man makes a Lease by these words Devise and Grant and dyes Action of Covenant doth notly against his Executors as it is sayd in the 9. Eliz. Dyer 257. But otherwise upon expresse Covenant and then this expresse speciall Covenant shall be to this purpose And also it seems to him that if a man devise and grant his Land for years and there are other Covenants in the Deed that in this case if the Lessor binds himself to perform all Covenants that he is not bound by his Bond to perform Covenants in Law and he cited that to this purpose the Books of 22 H. 6. and 6 Ed. 6. B. Tender that if a man makes a Lease for yeares rendring Rent this is Covenant in Law as it is sayd 15 H. 8. Dyer and a man shall have Debt or Covenant for that and yet if a man binds himself in a Bond to perform all Covenants where there are other Covenants in the Deed and after doth not pay the Rent no action of Debt lyeth upon this Obligation nor the nature of the Debt altered by that and he sayd that the Munday next they would pronounce Judgment in the Writ of Errour accordingly if nothing shall be sayd to the contrary and nothing was sayd Hillary 7. Jacobi 1609. In the Kings Bench. Bartons Case THE Case was this A man was taxed by the Parish for Reparations of the Church and the Wardens of the Church sued for this Taxation in the spirituall Court and hanging this Suit one of the Wardens released to the Defendant all Actions Suits and Demands and the other sued forward and upon this the Defendant there procured a Prohibition upon which matter shewed in the Prohibition was a Demurre joyned and Davenport of Grayes Inne moved the Court for a Consultation and upon all the matter as he sayd the point was but this If two Wardens of a Church are and they sue in the Court Christian for Taxation and one Release if that shal barr his Companion or not And it seems to him that this Release shall not be any Barr to his Companion or Impediment to sue for he sayd that the Wardens of a Church are not parties interested in Goods of the Church but are a speciall Corporation to the Benefit of the Church and for that he cited the Case in 8 Ed. 4. 6. The Wardens of the Church brought Trespass for goods of the Church taken out of their possession and they counted Ad damnum Parochianorum and not to their proper damage and the 11 H. 4. 12. 12 H. 7. 27. 43 H. 7. 9. Where it is sayd expresly that the Wardens of the Church are a corporation only for the Benefit of the Church and not for the disadvantage of that but this Release sounds to disadvantage of the Church and for that seems to him no Barr also this Corporation consists of two persons and the Release of one is nothing worth for he was but one Corps and the moyity of the Corps could not release
against three Executors two of them are out lawed and the third pleads and Verdict against him and it was resolved that the Judgement shall be against all by the Statute of 9. Ed. 3. for they all are but one Executor and the Cost shall be against him which pleades if the others confesse or suffer Judgement by default And there shall be but one Judgement and not diverse see 17 Ed. 3. 45. b. 11 H. 6. Upon a Venire Facias awarded the Sheriff returnes but 21. and the Habeas Corpora was against 21. only and this was also returned and upon that ten appeared and upon this Tales was awarded and triall had and but ten of the principall Pannell sworne And this was Error but if twelve of the principall Pannell had appeared and served it seemes that it shall not be error for so it was resolved in Graduers case where twenty three were returned but twelve appeared and tryed the Issue and this was resolved to be good and no error Michaelmasse 7 Jacobi 1609. In the common Bench. Buckmer against Sawyer A Man seised of Land in Gaelvelkind hath Issue three Daughters that is A. B. and C. deviseth all his Land to A. in tayl the remainder of one halfe to B. in tayl the remainder of the other halfe to C. in tayl and if B. died without Issue the remainder of her Moytie to C. and her Heires and if C. died without Issue the remainder of her Moytie to B. and her Heires the Devisor dies A. and B. dies And the question was if C. shall have a Formedon in remainder only or severall Formedons for this Land And it seemed to all the Justices that one Formedon lieth well for all for that that it was by one selfe same conveiance though that the Estate come by severall deaths and this Action was to be brought by the Heire of C. after the death of C. See the three and four Phil. and Mary Dyer Note that after appearance of a Jury and after that divers of them were sworn others were challenged so that it could not be taken by reason of default of Jurors But a new Distringas awarded and at the day of the returne of that these which were sworn before appeared and then were challenged But no challenge shall be allowed for that that they were sworn before if it be not of after time to the first appearance Michaelmasse 7. Jacobi 1609 In the Common Bench. Baylie against Sir Henry Clare BAYLIE against Sir Henry Clare the Writ was of two parts without saying in three parts to be divided And it seemed to Nicholls Serjeant which moved this that it was not good but error But the opinion of the Court was that it was good See 17. Ed. 3. 44. 19. Ed. 3 breife 244. 17. Assise with this difference that if there are but three parts and two are demanded there it is good without saying in three parts to be devided for when parts are demanded it is intended all the parts but one and that it is only one which remaines see the Register fol. 16. 12. Assise And it was adjudged in the Kings Bench in the case of one Jordan that demand of two parts where there are but three parts is good see 39. H. 6. Salford against Hurlston in Formedon which demanded two parts where there is but three and so of three parts where there is but four it is good without saying in three or four parts to be divided But if a man grant his part this shall be intended the halfe for Appellatio partis dimidium partis contenetur and a Writ of Covenant ought to be of two parts without saying in three parts to be divided for so is the forme and if in such case in three parts to be divided be incerted the Writ shall abate see Thelwell in his digest of Writs 146. and by Coke if a man bring Ejectione Firme for ten Acres and by evidence it appeares that he hath but the halfe Ex vigore Juris it shall not be good but he said he would submit his opinion to the Judgement of ancient Judges of the Law which have often time used the contrary Note that the Husband may avoid his Deed that he hath Sealed by the duresse of Imprisonment of his Wife or Son But not of his Servant and so Mayor and Commonalty may avoid a Deed sealed by duresse of Imprisonment of the Mayor for it is Idemptity of person between the Husband and the Wife See 21. Ed. 4. and 7. Ed. 4. A man may avoid Seâ—sin for payment of Rent by coersion of distresse but not his Deed. Michaelmasse 7. Jacobi 1609. In the Common Bench. Payn and Mutton IN an Action upon the case by Payne against Mutton the Plaintif counts that the Defendant called him Sorcerer and Inchantor And agreed by all the Justices that Action doth not lie for Sorcerer and Inchantor are those which deale with charmes or turning of Bookes as Virgill saith Carminibus Circes socios mutavit ulissis which is intended Charmes and Inchantments and Conjuration is of Con et nico that is to compell the Divell to appeare as it seemes to them against his will but which is that to which the Devill appeares voluntarily and that is a more greater offence then Sorcery or Inchantment which was adjudged that Action doth not lie for calling a man Witch and said that he bewitched his Weare that he could not take any Fishes Dodridge the Kings Serjeant saith that an Action lieth for calling a woman gouty pockye Whore and said that the Pox had eaten the bottome of her Belly out and so it was adjudged that it lieth well for these words get thee home to thy pokey Wife the Pox hath eaten off her Nose But for the Pox generally Action doth not lie But if he saiâ—h that he was laid of the Pox then Action well lieth for then it shall be intended the great Pox. Note that in Prohibition and Replevin the Defendant may have nisi prius by Proviso without default of the Defendant for he himselfe is re vera Defendant and there are two Actors that is the Plaintiff and Defendant But the Court appointed that Presidents should be searched the Plaintiff is not bound to prosecute Cum Effectu in this Court as he is in the Kings Bench And it was agreed that the manner of Pleading was agreement as for Returno Habendo in the Replevin and Pro consultatione habenda in the Prohibition Michaelmas 7. Jacobi 1609. In the Common Bench Miller and Francis MYLLER Plaintiff in Replevin against Thomas Francis the case was Richard Francis was seised of Land held in Socage and deviseth that to John his eldest Son for a hundred yeares the Remainder to Thomas his second Sonn for his life and made his four other youngest Sonns his Executors and after made a Feoffment to the sayd uses the Remainder to the sayd John his eldest Son in tayl
Secondly 〈◊〉 one fidei consonum Thirdly consentaneum rationi Fourthly Pro communi utillitate regis civium comodum aliorum ibidem confluentium But all the question was upon the remedy for it was agreed that the custome shall be good But it was doubted by Foster and Danyell that there was no good returne for it was but as recyted and it was not averred and positively said that there was such a custome and to prove that the case of 28 H. 6. was cited where in debt upon an Obligation the Defendant demands Oyer and upon the view saith that it appeares by the said Obligation that two others were joyntly bound with him not named Judgement of the Writ and 24. Ed. 4. Where it was pleaded as it appeares by the Letters Patents of one King and in 11. H. 4. in returne of a Sheriff But Coke answered and took a difference between returne upon a Writ of priviledge and upon which no Issue may be joyned nor demurrer and that it is but for an Informer of the Court and other pleads And for this it seemes to him that it is good as to that and he conceived that by the Grant of the King the custome is destroied for the King by his Grant cannot add nor diminish any thing of the custome no more then of Prescription and exceptance of Grant shall be extinguishment of one as well as of the other as it appeares by 8. H. 4 25. H. 7. 5. 38. H. 8. B. Prescription 7 R 2. But to this the Lord Coke gave no answer and for that it seemes they were no Grants but confirmation rather of customes and they further denied that the customes are confirmed by the Statute of 7. R. 2. for this is only for the confirmation of Magna Charta and of all former Statutes and of Charta de Foresta and the liliberties of the holy Church and there is not any mention of the customes of London but to this the Lord Coke answered that they ought to credit their returne and for that it seemes that it is a private Act and they ought to adjudge of that as it is made as 7. H. 6. 6. And if it be false the party greived may have an Action upon the case so it was agreed that the custome that no forrainer shall hold any shop nor sell in any shop by retayl and that they may make By-Lawes for the ordering of their ancient customes are good customes without any confirmation by Act of Parliament or Grant of the King or otherwise And if any thing happen De novo that they can apponere remedium with the restrictions aforesaid for the Lord Coke saith that London is Antiqua civitas and was of great fame and reckoning amongst the most ancient Cities for it was said by Anianus Marcellinus which wrote 1200. yeares past that London was then Opidum vetustum and Cornelius Tacitus in vita Neronis saith that then there was under the Romans Government there was here Negotiorum copia commercia maximorum celebris and he well knew for he was here seven years and married the Daughter of Agricola who was ancient Guilda Mercatoria and for that it was well governed and continued in good Order for Vbi non est ordo ibi est infirmium sempiternus Horror confusio and Gilda is a Saxon word and is the same for Fraternitas and Northfolk and diverse other places in the Country the name continued but this is another sence for Gyld fignisies to pay and for that it is sometime demanded if a man inhabite in a place gildable or within Franchise and the Place gildable is subject to scot and Lot and all other charges but the Franchises are places exempt but no person which is of a Gyld or fraternity may be exempted not by the Grant of the King nor otherwise but shall be subject to all the charges of the Gyld and Fraternity and the King cannot make any man free of their Guyld when that is created for there are but three waies to make a man free of that First by Birth which is the most eldest Secondly by Service which is of merits Thirdly By redemption which is power which only remaines in the Maior and the Court of Aldermen in this case in London and such Gyld can never have beginning but by Grant but by prescription as the custome of Gavelkinde that a man may devise his Lands or that the Land shall discend to the youngest Son and that the King cannot make any stranger free of such Gyld or Fraternity appears in Rotulo patentium 32 Ed. 3. Where the King by his Letters patents granted to one Iohn Faulchon that he should be frank and free of the City of London and that he should keep an Apothecaries shop there but the Patentee could not have his Freedome by this grant and for that the King wrote his Letters to the Maior and Aldermen and requested them to make the sayd Faulchon free of the sayd City and upon that it was done accordingly but not upon the Grant and so it was adjudged in Darcies case 44. Eliz. Trinity that if the King grant to one the sole making of Cards in England and that none shall bring any Cards into England to be sold but the patentee and it was adjudged that though none may may have Park or Warren and such other matters of Pleasure without the Kings Grant and though that playing with Cardes be but a matter of Pleasure yet the making of them is a matter of profit and the bringing of them into England is a matter of Trade and the inhibition of that is hinderance of Trade and makes a Monopoly that the Grant was voyd and 3 Ed. 3. 3. Iohn of Sudfords Case where the Case was a Free-holder levied a fold upon his Soyl and Freehold of his own and the Defendant spoyled it and broke it aed upon that the Plaintif brings a Writ of Trespass the Defendant justifies that he was Lord of the Town and there had been a usage there and had been of time out of memory c. That no man of the same Town ought to levy a fold without the agreement and leave of the Lord And for that that the Plaintif had done it the Defendant pulled it down as wel to him it was lawfull and it seems a good custome and with this agrees 5 Ed. 3. Iohn de Hayes case and 10 and 11 Eliz. Dyer 279. 10. prescription by the Maior Sherif and Citizens of York Goods forraine bought and forrain sold shall be forfeited and that he may seise them it was adjuged a good prescription but the King by his Letters Patents cannot give such power to them And Coke was cleerly of opinion that the case was not within the Statute of 9 Ed. 3. chapt 2. 25 Ed. 3. 11 27 Ed. 3. 11. And it was agreed by them all that a Merchant or any other man may sell Goods in grosse as he may sell a hundred tun of
to viewers and searchers this doth not abridge the power of the Alneger for this is but an addition of greater care and diligence and by the statute of 39. and 43. Eliz. If upon a search they find any forfeyture they shall have it but if they do not find the Alneger may find it and then the King shall have it And to the Second he answered that true it is for every 64. of clothes the Alneger ought to have foure pence for his Fee and though that some peeces of cloth are more broade then others yet the lobour of the Alneger to measure them is all one So he concluded and demanded Judgement for the plaintiff Hillary 7. Jacobi 1609. In the Common Bench. Rutlage against Clarke IN Account the Plaintiff declares that the Defendant hath received of his money by the hands of a stranger to give an account The Defendant pleades in Bar that he received to deliver over to a stranger the which he hath done accordingly without that that he received it to make any of account otherwise then in this manner and it was resolved that the Plea in Bar was good without traverse for when he received the money he is to deliver it over or to give an account of it to the Plaintiff so that he is accountable Conditionally but the traverse is repungnant to the Plea though it be otherwise or another way against the Book of 9. Ed. 4. 15 See 41. Ed. 3. 7. 1. Ed. 5. 22. H. 6. 49 21 Ed. 4. 4. 66 1. Ed. 5. 2. that it is a good Bar without traverse But Brooke in abridging the case of 21. Ed. 4. 66 in Title of account saith that it seemes that the traverse ought to be without that that he was his receiver in other manner and there and in the Book at large are that Justices that is Coke Nele and Vavasor against Bryan that it ought to be traversed But here in the principall case it was adjudged that the traverse made the Plea ill Hillary 7. Jacobi 1609. In the Common Bench. Dunmole against Glyles THE case was this Grand-Father Father and Son the Grand-Father was possessed of a Tearme for two and twenty yeares to come devised to the Son the Land for one and twenty yeares and that the Father should have it during the Mynority of the Son and makes the Son his Executor and dies the Son being within the age of one and twenty yeares the Father enters into the Land and makes a Lease for seven yeares by Indenture untill the Son came to full age the Father makes his Son his Executor and dies The Son enters by force of the devise made by the Grand-Father And the question was if the Son shall avoid the Lease made by his Father and it was agreed that he might in proofe of which a Judgement was cyted which was in the Kings Bench Mich. 5. of Eliz. Rot. 459. or 499. In the Prioresse of Ankoresse Case where a Tearme was devised to one and if he died within the Tearme then to such of the Daughters of the Devisor which then should not be preferred the Devisor dieth the Tearme was extended for the Debt of the first Devisee and then he died the extent was avoided by the Daughters not preferred and they grounded their Judgement upon the former Judgements in Weltden and Eltingtons case and Paramores and Yardleys case in the Comment and for that the Law intends that a Devisor is Inops consillij and for that his devise shall have favourable construction according to his intent appearing within the devise and it was said by Coke that in many cases a man may make such an Estate by devise that he cannot make by an Act executed in his life time as it was adjudged in Graveners case where a man devises his Lands to his Executors for payment of his Debts that there the Executors have Interest that there the Executor of Executors shal have that and such Estate cannot be executed by Act in the life of the Devisor and so it was concluded by them all that the Son shall avoid the Lease made by the Father for the Devise was Executory and doth not vest till the full age of the Son and then Executor and shall avoid all Acts made by the Father by which Judgement was given accordingly Freeman against Baspoule See 9. Coke 97. b. THE case was this A. was indebted to B. and they both died the Heire of A. for good consideration assumed to the Administrator of B. that he would pay to the said Administrator the said Debt and for the not payment of that according to the Assumption the Administrator after brought an Action and then the said Heire and the Administrator submitted themselves to the award and arbitrement of C. and became bound one to the other to stand to the award accordingly so that the said Arbitrator makes his award of all the matters and controversies between them before such a day C. the Arbitrator before the day recyted the Assumpsit and the debt as aforesaid and agreed that the Heire should pay the Administrator so much money and that published according to their submission And in Action upon the case Nullum fecit Arbitrium was pleaded and upon demurrer it was objected that the award was void First For that it was for one party only and nothing was arbitrated of the other and to prove this the Book of 7. H. 6. 6. was cited and 39. H. 6. 9. see 2 R. 3. 18. b. And this also appeares by the pleading of an award for he which pleades it that he hath performed all things which are to be performed of his part And that the other pleades performance of all thing which are to be performed of his part by which it appeares that there ought to be performance of both parts and by consequence one award to both parties according to 22. H. 6. 52. Secondly that the award was void for that that the submission was of all controversies so that the Arbitrator delivered his award of all controversies c. And there was no award of the said Suit between the parties and for that he hath not made an Arbitrement of all controversies and by that the award was void and to prove that the Bookes in 4 Eliz. Dyer 216. Pumfreies award and 19. Eliz. Dyer 356. 39. and 39. H. 6. 9. Where it is said that if the submission were of all things and the Arbitrement of one only that is a void Arbitrement Thirdly For that it was not limited within the award at what day nor at what place the money should be paid by the Heire to the Administrator and for this cause also it shall be void for it ought to be payd immediatly and if the Heire cannot find the Administrator he forthwith hath forfeyted his Obligation and for that in this point it is uncertain and for that shall be void as it is in Samons case 5. Coke 77. b. Where
have Elegit and for that being in Prison he prayed execution of his Body and had it but if the party gets out that he hath no execution that it is not his default he shall have Elegit after for that that he cannot have his purpose according to his first election And if any be in this case then upon that he inferrred that the party in this case may have a Fieri Facias against the Executors And also it is resolved by the whole Court in the Common Bench 29 H. 8. B. Execution 132. That if two are bound in an Obligation conjunctim devisim the Obligee impleads one and hath execution of his body and after impleads the other and condemns him hee may have Execution against him also for the taking of the body is good execution but it is no satisfaction and therefore he may take the other also but if he have satisfied the Plaintiffe he shall not have execution afterwards And therefore this Order that the Plaintiff upon an Obligation shall have but one Execution is intended such an Execution which is a satisfaction See 33 H. 6. 48. b. 4 H. 7. 8. 4 Edw. 4. 38. 5 Edw. 4. 4. 5 Coke 92. Blumfields case resolved by all the Court that if the Defendant in debt dye in Execution that the Defendant shall have new execution by Elegit or Fieri Facias for the death of the Defendant is the act of God which shall not turn the Plaintiff to prejudice as it is said in Trewynyards case 38 H. 8. Dyer 60. The Plaintiff shall not be prejudiced of his Execution by act in Law which makes no wrong to any And to the first Objection which may be made against him that is That all processe are determined after the party is taken and in execution to that he answered that this is where the Plaintiff hath satisfactory execution as it appears by 41 Edw. 3. 13. where an action of Account was brought against two one was out-lawed and the other comes by the Exigent and enters in the Court and he which was out-lawed obtained his charter of pardon and for that that processe was determined against him And the Plaintiff hath chosen to have his action against the other he prayed that he may be discharged But it was resolved that the processe was not determined nor he which was out-lawed shall not be discharged till the Plaintiff be satisfied by which it appears that the process is not determined till execution with satisfaction Two other Objections also he endeavoured to answer that is that the Plaintiff hath determined his election by taking the Capias and that cannot resort to any other Process and to that he agreed that where the party hath made such election that he cannot resort to any other Process during the life of the party But if the satisfaction be prevented by the act of God as in the principall case But when his person which was the pledg for the debt and was to remain in prison till the debt be satisfied is discharged by the act of God and the Plaintiff hath not the fruit of his Suit nor the Judgement is not satisfied and the Plaintiff hath done all that hee can and there was no defect in him it is no reason but that he may have new processe and the third objection is a Judgment which was given in the Kings Bench Pasche 43. Eliz. Rot. 58. between Williams and Curtiz And to that he said that he he conceived that this was a rule for default of prosecution for the cause was referred to Arbitrement and so hanged for long time and so though the Judgment was directly against Law in the principall points yet for that that it was not upon solemn argument of the Judges hee saith it is not to be compared to other authorities by him cyted before for which he includes and prayed Judgment for the Plaintiff Hutton Serjeant that argued for the Defendants conceived the contrary and first he examined how the body of a man cometh subject and lyable to any Execution and to that he said that by the Common Law the body was not subject to Execution for the debt of any man but in accompt only a Capias ad computandum lyes and no other processe in this action but distresse infinite till the Statute of Marlbridge Chap. 23. and West 2. Chap. 11. Capias was given in Accompt for by the Common Law the Processe in that was Distresse Infinite as aforesaid and after by the Statute of 25 Edw. 3. Chapter 17. Such like Processe was given in debt as in accompt and before that the body of the Defendant was not lyable to execution for debt if it be not in the Kings case as it appeares by Sir William Harberts case 12. a. And upon this he inferred upon the words of the Statute of 25 Ed. 3. Chap. 17. which saith that such like Processe shal be in debt as were in accompt That after the Plaintiff hath determined his election and taken a Capias that then he is in the same case as if it had been in accompt and for that he cannot resort to any other Processe And he said that the words of the Elegit and Fieri Facias do not differ in substance from the words of Capias for there is to satisfie the party as well as in the other And when a man hath made his Election to have Elegit he shall not have other Execution But when the Defendant hath neither goods nor Lands Then qui non habet in are licet in Corpore and the Plaintiffe at the first when he hath Judgment hath election to have Fieri Facias Elegit or Capias then he cannot have fieri facias but if he determine his Election at the first and sue Elegit or Capias then he cannot have fieri facias but may first sue fieri facias and after Elegit or Capias as it appears by the 15 H. 7. 15. 14 H. 7. 28. and 7 H. 6. 7. But if it be upon Statute staple Then he may have execution for his Body Goods and Land together as it appears by 31 H. 6. 47. Lynnacres Case is put in Blunfields case 5 Coke 92. b. and 15 H. 7. 15. But the reason of this is that a speciall Execution by statute is given in this case And he agreed that where a Judgement is given against 2 or 3. and the Plaentiff sue Capias against one of them by that he hath determined his Election So that if he dye in Prison or otherwise he may sue another Capias against the others but he cannot sue fieri facias or Elegit as it appears by 33 H. 6. 47. before and Blunfields case 5 Coke 92. b. 4 H. 7. 8. And he said that the body is the principall and becomes chargeable by statute and it appears by 22 Assis 43. That when the party is in Prison that this is adjudged in Law an Execution for the party and further in the
Booke of 33 H. 6. 47. is but the opinion of Prisot and Lacon And the principall case there depends upon another point Fitz. 246. before cyted is but a quere and Eitz himself doubted of it and the book of 44 Edw. 3. Fitz. Execution 41. is but the opinion of Percye But the Judgment upon the principall point is otherwise And the principall case in Blunfields case 5 Coke was upon another point also as it appears by the Booke and so he concluded with the Judgment before cyted to be in the Kings Bench Pasche 43 Eliz. between Williams and Cuttris which was direct in the point according to his opinion and prayed Judgement for the Defendants in the Scire Facias and it is adjourned This Case was argued in Trinity Tearm next ensuing by all the Judges of the Common Pleas and first Foster the youngest Judg argned that the death of the Defendant in Prison being in Execution was no satisfaction but the Plaintiffe may have a new execution against his Executors for he said it was an old saying That debts went before deadly sinne And that every one ought to satisfie his debts by the Law of God before Legacies given to charitable uses And so by the Law of the Realm if it be not the default of the Plaintiffe as it was not in our Cause for the death of the Defendant in Prison was the act of God and the Executors have confessed by pleading that they have assets and the Plaintiff hath nothing but griefe and pain and he said as before that at the Common Law no Capias lay till the Statutes of Marlebridge Chap. 23. and Westminster the 2. Chap. 11. Capias was given in Accompt and then the statute of 25 Edw. 3. Chap. 17. gives such like Processe in debt which was in Accompt and then in Accompt Capias ad Computandum lyes and in debt Capias ad Satisfaciendum And if in Accompt the Defendant was adjudged to accompt and Capias ad Computandum be awarded and he taken by force of that and committed to Prison and here dyes a new Writ shall be awarded So in debt if the Defendant be taken by Capias ad satisfaciendum new Writ shall be awarded against his Executors see 1 Edw. 3. 24. 1 H. 7. 5 Coke 92. Blundfields case for it is only the default of the Defendant that the debt is not satisfied and for that it is no reason that the Plaintiff should be prejudiced by that and 11 H. 4. 44. and 45. by Skreene Debt upon an Escape doth not lye against the Executor of the Sheriff but new Processe shall be awarded against the Prisoner which is escaped for a man shall not take advantage of his own wrong as in the case of Littleton If the sonn makes disseisin and enfeoffs the Father which dyes the sonne shall not take advantage of this Discent because he was particeps criminis and he said it was no wrong to any if execution were made of the goods of the Testator and it is mischievous to the Plaintiffe for he shall loose his debt And to the Objections which have been made that there is an end of Processe when the Defendant is taken by Capias and dyes in Execution the which he agreed as long as the Defendant lived but after his death he may make new election 47 Ed. 3. Fitz. Execution 41. by Percye And it appears by the pleading in 17 Ed. 3. That Judgment Execution without satisfaction is no Plea in Bar. And also he cyted the Register 285. and Fitz. Na. Bre. 246. 19. Ed. 3. 21 H. 6. 5. where the Plaintiff had effectual execution which was satisfaction 44 Ed. 3. 21 Edw. 4. 1 Edw. 4. 8 H. 7. 16 H. 7. to the same purpose for which Dodridge cyted them before And also he said that the Judges have always had respect to the satisfaction of Debts and for that would not bayle one in Execution upon a Writ of Errour where Errour indeed was assigned but suffers him to remain in Prison till the Judgment were reversed But here the Plaintiff hath neither Bale nor any satisfaction but griefe and pain And in the 21 of H. 7. the Sheriff returned that the Defendant had no land but lands in use and was adjudged that he should execute the Elegit upon these Lands such was the respect that the Judges have to Executions and to the Case of 35 H. 6. 47. This is but the opinion of Lacon which erred in the principall case and may as wel erre in this point and his opinion also is so intricately penned that he cannot understand it And Martins opinion also in 7 H. 6. 7. is against the Judgment of the principall case And to the Objection that the Party had determined his Election by the Execution of the Capias he agreed to that with this difference that is if the Plaintiff sue Scire facias the Sheriff levyed part that this notwithstanding the Plaintiff may have Capias for the residue and so Elegit after Fieri facias or Capias for there is not any Entry made of awarding of fieri facias or Elegit But the Plaintiff only sued that out of the Court see 44 Edw. 3. 18 Ed. 4. 31 Ed. 3. 17 Ed. 3. 20 Ed. 2. 22 Assis 17. H. 7. 1. And so he coucluded that the Judgment shall be given for the Plaintiff in the scire facias Warburton Justice conceived the contrary that is that the Plaintiff in the Scire facias shall be barred And he agreed and said that none will deny but that Debts shall be paid but that ought to be according to the rules of the Law For by the Common Law the body of the Defendant was not lyable to execution and then it is to examine in what cases he is at this day subject to execution and though in Trespasse Capias lyes at the Common Law but in Debt no Capias lyes till the Statute of 25 Edw. 3. which gives the same processe which was in Accompt and this is as well in the Originall processe as in the Judiciall and Elegit was first given by the statute of Westminst 2. And this was of the half of the Land But Levari facias was at the Common Law of the profits of the Land That in debt Acceptance and Election binds the party and so this remains for the said Statutes being in the affirmative doth not take away that nor abate it and by that if Conusee of a statute accepts Land extended at too high a value he is bound by that 22 Edw. 3. 32. H. 6. 15 H. 7. And that when the Party hath Judgment he hath election to have execution by Fieri facias Elegit or Capias for he hath determined his Election So if he makes his Election of a Capias at first he cannot have Elegit after 30 Edw. 3. adjudged 32 Edw. 3. Processe 52. according Long 5 of Edw. 4. by Markeham and others and the reason which is given in
22 Assise 24. 48 Ed. 3. 8. Register 47. And in case that one common person hath any Office which he cannot exercise by a Deputy yet if he be imployed in the Kings service as if he be made Ambassador out of the Realm or other such imployment he may during his absence make a Deputy and this shal not be forfeiture of his Office and an Earl in ancient time was not only a Councellour of the King but by his Degree was Prefectus sive prepositus commitatus as it appears by Cambden 106 107. Comes prefectus Satrapas which is Prepositus comitatus and was in place of the Sherif at this day and when that he was Sherif though that he had the custody of the county committed unto him which was a great trust yet then by the Common Law he might make an under Sherif which was but a Deputy the like Holinsheads Chronicle 463. Amongst the customes of the Exchequer he called the under Sheriff Senescallus which agreed with the Definition before for he held the place of Sherif himself and by the statute of Westminster 8. chapt 39. It is sayd that Vice comes est viccarius commitatus and if a Barony discend upon the Sheriff yet he shall continue Sheriff 13. Eliz Dyer and Britton 43. If a Rybaud strike a Baron or a Knight he shall loose his Land And Tenant by Knights service may execute it by Deputy 7. Ed. 3. Littleton And if it be so in the case of a Sheriff which hath the County committed to him that he may make a Deputy by the Common Law upon that he inferred that the Steward which hath but the Mannors of the King committed to him that he may make a Deputy And also he said that the words in the last clause that is Volentes precipentes that the Officers and the Subjects should be attendant expoundes and declares the intent of the Queen for the words are Omnibus premisses and the Grant of the Office of the Stewardship is one of the premisses and so he concluded upon these reasons that Judgement shall be given for the Plaintiff and that the Grant was good and the Action wel maintainable And oâ— this opinion were Warburton and Foster Justices And Judgement was given accordingly this Trinity Tearm 8. Jacobi And Coke cheife Justice remembred a Report made by him and Popham cheife Justice of England upon reference made to them that this Patent was good and that the Earle of Rutland might exercise this Office by Deputation and he conceived that there were other words in the Patent which were found by the Jury that the said Earle should have the said Office Cum omnibus Juribus Jurisdictionibus c. as full c. as any other Patent hath been had and withall the Appurtenances and it seemed that a former Patentee had power by expresse words to execute that by a Deputy and he conceived though these words Adeo plene c do not inlarge the Estate yet this inlargeth the Jurisdiction of the Officer as in 43. Ed. 3. 22. Grant is made by the King of a Mannor to which an advowson is appendant Adeo plene tam amplis modo forma c. And these words past the advowson without naming that and he said it was adjudged Hillary 40. Eliz. in Ameridithes case where the case was the Queen granted a Mannor Adeo plene intigre in tam amplis modo forma as the Countesse of Shrewshury or any other had the same Manno r and Queen Kathrin had the same Mannor and diverse liberties with it of great value during her life and adjudged that these liberties should passe also by this Patent by these words and so in the principall case if the former Patent had been found also by the Jury and so was the opinion of Popham and him and was certified accordingly FINIS A Table of the Second Part. ARch-Bishops Jurisdiction 1 2. 28. Admiralties Jurisdiction 10 11. 13 16 17. 26. 29. 31. 37. Arbitrement satisfaction what 31. 131. Assumpsit 40 41. 273. Arrianisme one committed for it 41. Assets 47. Almony 36. Apurtenant what shall be said 53 Action sur Case by a Commoner for words 55. 84. 100. 119. 122. Avowry the whole plea 62 63. 102 Agreement what 72 Account 76 Audita Querela 81. 83. 168 Atturnment good by one under age where and why 84 Award void 100 Age not allowed in Dower 118 Administration repealable 119 Accord with satisfaction good plea where where not 131 Attorney ought to finde Baile in an Originall not Bill 134 Action sur Assumpsit 137 Assuâ—psit against an Executor where maintainable 138 Assets in Formedon what 138 Attachment 144. 168 Assent to a Legatee 173 Ayd prayer 191 Attachment for contempt of the Court 216 Accessary null unlesse there is Principall 220 Assignment of an estate suspended 225 Assise of novel Disseisin 229 Abatment of brief per entry 231 232 Abatement de facto and by plea differ in what 235 Agreement and Arbitrement good pleas where 132 Agreement by word to keepe backe tythes 17 Admiralls Commission for measuring of Corne 29 Administration during minority of c. 83 Atturney brings Debt for Trees 99. Arbitrement 130. 131. Arrest of Judgment 167. Acts what to make an Executor de seu tort 184. Attachment of Priviledge for an Estate against the Marshall c. 266. Assise where it may lye sans view 268. Assise the Recognitors challenged ibid Ajournment of the Tearm 278. Annuity or Writ of Covenant where 273. Arbitrement submission and revocation 290. Approvement of Common 297. Account 308. Award submission 309. Arbitrement 310 Arbitrement who it binds 323. Assise del Office 328. B BIshop not displaceable 7. Baron alone cannot sue for not setting forth Tithes without the feme proprietory 9 Ballast granted to Trinity House a Monopoly 13. Baron and Feme joyn where 66. Baron Judgment against an Executor 83 Baron how chargeable pur sa feme 92. 93. 95. Bar in trespass 121. By-Laws whom they bind 180. To what extended 258. Baron and feme take by intirity where 226. Barwick whether part of England or Scotland 270. Bayle 293 Banckrupt actionable 299. C CHase an action not to be divided 56 Cui in vita of Copy-hold 79. Custome for pound breach 90. Common Recovery 16. Copiholder shall hold charged where 208. Confirmation to a copiholder destroys common 209 210. Consultation after it no Prohibition grantable upon the same Libell 247. Cape grand Petit 253 Cause of a commitment traversable 266. Count in trespass after the teste del Breife 273. Covenant to pay Rent 273 Continuance Ibidem Chellenge 275 Customes of London argued by the Justices 284. 285. 286. Certiorari 312. Capias ad satisfaciendum no satisfactory execution 312. 313. 314. 315. 316. Copy-hold at common Law 44. Creditor may sue both heireand Executor 97. Court of Equity not proper after Judgment 97. Copyhold intayled 121. Covenants direct and collaterall how they differ 136.
Condition repugnant voyd 138. Condition in rei in persona diff 139. Covenant where it lyeth 160 Covenant express and implyed or in Law how they differ 162. Copihold customes 197. Covenant P. Administrator 207. Covenant joynt surviveth ibidem 208. Church-Wardens not interessed in church Goods 210 Consultation awarded 216. Challenge for favour 229. Challenge to the Array for action against the Sheriff 230 Consultation awarded 26 Citation for defamation 28. Charter part beyond sea where to be sued 34. Citation out of the Deocess 34 Consultation granted 26. Clerk of a Parish who shall nominate him 38. Covenant destroyed 56. Common Recovery 75. Custome 76. Incertain voyd 85 Voyd for inconveniency 86 Copyhold what Authority 77 Its nature and reason 79 It is within the statutes which speaketh of Lands and Temements 79. 80 It s severall customes 86 87 Consuetudo sola quia non totaliter disallowed 86 Customes unreasonable voyd 87 Commission to the councell in Wales 119 Caveat to a Bishop 119 Coram non Judice where 127 Commoner cannot have an Action of Trespass 147 Chase in possibility not grantable 173 Cinque Ports the custome of taking the Body of a man in Withernam not good 195 196 197 Common of a Copy-holder destroyed by confirmation 211 Corrody granted 211 Common Law where voyd 38 Clam delinquens c. 288 Covenant express doth qualifie covenant in Law where 212 213 Covenant in Law not binding Executors where 214 Copihold custome 12 15 Custome ought to be reasonable 217. Custome in the Isle of Man 217 Custome of London 218 Custome of Hallifax 218 Copyhold custome for a married-wife a Devise to her Husband 218 Court Baron cannot inquire of Felonies 219 Condition entire not to be apportioned 227 Challenge principal what is what is not 240 Cestercians their Priviledge 20 Contra formam collationis to who given 22 Contract made in the straites of Malico 30 Custome for thithing 30 Cpoihold anciently villinage 44 Corporation cannot be limited to a county 244 Certificate of a Bishop 301 Charta de foresta 325 D DEfamation Sint ex officio 28 Debt Sur Judgement 39 Debt Sur Award 48 Sur Judgement 39 40 Damages in dower 41 Devise of lands how taken 74 That executors shall sell c. 100 Devastavit where 81 83 Damages uncertain therefore a fine certain for them voyd 86 Debt Sur bill P. memorand 97 Debt Pur fees P. attorney 99 Devise of lands in cap. and the stat of 32 and 34 H. 8 expounded 105 106 107 Deed without date 107 Dower 118 execution in it 141 Debt against an Administrator 118 Dower ass by the Sheriff without jurors good 141 Damnum five injuria 148 Debt against an administrator 153 Debt sur oblig pur Pf. cove 167 176 177 Debt 177 178 pur penalty of a by-law 179 Demurrer sur evidence 183 Ddvastavit 185 Debet detinet for Rent against an administrator 202 203 Damages found intire where it is error 272 Defendant entred after the habere fac poss executed 216 Dower recompence what 132 Delapidation suit for it 27 Dreprivation for drunkenesse 37 Debt P. executor 283 against executors 183 Demurrer in ejectione firme 128 Discontinuance 142 Dower of tyth wooll 143 Devise of a lease 172 Devise to a corporation 246 Debt against an administrator during minolity 248 Debt against executors 274 Duress where 276 Distress a quasi action 289 Devise enures to bargain and sale where 291 Devise of a Tearm 308 E Ejectione firme 40 Shall not abate if the Tearm end 131 Estrepment 401 68 Election by an Executor 51 Executor refuseth when too late 58 when good ibid Ejectione firme 74 102 103 Accord with satisfaction good 130 131 Elegit 97 sur testatum 208 Extent sur stat 122 Executrix during nonage 144 Ejectione firme 168 172 168 223 Election by an executor of a legacy 173 Executor de seu tort who 184 Executor de seu tort 184 185 Executors two joyntly sued one confesse the action good 286 Elegit sur testatum where it is necessary 207 Ejectione firme Judgement in it 216 Estoppell 219 Escheate 220 Election implicit 220 221 Error sur judgement in assise 230 Entry to abate an assise what what not 235 236 Ejectione firme and a good bar where 133 Executor sued and also the heire 67 Executrix during nonage 144 Expresse covenant qualifies covenantin law 212 213 Exposition of usage 222 Estate increasing sur condition when it ought to vest or not at all 251 Error in ve fa. and hab corp 274 Essoyn day is a day in term 279 Entire services casuall 293 295 Error in prolcamation 300 Error in writ of dower 300 Common of Estovers 329 F FOrm edon lieth for copy-hold lands intayted 43 44 Forgery by Scrivener who lost his eares for it 50 Franchise the lord shal answer for his baily 50 Feme covert what she may do sans Boron 71. how punishable 9495 Fealty seisin of ser au 99 Fine amended where 101 Feoffment to a son for valuable consideration 102 Forstaller regrator and ingrosser who 109 False imprisonment 124 Feme covert how she is bound by joyning with her husb 140 141 142 Fine where it binds 154 155 Fradulent conveyances within the stat 13 Eliz. 188 Fraude what by the statute 27 Eliz 190 Fyling a writ not materiall where 216 Formedon in remainder 274 Frank almoigne gift to the Templers 21 Formedon in discender 79 Fyne and ransome 113 False imprisonment action for it 255 Fyne error in it 270 Fyne by deb potest of an infant 271 Freedome of London how many ways obtained 286 287 Forfeiture of office of the Chirographer 300 G GRants how construed 193 Grant of common extinct 222 Grantee of a reversion of what conditions he may take advantage of by the common law of what by statute 32 H. 8. 228 Generall pardon 37 Gravi queâ—ela 72 Grant le roy when not good 252 Grant le roy incorporate a burough 292 Grant of a reversion 299 Grant del roy of alnage 301 302 303 304 Grant del portership 330 Grant Pro concilio impendendo 336 Grant P. Letters Patents 333 H HAb corp granted to a brâ—wnist counted 3 Heretick his censure 4 High commissioners their jurisdiction 4 5 14 15 16 18 19 Harriot unreasonable 89 Hab. fac poss the Shereffs officers poss the plaintiff refuseth 168 Harriot service 187 Habere fa. possessionem in ejectione firme 216 Hab. corpus and prohibition to the high commissioners 18 Hospitall of St. John of Hierusalem 21 Hab. corpus granted 36 Husband and wife where they shall joyn 66 67 Hab. corpus and prohibition 271 Harriot an entire service 294 ISsue imperfect 47 Justification for calling one perjured 49 Judgment in Debt 76 preferred before a statute c. 81 Innuendo shall not help the Action 84 Jus accrescendi where it holds not 99 Information sur le statute 5 Ed. 6. Chapt. 14 108 109 110 Jurors non concluded by Pleas of the parties 150 Information for
which was Obligamus nos vel quemlibet nostrum adjudged to be joint and severall at the Plaintiffs Election Action of Debt upon an Obligation to perform an award and the breach assigned for exhibiting a chancery Bill and adiudged no Breach Action of Debt for Tithes the Defendants time ended before the Coâ—n carried yet held good for the Plaintiff An Action will lie against a stranger that shall carry away the Corn before the Severance Dower may be brought against the Heir or Committee of the Ward Nota. He in Reversion received after Default made by Tenant for Life Return of the Sheriff adjudged insufficient being too general No Writ of Error lies untill the value be inquired upon Implication not good in a Surrender though it be in a Will Challenge because the Sheriff married the Daughter of the Lessors Wife and held no cause Nota. How to execute a Lease to try a Title the Land being in many mens hands Originall against four and count against 3. without a Simulcum and held naught The intent of a will must be certain and agreeable to Law Nota. How to execute a Lease by Letter of Atturney A Venire facias of the Parish adjudged good A mistake of the Cursitor in the Originall amended after Triall Nota. Though the Defendants Plea be naught yet the Plaintiff shall not recover because he shewed not any Title by his replication The question is upon the Statute of 32 H. 8 upon Feoffements made by Husbands during the coverture A verbal averment shall not overthrow a will The mistaking of the Town not hurtfull in a Will Property of Goods cannot be in obayance Difference between Prescription and Custome Copihold Land cannot be demised for three years without license or custome Record of Nisi prius amended by the Roll. Concord with satisfaction a good Plea in Eiectment Misconveyance of process what it is and helped by the Statute A feme covert cannot make a Letter of Atturney to deliver a Lease upon the Land When a demand shall be made to the person and when upon the Land A Lease made to three for their lives with a Covenant that the Land should remaine to the survivor of them for ninety yeares a good interest in the survivor A precise Verdict makes the Declaration good which otherwise is naught A demand of Rent to avoid a Lease upon a condition ought to be in the most open place After an Imparlance cannot plead in abatement 22 H. 6. 6. Foxlies Case 5 Rep. 111. The day of a Copihold of Court roll traversed and adjudged naught Houses in London passe by the delivery of a bargain and sale without inrolment An Ejectment will not lye de aquae cursu A Servant is a sufficient Ejector if he dwell with the pretended owner He that is a Purchaser of Copihold hath nothing in it nor can he surrender to another before admittance How an Abatement shall be traversed 1 E. 4. acr 1 E. 4. 9. acr The Bill amended after a Writ of Error brought and before the Record was removed Where the Prenomen destroyesthe quantity inthe declation Where words in a Declaration shall be voyd rather then the Declaration shal be voyd Nonage shall be tryed where it is alleadged and not where the Landlyes Essoin lies in a writ brought by Journes account although he was essoined upon the first Writ By Deed an implicationbe intended Nota. By the Name of a Mannour the Land in all the Villiages will pass Nota. Action brought by the Servant in his own name part of the Goods being his Masters Nota. Nota. The Record of Nisi prius amended upon motion The Process in Partition Error in Partition upon the first Judgement Defendant pleads he had brought a Writ for the same land and adjudged no plea. Process in a Quare Impedit Exception taken to the Venire and over-ruled Severall Quare impedits may be brought against severall men Admittance of a Resignation by fraud takes not away the Kings Title The state is determined by the death of Tenant in Tail A presentment by words good Nota. A subsequent debt to the Qu. related to award an assurance made upon good consideration The King hath lost his presentation by the Clerks death Defendant pleads another writ depending against the said Bishop good The Bishopsplea shall not prejudice the Incumbent Nota. Liberty to make Leases A devise for years in confidence the condition must goe to the estate and not to the use The scisin of rent reserved upon a Feosment within the time of limitation not to be traversed Nota. The beast of a stranger shall not be distreined for rent except they have been upon the land some time Demand not necessary in a Replevin for rent Nota. Exctâ—tion to the advowry too late after judgment entred Replevin not within the statute of 3. Iac. Iudgment arrested for that the plea was naught Nota. Nota. The Plea naught for want of amendment Amends made to the Bailiff not good If one inclose part it is an Extinguishment of Common for cause of vicinage Avowry amended after Entry by consent One of the Juroâ—s names mistaken in the Pannell of the Return and amended upon the Sheriffes Oath that he was the same man If two men distrain one Mare and both have Judgement no Return Court Baron in order to the Mannor Nota. Nota. A lease for life to three to hold successively naught The pannell of the Habeas Corpus amended upon Oath Nota. Atturnment not necessary for a Copy-holder Demand necessary for a Nomine pene Common Appurtenant and purchase part the Common is gone but not if Appendant Nota. Nota. Demand of Rent service upon the Land sufficient Nota. A Commoner may take the cattell of the Lord damage fesant Judgment arrested for not shewing in what place the Messuage did lye to which the Common did belong Common when the field and acres unsown the sowing of parcell shal not debar him of his common in the residue When a Deed is perfected and delivered as a Deed one agreement after pleaded in defeasance thereof and when the agreement is parcell of the Original contract it may be pleaded The Defendant in his Demurrer â—nswers not the whole Declaration and Judgement reversed The mistake of the day of an Act by way of Bar not prejudiciall A confession after an issue joyned refused A Constable cannot detaine one but for Felony Marshalsey hath no authority to hold plea in debt except both are of the Houshold Judgment before a wrong Officer erroneous The Court could not mitigate damages in trespass which was locall The Defendant justifies the imprisonment by the command of the Maior of London and naught Just of Peace cannot command his servant to arrest in his absence without warrant in writing If a servant be beaten dye the Mr. shall not have an action for the losse of his service Declaration shall not abate for false Latin A man cannot prescribe to be a Justice of the Peace If
a Book that ought not be given in evidence the Court above cannot remedie it except it be returned with the Postea A release to Tenant at sufferance void Commoner cannot chase the Lords Cattell if the surcharge be Common The Statute of 13 Eliz. for non-residence a generall law Where Husband and Wife shall be joyned and where severed in Action The Venire facias vicious no damages in Partition If the Jury find a man guilty in Trespass for a foot where it is layd in an Acre good enough and so in all Actions where damages onely are to be recovered Nota. Error assigned because in trespass nothing was entred of the Fine c. where it was a continued trespass and part of it was layd to be after the Pardon Nota. Nota. If the verdict find the tenure in substance though not in manner and form it is good intrespasse Difference between Replevin and Trespass In a writ to enquire of damages the Plaintif is not bound to prove the property of goods but the value only Where of his own wrong without such cause shall be a good issue and where not The Defendant prescribed for a passage over Land and naught it should have been for a way Nota. If the Lord cut the Wood in which the Commoner hath Estovers he shall have an Action of the Case but not an Assise Nota. Nota. Nota. An action will not lie for the counter-part of an Indenture without a speciall grant Nota. A man cannot Justifie the digging of a mans ground in hunting a Badger Nota. Nota. One Venu out of two places in the same County Whether a Copyholder may lop the trees growing upon his Copy-hold and held he might The Copy-holder is in by custome which is above the Lords estate The Copy-holder shall have trespas upon the Case against the Lord for cutting down of trees Nota. Nota. Nota. Nota. Nota. Nota. Waste in the Tenuit for digging of Sea coals Custodes Brev. Capital Prothon Sedi ' Prothon Try ' Prothon Cliri ' Warr. Cliri argenti Regi Cliri Error Cic. lib. 1. de Invent. Rhet. Prohibition upon the statute of 23. H. 8. Chap. 9. Prohibition to the High Commissioners High Commission Prohibition Joynt prohibitions and severall Counts Prohibition upon the statute of Symony upon the stat of 31. Eliz. Prohibition upon the Statute of 32 H. 8. for the dissolution of the Hospitall of Saint Johns of Jerusalem For not setting forth Tythes Husband sue only Prohibition to the Cort of Requests Against Forreiner for Ornaments for the Church and for Sextons wages Admiralty Contract for retaining of Tithes Admiralty Prohibition At the Archess discussed in right of Office Prohibition Admiralty for staying ships for Ballast High Commissioners and their power in Ministring Oâ—th and taking obligation High Commission Clandestine marriage Admiralty Coâ—rt if a thing done beyond Sea shall be there tried Agreement by word â—…p back tithes Where a Prohibition shall be granted without Action hanging High Commissioners Alimony Adultery Houghton Shirley Barker Court of Admiralty's Jurisdiction Admiralty Prohibition Modus decimandi Prohibition to a Court Baron Replevin 2. Executors one refuses Waste 2. Executors one refuses Bargaine and sale upon Condâ—… Ravishment of Ward Mich. 〈◊〉 Jacobi Rot. 213. Common of Pasture Trespasse Ejectione firmae Common Recovery Judgement in Debt Accompt See the beginning fol. Debt by Executor Administrators during the minority of the Executor Action upon the Case for words Replevin Attornement of Tenant being under age of 21. yeares Shirley Harris Harris Montague Hutton Surrender after Statute acknowledged Executors sued and also the Heire Court of Equity Debt upon a Bill Harris Shirley Fealty gives Seisin of all annuall Services Atturney brings Action of Debt for Fees Survivor doth not hold amongst Merchants to have all Award void Action upon the Case for words Devise that Executors shall sell Land A Towne incorporated with the consent of the greater part Action on the Case for slander Action upon the Case for suing one in a Court which hath no Jurisdiction Prescription for Common for Beasts without number Priviledge out of higher Court Fine amended Feoffinent to a Son and Heir for a valuable consideration Avowry Teste of a Venire facias amended after verdict Ejectione firme Ejectione firme Dodridge Houghton Replevin Grant without date Obligation Accompt Information Dodridge Hanghton Montague Dodridge Dower Debt against Administrator Commission to the Councell in Wales Caveat to a Bishop If administraon to the next of blood cannot be repealed Action for words Trespasse for breaking a House and taking a Cow Haughton Barker Barr not good Copy-hold intailed Extent upon a Statute Summons in Dower Patent of a Judge of the Common bench Action upon the case for slander Haughton Barker Periured Actionable Trespasse for imprisonment Dodridge Hutton Coram non judice Judgement void Shirley Wynch Foster Arbitrement Lease by the Dean and Chapter of Norwich Hutton Haughton Office granted by a Bishop Assumpsit Wilt of Right Haughton Nicholls Dower of titâ—e of Wooll Attachment Executrix during nonage Nicholls Harris Copy-holder Harris Dodridge Coke Replevin Waste Informer Lybell Debt against Administrator Copy-hold Coke Revocation of Uses Dodridge Nicholls Dodridge Nichols Wynch Warburton Coke Common Recovery Obligation to perferme Covenants Arrest of Judgment Audita querela Wast Estrepement awarded Ejectione firme Refusall Lord of a Mannor inclose the Demesnes adjoyning to the Common Warrantia Charte Dodridge Nicholls Devise of a Lease Dodridge Harris Assent to a Legatee Remainder of a Chattell Sherley Debt by Obligation Request is necessary for his Rent though that he have a bond for performing Covenants Nichols Debt Wynch Warburton Debt against Executors Davis What acts doe make an Executor De son tort what not Barker Warburton Wynch Trespasse Harriot Nicholls Harris Coke 253 Eliz. Dyer 193. a. Wrensfords case accordingly Warberton Wynch Release Cinque Ports Tenant for life with warranty Nicholls Haughton Wynch Warburton Ayd granted Coke Wynch Verdict uncertaine Falkland What is so called Warburton Coke Quod non occupantur conceditur Debt against Administrator for Rent in the Debet and Detinet Chibborne Detinet onely 2. Heire charged in Debet and Detinet 3. Towse Crook and Harris Joynt Covenant shall survive Copy-holder shall hold charge Error Elegit Testatum where no Writ had issued Confirmation to a Copy-holder destroys Common Expresse Covenant qualifies Covenant in Law Prohibition Defendant re-enters after Possession delivered by Habere facias possessionem Custome among Copy-holders Nonsuit after Verdict Reservation of Rent Michaelmasse or ten dayes after Grant of Common extinct Exposition of Usage Ejectione firme Errour Abatement of a Writ by entry Markhams Grant Earle of Rutlands Patent Challenge Earl of Rutlands Patent Challenge Abatement Errour Variance Seisin Abridgment of the Plaint in Assise Yelverton Fenner Challenge prin Flemming What matter shall be assigned for Error after Judgement Variante Challenge Seisin Misnaming of a Corporation Walter Yelverton Fenner Flemming Prohibition Prohibition A married Wife cannot make a Letter of Attorney Replevin Warburton Justice Walmesley Re-entry after possession executed Slander of Attorney Grand Cape Petit Cape Waging Law Release Inn-Keeper in London Action of false Imprisonment Serieant Harris the younger Walter Walmesley Coke Priviledge Assise View Coke Walmesley Challenge Errour in a Fine Barwick Returne of Writs Idemptitas nominis Fine Infant Tayle Maintenance Habeas Corpus Prohibition Trespasse for Slander Party Jury of two Counties Action upon the Case for Slander Errour Covenant for Rent Continuance Assumpsit Consideration Debt against Executors Errour Ve. fa. hab Carpus Formedon in Remainder Challenge Partition Dures Action upon the case for slander Prohibition Will. Devise Priviledge Postea 218. Adjournment of Tearm Infant levies Fine brings Errour Action upon the Case Action upon the Case Debt for Obligation Hutton Dodridge Court Sheriff committed to the Fleet. Grant of a Rent Priviledge of London Harris Hutton Where the Owner of Wood may Inclose Hutton Arbitrement Submissior Revocation Devise and grant â—enures to bargaine and Sale Harris Lease to determine upon Limitation Grant of the King that the Burrough should be incorporated Bayle Suit begun hanging another Writ Casuall intire Services Harris Nicholls Foster Dauiell Warburton Walmesley Coke Trade with Infidels without License Prohibition to the Court of Requests Approvement of Common Walmesley Foster Action upon the Case for Slander Bankrupt actionable Grant of Reversion Error in Proclamation Forfeiture of Office of a Chiroghapher Release Error in a Writ of Dower Copy-hold Certificate of the Bishop Minister Arrested Grant of the King of Alnage Haughton Dodridges Statutes how to be understood c. Account Devise of a Teerme Award Submission Arbitrement Where the death of the Defendant in Execution shall be satisfactory Dodridge Certiorari Outlawry Hutton Foster Debt upon escape against whom Warburton Land extended at too high rate Walmsley Coke Harris Haughton Foster Justice Warburton Walmsley Coke Charta de Foresta Assise Office Trespasse Estovers Boote its signification c. Nicholls Walmesley Coke Fee when forfeited Trespass Grant le Roy.
without title he may have an action of Covenant for the Lessor hath the Evidences and ought to defend the possession of his Lessee and the right also and damages are only to be recovered and so is the difference between a Lease and Inheritance though that the words of the Covenant are all one And also he said that it may be objected that the Incorporation was not well pleaded by Edw. 6. Insomuch that he doth not say after the Conquest for Ed. 3. was Ed. 6. in truth sor there were 3 Edwards before the Conquest and he was the third after And he saith that he hath known many exceptions to be taken to that but hath not known any of them to be allowed and for that he will not insist upon it But the principal matter upon which he insists was that it doth not appear by the pleading that the Deane which made the Lease was dead and it appears by the pleading that he entered in 4 Jacobi and was seised and then of necessity ought to be living and such averment of his life is sufficient as it is agreed in the 13 Eliz. Dyer where a Parson made a Lease for years and the Lessee brought an Ejectione firme and in pleading it was said that the Parson is seised of the reversion and this was allowed to be good without other averment of his life for he cannot be seised if he be not living and then if the Deane shall be intended to be living then they all agreed that the Lease shall be good against him for it was adjudged in this Court between Blackeleech and Smal that if a Bishop makes a Lease for years and after makes a Lease for life the Lease for years being in Esse and dyes and the Successor accepts Rent this shall bind him and by this it appears that the Lease was good against the Dean himself which made it and also against the Successor till he enter and avoid it and then by consequence the action of Covenant shall be very well maintainable and so he concluded also that Judgement should be given for the Plaintiff which was done accordingly Pasche 1612. 10. Jacobi in the Common Bench. Browning against Strelley MIchael 2 Jac. Rot. 531. In debt the Margent of the Count contains Nottingham and the Count it self contains that the Obligation was made at the Town of Nottingham which is a County of it self and the Defendant pleads non est factum and the view was of the Town of Nottingham and it was tryed by the Jury of the County of Nottingham and this was moved in arrest of Judgment after verdict for the Plaintif by Nichols Serjeant And it was agreed by all the Justices that Judgment shall be given accordingly to the verdict insomuch that notwithstanding that the Town of Nottingham is a County of it self yet it may be that some part of the Town may be within the County and for that possibility they would not arrest the Judgment Ireland against Smith IN action upon the Case for these words the Plaintiff counts that he was and is Proctor in the Arches and in communication between one Morgat and the Defendant of him the Defendant said to the said Morgat You take part with Ireland against me who is an arrant Papist and hath a Pardon from the Pope and can help you to such an one if you will And after verdict it was moved by Hutton Serjeant in arrest of Judgment that the action doth not lye and he saith that it hath been adjudged in this Court 3 Jacobi Rot. 7031. between Kingstone and Hall that an action doth not lye for like words he is an arrant Papist And it were good that he and all such as he is were hanged for he and all such as he is would have the Crowne from the Kings head if they durst And it was adjudged that an action doth not lye for these words which are more strong then the words in this action but of the other part it was said by Haughton Serjeant that he did not insist upon these words that he is a Papist but that he had obtained a Pardon from the Pope the which by the Statute of 13 Eliz. is made High Treason and then notwithstanding that no time was limited when the Pardon should be procured that is before the Statute or after yet it shall be intended such a Pardon which is against the Statute for the presumption of the Law shall be taken in the worst sense and not like to the Case where a man saith to another that he hath the Pox And also it is alledged by the Count that the Plaintiffe is not above the age of 40. years so that he cannot obtain a Pardon before the Statute of 13 Eliz. And for that he supposed that the action is very well maintainable Coke cheif Justice said that it was adjudged in the Kings Bench in the time of Catlyn cheife Justice there that an action upon the Case doth not lye for calling a man Papist And Winch Justice said that if a man call a Bishop or another man which is trusted with government of the Church and Ecclesiastical causes that he thought the action lyes otherwise not Also he supposed that the Pardon might be for Purgatory or other matters which are not within the Statute of 13 Eliz. And also the Pardon may be procured by another and come to his hands by delivery over afterwards that it had passed two or three and the averment is not sufficient for it is onely Implication and Inference Coke and Warberton Justices sayd that a Papist is one that errs in his opinion and though that the Papists are Authors of many Treasons yet the Law doth not intend so and so of Heretick which is alwaies in a fundamentall point of Religion and yet an action doth not ly for calling a man Heretick also the Pope is a temporall Prince in Italy and for this cause also may pardon and this is out of the statute of 13 Eliz. and so they all agreed that the Action doth not ly for these words Pasche 1612. 10 Jacobi In the Common Bench. Marstones Case IN a common Recovery the Tenant appears by Attorney and vouches one which is present in Court which appears and vouches the common Vouchee and the Attorney hath a Warrant of the party acknowledged before a Judge but this was not entred of record and this was in Hillary tearme 16 Eliz. And it was moved by Dodridge the Kings Serjeant that the Warrant of Attorney might be now amended and entred upon the record and Coke supposed cleerly that it shall not be entred insomuch that it is a want of a Warrant of Attorney but if there had been a mis-construing of the Warrant of Attorney otherwise it is for this seems to be within the Statute of 27 Eliz. Chapter 5. Concerning amendments In Debt upon an obligation with condition to perform Covenants in an Indenture of Lease the Defendant pleads that after
and before the originall purchased the Indentnre was by the assent of the Plaintiff and the Defendant cancelled and avoyded and so demands Judgment if action and it seemes by Coke cleerly that the Plea is not good without averment that no Covenant was broken before the cancelling of the Indenture Pasch 12. Jacobi 1612. In the Common Bench. Barde against Stubbing IT was moved in arrest of Judgment that the Venire facias wants these words Et habeas ibidim nemina Juratorum but the words Venire facias duodecim c. were incerted and it seems by all the Justices that it was good and that the first words are supplyed in the last and they are aided by the statutes of Jeofai es after verdict and so it was adjourned In Audita querela sued by the sureties upon an escape made by the principall they being in execution offered to bring the Money into the Court or to put in sufficient Sureties to the Court and so prayed that they might be bayled and it was agreed that if Audita querela be grounded by specialty or other matter in writing or upon matter of Record Supersedeas shall be granted before that the party be in Execution and if he be in execution he shall be bayled but if it be founded upon a matter in Deed which is only surmise he shall not have Supersedeas in one case nor shall be bayled in the other case and so was the Opinion of all the Justices In an Action of Waste for digging of earth to make Brick Estrepement was awarded and upon Affidavit that the Writ of Estrement was delivered to the Sheriff and that he gave notice of that to the party and he notwithstanding that continues to make waste attachment was awarded Pasch 12 Iacobi 1612. In the Common Bench. Fetherstones Case Trinity 1612. IN Ejectione firme The Plaintiff had Judgment and an Habere facias possessionem to the Sheriff of Coventry which returnes that he had offered possession to the Plaintiff and he refused to accept it and it seems that the Plaintiff cannot have Habere facias possessionem insomuch that it appeares by the Record that he hath refused to have the possession The case was A Dean and Chapter being Lord of a Maunor parcell of the Demesnes of the Mannor being severall adjoyned to the Common which was parcell of the wast of the Mannor and one Copy-holder which had Common in the sayd Wast puts his Beasts into the sayd waste to take his Common and they for default of inclosure escape into the sayd Demesnes by which the Lord brings his action of Trespass and upon this the Defendant pleads the speciall matter and that the Lord and all those whose Estate he had in the said place where the trespass is supposed to be made have used to fence the said place which is parcell of the Demesnes of the sayd Mannor against the Commoners which have Common in the sayd Common being parcell of the waste and also of the demesnes of the sayd Mannor and that the Beasts of the sayd Defendant escaped into the sayd place in which c for default of inclosure and so demands Judgment upon which the Plaintiff demurrs in Law In the agreement of which it was agreed by Hutton and Haughton the Serjeants which argued it whether a man by prescription is bound to make fence against Commoners as it is agreed in the 22 H. 6. 7. 8. 21 H. 6. 33. But the doubt which was made in this case by Haughton which demurred was for that that the Lord which by the prescription ought to inclose is owner of the soyle also against which he ought to inclose and so he ought to inclose against himself and for that he supposed that the pleading should have been that there is such a custome there and of time out of minde that the Lord shall inclose against the Common insomuch that by that the Copy-holder would bind the Lord and upon that it was adjourned c. Pasch 12 Jacobi 1612. In the Common Bench. Sir Henry Rowles against Sir Robert Osborne and Margeret his Wife IN Warrantia Charte the case was Sir Robert Osborne and his Wife levyed a Fine of the Mannor of Kelmersh with other Lands in Kelmersh to Sir Henry Rowles against all persons and this is declared for the Lands in Relmersh to be to the use of Sir Henry Rowles for life with diverse Remainders over and for the Mannor no use was pleaded to be declared at all and then a Writ of Entry in the Post was sued against the sayd Sir Henry Rowles which vouched Sir Robert Osborne and his sayd wifeâ— and this was declared for the sayd Lands to be to the use of the sayd Sir Henry Rowles for his life with other Remainders over which were declared upon the Fine of the Lands in Kelmersh only and of the Mannor of Kelmersh no uses were declared upon the Recovery also and upon this Recovery pleaded in barr the Plaintiffe demurred and it was argued by Dodridge Serjeant of the King for the Plaintiffe that the Plea in Barr was not good insomuch that it doth not appeare that the warranty which was executed by the Recovery was the same warranty which was created by the Fine and also the Fine was taken for assurance against the Issue in tayle and the Recovery to Barr the remainders and so one shall not destroy the other and for the first he sayd that a man may have of another severall warranties and severall causes of Voucher and all shall be together for warranty is but Covenant reall and as well as a man may have severall Covenants for personall things as well he may have severall reall Covenants for one self same Land as if the Father infeoff one with warranty and the Sonn also releases to the same Feoffee with warranty or if the Father infeoff one with warranty against him and his Heires and the Sonn release with warranty against all men the Feoffee may vouch one and Rebut against the other so of Warranty of Tenant in tayle and release of an Ancestor collaterall with warranty in Law and expresse warranty as it is agreed in 31 Ed. 1. Fitzh Voucher 289. And upon that he concluded that a man may have severall warranties of one selfe same man and the one may be executed and the other remaine notwithstanding that it be for one selfe same Land and he supposed the effect of these warranties are as they are used for if that may vouch generally and bind himselfe upon the Fine or upon his owne warranty or upon the warranty of his Ancestor notwithstanding that the voucher be generally as it is 31. Ed. 3. Warranty of Charters 22. So if he be vouched as Heire though that it were speciall but if he be Heire within age otherwise it is for that is a good Counter Plea that he was within age and so praied that the word might demur during his nonage 17.
175 b. Dyer and there in Margery Hynds case who 18 Eliz. Noluit jurdre coram Justiciarijs Ecclesiasticis super articulos pro usura and Leyes case 9. and 10. Eliz. Michaelmas Rot. 1596. and it is written in the Book of the Lord Dyer but not printed the case was Ley being an Attorney of the Common Bench was committed to the Fleet by the Bishop of London and two others of the high Commissioners Ecclesiasticall for that that he was present at a Masse and he refused to be examined upon his oath upon Articles administred by the high Commissioners see also 5 Edw. 4. Keysers case upon the statute of 2. H. 4. chapt Which gives authority to the Arch-Bishop to imprison c. And see the Register fol. 36. b. The form of an Attachment against the Bishop which cited Aliquos Laicos ad aliquas cognitiones faciendas vel sacramentum prestandos nisi in casibus matrionalibus Testimeutarijs c. But it was urged that the Judges of the Common Law shall not have the exposition of the statute of 1. Eliz. because it was an Ecclesiasticall Law but it was resolved by all the Justices that it belongeth to the Judges of the Common Law to expound this for the Statute was temporall meerly and with this 4. Ed. 4. 37. b. c. upon the Statute of 5 H. 5. chapt Which provides Quod libellus sit deliberatus parti in casu ubi per legem deliberandus est hoc sine difficultate And though that this Act be meer spirituall yet the Exposition of that lyes open to the common Law Michaelmas 7. Jacobi 1609. In the Common Tench Estcourt and Harrington IN Trespass upon the Case between George Estcourt Plaintiff and Sir James Harrington Knight Defendant for that that the Defendant sayd that the Plaintiff was a forsworn and perjured man which the Defendant justified for that that the Plaintiff exhibited and English Bill in the Marches of Wales before the President and Councell there and in the same suit made an Affidavit upon which an Injunction was granted for the possession of Land in question between them for the sayd Plaintiff and that the sayd Affidavit was false and the Plaintiff hath committed perjury in that and this was allowed good Justification the Jury was of the Counties of Glocester and Salop and the words of the Distringas were ordinary till towards the end and that was Ad faciendam quendam Juratum simul cum alijs Juratoribus comitatus nostri Salop and this was the Distringas directed to the Sheriff of Glocester and so Mutatis mutandis in the Distringas directed to the Sheriff of Salop and note that the Jurors were sworn one of one County and another of another County Alternis vicibus and 24. were returned of every County Michaelmas 7. Jacobi 1609. In the Common Bench. Simpson and Waters SYmpson against Waters in an Action of Trespasse upon the case for Slander that is thou art drunk and I never held up my hand at the Barr as thou hast done and agreed that an Action doth not lye for these Words for peradventure he intended buttery Barr And by Foster Justice if he had sayd for Felony that the Action doth not lye for many honest men are arrained but if he saith he was detected Action doth not lye but if he saith he was convicted for Perjury Action lyeth as seemed to him In Trespass the Originall bore Teste 3. Ianuary 6. Iacobi and in the Count the Trespass is supposed 20 Ianuary 6. Iacobi which is after the Teste of the Originall and agreed that this shall not be aided by the Statute oâ— Jeofailes but if it were originall otherwise it is Michaelmas 7. Jacobi 1609. In the Common Bench Hare and Savill IN Covenant by John Hare and Hugh Hare against John Savill the Plaintiffs made a Lease for years to the Defendant rendring Rent at two Feasts or within ten dayes after every of those at the Temple Church and the Defendant covenanted to pay the Rent according to the reservation and for the non payment these Plaintiffs brought an Action of Covenant to which the Defendant pleads levied by distress and upon this the Plaintiffs demurred and adjudged with the Plaintiffs accordingly for that the Defendant for his Plea hath confessed that it was not payd according to the reservation for the Plaintiffs cannot distrain if it were not behind after the day and it was agreed that where a Rent is reserved to be payd at such a Feast or within twenty dayes that the Lessee in this case shall have Election if he will pay that at the Feast or at the end of twenty dayes for he is the first Actor and the Lessor cannot distrain nor have action of Debt till the twenty dayes be past and it was agreed that the Covenant shall not alter the nature of the Rent but that nothing behind or payment at the day were good Pleas. Defendant in Debt pleads to the Law and was ready at the Barr to wage his Law and it was resolved by the Judges upon conference with the Prothonotories that it might be continued but the Court would advise IN Action upon the Case upon Assumpsit the Plaintiff counts that diverse Goods were delivered to him in pawn and that in consideration that he should deliver them to the Defendant the Defendant assumed and promised to pay to him the Debt for which the Goods were pawned and it was objected that the Count was not good for that it doth not contain the certainty of the Goods which were pawned and delivered to the Defendant but to that this difference was agreed that when Goods are to be recovered and Dammages for them and are in demand the certainty of the goods ought to appeare in particuler as if a man pleades that he was never Executor nor administred as Executor it is a good Plea for the Plaintiff that he administred Diversa bona in such a place so if he plead that he hath Diversa bona natabilia in other Diocesse it is good iâ— both cases without shewing what goods in certaine see 11. H. 7. 29. Ed 3. Also it was objected that the consideration was not sufficient and then it shall be Nudum pactum ex quo non oritur actio for the Plaintiff hath not any Interest in the Goods and they were delivered him to keep and not to deliver over so that the delivery was vitious and for that it shall be no good consideration and of this opinion was Foster Justice But Coke Wraburton Danyell and Walmesley being absent it seemes that the condition was good as if a man in consideration that another will go to Westminster or cure such a poor man or mary a poore Virgin assume to pay to him a sum of money And though this consideration were not valuable yet it seemes good And he that pawned hath a property in the goods and may have them againe In debt