that the words were not actionable for the words might be construed as if the life of the party were preserved by that means And it was holden 30 Eliz. in the Case betwixt Smith and Morrice that the word Witch is not actionable And therefore if a man be sued in the Spiritual Court for defamation for calling one Witch a Prohibition doth not lie It hath been holden that upon these words He went to destroy a child in a woman's belly were actionable and yet it is not Felony but a great discredit and these words Thou usest Witchcraft are not actionable And afterwards in the principal Case Iudgment was given Quod nihil capiat per Billam And by Gawdy It might be that the Plaintiff had the forfeiture of those who are convicted of offences and so liveth thereby XXXV Harford and Gardiner 's Case Trin. 30 Eliz. In the King's-Bench IN an Action upon the Case The Plaintiff declared that the Defendant in consideration that the Father of the Plaintiff had imployed his service about the business of the Testator of the Defendant to the great profit of the Testator and in consideration of love and affection that the Testator bore to the Plaintiff promised to give unto him 100 l. Curia Love is not a consideration upon which an Action can be grounded 3 Cro. 756. 1 Len. 94. the like of friendship Wray If the Plaintiff declares That the Defendant in consideration that he was indebted unto the Plaintiff in divers summs of money and promised to pay him 100 l. it is not good for the incertainty Also the consideration here was past and executed before the promise made and nothing is done by the Son. And afterwards Iudgment was given against the Plaintiff XXXVI Clark 's Case Mich. 31 Eliz. In the Exchequer Post 89. BRidget Clark was indebted to Archdell by Obligation and afterwards she delivered to one Andrews certain Hogsheads of Wine to satisfie the said Archdell de debito praedicto afterwards the Obligation of Clark was assigned to the Queen for the Debt of Archdel and if the property of the said Hogsheads of Wine were altered by the delivery of them to Andrews before the assignment was the question Egerton Solicitor General The property is not altred for the Bailor might have an Action of Account against Andrews before he hath delivered them over according to the Bailment but if he hath delivered them over the same is a good bar in Account But if one be accountable to me upon a Bailment and afterwards I require him to bail the goods over to A. the same is not in bar of the Account but is a good Plea in discharge of Account before Auditors for that is matter after the Bailment not upon the Bailment If Goods be bailed to bail over upon a consideration precedent on the part of him to whom they ought to be bailed the Bailor cannot countermand it otherwise it is where it is voluntary and without consideration but where it is in consideration of a Debt not countermandable contrary if to satisfie the Debt of another Manwood chief Baron Where the Debtor of the King is sufficient there a Debt due to him ought not to be assigned to the King but onely where the Debt is doubtfull and that was the ancient course but now at this day many seem and are accounted to be rich who are not and therefore omnis ratio tentanda est to recover the Debts of the King. But as to the Case before us Briget is Executrix to her Husband who was indebted to Archdel and she delivered the Goods to Andrews to satisfie Archdel and all that before the Assignment And I conceive that the property of the said Goods is altered for as the case is here Andrews was Surety for Clark and had a Counter-Bond of Clark to save him harmless If I borrow Money and deliver Plate for the security of it the general property is in me yet the Bailee hath a special interest in it till the Money is paid If Goods be delivered to A. to pay to B. A. may sell them An Executor hath Goods of the Testator and he with his own Monies pays the Debts of the Testator he shall retain the Goods and the property is altered And here in our Case Andrews might by virtue of the Bailment sell the Goods and with the Money pay the said Archdel And afterwards Iudgment was given That the property of the Goods was altered XXXVII Norris Case 31 Eliz. In the Exchequer IN an Information upon Intrusion against Norris and others concerning Folly John Park the Defendants pleaded in Bar a descent It was holden clearly by the Court That against the Queen a Descent is no Plea nor any Title against the Queen because nullum tempus occurrit Regi neither shall Lachess be imputed to her for the possessions of the Queen are large and it is not reason that she should be bound or tyed to look to her affairs concerning her possessions or to incur any damage in default thereof for she is to intend and manage the publick affairs of the Kingdom and State. It was also held by the Court That in pleading of a Lease for life or Feoffment the party needs not to shew the place where the Lease or Feoffment was made Popham the Queens Attorny took Exception to the Bar to the Information That whereas in the Information Title is made to the Queen and concludes prout patet per plurima Recorda memoranda Scaccarii the Defendants have not Traversed it by saying Absque hoc quod habetur aliquod tale Recordum To which it was said by Harris and Savil Serjeants That if a special Record had been alledged in certainty then we ought to have taken such Traverse but here it being in the generalty we ought not to traverse at all Manwood Because the Information is general i. ut patet per plurima Recorda so the Traverse ought to be also Another Exception was taken to the Bar because in the Information the Title of the Queen is set forth and the Defendants plead That long before the Intrusion A. was seised in Fee and enfeoffed B. who died seised c. where it might be that the Title of A. was mean betwixt the Title of the Queen and the Intrusion whereas by Manwood and Popham they ought to have said Diu antequam the Queen was seised A. was seised c. Savil and Harris If which should so plead we should confess that the Queen once had a Title and that is not true which Manwood denied for by such Plea nothing is confessed And it was said by some That where in the Bar the Title of the Queen is confessed and avoided there the Defendant shall say Diu antequam the Queen had any thing c. otherwise not And it was holden by all That in such case a Feoffment might be an induction unto a Traverse but not a Descent And by Manwood it is a general Rule as
also of Statutes We cannot deny but that we have Lands of the Conusor and of the Gift of the Conusor our Ancestor whose Heir we are who was indebted to the Queen and yet we are not within this Statute Was or shall be indebted shall not be intended after the Gift made for if he first convey his Land and afterwards becomes indebted the same is not within the Statute and where a mischief is to be remedied by a Statute the remedy in exposition of the Statute is to be applied according as the mischief doth require Shall be is to be intended of future Debts after the Statute and in our case the Father was not Receivor or other Officer to the Queen And if this Statute should be so construed the Father might take 10000 l. for the Marriage of his son and assurance of Lands unto him and then if he will acknowledge a Debt to the Queen he should defeat the whole which should be a very great mischief The words are By Gift after the Debt acknowledged to the Queen And he cited the Case 19 Eliz. Plow 191. betwixt Ludford and Gretton upon the Statute of 18 H. 6. the words of which are That whatsoever Warrant hereafter to the Chancellor of England addressed the day of the delivery of the same it be entred of Record in the Chancery and that the Chancellour make Letters Patents upon the same Warrants bearing date the day of the said delivery in the Chancery and not before and all Letters Patents made to the contrary shall be void And the Case was That a Warrant was directed to the Chancellour for the making of Letters Patents and delivered to him before the making of them but the day of the delivery was not entred of Record c. And it was holden that notwithstanding that the Letters Patents were good for the mischief at the Common Law intended to be reformed by that Act was not the post-dating of the Letters Patents but the ante-dating and therefore that ought to be principally taken into consideration which mischief being understood the words of the said Statute are to be applied to it ipsae etenim Leges cupiunt ut jure regantur i. with an Equity according to the Mischief and not always according to the precise words and in that case it is sufficient if the Letters Patents bear date after and not before the delivery of the Warrant and that was the matter intended to be reformed Also as our Case here is we are not within this Statute for the words are Of the Gift of his Ancestour but here the Son hath not the Lands of the Gift of his Ancestour but rather by the Statute of Vses and so he is in the Post and not in the Per by his Ancestour for here the Fine was levied to divers persons unto the Vses aforesaid and here the Gift was not a mere gratuity to his Son but in consideration that he should marry the Daughter of Sir Edw. Huddleston and also the Father was the King's Debtor after the Gift and not before Popham Attorney-General to the contrary The letter of the Statute is with us for he comes in of the Gift of his Ancestour who was indebted to the Queen and although that the Gift was by way of use yet the precedents in the Common-Pleas and other Courts are That he may declare of the Feoffment of such a one although it was by way of use and he said If A. be bound to enfeoff B. of such Lands if he maketh a Feoffment to the use of B. and his Heirs he hath well enough performed the Condition and if the Case should not be within the Statute then should that branch of the Statute be idle and to no purpose For if the Ancestour be seised and becometh indebted to the Queen and after makes a conveyance ut supra the same is provided for by the first branch of the Statute For the Land is liable to the Recognizance or Obligation made to the King and that they shall be as effectual as a Statute Staple and reason requires that the son who comes in by mere gratuity of his Ancestour should be charged And it was a common practice before the making of that Statute That the King's Officers would convey their Lands to their children and then become the King's Debtors for the remedy of which mischief the Statute was made and the Statute of 27 Eliz. doth not respect the Heir because he is Heir but as a purchasor onely and that upon good consideration Coke If any fraud can be found in our Case then without doubt we should be within the Statute but being upon good consideration it is out of the Statute nor was there any purpose in the father when he made the said Conveyance to become the King's Debtor or Officer to him for if there were then he is within the Statute also the Gift had been a mere gratuity c. And afterwards at another day the Case was moved by Coke and he said That here is not any Gift because it was in consideration of Marriage and then no gift for it is an old Proverb What is freer than gift Egerton The father giveth to his son and heir the same is within the Statute and yet here is consideration scil of blood Coke contrary Where the father giveth to his younger son or to his daughter which is not his heir and of that opinion was Manwood chief Baron And afterwards as Coke reported the son and his Lands were discharged CXV Amner and Luddington 's Case Mich. 26 Eliz. In the King's-Bench Error 3 Len. 89. 8 Co. 96. ERror was brought in the King's-Bench by Amner against Luddington Mich. 25 and 26 Eliz. Rot. 495. The Case was That one Weldon was seised and leased unto Pierpoint for ninety nine years who devised the same by his Will in this manner I bequeath to my Wife the Lease of my House during her life and after her death I will that it go amongst my Children unpreferred Pierpoint died his Wife entred and was possessed virtute legationis praedict and took Husband one Fulshurst against whom one Beswick recovered in an Action of Debt 140 l. upon which Recovery issued forth a Fieri facias and upon that a Venditioni Exponas upon which the Sheriff sold the said term so devised to one Reynolds Fulshurst died his Executor brought Error to reverse the Iudgment given against the Testator at the Suit of Beswick the Wife did re-enter and sold the Land and died Alice an unpreferred Daughter of Pierpoint did enter and upon that matter found by special Verdict in the Common-Pleas the entry of Alice was adjudged lawfull upon which Iudgment Error was brought in the King's-Bench And it was argued upon the words of the Devise because here the House is not devised but the Lease it self scil all his interest in the thing devised And it is not like unto the Case betwixt Welchden and Elkington 20 Eliz. Plow 519.
were parcel of the Crown But of Lands in Wales it was otherwise before the Statute of 27 H. 8. by which Wales is united to the Crown And although that the Capias erronice Emanavit the same is but erroneous and so voidable and not void for Error may be as well assigned in the Executione judicii as in redditione judicii 16 H. 7. 6. Outlawry without an Original Writ is not void but voidable 2 R. 2. and the reason thereof is given 11 H. 7. in Collins's Case but they are Iudges of the cause although that their proceedings be not according to Law. But the Sheriff or any other stranger shall not take advantage thereof See 8 E. 4. 21 E. 4. and he cited to this purpose 13 E. 3. Barre 253. The Iailor shall not take advantage of undue proceedings of the Auditors against an Accomptant and he insisted much upon the Vsage and Precedents and customs of Courts which are Laws in such cases And although that by strict and precise rule of Law a Capias doth not lie naturally nor properly upon a Recognizance where the suit begins by Scire facias yet because the usual practice and common experience hath allowed of it and admitted thereof from time to time It is safer to suffer a mischief to one than an inconvenience to many And although the Proverb Exempla illustrant non docent aut probant may hold place in some arts and Sciences yet in our Law Examples are good arguments 11 E. 4. 3. In the King's Bench a man in custodia Marischalli shall be put to answer a Bill but in the Common-Bench a man who is in the custody of the Guardian of the Fleet shall not be put to answer to a Bill and that is by reason of the several usages and customs in the said several Courts so as custome and usage makes a Law in such case 39 H. 6. 30. in a Writ of Mesne The Iudges were clear of opinion That the Plaintiff ought not onely to shew the Tenure betwixt him and the Tenant Peravail but also betwixt the Mesne and the Lord Paramount yet when they had conferred with the Prothonotaries and saw the Precedents of former times in such cases They would not change the former courses notwithstanding that their opinions were to the contrary So 2 H. 7. 8. The Venire facias is 12 liberos legales homines and the Sheriff retorned 24 and holden good by reason of the usual course of the Court in such cases and yet in our Law the number of persons is not material which see in the Earl of Leicester's Case 15 H. 8. but custome dispenseth with the same Atkinson argued the contrary At the Common Law for Execution in Debt within the year a Levari facias and a Fieri facias lay after the year the party was put to a new Original and there was no Capias at the Common Law but in cases of contempt force or other notable misdemeanour untill the Statute of 25 E. 3. cap. 17. which gave it in Debt Detinue c. And the Statute of West 2. cap. 18. gave Fieri Facias and Elegit but no Capias was given upon a Recognizance by any Statute and he relied much upon the Book of 48 E. 3. before cited the rule of which Book is That in a Scire facias upon an Original in which a Capias lieth the Scire facias shall follow the nature of the Original upon which it is founded but where a Capias ad respondendum doth not lie there not a Capias ad satisfaciendum 34 H. 6. 451. In Debt against Executors they appear and plead fully administred and it is found against them and Iudgment is given for the Plaintiff who after the year sueth a Scire facias against the Executors and Execution awarded by default and thereupon a Capias and Exigent And that matter being shewed to the Court a Supersedeas was granted because the Capias improvide erronice emanavit for no Capias lieth against Executors where they plead c. although it be found against them Ergo neither a Scire facias grounded thereupon And although the Stat. of 25 E. 3. gives a Capias in Debt yet if Debt be recovered in a Justicies a Capias doth not lie by the Equity of the said Statute and he relied very strongly upon Puttenham's Case 13 Eliz. cited before And as to that which hath been said That notwithstanding that the Capias was against the Law and so his imprisonment by colour thereof wrongfully yet de facto he was in Prison and the Sheriff hath taken him and he shall excuse himself in a false imprisonment brought yet I say That this erroneous Process appearing to you you will not again err by allowing these erroneous proceedings but rather reform them For the Sheriff himself who is a stranger to the Record cannot have Error to reverse these proceedings and so without remedy unless the Court doth relieve him therein And he said farther That this Capias Posito quod legitime emanavit cannot fasten or work upon Francis Woodhouse being imprisoned and convict of Felony for being imprisoned and restrained of his liberty how can he his restraint continuing be de novo restrained before that he be enlarged and restored to his liverty Nam omnis privatio praesupponit habitum and Ergo imprisonment liberty precedent And so he concluded That Francis Woodhouse Neque de facto nor de jure was in prison and that no Capias lieth in the Case especially after the year as here it was and the party being convict and in prison cannot be taken c. Manwood If within the year a Levari facias or a Fieri facias be sued forth and be retorned not served or that Vicecomes non misit Breve and so the year passeth in the default of the Sheriff yet the Plaintiff shall not be put to a Scire facias At another day it was argued by Tanfield for the Defendant That upon this Scire facias no Capias lieth and then no lawfull Execution and then no escape Where there is no Capias in the Original there is no Capias in the Execution but here in our Case there is not any Original because it is a Scire facias upon a Recovery Ergo no Capias can be where there is not any Original As to that which hath been said That the ancient Presidents and course in Cancel is against us be it so yet the course in the King's Bench and Common Pleas is with us That a Capias doth not lie in such case of Scire facias And the Chancery as to the Common Law ought not to vary from these Courts for one and the same Common Law ought to be in all the said Courts of things of the Common Law and the Presidents alledged of the other side are silent and sleeping proceedings and presidents Slips of Clarks which were never drawn into question the ancientest of which was hatcht but in the later part of
J. S. he was constrained to pay the money J. S. promised for the same consideration to repay the money 286 D DIminution 3 Distress for Rent 8 Debt 10 26 33 49 88 90 122 126 136 150 153 162 163 172 181 189 200 208 248 Debt for Rent 14 28 67 121 Dower 15 85 174 238 Devise 16 92 123 165 171 198 239 243 276 279 280 287 Debt upon Recognizance 24 Descent no plea nor any title against the Queen 37 Debts of the King by the Statute of 33 H. 8. 39 Disseisin 80 Distress 179 Detinue 201 Discharge of a promise a good plea upon an Assumpsit 270 E ERror 2 3 4 77 86 100 115 132 135 160 161 222 231 244 251 255 256 263 Entry of Records 3 Estopell 3 17 Extent 20 75 167 Exceptions to a Writ 47 Extendi facias sued out and the Liberate not returned if good 65 Escape an Action of Debt brought upon it 112 Execution upon a Statute and the Sheriff voluntarily sets him at large 117 Execution 202 Enquest taken at the instance of the Plaintiff 203 Ejectione firme 250 Exposition of Statutes do belong unto the Queen 's temporal Courts 267 F FEoffments to Uses 7 25 118 183 194 218 233 257 282 285 False imprisonment 43 Fine 38 73 139 169 191 206 263 Formedon 84 196 Feoffment in Fee of Lands parcell of the Dutchy of Lancaster how and of whom the Tenure shall be 184 Fines in Courts 219 G GRant de Advocatione Ecclesiae what passeth 106 Grant of Lands of the Dutchy of Lancaster by the King unto another Tenend in Fee-farm if this Land shall be holden of the King in Capite or holden of the Dutchy 197 Gift where void both by Common-Law and the Statute of 13 Eliz. 284 H HEriot 10 Habeas Corpus not well returned day given to amend it 213 I JUdgment against Bail 2 Indictment upon the Statute of 23 Eliz. of Recusancy 6 Justicies no Original but a Commission to the Sheriff 41 260 Information upon the Statute of 18 H. 6. cap. 17. concerning the gaging of vessels of wine 52 In consideration that the Plaintiff would stay an intended suit in Chancery promised that if the Plaintiff can prove that the father of the Defendant took the profits of the Lands in question that he would pay to him for all the said profits 133 Information upon the Statute of Usury 144 In consideration of marriage the Defendant promised to pay to the Plaintiff 100 l. 146 Joint-tenants in Fee grant a Lease for years rendring Rent and one dies how the Rent shall be divided 148 In consideration that the Testator would forbear the payment of a sum of money for a week he promised to pay him within a week if the Action will lie for the Executors 149 Judgment not to be reversed but by Error or Attaint 154 Information upon the Statute of 27 Eliz. cap. 4. by the party grieved The Plaintiff was non-suit yet shall not pay costs and damages 156 Indenture delivered at another day and not the day of the date 157 Indictment for inclosing of Common vi armis c. not good 159 Intruder dying in possession the same descent taketh not away an Entry 182 Indictment upon the Statute of 23 Eliz. of Recusants 204 Indictment upon the Statute of Praemunire of 13 15 R. 2. 225 Indictment upon the Statute of 8 H. 6. of forcible entry 226 232 Indictment for not repairing of a Bridge 227 Indictment for an unlawfull assembly and entry 228 Indictment upon the Statute of 5 E. 6. cap. 4. for drawing of his dagger in the Church 234 Indictment upon the Statute of 5 Eliz. of Perjury 262 Judgment joynt against three will not lie against one of them in particular 277 L LEases 1 40 78 96 102 110 116 119 131 134 169 178 192 207 236 252 253 261 Leet how holden 31 98 266 Love is no consideration upon which to ground an Action 35 Letters Patents Bona Catalla felonum c. 81 Letters Patents of Offices not to be repealed after the death of the Grantor 128 Limitation and Condition with their difference 52 M MAintenance in returning a partial Jury 177 N NUsance for stopping a River with earth by which land was drowned 129 222 Nudum pactum quid 187 O OUtlawry 23 166 Obligation for appearance upon a Latitat where void 103 220 Office found 169 Obligation that the Obligor shall not exercise his Trade within a Town nor within a certain precinct of it void and against Law 259 P PArtition 3 Prescription 13 Property 35 113 Partitione facienda 69 Privilege is not for an Atturney against an Attachment by the custome of London 190 Presentments several make the Church litigious 205 Privilege pleaded for a Lord of Parliament 209 Prohibition prayed to the Court of Admiralty 224 Payment no good Plea without alledging it upon Record 269 Proof how to be made 273 Q QVare Impedit â—â— 83 Quo Warranto 266 R REceit of the wife 11 Rectory Quid 13 Rent charge 21 185 186 Replevin 29 58 82 87 107 158 168 170 211 274 281 Rents and Services 57 Reparations 72 Replicando of his own wrong how construed 108 Remainder in tail who was attainted of Felony 169 Recognizance of good behaviour 199 Recovery in a Writ of Entry 214 Return of a Devastavit upon a Fieri facias a motion to have an Elegit 235 Replication where good by Executors 265 S SEals 27 Special Plea to an English Bill if it may be relinquished 38 Sheriff must deliver all the prisoners in his custody over to his successor 76 Scire facias against the bail in an action of Debt to which was pleaded the death of the Defendant before Judgment given against him 125 T TEnancy several where no good Plea 9 Trover and conversion 22 50 217 278 Tythes 30 32 93 95 98 105 124 180 216 Tail. 51 54 63 170 247 Trespass against the Warden of the Fleet brought in the King's Bench 56 Tenant per auter vye after the death of Cestuy que use holdeth over if he be a Disseisor 59 Tenant at will if he may grant Copihold Estates to Copiholders 59 Trespass upon the Statute of 8 H. 6. of forcible entry 70 Trespass for an assault and battery 104 Tender of rent if refused where good and where not 173 Trespass by one Administrator against another for taking away the goods of the intestate 188 Trespass Quare clausum fregit and new assignment pleaded 230 Toll no lands to be discharged of it but lands Socage onely 240 Trespass Quare clausum fregit 241 Trespass for taking of goods and the Defendant justifies as Bailiff to J. S. 246 Trespass for breaking of the Plaintiffs close and for killing his Conies 254 Trespass for cutting down of four Oaks and the Defendant pleads that he and all those whose Estate he hath c. Habere consueverunt rationabile estoverium suum for fuel c. 258 W WRit of entry in the Per 9 Will of the Request of Land and the name of the Devisor not in it if good 44 Waste 45 46 62 210 282 Writ of Annuity 68 Wager of Law 143 Writ of Enquirie of damages if too little damages be found no other Writ pro meliore Enquir can be granted 272 Writ of Entry Sur Disseisin 283 FINIS
Iudgment of Action and not rein luy doit and the Court advised the Defendant to plead accordingly XV. Beamont and Dean 's Case Hillar 20 Eliz. In the Common-Pleas Dower Dyer 361. IN Dower brought by the wife of Beamont Master of the Rolls in the time of E. 6. The Defendant said that he himself before the Writ brought did assign a rent of 10 l. per ann to the Demandant in recompence of her Dower upon which the Demandant did demur in Law and the cause was because the Tenant had not shewed what Estate he had in the Lands at the time of the granting of the Rent as to say that he was seised in Fee and granted the said Rent so as it might appear to the Court upon the plea that the Tenant had a lawfull power to grant such a Rent which was granted by the whole Court and the demur holden good XVI Hinde and Sir John Lyon 's Case Hill. 20 Eliz. In the Common-Pleas IN Debt by the Plaintiff against the Defendant as Heir Dyer 124. a. 3 Len. 70. 3 Len. 64. he pleaded That he had nothing by Descent but the third part of the Manor of D. The Plaintiff replied Assets and shewed for Assets that the Defendant had the whole Manor of Dale by descent upon which they were at issue and it was given in evidence to the Iury That the Manor was holden by Knight's-service and that the said Sir John the Ancestor of the Defendant Devises by his Will in writing devised the whole Manor to his Wife until the Defendant his Son and Heir should come to the age of 24 years and that at the age of his said Son of 24 years the Wife should have the third part of the said Manor for term of her life and her Son should have the residue and that if his said Son do die before he come to his age of 24 years without Heir of his body that the Land should remain to J. S. the Remainder over to another The Devisor died the Son came to the age of 24 years and the Question was If the Son hath an Estate-tayl for then for two parts he is not in by Descent And by Dyer and Manwood Iustices here is not any Estate tayl for no tayl was to rise before his said age and therefore the tayl shall never take effect and the Fee-simple doth descend and remain in the Son unless he dieth within the age of 24 years and then the Entail vests with the Remainders over But now having attained his said age he hath a Fee-simple and that by Descent of the whole Manor and a general Iudgment shall be given against him as of his own Debt And an Elegit shall issue forth of the moyety of all his Lands as well those which he hath by descent from the same Ancestor as any else and a Capias lieth against him But Manwood conceived That if general Iudgment be given against the Heir by default in such a case a Capias doth not lie although in case of false Plea it lieth Dyer contrary and the Writ against the Heir is in the Debet Detinet which proves that in Law it is his own Debt and he said that he could shew a precedent where such an Action was maintainable against the Executors of the Heir XVII Hil. 20 Eliz. In the Common-Pleas A Man made a Lease of Lands by Indenture Roll. 1. part 870. to begin after the expiration of a Lease thereof made to one Duffam and in an Action of Covenant brought by the second Lessee against the Lessor Covenant the Lessor said That there was no such Duffam in rerum natura at the time of the supposed Lease made to Duffam it was argued Estoppell That this Plea doth not lie for the Lessor for he is estopped to say against the Indenture That there is no such Duffam c. And also if no such person was then the first Lease was void and then the second Lease shall begin presently which Manwood and Mounson granted and by Manwood the Defendant shall be estopped by the Recital of the first Lease to say That there was no such Duffam And although the common Ground is That a Recital is not an Estoppel yet where the Recital is material as it is here it is otherwise for here the second Lease is to begin upon the expiration of the recited Lease and therefore in this case it shall be an Estoppel XVIII Mich. 20 Eliz. In the King's-Bench Action upon the Stat. of 5 Eliz. for Perjury 3 Len. 68. IN an Action upon the Statute of 5 Eliz. for a Perjury by three the Plaintiffs declared That the Defendant being examined upon his oath before Commissioners If a Surrender was made at such a Court of a Copyhold to the use of A. and B. two of the Defendants The Defendant swore there was no such surrender made c. Exception was taken to the Declaration because that the certainty of the Copyhold did not appear upon the Declaration for the Statute requires that in such Case the party grieved shall have remedy so as it ought to appear in what thing he is grieved quod fuit concessum per totam Curiam Another Exception was taken because the Action is given in this Case to the party grieved and it appeareth upon the Declaration that the Surrender in the negative deposing of which the Perjury is assigned Abatement of Writ was made to the use of two of the Plaintiffs onely and then the third person is not a party grieved for he claims nothing by the Surrender and therefore forasmuch as the two persons grieved have joined with the party not grieved the Writ shall abate against them all which Wray and Southcote granted XIX 19 Eliz. In the Common-Pleas Action upon the Stat. of 13 E. 1. of Winchester 2 Inst 569. IN an Action upon the Statute of Winchester 13 E. 1. against the men of the Hundred of A. Barham Serjeant took Exception to the Declaration because it appeareth upon it that the half year after the Robbery is not yet come for by the said Statute it is ordained that the Countrey have no longer time than half a year after the Robbery done within which time facent-gree of the Robbery or respondent the body of the Misfeasors And here the Action is brought within the half year And for this cause the Declaration was holden to be insufficient by the whole Court. And the Lord Dyer spake much in commendation of that Statute being made for the publick benefit of the whole Commonwealth for the Law intends when a Robbery is done That if the Countrey will not pursue the Malefactors that some of them are Receivers or Abettors of the Felons Manwood Iustice said When I was a Servant to Sir James Hales one of the Iustices of the Common-Pleas one of his Servants was robbed at Gadds Hill within the Hundred of Gravesend in Kent and he sued the men
of the Hundred upon this Statute and it seemed hard to the Inhabitants there that they should answer for the Robberies done at Gadds Hill because Robberies are there so frequent that if they should answer for all of them that they should be utterly undone And Harris Serjeant was of Councill with the Inhabitants of Gravesend and pleaded for them that time out of mind c. Felons had used to rob at Gadds Hill and so prescribed and afterwards by award they were charged And note That the Case was that three men were robbed and they three joined in the Action against the Inhabitants XX. Colshil and Hasting 's Case 20 Eliz. In the Common-Pleas AN Extent was sued forth upon a Statute-Merchant by Colshil against Hastings for Lands in his possession in the County of Southampton The Sheriff put the Plaintiff the Conusee in possession of parcel of a House and of Lands and suffered Hastings to continue in the rest of the House Execution executed 1 Leon. 145. by reason whereof Hastings kept the possession of the whole and held the Conusee out The Conusee to the intent that he might have full and perfect possession of the whole caused the Sheriff that he did not retorn the Writ of Extent upon which it is entred on the Roll Quod Vice-Comes nihil inde fecit nec misit breve Whereupon issued an Alias extendi facias upon which the new Sheriff did retorn That in the time of the old Sheriff a Writ of Extent issued forth c. and that the said Sheriff had extended the Lands by reason whereof the now Sheriff could not extend them upon the new Writ It was moved for the Conusee That the retorn was not good For although that the Lands be extended by the first Writ Yet because it is not retorned it is not any Execution in Law nor could the Conusee have an Assise which Manwood Iustice denied Loare Preignothory Our course is when no retorn of such Writ is made to grant an Alias at the prayers of the party and to enter upon the Roll That the Sheriff upon the first Writ Nihil inde fecit nec misit breve And that was taken by the Court to be a good and lawfull course in such Case for upon such surmise that no Execution hath been done and that upon such entry on the Roll an Alias Breve might be well awarded And afterwards this second Writ of Extent was not filed by order of the Court And note that the new Sheriff was examined upon his Oath by the Court of the Action and he said that he made the retorn by the advice of Master Plowden who told him that he might safely retorn that the Land was formerly extended and although that the said Extent was not retorned yet it is an Execution for the Party Manwood Certainly this is an insufficient retorn But perhaps Master Plowden did not know of this entry in the Roll as aforesaid for now it appeareth upon Record that no Execution was done If this entry had not been I should well agree with Master Plowden that the same is an Execution for the party although it be not retorned XXI Steward 's Case 19 Eliz. In the Common-Pleas THE Case was A. seised of certain Lands in Fee granted a Rent-charge out of the same to another and afterwards aliened the Lands to a stranger The Grantee in a Replevin did avow for the Rent and the other party pleaded that nothing passed by the Deed It was holden by the whole Court to be no plea nor can any issue be joined upon it but the Plaintiff ought to have said That he did not grant by the Deed For the same is a Rent newly created and which had not his essence before the grant and it cannot properly be said That nothing passed by the Deed but not of a thing that is in esse but of things not in esse That he did not grant is the most natural issue for a thing not in esse non potest transire XXII 19 Eliz. In the King's-Bench IN an Action upon the Case upon a Trover and Conversion to his own use per venditionem quibusdam hominibus ignotis Trover and Conversion the Defendant pleaded That the goods were bailed to him to bail over to J. S. to whom he had delivered them absque hoc that he did convert them to his own use per venditionem hominibus ignotis It was moved by Egerton that that matter is not traversable quod Wray concessit for the conversion to his own use is the cause and ground of the Action and not the selling of the goods c. XXIII Mich. 19 and 20 Eliz. In the Common-Pleas A Man was outlawed in the Court of Hustings of London and the Hustings in which the Iudgment of Outlawry was given Outlawry was holden two Weeks next after the last Hustings so as there was but two Weeks betwixt the two Hustings whereas commonly the Hustings is holden but every three Weeks and now the Sheriffs of London were in doubt if they might safely retorn the Outlawry without danger of an Action upon the Case brought against them by the party outlawed It was holden by Dyer and the whole Court that they ought and might safely retorn the said Outlawry for the Lord Dyer said That there is a Record in the time of R. 2. whereby it appeareth that in London they might hold their Hustings every Week if they pleased and afterwards he commanded Mosley and Christopher Secondaries to retorn the Outlawry which was done accordingly XXIV Lovelesse 's Case 19 Eliz. In the Common-Pleas Debt upon Recognizance 1 Cro. 608. 817. LOvelesse Serjeant brought a Scire facias upon a Recognizance and had Iudgment upon default Quod habeat Executionem and afterwards he brought an Action of Debt upon the said Iudgment and exception was taken to the Action for that he ought to proceed upon the Iudgment given upon the Scire facias and ought to sue Execution according to the said Iudgment by Elegit or Scire facias but not by Capias but the Exception was not allowed For the Recognizance is a Iudgment in it self and an Action of Debt will lie upon it without any Iudgment in the Scire facias And Debt lieth as well upon the Iudgment as upon the Recognizance it self and so was the opinion of the whole Court. XXV Eliz. In the Common-Pleas Brent 's Case Dyer 340. b. THE Case was That Robert-Brent being seised of Lands in Fee made a Feoffment thereof unto the use of himself and Dorothy his Wife for their lives and if he do survive his said Wife then to the use of him the said Robert and such a Woman as he should after marry for the Iointure of such Wife the Remainder over to a stranger in Fee And afterward with the privity and assent of the Feoffor he in the Remainder and the Feoffees join in a Feoffment to divers persons Note both Feoffments were
Inhabitants had used to till and sowe their Lands c. and they had used to be discharged of their Tithes of rakings after that the shocks were carried away And Coke who was of Council with the Parson durst not demurr upon it but traversed the Prescription Wray Chief Iustice The want of Meadow and Pasture in the Parish is the great matter here and there is not any mischief here as if they had surmised that for want of Meadow and Pasture they had eaten their Meadows with their Cattel And it was held by the whole Court that it was a good Prescription XXXI The Queen and Partridge 's Case Trin. 30 Eliz. In the King's-Bench 1 Cro. 125. IN a Quo Warranto brought against Partridge It was holden by all the Iustices That a man might prescribe to hold a Leet oftner than twice in a year and at other days than are set forth in the Statute of Magna Charta Cap. 35. because the said Statute is in the affirmative But Popham Attorney General said That one cannot prescribe against a Statute And it was moved by him If a general Pardon be granted with general Exception in it he which will have advantage of it ought to plead it and shew that he is not any person excepted for otherwise the Iudges cannot allow him the benefit of it because they do not know if he be a person excepted or not But if there be special persons excepted by name and no others excepted but so many persons there he need not to plead it for the Court may discern J. D. from J. S. 8 E. 4. 7. vide 26 H. 8. 7. If a man commits Felony and also Treason and afterwards comes a general pardon for Felony but Treason is excepted and the party is arraigned for Felony By Coke he shall have the benefit of the pardon Popham contrary For he is disabled by the Treason See Coke's Case 13 Eliz. Plowd 401. he pleaded to the Felony the general pardon by Act of Parliament and added that neither himself nor the said offence was excepted And it was agreed by the whole Court That in a Quo Warranto it is not sufficient for the Defendant to say That such a Subject hath lawfull interest to hold Leets without making title to himself for the Writ is Quo Warranto he claims them And afterwards Iudgment was given for the Queen XXXII Woodward and Bugg 's Case Trin. 30 Eliz. In the King's-Bench WOodward libelled in the Spiritual Court against Bugg and Nelson for Tithes of certain Lands called Christian-Hill 1 Cro. 188. Owen Rep. 103. 2 Roll. 63. 3 Len. 257. The Defendant sued a Prohibition and surmised That one Prettiman was seised of the said Land and in consideration of 5 l. by him paid to the said Parson it was agreed betwixt them That the said Prettiman and his assigns should be discharged of the Tithes of the said Lands during his life And afterwards the said Prettiman leased the same to the Defendants upon which a Prohibition was granted and it was holden that the party need not to make proof thereof within six months for it is not within the Statute because a composition with the Parson But now a consultation was granted in the same Cause because the agreement is shewed but no need of it the which cannot be any discharge but if it had been for a time i. Unica vice it had been good but contrary being for life Also there is not any express Grant of Tithes but onely a Covenant and agreement that he should be discharged upon which he may have an Action but no Prohibition It was said on the other side That although without Deed Tithes cannot pass in point of interest yet by way of discharge they well may Coke It was holden betwixt Pendleton and Green That upon such words of Covenant and agreement the party should hold the Lands discharged of Tithes which was denied For if the Grantee of a Rent-charge will grant it to the Lands without Deed it is not good And there was of late a Case betwixt Westbed and Pepper where it was agreed betwixt the Parson and one of his Parish that for twenty shillings Rent per ann the Parishioner should be discharged of Tithes for twenty years if he lived so long and it was holden that no Prohibition did lie thereupon a Fortiori where the Estate is for life Gawdy In a Case of grant of Tithes for life a Deed is requisite but here it is but a Covenant for money See 21 H. 6. 43. Wray If it had been for years it had been good but here it is not any Contract but onely a discharge for life which cannot be during his life without Deed And afterwards the Record was read which was Concordatum agreatum fuit between the two parties pro omnibus decimis during the time that one should be Parson and the other occupier of the said Lands that in consideration of 5 l. the said Prettiman and his assigns should hold the said Lands discharged of Tithes Wray The same is not a Contract but Promise for he doth not grant any Tithes c. XXXIII Devered and Ratcliff 's Case Pasch 32 Eliz. In the King's-Bench IN Debt the Plaintiff declared 1 Cro. 185. That he himself had brought an Action in London against one A. and had Iudgment to remove and a Capias was awarded and issued forth to take the said A. in execution upon which Non est inventus was returned upon which one of the sureties of A. being in prison in London under the custody of the Defendant upon a Plaint against him was detained in Prison for the said Debt so recovered against A. Secundum consuetudinem Civitatis praedict prout per record ejusdem Curiae apparet and after the Defendant suffered the surety to escape upon which there was a demurr The matter was If the said surety was a Prisoner in Law for the said Debt as surety of A. for in the Declaration it is not expresly laid that there was such a custom in London ut supra but onely Secundum consuetudinem c. And secondly there were two sureties of A. and the one of them onely is detained in execution Also the custome as it is here laid is not reasonable For a Scire facias ought to issue out against the sureties and they ought not to be taken or detained in execution presently For the condition of the Recognizance of sureties is That they bring in the Defendant if he be condemned or to pray the Debt and now by this custome the party who is surety being taken cannot plead the release of the Plaintiff or the death of the Defendant in his discharge as he might upon a Scire facias which was agreed per Curiam and adjudged accordingly XXXIV Clark and Green 's Case Trin. 30 Eliz. In the King's-Bench AN Action upon the Case was brought for these words He liveth by Charming Sorcery and Witchcraft It was moved
well in the case of a Subject as in the case of the Queen That nothing can be an Inducement to a Traverse but such a thing as is Traversable and here the Descent induceth the Traverse being not Traversable in this case Also it was holden That the place where the party dieth seised needs not to be shewed in pleading a Descent And afterwards Manwood at another day mutata opinione conceived That as to plurima Recorda there needed no Traverse although there were many presidents to the contrary Diu ante transgressionem fieri sup is a good Plea in Trespass in Case of a common person not in the King's Case diu ante Intrusionem c. XXXVIII Robinson and Robinson 's Case 31 Eliz. In the Exchequer Chamber IN the Case betwixt Robinson and Robinson in the Exchequer-Chamber by English Bill concerning the Manor of Draiton Basset The Defendant pleaded in Bar a special Plea to which the Plaintiff replyed and afterwards the Defendant when he should have Rejoyned would have relinquished his special Plea and pleaded the general Issue Manwood In the Common Pleas and King's Bench and in the Court of Common Pleas in the Exchequer before the Issue joyned the Defendant might relinquish his special Plea and plead the general Issue for the Pleadings there are in paper until Issue be joyned and therefore at any time before Issue joyned the Plea might be withdrawn But in the Chancery Court of Requests and here all Pleas put in are in Parchment and filed and therefore it cannot be so done and therefore here if the Plea be once ingrossed into Parchment and filed the Defendant cannot relinquish his Plea and plead the general Issue contrary where the Plea is yet in Paper Gent Baron That if upon the Plea in Paper an Issue be offered with an Absque hoc c. the other party cannot relinquish it although it be but in Paper But afterwards the Barons asked the Clarks what was their course in such cases who answered That if the Plea be in Parchment and upon the File it shall never afterwards be taken from off the File but with the consent of the parties and Order of the Court. And afterwards Manwood with the assent of the rest of the Barons gave a Rule That the Defendant should rejoyn to the Replication or otherwise a Nihil dicit to be entred XXXIX The Lord Cromwel 's Case 31 Eliz. In the Exchequer IN the Case of the Lord Cromwel upon the Statute of 33 H. 8. for levying of the King's Debts A Debt came to the Queen by Attainder of the Creditor upon which an Extent issued against one of the Ter-tenants liable to the Debt and not against all It was moved That upon a branch of the said Statute all the Ter-tenants ought to be charged But it was the Opinion of divers that such a Debt which cometh to the King by Attainder is not within the said Statute for although the Attainder is by a Iudgment yet Debt by Iudgment it cannot properly be said but where a Debt is recovered by Iudgment And that was the Case of the Lord Norris for a Debt due to Heron by the Lord Williams which Heron was attainted XL. Machel and Dunton 's Case Hill. 29 Eliz. Rot. 631. in the Common Pleas. IN Ejectione Firmae the Case was That one Machel 1 Crō 288. Owen 54 92. Poph. 8. Alderman of London was seised and Leased for years with clause of re-entry for non payment of Rent and in the Indenture of Lease there were divers Covenants on the parts of the Lessee And afterwards the said Machel by his Will willed That the Lessee should retain the Land-demised for thirty one years reckoning the years of the first term not expired as parcel of the said term of thirty one years yielding like Rent and under such Covenants as the Lessee held the former Lease and by the same Will devised the Inheritance over to a stranger It was first moved If here the Lessee for years had a new interest accrued to him by the Will If it shall vest in him as an interest by it self or that both Estates as well the former Lease as the Estate for years devised by the Will should be united by way of Surrender Another matter was because that the Devise is yielding such Rent and under such Covenants c. Now because the meaning of the Devisor was That the Devisee should hold over the Land for the term encreased as he held before if here the Law shall give construction to this Devise as near the intention of the Devisor as it may be and so construe the words of the Will to amount to a condition But by the Opinion of the whole Court the words of the Devise cannot make a Condition for a Condition is a thing odious in Law which shall not be created without sufficient words Another matter was moved If the Fee-simple should pass by this Devise in point of Reversion or Remainder And by the better opinion of the Court it shall pass in point of Reversion for if it should be a Remainder then the Rent which is reserved upon the Lease by the Will shall not be incident to such Remainder and therefore the Law shall qualifie it into a Fee-simple Another matter was moved Admitting that the words of the Devise ut supra are Condition If here in this Case there be a Grantee of the Reversion intended within the Statute of 32 H. 8. As A. seised of Lands in Fee deviseth them to B. for years rendering Rent with clause of Re-entry and by the same Will deviseth the Reversion to another If because that it was never in the Devisor a Reversion or a Condition If the Devisee be within the said Statute to take advantage of it And the Opinion of the whole Court was That the Devisee of the Fee-simple should take advantage of this Condition XLI Trin. 29 Eliz. In the Common-Pleas Postea 210. A Justicies issued forth to the Sheriff of H. for the Debt of 40 l. and the same Plea was held and determined before the Vnder-Sheriff in the absence of the Sheriff It was moved by Puckering Serjeant If a Writ of Error or a false Iudgment lieth in this Case And it was resolved by the Iustices That the Sheriff himself in his person ought to hold Plea of a Justicies and if he make a Precept or Deputation to another it is meerly void 34 H. 6. 48. See the Case there abridged Fitz. Bar. 161. And a Justicies is not an Original Writ but a Commission to the Sheriff to hold Plea above 40 s. And upon a Iudgment given upon a Justicies a Writ of false Iudgment lieth and not a Writ of Error See 7 E. 4. 23. And it was the Opinion of the Lord Anderson That the Iudgment given in the principal Case was utterly void coram non Judice XLII The Queen and Jordan 's Case Trin. 29 Eliz. In the Exchequer 11 Co. 89 90 c.
Postea 82 83. IN Ejectione firmae It was found by special Verdict That Mr. Graunt was seised of the Lands c. and by his Will devised the same to Joan his Wife for life and farther he willed That when Richard his brother shall come to the age of 25 years he should have the Lands to him and the heirs of his body lawfully begotten Mr. Graunt died having issue of his body who is his heir Richard before he had attained the age of 25 years levied a Fine of the said Lands with Proclamations in the life and during the seisin of Joan to A. Sic ut partes ad finem nihil habuerunt and if this Fine should bind the Estate-tail was the Question And the Iustices cited the case of the Lord Zouch which was adjudged M. 29 and 30 Eliz. Tenant in tail discontinues to E. and afterwards levieth a Fine to B. although the partes ad finem nihil habuerunt yet the Fine shall bind the entail But the Serjeants at Bar argued That there is a great difference betwixt the Case cited and the Case at Bar for in that Case the said Fine was pleaded in Bar but here the Fine is not pleaded but found by special Verdict To which it was said by the Court that the same was not any difference For the Fine by the Statute is not any matter of Estoppel or conclusion but by the Statute doth bind and extinguish the Estate-tail and the right of it and Fines are as effectual to bind the right of the entail when they are found by especial Verdict as when they are pleaded in Bar And by Periam Collateral Warranty found by Verdict is of as great force as if it were pleaded in Bar And afterwards Iudgment was given That the Estate-tail by the Fine was utterly destroyed and extinct XLIX Jay 's Case Trin. 29 Eliz. In the Common-Pleas JAY brought an Action of Debt before the Mayor of Shrewsbury c. and declared upon an Obligation which was upon condition to pay money at London and issue was there joined upon the payment And it was moved how this issue should be tried viz. 4 Inst 205. If it may be removed by Certiorare into the Chancery and thence by Mittimus into the Common-Pleas and from thence sent into London to be tried and when it is tried to be remanded back to Shrewsbury to have Iudgment See 21 H. 7. 33. Vpon voucher in the County Palatine of Lancaster the Law is such in matters real for real actions cannot be sued but in the said County Palatine but in personal matters it is otherwise for such actions may be sued elsewhere at the pleasure of the party And thereunto agreed the whole Court and although such matters have been removed before yet the same were without motion to the Court or opposition of the other party and so not to be accounted Precedents See 3 H. 4. 46. abridg'd by Brook Cause de remover Plea 41. Where he saith That a Foreign Plea pleaded in London in Debt goes to the jurisdiction but upon a Foreign Voucher in a Plea real the Plea shall be removed in Bank by the Statute to try the Warranty and afterward shall be remanded L. Sands and Scagnard 's Case Trin. 29 Eliz. In the Common Pleas. IN an Action upon the Case The Plaintiff declared that he was possessed of certain Chattels which came to the Defendant by Trover The Defendant pleaded That heretofore the Plaintiff brought Debt against the now Defendant and demanded certain moneys and declared that the Defendant bought of him the same goods whereof the Action is now brought for the summ then in demand to which the then Defendant waged his Law and had his Law by which Nihil Capiat per breve c. was entred And demanded Iudgment if c. And by Windham and Rodes Iustices The same is no bar in this Action for the waging of the Law and the doing of it utterly disproves the Contract supposed by the Declaration in the said Action of Debt and then the Plaintiff is not bound by the supposal of it but is at large to bring this Action and so Iudgment was given for the Plaintiff LI. Spittle and Davie 's Case Trin. 29 Eliz. In the Common-Pleas Owen Rep. 8 55. IN a Replevin the Case was That one Turk was seised of certain Lands in Fee and by his Will devised parcell of his said Lands to his eldest Son in tail and the residue of his Lands to his younger Son in Fee Provided that neither of my said Sons shall sell or make Leases of the Lands given or bequeathed unto them by this my Will or doe any Act with any of the said Lands to the hindrance of their children or mine by any devise or means before they come to the age of 30 years and if any of my Sons doe so then my other Son shall have the portion of my Lands so devised to his Brother the eldest Son before his age of 30 years leased the Lands to him devised ut supra for years against the intent of the said Proviso The younger Son entred 2 Cro. 398. and he leased the same Land for years before his age of 30 years Vpon which the eldest Son did re-enter and the opinion of the Court was that here is a Limitation and not a Condition and here the re-entry of the eldest Son was holden unlawfull for this Proviso did not extend but to the immediate Estate devised expresly to them and not to any new Estate which did arise upon the limitation and when the younger Son enters upon the eldest Son by the said Limitation he shall hold his Estate discharged of the Proviso or any limitation contained in it LII Martin Van Henbeck 's Case Trin. 30 Eliz. In the Exchequer AN Information was exhibited in the Exchequer against Martin Van Henbeck Merchant-stranger upon the Statute of 18 H. 6. Cap. 17. concerning the gaging of vessels of Wine and shewed That the Defendant had sold to such a one so many pipes of Wine and that none of them did contain as they ought 126. gallons and although they were so defective yet the Defendant had not defalked the price c. according to the want of measure for which he had forfeited to the Queen all the value of all the Wine so defective Exception was taken to the Information because there is not set down how much in every pipe was wanting as one or two gallons c. To as a ratable defalcation might be made according to the proportion of the want of measure But if the Informer had set forth in his Information that no defalcation was at all such general allegation of want of measure without other certainty had been good And the Case was cited 32 E. 4. 40. Lysle's Case Where the plea wants certainty or where he pleads that he was ready to shew to the Council of the Plaintiff his discharge of an Annuity c. and doth not shew
adjudged by the whole Court that the Covenant did not lie by one of them onely but ought to be brought by them both LXI Carter 's Case Mich. 33 Eliz. In the Common Pleas. A Being seised of the Manor of Staple in Odiham 1 Cro. 208. Owen Rep. 84. 8 Co. 119. and of divers other Lands in Odiham suffered a common Recovery of the whole and by Indenture expressed the uses in this manner viz. of all his Lands and Tenements in Odiham to the use of his wife for life the remainder over c. And of the Manor of Staple to the use of his youngest son in tail but by the clear opinion of the whole Court although the Manor of Staple was in Odiham yet the wife shall have nothing therein for the intent of the party was that the son should have the same and his wife the residue and accordingly Iudgment was given LXII Cobb and Prior 's Case Mich. 33 Eliz. In the Common Pleas. THE Case betwixt Cobb and Prior was this A man seised of Lands in Fee devised the same to his Wife during the minority of his Son upon condition that she should not do Waste during the minority of the said Son and died The Wife married a Husband and died the Husband committed Waste It was holden by all the Iustices That the same was not any breach of the Condition and Iudgment was entred accordingly LXIII Taylor and Brounsal 's Case Trin. 33 Eliz. in the Common Pleas. IN an Information upon the Statute of 32 H. 8. by Taylor against Brounsal the Case was That John Brounsal was seised and gave the Lands to T. B. and the Heirs of his body c. the Remainder to R. B. and the Heirs male of his body the Remainder to the right Heirs of J. B. T. B. died having issue a Daughter and R. B. made a Lease for years of the Lands And it was holden by the Court to be no maintenance within the said Statute for he in the Remainder might make a Lease for years Then it was given in Evidence That a common Recovery was had against the Husband and Wife with a single Voucher and so the Remainder limited to R. B. destroyed and that after that Recovery R. B. made the Lease To which it was said by the other side That the said Recovery was never executed and no discontinuance of the Remainder and then the Lease made by R. B. was good and the truth of the Case was That such a Recovery was had and an Habere facias seisinam awarded and retorned but no Execution was in truth had upon it nor the Recoveror never entred And if R. B. who is a stranger to the said Recovery shall be admitted against the Recovery to say That no Execution was thereof was the Question and therefore all the matter was found by special Verdict It was also given in Evidence That the Land was given to T. B. and the Heirs males of his body and then when the Daughter which is not in truth inheritable entereth if that Entry she being privy in bloud to R. hee Vncle shall be a Disseisin or Abatement c. as in the Case of Littleton where the youngest Brother entreth after the death of the Father for in such case the youngest Son doth not get any Freehold but is but a Tenant at sufferance Anderson When the Daughter enters and takes a Husband who leaseth for years and the Lessee entreth the same is a Disseisin Periam doubted it for he said When the younger Son entred the Freehold was in him which Anderson doubted LXIV Maunsel and Vernon 's Case Trin. 33 Eliz. In the Common Pleas. IQ Debt by Maunsel against Hen. Vernon Esquire who came in by Capias i. compulsary Process and pleaded That he was Hen. Vernon Lord Powis and so a Baron of the Parliament and demanded Iudgment of the Writ Note some said That if the Defendant had come in by Issue joyned or gratis and not by compulsary Process he could not have pleaded this Plea or any other Misnosmer The Plaintiff replyed That the Defendant is an Esquire absque hoc that he is Lord Powis and a Baron of the Parliament and as the Iury was ready at the Bar to try this Issue this matter was objected And Anderson conceived That this Plea to the Writ was not good for the name of Lord is not any degree as Knight Duke Earl nor is it parcel of the name nor parcel of addition and therefore it is no Plea in abatement of a Writ and all the Writs of Parliament directed to Barons to summon them to Parliament shall have their Names Sirnames and Additions as if they be Knights Knights and if Esquires they shall be named Esquires and if a Bond be made by J.S. Lord R. the Writ shall not be so for the King by his Writ doth not name any one Lord but otherwise it is of Duke Earl c. for these are Offices of Dignity and parcel of their Names and not onely Additions Windham and Periam contrary and they conceived that there was no difference in this point betwixt a Lord and an Earl for which cause the Court being in doubt although that the Exception was entered of Record would have saved the same to the party and taken the Iury de bene esse but afterwards because it appeared it was joyned in the prejudice of Sir Edward Herbert who was a stranger thereunto and whose Title was concerned therein and there was none on his part to inform the Iury the Iury was at last dismissed by the Court. LXV Penruddock and Newman 's Case Trin. 28 Eliz. In the King's-Bench IN an Ejectione Firmae by Penruddock against Newman 1 Leon. 279 the Plaintiff declared of a Lease made by the Lord Morley and upon Not-guilty pleaded the Iury found this special matter scil That W. Lord Mounteagle seised of the manner of D. whereof c. became bound in a Statute in such a sum of Money to A. who died the Executors of A. sued Execution against the said Lord scil Extendi facias a Liberate issued upon which the said Manor was delivered to the Executors but the said Liberate was not retorned and it was farther found That the Executors being so possessed of the Manor the Lord commanded a Court Baron to be holden there which was done by sufferance and permission of the Executors and in their presence at which time the Executors said to the Lord the Conusor We have nothing to do with this Manor And upon this Verdict several matters were moved 1. If the Execution were well done because the Writ of Liberate was not retorned and as to that divers Books were cited 21 H. 6. 8. 18 E. 3. 25. And there is a difference betwixt a Liberate and a Capias ad satisfaciend and Fieri facias these Writs are Conditional Ita quod habeas corpus c. Ita quod habeas denarios hic in Curia 32 H. 8. ca. 28. 16 H. 7.
14. but contrary in a Writ of Habere facias seisinam or in a Liberate for in these Writs there are not such words and therefore although they be not retorned Execution done by virtue of them is good enough See 11 H. 4. 212. If the Sheriff by force of an Elegit doth deliver the moyety of the Land and doth not retorn the Writ if the Plaintiff will plead a new Action of Debt the Defendant may plead in Bar the Execution aforesaid although the Writ be not retorned nor doth remain upon Record and it is not like unto the Case of Partition made by the Sheriff for that must be retorned because that after the Retorn of it a secondary Iudgment is to be given scil Quod Partitio praedict firma stabilis remaneat in perpetuum firma stabilis in perpetuum tenetur says the Book of Entries 114. And Egerton the Solicitor-General cited a Case to be lately adjudged betwixt the Earl of Leicester and the Lady Tanfield Earl of Leicester and Tanfields case That such an Execution was well enough although the Liberate was not retorned The second point was Admitting that it be a good Execution If the Executors being in possession of the Manor and suffering the Conusor to hold a Court there and saying the words aforesaid in the presence of the Lord who is Conusor if the same do amount unto a Surrender or not And it was the Opinion of Wray chief Iustice That it was not a Surrender for that here the words are not addressed to the Conusor who was capable of a Surrender but to other persons And it is not like unto the Case of 40 E. 3. 23 24. Chamberlains Assise where Tenant for life saith to him in the Reversion That his Will is that he enter upon the Land the same is a good Surrender because here is a person certain who may take the Land But in our case it is but a general speech and therefore it shall not be a Surrender LXVI Baskervile and Bishop of Hereford 's Case Mich. 29 Eliz. In the Common Pleas. IN a Quare Impedit brought by Walter Baskervile against the Bishop of Hereford and others the Plaintiff counted That Sir Nicholas Arnold Knight was seised of the Advowson in gross and granted the same to the said Baskervile and others to the use of himself for life and afterwards to the use of Richard Arnold his Son in tail Proviso That if the said Nicholas died his Heir being within the age of twenty three years that then the Grantees and their Heirs should be seised to themselves and their Heirs until the said Richard had accomplished the said age Sir Nicholas died Richard being but of the age of fourteen years by force whereof the Grantees were possessed of the said Advowson c. and afterwards the Church became void and so it appertained to them to present Exception was taken to the Count by Serjeant Gawdy because the Plaintiff had not averred the life of Richard upon whose life the interest of the Plaintiff did depend and he compared the same to the Case of the Parson which had been adjudged where the Lessee of a Parson brought an Ejectione Firmae and it was found for him and in Arrest of Iudgment Exception was taken to the Declaration because the life of the Parson was not averred and for that cause the Iudgment was stayed Anderson Vpon the dying of Sir Nicholas Richard being but of the age of fourteen years an absolute Interest for nine years vested in the Grantees not determinable upon the death of Richard or rather they are seised of a Fee determinable upon the coming of Richard to the age of 23 years Rhodes and Windham Iustices contrary and that here is an Interest in the Grantees determinable upon the death of Richard within the term for if Richard dieth without issue within the term the Remainder is limited over to a stranger And as to the Exception to the Count it was argued by Puckering Serjeant That the Count was good enough for although the life of Richard be not expresly added yet such an averment is strongly implied and so supplyed For the Count is Quod dictus Nich. obiit dicto Richardo being of the age of fourteen years non amplius by force of which the Plaintiff was possessed of the said Advowson quo quidem Nich. sic possessionato existente the Church voided and possessed he could not be if not that the said Richard had then been alive and that is as strong as an Averment See 10 E. 4. 18. In Trespass for breaking of his Close the Defendant pleaded That A. was seised and did enfeoff him to which the Plaintiff said That long time before A. had any thing B. was seised and leased to the said A. at will who enfeoffed the Defendant upon whom B. re-entred and leased to the Plaintiff at will by force whereof he was possessed untill the Defendant did the Trespass and that was allowed to be a good Replication without averring the life of B. who leased to the Plaintiff at will for that is supplied by the words scil virtute cujus the Plaintiff was possessed untill the Defendant did the Trespass See also 10 H. 7. 12. In an Assise of Common The Defendant made Title that he was seised of a House and a Carve of Land to which he and all those whose Estate he hath c. had common appendant and doth not say That he is now seised of the House but the exception was disallowed for seisin shall be intended to continue untill the contrary be shewed LXVII Morgan and Chandler 's Case Trin. 29 Eliz. In the King's-Bench IN Debt for Arrerages of Rent by Morgan against Chandler It was found by special Verdict That the Land out of which c. was assured by an Act of Parliament to the Marchioness of Northampton for the term of her life the remainder to the Lady Bourcher her daughter and the heirs males of her body the remainder to King H. 8. in Fee And it was ordained by the same Act Quod omnes concessiones dimissiones Anglice Grants and Leases factae vel in posterum fiendae by the said Marchioness of the Lands aforesaid per script Indentat dict Marchio bonae validae in Lege erunt durante termino c. The Marchioness made a Lease for 21 years to Kenelm Throgmorton rendring 10 l. Rent who assigned the same to the Defendant The Lady Bourcher died without Issue the Marchioness died and if the Lease should now bind the Queen was the Question And it was moved by Clark of Lincoln's-Inn That it should for the King was party to the Act of Parliament and those Estates for life in Tail and in Fee are all as one Estate and derived out of one Estate and the Estate of the King is bound with the Lease and it was moved by Broughton That the Lease should not bind the Queen and so by consequence not her Patentee and he
was both against the common Law and also against all Conscience These matters coming to the knowledge of the Iustices and the mischiefs thereupon following being very frequent and it appearing that the Tenant in tail was a dangerous fellow and that there was no safe dealing with him they took consideration of them and considering also with themselves That Lineal Warranty and Assets and Collateral Warranty without Assets did bar the Entail upon this consideration they grounded the practice and usage of common Recoveries So as by that means Tenant in tail hath Potestatem alienandi as he hath at the Common Law and by this means right was done to the Common Law because its authority was restored and thereby injury was done to no man But as for Tenant for life he never had Potestatem alienandi And as to that which hath been said That the recovery shall stand in force untill after the death of Tenant for life and in our Case here Tenant in tail is alive Truly if the Law should be such great mischiefs would follow For then great Iointresses the Widows of great persons having assurances to them of great and stately Houses and of Lands furnished with Timber of great yearly value might suffer such Recoveries and so having plucked the Fee out of the Heirs might commit waste and the same should be dispunishable which would be an intolerable mischief and so he concluded that the suffering of a Recovery was a forfeiture and Iudgment Trin. 21 Eliz. was given and entred accordingly XC Noon 's Case Trin. 31 Eliz. In the Exchequer DEBT was brought in London against one as Executor and upon fully administred pleaded it was found for the Plaintiff who assigned the same to the Queen whereupon a Scire facias issued out of the Exchequer against the Defendant into the County of Dorset The Serhiff retorned Nulla bona c. which Scire facias was upon a Constat of goods in another County It was agreed by all the Barons that the Debt was well assigned to the Queen And also that the Scire facias might issue forth of another Court than where the Record of the Iudgment remained and that upon a Constat of goods in another County than where the Writ is brought or where the party is dwelling he may well have a Scire facias in another County But the Retorn was challenged because contrary to the verdict As in a Replevin No such beast is not a good Retorn but Averia elongata or Nullus venit ex parte querentis ad monstrand averia And here the Sheriff might have retorned Devastavit which well stands with the Verdict 5 H. 7. 27. But as to that it was said by the Barons That it is true that the Sheriff of the County where the Writ was brought is concluded by the Verdict to make any retorn contrary to it but the Sheriff of another County shall not so be but the Sheriff of the County where the Writ is brought ought to retorn Devastavit c. and thereupon the Plaintiff shall have Process into another County But the Question farther was If a Scire facias upon Testatum shall issue into another County before that the Sheriff of the County where the Writ is brought had retorned a Devastavit for some conceived That a Devastavit where the Writ was brought ought first to be retorned and then upon a Testatum Process should issue forth into any County within England But others were of opinion That without a Devastavit retorned upon a Testatum Process might be sued forth immediately into any other County Williams said If I recover goods by Action brought in Midd. I may upon a Testatum have a Capias into any foreign County XCI Western and Weild 's Case Trin. 31 Eliz. In the Exchequer IN a Writ of Accompt brought in London the Defendant pleaded Never his Receiver c. which was found for the Plaintiff and Iudgement given that the Defendant should accompt Afterwards the Defendant brought his Writ of Privilege and if the same should be allowed after Iudgment was the Question Coke It shall be allowed for the Defendant hath not surceased his time This Iudgement to accompt is not properly a Iudgment for no Writ of Error lieth upon it before the accompt be ended Manwood Regularly after Iudgment no privilege shall be allowed but that is to be intended of a Iudgment ended but here notwithstanding this Iudgment the Action is depending and therefore he conceived that the privilege should be allowed in this case It was objected That then the Plaintiff should be at great mischief for he should lose the advantage of his Trial for he must begin again and plead again and have a new Trial. Clark the Plaintiff shall have benefit of his former Trial by way of Evidence XCII Brian and Cawsen 's Case Trin. 27 Eliz. In the Common-Pleas Rot. 1353. 3 Len. 115. IN an Action of Trespass by Brian and his Wife and others against Cawsen That William Gardiner was seised in Fee according to the custome of the Manor of C. of certain Lands and surrendred them to the use of his last Will by which he devised them in this manner i. I bequeath to John Th. my House and Land in M. called Larks and Sone To Steph. Th. my House and Land called Stokes and Newmans and to Roger Th. my House and Lands called Lakins and Brox. Moreover If the said John Stephen or Roger live till they be of lawfull age and have issue of their bodies lawfully begotten then I give the said Lands and Houses to them and their Heirs in manner aforesaid to give and sell at their pleasure but if it fortune one of them to die without issue of his body lawfully begotten Then I will that the other brothers or brother have all the said Houses and Lands in manner aforesaid and if it fortune the three to die without issue in like manner Then I will that all the said Houses and Lands be sold by my Executor or his Assigns and the money to be given to the poor The Devisor dieth John Stephen and Roger are admitted according to the intent of the Will Roger dieth within age without issue John and Stephen are admitted to his part John comes of full age and hath issue J. and surrenders all his part of the whole and his Estate therein to the use of Stephen and his heirs who is admitted accordingly Stephen comes of full age John the father dieth Stephen dieth without issue John the son as cosin and heir of Stephen is admitted according to the Will and afterwards dieth without issue The Wives of the Plaintiffs are heirs to him and are admitted to the said Lands called Larks and Sone and to the moyety of the Lands called Lakins and Brox parcell of Lands where c. by force whereof they enter into all the Lands where the Trespass is done and it was found That A. sole Executor died intestate and that Cawsen
the Reign of King H. 8. And if the Common Law doth not warrant such Executions Truly the presidents cannot make such imprisonments lawfull without Act of Parliament It hath been said that Executions ought to be favoured that is true but also Liberty to which the Law hath special respect See the Statute of Magna Charta Nullus liber homo capiatur vel imprisonetur nisi per legale judicium parium suorum vel per legem terrae and this is not Lex terrae but usage onely and Malus usus est abolendus 26 Eliz. Error was brought upon a Iudgment given in Curia de Woodstock which is a Court of Record and Error assigned for that they had awarded Execution secundum consuetudinem Villae against one who had bailed the Defendant without a Scire facias first sued forth against him i. the bailee and it was adjudged Error and the custome could not maintain it for the Bailee might have a release or other matter of discharge to plead And he cited the Case of 13 and 14 Eliz. Dyer 306. That upon a Scire facias out of a Recognizance in Chancery Iudgment was given for the Plaintiff and the Warden of the Fleet was commanded to detain the Conusor in his custody in Execution for the Plaintiff and afterwards the Conusor escaped the Plaintiff not satisfied And it was holden no escape for his body was not liable in case of a Recognizance to the Execution and see also the book of Entries 500 there is a Rule put If the Recognizee will have execution within the year he may have a Fieri facias or Elegit but not a Capias ad satisfaciendum And he conceived that this Process is not onely erroneous but also utterly void As a Capias in a Formedon antea 77. contrary where in Debt a Capias is awarded after the year where it ought to be Scire facias the same is but erroneous for such Process lieth upon such Iudgment if he had not surceased his time Another matter he moved because this issue is not well tried for it was tried by Nisi prius out of the Exchequer and the Statute of West 2. cap. 30. Mar. 14 E. 3. cap. 1. do not give Nisi prius in Causes out of the Exchequer but onely out of both Benches but Causes out of the Exchequer are tried by Commission and here their Commission was insufficient for it was directed Chr. Wray and Williel Periam without saying Et eorum alteri so as it was joynt and not several and Wray at the time of the trial was as the Parliament at London and so the cause was tried before Periam onely and therefore coram non Judice At another day The Case was argued by the Barons of the Exchequer And Clark Baron conceived that the Plaintiff ought to recover and he said That upon the escape the Common Law gave an Action upon the Case against the Sheriff and the reason why the Sheriff shall be charged is that one cannot be in Execution but once and then if the Sheriff should not be charged the party Plaintiff should by negligence of the Sheriff lose his Suit and also his Debt And admit that a Capias doth not lie in the Case yet the Execution by force thereof is not void but voidable onely and Error may be assigned as well in the Execution as in the Iudgment which see 17 Ass 24. where the Recognizor in a Statute Merchant aliened the Land and afterwards the Conusee sued forth Execution so as the Land was extended supposing the payment i. Solvend 14 E. 3. whereas in truth it was 16 E. 3. and the Feoffee brought a Writ of Error thereupon and it was allowed but the Sheriff shall not take advantage of the same And truly the common course is That a Capias lieth upon a Recognizance and 7 H. 4. 101. upon a Recognizance acknowledged for the Peace a Capias lieth for the King and a Recognizance is but an Obligation of Record and wherefore should not a Capias lie thereupon as well as upon an Action brought upon an Obligation The Statute of West 2. cap. 45. Si recens sit Cognitio statim habeat Querens Breve de Executione illius Recognitionis and the Statute doth not speak in certain what manner of Writ or what manner of Execution therefore we ought to resort to the Common Law for it as that is a Capias Gent Baron argued and agreed in every point with Baron Clark. Manwood chief Baron argued That the Plaintiff should recover and he put the Case of Recognizance The Plaintiff sueth two Scire facias's upon which two Nichel's are retorned and afterwards a Levari facias and upon that also Nihil is retorned and then issueth a Capias ad satisfaciendum for to take the said Francis Woodhouse who then was in Prison for Felony upon which Capias the Sheriff did arrest him and he being afterwards convicted of Felony escaped upon this matter Debt is brought against the Sheriff A Recognizance taken in the Chancery is a thing upon Record in a Court of Record an Obligation of Record and a Debt upon Record It hath been objected where no Capias lieth in the Process upon the Original there no Capias lieth upon the Execution but it is good to examine the Reason thereof for Lex plus laudatur quando ratione probatur The Capias upon a Recognizance is not by 25 E. 3. but by the common Law for here is a Debt upon Record wherefore shall not this body be subject to it as well as in the case of a Debt upon a bare Obligation I do admit the Rule That where there is no Capias ad respondendum there is no Capias ad satisfaciendum but that ought to be intended in cases where there is an Original and Mesn Process before Iudgment but here is no Original nor Mesn Process before Iudgment ergo our Case is not within the same Rule But I will put a good Rule It is Debt upon Record ergo a Capias lieth In the King's Bench If the Defendant comes in by Latitat if the cause whereof the Action is brought be of importance he is to put in special Bail and those who bail him shall be bounden in a Recognizance c. The Defendant is condemned in the Action Now if the Defendant cannot be found so as Execution may be sued forth against him then a Scire facias shall issue forth against the Sureties which bailed him and upon that a Capias and that is very frequent therein use So also is the course of the Court of Common Pleas ergo it shall be so in the Chancery in case of a Recognizance If one be taken in Execution upon a Statute Staple and sueth an Audita Querela upon a Release or other matter and be bound with Sureties in the double value c. to the King and to the party If he be condemned in the Audita Querela c. and cannot be found a
Scire facias shall issue forth against the Sureties and thereupon a Capias And this question If the Capias in this case lieth or not is to be decided either by Audita Querela in the Chancery or by Error in the King's Bench for the said Courts have authority to affirm the proceedings or to disaffirm them And here the Question was If Woodhouse were imprisoned or no and not if the Capias erronice emanavit or not And he took a difference where Process is awarded out of a Court which hath not authority of the Principal cause there it is coram non judice and the Process is void and if the Sheriff taketh the party by force of such Process it is meerly void and he a Trespassor but contrary if the Court hath authority of the principal cause there if the Process be misconceived it is onely erroneous 10 Co. 76. An unskilfull man in Chancery makes an Appeal of Murther retornable in the Common Pleas and there an unskilfull Clark makes a Capias upon it the same is coram non-judice and not all together void But if in a Writ of Entry in the nature of an Assise the Demandant hath Iudgment to recover Debt and Damages and thereupon issueth a Capias the same is not void for it is but a misawarding of the Process provide emanavit If out of the Common Pleas immediately a Writ issueth to the Sheriff of Chester which is a County Palatine where the King 's Writ doth not run the same is void and false imprisonment lieth upon such a taking A Formedon brought in the King's Bench and upon that a Capias is void coram non judice and the Sheriff is bound to take notice of the Law in such cases that those of the King's Bench have not authority to hold plea in real Actions As to that That Woodhouse was convict of Felony the same shall not avoid the Execution but I grant that the King shall be satisfied before the subject c. And he relied much upon the said Case cited before 13 E. 3. Bar. 253. as to the matter of the Capias 19 H. 9. In Escape the Defendant pleaded a Release of him who recovered to the Prisoner being in Execution and it was holden no Plea. And in the principal Case Iudgment was given for the Plaintiff CXIII Bridget Clark 's Case Antea 30 31. Mich. 29 Eliz. In the Exchequer THE Case was Clark was indebted to Archdel by Obligation and afterwards delivered to Andrews certain Hogsheads of Wine to satisfie the said Archdel the said Debt and afterwards the Obligation of Clark is assigned to the Queen for the Debt of Archdel And if the property of the said Hogsheads of Wine were altered by the delivery of them to Andrews before the Assignment was the Question Egerton Solicitor The property is not altered for the Bailor might have an Action of Account against Andrews before that he hath delivered the same over according to the Bailment but if he hath delivered them over the same is a good bar in an Account But if one be accountable to me upon a Bailment and afterwards I do require him to deliver the Goods over to A. the same is not in bar of Account but is good in discharge of account before Auditors for the same is matter after the Bailment not upon the Bailment If Goods be bailed to bail over upon a consideration precedent of his part to whom they ought to be bailed the Bailor cannot countermand it otherwise it is where it is voluntary and without consideration but where it is in consideration of a Debt not countermandable contrary if it be to satisfie the Debt of another Manwood Where the Debtor of the King is sufficient there a Debt due to him ought not to be assigned to the King but onely where the Debt of the King is doubtfull and that was the ancient course but now at this day multi videntur habentur divites qui tamen non sunt and therefore omnis Ratio tentanda est for the Recovery of the King's Debts But as to the Case before us The Wife is Executrix to her Husband who was indebted to Archdel and she delivers the Goods to Andrews to satisfie Archdel and all that is before the Assignment And I am of Opinion That the property of the said Goods is altered for as the case is Andrews was Surety for Clark and hath a Counter-Bond of Clark to save him harmless If I borrow 100 l. and deliver unto the Lender Plate for the security of it the property general of it is in me yet the Bailee hath a special interest in it untill he be paid If Goods be delivered to A. to pay unto B. A. may sell them An Executor hath Goods of the Testators and he with his own Monies payeth the Debts of the Testator he shall retain the Goods and the property is altered And here in our case Andrews may by virtue of this Bailment sell the Goods and with the Monies arising thereof pay the said Archdel And afterwards Iudgment was given accordingly that the property of the Goods by the delivery over by Andrews was altered CXIV Foskew 's Case Mich. 29 Eliz. In the Exchequer FRancis Foskew seised of the Manor of Foskew in his Demesn as of fee in consideration of a Marriage to be had with Francis his Son with M. Daughter of Sir Edw. Huddleston 9 Feb. 25. Feb. covenanted to levy a Fine of the Manor aforesaid and that the said Fine should be to the use of himself and his Wife for their lives and after their deaths to the use of the said Erancis their Son and M. and the Heirs of their bodies begotten with remainders over The Fine was levied accordingly afterwards 19 Octob. 27 Eliz. Francis the Father acknowledged a Recognizance to the Queen and died his Wife died and now this Manor is extended for the Debt to the Queen by force of the Statute of 33 H. 8. And now Coke came into Court and prayed that the said Manor might be discharged of the Debt to the Queen because it is not chargeable by the said Statute the words of whicih Statute are All Manors Lands Tenements c. which hereafter shall descend remain or revert in Fee-simple tail general or special by from or after the death of any his or their Ancestor or Ancestors as Heir or by Gift of his Ancestor whose Heir he is which said Ancestor or Ancestors was is or shall be indebted to the King or any other person or persons to his use by Judgment Recognizance Obligation c. In every such case the said Manors c. shall be charged c. This Statute was made for the benefit of the King in two points 1. To make Lands entailed liable to the King against the issue tail for the Kings Debts in the cases aforesaid where they were not liable 2. To make Bonds taken by the Officers of the King to the use of the King as
the Lessee entred 29 Sept. which is before the Term begins For the words of the Habendum are From the Feast of St. Michael therefore the Feast of St. Michael is no part of the Term and then was the Defendant a Disseisor and the day after the Term began which cannot alter his Estate but that he continueth a Disseisor and then he is not in by force of the said Lease and so no Rent can be due Williams As the Declaration is here the same is not any disseisin for the Plaintiff set forth in his Declaration That the Lessee the Defendant hath occupied the Land demised the whole year and so hath not admitted any Disseisin it being in his election to make it a Disseisin or not Clench Iustice Be it a Disseisin or not or be it that the Defendant entreth or not he is to pay the Rent Gawdy The Lessee is a Disseisor and continueth a Disseisor and yet Debt lieth against him for the Rent by reason of the privity of Contract which see Rysden's Case 24 H. 8. Dyer 5. And so in our Case Quod fuit concessum per totam Curiam and afterwards Iudgment was given for the Plaintiff CXXII Monings and Worley 's Case Hill. 32 Eliz. In the King's-Bench Rot. 561. Error IN Debt upon an Obligation brought by Mary Worley against Monings in the Common-Pleas The Condition was That if Mary Worley the Plaintiff in the said Action doth not depart out of the service of the Defendant without license of the Defendant Monings nor marry her self but with his consent Then if the Defendant shall pay to the said Mary within twenty eight days after demand by her made of Monings at his house at Waldersey 100 l. That then c. And the Defendant in the said Action pleaded That the said Mary the Plaintiff in the said Action 4 Maii 30 Eliz. departed out of his service without licence The Plaintiff Mary by Replication said That 6 Septemb. the same year she departed out of his service with licence and that 4 Octob. after she demanded the said 100 l. at Waldersey aforesaid and he refused to pay it Absque hoc that she departed out of his service 4 Maii 30 Eliz. without licence and the Writ bare date 18. of October next after the demand And it was found for the Plaintiff and Iudgment given for her in the Common-Pleas and now a Writ of Error is brought by Monings Tanfield The Iudgment ought to be reversed for always the Replication in such cases ought to contain sufficient Cause of Action and sufficient breach of the Condition or otherwise the Plaintiff shall not have Iudgment although that the Issue be found for him as 7 E. 4. 31. In trespass for taking of goods of A. and B. A. pleads Not guilty B. justifies the Plaintiff makes Title to the goods by a gift B. traverseth the gift and it is found for him against the Plaintiff A. is found guilty Now although A. be found guilty yet the Plaintiff shall not have judgment against him for it is found that he hath not any Title to the goods As in Debt upon a Bond against A. and B. A. pleads Non est factum B. pleads the release of the Plaintiff and it is found the Deed of A. and that the Plaintiff hath released to B. the Plaintiff shall never have Iudgment for upon the Verdict it appears that he hath not cause of Action And here in the Replication there is not a sufficient breach shewed of the Condition for although that Mary hath not departed from the service of the said Defendant yet the same is not material but the Defendant had twenty eight days after the demand to pay the 100 l. but the same is not so here for the Plaintiff hath prevented the Defendant for the demand is alledged to be 4. Oct. and the Writ bears date 18. Octob. the same year and so the Defendant had not his time allowed him Gawdy The issue is taken upon the departure out of his service so as the demand is not now material and therefore the alledging of the same is surplusage and shall not hurt And the Defendant hath pleaded in Bar the departure of the Plaintiff out of his service upon which he relieth and the demand set forth in the Replication is not to be regarded as to prejudice the Plaintiff As 3 Ma. Dyer 115. Lessee for years covenants that he will not cut any Trees The Lessor assigns the breach of the Covenant in succidendo twenty Oaks The Lessee pleads that he did not cut the twenty Trees nor any of them The Iury found that the Defendant had cut down ten Trees The Plaintiff upon that Verdict shall have Iudgment for the rest is but surplusage and more put in issue than there needs to be Fenner It is not any full Plea to say That the Plaintiff did not depart out of the service of the Defendant 4 Maii for if she departeth at any other time she shall not recover for which cause she ought to have pleaded That she continued in his service untill such a day and then she departed with his licence and the inducement to the traverse ought to be sufficient matter otherwise it is not a full Plea nor the Traverse is not good And if it be surplusage yet if it be not matter against her self it makes the Plea naught which see 1 H. 7. 29. 6 H. 7. 16. Gawdy conceived that the Iudgment was well given for the Defendant was at his liberty to plead the departure of the Plaintiff without his licence or to stand upon the demand And now although he pleads the departure yet the demand is not confessed And afterwards the Iudgment given in the Court of Common-Pleas was affirmed CXXIII Bashpool 's Case 27 Eliz. In the King's-Bench THE Case was this The Father seised of Lands Stiles Rep. 148. is bound in an Obligation and deviseth his Lands to his Wife untill his Son cometh to the age of twenty one years the remainder to the Son in Fee and dieth and no other Lands descend or come to the Son from his Father It was moved by Godfrey That the Heir in that case at his Election might wave the Devise and take by descent or è contra See 9 E. 4. 18. by Needham But Gawdy and Shute Iustices 3 Len. 118. were of opinion That the Son should be adjudged in by Descent Clench contrary CXXIV Bennet and Shortwright 's Case Trin. 30 Eliz. In the King's-Bench THE Case was 1 Cro. 206. The Defendant sued the Plaintiff in the Spiritual Court for Tythes in kind and now the Plaintiff prayed a Prohibition and suggested That they had used in the said Parish time out of mind c. to take the tenth Sheaf in satisfaction of Tythe of Corn c. and in those years in which the Plaintiff had supposed the subtraction of his Tythes he had severed the tenth Sheaf from the nine parts and the Parson would not take
them away and that he had offered that matter by way of Plea in the Spiritual Court but they there would not allow of it And the Court was clear of opinion That the suggestion was good for if the Parishioner setteth out his Tythes and the Parson will not take them or if they be destroyed by Cattel by his Laches he shall not have Tythes again and therefore if the Ecclesiastical Court will not allow that Plea it is reason that the party have a Prohibition for after severance transit decima in Catalla But it was said by the Court That if the Parishioner doth set forth his Tythes and takes them again he may be sued for Tythes in the Spiritual Court and the setting forth shall not excuse him CXXV Walter against Pery and Springe Mich. 32 Eliz. In the King's-Bench WAlter brought a Scire facias against Pery and Springe Sureties for one Brook upon Bail in an Action of Debt The Defendants pleaded the death of Brook before Iudgment given against him And all the Iustices except Wray held that the Plea was not good for it is a surmise against the Iudgment for Iudgment cannot be given against a dead man. Wray The same is Error in fact and of such Error the party may have advantage in this Court. Gawdy The Surety cannot take advantage of Error nor plead it for he is a stranger to the Record Wray He may plead that the Defendant is dead after the Iudgment quod fuit concessum but it was ruled That the Defendants should be sworn that their Plea was true CXXVI Aldersley and Duparrie 's Case Mich. 32 Eliz. In the King's-Bench IN Debt upon an Obligation bearing date 4. Julii 30 Eliz. The Defendant pleaded that it was endorsed with condition to pay 50 li. before 15 Octob. 31 Eliz. and pleaded that he had paid it before the 15. of Octob. aforesaid scil the ninth of June 30. Eliz. which is three Weeks before the date of the Obligation upon which the Action is brought And they were at Issue That the Defendant Non solvit before 15 Octob c. And the Iury have found That the Defendant had not paid it before 15 Octob. and that matter was assigned for Error for that Plea is contrary and repugnant in it self to alledg the payment before the date of the Obligation But it was moved That here the day of payment is not material and but matter of surplusage for the Issue is Whether the Defendant paid the money before the 15. day of October and the Iury have found the negative so as the day in the Scilicet is not material and the alledging of that is matter of surplusage As 20 H. 6. 15. Trespass Quare clausum fregit herbam consumpsit continuand transgress from such a day usque ad diem impetrationis brevis praedict Scilicet 14 F. 17 H. 6. whereas the date of the Writ fuit 12. Octob. 17 H. 6. scil the October before February But it was not allowed for the day of the Writ brought is certain enough and the mistaking in the Scilicet is not to any purpose Wray Payment before the day is not a good Plea if he doth not shew the day and place It was adjourned CXXVII Parker and Burton 's Case Trin. 31 Eliz. In the King's-Bench IN an Action upon the Case for slanderous words scil That the Plaintiff was perjured The Defendant doth justifie That whereas a suit was prosecuted in the Exchequer-Chamber at Westminster betwixt the Defendant and another and from thence a Commission was awarded out of the said Court to divers persons to examine certain Witnesses at B. in Berk. and there by virtue of the said Commission the Plaintiff was deposed false deposuit praetextu cujus he spake the said words Antea 811. The Plaintiff replicando saith De injuria sua propria absque tali causa upon which Issue was joined and tried in Berk. and found for the Plaintiff And it was moved by Coke in Arrest of Iudgment That the said Issue ought not to be tried in Berks onely but by both Counties Mid. and Berks for all the matter of justification doth arise out of both Counties the Suit and the Commission which was in Midd. and the Execution of the Commission and the Oath which were in Berks all which matters is but one Case as 2 H. 7. 3. and 4. Atkinson The Trial is well for the manner for the matter of the justification is the Perjury and the Suit and Commission are but induction and conveyance to the Action Also the Defendant hath not shewed that the Exchequer-Chamber is in the County of Midd. as he ought As where a man pleads a thing done in any Court except in the Common-Pleas he ought to shew in what County the said Court was at the time that such thing was done for Communia Placita teneantur in loco certo Gawdy and Wray When the Defendant doth justifie by reason of the Perjury and the Plaintiff replies without such cause the same amounts to as much as if he had traversed the Perjury which being supposed to be committed there shall be tryed there Coke It was the Case of one Loveday 25 Eliz. In an Action upon the Case for slanderous words the Defendant did justifie by reason of a Robbery committed by the Plaintiff in another County and the Plaintiff pleaded De son tort demesne sans tiel Cause the same shall be tryed by both Counties See 2 H. 7. 3. Also it was moved that here it is not shewed in what County the Exchequer Chamber is Admit that it be in Berks yet it ought to be tryed by both Counties and that was Chelderlie's Case And although it be not shewed in what County the Exchequer Chamber is the Plaintiff had Iudgment to recover and the Tryal was held good enough CXXVIII Sir Tho. Bacon 's Case Hill. 31 Eliz. In the King 's Bench. A Writ was awarded out of the Court of Admiralty against Sir Thomas Bacon and Sir Thomas Heyden to shew cause whereas the Earl of Lincoln late High Admiral of England had granted to them by Letters Patents to be Vice-Admirals in the Counties of Norfolk and Suffolk why the said Letters Patents ought not to be repealed and adnulled and so the said Writ was in the nature of a Scire facias And now it was made by Coke Postea 114. That although the Admiral had but an Estate for life yet the Patents did continue in force after his death As the Iustices here in the Common Pleas although they have their places but for life yet they may grant Offices which shall be in force after their deaths c. And because this matter is determinable at the common Law he prayed a Prohibition for in the Admiral Court they will judge according to the Civil Law and the Court gave day unto the other side to shew cause unto the contrary or otherwise a Prohibition should be awarded CXXIX Weshbourn and Mordant
Covenant wherein the breach was assigned was That if R. W. Brother of the Plaintiff should say Make assurance of such a Manor to the Defendant as the Council learned of the said Defendant should advise Then if the Defendant pays unto the Plaintiff 50 l. the Obligation to be void The Defendant by advice of Council demanded a Release with Warranty c. And by Periam and Windham The same is not any Assurance but a means to recover in value Anderson contrary That it was a Collateral Warranty c. CLXXIII Cropp and Hambleden 's Case Hill. 28 Eliz. In the King 's Bench. 1 Cro. 48. IN Trespass by Cropp against Erasmus Hambleden upon the special Verdict the Case was That one Martin Hastings was seised of the lands where c. in the right of his wife for the life of the wife and that they both did Lease unto the Defendant for years rendring Rent payable at the Feast of S. Michael and the Feast of the Annunciation c. with clause of re-entry if the Rent be behind by a Month after any of the said Feasts and after the feast of S. Michael 26 Eliz. and before the Month expired the Lessee the now Defendant sent his servant unto the house of the Lessor for to pay to him the Rent then due the servant went unto the house of the Lessor and there asked for him to whom it was answered by one Mary Briggs daughter of the wife of the Lessor who there dwelt in the said house with her mother that the Lessor was not at home for which the said servant delivered the said Rent to the said Mary requiring her to deliver the same over to the Lessor upon his retorn to the house in the name of his servant Mary reserved the said Rent and upon the retorn of the Lessor at his house told him all the matter aforesaid and that the servant of the Lessor the Defendant had required her to tender the said Rent to the Lessor in the name of the Defendant and thereupon offered and tendered to him the said Rent and the Lessor refused it And the Iury found That the third half year before the tender mentioned before the Lessor commanded the said Mary to receive the Rent then due who did accordingly and that the next half year then following the said Mary did receive the said Rent without commandment of the Lessor but after the Lessor agreed unto it and that the immediate half year before this tender in question the Defendant paid the Rent then due to the Lessor himself who received it And it was the opinion of Wray chief Iustice that this tender was good and it is not like unto the case of an Obligation for there the Obligee cannot have an Action of Debt before the last day but here the Lessor might have distrained or have had an Action of Debt before the Month expired and so the Lessor is bound by this tender and by Gawdy Iustice This tender cannot be said a tender by a stranger for here Mary came in privity of the servant of the Lessee and as it is found by Verdict Mary tendered it to the Lessor as being requested by the servant of the Lessee And afterwards upon consideration had betwixt the Iustices themselves the Iustices viz. Clench Gawdy and Wray for Shute was then sick it was clearly resolved against the Plaintiff and that the said tender as it is found in the Verdict is a good and sufficient tender and the Lord Wray delivered the reason as before and farther said That if the said Rent had been reserved payable at the feasts aforesaid or within a Month after each of them there the tender as above had not been good nor should bind the Lessor for in such case the Lessor could not distrain or have an Action of Debt for the said Rent before the Month expired And this is a case of extremity and deserves no favour and here is no mischief to the Lessor for he might have had his Rent in due time if he would and his captious refusal shall not avail him And Iudgment was given accordingly CLXXIV Bostock and Covert 's Case Trin. 33 Eliz. In the Common-Pleas BOstock and his Wife brought a Writ of Dower against Covert son and heir of her former Husband who pleaded That the Husband of the Demandant was seised of Lands amounting to the number of 300 Acres and held the same by Knights-service and died seised after whose death by virtue of the Statute of 34 and 32 H. 8. he entred into 100 Acres of the said Lands as the third part of the said Lands descended and held the same in severalty being the third part of the clear yearly value of the whole discharged of a Dower and that the Wife ought to have all her Dower out of the two parts devised And Anderson said That the Plea was not good for the heir who will take advantage of the Statute in that point ought to enter generally as Tenant in common with the Devisee and then in a Writ of Dower it is a good Plea so if after his entry as Tenant in common Partition be made betwixt him and the Devisee such a Plea is good but here he hath entred severally into a third part distinct from the residue and so hath ousted the Devisee of a third part severally for which cause he cannot have advantage of this Plea To which the rest of the Iustices Non contradixerunt CLXXV Sir John Southwel 's Case Pasch 37 Eliz. In the Exchequer 3 Len. 147. SIR John Southwel of the County of Lancaster 7 Julii 19 Eliz. made a Conveyance of his Lands to divers Feoffees and their Heirs upon condition that they should find him and his Wife and so many persons in his house c. prefer his Daughters in marriage pay his debts c. And if there fell out at the years end upon accompt made by the Feoffees any surplusage that then at the end of every such year they should answer such surplusage as should then remain in their hands unexpended of the Rents and profits of his said Lands with clause of revocation c. Afterwards the said Conveyance being in force came the Statute of 23 Eliz. concerning Recusants upon which Statute the said Southwel is now endicted and afterwards upon a Commission issuing out of the Exchequer to the Sheriff of Lancaster to enquire of the Lands of the said Southwel although against the said Conveyance it was given in Evidence That after the said Conveyance the said Sir John Southwel had granted Trees from off the said Lands and had received Fines and Incomes for Leases c. yet the Iurors charged to enquire would not find that the said Sir John Southwel had any Lands c. And by special command from the Queen it was referred out of the Exchequer to all the Iudges of England If the Lands of the said Sir John Southwel conveyed as aforesaid were subject to the said
Tho. Henage Hungate's Case the Queen leased for years unto Hungate provided that he should not do Waste Waste is done the Queen granted the Reversion to Sir Tho. Henage Office is found the Grantee entred and his entry was adjudged lawfull and that the Queen should have the mean profits from the time of the Waste done untill the time of the Grant. Some say Sir Walter Mildmay's Case that that case was not adjudged but compounded And he vouched Sir Walter Mildmay's Case The Lord Sturton held Lands of the Queen in Knights-service and was attainted of Felony by which the Lands escheated to the Queen who granted those Lands and it was holden that the Queen should have the mean profits betwixt the time of the Felony committed and the Grant. And after in the principal Case Iudgment was given for the Plaintiff scil the Patentee of the Queen against the Lessee who cast in a Writ of Error and by his Council prayed That the Writ of Error be not broken open untill the Iudgment be entred Manwood The Iudgment hath reference and relation unto the first day of this Term and therefore do not doubt of that CLXXIX Sted 's Case Mich. 32 Eliz. In the Exchequer 3 Len. 259. STed of Great Melton in the County of Oxford was assessed to 7 s. for Fifteens and upon refusal to pay it the Collectors distrained the Beasts of Sted and sold them Sted brought Trespass thereupon in the King's-Bench and the Collector exhibited his Bill into this Court against Sted who shewed by his Council That the Statute of 29 Eliz. which enacted this Fifteen provideth That the said Fifteen shall be levyed of the movable Goods and Chattels and other things usual to such Fifteens and Tenths to be contributary and chargeable and shewed farther that the Cattel distrained were tempore districtionis upon the Gleab Land of a Parsonage presentative which he had in Lease which Gleab Land is not chargeable usually to Fifteens granted by the Temporalty nor the Chattels upon it But it was the Opinion of the whole Court Although that the Parson himself payeth Tenths to the King yet the Lay-Farmor shall pay Fifteens and his Cattel are distrainable for it even upon the Gleab Land of the Parsonage and therefore it was adjudged that in the principal Case the Distress and Sale were good and lawfull CLXXX The Dean and Chapter of Winsors Case Mich. 32 Eliz. In the Exchequer 3 Len. 258. IN this Case it was moved If one hath a Rectory impropriate and by the Statute of 26 H. 8. cap. 3. is to pay an annual Rent for the same in the name of a Tenth and by that is discharged of Tenths and first fruits If he shall have the Privilege of the Exchequer for he is to pay the same sum yearly And the Barons were of Opinion that he should not for so every one who is to pay any Tenths or first fruits should draw another who sueth him into the Exchequer and so all Controversies concerning Tithes and Parsonages should be drawn hither which should be a great prejudice to the Spiritual Courts But Egerton Conier's Case Solicitor vouched a Case scil Conier's Case where the King gave a Parsonage to a Priory in Frankalmoign and the Tithes thereof being withdrawn the Prior impleaded him who withdrew his Tithes in the Exchequer and in that Case it was holden that the Prior should have the Privilege for the King is in danger to lose his Patronage or rather his Foundership if the Rectory be evicted Gent Baron The Tenant of the King in chief or he who pays first fruits or he who holds of the Queen in Fee-Farm shall not have in such respect the Privilege here Quaere CLXXXI Cony and Beveridge 's Case Mich. 30 Eliz. In the Common Pleas. 3 Len. 216. IN Debt upon a Bond the Case was That the Plaintiff leased unto the Defendant certain Lands lying in the County of Cambridge rendring Rent and afterwards the Defendant became bounden to the Plaintiff in a Bond for payment of the said Rent upon which Bond the Plaintiff brought an Action of Debt in the County of Northampton to which the Defendant pleaded payment of the Rent without shewing the place of payment and upon payment they were at issue and found for the Plaintiff by Nisi prius in the County of Northampton In Arrest of Iudgment it was moved that the issue was mis-tryed for here the payment of the Rent being pleaded without shewing the place of payment it shall be intended that the Rent was paid upon the Land which is in the County of Cambridge See 44 E. 3. 42. Anderson was of opinion that no Iudgment should be given for the cause aforesaid Rhodes and Windham contrary for it doth not appear that the issue is mis-tried because that no place of payment is pleaded and it might be for any thing is shewed that the Rent was paid in the County of Northampton CLXXXII Berry and Goodman 's Case Trin. 30 Eliz. In the King's-Bench IN an Ejectione Firmae upon a special Verdict the point was Ow. 95 96. One intruded upon the possession of the Queen into Lands in Kisgrave in Suffolk and during this Intrusion the Queen granted these Lands to A. B. by her Letters Patents and the Patentee before any Entry made in the said Land granted the same over Some held that the Grant was good for the Intruder had gained nothing against the Queen and by the Grant of the Queen and the assignment over nothing accrued to him and where a man hath possession of Lands his continuance therein cannot gain to him any interest or increase his Estate without some other act done of later time If the Guardian do continue in possession after the full age of the Heir he is not a Disseisor nor hath any greater Estate in the Lands and upon the Book of 21 E. 3. 2. this Case was collected The Tenant of the King dieth his Heir within age a stranger intrudes the Heir at full age sueth his Livery out of the King's hands the Intruder dieth in possession the same descent shall not take away Entry Coke contrary The Intruder cannot be Tenant at sufferance for at first he enters by wrong and none can be Tenant at sufferance but he who comes in by Title And it is clear That the Intruder by his first Entry doth not gain any Estate in possession upon which he can have an Action of Trespass but after the Grant of the Queen he hath presently Fee by wrong 8 H. 4. 129. A stranger enters upon the King to which he hath right in the right of the Ward yet the Freehold doth remain in the Heir And he said that if A. levyeth a Fine to B. sur Conusans de droit c. now the Conusee hath possession in Law but not in fact and if before the entry of the Conusee W. entreth and dieth seised he hath no remedy for he had not possession
petentis And upon that Replication the Defendant did demur in Law and the opinion of the whole Court was That Iudgment should be given against the Plaintiff for if he should oust the Defendant of his prescription by the Law of the Forrest he ought to have pleaded the Law of the Forrest in such case viz. Lex Forrestae est c. for the Law of the Forrest is not the common Law of the Land and we are not bound to take notice of it but it ought to be pleaded or otherwise the Plaintiff ought to have traversed the prescription of the Defendant for here are two prescriptions one pleaded by the Defendant by way of Bar the other set forth by the Plaintiff in his Replication without any traverse of that with is alledged in the Bar which cannot be good but if the Plaintiff had shewed in his Replication Lex Forrestae talis est c. then the prescription of the Defendant had been answered without any more for none can prescribe against a Statute Exception was taken to the Bar because the Defendant had justified the cutting down of Oaks without alledging that there was not any underwood but the Exception was not allowed for he hath choice ad libitum suum Another Exception was taken because he hath not shewed that at the time of the cutting it was not fawning time Poph. 158. 2 Cro. 637 679. for at the fawning time his prescription did not extend to it and that was holden a good material exception but because the Plaintiff had replied and upon this Replication the Defendant demurred the Court would not resort to the Bar but gave Iudgment upon the Replication against the Plaintiff CCLIX Mich. 29 Eliz. In the Common-Pleas A Black-Smith of South-Mims in the County of Middlesex took a Bond of another Black-Smith of the same Town that he should not exercise his Trade or Art of a Black-Smith within the same Town nor within a certain precinct of it and upon that Obligation the Obligee brought an Action of Debt in the Common-Pleas depending which the Obligor complained to the Iustices of Peace of the said County upon the matter against the Obligee upon which the matter being found by examination the Iustices committed the Obligee to prison and now upon the whole matter Puckering Serjeant prayed a Habeas Corpus for the said Obligee to the Sheriff of Middlesex and it was granted and Fleetwood Recorder of London being at the Bar the Court told him openly of this matter That by the Laws Iustices of Peace have not Conusance of such offences nor could meddle with them for their power is limited by their commission and the Statutes and the Recorder did much relye upon the opinion of Hull 2 H. 5. 5. But by the clear opinion of the whole Court although this Court being a high Court Owen 143. 2 Cro. 596. might punish such offences appearing before them on Record yet it did not follow That the Iustices of Peace might so do But as to the Bond the Court was clear of opinion that it was void because it was against Law. Ante 34. CCLX Trin. 29 Eliz. In the Common Pleas. A Justicies issued forth to the Sheriff of H. for the Debt of 40 l. and the Plea was determined before the Vnder-Sheriff in the absence of the Sheriff and it was now moved by Puckering Serjeant If a Writ of Error or a Writ of false Iudgment did lie in that Case And first the opinion of the Iustices was That the Sheriff himself in his person ought to hold Plea of a Justicies and if he maketh a Precept or Deputation to another the same is meerly void 34 H. 6. 48. And see the said Case abridged Fitz. Bar. 161. and it was said That a Justicies is not an Original Writ but a Commission to the Sheriff to hold Plea ultra 40 s. and upon a Iudgment given upon a Justicies a Writ of false Iudgment lieth and not a Writ of Error See for that 7 E. 4. 23. And it was the opinion of Anderson chief Iustice That such Iudgment is utterly void and Coram non Judice CCLXI Trin. 29 Eliz. In the Common-Pleas NOTE by Anderson chief Iustice That if Cestuy que use 3 Len. 196. 4 Inst 85. Kel 41. after the Statute of 1 R. 3. leaseth for years and afterwards the Feoffees release unto the Lessee and his heirs having notice of the Vse that this release is unto the first Vse But where the Feffees are disseised and they release unto the Disseisor although they have notice of the Vse the same is to the use of the Disseisor and that was the Case of the Lord Compton and that no Subpoena lieth against such a Disseisor See 11 E. 4. 8. CCLXII Hamper 's Case Hill. 31 Eliz. In the King's-Bench HAmper was indicted upon the Statute of 5 Eliz. of Perjury 1 Cr. 147. 3 Len. 230. and in the body of the Indictment The Record was That he Falsa deceptive deposuit whereas the Statute is Wilfully and although in the perclose of the Indictment the conclusion is Et sic commisit voluntarium perjurium Yet the opinion of the Court was that the same doth not help the matter and for that cause the party was discharged For contra formam Statuti will not help the matter nor supply it and yet it was moved and urged That contra formam Statuti would help it and it was holden in this Case That if a witness doth depose falsly but the Iury doth not give credit to it nor give their Verdict against his oath although the party grieved cannot sue him yet he may be punished at the King's suit CCLXIII Moulton 's Case Hill. 31 Eliz. In the King ' s-Bench IT was moved by Coke That one Robert Moulton Tenant in tail 1 Cro. 151. having issue two sons Robert and John died seised and that Robert his son and heir levied a Fine thereof and afterwards levied another Fine and died without issue and John brought two several Writs of Error to reverse both the Fines and the Tenant to the Writ of Error brought upon the first Fine pleaded the second Fine in Bar of it and in Bar upon a Writ of Error brought upon the second Fine he pleaded the first Fine and the Court advised him to plead That the Fine pleaded in Bar was erroneous 7 H. 4. 107. where a man is to annul an Outlawry his person shall not be disabled by any other Outlawry CCLXIV Broccus 's Case Trin. 30 Eliz. In the Common-Pleas BRoccus Lord of a Manor covenanted with his Copiholder 1 Roll. 15. Pordage versus Cole 20 Car. 2. B. R. to assure to him and his heirs the Freehold and Inheritance of the Copihold and the Copiholder in consideration of the same performed did covenant to pay such a sum And it was the opinion of the whole Court That the Copiholder is not tied to pay the money before the Assurance made and the
meaning of the Obligee to have fine gold it was so taken 39 H. 6. 10. and 11. The word uterque id est quilibet pro parte sua See the Book so it was lately adjudged in the Court of Common-Pleas where three were bounden Et eorum uterque which was construed to be Quilibet for we ought always in construction of Deeds to have regard to the meaning of the parties and not to argue the aptness of the Latine word And I conceive That if a Lease be made for life the remainder puero of J. S. who hath a son and a daughter the son shall have the land c. for the most worthy shall be preferred and therefore if a Freeman marrieth a Neife she is enfranchised for ever according to the opinion of Fitzherbert which I hold to be good Law for the husband is the more worthy So if the Lease for life be made 〈◊〉 J. S. the remainder to the right heirs of A. B. who hath issue three daughters and dieth the eldest shall have the remainder and not the other with her because she is the more worthy and so a remainder upon an Estate for life of lands in Gavelkind limited to the right heirs of J. S. who hath issue two sons the eldest shall have it So here in the principal Case Puer shall be expounded son because he is the more worthy But here are other circumstances which give occasion of another construction for this doubtfull word Puer is explained by the English Indenture which the father W. Humphreston caused to be made Unto the use of the eldest Child which is a good exposition of the former Conveyance and I am of opinion that the same ought to be meant of the daughter for so soon as she is born the remainder vests in her and by the birth of the son after shall not be devested Land is leased to A. for life the remainder to T. son of A. who hath two sons of the same name the eldest shall have it because the more worthy but if afterwards the Donor declares his meaning to the contrary the same shall stand c. And afterwards Iudgment was given against the Plaintiff and that the daughter should have the Lands CCLXXVI Pasch 16 Eliz. In the King's-Bench Poph. 182. Hughs Abr. Tit. Devise 657. Case 5. Savile 72 73. Dy. 371. b. Shep. Touch. 449. 15 H. 7. 12. Ante 43. Perk. 547. A Man devised his Lands to his Wife for life and because he was in doubt whether he should have issue or no he farther willed by his Will That if he should not have any issue by his Wife that then after the death of his Wife the lands should be sold and the money thereof coming distributed to three of his bloud and made his Wife and another his Executors and died The Executors proved the Will The other Executor died and the Wife sold the lands and it was the opinion of Wray and Southcote Iustices That the sale was good although it be not expressed in the Will by whom the Lands should be sold for the moneys coming of the sale are to be distributed by his Executors to persons certain as Legacies and it appertains to Executors to pay the Legacies and therefore they shall sell c. As if a man willeth That his lands shall be sold and that the moneys coming thereof shall be disposed of for the payment of his debts now the Executors shall sell the Lands for to them it belongs to pay debts Also they held 3 Cro. 278. 3. More 341. 1 Inst 113. a. 1 And. 145. that the Lands should be sold in the life of the Wife otherwise it could never be sold and also the surviving Executor shall sell the lands because the authority doth survive CCLXXVII Pasch 16 Eliz. In the King's-Bench THree men were bounden by Recognizance jointly and severally against all which the Conusee sued forth Execution by Scire facias and upon issue joined it was found for the Plaintiff in the King's-Bench and Execution awarded by Capias ad Satisfaciend And because the same erronicè emanavit being upon a Recognizance it was drawn off the File and now the Conusee brought an Action of debt upon the Iudgment against one of them and the opinion of the whole Court was that it would not lie because the Iudgment was joint against them all three CCLXXVIII Pasch 16 Eliz. In the King's-Bench A. Brought an Action upon the Case and declared That the Dean and Chapter of Westminster did lease unto him a house for years by Deed indented of which Indenture he was possessed and afterwards lost it and by Trover it came to the hands of the Defendant who sold it and converted the money thereof coming to his own use The Defendant pleaded Not guilty and the Plaintiff gave in evidence That the said Lease was made to him and to one B. and that the said Indenture was delivered to the said B. And that was agreed to be the possession of them both and afterwards B. died and afterwards A. the Plaintiff was the sole owner of it and that was holdden to be good Evidence on the part of the Plaintiff and if the Plaintiff can prove the other part of his Declaration i. e. that the Indenture came unto the hands of the Defendant and that he sold it that then he should recover But it was given in Evidence on the Defendants parts that the said B. sold to the said Defendant his part and interest in the said Lease and also the said indenture so as now he is become Tenant in common with the Plaintiff and then his sale doth not give any cause of Action to the Plaintiff and that was holden by the whole Court to be good evidence without pleading of it The Case went farther That A. being within age his father leased the lands for 20 years and afterwards the son at his full age upon the back of the Indenture did release to the Defendant all his right and it was holden by Wray Iustice That when the father leased he did it as Guardian to his son and it was not any Ejectment of the son but it was a Lease in the behalf of the son although the son might avoid it and then when the endorsment is ut supra the same is a good assignment and afterwards the Plaintiff was Nonsuit CCLXXIX Pasch 16 Eliz. In the King's-Bench IN an Action upon the Case the Plaintiff declared That B. by his Will did devise to each of his daughters he having two daughters 200 l. and that the survivor should have the whole and shewed farther that one of his two daughters died and that B. made his Wife his Executrix and that the said wife took to husband the Defendant and farther declared That the Defendant in consideration of all that and that the Defendant should take the surviving daughter to wife and in consideration that the Defendant had Assets to pay all Debts and
Law doth admit the oath of the party in his own cause as in Debt the Defendant shall wage his Law Periam That 's an ancient Law but we will not make new Presidents for if such oath be accepted in this Case by the same reason in all cases where is secrecy and no external proof upon which would follow great inconveniencies and although such an Oath hath been before accepted of and allowed here yet the same doth not move us and we see no reason to multiply such Presidents The Declaration is that the Plaintiff was robbed of 10 l. de denariis ipsius querentis and upon the Evidence it appeareth That the Plaintiff was the Receiver of the Lady Rich and had received the said money for the use of the said Lady and exception was taken to it by Shuttleworth but it was not allowed for the Plaintiff is accomptable to the Lady Rich the said money And it was agreed that if he who was robbed after he hath made Hue and Cry doth not farther follow the thieves yet his Action doth remain CX Large 's Case Mich. 29 Eliz. In the King's-Bench 3 Len. 182. THE Case was A. seised of Lands in Fee devised the Lands to his wife until William his son should come to the age of 22 years and then the Remainder of part of the Lands to his two sons A. and John The Remainder of other part of his Lands to two others of his said sons upon condition That if any of his said sons before William should come to the age of 22 years shall go about to make any sale of any part c. he shall for ever lose the Lands and the same shall remain over c. And before his said son William came to the age of 22 years one of the other sons Leased that which to him belonged for 60 years and so from 60 years to 60 years until 240 years ended c. Bois A. and J. are joynt-tenants of the Remainder and he said That the opinion of Audley Lord Chancellor of England is not Law scil where a man deviseth Lands to two and to their heirs they are not joynt-tenants as to the survivor but if one of them dieth the survivor shall not have the whole but the heir of his that dieth shall have the moyety See 30 H. 8. Br. Devise 29. And he said That this Lease although it be for so many years is not a sale intended within the Will and so is not a Ioynture 46 E. 3. One was bounden that he should not alien certain Lands and the Obligor did thereof enfeoff his son and heir apparent the same was held to be no alienation within the Condition of the Obligation Of the other side it was argued The remainder doth not vest presently for it is incertain if it shall vest at all for if William dieth before he cometh to the age of 22 years it was conceived by him that the Remainder shall never vest for the words of the Will are Then the Lands shall remain c. 34 E. 3. Formedon 36. Land is devised to A. for life and if he be disturbed by the heir of the Devisor that then the Land shall remain to D. Here D. hath not any remainder before that A. be disturbed It was farther argued that here is a good Condition and that the Devisee is not utterly restrained from sale but onely untill a certain time scil to the age of William of 22 years And it was said that this Lease is a Covenous Lease being made for 240 years without any Rent reserved As such a Lease made for 100 years or 200 years is Mortmain as well as if it had been an express Feoffment or Alienation But it was said by some Antea 36 37. that here is not any sale at all nor any lease for the Lessor himself hath not any thing in the Land demised As if a man disseiseth a Feme sole and seaseth the Lands and afterwards marrieth the disseisee he shall avoid his own Lease 5 E 3. One was bound that he should not alien such a Manor the Obligor alieneth one Acre parcell of it the Obligation is forfeit See 29 H. 8. Br. Mortgage 36. A. leaseth to a religious house for 100 years and so from 100 years to 100 years untill 800 years be encurred the same is Mortmain Vide Stat. 7 E. 1. Colore termini emere vel vendere And in the principal Case if the Devisee had entred into a Statute to the value of the Land leased by the intent of the Will the same had been a sale and such was the opinion of the whole Court and by the Court the word in perpetuum shall not be referred to the words precedent but unto the words following scil in perpetuum perdat the Lands And if a custome be in the case that the Infant of the age of 15 years may sell his Lands if he make a Lease the same is not warranted by the custome And afterwards it was adjudged by the whole Court that the Lease made as before was a sale within the intent of the Will of the Devisor CXI Brooke 's Case Hill. 29 Eliz. In the King's-Bench APpeal of Burglary was brought against Brooke who was found guilty and before Iudgment given the Plaintiff died And now Egerton moved that Iudgment should be given for the Queen upon that verdict or at least that the Declaration in the Appeal should be in lieu of an Indictment and that the Appealee be thereupon arraigned and put to answer the same For if the Appellant had been Nonsuit or released the Defendant should be arraigned at the suit of the Queen Coke God hath now by the death of the party delivered the Defendant and it is not like where the Plaintiff releaseth for there it is the default of the Act of the party but here it is the Act of God and he held it for a rule That where auterfoits acquit is a good Plea there also auterfoits convict shall be a good Plea And it was holden in Sir Tho. Holcroft's Case Sir Thomas Holcroft's Case That where the party is convicted at the suit of the Queen there the Appeal doth not afterwards lie Wray If the Appellant dieth before Verdict the Defendant shall be arraigned at the suit of the King But if his life hath been once in jeopardy by Verdict he conceived that it shall not again be drawn into danger and some were of opinion that the Defendant should be arraigned at the suit of the Queen upon the whole Record and plead auterfoits acquit and that they said was the surest way CXII Ognel and Paston 's Case 29 Eliz. In the Exchequer .. 1 Cro. 64. CLement Paston was Defendant in an Action of Debt brought against him by George Ognel upon an Escape and the Case was this Francis Woodhouse was bound in a Recognizance to the said Ognel Whereupon Ognel sued forth a Scire facias and upon two Nihils retorned had
Iudgment and upon that a Levari facias and then a Capias ad satisfaciendum upon which Paston the Defendant a Sheriff of Norfolk to whom the Capias was directed took the party and afterwards suffered him to escape The Defendant pleaded That before the said Capias the said Francis Woodhouse was committed to him and in his ward continued for Felony and after the Capias was endicted thereof and arraigned and found guilty after which he escaped And all this was found by special verdict First it was argued if upon a Recognizance acknowledged in the Chancery an Action lieth and it was said by Bois That it doth not lie in the mouth of the Sheriff to say that this Capias doth not lie in the Case As if a Iustice of Peace maketh a Warrant to a Constable which Warrant is not good in Law yet the Constable is not to examine that or to dispute the validity of it 5 H. 7. And a Capias hath lain in such case and so it hath been the course for the space of 200 years and he said That although Francis Woodhouse was convict of Felony yet the same is not any discharge of the execution as 35 H. 6. 8. although the husband be attainted of Felony yet he is not so dead in Law but if the King pardon him afterwards he shall be restored and his wife shall have Dower and if he be killed his wife shall have an Appeal 12 H. 4. My Villain is attainted the same is no discharge of his villainage as to me But if the King pardon him after he shall be my Villain 6 E. 4. 4. One is in Execution pro fine Regis and afterwards is outlawed for Felony and hath his Charter of pardon for the Felony yet he remains in Execution for the interest of the party for there the Execution is not extinct but onely suspended Godfrey contrary Capias doth not lie upon a Recognizance but if Debt be brought upon a Recognizance and the Plaintiff recovereth then a Capias lieth which see 14 Eliz. Dyer 306. Puttenham's Case 2 H. 4. 6. In Dower the Demandant recovereth her Dower and damages and prayeth a Capias ad satisfaciendum for the damages but she could not have it for no Capias lieth upon the original and to the same purpose see 8 R. 2. Fitz. Execution 164. 15 H. 7. 15. Capias pro fine lieth for the King where no Capias lieth in the Original but no Capias ad satisfaciendum for the party no Capias in Debt before the Statute of 25 E. 3. and see the Stat. of West 2. cap. 18. cum debitum fuerit recognit si in electione sequent execut habere per Fiere facias or Elegit therefore no other manner of Execution for the Statute hath provided ut supra And he said That debt doth not lie upon a Statute Merchant or Staple See 15 H. 7. 16. Another reason why a Capias doth not lie in such case is upon the words of the Recognizance Et nisi fecerit tunc concedit quod summa praedict levetur de bonis catallis terris tenementis Ergo not of the body And when Woodhouse was convict of Felony the Queen had an interest in his body and upon the pardon the Execution which was suspended during the conviction is now received And he confessed the case of Villainage that during the attainder the Lord cannot meddle with the Villain in the presence of the King See 27 Ass 49. and see 2 H. 4. 65. A. was condemned to B. in certain damages upon an Action of Trespass brought by B. against A. and A. was committed to Newgate in Execution upon a Capias ad satisfaciend and afterwards was arraigned of Felony and thereof attainted and committed to the Ordinary as Clark Attaint And the Iustices commanded the Ordinary That after that the prisoner had made his purgation that he should not let him go at large but should conduct him to the prison of Newgate again And there is a Quaere made by the Reporter If after purgation the Ordinary might suffer him to escape and if he at whose suit he was condemned in Trespass shall have debt against the Ordinary for such escape At another day the matter was argued by Coke for the Plaintiff at the Common Law No Land was subject to Execution i. no Lands of the Debtor himself but yet the Lands of the Debtor being descended to his heir should be chargeable to the Obligee of the Debtor in which he and his heirs were bound and that seemed to be very strange and he conceived That in that point custome and usage had encroached upon the Common Law The Statute of West 2. c. 13. gave Elegit of the moyety of the Lands but yet there was no Capias in Debt before 25 E. 3. cap. 17. before which Statute it was a general Rule That no Capias lay at the Common Law but where the King was to have a Fine See 35 H. 6.6 At the Common Law Capias did not lie but where the Action is vi armis or that the King is to have a Fine For there was Outlawry at the Common Law in such case It will be objected That the Statute of 25 E. 3. which gave Capias in Debt doth not extend to a Scire facias upon Recovery That such Process shall be made in a Writ of Debt as is used in a Writ of Accompt and here is no Writ of Debt but a Scire facias onely If my Debtor upon an Obligation cometh without a Writ and confesseth the Debt I shall have a Capias against him and yet the same is not in a Writ of Debt Ergo so in case of Recognizance Where a Statute speaks precisely of a Writ Original yet oftentimes by Equity it shall extend to a Scire facias and other judicial Process As upon the Statute of 25 E. 3. cap. 7. which enables the Incumbent to plead in a Quare Impedit It shall extend to a Scire facias upon a Recovery in a Quare Impedit 46 E. 3. 13. And in our case a Capias doth not lie by the Letter yet it lieth by Equity And he said That Statute which helps the Subjects to get their debts and rights are to be and have been taken beneficially and liberally expounded in advantage of the Creditors And see 48 E. 3. 14. Where a Scire facias is sued upon a Recognizance a Capias doth not lie but there it is holden that in a Scire facias upon a Recovery in debt a Capias lieth And as to this Capias the Sheriff is but the minister to the Court and he is not to controll the Court but to accept of the same as the same is directed to him It is a common learning in our Law That although the Court doth proceed inverso ordine yet it shall not be utterly void 36 H. 6. 34. Iudgment given at the Common Law of Lands within the five Ports for the five Ports in times past