and Hall the Dean and Canons of Windsor 22. E. 4. were incorporated by the name of Dean and Canons of the Kings free Chappel of St. George the Martyr within his Castle of Windsor adjudged the variance of the Kings and Queens free Chappel was material although the lease was made in the time of Philip and Marie And he vouched also 44. E. 3. fo 3. and 38. E. 3. fo 28. and he said that it seemed to him that this presentation by another name had gained an usurpation by the Provost in his natural capacitie also it seemeth that notwithstanding it is not found that Doctor Airie was presented instituted and inducced yet the special verdict is good enough to have judgement of his part but he agreed that if the truth of the Case had been discovered by the pleading then it ought to be precisely shewed that such exact finding is not necessary in a special verdict as in pleading and he vouched Allens Case 33. Eliz. Banco Regis where the Iury found that Tenant for life made a lease for years and found not the lessor living nor dead and yet in this Case he was intended living and he cited also Haydons Case Cook lib. 3. and Hunts Case 5. Ma. Dyer 153. and he voucht the Case of West against Munson in a writ of error in the Kings Bench wherein the first action being an Assise in the Common Pleas it was alledged for error that the Iury did not finde the Plantiff was disseised but only the Defendant disseised him and yet the judgement was affirmed Dodderidge the Kings Serjeant for the Defendant he agreed that the name of a Corporation is essential to be alwayes used in their grants for thereby they are distinguished from other Corporations but he conceived that in this Case here is a sufficient supplying of that part of the name which is omitted and he said that although the special verdict in one place mentions the name of Queens Colledge yet when they nominate the Corporation it cals them the Provost and Scholers of the Hall omitting the words Queens Colledge and then they finde that the Provost and Scholers by the name of c. and he said that in so much the Iury found precisely that the same Corporation made the demise it is not material by what name they made it and therefore he said that if a Iury finde that I. S. had made a feofment by the name of R. S. this is good enough as it was holden in Shotbolts Case 10. 11. Eliz. and so in 13. E. 2. fitz tit Bastardy pl. 25. a Iury found that two daughters were heirs and that the Defendant was born in espousals a non suit and so 20. Eliz Dyer 361. the Iury found that Executors received rents incident to the reversion and so assets in their hands and he cited also Dyer 372. to the second matter he thought that the omitting of the name precisely of Doctor Airie made the special verdict vitious and will inveigle the Iudges so that they cannot give Iudgement for it may be that Doctor Airie was presented by the same name of Corporation as the other presentee was for he said in truth the Case was so also the special verdict is vitious because they found not any time of the Presentation of Doctor Airie for peradventure he was presented by the said Colledge when he was Provost thereof and then his presentation is not good by 22 E. 4. and to this purpose he cited Heckers case in 12. H. 8. and one Fuljambes case in 6. E. 6. in Bendlows and then admitting that Doctor Airie should be intended an usurper if he shall avoid this lease it was also moved that if a Corporation by a false name present and admission institution and induction is made by a true name if this make a Plenartie and Boswel and Greens case Cook lib. 6. was cited See more after fol. The Maior of Lincolns Case Huddleston and Hills case IN an Attachment against the Maior of Lincoln and the Steward of the Court there being Colshil it was said that if a writ of error be directed to an inferiour Court they ought to execute it in all things although that their fee be not paid nor tendered to them and Mr. Man Secondarie to Roper said that the fee which is demanded by them ought to be indorsed upon the return of the writ of error so that the Iudges may judge of it if it be reasonable and divers presidents warrant that accordingly Huddleston and Hill against Bows an Elegit upon a judgement issued at the suit of Hill and after Hill died and his eldest son sued a scire facias upon the said judgement and holden that it lieth not If a man sue in the Ecclesiastical Court for Tithes of Headlands the Defendant may have a Prohibition but by some he ought to suggest that they are but small Headlands and that there is a custome of discharge in consideration that he paid Tithes in kinde of Meadows and in this case Williams said that if a man keep sheep in one Parish until Shearing time and then sell them into another Parish in this Case the Vendee shall pay the Tithe wool to the Parish where they were depastured in the greater part of the time of the growing of the wool See the Tithing Tavle the fifth question Skelton against the Lady Airie IN a Prohibition the Plantiff saith that was seised of the Mannor of Calthrop and also of the Rectory of Haughton Calthrop and that the land whereof the tithe is demanded is Coppihold and holden of the said Mannor and that this was also found by special verdict accordingly and that it had been always discharged of payment of Tithes and it was argued that the Prohibition did lie for it was adjudged Mich 34. 35. Eliz. that a perpetual union of the Parsonage and the land charged is a sufficient discharge of the Tithes and a prescription may be well enough to be discharged of the payment of Tithes as it appears by a Case put in the Arch-Bishop of Canterburies Case Cook lib. 2. George Crook of Counsel on the other side and he conceived that a perpetual unitie was no perpetual discharge and he said there was no judgement given in the Case cited before and he also said that the Iury in this Case found not a discharge of payment of Tithes but only a new usage to pay by unitie of possession and he cited 10. H. 7. or 6. where the manner of Tithing is set down also he cited the Bishop of Winchesters Case Cook lib. 2. and he cited the Prior of D. Case to be resolved in 40. Eliz. that a Coppiholder may prescribe to be discharged of Tithes by pleading that he was alwayes Tenant by Copie to a spiritual Corporation also he cited the Case of Pigot and Hern mentioned in Cook lib. 2. in the Bishop of Wintons Case fol. 45. and he said that it was adjudged in Sheddingtons Case that if a
Baron answered that he should have them of right see Bartues case in Dyer but the Lord Treasurer said that he saw no reason to satisfie himself thereof Doillie against Joiliffe DOillie Plantiff against Joiliffe in an Action upon the case for false imprisonment of the Plantiffs wife the case was that Leonard Lovies was formerly Plantiff in an action in the Common Pleas against Julian Goddard a feme sole and in this action the Plantiff and Defendant were at issue and a venire facias was awarded and before the return thereof the said Julian took to husband Doillie now Plantiff and after upon a special verdict found in the suit judgement was given in the Common Pleas for the said Julian against th◠said Leonard upon which judgement Leonard brought error in the Kings Bench and a scire facias was awarded against Julian by the name of Julian Goddard as a feme sole and she appeared by Attorney as a feme sole and this as the Defendant said in his answer was by the consent of her husband now Plantiff and after judgement was given to reverse the judgement in the Common Pleas and the entrie of that judgement as it was pleaded by the Defendant here was quod praedict Leonard Lovies recuperet c. versus praedict Julianam c. and costs and damages were taxed c. upon which judgement the said Lovies sued a Capias ad satisfaciendum against Julian Goddard and by vertue of that writ the Defendant here the Sheriff or Devon took the said Julian being the Plantiffs wife and imprisoned her until the Plantiff paid 10. l. which was the cost taxed by the Kings Bench for her deliverance upon which imprisonment the husband only hath brought his action against the Defendant being Sheriff Davenport of Grayes Inne argued for the Defendant and first he thought that between the parties to the error and the first action in the Common Pleas there is an estoppel and admittance that the said Julian continued a feme sole for the process in all the proceedings ought to be as it was in the Original and he vouched 18. Assise pla 16. by which book it appears that if a man bring an assise for lands in the Countie of O. and the Tenants plead a Common recovery of the same land in the Common Pleas this doth conclude the partie to say that the lands did lie else where c. also if an original be depending and before the first Capias or process awarded the Defendant intermarrieth and after a capias issueth against her as a feme sole this is well awarded lib. 5. E. 4.16 and also 5. E. 3. fo 9. and 10. also he said that such a thing as is done between the plea and not after the judgement is not material to alter the proceedings in that course it was begun for the same partie against whom judgement is given shall error have against him for whom the judgement is given except she had married after the judgement for then he agreed that the writ of error shall be brought by the husband and wife in case judgement had been given against the wife while she was sole 35. H. 6. fo 31. and 12. Assise pla 41. and it also appears by 18. E. 4. fo 3. if Trespas he brought against a married wife as against a feme sole and she appears as a feme sole and judgement is given and execution accordingly this is good until it be reversed by error and the Sheriff in such case never ought to examine if it be evil or nor no more then if Trespas be brought against A. my servant by the name of B. and A. is taken in execution the Master shall not take benefit of this misnaming admitting that A. should punish the Sheriff for it also he vouched one Shotbolts case 10. and 11. Eliz. Dyer and 15. Eliz. Dyer 318. in the Earl of Kents case which prove that the Sheriff is to be excused for taking me by a false name and if the Iudges admit this false name yet this judicial writ ought not to be examined by the Sheriff and it was adjourned Shoftbey against Waller and Bromley SHoftbey brought an action upon the case against Waller and Bromley and declared that the Defendants conspired that the said Bromley should commence a suit against the Plantiff and that the Plantiff was then worth 5000. l. and that he was then dwelling in Middlesex and that the Defendants knowing thereof maliciously and falsely agreed that the said Bromley should lay his action in London and prosecute it until the Plantiff were outlawed in the said suit to the intent that his goods should be forfeited to the King and after in performance of the agreement aforesaid the Plantiff suggested that he was dwelling in London and laid his action here which was prosecuted until the Plantiff here was outlawed to his damage c. Tanfield chief Baron thought that if the suggestion was by Bromley to make the process into a wrong County it seemed that the Action should lie against him only but in regard it is shewed in the Declaration that the said suggestion was made by him in performance of the precedent agreement that the action lieth against both which the Court granted Godfrey in this action moved in arrest of judgement and that for two causes the action lieth not upon the matter here it appears by the 4. Eliz. Dyer 214. that a man may say his action wherein an outlawry lies in London and then by the Statute of 6. H. 8. cap. 4. proclamation shall issue into the Countie where he dwelleth therefore the suing of him in another Countie is no such act wherefore an action should be brought no more then if before the Statute of W. 2. cap. 12. a man had brought an appeal Maliciosè yet no remedy before the said Statute as appears in the 13. H. 7. in Kellawaies case because it was lawful to bring an appeal and so notwithstanding the said Statute no action did lie against him who brought an appeal if it abated 9. H. 5. cap. 1. also the Statute of the 18. H. 6. provideth remedy for false appeals or judgement in another Countie maliciosè c. by action of the case whereby it appeareth that in such case the Common Law allowed no action also the Statute of the 18. H. 6. provideth another remedy then that Statute and therefore no action lies against us no more then in the case aforesaid at the Common Law Secondly here is no issue joyned if the Defendants be guiltie of the execution of this practice but only if they be guiltie of the agreement and this is found for the Plantiff but clearly such agreement without execution giveth no cause of action and the word Practizatione comprehends only the going about and not the executing of this conspiracy and therefore the issue should have been general if the Defendants be guiltie or not and therefore he prayed judgement might be stayed and he cited Owen
of the wife of the devisor is not determined until the issue should have come to the age of 18. years and so none of the other points came now in question and judgement was given as above-said Nota that in Mich. 6. Jac. upon a motion made by Mr. Nicholas Row of the Inner Temple it appeared that an inquisition was returned in this Court by force of a commission whereby it was found that one A. was seised of the Mannor of D. and so being seised of the said A. was attainted of Treason in the Kings Bench and of this should be a double matter of Record to intitle the King so that the owner of the land shall be forced to his Petition it was the question and by the Court in regard that the record of the attainder is not in this Court here is not in judgement of Law a double matter of Record but if the attainder he removed into this Court then that and the inquisition would make a double matter of Record and the Attorney general moved that when an office findes the attainder that the party ought to plead no such record Worselin Mannings case AN Information of intrusion was brought against Worselin Manning and others and upon the opening of the evidence at the Bar it appeared that Worsely Manning was an alien born and that he was made a denizen by the King and the Charter of Denization had this Proviso usual in such Charters of Denization that the Denizen should do legal Homage and that he should be obedient and observe the Lawes of this Realm and after by vertue of a Commission under the great Seal an office found that the said Worselin after the Denization purchased the land in question and it was found also by the same office that the said Worselin never did legal Homage and that he was not obedient to all the Lawes of this Realm and there was an offer of demurrer upon the evidence if the Prviso makes the Patent of Denization conditional and so for the not performance thereof the Charter of Denization shall be void and Harris thought clearly that this proviso for the performance and observation of the Lawes doth not make the Patent conditional but the intent only was that if he do not observe them then he shall forfeit the penalties therein appointed to which the Court inclined and after resolved accordingly At another day it was moved in Mr. Rowes case that the possession shall be awarded to the King and in this case Tanfield gave a Rule that Mr. Row ought to plead to the inquisition but no possession should be taken from him for although that the attainder make a double Record yet if the indictment of Treason be taken before Iustices of the peace more then a year after the Treason committed as in this case it was and the partie is outlawed upon this indictment and the inquisition findes this outlawry generally yet this is no double matter of Record for the outlawry is meerly void upon the said indictment because the indictment it self is void and to prove that when an indictment is void that is void as to all purposes be vouched Vauxes case Cook lib. 4. fo 44. and 11. R. 2. and after in this case the Barons awarded proces to plead but not to dispossess the partie Vaux against Austin and others AN Information by Vaux against Austin and others that they did ingross a 1000. quarters of Corn upon not guiltie the Iury found one of the Defendants guiltie for 700. and not guiltie for the residue and found the others not guiltie for all Prideaux moved that judgement may be given to acquit the Defendants in this case and he vouched the 9th of E. 3. fo 1. and 14. E. 4. fo 2. where an Information was brought for forgery and proclaiming false deeds and he was found not guiltie of the proclaiming and 3. Eliz. Dyer 189. in the Lord Brayes case put by the way and therefore he said that if there be an information upon the Statute of Vsury against two and the Iury found the contract to be but with one of them both shall be acquitted and also he vouched Treports case in lib. 6. where a man declared of a lease made by two where in Law it was only the lease of one and the confirmation of the other and therefore evil 8. R. 2. tit brief and if judgement in this case should be given against one being in a joynt information he could not plead it in Bar of another information for the same thing and then he should be twice punished for one fault Hitchcock to the contrary the Defendants plead that they nor any of them are guiltie and issue was joyned thereupon and by him this case is not to be resembled to the cases which have been put of joynt contracts for here the parties commit several wrongs and he said if in a decies Tantum against divers if one be acquitted the other shall be condemned and so in an action of Trespas 37. H. 6. fo 37. touching maintenance and if in Trespas against two one is found guiltie for one part and the other found guilty for the other part and 40. E. 3. fo 35. and 7. H. 6 32. in trespas the Defendant pleads that John S. infeoffed him and R. S. and the Plantiff saith that he did not infeoffe them and the Iury found that be infeoffed the Defendant only in this case judgement ought to be given if either of them be guiltie and therefore there is a difference between that and Wain-wrights case for the information was for the joynt buying of butter and Cheese but here the information is for ingrossing by way of buying and so he prayed that judgement may be given for the King Tanfield chief Baron if upon the Statute of Champertie a man declares upon a joynt demise by two and it is found that one only made the demise it was adjudged good and by him this proves the case in question and the Barons agreed it to be clear that if a contract be alledged to be made with one of them no judgement for usury ought to be given but in the principal case all but Tanfield agreed that several judgements may be given for it is like unto a Trespass and accordingly judgement was given in the principal case against him who was found guiltie Nota by Tanfield chief Baron and all the Court that where the Statute of the 23. Eliz. appointeth that if any will inform against A. Recusant and the Recusant be thereupon convicted that the informer shall have one moitie and the King shall have another yet if a recusant be convicted according to the form of the Statute of 28. Eliz. by indictment an informer can never have any advantage upon an information exhibited after for the Statute of the 28. Eliz. altereth the course of Law which was upon 23. Eliz. and no informer can have any advantage upon a conviction of Recusancy by indictment after the Statute
Woods case in Cook lib. 4. Tanfield chief Baron it is true that the issue should be better if it were general not guiltie of the Trespass aforesaid but yet it is good enough in this case for the special words comprehend as much as the words not guiltie of the practice and agreement aforesaid c. and the word Practizatione comprehends aswel the subsequent Acts of execution as the precedent combination and therefore Tantamounts a general issue and it was good by the Court and as to the action Altham Baron conceived that it lieth although it be for a lawful cause for the Law abhoreth fraud and conspiracy as if two conspire to vex me for my land by suit an action lieth F. N. B. yet it is lawful for every man to sue me without title and he vouched 16. Assise and here it is laid that the Defendants indeavoured to make the Plantiff forfeit his goods which are worth 5000. l. and this is reasonable that it should lie and 9. E. 2. Fitz. discents 52. is our case directly upon the matter and therefore it seemeth to me that it lies Tanfield chief Baron said that 9. E. 2. crosseth this case in part and yet he thought that the action lies to which Snig agreed and it seemed the cases of appeal put by Godfrey did lie well enough without aid of the Statute of W. 2. if there be such a conspiracy Tanfield chief Baron accordingly if it be legally thought without cause yet if without conspiracy the action lieth not for it as it appears in Owen Woods case Cook lib. 4. and in all cases where strangers have nothing to do with the suit brought for the conspiracy and yet combine with the Plantiff in the suit an action upon the case lieth for this vexation and judgement was entred for the Plantiff by the Court. An inquisition for the King was returned here and it was found that Fleet-wood the Kings debtor for his office of receiver for the Court of Wards did purchase a certain Term and interest of and in the rectory of Yeading for divers years then to come and that being so possessed he became indebted to the King and that this term is now in the hands of the Lady Edmonds and by colour of this inquisition the land is extended for the Kings debt Harris Serjeant moved that this inquisition is insufficient to extend the land but good to sell a term and he vouched Palmers case Cook lib. 4. to which the Court inclined but it was adjourned If a Bishop becomes indebted to the King for a subsidie and dieth his successors shall not be charged upon the lands of the Bishoprick but the executors of the predecessor or his heir and if they have nothing the King shall lose it as chief Baron Tanfield said which the Court granted upon the motion of Bridgman for the Bishop of Saint Davids Trallops case A Scire facias issued against Trallop the father and Trallop the son to shew cause wherefore they did not pay to the King 1000. l. for the mean profits of certain lands holden by them from his Majesty for which land judgement was given for him in this Court and the mean rates was found by inquisition which returned that the said mean profits came to 1000. l. upon which inquisition this scire facias issued whereupon the Sheriff returned Trallop the father dead and Trallop the son now appeared and pleaded that he took profits but as a servant to his father and by his commandment and rendred an accompt to his father for the said profits and also the judgement for the said land was given against his father and him for default of sufficient pleading and not for the truth of the fact and he shewed the Statute of the 33 H. 8. cap. 39. which as he pretended aided him for his equitie whereupon the King demurred Hitchcock for Trallop seemed that the Statute did aid him by equity and he moved two things the one that if here be such a debt that the Statutes intends to aid it the other if the Defendant hath shewed sufficient matter of equitie within the intent of the Act and he thought that it is such a debt as the Statute will aid for although that here be au uncertainty of the time of the judgement given for the King that being reduced to a certainty by the inquisition after it shall be within the intent of the Statute for id certum est quod certum reddi potest and the words of the Statute are if any judgement be given for any debt or duty c. and here although that there was no certainty unto how much these mean rates extended at the time of the judgement given yet it is clear that it was a duty at the time of the judgement and then it is within the Statute also he said that the words in the proviso of that Statute explain that the intent of the makers of the Act was so for the words are for any thing for which the partie is chargable and the mean rates are a thing for which he is chargable see Cook lib. 7. fo 20. and the Lord Andersons case there fo 22. as to the point of equitie there seem to be two causes First he shewed that he was but a servant to his father and had given an accompt to him Secondly the judgement was given against him upon a point of mispleading Tanfield chief Baron said that the matter in equitie ought to be sufficiently proved and here is nothing but the allegation of the partie and the demurrer of Mr. Attorney for the King and if this be in Law an admittance of the allegation and so a sufficient proof within the Statute it is to be advised upon and for that point the case is but this a scire facias issueth out of this Court to have Execution of a recognizance which within this Act ought by pretence and allegation of the Defendant to be discharged for matter in equitie and the Defendant pleads his matter of equitie and the King supposing this not to be equity within this Statute demurreth in Law whether that demurrer be a sufficient proofe of the allegation within the Statute or not and it was adjourned Trin. 7. Jac. in the Exchequer Doillie and Joiliffs case again Trin. 7. Jac. in the Exchequer CRessey for the Plantiff said that the Plea in Bar is not good because the Defendant justified by force of a Capias ad satisfaciendum and pleads no return thereof and moved that it is not justifiable without returning of the writ but the Court seemed the plea to be good notwithstanding that but if it were a mean process then it ought to be pleaded to be returned see Cook lib. 5. Hoes case fol. 19. according to this diversitie Tanfield chief Baron thought that the Plantiff shall recover for first the writ of error here is not a writ but a commission and therefore false lattin shall not abate it as it hath been
the profit and comoditie of his Master the Plantiff and it is shewed that he intended to deceive his Master and the Queen also and where a wrong is made to another in my name whereby I am damnified there I shall have an Action and if in this case the Defendant had left the goods in the ship then the Plantiff had suffered no loss and therefore his taking them out of the ship is the cause which occasions the loss to the Plantiff and therefore it is reasonable that he should render us damages and he vouched the writ of deceipt in F. N. B. and divers cases therein put and 21. E. 4. that if a man bring an Action in London and the Defendant to delay my Action brings a writ of priviledge be shall have an Action upon the case and he vouched the like case to be adjudged in the Kings Bench 40. Eliz. between Byron and Sleith upon an Action of the case brought by the Defendant because he sued a scire facias against a Bail in a Court where he ought Bromley Puisne Baron said that the Plantiff shall have judgement First it shall be intended that the Plantiff was beyond the Seas at the time in respect of the Minute of time between his departure and the landing of the goods Secondly he said that it needs not be expressed that the Master had left moneys wherewith to discharge the custome for it shall be intended in this case because the Defendant had taken upon him to meddle according to the appointment of the Plantiff wherefore c. and so he departed to the Parliament Altham second Baron agreed that the Statute for the paying of custome appointeth that if the goods of any man be laid upon the land the custome not paid that then the goods shall be forfeited and therefore here he shall not lose his goods by reason of this Act made by the Defendant so that if the Defendant be a meer stranger to the Plantiff without question an Action of Trespass lies for this taking then in the principal case by reason of this trust an action of the case lies and if a stranger drives my Cattle upon your land whereby they are distrained by you I shall recover against the stranger for this distress by you in an action against him for by reason of this wrongful Act done by him I suffer this loss and he vouched 9. E. 4. fo 4. a case put by Jenney Snig third Baron to the contrary I agree that if a stranger put in my Cattle to the intent to do hurt to me a Trespass lieth but here is an Action upon the case and that lies not because it appears not sufficiently that the Defendant was servant to the Plantiff to Merchandise but generally his servant and therefore an Action of Trespas rather lieth generally for in an Action upon the case he ought to hit the bird in the eye and here it is not shewed that the goods were for the same voyage nor that the Defendant is a Common servant in this imployment also the Declaration is not good because he doth not shew that the Defendant had moneys or means from the Master to pay the custome and he is not compellable to lay out money of his own besides he cannot dispose of the goods until the custome be paid wherefore c. Tanfield chief Baron there are two matters to be considered in the case First if here you charge the Defendant as your special servant or if as a stranger Secondly if as a stranger then if an Action upon the case or a general Action of Trespass lieth and as to the first if in this case you have shewed him to be such a servant as a Bayliff or Steward and he hath misbehaved himself in such a thing which belongs to his charge without any special trust an Action upon the case lieth but if he be taken to be your general servant then he is to do and execute all Acts and lawful commands and against this general servant if his Master command him to do such a thing and he doth it not an action upon the case lieth but yet this is with this diversitie viz. if the Master command him to do such a thing which is in his convenient power or otherwise not and therefore if I command my servant to pay 100. l. at York and give him not money to hire a horse an Action lieth not for the not doing of this command but if I furnish him with ability to do it and then he doth it not an action lieth well against him and in the principal case it is shewed that the Plantiff appointed the Defendant being his servant generally to receive c. and to pay all customes c. then it is examinable if the Plantiff sufficiently inabled this Defendant to do this command and the woâ—ds of the command seem to be all one as if he had commanded the Defendant to receive the Wares paying the custome and therefore the Defendant needs not to receive them if he had not money to pay for the custome and so it is not within the Plantiffs command to receive the Wares and then if he doth receive them not paying for the customes this is another thing then the command anâ— therefore it is no misfeazance as my particular servant but being my general servant he had done another thing then I commanded him whereby I receive some damage and by consequence is in case of a stranger for if my general servant who is not my horse keeper take my horse out of my pasture and ride him this is a thing which he doth not as a servant but as a stranger then as to the second matter the Defendant being as a stranger if an action upon the case or a general action of Trespass lieth for this is as if my general servant take my horse and rides him without my appointment a general action of Trespass lieth but if by reason of his riding my horse die an action upon the case lieth and so it is in the case here the Defendant had laid the goods upon the land by reason whereof they were forfeited it is collourable that an Action upon the case lieth but if a man take my goods and lay them upon the land of A. a Trespass or an Action upon the case lieth against him who took them by the better opinion but it is good to be advised and it was adjourned and at another day Altham Baron said that an Action upon the case or a Trespass generally did lie well enough and he vouched F. N. B. that if a Bailiff arrest one without any warrant I shall have Trespass generally or an Action upon the case at my election and so in the like case 18. E. 4 fo 23. Trespass or Action upon the case lies also by F. N. B. if Executors be outed by the Testators Lessor there they may have an Action upon the case if they will or Trespass generally and in
Executor prosecureth as Executor c. and for the Testator and there it ought to have a resemblance of the Regionall debt and although that the Statute appoints that the sayl shall be to the party as Altham Baron remembred yet here as the pleading purports the Bayl is to the aforesaid Executor which implies a legall dependency upon the first suit Then it hath been granted and the Law is so that if an Executor recover a debt which was due to the Testator and hath judgement for it now if you will have an action upon this judgement this ought to be in the detinet because it is a legall pursuance of a thing given to the Testator and not voluntary as a bond for further security or assurance and so here the Bayl being pursuant and compulsory but by 5. E. 3. if it be voluntary then it ought to be put in the Kings Bench to an Executor which is to be resembled to our case if an Executor bring debt upon a Bayl it ought to be as Executor and not as I. S. cleerely Altham the Bayl in the Kings Bench is upon the originall suit and so it is not here wherefore c. to which it was not answered but for that matter it was adjourned see H. 6. in the Kings Bench if a Feme c. take Husband and one of the Debtors of the Testator promise the husband if he will forbear his suite to pay the debt if the Husband will commence his action upon this promise it ought to be in the name of his Wife also because the action pursueth the Originall debt Williams contr it was agreed that if the Law were such that the Action ought to be in the detinet only then the bringing of it in the debet and detinet is such a Ieofaile as is not aided by the Statute of 18. Eliz. Nichols case and Chamberlains case Cook lib. 5. Tanfield chief Baron said in this case that it is proper that the Action ought to be brought in the detinet only but as our case is here is no issue joyned because here is not a negative and an affirmative for the declaration is that he oweth and detaineth and the Bar whereupon the issue is joyned is that he oweth not so where if his Action ought to be in the detinet then there is not any Nâ—gative and so no issue which was not denyed at another day they agreed that the action ought to have bin in the detinet only and therefore judgement was given that the Plaintif take nothing by his bill Sir Henry Browns case touching the Countesse of Pembrook SIR Henry Browns case wherein Hawkins and Moore were parties was this the Plaintif declared of an ejectment of the Mannor of Kiddington Dâ—le Sale and doth not mention them to be adjacent to any Ville and also of an 100. Acres of Land lying in the same Ville of S. and that upon not guilty pleaded the Iury at the Assises at Oxon were ready and then the Defendant pleaded that the Plaintif after the last continuance had entred into a Close called Well Close parcell of the Tenements mentioned with conclusion and this in the Declaration he is ready to aver and demanded judgement if it c. and this was before Yelveton Iudge of Nisi Prius there and now the Plea here was debated And 1. in this case it was upon conference with all the Iudges allowed that this plea may be pleaded at the Assises well enough and the Iudge there accepting of it had done well but as Tanfield chief Baron said the Iudges may allow it or not for if they perceive that it is Dilatory they may refuse it for it is in their discretion and therefore c. But by Dodderidge the Kings Serjeant the Iudge of Nisi prius is not Iudge thereof if it be well pleaded or not but is to give day to the Parties in Court where the Suit depends to maintain this Plea for he is only appointed Iudge to take the issué and upon such Plea he ought to discharge the Iury of the matter in issue and record the Plea and this is all his duty and by him in this case here is a Discontinuance for the parties have no day given upon the Roll as it ought to be for the day in bank in judgement of Law is all one with the day of Nisi prius and this is of course given to the Parties to hear Iudgement only concerning the matter in issue and here is other matter and therefore the Iudge c. Nota that in all Cases where a thing is pleaded triable before other Iudges the Iudge before whom it depents ought to give day to the Parties to be before the Iudges where the matter is tryable 12. E. 3. Voucher 115. and Title Day 25. and 34. and Assise pla 14. a Lord demands Cognizance of Pleas day ought to be given to the Franchises or otherwise it is a discontinuance of the Nisi prius for there ought to be a speciall day for the parties here to hear judgment in this Plea 10. H. 7. fo 26. so if at the Nisi prius a protection be cast the Iudges shall give day to the Parties in Bank to hear judgment if this protection shalve allowed or not for the Iudg of Nisi prius is no Iudg therof Also the Iudg in this case ought to have discharged the Iury it appears not here that he had done so therefore upon the whole matter it is a discontinuance but admitting that here was no discontinuance it seemeth that the plea was good and I agree that in all cases of Pleas issuable the plea ought to be expresly shewed or that which Tantamounts and here is shewed that which Tantamounts for when the Plantiffe in his Action had shewed the names of the Mannors and the Towns in which the acres lies then the Venue to try it for every parcel shall come de vicineto from all together and by consequence it is reasonable that the Venue for the trial of one particular to be parcel or not parcel shall come from all for if the plea in this case were that the Plantiff hath entred into the premises this had been good and then if it be good for the general it seemeth it should be good for every particular also it is clear that two may be parcel of all the three Mannors as in this case it is admitted to be parcel of all the premises by the demurrer if so c. Coventry the plea here is not good for the plea is to the writ and the conclusion ought to be pursuant to the premises of the plea or otherwise the plea is not good 36. H. 6. if a man plead to the writ and conclude to the Action it is evil 20. Eliz. Dyer 361. also the plea is not good because it is not shewed where the land lies wherein the entrie is alledged and therefore if the Plantiffe had denied it then is there no
the Plantiffe shall be outed to take advantage of a bad plea and so upon the whole matter it seems that judgement shall be given in the ejectione firme for the Plantiffe Altham second Baron to the same purpose there needs no special day to be given by the Iudge of nisi prius although that it be upon a Collateral matter or plea for by the record in this Court a day is given to the Iurors conditionally viz. if the Iustices of nisi prius at the Assises do not come c. but to the parties it is given absolutely fee 6. Assises pla 7. and L. 5. E. 4. fo 2 3 and 4. where there are several cases to this purpose see 9. E. 3.21 H. 6. fo 10. if the Defendant make default at nisi prius a new distress shall issue to the same Iurors to be here in Bank and 3. H. 6. fo 8. and 9. if a man appear and plead he shall never take advantage of any discontinuance Also it seemeth that the plea is not good and to say that the word Tenementorum refers only to the odde acres and not to the Mannor it seemeth that it refers to all but if it shall be taken to refer only to the odde Acres yet this is not good and this is proved by the Book in L. 5. E. 4. fo 110. for a plea to the writ ought to be alwayes certain and this case also answereth that which hath been said that the demurrer confesseth the matter against the Plantiffe for I say if you plead a release in Bar of a debt and shew no place where the release was made this demurrer is no confession of the release except that the cause of the demurrer fall out against me wherefore in respect that the plea is not good and is peremptory to the Defendant as other pleas to the writs are for this cause I conceive Iudgement shall be given for the Plantiffe Snig Baron accordingly that the plea is not good for the not shewing of a place certain wherein the entrie was as by the matter of discontinuance it seemeth that the day of nisi prius is all one with the day in Bank and therefore there needs no day to be given and for that the death of any of the parties after the verdict and before the day in Bank shall not stay the judgement the Books which were cited on the other parts are different from our case for there the suit was adjourned into another Court and the Courts in the Country are not as the Courts here and therefore it was necessary that in such cases a day ought to be given for the manner of pleading we ought to give judgement against him who pleads the plea notwithstanding the matter admitted by the Plantiffe wherefore judgement shall be given for the Plantiffe Tanfield chief Baron accordingly the plea whereupon the issue was joyned was for three Mannors and lands in three Towns and entrie is alledged to be in two Closes called c. parcel of the premises in Bar of the Action if the Defendant in liew of not guiltie plead an affirmative plea and at nisi prius he pleads another plea then the entrie ought to be that the Defendant relicta verificatione c. but in our case such an entrie needs not the plea here ought to be more certain then others for two reasons First it is pleaded in abatement of the writ Secondly it is in delay of the Plantiffe and to which no rejoynder can be made as to the plea it seemeth it is not good for by 10. H. 7. fo 16. a quare impedit was brought by an Administrator of a grantee of a next avoidance and shewed that the Bishop of Sarum granted Administration to him the Defendant saith that the intestate had bona notabilia in divers Diocesses and so the Administration void and shewed in what Diocesses the goods were but shewed no place where they were and therefore it was adjudged that the plea was not good because he did not shew a place c. see 2. R. 3. and 5. H. 7. accordingly and this plea shall not be amended by a rejoynder as is 21. H. 7. also to say parcel of the premises this cannot be intended that parcel of three Mannors or of the three Towns in certain and therefore the plea cannot be good because there is no place from whence the venue should come and it is inconvenient that the venue should come from all if the place where c. lies but in one Town for as it appears in Arundels case Cook lib. 6. if a Mannor be alledged to be within a Town the venue shall come from the Town because it is a place more certain as to the general demurrer that the plea aforesaid is lesse sufficient in Law c. in 18. E. 4. it appears that in debt upon an Obligation the Plantiffe doth not shew a place where the Obligation c. and the Defendant confessed the Action yet notwithstanding this fault Iudgement ought to be given against the Defendant but this differeth from our case because here is an express confession and in our case here is not also here needs not to be shewed any special cause of demurrer but advantage may be taken well enough upon the general demurrer but if the demurrer were that the plea amounted to the general issue only there ought to be shewed a special cause or otherwise no advantage to be taken and he cited the agreement of seven Iudges to be at Serjeants Inne in Fleetstreet this Term in a writ of Error in Dickensons case the case intended was between White and Priest parties in an Action upon Trover and conversion and the Record thereof is in the Kings Bench Trin. 7. Jac. Rot. 843. as to the matter in Law touching the discontinuance for want of a doy given by the Iudge of nisi prius it seemeth there is no discontinuance in this case for there needs not to be any day given as our case is yet in some case the Iudge of nisi prius ought to give day but that shall not be a new day but only the day within contained and that but in special cases viz. if the issue be joyned and at the shewing of the evidence there is a demurrer here the Iudge giveth to the party the day within contained as it appears in 10 H. 8. Rot. 835. and Hill 11. H. 8 accordingly in the Common Pleas but Hill 36. Eliz Rot. 448. upon non-suit at the Assises no day given so if the party confess the Action and so if there be a bill of exceptions yet no day shall be given Hill 38. Eliz. Rot. 331. in the Kings Bench but peradventure it will be said that these Authorities do not match with our case because it is upon a material plea but I say it is all one and therefore in case of a release pleaded after the last continuance this is recorded and yet no day given as appears Hill 4. H. 8.
impedit praesentare to the Church of D. the Defendant saith that there is no such Church 22. E. 4. fo 34. an action was brought against I. S. Maior of D. and he Traversed that there is no such Corporation Tanfield chief Baron said that if in an action of Trespass the Defendant saith that I. S. was seised in fee and infeoffed him without that c. and the Plantiff saith that I. S. was seised in fee and infeoffed me without that that there was any such person as I. S. in being this is no good Traverse Hern Baron seemed that this Traverse is good in the principal Case but he was once of Counsel with the Plantiff and it was moved that the Case should be Compounded An Information against Page IN an Information against Page and another upon the Statute of 3. 4. E. 6. cap. 21. for buying of Butter and selling of the same by retail contrary to the form of the Statute upon not guiltie pleaded the Iury found one of them only guiltie both of buying and selling and the other not guiltie and it was moved that no judgement may be given in this Case in asmuch as the action is conceived upon a joynt buying by two and it appeareth that this is but by one but it was argued that judgement ought to be given for it cannot be intended in Law as to this purpose a joynt buying for the wrong is several and in proof thereof was cited 36. H. 6. fo 27. the 11. H. 4. Dyer fo 194. or 195. accordingly also this action is for a wrong done to the Common-wealth which is a several wrong by either and to this purpose was cited 40. E. 3. fo 35. 36. H. 6. cited before and 5. H. 5. fo 3. where an action de malefactoribus in Pareis was brought against three and one only was found guiltie and judgement was given against him and there is no difference as to this purpose between this Case and an action of debt upon a joynt contract made by two as appeareth by 21. H. 7. and Partridges Case in Plowden where it is said that the bargaining is but matter of conveyance to the action and according unto this was cited 33. H. 8. Brook tit issue and also 28. H. 6. fo 7. and 36. H. 6. fo 29. and a Case was adjudgeed in Mich. 35. 36 Eliz. in the Kings Bench which proves the same also where an information was brought supposing the Defendant to have bought Cattle of two contrary to the form of the Statute and it was found that he bought them but of one and yet judgement was given Hitchcock to the contrary and he argued that no judgement ought to be given for he said that if an information be brought against two upon the Statute of usury and one only is found guiltie yet no judgement may be given in this Case to which the Court agreed and he cited Dyer 160.5 Ma. where two sued in the Court of Admiraltie one for an offence triable within the bodie of the Countie contrary to the Statutes of 13. 15. of R. 2. and an action was brought against one of them only and good and he vouched also 22. Eliz. Dyer fo 370.2 R. 3. fo 18. where three brought an account against one he pleads he was never their receiver and the Iury found c. and he cited a case to this purpose an information was brought against two for buying of Cattle of one B. and for selling of them contrary to the form of the Statute and in this Case the Iury found the Defendant not guiltie for the buying them of B. but that he bought them of one P. and upon an attaint of the Iury the opinion of the Court was in this case that though the verdict was affirmed yet no judgement ought to be given thereupon and this was the true Case of Lidwood and Pearpoint cited before on the other side as George Crook said York and Allein A Man recovered damages in an action upon the Case against B. who at the time of the judgement was joyntly seised in fee with C. and that after B. and C. aliened the partie who recovered is outlawed the King eight years after this outlawry extends the moitie of this land for these damages recovered against B. and it was moved if he shall have them in extent for them or not also if he shall have it without a scire facias and the Barons were clear in opinion that he shall have it in extent for it was liable to the extent of the partie outlawed before the Alienation and then when it comes to the King by the outlawry although it be after the Alienation it continueth extendible for the King although the Alienation was before the outlawry It was admitted by all the Barons that if a Coppiholder surrender to the use of a younger son and dies that this younger son cannot bring an action until admittance but if the Copihold had descended to the heir he may have an action before admittance see Cook Coppihold Cases lib. 4. fol. 22. and also it was said that all Coppiholders of the Kings Mannors may now have admittance into their Coppihold estates well enough and the order for the stay of their admittances which was made heretofore is now dissolved and quashed Dennis against Drake DEbt was brought by Dennis against Drake Sheriff for an escape a man had judgement in the Kings Bench and a writ of error was brought within the year and after the year passed the judgement was affirmed in the Exchequer Chamber and within a year after the affirmation a Capias issued to the said Drake the Sheriff who took the partie and suffered him to escape and this being the Case upon the declaration in this action the Defendant demurred and all the Barons said that there is no question but a Capias may well issue within the year after judgement affirmed without a scire facias though it be more then a year after the first judgement and it seemed to them that there was no difference though that the writ of error was not brought untill after the year of the first judgement given although in such case there be an apparant neglect in the partie who had not sued his execution within the year and therefore he was enforced to a scire facias thorough his neglect whereas if error had been brought within the year he had never been driven to his scire facias in this Case yet for asmuch as when the judgement is affirmed this is all one as a new judgement they conceived it made no difference and Tanfield chief Baron said that it had been often so judged in the Kings Bench. It was said here that if a man be instituted to a benefice he ought to pay the first fruits before induction by the Statute but by the Common Law it was otherwise for he is not to have the temporalities until induction and therefore he could not pay the first fruits
demurrer joyned George Crook for the King conceived that the lease made in the 26. Eliz. is good first he said that although the Queen cannot take an inheritance of freehold without matter of Record yet she may take Chattels upon a surmise made that they were granted unto her and therefore he vouched 21. H. 7. fo 19 that an Obligation may be granted to the King without inrolment of the grant and 40. Assise pl. 35. Brook tit suggestion pl. 5. it appears that the King shall have a Chattel by a demise by parol upon a suggestion made thereof in the Exchequer without a Record and in the 15. H. 7. fo 15. the Kings Baylie who is not of Record may be compelled to accompt upon a suggestion made Brooks suggestion pla 31. and in the 37. H. 6. fo 7. 18. if the King gives goods with his hands this is good although no record be made thereof because it is but a Chattel and by the same reason he inferred that he may also accept of Chattel without a Record but admitting that he cannot take without a Record it seemeth that here is a thing well enough Recorded to intitle the King after the return made by the Commissioners for the Commissioners are officers of Record to this purpose and they endorse the prayer of the partie to have it Recorded and this being after the return is a sufficient Record to intitle the King and he vouched the 2. H. 7. fo 10. where the servant of Iustice Catesby after the death of the Iudge made a return and this was good and the 8. H. 4. a Record certified by a Iudge after he was displaced and 43. Assises if a Coroner makes his Rols and dies before he certifie them they may be certified after his death and so here this acknowledgement and prayer being certified may at any time after be inrolled and although it seemeth by the Book in the 19. Eliz. Dyer fo 355. that a grant being made to the King and acknowledged before one of the Masters of the Chancery and inrolled in the time of another King maketh not the Grant good yet he said that it was adjudged for another grant made to the King by the Duke of Somerset and acknowledged before one of the Masters of Chancery and inrolled in the time of another King was good enough to perfect the grant and this was by a grant made by the Duke of Bozoms Inne in London and he said that it is not reasonable that the Law should adjudge otherwise for it may be that the Clark will not inroll it untill such a time viz. a moneth within which time the King may die should it now be reasonable that it should not be inrolled at all he said it was unreasonable and he said that it appeareth by the 37. H. 6. fo 10. that a deed delivered at the Kings Coffers is good enough to avoid his lease made in the 44. Eliz. for although that it be true that a grant of a reversion shall never operate to the destruction of a right of a third person yet it seemeth that an Act commenced may be confirmed well enough to the destruction of a mean interposed Act and it seemeth that the inrolment here is but a confirmation of a precedent lease and not a relation to make a thing which was not before and therefore to examine what thing an inrolment is and it seemed to him that it is no matter of Record as it appears 24. E. 3. and 29. H. 8. fo 15. and therefore it appears by Wymacks Case Cook L. 5. that a deed inrolled ought to be pleaded hic in Curia Prolat which proveth that the deed and not the inrolment thereof is the thing which passeth the estate and therefore he vouched the case in the 6. E. 6. Brook title faits if one joynt Tenant sells all his land in D. and after his companion dieth and then the deed is inrolled yet a moitie only shall pass and 41. Eliz. Cook Perimans Case lib. 5. if a man make a feofment of lands and inroll the Deed within the Mannor as by the custome it ought to be yet the inrolment shall pass nothing and therefore it is there said the inrolment may be good enough after the death of the parties so by the same reason aforesaid it is put in the same Case of Perimon and also in Butlers and Bakers Case Cook lib. 3. that if a man deliver a writing as an escrow to be his Deed upon certain conditions performed and after the Obligor and the Obligee die and then the Conditions are performed the Deed is good for there was traditio inchoata in the life of the parties and this being after consummated takes his effect by force of the first delivery and acknowledgement and therefore also he said that it was lately adjudged that if two men are mentioned to be bound by one Obligation and the one seals at one day and the other at another day this is as good as if it had been at one day and therefore he said that there is no doubt but if a lease be made to the King by a Bishop and after another lease is made also of the same land or if the Bishop die yet if after the first lease be inrolled this is good and therefore also he cited a case to be adjudged in Banco Regis 41. Eliz. between Collins and Harding that if a man be seised of freehold and Coppihold land and makes a lease of both for years with licence rendring rent and after he grants the reversion of the freehold and makes a surrender of the Coppihold to the use of the same person and an attornment is had for the freehold and the presentment of the surrender for the Coppihold is not made untill a year after yet he in reversion shall have an action of debt for all the rent for the presentment of the surrender is but a perfection of the surrender before made also he cited the case as I observed him to this effect in the 9th of Eliz. in the Abbot of Colchesters Case where he said that the Abbot of Colchester committed treason and after made a lease for years and then he surrendred to the King all his lands and after an office found the treason and it was holden the lease is good against the King who took by the surrender and not by the treason committed before but as Walter said the case was adjudged that the King should avoid the lease for now he is in by the treason paramount the surrender Phillips against Evans IN an Ejectione firmae brought up three acres in the forrest of Kevington in the Countie c. the Defendant pleaded not guiltie and the Venire facias was awarded de vicineto of the forrest and the Defendant moved in arrest of judgement because the Venire facias de vicineto of the forrest was not good for as Stephens for the Defendant said that a forrest and the name thereof is but
a place priviledged for Venison and not a place certain from whence a Venue may come and it was said that in the 16. Eliz. in Banco Regis in the Lord Padgets Case a Trespass was brought of 3. Acres of land in Beer-wood and the venire facias was awarded de vicineto de Beer-wood and the chief Baron Tanfield said that in this case the venire facias was not well awarded and so it was holden in the Kings Bench and therefore he would be advised in this Case and after at another day it was moved and then the chief Baron said that he had perused the Books touching the Case in question and that it appears by the 47. E. 3 fo 6. by Fuchden that a forrest is many times out of any Parish and therefore shall not be intended to be within any Parish and he said that the Defendant in this case ought to have pleaded that the forrest was within such a Parish and demanded judgement if he shall be answered without alledging it to be within a Parish and that otherwise judgement ought to be given for the Plantiff and so he said that it was now lately adjudged in the Kings Bench where a man was indicted for Hunting in a forrest and a venire facias was awarded de Foresta and good and he vouched also the 8th of H. 8. in Savages Case and the 7. of E. 3. and Baron Altham Accorded and he vouched also the Book of the 18. of E. 3. fo 36. where it is said expresly that if shall not be intended to be within a Parish except it be shewed in the pleading on the other side and he vouched also 27. H. 8. fo 12. and then all the Barons agreed that judgement shall be given for the Plantiff Airie and Alcock THe Case was argued again between Airie and Alcock concerning the misnaming of Corporations which was argued before as appeareth fo and Thomas Stephens the Princes Attorney argued that the lease is void by the reason of the misnosmer and he observed the Misnosmer to be principally in these two material things First where the foundation was by the name of the Hall or the Colledge of the Queen c. the presentation of the Parson and also the confirmation of the lease made by the name of the Queens Colledge c. omitting the word Scholers which should immediately precede the word Aulae Reginae which he held a material variance the second variance he observed to be thus that where the foundation was by the name of the Hall or Colledge of the Queen in Oxford the presentation and confirmation of the lease was by the name of Provost of Queens Colledge in the Vniversitie of Oxford so that the word Vniversitie was added which was not in the foundation and to prove that these variances were material for the avoiding of leases he cited the case often remembred in the argument before which conceived Merton Colledge in Oxford and the parties to this case were Fish and Boys which was in Trin. 30. Eliz. Banco R. Rot. 953. wherein the case was that the said Colledge was incorporated by the name of Warden and Scolers of the house or Colledge of Scholers of Merton in the Vniversitie of Oxford and that they made a lease by the name of the Warden and Scholers of the house or Colledge of Merton Colledge in Oxford so that the word Scholers which did immediately preceed the word Merton in the foundation is omitted in the lease as in the principal Case also where the word Vniversitie was added in their Corporation the same was omitted in the lease whereas on the other side this was not mentioned in Airies Case to be contained in the foundation but added in the lease and he said that for these variances in Merton Colledge Case the lease was holden to be void which he held to be all one with our case but he agreed that in divers cases variances in addition of surpluage shall not be hurtful in a lease as appears by 21. and 22. E. 4. and therefore though in the principal Case the word fellows was added in the lease which was not in the foundation he would not argue that this should be any variance to hurt the lease Hern Baron seemed that the verdict is not sufficient to move him to give judgement for the Plantiff for he said although it be admitted that the lease by reason of the variance is not good yet the verdict doth not sufficiently finde that Doctor Airie is a person who may take advantage of the invaliditie thereof for it appeared not of whose presentation Doctor Airie came to have the Parsonage for although that it should be admitted as it is said in Heckers Case 14. H. 8. that here might be Parson of his own presentment yet it is not found that he did so here and he said that in every quare Impedit it ought to be expressed what person made the presentation to the variance he thought the lease to be good notwithstanding that for he said that the word Scholers is not added in the foundation as a part of the name of a Corporation but only to express what kinde of Colledge this should be viz. to distinguish it from a Merchants Hall or Colledge and therefore though the word Scholers be put in yet we properly call it the Queens Colledge and not the Queen Scholers Colledge for it is not of necessitie that the Scholers of the said Colledge should he the Queens Scholers but that they are Scholers of the Queens Colledge and he vouched 2. H. 7. Fitz. Titles Grants and as to the case of Merton Colledge cited by Stephens he said that in that Case there was a main imperfection in the verdict which as he thought might move the said judgement to be given as it was and not the matter in Law for they did not finde that the lessor was warden of the Colledge at the time of the lease made also he vouched Cook lib. 6. Sir Moil Finches Case and he vouched Sir Peter Seawels Case where in a lease made by a Corporation that these words ex fundatione Regis E. 6. which were part of their foundation were omitted and yet the lease good and he cited also the case of the Bishop of Peter Bourough where the Corporation was by the name of Episcopi de Burgo Sancti Petri and a lease was made by the name of the Bishop of Peter Bourough and the lease good and that no difference in substance and if a Corporation were made by the name of Scholers and fellows and in a lease the word fellows is omitted yet it is good and therefore in the principal Case it seemeth that the omission of the word fellows is not material also he said that the addition of the word Vniversitie which is no part of the Corporation is not fatal to the lease for in the Lord Norths Case 36. 37. Eliz. the addition of the word Vniversitie or the omission thereof was holden
therefore he had done well to shew the special matter as he had done and not to confess it as it is in the in formation nor to traverse the said demise because it is matter in Law 5. H. 7. and Vernons case Cook lib. 4. he needs not traverse absque hoc that the lease was made for and in satisfaction of Dower and to shew the special matter viz. that it was a conditional lease and so leave it to the Iudges for the matter in Law if it be a joynture or not also it seemeth to me that it is sufficient for the Bar to say that the Commission was not returned by Hammond and Porter for that is a Traverse to the information and it cannot be intended to be returned by any other of the Commissioners in regard that those two only did execute it for the taking of the acknowledgement as the information mentions but he said nothing in this case if this Commission may be returned by those Commissioners who took not the acknowledgement also by him and Snig Bromley absent sigillo suo ratificat is good enough without saying sigillo suo sigillat contrary to Baron Altham also the Defendants have shewed the time in their Bar when the first lease was intolled so that it is certain but it seems to me that admit the matter in Law was for the King yet upon this information we cannot give judgement for him for the information is for the mean profits incurred before the inrolment and this is clear that the King cannot have them without doubt admit that the Bishop had been living yet the inrolment cannot relate as to the mean profits although it should be admitted to be good to make the lease good at the time of the inrolment and so upon all the matter he agreed that judgement ought to be given against the King and so it was Tanfield chief Baron said that if a man take a lease of my land from the King by Patent rendring rent this is not an Indenture to compel him to pay the rent for the King had nothing to grant whereupon a rent might be reserved to him Altham Baron said that the King shall have the rent here as by estoppel between common persons but it was adjourned It was said by Tanfield chief Baron that a Collector of a fifteenth may levie all the Tax within one Township upon the goods of one inhabitant only if he will and that inhabitant shall have aid of the Court to make each other inhabitant to be contributory which was granted by the Court Bromley being absent Tanfield chief Baron said that if a man had judgement against A. upon an Obligation who dieth and another Obligee of the said A. assignes his Obligation to the King the Executors of A. satisfie the said judgement it is good against the King in respect the debt now due to the King was not upon Record before the death of the Testator which was granted by the Court. Levison against Kirk THis Term the case between Levison and Kirk which was opened the last Term was adjudged and the case was that Levison brought an Action upon the case in the office of Pleas against Kirk and declared that whereas the Plantiff was a Merchant and 13. Martii 40. Eliz. intended to go beyond the Seas to M. to Merchandise and the same day and year at D. he acquainted the Defendant with his determination and then in the same place appointed and trusted the Defendant being his servant to receive for him all such Merchandise and goods which should be sent over or carried or conveyed by the Plantiff in the same voyage and to pay for the custome of them and to dispose of them and convert them for the profit and commoditie of the said Plantiff and thereupon conveyed divers goods to the Defendant and that the same day and year the Plantiff took shipping and sailed to M. and that within five dayes following 20. pieces of Velvet were brought into the Port of S. consigned by the Plantiff to the Defendant in the absence of the Plantiff and that the Defendant on purpose to deceive the Queen of her custome and to make the Plantiff to allow custome unto him did take of the said goods so consigned and land them on the land at S. aforesaid the custome not paid whereby the Plantiff lost his goods as forfeited for default of payment of custome to the damage of c. and upon not guiltie pleaded a venire facias was awarded to the the Sheriff that he should cause to come 12. from the Venue of D. and those c. viz. from the place where the trust was reposed and from the place where the trust was broken and thereupon the Defendant was found guiltie and damages 50. l. and in Pasch Chibborn Serjeant moved in arrest of judgement that the Action did not lie for every fault against the servant although it be such a misfeazance for which the Plantiff receives prejudice and therefore if you will have an Action in this case you ought to shew a special trust reposed and a breach of that trust by the servent or otherwise an Action upon the case lieth not and that is not observed here for although that you shew that the Defendant being your servant was appointed and trusted for the goods to be consigned in the said voyage yet you did not shew that these goods were not consigned in the said voyage neither do you shew that he was such a servant generally used to be imployed in trading for your goods neither do you shew that you have allowed or delivered moneys to him to make him able to pay the custome and to say that by the sale of the goods themselves he may pay it himself and you appointed him to dispose them at his pleasure yet hereby you do not inable him thereunto for he ought to pay the custome before he sell them and them peradventure he had not money to discharge the custome wherefore there is no cause of your Action as this Declaration is and therefore he prayed that judgement may be stayed George Crook prayed that judgement may be given for although it bâ— not expresly shewed that the Plantiff continued beyond the Seas in the said voyage at the time of the coming of the goods to the said Port yet the intendment ought to be so of necessitie in regard it is shewed that within five dayes after his departure and in his absence these goods were consigned c. and his return cannot be intended in so smal a time and he vouched 21. E. 4. fo 13. also it is not material in the case to shew that the Master hath left where withal to pay the custome for here the Action is brought in respect of deceipt and fraud in the Defendant and this is inferred divers wayes the first that the Defendant ought to receive my goods Secondly that he should pay the custome Thirdly that he should dispose of them at his pleasure for
Slade and Morleys case a case was put which proves it to be according Snig Baron agreed that Iudgement ought to be given for the Plantiff and by Tanfield if I take your goods and detain them until I have caused you to pay me 10. l. a general Action of Trespass lieth and not an Action upon the case and it is cited 7. H. 4. or 7. E. 4. to be accordingly but yet he agreed that judgement should be entred and so it was appointed to be done but then Chibborn for the Defendant said that here is a mistrial for if this trust be not material because it is not effectually shewed in the Declaration as you have argued then the Venue shall come only from the parish where the Wares were laid upon the land and not from the parish also where the appointment or trust was made by the Plantiff and therefore the trial also being from both parishes is a mistrial and the Court agreed that this is a mistrial upon that reason for now the appointment or Trust is but an inducement and therefore needs not to be shewed within what parish it was made and therefore a new Venire facias was granted and upon that a new trial and damages more then before and judgement was given accordingly Arden against Darcie NOta a good case of Attornament which was decreed in the time of Baron Manwood betwixt Arden and Darcie and it was this one Arden was seised in fee of divers lands in the County of c. and made a lease for years and after made a feofment with words of Grant of those lands to A. and B. to the use of the feoffor and his wife for their lives the remainder to Arden his son in tail and after the feoffor said to the Lessee that he had conveyed his land which the Lessee held in lease to the uses aforesaid and the Lessee said I like it well and after he paid his rent to the feoffor generally and it was decreed in the Exchequer Chamber that this is no Attornament because the Attornament ought to be to the feoffees and it appeareth not that the Lessee had notice of the names of the feoffees and therefore it cannot be said to amount to an Attornament but notwithstanding that Decree Arden the same to whom the remainder was limited had his Action depending in the Kings Bench to trie the point again as he said to me also this Term a point concerning the said Decree was in question upon another Bill exhibited in the Exchequer Chamber by Sir Edward Darcie against Arden and the case was as followeth Sir Edward Darcie exhibited his Bill here in the nature of a scire facias against Arden to shew cause wherefore the said Edward Darcie should not have execution of a Decree made in the time of Baron Manwood and the Defendant shewed that Darcie in his first suit supposed by his Bill that he had a grant of the land then and now in question from Queen Elizabeth rendring rent as it appears by the letters Patents and in facto there was no rent reserved upon the Patent and that the Defendant gave answer to the said Bill and admitted the Iurisdiction of the Court and after a Decree was made against the Defendant and the Defendant now having shewed this special matter demurred upon this Bill in respect that by his pretence the Court had not jurisdiction to hold plea in the first suit and here it was shewed that the first decree was made upon a matter in Law not properly examinable by English Bill and that in facto the Law was therein mistaken and therefore the Defendant prayed that the decree may be re-examined Tanfield chief Baron it is usual in the office of Pleas that if an action be brought as a debtor of our Lord the King this is good although that de facto no suggestion be made thereof if it be not shewed on the other side and therefore a writ of Error for this falsity shall not cause the judgement to be reversed as it was resolved in a case in which I was of Councel and so here as it seemeth Altham Baron here we are in equity wherein we are not tied to so strickt a course as if it were in the office of pleas Brock of the Inner Temple for the Defendant in a Court of equity it is in the discretion of the Court to deny Execution of a decree if good cause be shewed and in 18. E. 4. fo 1. judgement was given against a married wife by the name of a feme sole and reversed although she did not shew in the first suit that she was married and in 8. E. 4. judgement was given in the Kings Bench in a suit and by writ of error was reversed although the Defendant had admitted the Iurisdiction of the Court and the chief Baron and all the Court inclined that Arden may exhibit a Bill to reverse this Decree made against him and may shew what point in Law the Iudges mistook in the Decree or otherwise we should not do as Law and Iustice requireth for it is not expedient to be examined by way of Bar to this Bill in the nature of a scire facias and after Arden according to the Decree of the Court and their direction did exhibit his Bill in the nature of a writ of error Comprising how the first decree was erroneously made and prayed that the said decree might be reversed and in his Bill he shewed the point in Law which was decreed and that upon divers long conveyances appears to be thus and so it was agreed by Councel on both parties that Arden the father was seised of the Mannor of Cudworth in the County of c. and was also seised of the Mannor of Parkhal in the same County and of Blackclose c. which was parcel of the Mannor of Cudworth but lying neer unto Parkhal and alwayes used and occupied with it and reputed parcel thereof but in truth it was parcel of Cudworth and that Arden the father made a Conveyance of the Mannor of Parkhal and of all the lands thereunto belonging and reputed as parcel thereof or occupied with it as part or parcel thereof and of all other his lands in England except the Mannor of Cudworth to the use of Arden his son that now is Plantiffe here and if Blackclose will pass to the son by this conveyance or if by intendment it shall be excepted by the exception made it was the question here and was decreed in the time of Baron Manwood that it is excepted by the exception but all the Barons now thought it to be a strong case that Blackclose is not excepted by the exception of the Mannor of Cudworth and so the first decree was upon a mistake out of the Law and Tanfield chief Baron said that the point is no other but that I infeoffe you of Blackacre parcel of the Mannor of D. exceyt my Mannor of D. this doth not except the King
by express terms quaer if in this case there was any land occupied with Parkhal which was not parcel of Cudworth nor of Parkhal for if so then it seems that Blackclose will be within the exception in regard that the words and lands occupied therewith viz. Parkhal are well satisfied Harris Serjeant said that the case is to be resembled to the point in Carter and Ringsteeds case concrrning the Mannor of Odiam where a man was seised of of a Mannor within which the Mannor of D. did lie and is parcel thereof and he by his will devised the Mannor of D. excepting the Mannor of Odiam where the Mannor passeth by the devise and is not excepted Snig and Altham Barons agreed that this proves the case in equity but by the chief Baron Tanfield because this is a rare case that we should reverse or undo a decree made by our predecessors in the very point decreed by them it is good to be advised and therefore they directed Arden to finde presidents if he could by search made for them in the said case and therefore the Attorney general who was of Councel for Darcie had demurred upon the Bill which was exhibited by Arden and that he being not present day was given until another term to hear Councel on both parts at which day the Attorney said that he conceived it a strange case and without president that a Court should impeach and reverse the decrees given in the same Court and that if it should be suffered the subjects would be vexed and troubled without any end or quiet and this stands with the gravity of every Court to maintain their own judgements and therefore several Statutes were made to reverse judgements upon erroneous proceedings and judges of other Courts constituted to examine them which proveth that before the Statutes aforesaid and without aid of them the Iudges would not reverse their own Iudgements and so here Harris to the contrary it is not without presidents that in a Court of equity one and the same decree in the same Court hath been reversed by decree of the same Court upon some consideration had of the erroneous misprisions of Law and it is no dishonour to a Court of justice so to do for matter in Law but otherwise it were for matter of fact for then that betrayeth an Ignorance in the Iudges which would be a dishonour to the Court but for Law men are not Angles and for that point there may be errour to prove that the Court of equity may do so he vouched the Book of 27. H. 8. fo 15. Martin Dockwraies case which is our very case ruled in the Chancery and so he said that in this Court 3. Jac. a decree made in the time of Baron Manwood was reversed upon the like reason and Tanfield chief Baron said to Serjeant Harris that if it appear by your president that if the same matter in Law which was decreed was reversed in the same point in Law then this proveth for you but if it were for matter of fact otherwise it is and therefore we will see your president Kent and Kelway KEnt and Kelway entred Hil. 6. Jac. Rot. 722. in the Exchequer in the case between Kent and Kelway which was debated Pasc 8. Jac. the Iudges pronounced in the Exchequer Chamber that judgement ought to be affirmed notwithstanding their opinion before to the contrary as it appeareth and therefore I demanded of Mr. Hoopwel Clark of the Errors what was the reason of their opinions and he told me that the case was debated by them this Term at Serjeants Inne and then they resolved to affirm the Iudgement and the reasons as he remembred were as followeth and he also delivered unto me the case as he had collected it out of the Records and delivered it to the Iudges which was that the Plantiff in the Kings Bench declared that one Benjamin Shephard was indebted to him in 300. l. and that he sued out of the Kings Bench an Alias Capias directed to the Sheriffe of N. to the intent to compel the said Benjamin Shephard upon his appearance to put in Bail according to the custome of that Court for the Recovery of his debt which writ was delivered to John Shaw Sheriffe of the said County to be executed the Sheriffe made his warrant to the Bailiffe of the liberty of the Wapentake of Newark and the Plantiffe himself delivered it to James Lawton Deputy of the Lord Burley the Kings chief Bailiâ—e of that liberty to be executed and the Deputy Bailiffe by vertue of the said warrant arrested the said Benjamin Shephard whereupon the Defendant with others made an Assault and rescued the said Benjamin Shephard out of the custody of the said Deputy Bailiffe whereby he lost all his debt and damages were assessed at 172. l. and cost 10. l. and in this case the Iudges agreed that notwithstanding the Defendant had rescued the said Benjamin Shephard out of the hands of c. when the said Benjamin Shephard was arrested upon an Alias Capias out of the Kings Bench which writ is only in nature of a plea of Trespass yet the party who rescued him shall answer in this action damages for the debt because the Plantiffe by this means had lost his debt And yet it is not shewed that the Rescuer knew that the Plantiffe would declare for his debt but if in this case the Sheriffe or Bailiffe had suffered a Negligent escape they should be charged only with the damages in the same plea as the writ supposeth and no for the debt and so a diversity also they agreed that the Declaration is good enough to say that he was rescued out of the hands of the Deputy Bailiffe and the course in the Kings Bench was alwayes so upon the return of a rescue notwithstanding the Book of the 7. Eliz. Dyer fo 241. also it was resolved that the Declaration was good saying that he sued an Alias Capias without mention of any latitat before sued also it was agreed that the arrest was good made by the Deputy Bailiffe by vertue of a warrant delivered to the Sheriffe but quere if they should not examine if the Bailiffe had a power given to make a Deputy by his Patent for this appears not in the case Bently and others against Leigh in Trespas Hill 45. Eliz. Rot. 1231. Trin. 7. Jac. in the Exchequer TPe Iudges affirmed a Iudgement this Term between Leigh Plantiffe in a writ of Error and one Bentley and others Defendants and the matter assigned for Error was because the Trespass was brought in the year 45. Eliz. for a Trespass made in the 42. Eliz. and the judgement upon the verdict was against the Defendant and the Margent of the Roll it was entred quod Defendens capiatur where it ought to be pardonatur as he pretended for the general pardon which was in 43. Eliz. had pardoned the fine to the King for the Trespass and this is a thing whereof the Iudges
the Mannor of Caversfield rendring rent and that this rent was arrear and thereupon an Inquisition returned and a scire facias issued to Moil who occupied the land to shew cause wherefore the King should not have this land whereupon he pleaded as Ter-tenant and upon this plea the Kings Attorney demurred but it was misentred as see hereafter but for divers great imperfections aswell in the Kings Commission as otherwise the Defendant ought to have judgement as all the Barons agreed as by the arguments of every Baron upon mature deltheration appeareth but for the reasons of the Barons to the exceptions taken by the Councel see after for they are very good Bromley Puisue Baron whereas the Inquisition purporteth that the Iurors in the County of Bucks have found a foundation of a Priory in the County of Oxon. that is not good by course of Law for if a thing be local the Iurors of another County cannot finde it and here the Commission giveth power only to inquire of things in the County of Bucks and he vouched Plowden in the Earl of Leicesters case upon a Commission directed to White Lord and Maior c. also the Inquisition is that Thomas Banbury Nuper Prior was seised and made a conveyance as is affirmed that is not good also the word Nuper may be intended a 100. years before and so no certainty as appears in Wrothesly and Adams case in Plowden Altham 2d Baron there are three faults in the Commission First is to inquire of a Mannor and lands of the late Priory of Bister in Caversfield in the County of Bucks and by these words no power is given to inquire of any thing concerning the Priory which is in the County of Oxon. and the words in the County of Bucks do defer to all the sentence precedent and not to the word Caversfield only 19 E. 4. fo 16 7. H. 6. fo 8. if A. B. and C. be insula de D. it shall be construed that the word insula hath reference to all the three Towas but if it were in A. B. and C. insula and not in insula then it is otherwise a Commission to inquire of lands of the Prior of Bister is evil without question where Bister is and he said that this may be proved by Pages case Cook lib. 5. also the Commission doth not propose any end wherefore the Iury should be but generally to inquire of the lands of the Priory at the time of the dissolution so that it may be certified to the King by the Inquisition the first fault which is found is that the Priory was founded by the name of the Church of Saint Mary and Saint Egbert without saying the Prior and Covent of c. and without finding of the place of the foundation viz. Bister and this cannot be without assignmend of the place of the foundation viz. Bister also the finding is that one Thomas Banbury then Prior as is affirmed made a feofment c. and this is not good because it ought to be absolutely found or otherwise it is not material also the intent of the feofment is found to be made by the Prior but no livery is found thereupon as it ought although that livery shall be intended in the case of a feofment pleaded by a common person yet it ought to be found expresly in the case of a Corporation and the finding here and that by vertue whereof he was seised as the Law requireth doth not aide the case Snig Baron it seems to me that this Commission was only to inform if the matter had been sufficient to us to give judgement to the King but here being to intitle c. it is not good the Commission is to inquire for the King of the lands of the Prior and this meerly incertain without saying certainly of what Prior and therefore they have no power to inquire of the lands of the Priory also the Iury of the County of Bucks cannot inquire of the name of the foundation of a Corporation in the County of Oxon. for the foundation is matter Local but it seems to me here that the finding by vertue whereof he was seised prout c. shall be intended that livery was made being by a verdict Tanfield chief Baron here is not any demurrer being mis-entred and therefore we have power to proceed to any matter in Law for the purpose in this case was that whereas the Statute of the 27. H. 8. of lesser Monasteries under the yearly value of 200. l. giveth them to the King and this Mannor of Caversfield within this Statute is to be seised as is pretended in this case whereupon this Commission issued to inform the King of this Mannor as parcel of these Revenues for I deny that it is an office of intitling it is only an office of instruction for the Statute of 27. H. 8. dissolves the smaller Monasteries and vests them actually in the King and this is the difference from the Statute of the 31. H. 8. for this Statute is only an Act to Abolish the lands of dissolved Monasteries and therefore this Statute is only to inform for the Statute of 27. H. 8. had intitled the King and he said that the land shall be in the King without office so that it being but an office of instruction this may be good notwithstanding divers incertainties therein contained but the plain and apparant fault herein is because it is not to inquire what lands the Prior had at the time of the dissolution as it ought to be for the words are to inquire what lands the late Prior had but it seems to me in this case that the Iurors of the County of Bucks may inquire of the foundation in another County without doubt this being but to inform and not to intitle and this is not alike mischief to the party for otherwise all Commissions to inform would be quashed and I have seen a Record in this Court where a man of a good family was found to be the Kings Villain regardant to a Mannor in Norfolk and this was done by a Iury in Suffolk and therefore in such cases God defend but that a Iury may finde a matter local in another County also a gross defect is in the Inquisition viz. because it doth not mention that the Mannor of Caversfield came to the King by the Statute of the 27. H. 8. but that the Priory came to the King by that Statute and doth not say that this Mannor was part of the possessions of the Priory at the time of dissolution and for these last matters it is apparent that the Inquisition and Commission are vitious although it be not proper for us as the case is to adjudge it for here is no demurrer joyned for the demurrer is joyned as if it were upon an Information of intrusion and here is no intrusion laid to the charge of the Defendant and yet after the plea pleaded by Moil the Attorney prayed that he may be
Bent and another for a Close it was ordered and an Injunction accordingly awarded that the Defendant should suffer the Plaintiffe to injoy the said Close with the appurtenances until c. and contrary to this order the Defendant had put his Cattle into the Close and thereupon an Attachment issued to answer this contempt and he said that he put in his Castle for a title of Common and it was ruled that this was no breach of the Injunction because the Common was not in question in the Bill but only the title of the Close wherefore he was discharged of the contempt and with the appurtenants doth not include the Common to be taken in the said Close Henry Clares case UPon a motion made by Serjeant Barker it appeared that one Henry Clare was indebted to the King and was seised of a third part of certain lands in Norfolk and that Mr. Richardson of Lincolns Inne was seised of other two Acres of the same laud as Tenant in Common and the beasts of Mr. Richardson pastured promiscuously upon all the land and Henry Clare put more Cattle in and upon proces to levy this debt for the King the Sheriffe took the Cattle of Mr. Richardson and sold them and it was now ruled that in regard it was lawful for a Tenant in Common to put in his Cattle upon all the land and that if they depasture all the grass the other hath no remedy and for that cause the Sheriffe could not take those Cattle for the debt of another Tenant in Common but otherwise it would be if the Cattle had been levant and Couchant upon the land of the Kings debtor and in the principal case the Sheriffe was ordered to restore the monie to Richardson for which they were sold and that if they were worth more yet the Sheriffe should not be charged therewith except it could be made appear some fraud in the sale or that sufficient suerties were to pay and discharge the dutie but if my Cattle are levant and Couchant upon the land of the Kings debtor the King may distrain them damage Feasant but he cannot distrain them for the debt by Tanfield chief Baron and Altham clearly to which Baron Bromley consented but Snig said beware of that Smith and Jennings case VPon evidence to a Iury it was said by Tanfield that if a man make Charter of Feofment of lands in two Towns and a Letter of Attorney to make livery and before livery made by the Attorney the Feoffor himself maketh livery of the land in one Town this is a Countermand of the Letter of Atturney and so livery cannot be made by the Attorney in the other Town and quere if the Towns were in several Counties Bacon the Kings Solicitor said that if a man make a Charter of Feofment of two several Acres whereof one is in lease for years and the other in demeasne and the Feoffor makes a Letter of Attorney to make livery and before that be executed the Feoffor himself makes livery now although that one Acre cannot pass by this livery because it is in lease yet this is a Countermand and revocation of the authoritie given by the Letter of Attorney for his intent is manifest so to be to which Tanfield and all the Court agreed Hobert Attorney general said that in this case although that one of the Acres was in lease yet in regard it appeareth not that the Lessee was in actual possession therefore he conceived that it should be construed that the Lessee was not in actual possession at the time of the livery made by the Lessor in the name of all and in respect there was no house upon the Acre in Lease it may be intended that the Lessee should be in actual possession but for that cause he rather conceived that it should be construed that the Lessee was not in possession and so the livery might well operate to pass it Tanfield and all the Court denied that the livery was good to pass it although that the Lessor was in actual possession but where Mr. Atturney alledged further that before the livery made an Infant had a Term for years in this Acre in lease and that the Feoffor at the time of the livery was gardian to the Infant and thereby had a possession therein and therefore the livery made in the other Acre in the name of all should be good to pass all to which the Court agreed and thereupon directed the Iury to finde the livery and seisin to be made of all and in this case the Court inclined that because this Feofment was made but ten dayes before that the Feoffor committed Treason and in asmuch as it was made to the use of the son being an Infant and not upon consideration of marriage that therefore the Feofment should be fraudulent and void as to the King but the Atturney general said that this Feofment was made in performance of a precedent agreement viz. it was agreed that the Feoffor should make such a conveyance to an use c. and that the wife of the Feoffor also being an Inheritrix should make such a conveyance of her land which was done accordingly and upon proofe of this agreement the Court inclined that it was no fraud and in this case it was ruled by the Court if parties have matter of evidence by the Records of this Court they ought to produce the Records themselves for Copies of them are not allowable It was said by Altham and agreed by the Court that if an Information be exhibited for intruding into a Close the 24th day of March and for the asportation of 9. Cart Loads of Wheat betwixt the 24th of March and the first of October the which the Detendant converted c. and upon not guiltie pleaded the Jury found that the Defendant took three Cart Loads of the said Corn upon the 24th day of March and after before the first of October they took also three Cart Loads more and damages were assessed for all that here no judgement shall be given upon this verdict for the Information doth not charge the Defendant with the taking of any part upon the 24th day of c. and then in regard that damages are more judgement can be given for no part of it see Cook lib. 5. Plaisters case but this case being moved at another day Tanfield said that he having inspected the Record he found the verdict insufficient for another cause because the Jury found that as to one Cart Load of Wheat to the value of 20. l. the Defendant was guiltie and doth not mention to what damage viz. to the damage of 100. s. or otherwise and by him ad valentiam is not sufficient without shewing also to what damage and for that cause by him a venire facias de novo ought to be awarded and so it was done by the Court. Edwards case EDwards case was that an erroneous judgement was given in a Coppihold Court where the King was Lord and this
purpose as to the avoiding of the Benefice but his want of privitie availeth to excuse him of being Simoniacus yet because he is Simoniace Promotus the presentation is void and the King shall have it by the expresse words of the Statute and therefore as it seems if in this Statute there had been an expresse saving of the interest of the Incumbent by reason of his innocency yet such a saving of Interest had been void and repugnant in respect that it was expresly given to the King before as it is in Nichols case in Plowden upon the Stat. of 1. H. 7. See 1. Mar. Dyer and 7. Eliz. Dyer 231. such a saving doubted if it be void and in Cook lib. 1. Altonwoods case a saving Repugnant to the expresse words of the Premisses is void and so in our Case the Presentation is given to the King expressely and therefore if there were a saving in the words subsequent this were void much more in our Case where there is no saving And to prove that by the Symonie in the Patron that the Patron shall be prejudiced he vouched 42. E. 3. fo 2. It goods be given to B. by A. this is by fraud in A. to the intent that he may defraud another although B. is not knowing of this friend yet the gift is void as to him 34. E. 1. Title Garranty accordingly and Burrells case Cook lib. 6. upon the Statute of 27 Eliz cap. 4. to the same purpose To the second matter it seems that by the Queens death her Presentation is determined cleerely and so in case of a common person for if an Admission c. should follow after the death of the Presentor this is without any Authority of the instrument of Presentation for although there were no Admission there is no Presentation and he said that the Presentation passeth no interest but is as a Commendation and therefore he compared it to the Case of Say and Fuller in Plowden Com. If a Lease be made for so many years as a stranger shall name there ought to be certainty of years appointed in the life of the parties or otherwise it will be void and in 38. E. 3.3 If a Bishop present and die before c. Now the King shall present anew and also there it appears that the King may present by Paroll well enough and so it is said in 34. E. 3.8 tit Quare impedit 11. That a Presentment made by the Bishop becometh null and void by his death and therefore it appeareth in Fitzh Office of Court 29. that licence to alien granted to the King is void by the Kings death there needeth no actual Repeal or recital of the new presentation yet I agree that the King may make an actual repeal if he will as it appears by divers cases which have been cited before but that is of necessity to be done and as it seems the words of the Statute 6. H. 8. prove that before this Statute a second Grant made the first void without actual repeal in case where the thing passed by the Grant and by 38. E. 3. fo 3.4 it appears that a second Presentation made by the King was good without a repeal of the first and by Gascoigne 7. H. 4.32 if the King make a Presentation to one and then presents another without recitall or repeal of the first yet the Bishop ought to receive the latter Presentee for it is good without actual repeal wherefore judgement ought to be given for the Plaintiff Snig Baron said that as the Action is brought judgement ought to be given for the Plaintiff but if the Plaintiff had brought a Quare impedit peradventure I should have been of another opinion And as to the point of Symonie by the Civill Law it was punishable by deprivation and the guilt of the Patron should prejudice the Parson as to matter of Commodity in the Parsonage and at the Common Law if the Parson will pleade such Presentment he should be prejudiced as appears by our Books and hereby the incumbency the words of the Statute will not be satisfied for then the Queen should not Present if an usurper present and the Presentee is in by six moneths this gives Title of Presentation to the King against the rightfull Patron also it seemeth That if I. S. hath an Advowson and A. purchase the next avoidance to the intent to present B. and the Church becomes void and A. presents B. this is Symonie by averment as by good pleading the Presentation of B. shall be adjudged void To the second Point in respect that the Plaintiff had the possession by induction it is no question but he may retaine a possessorie Action for the Titles But if it were in a Quare impedit it would be materiall whether a Repeal should be in the case or not according to the Presidents in the Booke of Entries fo 303 304 305. for if a Licence be Granted to purchase in Mortmaine this may well be executed after the death of the Queene as it appeareth by Fitzherberts natura brevium expresly and so in Dyer a license of Transportation doth not cease by the Kings death 7. H. 4. in the Countess of Kents case it appears when the King makes a grant which is void yet there shall be no new grant without an actual repeal but it seems we are out of the intent of the Statute of 6. H. 8. because the words during his pleasure are not in the grant or Patent and so upon the whole matter judgement shall be given for the Plantiffe Tanfield accordingly the case is that the Defendant had prioritie of the possession of the Corn for which the action is brought and yet it seems judgement ought to be given for the Plantiffe and first as this case is here is Simonie by the Civil Law and the partie had his benefice by Simonie although he be not conusant thereof Secondly admit that here was not Simonie by the intendment of the Civil Law yet the Statute hath made an avoidance of the benifice in this case although it be not Simonie for the Statute speaks not one word of Simonie throughout the Act and yet by express words it doth avoid such presentations as this is and as to the Civil Law such benefice is to be made void by sentence declaratorie but it is not void ipso facto as it seems in the case where a common person was consenting to the Simonie but the text of the Civil Law sayes expresly that the Church ought not to be filled Corruptivè or by corruption and the Civil Law expresseth such a person as is in our case by Simoniace promotus and calls him who is particeps criminis Simoniacus and he who is Simoniacus is by the Civil Law deprived not only of the benefice ipso facto but also is deprived to be a Minister and adjudged guiltie in Culpa et poena Petrus Benefieldus a late writer of good authoritie saith that if a friend
Recusant may be seised after his death Thirdly if they shall be charged by the Statute of 1. Iac. as to the first it seems they are not wherein I shall endeavour to prove three things First that such land was not liable to debt by the Common Law Secondly that they are not liable to debts by the general words of the Statute Law Thirdly that they are not liable to debt by any word within the Statute of primo Iac. as to the first he observed that here is no fraud put in the case but that these lands and leases were never in the Recusant so that before that they were conveyed to the Defendants they were not liable to this debt and I alwayes observed that which the common law calleth fraud ought to be of such nature as shall be tortious and prejudicial to a third person and put him in a worse estate and condition then he was before and then he who is so prejudiced in some cases should avoid such conveyances by the common Law 22. Assises 72.43 Ed. 3.2 and 32. the Defendant in debt after judgement aliens his goods and he himself takes the profits yet the Plantiffe shall have them in execution so that if a man binde himself and his heirs in an Obligation and dies and assets descend to his heir who by Covin aliens those assets yet he shall be charged in debt for in these cases the Plantiffe had a lawful debt and such lands and goods before the alienation were liable and that former interest was intended to be defeated by those alienations and therefore they are void but of the other side where no former interest of the partie is wronged there no fraudulent conveyance was void at the Common Law and therefore if Tenant in Knights service had made a fraudulent Feofment to defraud the Lord of his wardship this was not aided by the Common Law until the Statute of Marlebridge for the title of the Lord was not prejudiced or wronged by this Feofment because it was subsequent to the Feofment also after the said Statute the Lord was without remedy for his release for it is agreed in 17. Ed. 3. fo 54. and 31. Ed. 3. Collation 29. and therefore at the Common Law if cestuy que use had bound himself and his heirs in an Obligation and died if the use descended to his heir none will say this use was assets to the heir and so was Rigler and Hunters case 25. Eliz. as to the second point it seems that the general words of a Statute shall be expounded according to the rule and reason of the Common Law and by the Common Law such confidence is not extendible therefore c. Westmin 2. cap. 18. which gives the elegit hath these words medietatem terrae and within those words an use was never extendible by that Statute 30. Ed. 3. because it was not an estate in him and so if a man be indebted for Merchandise or money borrowed and makes a gift of his lands and Chattels to defraud Creditors and takes the profits himself and flieth to the Sanctuary at Westminster or Saint Martins and there abideth by conclusion to avoid the payment of his debts it is thereby enacted that Proclamation shall be made at the Gate of the Sanctuary where such person resideth by the Sheriffe and if such person doth not thereupon appear in person or by Atturney judgement shall be given against him 2 Rich. 2. Stat. 2. cap. 3. 1. Rich. 3. cap. 1. and execution awarded aswel of those lands and goods given by fraud as of any other out of the same Franchise these words are more particular then the Statute of Westminster the second and yet it was doubted if it did extend to executions for debt as it appears by 7. H. 7. and 11. H. 7.27 and therefore in 19. H. 7. cap. 15. an Act of Parliament was made that execution for debts Recognizances and Statutes should be sued of lands in use As to the third it seems that that Statute doth not make lands in use liable to debts the words of the Statute are that the King shall seise two parts of the lands Tenements and Hereditaments leases of Farms of such offendors so that they are as general as the words of the Statute of Westminster 2. cap. 18. and here those lands and leases were not the Recusants for he had but a confidence in them the first clause of the Statute doth not extend thereunto for two causes First in regard that it never was in the Recusant and this clause extends only to such conveyances which are made by any man which hath not repaired or shall not repair to some Church for the disjunctive words do not extend throughout that branch but to the last part thereof viz. that which cometh after the word and for otherwise this would extend to conveyances made at any time without limitation which should be against the meaning of the Act. Secondly this Branch provides what shall be done concerning the King touching the levying and paying of such summes of money as any person by the Lawes of the Realm ought to pay of else to forfeit c. and by the Statutes before made nothing was forfeited but for such time as is mentioned in the Indictment which in our case is but 6. moneths but out of this branch a strong argument may be made in respect that the Statute avoids all conveyances made by Recusants in trust by express words but saith nothing to conveyances made by others to the use of Recusants and therefore this Statute doth not extend unto it if Tenant by Knights service infeoffs his heir within age and dies the Lord may enter upon the heir without suing an action but if a Feofmenche made to a stranger there he cannot enter but ought to bring his Action according to the provision of that Statute because it may be to the use of the Feoffee but no such provision is made for the heir the Statute of 3. Jac. cap. 4. provides by express words that the King shall seise two parts of all the lands Tenements and Hereditaments Leases and Faims that at the time of such seisure shall be or afterwards shall come to any of the hands of the said offendors or any other to their use or in trust for him or her or at his or her dispose or disposition or whereby wherewith or in consideration whereof such offendors or their families or any of them shall or may be relieved maintained or kept c. the different penning of these Statutes proves the diversitie of the meaning thereof this Statute is a new Law which gives to the King this penalty which he had not before and in new manner for it appoints that the partie shall be convicted by Proclamation and that being so convicted he shall alwayes pay the said penaltie until his submission without any other conviction 3. Jac. cap. 4. and also limits a manner how this new penaltie shall be levied viz.
to be paid before induction 20 Forfeiture by Tenant for life by what Acts 38 Forfeiture by a contempt for not returning upon a command by Privy Seale and what and how long the forfeiture continueth an excellent Case 42 43 False imprisonment see Action Fine if void for uncertainty 55 Where it shall be directed by the Covenant ibid G. GRant of the King what shall be a good surrender thereof 1 And what shall be a good consideration therein 4 Where such a Grant is aided by 43. Eliz. cap. 1. ibid Grant by the King of a reversion nec non manerium de Skipton 39 I. INformation upon 3. 4. E. 6. for buying of Butter against two and one found guilty 19 An information against one for refusing to pay Impost for Currants a famous Case 23 An information for ingrossing 1000. quarters of Corne one Defendant found of 700. only 59 Informer where he shall have a moity upon 23. Eliz. but not upon 28. Eliz. against a Recusant 60 Judgement must be paid before a debt to the King 65 Judges if bound to take notice of a generall pardon 71 Injunction to enjoy possession no hindrance to him that claimeth Common therein 96 Information of intrusiion into a Close and for asportation of 9. Cart loads of wheat between the 24. of March and 1. of October the Jury found him guilty of 3. loads the 24. of March and dammages taxed for all no judgement can be given for any part 97 98 Indentures severall with severall powers therein to declare uses how to be expounded 118 119 K. THE King where he may extend for outlawry after alienation 20 The King where he may take without inrolment and what Acts amounts to an inrolment 31 35 60 The King where he shall have his rent of the Assignee in trust in the Interim before a reassignment made 39 The King where he may extend a Term conveyed in trust 50 51 The King shall not charge the successors of a Bishop for a subsidie but the Executor or the heire 51 The King where he shall be ordered in equity to perform a trust by an English Bill 54 King see Judgement 65 King what interest he hath by an outlawry 83 King where he shall have his debt of his Debtor or Trustee 91 King cannot distrain the Cattell of one Tenant in Common for the debt of the other 96 97 King may charge the debtor of his debtors Debtor 112 113 L. LIvery and seifin of Lands in 2. Towns by Letter of Atturney countermanded by livery in one by the Lessor himself 97 Livery if it can be made upon the Queens Lessee 114 M. A Memorandum in the Exchequer and the operation thereof 5 Misnomer of a Corporation where it voids a Grant 15 33 Mistriall and a venire facias de novo awarded 68 Misnomer of a Corporation 35 N. NOtice of an use or promise maketh a man lyable to execute the same 60 Notice see Judges 71 Notice of payment upon a condition ought to be givea to an infant 100 101 O. OYer of a Deed must be demanded the same Term in the Common Pleas but otherwise in the Kings Bench note the diversity 39 Outlawry in Northumberland for a debt in Durham if the King or the Bishop be intitled 90 P. PAtent of Denization what words therein make it conditionall 58 59 Patent where void for false recitall or want of consideration 75 76 and 108 109 Pleas before a Justice of Nisi prius what allowable and what not 81 82 86 Plea discontinued for want of a day given 89 A Parliament pardon the debt being agreed withall relates ab initio 118 R. A Remainder where contingent 22 Rent where it must be demanded and where not 56 57 Record what makes a double matter of Record to make the party sue by Petition 58 59 Recusancie see S. Remitter in what cases 93 94 c. Recusant if chargable for lands bought in trust and if seisible after his death and if liable by 1. Jacobi 104 105 S. THe Statute of 43. Eliz. cap. 1. well expounded 5 c. The Statute of 33. H. 8. cap. 39. well explained 51 Simony in what Cases and excellent matter thereof 71 72 100 Statutes of 23.28 Eliz. and 1. Iacobi expounded concerning Recusants 91 92 Surrender where countermandable 99 Statute of 1. Ed. 6. of Chantries and the meaning thereof amplie debated by the Barons 113 114 T. TIthes where due for Head-land 16 Tithes where discharged by unity of possession 17 Traverse where good 18 Trust where a Recusant convict is capable thereof 39 Tithes a prescription therein for the Kings Coppyholder it must be tried in the Exchequer 39 Trust where forfeitable 54 55 The tenth according to the Statute leviable only upon part of the lands out of which c 56 Tenorem platiti or Tenorem recordi as good as Recordum praedictum 83 A trust in a Term by the Wife belongs not to the Husband after her decease 113 V. USes where fraudulent against a Purchasor 22 Venire facias de Vicineto of a forrest 33 Vses see Indentures 118 119 A Catalogue of LAVV BOOKES and such as appertain to the LAVV. AShes Tables 2. Volumes Folio Ashes Tables to Cooks Reports Epeciea or table of equity Fasiculus Florum Arguments on the Writ of Habeas Corpus Assise of Bread Atturnies Guide Atturney of the Common Pleas. BRooks Abridgement Readings on Magna Charta Cases Reading on the Stat. of Limitations Boultons Justice Bulstrodes Reports Bracton Brownlows Reports 2. parts Pleadings in 2. parts Judiciall Writs Lord Bacons Elements of the Law Cases of Treason Ordinances Reading of the Statute of Uses Britton Book of Oaths Bollewes Reports of R. the 2d Blunts Glossographia expounding Terms of the Law Boones Examen Legum Angliae Cooks Reports 11 parts French 12th Report English Entries on Littleton the first part of his Institutes 1. on Magna Charta 2. Pleas of the Crown 3d. Jurisdiction of Courts 4th Compleat Coppyholder of Baile and Mainprise Cragge de Feudis Customes of Normandie Mr Cooks Vindication of the Law Pooremans Case City Law Cromptons Justice Iurisdiction of Courts Cowells Interpreter Institutes Callis Readings on Sewers Ignoramus Crook and Hultons Arguments on Ship-money Compleat Clerk and Scriveners Guide Calthrops Relation of Mannors and Coppyhold Cases about the customes of London Conference about the liberty of the Subject Clerks Vade Mecum Presidents Clerks Guide in 2. parts Collins Summary of the Statutes Compleat Justice Caries Reports in Chancery Claytons Reports Topick of the Law Compleat Atturney 2. parts Charter of Rumney Marsh Chancery Orders Court Leet DAvis Reports of Impositions abridgement of Lord Cooks Reports Daltons Justice Office of a Sherif Abridged Dyers Reports Abridgement in French Abridgement in English Doderidges English Lawer Principality of Wales Compleat Parson Deggs proposals Declarations and Orders 4º Dr and Student in Lattin idem in English Abridged Davenports Abridgement of Cook on Littleton Deerehams Mannuall Dallison
and therefore he vouched a case between Scockwood and Sear where a man devised part of his land to his wife for life and another part of his land until Michaelmas next ensuing his death and further by the said will he devised to his younger son all his lands not devised to his wife and adjudged that by the said words the younger son shall have only that parcel which was devised to the wife for life and not that which was devised unto her till Michaelmas and yet by Popham it appeareth that his intent was otherwise viz. that all that should go to his younger son so there ought not to be a strained construction made against the heir and so in our case the words being that if he die without issue c. that then it shall go to his wife herein as much as he had issue at the time of his death it cannot be said that he died without issue but that he is dead without issue and this appeareth by the pleading in the Lord Bartleys case in Plowden and he vouched also a case in the Kings Bench 4. Jac. between Miller and Robinson where a man devised to Thomas his son and if he die without issue having no son there it was holden that if the devisee had issue a son yet if he had none at the time of his death the devisee in the remainder shall have it yet he was once a person having a son and so in our case there was a person who did not die without issue and he vouched also the case of Bold and Mollineux in 28. H. 8. Dyer fo 15.3 when a man deviseth to his wife for life paying a yearly rent to his sister and that if the rent be not paid that the sister may distrain it seems to me that this is a conditional estate in the wife notwithstanding the limitation of the distress and he vouched 18. Eliz. in Dyer 348. which as he said proved the case expresly for there in such a case it is adjudged that the devisee of the rent may after demand thereof distrain and yet the heir may enter for the not payment of the rent although it were never demanded so that the subsequent words of distraining do not qualifie the force of the condition although there be there an express condition and in our case but a condition implyed and he said that it seemed reasonable that such a construction for the distress and condition also shall stand as appeareth by divers cases that upon such words the Law will allow a double remedy and therefore he vouched Gravenors case in the Common Pleas Hill 36. Eliz. Rot. 1322. where a lease was made by Magdalen Colledge to husband and wife so that if the husband alien that the lease shall be void and provided that they do not make any under-tenants and to this purpose he vouched the case of the Earl of Pembrook cited in the Lord Cromwels case Cook lib. 2. where the words amounted to a covenant and a coudition and if this word paying should not be construed to be a condition then it were altogether void and idle and such a construction ought not to be made in a will and he conceived that this rent ought to be paid by the wife without any demand upon the pain of the condition and therefore he vouched 22. H. 6. fo 57.14 E. 4 21. E. 4. by Hussey and 18. Eliz. Dyer 348. vouched before and so it was resolved as he said in the Court of Wards in Somings case where a man made a devise paying a rent to a stranger this ought to be paid without demand and he said that the Common case is proved when a feofment is made upon condition that the feoffee shall do an act to a stranger this ought to be done in convenient time without request by the stranger and so here it seemeth although a demand ought to be made by the sister yet the wife ought to give notice to the sister of the Legacy so that she may make a demand and therefore he vouched Warder and Downings case where a man devised that his eldest son upon entry should pay to the younger son such a summe of money here the eldes brother ought to give notice at what time he will enter to the intent that the younger brother may be provided to make a demand Edwards of the Inner Temple contrary First it seemeth that by this limitation the wife ought to retain the land until the issue of the devisor should have come to the age of 18. years for this a time certain and as it is construed upon such words in Borastons case Cook lib. 3. that the Executors there have an interest certain so it should be construed here to refer to a certainty which is until the time by computation that the issue should have attained to 18. years and the rather in this case in respect the devisor had otherwise disposed of the land until the son should have accomplished the said age Secondly it seemeth that the wife hath an estate for life not conditional in so much as the words are not joyned in the case the 18. Eliz. Dyer hath been vouched but that was upon an express condition but here it is by implication and then the clause of distress taketh away the force of the implication which otherwise might be thereupon inferred and therefore in 5. Eliz. Dyer it appeareth that the word Proviso annexed to other words makes it no condition in judgement of Law and so in 14. Eliz. Dyer 311. and he vouched also 18. Eliz. Dyer Greens case that if a man deviseth lands to his friends paying to his wife with a clause of distress this is no condition as it is adjudged Thirdly it seemeth that this summe to be paid to the sister is a rent and therefore ought to be demanded or otherwise in judgement of Law the condition shall not be broken and the 21. E. 4. the case of an obligation to perform covenants c. and a case between Wentworth and Wentworth 37. Eliz. that a demand ought to be made for a rent which is granted in liew of Dower for the wife brought a writ of Dower for the land of her husband the Tenant pleaded that she accepted a rent out of the land in liew of her Dower and the wife replied that the said rent was granted upon condition that if it were not paid at certain dayes that it should be void and that she should have Dower of the land and she said that the rent was not paid at the dayes c. but shewed not in her pleading any demand to be made and therefore it was holden evil pleading for such a rent ought to be demanded or otherwise the condition is not broken and so here Nota that this case was appointed to be argued again but after as I heard the Barons amongst themselves resolved to give judgement for the Defendant upon one point only which was that the estate
convicted of the intrusion and Moil said that he ought to shew matter sufficient whereupon he upon the intrusion aforesaid ought to be convicted so that a thing is demanded of us to give out judgement in which is not in question before us and therefore no judgement at all may be given here wherefore it is not needful for us to dispute other matters in the case and as to the questions in Law which were argued by George Crook and others Tanfield chief Baron nor Altham spoke not at all because they might come before them again to be adjudged upon a better office but Bromley and Snig Barons spoke to the matters in Law and their opinions were as follow and upon the plea of Moil the case was this that the Tenant pleaded protestando that the Priory of Bister was not founded by the name of the Priory of Saint Mary and Saint Egbert of Bister as the inquisition supposeth for plea he saith that one Thomas Banbury Prior of the Church of Saint Mary and Saint Egbert of Bister infeoffed him of the Mannor of Caversfield by the name of the Moity of his Mannor of Caversfield as also by the name of all his lands and Tenements in Caversfield and that the said feofment was made by the name of the Prior of Saint Egbert of Bister and that it was known aswel by the name of Saint Egbert as Saint Mary and that the Mannor of Caversfield was well known by the name of the Moity of the Mannor of Caversfield and that the Prior had no other land in Caversfield and shewed also that there is another in Caversfield which is called Langstons Mannor the which heretofore was the Priors and allotted as a Moitie of a Mannor in the same Mannor of Caversfields and those and other circumstances he used in his plea to the intent to shew that all the land of the Prior shall pass to him and he shewed that this Mannor sold to him was known by the name of Langstons Mannor Bromley Baron the Corporation is mis-named in the Grant because it is a thing material viz. the omission of the word Saint Mary for the name of assent in a body politick is as the name of Baptisme in a body natural and the name of Baptisme cannot be missnamed as it appears 3. H. 6. and 1. H. 7 if Iohn by the name of Thomas make an Obligation this shall not binde him if he doth not admit it and therefore it shall not conclude the King see the 11. Eliz. Dyer 279. where in some cases the estate shall pass by livery and seisin by what name soever it be made but a Corporation cannot pass an estate from them but by Charter and it may be conceived that the founder intended two things the one was Religion or more properly superstition the other was that it may remain to posterity as a Monument of the piety of his Ancestors and then if the name should be altered the remembrance would also decay and therefore what name soever is first imposed ought alwayes to be observed and that the omission of Saint is material and he vouched Eaton Colledge case 3. and 4. Ma. Dyer and 35. H. 6.31 the case of the foundation of Saint Peter and Paul c. but he agreed the case in 11. Eliz. Dyer 278. that omission of the word undivided is not prejudicial because no material variance Secondly it seemed that all the Priors Mannor of Caversfied passed by this grant for by 20. H. 6. and 22. H. 6. it appears that a feofment of 20. Acres by the name of a Mannor is good and 6. and 7. E. 6. Dyer if a man grant his Mannor in S. containing 10. Acres yet if it contain 20. Acres it is good and the word Omnia greatly inforceth the case as it seemeth wherefore c. Snig Baron said that the mis-naming is a material variance which avoids the grant also it seemeth that Omnia alia shall not be intended to refer to more then was granted by the other words except there were other lands besides the Mannor and therefore he thought that only a Moity of the Priors Mannor passed super totam materiam Sir Henry Browns case before HObert Attorney general it seems to me that the plea is not good for divers causes see the beginning before fol. he said that first every issuable plea ought to express a place but if the issue be triable by the Record or witnesses a place is not necessary 11. H. 7. fo 1. if there be no place there is no plea and therefore if it be beyond the Sea it is no plea. Secondly in our case there is no place alledged from whence the venue should come to trie the entrie in this case to be of all the premises for it is to trie the entrie but in one particular parcel but I agree as it hath been said of the other part if the entry had been alledged to be in the premises then the venue shall come from all the premises for here the plea of the entrie pleaded by the Defendant is double and yet it is good because of necessitie it cannot be otherwise intended in this case but I cannot plead in this case that I have not entred into two Closes parcel of the premises for that is Negative preignans as is in 9. H. 6. fo 44. in debt upon a bond where the Defendant was bound to require a house the Defendant said that A. by the command of the Plantiffe disturbed him the Plantiffe shall not be admitted to replie that A. did not disturb him by his command but by protestation that A. did not disturb him for plea that the Plantiffe did not command him c. 6. H. 6. fo 9. in a writ of entrie the Tenant pleads that the demandant confirmed after the last continuance the demandant shall not say that he did not confirm after the last continuance 5. E. 3. fo 1. in a per quae servitia of the grant to the husband and wife the Defendant said that the wife released while she was sole the other cannot replie that she did not release when she was sole but ought to deny the deed and so in our case if you will say by protestation that the place where the entrie is supposed is not parcel c. for plea that you have not entred after the last continuance then the issue ought to be joyned if we please or not and this shall not have any reference to the premises but only to the two Closes and then the venue shall come from the two Closes wherefore c. also by this plea so uncertain the Plantiffe is prejudiced for admit that in this case Hawkins the Defendant had re-entred before the day of nisi prius this had made our writ good again as appears by 26. H. 8. fo 10. and 36. H 6. and 8. H. 7. and then if here the Defendant will say that the Plaintiff had entred before the issue now it shall not be
touching the premisses Also peradventure if he will assign the place this may fall out to be in another County then where the Action was brought for so it may be and yet parcell of the premisses and so he may give us cause to demur Also to say cleerely that the Plaintiff had entred c. is not good for it ought to be that the Plaintif also expelled or amoved the Defendant as appears in the book of Entries Tit. Debt or Lease fo 11. or 12. and fo 175. B. also here the Plea is double to say in one close called Well Close and this is matter of substance whereof we may take advantage notwithstanding this general Demurrer And also he saith it is parcell of the tenements mentioned in the Declaration this may be and yet never parcell of the thing whereof the Action is brought for there are other Writs therein comprehended within the pernosme And as to the objection of Serjeant Dodderidge that here is a discontinuance because the Plea is not continued by the Iudge of Nisi prius into this Court here if seemeth that this needs not notwithstanding that it be a collaterall Plea in this Court in Trin. Term at the Assises but it is that the parties aforesaid do attend in Octab. Mich. and the continuing untill the Assises is but with a Nisi prius c. and by expresse words the the Parties have day to attend to hear judgement and at the Assises to try the issue and this is a sufficient continuance and as to that the Iudges of Nisi prius ought upon this Plea to discharge the Iury to that it seemeth that the relinquishing of the issue joyned and the acceptance of this new Plea is a discharge in Law Also the Iudges of Nisi prius have no power to give day in the Court here to the Parties for the Court here is to appoint the day in the book of the other part 37. H. 6. fo 2. is only that the Iudgs of Nisi prius give to the parties their day viz. the ordinary day and not another day and the cases tit Voucher and tit Journ in Fitz. cited of the other part are where the Plea is to be put in another Court as Durham c. where the parties have no day before and there a day ought to be given but that is apparantly different from our case Nichols Serjeant to the contrary admit that the Action had been brought of the Mannor of D. only and the entry had been alledged in parcell as here it is then it had been good see the Book of Entries tit Debt or Lease 11. or 12. accordingly and by the same reasons it seemeth the Action being brought for the ejectment of three Mannors the entry was pleaded to be in one Close parcell of the Tenements and good for the venue shall come from all as well from one Close as from the other Also here the entry is alledged to be in parcell of the Tenements and not of the premisses and so the venue for the tryall ought to be from the three Towns where the odde Acres lye and not from the Mannor also and by a reasonable intendment it may be conceived that the place where c. lyeth in all the three Towns 36. H. 6. fo 17. the Defendant saith that the place where c. is parcell of the Mannor of B. that he intitled himself unto he needs not shew where the Mannor lyeth and yet it shall be intended in the same County and although that in such case it is said to be shewed in certain by the Book in 6. E. 6. Dyer fo 76. yet this doth not prove that it ought to be of necessity and here by the shewing of the Plaintiff he had confest the matter of fact which is an entry into parcell of the Premisses and by consequence he falsified his Writ for if he confesse that he had entred into any parcell thereof whereof he brought his Action he had falsified his Writ cleerely he vouched 21. H. 6. fo 8. and 6. Eliz. Dyer 226. in a Ejectione firme against Nevell and others it is said that by a Demurrer to such a Plea the Plaintiff had confessed the Entry but otherwise it should be if he had imparled see Bowld and Mullinexes case in Dyer fo 14. for the shewing of a place c. and l. 5. E. 4. fo 138. an Executor pleads fully administred and at the Nisi prius he pleads that the Plaintiff recovered part of the Debt in D. after the last continuance and a good Plea although it be not shewed in what County D. is Also it seemeth that day ought to be given in this Plea or otherwise it is a discontinuance for the day given upon the Roll is to hear judgement upon the verdict and this plea is Collateral wherefore c. and he vouched 10. H. 7. fo 27 and 7. E. 3. fo 338. by Herl where a difference was taken when a day in Bank shall be given and when not and he vouched 4. and 5. Eliz. Dyer 218. where Fitz. Iustice gave day in Bank Tanfield chief Baron true it is that if it be in an Assise which commenteth originally before the Iudge of Assise he may give day Nichols also vouched 33. H. 6. and 11. E. 4. fo 13. Hobert Attorney general the demurrer doth not confess the plea when it is insufficient but if upon the demurrer the plea be adjudged sufficient then the fact is confessed for the demurrer only confesseth the matter of the plea conditionally viz. if it be good in the matter of the case in 6. Eliz. Dyer 226. the Plantiffe conceived that the plea there ought not to be pleaded in an ejectment after the last continuance and did not demur for the form and a demurrer doth not confess the plea good although that the matter is true and the Book in 21. H. 6. doth not prove against me for that was of an actual confession but in 37. H. 6. the issue joyned was if he who prayes to be received may plead the entrie of the demandant after the last continuance and the cause of the demurrer there was only if he could plead that plea or not because it appears not if he had any thing in reversion or no and so it seemeth that we might have demurred specially and this had been no confession and therefore the general demurrer shall not prejudice us for the matter of confession Bromley Puisne Baron it seemeth the plea is not good because a place is not assigned in certain in what Town the entrie is divers Towns being alledged it seemeth that it is no discontinuance for there needs no special day to be given but the day of return of the nisi prius for they cannot give any day being delegate only to a special purpose and it seems to me that the demurrer doth not confess the plea of the Defendant but conditionally viz. if the plea fall out to be good for otherwise