covenanted with Sir Edward Sackvil to levy a fine to him of that land before the fine acknowledged the eldest brother dyed and the question was whether the youngest shall be compelled to levy the fine and presidents were commanded to be searched concerning that matter Note that it was said that where a commission issued out of the Court of wards to 4 persons or to any 2 of them and one of them refuse to be a Commissioner and the other 3 sit as Commissioners and he who refused was sworn and examined by them as a witness and ruled that this is good for though he refused to be a Commissioner yet he is not excluded to be sworn as a witness In evidence to the Iury the case was that Tenant in taile bargained and sold his land to I. S. and his heires and I. S. sold to the heire of the Tenant in taile being of full age and Tenant in taile died and the heire in taile claimed to hold his estate and the doubt was whether he was remitted or no Hobert was of opinion that after the death of the Tenant in taile that the heire is remitted for if Tenant in taile bargain and sell his land the issue in taile may enter and where his entrie is lawful there if he happâ— the possession he shall be remitted Hutton and Warberton Iustices contrary For at the first by the bargain and sale the son had fee and then the estate of the son may not be changed by the death of the father he being of full age when he took this estate and this was in an Ejectione firme of land which concerns Sir Henry Compton and the Lord Morley and Mounteagle White against Williams VVHite brought an action of accompt against Williams as his Bayliff to his damages 100. l. the Defendant pleaded he never was his Bayliff and it was found against him and the Iudgement was given that he should render an accompt and at the day the Defendant made default Ideo consideratum est per Curiam quod Querens recuperet versus predict Defendent 42. l. 10. s. and upon that the Defendant brought a writ of error and assigned for error that the Court gave Iudgement of the value without inquiring of the value and it was holden by Gaudy and Fenner only present that the Iudgement ought to be given which the Plantiff had counted of Baron Altham contrarie for the Court may in discretion give a lesser summe Hill 43. Eliz. B. R. vide 14. E 3. Accompt 109. 20. E. 3. 17. Sir George Topping against King VVA st was assigned in the cutting of Elmes and other Trees to such a price and Iudgement was given for the Plantiff by nihil dicit and a writ of inquiry of dammages issued upon that and the Iury found to the dammages of 8. s. and upon this Davies the Kings Serjeant moved to have a new writ of inquiry and that the old writ shall not be returned for the dammages are too litle Winch said all is confessed by the nihil dicit Hobert The Iury here have found the value and presidents were commanded to be searched and Hobert said that if an information is for ingrossing of 1000 quarters of corn and Iudgement is given by nihil dicit and a writ of enquiry issues which findes him guilty of 100. yet this is good And not that at another day the case was moved again it was between Sir George Topping and King and it was said if a man recover in waste by nihil dicit and a writ of inquiry issues the Iury in this case may inquire of the dammages but not of the place wasted for this is confessed and so are the presidents according and Hobert said if the Defendant is bound by the nihil dicit as to the place wasted for what cause shall not he be bound as to the dammages and by all the Court if the jury finde dammages only to 8. s. the Plantiff shall not have Iudgement for it ought to be above 40. s. Hob. this is in the discretion of the Court in this case and it was also said in this case that upon the grant of all the trees and after the grantee cut them and new ones grow upon the slumps which in time will be trees that in this case the grantee shall have them also by Hobert Wetherly against Wells in an action for words VVEtherly against Wells in an action upon the case for these words thou hast stollen hay from Mr. Bells racks and upon not guilty pleaded it was found for the Plantiff and now it was moved in arrest of Iudgement because he had not shewed what quantity was of that and perchance it may be of so little a value that it is not fellony and the rather because it is hay from the Racks but Hobert contrary that Iudgement shall be given against the Defendant for the Plantiff for it hath been adjudged lately in this Court that where a man was charged with petty Larceny to steal under the value of 12. d. that an action of the case will lie for the discredit is not in the value but the taking of that with a fellonious intent and yet it had been adjudged in this Court that where one said of another thou art a thief and hast stolen my trees that in this case an action will not lie but this is by reason of the subsequent words trees for it is said Arbor dum crescit lignum dum crescere nescit And Winch said that it had been adjudged actionable to say thou art a thief and hast stolen my corn and yet perchance not exceed 2. or 3. grains and Warberton said that it had been adjudged in the Kings Bench that where one said thou art a thief and stollest the corn out of my field that no action will lie The Earl of Northumberland and the Earl of Devon NOte that in the case of the Earle of Northumberland and the Earle of Devon execution issued out for dammages recovered against the Bayliff of the Earle of Northumberland by the name of I. S. of D. and there was I. S. the father and I. S. the son and the father being dead the son issued his writ of Idemptitate nominis and he prayed to have a supersedeas and Warberton demanded of Brownlow if he had any such president to award a supersedeas in such case who answered no and Warberton and Hutton being only present said that they will advise of that Sir George Sparke Prescription IN a Replevin for the taking of a horse in 5. acres of land in such a place and the Defendant avowed as Bayliff to Sir George Spark and shewed that Sir George Spark and all those whose estate he had in the land had used time beyond the memory of man to have herbage and pasturage in all the 5. acres when that was not sowen and upon this plea the Plantiff demurred Ashley argued for the Plantiff that the prescription is void and this is not
if they sue here they must bring their actions several for they may not joyn here in an action and therefore it is good discretion in the Court to deny the prohibition Pastons case it was said by Hobert that a Coppiholder may hedge and inclose but not where it was never inclosed before and agreed by him and Warberton that a Coppiholder may dig for Marle without any danger of forfeiture but he ought to lay the said Marle upon the same Coppihold land and not upon other land and this was upon the motion of Hendon Serjeant In a case which concerned the Lady Mollineux and Fulgam the case was in an Ejectione firme that the Iury found the defendant guilty of 10. acres and the judgement was entered of 20. acres and upon that the defendant brought a writ of error in B. R. and now the Plantiff prayed that this might be amended and Finch argued that this ought to be amended and he cited a case Pasch 8. Iac. Rot. 525. Iohn Chilley was Plantiff in debt and recovered and the judgement was that the aforesaid Henry Chilley should recover c. and upon that error was brought in the exchequer chamber and that was assigned for error and yet after Pasch the 9th Iac. this judgement was amended in the Kings Bench and Iohn inserted for Henry and diminution was alleadged and the first judgement was affirmed in the exchequer chamber and he cited a case M. 8. Iac. Rot. 1823. in C. B. dower was brought of 4. Gardens and judgement was given to recover in 3. and upon this error was brought and yet this judgement was afterwards amended and he cited a case Pasch 17. Iac. between Sherley and Underhil in a Qu. Impedit where it was amended after error brought and he vouched one Masons case 12. Iac. in an action upon the case against the husband and the wife for words which were spoke by the wife and judgement was given against them and that the wife capiatur where it should be husband and wife Capiantur and yet this was afterwards amended Hendon contrary after error is assigned it may not be amended in point of substance and the case of Chilley may be good Law for the misnaming only et praedictus Henricus where was no Henricus before could not have other signification or intendment then Iohn who was named before in the record Warberton and Hutton the misnameing Henry for Iohn is matter of substance cleerly and then Hendon said that now the judgement shall not be amended because the prayer of the Plantiff to have that amended came too late because it is after error brought and diminution alleadged and the record certified and then both the parties are concluded but if only a writ of error was brought and no diminution was alleadged that then the judgement may be amended and he said that he had not found in any book where any amendment was after diminution alleadged as here and he cited 22. E. 3. 46. in dower it was assigned for error that no warrant of Atturney was entered for the Defendant and ruled that this may not be assigned for error aâ—ter a scire facias sued see 4. E. 4. 32. but Hobert chief Iustice said that it shall be a brave case that our judgements shall be made good or bad at the pleasure of Clarks and we shall not be able to amend them to which Warberton also agreed And day was given over to speak to that again and after in the same Term this judgement was amended per Curiam Action of debt upon a bond and the Condition was to save the obligee harmless of a nomine poenae against Mary Moore and he pleaded that he had saved him harmless and per Curiam this is not good for if he will plead in the affirmative as here he ought to shew how he had saved harmeless but if he had pleaded in the Negative as he might well then non damnificatus is a good plea generally Harrington against Harrington in accompt HArrington brought an action of accompt against Harrington and declared of the receipt of moneys by the hands of a stranger and the Defendant pleaded in barre a gift of the same money afterwards by the Plantiff to him and it was argued by Towse that this was no plea in barre of an accompt but it is a good discharge before Auditoâ—s and he cited 28. H. 6. 7. Hendon to the contrary and said the opinion of Brian chief Iustice 21. E. 4. is that he may plead that in barre of accompt and Warberton Iustice being only present agreed for by the gift it is his own moneyes and herefore he may plead that in barre It was said by Warberton that if an Advowson is holden of the King and the Tenant alien without licence that the King may not seise that without office which was granted by Hobert and by Winch only present and in the same case by Warberton that a scire facias issuing against the Alienee will not intitle the King but ought to be an office found and it was also said in the same case by Serjeant Iones that the ordinary shall have 28. dayes to examine the ability of one who is presented by the canon Law and the same Canon Law is that the Patron shall not present another during the 28. dayes Goddard against Gilbert GOddard brought an action upon the case against Gilbert thou art a thief and hast stolen 20. load of my furzes and upon non culpabilis pleaded it was found for the Plantiff and now it was moved in arrest of judgement by Hitcham for where words may be taken in a double sense one actionable and another not actionable they shall all times be taken in the better sense and in our case to take furzes may be fellony and it may be not fellony for if they are growing they are not fellony and it shall be intended that they were growing rather then cut down and no man will presume that any will take 20. loads of furzes with a fellonius intent because the carriadge of them is visible to all the world for it shall not be intended that he carried those in the night and so he prayed that the Plantiff may be barred Attoe Serjeant contrary words which implies a double signification shall be taken in the worser sense which tends most to the disgrace of the party for they shall be supposed to be spoken in malice and so with a purpose to defame the party and he cited a case Trin. 2. Iac. B. R. Rot. 663. Kellam against Monest thou art a thief and hast stolen my corn and adjudge to be actionable Hobert Warberton and Winch contrary for words shall be taken in the better sense and not in a strained sense to punish the party which spake them as if one say to another I wonder you will eat or drink with him for he hath the pox now every one that heareth that will suppose that he means the french pox and yet in
within the Statute and â—hirdly he had not shewed what time he was received that so it might appeare that he was an apprentice but for half a year and such a retainer is not within the Statute fourthly the conclusion of the information is contrary to the form of the Statute yet this doth not aide the imperfection of the information for such information only extends to matter of circumstance and not to matter of substance Finch Serjeant contrary that the retainer of an apprentice who departs out of the service of his Mr. without a testimonial is within the Statute of the 5th of Eliz. for the same branch is general there being no person who departs c. and an apprentice is a person which departs secondly the clause of the Statute is be it enacted that none of the forementioned retained persons c. and an apprentice is a person which is in a special manner named before Mich. 19. Jac. and therefore he is within the express words of the same branch Thirdly the form of the testimonial proves that for it is I. W. servant to such c. and an apprentice is such a servant Hobert chief Iustice said that it was never the intent of the Statute to make an infant who is an apprentice to be within the danger of the same Statute for an infant at the age of 14. years may be bound to be an apprentice and the punishment which is given by the same Statute is that such person shall be whipt as a Rogue which plainly proves the Statute intends only those who are of full age and if other construction shall be made perchance that the sonne of a gentleman may be punished as a Rogue by such departure and he held that if an apprentice depart with his Mrs. goods delivered to him that in this case he is not within the Statute of the 21. H 8. as another servant is and Serjeant Finch said that there is an express exception and if that had not been that an apprentice had been within the danger of the law but Hobert said that he doubted much whether an apprentice had been within that Statute though the Proviso had not been made but this proves that the makers of the Statute thought this to be a hard matter to make an infant who is apprentice to be within the danger of the same law and for that reason the proviso of the Statute was made Winch said to which Hutton agreed that when the Defendant had pleaded nihil debet and this was found for the Plantâ—ff yet he may move in arrest of judgement if the matter be not within the Statute adjurned In a replevin the Defendant said that he hâ—d property in the beasts absque hoc that the property was to the Plantiff and so prayed judgement of the writ and it was found for the Plantiff and now Harvey Serjeant moved in arrest of judgment for in no book is found such a traverse as this that the Plantiff had not property but only that the property was to the Defendant and secondly the conclusion of the plea is not good for he ought to conclude to the writ and not to the action Hobert 6. H. 7. is that an action of detinue affirmes the property at the time of the action but a repleviant the time of the taking and two men may have such property in the same thing that every of them may have a replevin and Hutton said that when the Defendant in the replevin claimed property he ought to conclude to the action and Hendon Serjeant being only at the barre and not of councell in the case said that the book of entries is that he shall traverse the property of the Plantiff as in the principal case Hutton Iustice said that this was never seen by him but they all agreed that this being after verdict judgement shall be given for the Plantiff Trehern against Claybrook Ent. Tr. 18. Jac. Rot. 650. TRehern against Claybrook in a debt upon a lease for yeares the jury gave a special verdict to this effect that Iohn Trehern Grandfather of the Plantiff was seised of land in fee and let this for forty yeers rendring rent for which the action is brought and that he devised the reversion to the Plantiff in catle the remainder to Leonard Trehern in taile with divers remainders over and with provises in the same will that for the raising of a stock for the Plantiff and for him in remainder his will was that one Griffith and Anne his wife being daughter of the devisor should have the profits and rent of the said land to their own use until the time that the Plantiff and the said Leonard Trehern accomplish the age of 21. years provided alwayes and upon this condition that the said Griffith and his wife within 3 moneths of his decease enter into bond to the overseers of his will in such a summe and in such a penalty as shall be thought fit by the said overseers and this bond to be made by their advice and if the said Griffith and Anne his wife do refuse to be bound as is aforesaid then the overseers shall have the rents and the profits c. and the jury found over that he made two executors and 3. who were overseers and that the 3. October 16. Iac. died and that within 3. weeks after the death of the devisor the executor read the will to the overseers but they found that the overseers did not remember that and if upon all the matter Griffith and Anne his wife had not performed the condition was the question and that if not the reversion was in the Plantiff And the point in law upon the verdict was whether Griffith and Anne his wife ought of their perils to tender the bond within 3. moneths or whether the overseers ought to make the first act and to tender the bond and the penalty for them to seal and Towse Serjeant argued that Anne and Griffith her husband ought to tender the bond at their peril for he said that the condition did precede the estate and therefore if they will have the benefit of the devise then he ought to tender the obligation and vouched Corbets case and 18. Eliz. the devise of land upon condition to pay money he ought to pay that at his perill Attoe Serjeant contrary and yet he agreed that if the condition was to precede the estate then the law was as Towse had said but here he said the estate precedes the condition for all the profits are devised to Griffith and to Anne his wife during the minority of the Plantiff by which it is apparent the estate is presently in the devisees and by consequence the estate precedes the condition and then the sole doubt will be whether Griffith and Anne his wife ought to procure the overseers to make the obligation and to limit the condition or whether the overseers ought to make this first they being the parties instrusted by the Will
doth not lye for for it is not averred that there was any fellony committed also Iustice Hutton held that in this case the declaration is not good because it is not expresly alleadged with an eo quod that the Plantiff stole the Vetches but only an indictment preferred containing such a matter and Iustice Winch said that the framing of an indictment in a Court of record is not any cause of an action for it is a proceeding in an ordinary Course of justice and for that reason ought not to be punished by an action upon the case for that will deterre and scare men from the just prosecutions in the ordinary way of justice Hobert chief Iustice was of a contrary opinion and yet he said that it is true that the ordinary Course of justice ought not by any means to be hopped or hindred and as that may not be obstructed so neither may the good name of a man in any thing which concerns his life be taken away and impeached without good cause for Courts of justice were not erected to be stages to take away the good name or fame of any man and therefore by the common law if two do maliciously conspire to judict a man without cause though the indictment it self be good and legally drawn yet a writ of conspiracy lies against those which caused this indictment to be preferred and it is as great a slander to preferre a Bill of indictment to the grand jury and to give this in evidence to them as it is to declare that in an ale house and as to the declaration he held that to be good without any averment of an indictment indeed and the indictment in writing and the preferring that to the grand jury containes the scandal and I am of opinion that an action upon the case lyes well see more after Easter 20. Jac. C. P. Hill against Waldron Easter 20. Jac. C. P. HIll against Waldron in an action of debt upon an obligation the condition was that I. S. shall levy a fine to the obligee before such a day of such land the Defendant pleaded that the obligee had not sued forth any writ of covenant the replication was that before the obligation made I. S. had made of feofment in fee of the same land to I. S. and that the feoffee continued in possession at the time of the making of the obligation and upon this the Defendant demurred and in this case two points were moved first when I am obliged that I. S. who is a stranger shall levy a fine to the obligee whether in this case the obligee is bound to sue a writ of covenant and it was argued by Serjeant Harvy that not yet he agreed that if the condition was that the obligor shall levy a fine to the obligee in this case the obligee ought to do the first act viz. to sue a writ of covenant as Palmers case Cooke 5. but otherwise when the fine is levied by a third person for there the obligor had took all upon him 4. H. 7. 15. E. 4. if I am bound to marry the daughter of I. S. and she will not marry me yet I have forfited my obligation and so here he ought to leavy a fine at his perill and at his own costs or at the costs of the obligor But admitting that the obligee ought to sue a writ of covenant because it appears by the replication that before the obligation made I. S. had made a feofment over and that the feoffee did continue possession at the time when the fine was to be leavied and therefore the obligee needs not to sue forth any writ of covenant because he who is to leavy the fine had disabled himself to perform that and he urged Sir Anthony Maines case where Cooke 5. the party needs not to tender a Surrender because that he who had the reversion had granted that over before the Surrender was to be made Serjeant Hendon to the contrary for he argued that the obligation is not forfeit except the obligee sue a writ of covenant and there is no difference between this case and when the obligor himself was to leavy a fine for the obligor had not undertaken for the whole fine but only that I. S. shall acknowledge a fine and if the obligor shall be compelled at his perill to sue a writ of covenant then you will construe the condition to extend to an unlawfull act for it shall be maintenance in him to sue forth a writ of covenant he vouched a case P. 4 Iac. Rot. 1548. Burnell against Bowle the condition of the obligation was that I. S. shall acknowledge a judgement in this Court to I. D. and in debt upon this obligation the Defendant pleaded that the Plantiff had not sued forth any orginall writ and it was holden a good plea and for the second point he held that the obligee ought to sue this writ of Covenant though that I. S. had dismissed himself of the land for the words are general that I. S. shall leavy a fine and this he ought to do though no estate pass by the fine for a fine upon release shall be a good performance of the Condition but otherwise if it had been to make a feofment in fee for a man cannot make a feofment except he be seised of the land at the time as 31. E. 3. debt 164. a man was obliged to present the obligee to such a Church and the obligee took a wife by which he had disabled himself to be a person yet the obligor ought to present him for otherwise he shall forfeit his obligation and so in this case Hobert and Hutton as to the first point held the barre to be good and that the obligee ought to sue forth the writ of Covenant for Hobert said he ought to do that for it is no reason to compel the obligor who is a stranger to the estate which passeth by the fine to sue a writ of Covenant and for that reason if I am bound to compel you to come upon such land to take a feofment I am not bound that the other make a livery of seisin but if the case was that I was obliged to you that I. S. shall leavy a fine to I. N. in such case the fine ought to be leavied at my peril though that I. N. will not sue a writ of Covenant Hutton according but Winch doubted of the case and as to the second point Hutton and Hobert agreed that the obligee as this case is needs not to sue a writ of Covenant because that I. S. had made a feofment of the land before and so had disabled himself at the time of the obligation for now it is impossible to leavy a good fine for if he should enter into the land and put out the feoffee this were not good within the condition and Hutton said it ought to be agreed that if I. S. had made a feofment after the time of the making
the words are found generally but yet admitting that the last words are actionable yet the Plantiff shall not have judgement for the damages are intirely given and for that reason void see more and Bedles case cited in Osborns case Cook 10. Harris Serjeant to the contrary for an Auditor is an officer of trust and he took an oath when he entered into his office and his receiving fees which are not due are also extortion and the words of Cousâ—â—age shall have also relation to the office as in Barkleys case you are a corrupt man an action lyes and Haywel and Stakleys case of a Iustice of the peace and Sir Miles Fleetwoods case he being receiver of the Court of wards one called him Mr. deceiver and ruled action lies and tunc et ibidem shall have relation to the same time in which the said words were spoken and so he prayed judgement for the Plantiff and it was adjourned till another time See after Good against Bawtry GOod brought an Ejectione firme against Bawtry for ejecting him of certain lands in Creeting St. Maries in Creeting St. Olaves and in Creeting omnium sanctorum and a Venire facias issued to try the issue to Summon 12. men de vicineto de Creeting St. Mary Creeting St. Olaves and Creeting omnium omitting Sanctorum and it was now moved in arrest of judgement by Attoe Serjeant that the Venire facias was not good for it ought to be of all the Creetings and the Court blamed the Clark very much for his negligence but it was adjourned till another time A man lett an advowson for 40. years and the lessee covenanted that he would not alien without the assent of the lessor and he shewed all the matter because he had aliened to I. S. without his assent and the Defendant pleaded that he had not aliened without his assent and upon that they were at issue and it was found for the Plantiff and now it was moved in arrest of judgement because he had not laid that the alienation was by deed for an advowson may not pass without deed and Hobert said if a man will declare in an ejectione firme of a lease made by the husband and the wife without deed this is not the lease of the wife without deed or yet if the Defendant will plead not guilty or non dimisit and this is found for the Plantiff the Plantiff shall have judgement for this shall be intended to be by deed which was granted by Winch Iustice being only present that the breach was well laid and he alleadged a president 43. Eliz. a man avowed and had not shewed that this was by deed and the Defendant pleaded non concessit and found for the avowant and he had judgement but Hobert denyed this case but afterwards in the principal case it was adjudged that the breach was well laid and the Plantiff had judgement In a formedon in reverter the Tenant was essoyned and the vouchee also appeared the case was essoyned and he had day over till octabis Michaelis And then the Attorney of the Defendant would have been essoyned and it was argued by Hendon Serjeant that he shall not be essoyned and yet he agreed if the vouchee had not appeared the Tenant might have been essoyned againe 13. E. 3 essoyne the 8. and the same Law of the vouchee be returned tarde but if the vouchee appeare and is essoyned there the Tenant shall not be essoyned againe and so is the express â—ook of the 3. H. 7. 17. 9. E. 3. 39. and the reason is because by the appearance of the vouchee the Tenant is out of the Court c. and it was adjourned till another day and at that day it was resolved by the Court that the Attorney shall be essoâ—ned and this was upon the view of a like judgement in the case of the Earl of Clanrickard and Hobert said that in that case the Roll of the 3. H. 7. was searched for and could not be found and Towse urged 22. H. 6. and 13. E. 3. essoyne 8. Sir Henry L. Warden of the Fleet. RIchardson Serjeant moued for the warden of the Fleet Sir Henry L. and his motion was that whereas one I. S. was in execution in the Custody of the Warden of the Fleet for 300. l. and he made an escape and he at whose suite he was in execution brought an action upon this escape against the Warden of the Fleet and he shewed that the Warden upon fresh suit had taken him again and he prayed that the Plantiff may not proceed in his action for though the Warden of the Fleet may plead this though the action was brought before the retaking of the party yet he prayed for the saving of charges that the action may be stayed and he said that there was such a case in this Court against Harris deputy Warden to Sir Henry L. upon such an escape and he pleaded to the issue and after he retook the prisoner and in this case the Court had also relieved Harris if the issue had not been joyned but Hobert let the Plantiff be brought here present in Court and then we will speak to that point Gell against White Gell against White and others and he declared in action of Trespass but the writ was general but the declaration was quare vi et armis bona et catalla sua ceperunt et asportaverunt viz. tertiam partem unius dishei plumbei Anglice the third part of a dish of lead Ore and it was moved that the Plantiff shall not have judgement for the variance between the writ and the declaration and though it is objected that here is nor any original writ at all for in verity there was not any yet the declaration is contrary to it self for if in a replevin the Plantiffs writ is de bonis et Catallis and his declaration is of a taking of a horse this is not good and so here bona viz. tertiam partem c. for this particular thing may not be said to be goods and Chattels and Harris Serjeant moved that the Attorney might be banished the Court for declaring without a writ according to the express book 20. H. 6. Hobert good reason adjourned till another time Anne Buckley against Simonds Mich. 18. Jac. Rot. 2120. ENtered Mich. 18. Jac. Rot. 2120. Anne Buckley was Plantiff in a Quare Imp. against Simonds and the case in effect was that Andrew Buckley Grandfather of the husband of the Plantiff did Covenant by indenture with Preston that before such a day his Son should marry the daughter of Preston And Covenanted to convey 6. l. 13. s. per Annum of rent issuing out of land to hold to them during the life of the Covenanted and his wife and after this he Covenanted for him his hetres and assignes that after the death of the Covenantor and his wife the land to which the advowson in question is appendant shall remain come and be unto the said
answered that if it is meerly Collateral then it shall not go to the successor of the Bishop but to his executors as if the lessee had covenanted or obliged himself to pay this Herriot to the successor he may not have benefit of this obligation but the executor of the Bishop who was lessor shall have that and so he said that the argument made by Hendon is against him for if it be meerly Collateral then this shall not go to the successor and though the lessee of the Mannor may not have it the Plantiff shall not have a Trover and Conversion as he said before but he held this good by way of reservation for modus conventio vincunt legem and as to that which hath been said that the Herriot is to be paid upon the death of a stranger and not upon the death of the lessee himself to this he answered that this is nothing for the payment shall be out of the beasts of the lessee and not out of the beasts of a stranger and so he concluded and prayed judgement for the Defendant Rives case SAlmon avowed for a rent charge and he shewed that Sir Robert Rives had a rent charge granted to him and he further shewed a discent of that to the son and heir of Sir Robert and shewed that the rent was behinde unpaid to him viz. to his son and heir and he avowed as Bailiff to the son and exception was taken to the avowry because it is not expresly alleadged in whose time the rent was due whether in the time of the father or in the time of the son for if it is behinde in the time of the father the son may not distrain for that but it was resolved that the avowry was very good for in asmuch that he had shewed that the rent was not paid to the son this implied the rent was due to the son and not to the father An Executor brought a Scire Facias upon a judgement given for the Testator in debt by him and the Defendant would have pleaded the death of the Testator between the verdict and the judgement per Curiam he was not suffered for he may not plead this in a Scire Facias but the Defendant is put to his writ of error In Trespass for beasts taken in London and the Defendant justified to taking as a distress upon a lease of land in Kent and the Plantiff replied that the Defendant sold the beasts in London and so not a good plea to bring the Trial out of Kent and to have that tried in London which note Batterseys case AN action upon the case was brought against one Hordecre upon an assumpsit and he declared that the Defendant had arrested one Battersey by vertue of a Commission of Rebellion out of the Cinque ports and that the Plantiff keeping a Common Inne the Defendant brought the said Battersey to his Inne and requested the Plantiff to keep him a day and a night and promised in consideration there upon that he would save him harmless and he shewed that he kept the prisoner accordingly and that the said Battersey brought an action of false imprisonment against him and recovered against him upon which the action accrewed and upon non assumpsit pleaded it was found for the Plantiff and now it was moved in arrest of judgement because he had not shewed that the said Battersey was lawfully arrested and imprisoned and then if a man will without cause arrest a man and promise in this case no action will lie for it is no consideration because that the imprisonment is unlawful but Hobert chief Iustice Hutton and Winch contrary for be the imprisonment lawful or not lawful he might not take notice of that as if I request another man to enter into another mans ground and in my name to drive out the beasts and impound them and promise to save him harmless this is a good assumpsit and yet the act is Tortious but by Hutton where the act appears in it self to be unlawful there it is otherwise as if I request you to beat another and promise to save you harmless this assumpsit is not good for the act appears in it self to be unlawful but otherwise it is as in our case when the act stands indifferent but Hobert said it may be there is a difference between a publick officer and a private man for if the Sheriff arrest a man unlawfully and promise as before this is a good assumpsit but perchance otherwise of a private man as here but in the principal case the Defendant had pleaded non assumpsit and this implies a Lawful imprisonment for otherwise the Defendant might have given the unlawful imprisonment in evidence and judgement was commanded to be entered for the Plantiff Claworthy against Mitchel CLaworthy against Mitchel in a replevin the Defendant avowed for a rent and shewed that his father was seised and let for years rendring rent and he died and that the reversion descended to him and for rent behinde he avowed in barre of which avowry the Plantiff said that the father devised the reversion to another and the other maintained his avowry and traversed the devise and it was found that the devise was only of two parties and not of the third part for in very truth the land was holden by Knights service and all this was found by special verdict and for whom the jury had found was the question and it was argued by Hendon that this verdict is found for the avowant and he vouched 32. H. 8. Brook issue 8. in a precipe quod reddat if the issue be whether A. and B. infeoffed the Tenant and it is found that A. infeoffed him but not that A. and B. infeoffed him the issue is found against the Tenant see 14. E. 4. and Dyer 260. in debt upon a lease for years of divers parcels of land and upon non demisit pleaded it is found quod demisit all except one parcel this is found for the Plantiff and â—rin 15. Iac. Rot. 2022. Allen against Soper in a replevin for a horse and avowed for damage fesant and the Defendant claimed Common for his beasts Levant and Couchant upon his land and some in this case were found Levant and Couchant and others not and it was found against the Plantiff and he said in this case when the Defendant had alleadged a devise of all the land and upon this issue is joyned and it is found that part is devised and not all this is found against the Plantiff because the issue is joyned upon a particular and a special point whether all was devised or no and yet he agreed that upon a general issue as in trespass in 20. acres of land and the Defendant is found guilty but only in one yet the Plantiff shall have judgement but not where the issue is joyned upon a particular point as here but admitting that the Plantiff shall have judgement yet the avowant shall have return
reason the factor may sell the goods without ready money and this is good reason for perchance the goods are of that nature that they will not keep without perishing by which clearly it appears that if I deliver goods to another to Merchandise and to sell he may sell them without ready money but if my factor or Bailiff will sell them to one which he knows wâ—ll prove a Bankrupt without ready money this is not good but secondly he held the custome as it is here alledged not to be good for then the partie shall have no remedy for his money except the factor will go into Spain and sue the Bill and the laws of Merchants are special laws for their benefit and not for their prejudice and this custome as it is alledged is too large but if he had alledged that such Bill taken by the factor shall be as good and effectual to the Mr. as if it had been taken in his own name this had been good besides the custome is not good for it is alledged to be that when the factor had delivered the Bill to the owner of the goods this shall be a discharge to him who was the factor and here is no time set within which this may be delivered and so for ought is shewed it may be delivered 10. years after which may be good and to that which had been said that the laws of Merchants are national laws he denied that for every Kingdome had its proper and peculiar laws and though this is the law of Spain and national to them yet this ought to be reasonable or else it shall not binde and judgement was commanded to be entered for the Plantiff Hobert and Winch being only present It was ruled that he who had land in a parish who did not inhabit there shall be chargable to the reparation of the Church but not to the buying of ornaments of the Church for that shall be levied of the goods of the parishioners and not of their lands by Sir Henry Yelverton and said to be so formerly adjudged In trespas the Defendant pleads that one such was possessed of a term for years and bring so possessed by his last will and Testament devised that to the Defendant and died after whose death the Defendant entered and was possessed by vertue of the devisee upon which plea the Plantiff demurred generally and Hutton thought this plea prima facie to be good though the Defendant had not expresly alledged that the devisee died possessed but his plea implies that for he had said that he entered by vertue of the devisee and was possessed and this only matter of form and not matter of substance and no cause of general demurrer which Winch also granted that this was also matter of form and not matter of substance Gage against Johnson for his fees GAge brought an action against Iohnson as his servant and Solicitor to the Defendant in a suit in the Kings Bench taking for every Term 3. s. 4 d. for his fees and for this he brought his action of debt and Serjeant Hitcham moved in arrest of judgement and he urged the case of Samuel Leech an Attourney of this Court in an action upon the case brought by him upon a promise to pay so much for the solliciting of a cause of the Defendant and the opinion was that the action will not lie for it is in nature of maintenance for a Solicitor may not lay out money for his Clyent and if an action upon the case will not lie then much less an action of debt and Hobert said that a Councellor may take fees of his Clyent but he may not lay out or expend money for him and the same law of an Attourney for if he did disburse money for him he doubted much what remedy he should have and he further said a servant may follow business for his Mr. and may take money for his labour for if I retain my servant generally he is not bound to follow my suits at law except at his pleasure for that is an extraordinary service and for that if I will say to my servant that if he will follow my business at Westminster I will give him so much for his pains my servant in this case is not without his remedy but if his service is coupled with Soliciting to take money for his pains his opinion was that no action will lie to which the other justices also agreed and they arose Wright against Black before NOw the case of Wright and of Black was moved again and the case was that Wright had brought an action upon the case against Black and Black for that the Defendants intending to make away his good name and to cause him to lose his goods did maliciously and without cause at Norwich in the County of Norfolk prefer a Bill of indictment at the Sessions of peace containing that the Plantiff stole two bundles of fetches and also did cause and entice one I. S. to give in evidence that the indictment was good and true by reason of which he was bound to Answer that at the next Assiles and there he was accquitted and whether the action was maintainable was the question and Attoe argued that the action is maintainable though it is not shewed that the Bill of indictment was found and he vouched a case which was Hill 10. Iac. B. R. Rot. 921. between Whorewood and Cordery and his wife Defendants which case and judgement was after affirmed in the Exchequer Chamber upon a writ of error and the case was that the Plantiff declared that the Defendants intending to take away his good name did charge him to have ravished Dorothie Coxe and maliciously exhibited a Bill of indictment containing that the Plantiff did felloniously ravish the said Dorothie their daughter and did give this in evidence to the Grand jury who found Ignoramus and yet it was adjudged that an action lies and he cited a case the 19. Iac. in B. R. Deney against Ridgy where was only an indictment preferred concerning the stealing of a horse and no more and yet an action lies Hobert chief Iustice said that if seemed to him that it is actionable for this is as great a scandal to give this in evidence to the Grand jury as to publish this upon an Alebench and as the course of Iustice ought not to be stopped so neither ought the good name of man in things which concern his life be taken away without good cause and I have heard that judgement was given another Term for the Plantiff but quere better of that Hoes case HOes seised of land in fee he devised that to his wife for life the remainder of one parcel of that to Thomas his eldest son the remainder of the other parcel to his youngest son in fee and this devised was with proviso that the feme shall pay his legacies and also his will was that in case his wife died before the payment of his debts and legacies
prayed judgement in the case for the Defendant Finis M. 20. Jac. The Bishop of Glocester against Wood before NOw the case between the Bishop of Glocester and Wood was adjudged Hobert and Winch being only present and first it was resolved by them that when the Bishop let parcel as 20. acres for life and after he lets the Mannor it self to another rendring rent in this case the rent issues out of the intire Mannor for if in debt for the rent the lessor do declare upon a demise of the Mannor omitting the reversion of this parcel the declaration is evill and upon non dimisit pleaded it shall be found against him Secondly this they held that the Herriot reserved shall go with the reversion and if this do not go with the reversion to the lessee of the Mannor yet the Plantiff shall not have the Herriot and then though the Defendant had not good title to the Herriot yet if the property of the Herriot do not appertain to the Plantiff he shall not have a trover and conversion for the Defendant had the first possession and judgement was commanded to be entred for the Defendant if no other cause was shewed before next thursday Hill 20. Jac. C. P. Bulloigne against William Gervase Administrator BUlloigne brought an action of debt upon an obligation of 12. l. against William Gervase Administrator to I. S. and the Defendant pleaded that the intestate died outlawed and that the outlawrie alwayes continued in force and upon this the Plantiff did demur generally and it was argued by Attoe for the Plantiff for the plea is not good for this is a plea only by way of argument that he shall not be charged for this debt because he had not assets and in this case this outlawrie ought to be given in evidence upon nothing in his hands being pleaded and it ought not to be pleaded in barre for by possibility the outlawrie may be reversed and then the Administrator shall be charged if he had any goods and he vouched a case in this Court Trin. 27. Eliz. Rot. 2954. Worley against Bradwel and Dame Manners his wife Administratrix to Sir Thomas Manners and the feme pleaded outlawrie in the intestate and the Plantiff demurred generally and it was adjudged to be no plea and note that the record was brought into the Court and read accordingly Hitcham Serjeant to the contrary the record in Manners case was not well pleaded for the Defendant only shewed that a Capias ad satisfaciendum issued against the Testator and did not shew any recovery or judgement against him and that was the reason of the judgement in that case and the Plantiff here ought to have demurred specially as the case of 27. of Eliz. for otherwise he shall not have advantage of this plea and the plea is only evil for the manner for it is apparant that by the outlawrie of the Testator all his goods are forfeit and this is the reason of the book of 16. E. 4. 4. it is a good plea in an action of debt to plead an outlawrie in the Plantiff and to demand judgement of the action and not judgement of the writ for the debt is forfeit to the King by the outlawrie Hobert Hutton and Winch the president shewed by Attoe is not answered for though the pleading of the outlawrie is without shewing of a recovery and judgement yet the outlawrie is good till it is reversed and Hutton said that in some cases an Executor or Administrator had goods though the Testator died outlawed as if the Testator let for life rendring rent and the rent is behinde and after the Testator is outlawed and dies this shall not be forfeit but his Executors shall have the rent and if a man make a feofment upon condition that the feoffor pay 100. l. to the feoffee and his heirs or Executors and the feoffee is outlawed and the feoffor pay the money to his Executors as he may well the Executors and not the King shall have that also if the Testator is outlawed and he devise his land to his Executors to be sold these moneys shall not be forfeit and they shall agree that the plea was not good notwithstanding the general demurrer for he who will barre another by an argumentative plea his plea ought to be infallible to all intents and purposes and so it is not here for the Executors and the Administrators may be charged by the having of goods though the Testator was outlawed and for that the plea of the Defendant is not good in substance and the general demurrer is good by Hobert and by him if we suffer this plea then the Defendant will keep the goods and not reverse the outlawrie nor yet satisfie the King also if he had not goods the Defendant may plead plene Administravit or nothing in his hands and give this outlawrie in evidence See 8. E. 4. 6. 3. H. 6. 32. 39. H. 6. 37. by the opinion of Prisot and also see the case in E. 4. 5. a case to this purpose and also note well that it was said concerning the case of Manners that a writ of error was brought of that afterwards and that the case remains till this day undetermined Buckley against Simonds Ent. 18. Jac. Rot. 2120. NOw at this day the case of Buckley and Simonds was argued by Iustice Hutton and by Winch and the case was briefly this Anne Buckley Administrator to Andrew Buckley her Husband was Plantiff in a quare Imp. against John Simonds John Prior and Robert Pierce Alias Price for disturbing her to present to the Church of D. and shewed that Andrew Buckley Grandfather of the Husband of the Plantiff was seised of the said advowson in gross and presented one I. S. and he died after whose death the advowson discended to Richard Buckley and that the Church became void and that one Richard Williams usurped upon the said Richard Buckley then being within age and that Richard Buckley also died and by his death the said advowson discended to Andrew Buckley as brother and as heir to Richard and that the Church became void and before the presentment by Andrew and within 6. moneths Andrew died and that the Administration of the goods of Andrew were committed to the Plantiff and that she presented within 6. moneths and the Defendants disturbed her and the Defendants pleaded in barre and confessed the seisin of the Grandfather as is alledged in the declaration and they said that the said Andrew Buckley 14. Eliz. by his Indenture made between the said Andrew Buckley on the one part and John Preston of the other part by which the said Andrew Buckley by the same Indenture covenanted with Preston in consideration of a marriage to be had between John Buckley and Elizabeth Preston daughter of John Preston he covenanted with him and his heirs that immediately after he death of him and of his wife the said advowson inter alia shall be to the said John Buckley
the demandant who appeared and entred into warranty freely and he pleaded that he had nothing by descent from Christopher Goldingham his father upon which plea the Tenant and the vouchee were at issue and the demandant had judgement against the Tenant to recover but cesset executio until the voucher is determined and after that and before the day of the nisi prius Edward Goldingham died and then at the day the Tenant lost by default so is the Record and now upon the prayer of the demandant to have a writ of seisin these cases were moved First by Serjeant Hendon that the writ of seisin may be stayed because as he said the Tenant may revouch the heir of the heir for it is not possible that the vouchee should lose by default because that he was dead and therefore you may see that he conceived that where it is said in the Record viz. on the back of the postea that the Tenant lost by default he conceived that to be meant of the vouchee and not of the Tenant in the writ of Dower but Hutton was of opinion that admitting that it should be so intended yet he may revouch for there was a judgement given against him with a cesset executio till the voucher is determined and that is now determined by his death and when judgement is once given he had not day in Court but if the vouchee had died after the warranty then he may revouch but here the Court rather intended that the record shall be meant that the Tenant in the writ of Dower made default and then it is not possible that ever he shall revouch but they said it had been more question if the Tenant had appeared at the day of the nisi prius and had pleaded the death of the vouchee after the last continuance and had prayed the advantage of his warranty and at another day Hendon moved that the judgement given against the Tenant was not good for it was absolute with a cesset executio where that ought to be a conditional judgement c. against the Tenant if the vouchee had not assets and if he had then judgement against him according to the Lord Dyer 202. Mich. 3. Ma. Rot. 508. for otherwise the Tenant shall lose the benefit of his warrantie against the voucher and so if the heir do confess the assets yet the judgement shall be conditional for otherwise if he had not assets according to his confession the demandant shall have a new judgement against the Tenant and of this opinion was Iones Iustice But Hutton said that this was very well and that the judgement may be either wayes conditional or absolute and he said that this is no prejudice to the warranty for the Tenant may have a scire facias against the vouchee but in this case day was given over till the next Term and the Prothonotaries were commanded to search the presidents concerning that See more after Mary Over and her second husband against Tucker MAry Over and her second husband brought an action of Dower against one Tucker and demanded Dower of the indowment of one Paul her fiâ—st husband and it was agreed that this trial ought to be by witnesses according to Dyer 155. and it was awarded by the Court that the the Councel of either side should draw up Interrogatories and put their neams to them and then they should be delivered to Master Waller the Prothonotary in whose office the cause is entred and he shall have the examination of the witnesses of both sides and then seal up the Interrogatories again and so remain till they were delivered over to the Court and then qui melius probat melius habet The residue of Easter Term in the two and twentieth year of King James in C. P. AN action of debt was was brought against an Executor who pleaded plene Administravit and the other replied and shewed that before this action brought he brought another action against the Defendant in which he was outlawed and that after the reversal of the outlawrie he took out this writ c. and that he had assets at the first bringing of the first writ and issue was taken upon that and it was found for the Plantiff and it was resolved that the Plantiff shall have judgement for this is in nature of Journeys accompts according as it was in Aldridges case upon the same matter which was long debated by the Court and it was also affirmed to be good law in a writ of error brought of that in the Kings Bench for otherwise if it should not be so the Defendant himself should take an advantage of his own evil plea which the law will not allow by any means to be suffered but then it was said by the Court that in this case the Plantiff in the action ought to bring his second writ immediately after the reversal of the first judgement in the outlawry if he will take any advantage of that Trin. 22. Jac. C. P. Trinity Term in the two and twentieth year of King James in the Common Pleas. HIckford brought an audita querela against Machin and the case in effect was this Richard Davis 43. Eliz. acknowledged a Statute Merchant of 500. l. before the Maior and Clark of Gloucester to Machin and all the circumstances of the Statute de mercatoribus were well observed saving only that no day of payment was mentioned and after the said Machin took a lease for years of part of the land of which the Conusor was seised and after the Conusor died intestate and Hickford took out letters of Administration and Machin sued execution against the said Hickford who brought an audita querela and the single point was whether this Statute be good in regard that no day of payment is appointed and after divers arguments by the Serjeants in other Terms this Term it was argued by all the Court and the effect of their several arguments were in this manner Iones Iustice began and said it seems to me that the Statute is good and that no audita querela will lie and he said here had been 3. objections made against this Statute first that every Act of Parliament which gives directions for the doing of a thing ought to be precisely pursued and shall not have an explanation upon an explanation and he said that notwithstanding this objection he thought the Statute to be good for in every Act of Parliament there is substance and there is form and if the substance be observed though not every circumstance yet that is very good and so is the case concerning conditions which are as strictly to be observed as any thing yet if the substance be observed though not the very letter yet this is very good as the case of Scroop Cook 10. one Covenanted to stand seised to devise uses with a provisee that if he shall be disposed to alter disanul or change the uses c. that then it shall be lawful at all
of 3. acres and he accepts a rent of two of them which render of them all this is void for one acre and lastly by a feofment of land by warranty a rent is discharged 21. H. 7. and here I conceive that the replication to the bar of the avowrie is not good for his plea is that the rent in this case is not comprised and that is a point in law whether it is comprised or no for if we do take issue upon that we shall draw the trial here from the Court to the jury in the Countie which is not good and so upon all the matter I pray judgement for the Plantiff in the replication The argument of Davenport Serjeant DAvenport Serjeant to the contrary and he said the case is as hath been recited and the question is whether the rent so granted in tail is by this agreement of the parties and by the fine of the land whether it hath extinguished the rent and I hold this conveyance which only passeth the rent by implication is no bar to the issue in tail within the Statute of fines for where it is said that a fine was levied of the rent by the name of the land and made no mention of the rent this will not carry the rent and yet I agree this fine to be a feofment upon record and to be a bar against the parties who levied that but not against the issue if this had been before the Statute of fines it is no question this had been no bar against the issue for it is the express book 13. Ed. 3. avowrie 12. and 26. H. 7. 4. Tenant in tail of a rent made a feofment in fee of the rent with warrantie and there it is said that the warrantie did not extend to issue quoad the rent but now our case is upon the Statute of 32. H. 8. which saith that a fine shall be a bar of my lands Tenements and hereditaments any way intailed but yet I conceive that this requires that the fine be levied expresly of that and not by way of conveyance and so the case of Smith and Stapleton by Thornton who said that this was granted to him to be law which must needs be meant it was granted by the Court or by the Councel of the other side and the reason of that is because it ought to be levied of that expresly and there it is said if Tenant intail of an advowson do levie a fine of the nomination that shall not bar the issue and yet in effect that is the advowson and because it is not levied of that expresly it is not good and then for the precedent agreement that is indeed that the fine shall be for the extinguishment of the rent and what then will that prove that the fine was levied of the rent and here the writ of Covenant was not brought of the rent and yet I agree that agreements which do lead uses of fines will qualifie them against the very nature of the fine as the case of the Lord Cromwel and Puttenham in Dyer but I do not hold the agreement will extend over the nature of the fine and therefore this being a rent in gross it may pass by the name of land and the averment here is contrary to that which doth appear upon the Record and then not comprised is a good plea but this shall not be tried by the Countrie but by the Record as 12. H. 7. 16. for it is only to inform the Court that the partie had mistaken the Law and shall be tried by the Court and not by a jury in the Countrie as Attoe said and so upon the whole matter of the case I conclude my argument and pray judgement for the Avowant see after Hill 22. Iac. The residue of Michaelmas Term in the two and twentieth year of King James Ralph Holt and Rand against Robert Holt. RAlph Holt and Rand were joyntly and severally bound in an Obligation to Robert Holt and he took out Proces against them by several Praecipes and he had two several judgements and took out two several Executions against them of one Test S. a fieri facias against Rand and a Capias ad satisfaciendum against Holt and the question was whether the writs were well awarded and whether when one is Executed the other is discharged and Serjeant Crew urged 15. H. 7. 15. if after a Capias executed Sir Gilbert Dabenhams case he may not have a scire facias against the same partie and he cited a case to be adjudged in the 13. year of King James between Crawley and one Lidcat where two joynt obligors and the obligee did sue them and had two several judgements against them and he took an elegit against one and a Capias against the other and he who was taken upon the Capias brought his audita querela by which he was discharged of the execution for in so much that he had taken an elegit against one he is concluded to take any Process against the other as well as against him who had the elegit sued against him and so is Cook 1. 31. and yet some books are if the fieri facias is served for part he may have a Capias for the residue and so is the 18. Ed. 4. and â—0 Ed 4. 3. but here the fieri facias was executed for all and for that no Capias ad satisfaciendum shall issue in this case but Waller one of the Prothonotaries câ—â—ed a case in this manner that if a noble man and another be bound in an obligation as before and the obligee had such a judgement as here in this case he may have an elegit against the noble man because that the first Process against him is by summons and distress and he may have a Capias against the other or a fieri facias but Hutton denied this case and said that he shall have the same execution against both for as this ought to be one satisfaction quo ad ec sati factionem so this ought to be one for the manner also and though in this case that the Capias was not well awarded and Harvey Iustice agreed to that Methol against Peck MEthol brought an action upon the case against Peck upon an assumption and he declared that in consideratâ—on that the Plantiff would pay unto one Plaford 52. l. to the use of Peck such a day c. Peck promised to redeliver his bond in which he was bound in the said summe when he should be requâ—sted to that and he said that he paid the 52. l. to the use of Peck and that the said Defendant had not delivered the said obligation licet saepius postea requisitus fuisset and upon the issue of non assumpsit it was found for the Plantiff and now it was moved in arrest of judgement because he had not shewed the day and the place of the request but the Court c. Hobert Hutton and Harvey were of opinion that judgement
of Tithes and good because they are a spiritual bodie 65 In a Prohibition upon a suit for a Legacie the Executor shewed he had not assets to pay the debts and the spiritual Court would not allow that allegation yet no Prohibition 78 Prohibition to the Marches of wales because a Legatee sued there for 500. l. good before a decree but not after 78 Prohibition see Court of equitie c. 79 Prohibition to the Marches of Wales for requiring an accompt of an Administrator 103 Proces against two Obligors by several precipes and thereupon several Executions whether the writs are well awarded 112 A parco fracto where it lies against the Lord of the Soil and where not except the Cattle come out 80 81 Prohibition to the delegates a pardon not allowed of there 125 Q IN a Quare impedit adjudged that nothing ought to be questioned after induction the spiritual Court there 63 R TEnant in tail sells to I. S. in fee who sells to the heir of Tenant in tail being of full age the father dies if the son be demitted 5 A replevin c. the Defendant saith that all those c. had used to have pasturage in c. when it was not sowed the Prescription is good 7 In a return of Rescous there needeth no addition 10 Replevin for rent issuing out of six acres the avowant must prove that the grantor was seised of 6. acres or more 15 Replevin in the Plantiff claimeth propertie without that the propertie was in the Defendant the Traverse not good yet judgement for the Plantiff because after verdict 26 In Return of an extent by the Sheriff surplusage hurteth not 27 Replevin the Defendant avowed for homage and shewed not how it was due if good 31 Replication although evil where the Plantiff shall have judgement if the Defendants plea be vitious 37 A Riotous quarrel about an arrest between the Sheriffs Bailiffs and the Bailiffs of the Marches of Wales 72 Release an avowrie not good without pleading it by deed 72 A Rent-charge granted and a Covenant if it happen to be behinde then the land to be alwayes open to distress whether this be a distinct covenant or not 74 87 Replevin for rent the Defendants say that the land was parcel of a Chaunterie which came to the King by the Statute wherein the right of others was saved the Plantiff replies that the land is out of the fee of the Defendant no good plea but he might have Traversed the Tenure that at the making of the Statute the land was not holden of him 77 A Record amended where the bargain and sale and deed of uses were by the right name but the writ of entrie was of another name 99 100 Rent granted in fee by Tenant for life and him in remainder in tail levied a fine a good grant 102 Rent-charge whether it be extinct by a fine of the land to the Ter-tenant and a release unto him 109 110 111 121 122 S SCire facias the Defendant pleads a feofment the Plantiff traverses and the jury found a feofment to other uses whether this shall be intended the same feofment which was pleaded 32 Scire facias by an Executor upon a judgement for the Testator the Defendant cannot plead the Testators death between the verdict and judgement but he must bring a writ of error 48 Simonie a grant of a next avoidance for monie the Parson being readie to die is Simonie 63 A Sheriff by force of a Capias utlagatum to inquire what lands c. cannot put the partie out of possession 78 Statute-Merchant if good in regard no day of payment is limited largely and learnedly argued by the Court 82 83 c. Servant taken away See Trespas T TIthes See Prescription Trespass the Defendant saith that I. S. was seised in right of his wife and that she died seised and that he as heir c. the Plantiff replied that she died not seised he ought to have said that she died not sole seised 7 Trespass in Yorkshire Justification in Durham without that that guiltie in Yorkshire good because it is local 7 A Traverse to a presentation where good and where not 13 14 Tenure where it is Traversable and where the seisin 18 Tithes not due of Cattle for the diarie 33. Trespass for Beasts taken in London Justification upon a lease of land in Kent Replied that the Defendant sold them in London no good plea to bring the trial out of Kent 48 Trespass for taking ones servant lieth not upon a private retainer otherwise if it were at the Sessions 51 Tithe giuen by the Pope to the Vicar and the Copie of the Bull only was shewed in evidence not good 70 Tithes cannot be appurtenant to a Grange except the Grange be the Gleab 72 73 Traverse where good and where not 113 U VEnire facias omitting part of the venue if good 34 Variance between the writ and Declaration where good 35 A feofment to the use of A. for life and after to the use of his daughter till B. pay her 100. l. here the daughter hath no remedie for this 100. l. without a promise 71 A Ventre inspiciendo awarded and returned but the Court would not agree that she should be detained from her second husband but attended by divers women till her deliverie 71 Variance between the venire facias and the Sheriffs return no judgement in that case 73 W IN Waste judgement by nihil dicit and upon an inquirie the jury found 8. s. damages what judgement shall be given 5 Wager of Law upon a Bill of Exchange 24 Writs a difference wherein there is an error in the original and where in the judicial writ that is amendable 73 Waste although for a time it is punishable yet after the action may revive 79 86 Writ against husband and wife as an Inheritrix the husband dies if the writ abate 102 Errata PAge 1. line 2. 27. for do read Doa p. 2. l. 4. r. lieu p. 4. l. 2. 22. r. 300. pa. 8. l. 36. r. Hendon and so throughout p. 12. in the Title r. Duncombe against the Vniversitie of Oxford p. 12. l. 14. r. 38. H. 8. cap. 39. p. 14. in the Title r. Sir George Savile against Thornton p. 15. l. 21. r. communication p. 16. l. 12. r. 7. Jac. cap. 5. p. 17. l. 47. r. Maines and l. 17. r. sic and also p. 17. 18. in the Margent r. Trin. p. 21 l. 51. r. 39. Eliz. p. 23. l. 9. r. till p. 26 l. 28 for writ r. Action and for Action r. writ p. 27. l. 12. for he r. they p. 28. l. 34. r. may not p. 29. in the Margent r. Easter p. 29. l. 33. for S. r. N. p. 33. l. ultim r. Moore p. 36. l. 43. r. Titterels p. 45. l. 20. r. demandable p. 50. l. 35. r. Bar p. 51. l. 22. r. a penalty p. 53. l. 16. r. may not p. 54. l. 44. r. Estate p. 57. l. 19. r. in our case p. 58. l 50 r. 16. E. 4. p. 68. l. 5. r. estray p. 71. l. 26. r. 12. Note in p. 72. l. 7. Wolseys case ought to have been printed by it self p. 77. l. 4. r. avoided p. 88. l. 4. r. Finch p. 90. l. 15. r. continuance p. 100. l. 21. for preservation r. perswasion and l. 34. for entire r. entrie p. 109. in the Margent for Trin. r. Mich. p. 112. l. 25. r. thought p. 114. l. 18. for interested r. interest
TERM In the 19. of KING JAMES in COMMON BENCH Easter Term. 19. Jac. IT was said by Warberton Iustice that in the time when Anderson was chief Justice of this Court that it was adjudged that where a Coppiholder alleadged a custom within a Mannor to be that every Coppiholder may cut trees at his pleasure that this custome is against common Law and also his opinion was that where a custome was alleadged to be that if a Tenant in antient Demesne devise his land to another without other words expressing his intent that the devisee shall have the fee simple Hobert inclined to this opinion and by Hutton and Winch he shall have fee by the custome and accordingly it was adjudged Norton against Lakins Ent. Hill Jac. NOrton against Lakins Ent. Hill 18. Jac. in debt upon an obligation the condition was to stand to the arbitrement of J. S. and the Defendant pleaded that he made no arbitrement the Plantiff shewed the award and the breach And the case in effect was that the Plantiff and the Defendant put themselves upon the arbitrement of J. S. of all matters between them till the first of March 18. Iac. and he made an award that each shall release to the other matters and differences between them till the ninth day of March 18. Jac. and it was argued by Serjeant Henden that the award is void for by their release the obligation upon which this action is brought is discharged but it was ruled to be a good award for though it shall be void for that part of the award yet it shall be good for the rest but Winch doubted of the case Reynolds against Poole Ent. Hill 18. Jac. Rot. 641. REynolds against Pool Ent. Hill 18. Iac. Rot. 641. Reynolds libelled in the spiritual Court against Pool for the Tithes of a Park and Pool prayed to have a prohibition and he shewed that he and all those whose estate he had in the Park had held this as a Park till the 11. of Eliz. at which time it was disparked and that time beyond memory c. the occupiers had used to pay to the vicar of the parish a Buck in Summer and a doe in winter in lieu and satisfaction of all Tithes due to the Vicar And it was argued by Serjeant Henden that this is not a sufficient cause to grant a prohibition because that now the Park is destroyed and sowed and so the prescription fails for it was annexed to the Park secondly the question is for the Tithes of corn and those do appertain to the Parson and not to the Vicar and he cited a case between Hawk and Collins in this Court there the prescription was that he and all those whose estate he had had used to pay to the Vicar a certain thing in leâ—u and satisfaction of all Tithes due to the Parson and for this a prohibition was denyed Sherley he had preserved that he had used to pay this to the Vicar and this shall be intended for Tithes due to the Vicar and not to the Parson Serjeant Ashley to the contrary and that the prescription is good for this extends to the soyle and not to the Park Hobert said that Tithes of corn are sometime payable to the Vicar and not alwayes to the Parson for put the case that at the time of the derivation of the Vicarage out of the Parsonage the composition was that the Vicar shall have the Tithes of that Park in thâ—s case by reason of such general terms he shall have the Tithe of hay corn deer or any other thing which grows in that And the composition being made before time of memory no man can say but that it was made in such manner and the case of Okenden Cowper in this Court in which the Court was divided differed from this case for there the prescription was to pay a Buck arising and coming out of the Park and there was no deer left in the Park and Hutton agreed for there he destroyed his own prescription and he agreed with Bracies case put after for there was a contrariety in the prescription Warberton the case of Bracie in this Court was that the Parson libelled against him for the Tithe of corn where this was due to the Vicar and not to the Parson and denyed him for that reason for he may not plead the title of another man and the Parson and the Vicar ought to agree among themselves but in our case no Tithes are to be set out and for that reason he may plead this but it seems to me that the prescription shall go to the soyle and not to the Park when it is destroyed he shall pay Tithes in kind as a garden or an orchard so long as it is used as a garden or an orchard that the occupier of that shall pay a peny now if this be ploughed and converted to other use he shall pay Tithes in kinde and Hobert agreed to the case of the garden or orchard for the penny is paid for the herbs or fruite Winch was absent and Hutton said that the prescription shall go to the soyle and the Vicar by prescription may have the herbs of the glbe of the Parson Hobert the Park is only an appellation or name of land and this name or appellation may not pay Tithes but the land it self and put the case that a man had al-wayes paid 10. s. for the Tithes of a meadow and after he sowed that with corn here for the payment of this 10. s. he is discharged Warberton I deny the case of the meadow and so it was adjorned Bartlet against Bartlet Trin Jac. Rot. 1784. TR. 18. Iac. Rot. 1784. Richard Bartlet brought an action upon the case against Thomas Bartlet and he declared upon an accompt and shewed that the Defendant was found in arrerages in 20. l. which he promised to pay when he should be requested and now the Plantiff had not laid any day or place of request in his declaration and Ashley moved in arrest of Iudgement that the declaration is not good for the request is also parcel of the promise but Hobbert chief Iustice said that when a man brings an action upon the case for a thing which was originally a debt the Plantiff need not lay any time or place of the request but when the action is brought for a Collateral thing there he ought to lay a day and place of the request and so it was adjudged according in the same case King against Bowen Ent. Trin. Jac. Rot. 1755. KIng againk Bowen entered Tr. 18. Iac. Rot. 1755. William King brought an action upon the case against Iohn Bowen for these slanderous words spoken of him King is a false foresworn knave and took a false oath against me at a commission at Witham and the Defendant Iustified the words and it was found for the Plantiff and Henden said that it had been alleadged in arrest of Iudgement that the words are not actionable and he said
it is that if the Lord had seisin of more then the very services in this case it may not be avoyded in avowry and no fall tenure shall be avoyded c. but when he joyns another falsity and that is in the quantity of land now the false quantity of the rent had made the tenure traversable and the judgement was commanded to be entred accordingly Trin. 19. Jac. Thomas Bull Executor c. against Fankester THomas Bull Executor of William Bull brought an action against Fankester and declared that the Defendant enfeoffed his Testator in certaine land and that he covenanted for him and his heirs that he was seised of a good estate in fee and he alleadged the breach upon which they were at issue and now Attoe moved in arrest of judgement first because the Plantiff sueing as Executor had not shewed the Will for it hath been adjudged here that if a man bring an action as executor and do not shew the Will that the Defendant may demurre upon that because it is matter of substance but Hobert said it is very good because the Defendant had admitted him to be responsible but it is true he might have demurred upon the declaration as we often times adjudged here secondly Attoe said that the covenant being made with the heire the executor shall not have an action of covenant for it is annexed to the land which was granted by Hobert and Winch being only present in the Court. Note that it was said at the barre and agreed by Hobert that if the debtor make the dettee his executor he may now retain in debt against him and safely plead plene administravit if he had no other goods and shall not be driven to his special plea and so it had been agreed often times in this Court Parson and Morlees case PArson and Morlees case it was said that the Lord Chancellour presented to a venefice which belonged to the King which was above the yearly value of 20. l. per annum and this was referred to Hobert chief Iustice and to Tanfield chief Barron to certifie whether this was meerly void it remained good till it was avoyded Harris against Wiseman HArris had procured a prohibition against Wiseman who had libelled in the spiritual Court against the Plantiff for a frat in the Church which did belong to his house and it was said by Hobert and Winch only present that a man or a Lord of a mannor who had any Isle or a seat in the Church c. and he is sued for that in the spiritual Court he shall have a prohibition but not every common parishioner for every common seat and upon the first motion at the barre in this case day was given over to the Defendant to shew cause wherefore that a prohibition shall not be granted and the Defendant not having notice of that after the day the Plantiff had a prohibition and now after the day he shewed a good cause and upon that a supersedeas was granted to stay the prohibition in that case Aylesworth against Harrison AYlesworth against Harrison in debt against an executor the question was whether he may plead plene Administravit and give in evidence a debt in which the Testator was indebted to him or whether he may plead the special matter that plea amounting but to the general issue and it was argued by Harris Serjeant the Defendant may plead the special matter and shall not be bound to the general issue to leave that to the lay people who may suppose such a retainer to be an administration and he vouched the 15. E. 4. 18. if a man illiterate seale a deed which is read to him in another manner c. and he delivers that as an escrow to be delivered over as his deed upon conditions performed and this is delivered over before the conditions performed he may in this case plead the special matter and conclude so not his deed or if he will he may plead the general issue of non est factum and so is 39. H. 6. in dower the Tenant said that before marriage the husband infeoffed him and that after the Tenant let to him at Will and that the husband continued possession during his life absque hoc that he was seised of such an estate of which she might have dower and exception was taken there because that this only amounts to the general issue and yet ruled to be good for the lay people may conceive such a continuance of possession during the life of the lessee to be such an estate of which the wife may have dower if this were put upon the general issue and in our case because he had liberty to plead specially or generally he prayed that the Defendant may be admitted to plead specially and that he may not be bound to the general issue Serjeant Hendon to the contrary if one plead a plea which amounts to the general issue see Layfields case Coo. 10. and though in Woodwards case commentaries there was such a plea pleaded yet this doth not prove the contrary for in the same case no exception was taken by the Plantiff and presidents do prove that the Defendants in this kind have been compelled to plead the general issue Hobert if no special matter may be alleadged to the contrary the Defendant shall be compelled to plead the general issue and this is good discretion in the Court to take away the perplexity of pleading because one plea is as good as the other to which Winch being only present agreed and it was ordered that the Defendant here plead accordingly In debt against the heire upon the obligation of his father and in the declaration the Plantiff omitted these words obligo me et hered es meos c. and after error brought the Plantiff prayed that this might be amended because it was the misprision of the Clark only Hobert and Winch said that this shall not be amended for it is a matter of substance but because the clark who made this misprision was a good clark day was given over c. Widdow Archers case IN debt against the Widdow of Archer being executrix of her husband and the Plantiff declared that neither the Testator in his life nor the executrix after his death had paid that omitting those words licet saepius requisitus c. and evil but this omission was amended Sir Edward Grubham against Sir Edward Cooke SIr Edward Grubham brought an audita querela against Sir Edward Cooke upon a recognizance of 4000. l. and this was acknowledged to the use of his Mother and shewed that the conusor had infeoffed him and another in the land and that the conusee had sued execution only against him and it was found for the Plantiff and it was so moved in arrest of judgement by Ashley Serjeant first because he had not shewed in this audita querela when the Statute was certified nor yet the Teste nor yet the return of the writ of extent
see more after Vpon an elegit the Sheriff returned that to be executed and the extent of the Church of St. Andrews Al 's St. Edes and Attoe prayed the Sheriff may amend this and make that Andrews only for that is the true name Hobert and the Court if this be the true name the alias dictus is surplusage and will not hurt the return of the writ Hill 19. Jac. C. P. Allen against Brach Ent. Hill 19. Jac. ALlen against Brach upon the reading of a record in a replevin the case was Tennat of a Coppihold for life in which the custome was that the wife shall have her widowes estate and the husband was attaint of fellony and executed and whether the wife in this case shall have the widowes estate was the question upon the demurrer Winch being only present seemed that not without a special custome In an action upon the case the Plantiff shewed that he was possessed of a Wind mill sufficiently repaired and that he at the instance and request of the Defendant let that to I. S. and in consideration thereof the Defendant promised to pay the rent and that the Mill should be left in sufficient repair except the Sayles and he averred that he had let that to I. S. accordingly and that he had not paid the rent nor left that sufficiently repaired and Serjeant Hendon said that the declaration is not good first because that the Plantiff had shewed that he was possessed of a Winde Mill and had not shewed of what estate and it may be this was only at will and then the lease is void Hutton Iustice it is good notwithstanding this exception for the shewing that he was possessed was surplusage and if he had shewed that he let for years and never shewed that he was possessed yet this is good and if the lessee never enter yet the assumpsit lyâ—â— secondly Hendon moved that the promise was to pay the rent and to leave the Mill sufficienty repaired except the sailes and the Plantiff averred that he had not repaired and never made mention of excepting the Sailes and here the jury found the Defendant guilty of all and had given entire damages and it appears by the Plantiffs own shewing that he shall no have any action at all for the sails for they are excepted and therefore though the promise is good for the rent yet it is not for the not reparation and the damages are intire Winch and Hutton Iustices only present held this good after verdict and judgement was given according Wright against Black and Black VVRight against Black and Black in an action upon the case and the Plantiff declared that he was of good fame and that the Defendants such a day and yeare at the Sessions of Norwich preferred a Bill of indictment containing that the Plantiff felloniously stole two bundles of vetches and also they maliciously incited one I. S. to give in evidence to the grand Iury that this was Billa vera and upon not guilty pleaded it was found for the Plantiff and now it was moved in arrest of judgement by Serjeant Richardson first because the Plantiff had not averred in his declaration that the Bill was found but only that he preferred a Bill of indictment against him containing such a thing and this is not good as 21. E. 4. 41. one pleaded a pattent of exemption and this was pleaded quod inter alia continetur and ruled no expresse grant was pleaded and so evil and so Browning and Beestons case Com. 173. there a condition was pleaded that in such an indenture it was contained that if such a thing was not made then the lease shall be void and evill because he had not expresly averred what the condition was and so in our case to say the Defendants preferred a Bill of indictment containing that the Plantiff stole 2. bundles of Vetches this is only in nature of a recital and no direct affirmation that there was such an indictment and this declaration doth not agree with the precedents and therefore it is evil secondly admit this to be good yet as this case is the Plantiff may not have an action upon the case but an action of conspiracy against both Thirdly the declaration is not good because it sets forth that the Defendants incited I. S. to give in evidence to the grand jury that this was Billa vera and had not averred that he was sworn and then though an action may lye for the other yet because the action is brought for all and damages are entire all shall be void and the Plantiff shall not have judgement for any and lastly he said the action it self in this case will not lye because the indictment was not found but only an evidence and an acquital before the grand jury and this is lawfull being in an ordinary course of justice and prayed that the Plantiff may have judgement in the case Attoe contrary First the Plantiff here may not have a writ of conspiracy for the indictment was not found but yet if we should admit that he may have a writ of conspiracy yet he may as this case is have an action upon the case at his election which was granted by Justice Winch as to this point and yet he said that this action upon the case is in the nature of a writ of conspiracy and for that reason there ought to be some act made or else an action of conspiracy will not lye upon a bare attempt Attoe an action upon the case will lye upon this attempt for by this the Plantiff is defamed as much as if the Defendants had said that he had stole 2. bundles of Vetches and this is more then a defamation by word and though the indictment was not found yet an action upon the case lyes as 10. Jaco B. R. Whorwoods case against S. and R. declared that the Defendant preferred a Bill of indictment containing such a thing without any eo quod c. and the Bill not found and yet an action upon the case lyes very well upon this attempt without an express averment of an eo quod because that the indictment was not found but otherwise it is where the indictment is found there it is not good containing such a thing as my brother Richardson had said without an eo quod and the same case of Whorwood was adjudged accordingly and it was also affirmed in the exchequer chamber upon a writ of error brought there and he also cited a case 14. Iac. in B. R. Rot. 236. Demey against Ridg where was a Bill of indictment for the stealing of a horse and the Bill was not found and yet adjudged that an action upon the case will lye for that Richardson said that the indictment is not found here and therefore it was no slander and so was adjudged in a case in the 44. of Eliz. in the Kings Bench which was one Jeroms case Justice Hutton said that it seemed to him that the action
seisin of the homage and therefore perchance it will be hard to finde my antient president they adjourned and at another day Hutton and Winch being only present judgement was given for the avowant against Whitgift and Hutton said that he had spoke with the other Iustices and they agreed Vpon a motion made by Towse the case was this a man made a lease for one year and so from year to year during the Will of the lessor and lessee rendring rent and the lessee died and the rent was behinde and by Winch being only present if the rent is behinde in the time of the lessee and he dies an action of debt is maintainable against his Executor in the detinâ—t only and so I conceive if that was behinde after his death he may have an action in the debt and the detinet or in the detinet only to which Brownlow agreed Secondly Winch said that when a man made a lease for a year and so from year to year at the pleasure of the parties that this is a lease for 3. years and not for two Thirdly he doubted if the lessee hold over his term so that he is tenant at sufferance what remedy the lessor had for his rent Vpon the reading of a record the case was that a Scire facias issued against the land Tenant to have execution of a judgement given against Ferdinando Earl of Darby in the 15. Eliz. and the Defendant pleaded that a long time before the said Ferdinando any thing had in the land one Edward Earl of Darby was seised of the land and being so seised 3. Mar. infeoffed I. S. to the use of the Lord Strange and his wife in tail the remainder over to the said Ferdinando and made the said Ferdinando heire to the estate taâ—le and pretended that by this meanes the land should not be liable to this judgement because it was intailed to Ferdinando and of such estate he died seised the Plantiff traversed the feofment made by Edw. Earl of Darby and the jury found that the feofment was made by Edward Earl of Darby to the same persons as the Defendant had pleaded but this was to the use of the feoffor for life the remainder over to the Lord Strange and his wife the remainder as before and whether this shall be intended the same Feofment which the Defendant had pleaded was the question because the estate for life was omitted and upon the special verdict that was the question and Attoe said that if the jury had found this feofment made to other feoffees though the estate had agreed this should be found against the Defendant and Winch Iustice said that there was such estate found as had taken away the execution or extent and the estate for life is not material but it was adjourned till another day A man Covenanted to make such assurance as shall be devised by the counsel of the Plantiff so the same assurance be made within the county of Norff. or the Citty of Norwich and the Plantiff assigned the breach and shewed that in this case his Councel devised that a fine should be leavied of the same land which was not done and it was moved by Serjeant Attoe that in this case the breach was not well laid because he had not shewed where his councel devised that the fine should be leavied In the case of a prohibition in case of a libel in the Ecclesiastical Court for the tithes of Cattles the Plantiff alleadged that those Cattle of which Tithes were demanded are for his Dairy and for the plough and Winch being only present said that the parson shall not have Tithes of such Cattle but if he bred up Cattle to sell it is otherwise secondly the Plantiff in the prohibition alleadged that time beyond memory the parishoners had paid a half peny for the Tithe of a Calf and a penny for a Cow and that upon a day limitted they use to bring this to the Church and to pay this to the Vicar and now the Vicar had libelled in the spiritual Court against them to compel them to bring it home to his house and Winch said that this is no occasion of a prohibition for they agree in the modus but vary in the place of payment and this is not matter of substance and for that reason no prohibition will lie Vpon the reading of a record the case was that the father made a feofment to the use of himself for life the remainder to his son and his wife and to the heires of the body of the son and this was for a joynture for his wife and the father died and the son also died and whether this was a good joynture was the question for all this matter was pleaded in barre of dower brought by the wife and it was ruled to be no good joynture for the feme notwithstanding that the father died in the life of his son and Hutton said if a man made a feofment to the use of himself for life the remainder to his Executors for years the remainder to his wife for a joynture this will be no good joynture within the Statute of joyntures though the feme here had the immediate franktenement In an action of debt against an Administrator who pleads outlawry in the Testator and it was moved that this was no plea for he had taken the Administration upon him Winch a man who is outlawed may not make an executor for if he meet with his goods he shall answer for them to the King and for that reason it seems to be a good plea 3. H. 6. 32. and Brownlow chief Prothonotary said that he could shew a president 27. Eliz. where this is adjudged to be no plea and Iustice Winch said to him shew that president if any such be and upon Tuesday after he shewed that and then Winch agreed Auditor Curle for words AUditor Curle brought an action upon the case and in his declaration he set forth the Statute of 32. H. 8. for the erection of the Court of Wards and that the same Statute appointed the Auditor of the same Court and shewed that the Plantiff was an Auditor of the same Court and that the Defendant such a day and at such a place said of him you have taken money for ingrossing of feodaries innuendo accompts and tunc et ibidem you are a Cozner and live by Cozning and I will prove that to be Coznage and upon not guilty pleaded it was found for the Plantiff and now it was moved in arrest of judgement by Finch Serjeant of the King that the Plantiff shall not have judgement upon this verdict for the first words are not actionable for the taking of money for the ingrossing of feodaries are insensible and then the inuendo will not help nor aid that also the words in the second place are not actionable because he had not said that he was a Cozning officer and so he had not expresly applied that to his office and
after his death it shall remain to his son and his wife in fee and the book is that this Covenant will raise an use also if this Covenant and agreement will not amount to raise an use then it is not to any use or purpose at all and by consequence the consideration of the marriage is void also and an action of Covenant will very well lye without any such consideration of marriage and so he concluded and prayed judgement for the Defendant adjourned Mich. 20. Jac. C. P. Johnson against Norway IOhnson brought an action of Trespass against Norway of Trespass made in a piece of ground and the Defendant pleaded that 14. H. 7. Roger Le Strange and Anne his wife were seised of the Mannor of D. and one Giles Sherington Abbot of C. was seised of an acre of land in fee and held this of the said Roger Le-Strange as of the Mannor of D. aforesaid and that the 22. H. 7. the Abbot and all the Monks died by which the said land escheated to Roger c. and the Mannor discended to his son and heire after his death who conveyed the Mannor of which the acre is parcel after the escheat by mean conveyance to Hobert in fee and that Hobert 12. Eliz. infeoffed one Wright of the Mannor of which the said acre is parcel and so justified by a conveyance from Wright to the Defendant the Plantiff replied by protestation that the Abbot was not eligible and for plea he said that the aforesaid Hobert 10. Eliz. infeoffed I. S. of the said acre of land absque hoc that he infeoffed Wright of the sad Mannor of which the said acre is parcel and upon this the Defendant demurred generally And Serjeant Attoe argued for the Plantiff that the Plea of the Defendant is evil and then though the replication of the Plantiff is not good yet the Plantiff shall have judgement and he cited Turners case Hobert it is true Cook 8. if the replication be meerly void then it is as you had said but if the replication be the title of the Plantiff and that be insufficient there the Plantiff shall not have judgement though the plea in barre was evil Attoe agreed that if it appear by the Plantiffs own shewing that he had no cause of action and that he had no title he shall not have judgement but here he had made a good title by the lease of the said acre of land and though our traverse is evil and sounds in doubleness yet the Defendant had demurred generally and so he had lost the advantage of the doubleness or of the negative pregnant for if a maâ— plead double matter this is only matter of form and not of substance and therefore after verdict it is good as hath been adjudged but he proceeded in his argument and he said that the barre of the Defendant is not good for by his own shewing this acre of land is not parcel of the Mannor for by the dissolution of the Monastery by the death of all the Monks the land shall go to the founders and donors and not to escheat to the Lord of which that is holden as appears 2. H. 6. 7. and 5. H. 7. if an annuity or rent be granted to an Abbot in fee and the Abbot and all his Monks do die the annuity or the rent is extinct and shall not escheat see the Deane of Norwiches case Coo. 3. agreed that by the death of the Abbot and his Covent the corporation is dissolved and then the possession shall go to the founders and shall not escheat to the Lord of the Mannor of which the Land was holden and he said that this point is proved cleerly by the Statute of the 27. H. 8. and 31. H. 8. of Monasteries in which Statutes there is an express saving to all persons except to the donors and to their heires and no mention is made of the saving of the right of those of whom the land was holden and that proves cleerly that if the makers of the Statute had thought that the land had escheated to the Lords they would have excepted them in the saving of the act as they had excepted the Donors and Founders for if otherwise the lands and possessions shall escheat to the Lords of which the land was holden they are within the saving of the Statute and then it will follow that after the death of all the Monks as at this day that the Lords shall have the land by escheat which the Sages of the Law never dreamt of who made that Statute that any thing may accrew to the Lord and therefore they provided only for the title of the Donors and Founders which is an argument that they thought that upon the dissolution of the Monesteries that the lands shall go to the Founders and the same he thought concerning a corporation at this day as of Suttons Hospital c. and so he concluded that because in the barre of the Defendant he claimed to hold from the Lord to whom he supposed the land to escheat and did not claim c. by his own shewing the barre is not good and though our replication and traverse is not good yet the Plantiff shall have judgement But admitting that the barre is good yet the replication and traverse is good and then judgement shall be given for the Plantiff and the case is the Defendant pleaded a feofment of the Man 12. Eliz. to Wright after that he had shewed the escheat of an acre the Plantiff replied that the 10th Eliz. the Feofor infeoffed C. of the acre of land absque hoc that he was infeoffed of the Mannor of which the acre is parcel and Attoe argued that the traverse is good and he alleadged 38. H. 6. 49. the same traverse and here when the Defendant had pleaded that the acre escheated and had alleadged a Feofment of the Mannor and had not expresly alleadged a Feofment of the acre the Plantiff may traverse that which is not expresly alleadged because this destroyes the very title of the Defendant and he cited for that 34. H. 6. 15. a writ of priviledge in trespass as a Servant to an auditor of the exchequer the Plantiff replied that he was servant to him in husbandry absque hoc that he was his servant to waite and attend upon him in his office and it was holden a good traverse and yet that was not expresly alleadged by the Defendant Hobert chief Iustice said that the traverse is not good for by the Feofment which was made the 12th Eliz. he had confessed and avoyded the Feofment which was made 10th Eliz. and so there needed no traverse and therefore he said the great doubt of the case will be upon the barre of the Defendant whether by the death of the Abbot and the Monks the land escheat to the Lords of whom that was holden or whether that shall go to the Donors and to the Founders and he thought that the land shall escheat to which
the lessee of the Mannor or to the Bishop was the question and it was argued by Serjeant Hendon that this appertaines to the Plantiff and not to Wood and as to that the single point is a Bishop is seised of a Mannor in the right of his Bishoprick and lets parcel of that for life whether the reversion of this parcel be alwayes parcel of the Mannor notwithstanding this lease and he argued that it was not and yet he agreed that if another let as aforesaid the reversion continues alwayes parcel of a thing in possession and that in the case of the King himself as appears by Dyer 230. if the King lets parcel of a Mannor for life the reversion of this parcel passeth to the King for the reversion had all times continuance in the same capacity and no alteration is made of this by force of the lease but where the lease for life is a discontinuance there he gaines a new reversion and this shall not be parcel of the Mannor and for that if a man is seised of a Mannor in the right of his wife and he lets parcel for life this is a discontinuance and he had gained the reversion in his own right and for that reason the reversion may not be parcel of the Mannor as appears by 18. Assises and also he held if Tenant in taile lets parcel of a Mannor for life that were the reversion of this parcel is not parcel of the Mannor for the cause aforesaid and so in our case when the Bishop granted parcel which is not grantable by the Statute now he had discontinued the reversion and had gained a new fee simple which may not be parcel of the Mannor so long as this new fee simple had a continuance and this was his first reason And secondly he argued from the intent of the parties because the intent was that the lease to Wood shall be good and if the reversion of the 20. acres pass to Wood this will make all the lease void for no rent may be reserved out of the reversion but out of the land it self 3. Assise Placito ultimo a Bishop let land and a hundred rendring rent the rent issues out of the land and not out of the hundred and so here it issues out of the land and not out of the reversion which made the lease all void and so he concluded the first point that the reversion of the 20. acres did not pass to Wood the lessee of the Mannors Secondly when the Bishop lets 20. acres of ground rendring rent and this is not confirmed by the Dean and Chapter as it ought and after he lets the Mannor and the successor accepts the rent of the Mannor this acceptance shall not make the lease of the 20. acres to be good admitting that the reversion do pass and when the Bishop had made a lease for 3. lives he may not contract for the reversion and when a lease is meerly void in the creation there no acceptance afterwards may make that good but admitting this to be against him yet the lessee shall not have the Herriot for they are not appendant to the reversion but due only by way of Covenant and the words are yielding c. and this being a Collateral thing it shall not go with the reversion and the Herriot here may not be had without it be delivered by the lessee for life Secondly it is paid only in the name of a Herriot and this is not Herriot service Thirdly it is to be paid upon the death of a stranger and not upon the death of the lessee and all this proves this Herriot to be collateral and he cited Rawlins case a lease for years paying for a fine 20. l. this is a summe in gross and shall not pass with the reversion and so he prayed judgement for the Plantiff Attoe contrary and yet he agreed the case of the husband and wife and of the Tenant in tail for here the lessor gaines a new fee simple but in our case when the Bishop lets for life this is not any wrong for the successor may enter and he shall have this lease not in his natural capacity but alwayes in his politique capacity and for that there is an apparent difference between the cases and for that reason he held that the reversion was parcel of the Mannor and so passed to the lessee and as to that which had been said that the intent of the parties was only that the Mannor in possession and not the parcel in reversion should pass to the lessee for that is most beneficial to the lessor to this he answered that by express words this is granted and no construction shall be made contrary to the very express words of the grant and here though the Defendant had not any title at all to the Herriot yet the Plantiff shall not have a trover and conversion for this because that he himself had not right to this and for that reason judgement shall be given for the Defendant and he also argued that the lease of the reversion is not meerly void but voidable and then the acceptance extends to this see 37. H. 6. the lease of a Priâ—r 2. E. 6. Bâ— Abbots case Vpon which authorities he said cleerly by the Common Law this lease of the reversion is not meerly void but voidable and for that the confirmation of the Dean and Chapter after the Statute of the first of Eliz. had not altered that and for that a lease after the Statute shall not be meerly void and see Lincolns Colledge case Coo. 3. and in our case there is a possibility that the lessee of the Mannor may survive the cestui que vies of the 20. acres and that possibility is sufficient to make this good out of the reversion for then the lessor may distrain for his rent but where no possibility of a distress is there no rent may be reserved as in Iewels case the lease was void for there was no possibility that the lessor shall ever distrain but in our case the lease for years is good for the lessor is not without his remedy for he may have an action of debt upon this reservation 1. H. 4. 2. there a measnalty in gross was let rendring rent and good for by possibility the Tenant may die without heires and yet this is a remote possibility 12. E. 3. execution 112. a reversion granted by fine in tail rendring rent is good and Coo. 5. Elmers case that a reversion being let for life rendring rent is a good reservation at the Common Law and he held without question that where a Bishop is seised of a Mannor which consists part of freeholders and part of Copiholders that a lease of the Mannor rendring rent is good and in our case the reservation of the rent is intire and shall bind the successor and as to that which had been said that the Herriot is Collateral and shall not go with the reversion to this he
for the third part as in debt upon a lease for years and it is found that he had not cause to demand all the rent but that tâ—is ought to be apportioned yet he shall have judgement for the residue and so here Ashley Serjeant to the contrary the jury have found for the Plantiff for the avowant had avowed for all and he alleadged 26. Assise where in an assise the seisin and the diseisin was found and yet because there was no Tenant found of the Frank-tenement the Plantiff shall have judgement and as to that that had been said that the avowant shall have retorn for part he denied that for now it appeared by the special verdict that the avowant and the devisee are Tenants in Common and Tenants in Common ought to joyn in avowry and for that reason the avowant shall not have return for any part but he ought to replead Dyer 177. see the book Hobert said that without question in this case if the jury had given a general verdict this had been against the Plantiff for it was not devised if all was not devised according to the issue and then if it would have been against the Plantiff in this case of a general verdict the special verdict shall be construed to be of the same nature in law and it shall be adjudged by us against the Plantiff for generally where the general issue shall be against any of the parties there the special verdict shall be of the same degree and Winch and Hutton agreed and by Winch who pleads in the affirmative ought to prove all to be true as in the case of Soper which had been remembred by my brother Hendon and by Hutton every issue which is taken upon absque hoc ought to be precisely found and as to the second point he held that the avowant shall have return for part for here the jury haue found the third part of the reversion in him and by that there appears a sufficient certainty to the Court to make an apportionment then if the Court may make an apportionment the avowant shall have return for so much as is due to him but if the apportionment is to be made by the jury and not by the Court there the avowant shall not have return for the third part but if it was in debt for 40. l. and the jury finde 20. l. the Plantiff shall have judgement of that part to be apportioned by the jury and so in Trespass if part be found for the Plantiff he shall have judgement for the demand is by writ but in our case it is an avowry and it is a certain issue and for that reason the avowant shall not have return for the third part adjourned Hutton alledged 28. H. 8. 32. and at another day judgement was commanded to be entered for the avow an t Hobert and Winch being only present Note that if a man make a lease of several parcels of land in a Town and this is for the trial of a title in an ejectione firme he ought to enter into every part of those several and to leave a servant or other to keep the possession till he had entered into every parcel and then to deliver the lease of all and this is good Empson and Bathrust before THe case of Empson against Bathrust was moved again by Harris and he praied judgement for the Plantiff and it had been said that this obligation is void by the Statute of the 23 H. 6. but he held that this Statute did not extend to this obligation for it is only where a sheriff takes a bond of any person which is in his ward and yet he said he never found in any book the Sheriff might exact any fee of any person for he is an officer of the King but 21. H. 7. he may prescribe to have a bare fee but the Statute of 23. H. 6. appoints little fees in some cases Secondly he argued in this case that the Sheriff may take a bond for by 29. of Eliz. this is a due debt to the Sheriff and then if the Sheriff give the partie day till another day it is good reason he shall have a bond for that for his security Thirdly he held that the Sheriff may take this bond of the party after the extent and before the liberate by the Statute of the 29. Eliz. for otherwise perchance when the Sheriff had made the extent perchance the Conusee will not sue out the liberate and so the Sheriff shall be defeated of all his labour and travel taken in the extent and in the last place he said that in case the summe exceeded a 100. l. the Sheriff shall have 6. d. in the pound for that which exceeds and 12. d. for the first hundred pound but it was resolved by Hobert Winch and Hutton that judgement shall be given against the Plantiff and first they agreed this obligation not to be within 23. H. 6. for the partie was not in the ward of the Sheriff and so was resolved in Bewfages case Secondly it was agreed by the said 3. Iustices that the Sheriff may not take his salary appointed by the Statute till a compleat execution viz. till the liberate for the words of the Statute are in the negative and doth not establish the fees but only tolerates them and Hobert said if the Sheriff made an extent and before the liberate a new Sheriff is chosen then in this case the new Sheriff shall have the fees appointed by the Statute and not the antient Sheriff and by Hobert if the Conusee sue an extent and then refuse to sue the liberate to the intent to defraud the Sheriff of his fees the Sheriff shall have his remedy by his action upon the case and by Hutton if the Sheriff return upon the extent that he is ready to deliver that to the Conusee this is sufficient to intitle him to his action upon the case and thirdly it was holden by Hobert and by Winch that the Sheriff shall have but 6. d. in the pound for all if it exceed 100. l. for so was the intent of the Statute but Hutton said that the Common practise is otherwise and Hobert said that he did not value that for he knew well enough that the Sheriff will rather take more then less then their fees and though it had been said that if such a Construction shall be made then the Sheriff shall have as much for executing 100. l. as 200. l. to this he said the Sheriff ought to take this subject to this casually for it is the very words of the Statute and lastly it was resolved by Hobert and Winch that the obligation was void by the Common law and extortion and a taking by the Colour of his office see Dive and Manninghams case and Hobert said that every bond that is taken for any thing which is malum in se is void by the Common law and this extortion is malum in se and so void by
covenantor shall have an estate for life and so the law makes in that case fractions of estates as the case of the Lord Seymor Dyer 96. seems to accord with this and besides those two books he said he could not finde any book which will warrant that and for that reason he held those two books to be no law for if I Covenant that my son shall have my land after my death this will not raise an estate to me by implication for life and an estate to my son and so by such means to change my estate in fee for an estate for life without more words for the word covenant in his proper and native signification is only obligatorie and yet it had been alwayes conceived sufficient to raise an use to him who is not partie to that as if I covenant with a stranger that I will stand seised of my land to the use of my son this will raise an use to my son and yet neither my son nor the covenantee may have an action of covenant but an use will very well arise to my son as if a man bargain and sell his land in consideration of 100. l. paid by I. S. though in this case the consideration ariseth from a stronger yet that will pass the use to the bargainee and in case of covenant it is not this word covenant only which creats the use but it is rather the agreement of the parties which is testified by the covenant for if sufficient agreement appears there will not need this word covenant as if I will agree and declare to stand seised to the use of my son by which it appears that the word covenant is onely declarative of the intentions of the parties and then in the principal case the covenant is not that the son shall have the land but that the land shall come remain and be to him and those words are incertain as 21. H. 7. redert come or discent and for that reason it is all one with the law of the same case and then void to raise any use for the incertainly and then when Andrew Buckley covenants that his son shall have his lands and no words to inforce his intention and for that reason the intention shall be lyable to an action of covenant and not to change his estate which he had in fee for an estate for life by this covenant but if he had expresly covenanted that in consideration of marriage of his son that he would hold his land for life and after this should be to his son this will change the estate which was in fee for an estate for life but in our case the covenant being general and left to the indifferent construction of the law the word covenant shall be taken in his proper and native signification and this is obligatorie and so he concluded that this covenant being at the first to grant a rent and was executory and the last part of that is executory for assurance and the limitation of the estate to the son being intangled between these two Covenants this shall be of the same nature and by consequence the covenant is obligatorie only and will raise no use to the son and so he concluded that judgement shall be given for the Plantiff and it was commanded to be entered accordingly Sparrow against Sowgate IN debt by Sparrow against Sowgate who declared that the Defendant became Bail for one Richard Sowgate in Banco Regis against whom the Plantiff had brought a Bill of debt of 77. l. and now the Defendant bound himself in a Recognizance of 77. l. upon which the action is now brought that in case judgement should be given against the said Richard Sowgate that he shall satisfie the said judgement or render his bodie to prison for in this case no part was impossible for after the judgement the principal may render himself in B. R. to the Marshal for the redemption of his suretie and that is the Common course there as he said but he agreed the case to be otherwise if a scire facias issue out of the Kings Bench against the Bail for there the death of the principal is a good plea for a scire facias doth not lie there till default is assigned in the principal in his not comming upon the capias ad satisfaciendum which may not be when he is dead Note that but yet before any capias it is clear he may have an action of debt Sir Robert Hitcham Serjeant of the King to the contrary and he alledged this to be the constant course in the Kings Bench that the Bail is never chargable till there is default assigned in the principal upon the recorn of the Capias ad satisfaciendum which may not be here for the principal is dead and he agreed the case of the other side that when a man is to do two things though the one is become impossible yet he ought to perform the other but when it is in the election of one to make either the one or the other then it is otherwise see Dyer 262. and so he concluded for the Defendant Hobert chief Iustice said that it is inconvenient that the Plantiff shall be forced to sue his Capias ad satisfaciendum against the partie before he have execution against the Bail for perchance he will sue a fieri facias or an elegit against him and that the Corps of the partie will not satisfie him and Browlow Prothonotary said that it had been adjudged in this Court that such plea is not good Winch the course of the Kings Bench is that default shall be assigned upon the retorn of the principal before the Bail shall be charged and though the Plantiff refuse to take his bodie after he had made his election to take his fieri facias or elegit he shall never more resort to the Bail which was granted by Hobert and Hutton as to that last point and it was holden by all the Court that if the principal render his bodie though the Plantiff refuse to take that yet that is a discharge of the Bail and also it was agreed by Hutton Hobert and by Winch that if the course of the Kings Bench be such that the Bail shall not be forfeit till there is a default assigned in the principal the same course also shall be followed here and per Curiam if the course of the Kings Bench be such that such Capias is necessary to be awarded that then a convenient time shall be allowed for the principal to render his bodie gratis and if the principal do die before such time the Bail is discharged but it was said by Winch if he die before convenient time and the Capias is awarded that such death shall not discharge the Bail note that Iones Iustice said that he thought in this case that it is necessary that the principal render himself gratis for when he is let to Bail the law supposeth him to be alwayes in custodie
Infant was not bound by this Covenant at the Common Law and no Collateral covenant shall be maintainable upon the Statute for this being against an Infant it shall be taken strictly as a custome that one shall infeoffe yet that custome will not warrant him to lease and release and as to that which had been said that it is incident to every retainer to serve truly and faithfully that is very true and an action upon the case lies upon a covenant in law but not upon the covenant in fact he ought to have Collateral securitie which was also confessed by Hutton and he said moreover that the retainer is for the benefit of the Infant that he learn his Trade but the covenant here is for his disadvantage and for the advantage of his Mr. and for that reason it is void as if an Infant had covenanted to pay 10. l. for the learning of his Trade when his time was up Winch Iustice contrary to that last point for he thought the covenant to be incident to the retainer and good though he is an Infant as an Infant who levyes a fine is also inabled to make an indenture to lead the uses and note that Hutton and Hobert said also that the barre of the Defendant is good viz. the pleading of the want of the certificate and for that reason the replication of the Plantiff that he had 40. s. per annum is evil and though the rejoynder of the Defendant is evil and a departure yet it appears that the Plantiff had not any cause of action and for the covenant they said that they two are strong in their opinions and upon that Winch agreed also that judgement shall be given against the Plantiff and Attoe moved the Court what remedy the Plantiff may have for the loss is 500. l. and per totam â—uriam he shall not have an action of accompt for that lies not against an Infant being an apprentice Coo. 11. 89. and the Court said that as to the retainer and the damage it is no more then if an Infant had been retained by word and there is not any remedy but an action upon the case and Attoe said that they had thought to have brought an action of Trover and conversion and he doubted whether that will lie and after the Court said to him you had best to bring an action upon your case and it was afterwards ordered by Arbitrement Oxford and his wife against Goldington IN a Prohibition for Oxford and his wife against Goldington to the Court of Audience for they are sued there for a legacie devised to the Plantiff by one George Cotton and this is as they are Administrators to one William Cotton who was executor of the said George for that he libelled against the Plantiffs in the Prohibition in the Court of Audience and had shewed that they had goods of the first Testator and a Prohibition was awarded and Finch moved for a consultation and he said if by the spiritual Law an Executor wasts the goods of the Testator and after dies intestate that in this case his Administrator shall answer that viz. the debts and the legacies of the first Testator and Doctor Pope who was present in the Court said that the Law was so and so he said the Common Law was that is the Statute of 31. E. 3. which gives the same remedy against an Administrator as against an Executor if the Executor die intestate for it is the interest of the first Testator upon which the Administrator shall be committed to the next of the Kin and if none will take that upon them then the Administration of the Executor ought and ought to take several letters of Administration for that and if no letters of administration is taken and yet he meet with the goods he shall be charged as an Executor of his own wrong and if no goods be of the first Testators then it is no reason that he should be charged and the Statute of 31. E. 3. gives no remedy per Curiam but against the immediate Administrator and if the case be as you have alledged then the Legatee or the debtee is at no damage or mischief for he may sue the Administrator of the first Testator if he had goods or any other who had goods as Executor of his own wrong and if none will take letters nor yet meddle with the goods then the debtee or the Legatee may take letters of Administration himself and so no consultation was awarded but the Prohibition stood Avis against Gennie and others ONe Avis brought an action of Trespass of his close broken against Gennie and two others and the writ was general but in the the declaration he affirmed that to be in Ayring half a Rood and in digging another half Rood and after in his new assignement shewed that to be a Sellion containing by estimation and acre and it was found for the Plantiff and damages assessed to 20. s. and now it was moved in arrest of judgement by Attoe because the new assignement is more large then the declaration and the opinion of the Court was that because this was but an action of Trespas where damages only is to be recovered that this is very good but otherwise it is perthance if that had been in an ejectione firme Brigs case BRigs brought a Prohibition against another and alledged that the Dean and Chapter of D. was seised of the Mannor and the Defendant being Vicar sued to have Tithe in Court Christian and shewed that time beyond memory c. they had held that discharged of Tithes for them and their Tenants and that they let that to the Plantiff and it was moved by Hendon Serjeant that the Dean and the Chapter are a bodie Politique and temporal which are not capable of this prescription in non decimando Coo. 2. the Bishop of Winchesters case Hobert said that the Dean and Chapter are a bodie spiritual and are annexed to the Bishop throughout all England and if the Bishop is capable of that as it is plain he is then the Dean and Chapter is also capable of that which was granted by Hutton but Winch doubted for Winch said he may be a lay man and for that the Plantiff ought to averre that he is a spiritual person Hutton confessed that the Dean may be a lay man as was the Dean of Durham by special licence and dispensation of a King but that is rare and a special case and is not common and general and therefore not to be brought as an example which was also granted by Hobert chief Iustice and upon that day was given over to the Defendant to shew cause wherefore the Prohibition shall not be granted Anne Summers case in Dower A Writ of Dower was brought by Anne Summers against the Tenant of the land and he pleaded a fine with proclamations levyed by her husband 14. Iac. in which year the husband died and the wife had not claimed within the Statute
Harvey and Blacklock in this Court where the Defendant pleaded such plea in all points as here as to the Fettering for the Defendant fettered the horse of the Plantiff because he was so fierce and so wild to one of his own horses and so continued till he delivered him to the Plantiff and because the horse died within the year the Plantiff brought his action and upon this plea pleaded by the Defendant it was demurred in law and judgement was given for him for Cook who was then chief Iustice said that a horse may be of 40. or 100. l. price and it shall be intollerable to allow such Nusance and secondly he had not made proclamation and so trespass lies against and so in our case Harris Serjeant to the contrary for when the Lord of a Mannor takes an estate he had some kinde of property before the year is expired and for that reason he may detain the estray against the owner till amends is made to him 44. E. 3. 14. 29. E. 3. 6. by Knevet 20. H. 7. by Vavasor and Frewick and if he had property against the owner himself he may use that with moderation to make some benefit of that especially in case of necessity as 22. Assise 5. 6. a man may justifie the beating another if he be in a rage and 6. E. 4. 8. one may justifie the felling of a tree in the ground of another in case of necessity and here is no other way to restrain this Savage Colt and so the justification is good but in this case it was resolved by Hobert Winch and Hutton Iones being in the Chancery First when a beast comes within the Mannor of another Lord this is a trespas but after the seisure for an estray it is a possession of the estray in the Lord and the beginning of property as Hutton used the term so that he may have an action of trespass against any stranger which takes that out of his possession and if he estray into the land of another he may him retake Secondly it was resolved that if the Lord make not proclamation in convenient time that this possession became tortious for the law necessarily imposeth it upon the Lord of the Mannor that he make Proclamation because that otherwise the owner may not come to the knowledge of him Thirdly that the estray within the year is as a pledge in the Custody of the law till amends be made to the Lord and for that reason the Lord may not work him no more then he can work a distress Fourthly it was resolved that if the estray goe into the Mannor of another Lord and the last Lord claims that as an estray the first Lord had lost that but not before claim Fifthly Hutton and Winch agree that he might Fetter the Colt being so fierce and wild for he is answerable for the trespas and wrong which he makes in the land of his neighbours and also to the owner if he lose him and therefore it is unreasonable that he may not keep him safe for his indempnity and that is not like to the case 27. Assise which was urged of the other side also they said fettering is the usual way in the Country to restrain wild horses and therefore if it be in an ordinary manner as he Fetters his own there is not any remedy against the Defendant Hobert chief Iustice was against that last point for the Lord may not hold him in arcta custodia as a prisoner because he had rather the keeping of an estray the the property and for that if the estray go into the land of another Lord the first may not take him again if the other claims him as an estray for the possession was rather in regard of his Mannor then in regard of himself and therefore he shall not answer for the wrong which he doth in the lands of others for the possession is in regard of his Mannor and his Fettering is an abuse and he may not neither use nor abuse an estray and he said over that the Defendant had not well pleaded for another reason because he had not shewed that he proclaimed him in the next market Town within convenient time which convenient time ought to be adjudged by the Court and he said the Lord may not keep him else where within the year then within the Mannor Winch Iustice said the Defendant ought to proclaim an estray ut supra if the year be past for by that he gains an absolute propertie but here where no property is devested he needs not to proclaim him within the year and Hobert commanded this case to be moved again see the last case but one in the book Ruled that after imparlance in debt upon an obligation the Defendant shall be admitted to plead alwayes ready though the 13. Eliz. in Dyer was urged to the contrary Hill 21. Jac. C. P. Hillary Term in 21 year Iac. C. P. Trehern against Claybrook TRehern brought an action of debt against Claybrook upon a lease for years and upon nihil debet pleaded and a special verdict the case was to this effect the Grandfather of the Plantiff was seised of lands in Southwark and he made a lease for years of that to the Defendant at London rendring 45. l. rent and after he devised the reversion to the Plantiff in fee and in his will he set forth that his intent was that his Executors shall have the reversion during the Term upon condition that they enter into bond to pay 34. l. per annum at 4. usual Feasts during the Term and he further devised that this bond shall be made by the advise of his overseers and he limitted all this to be done within 6. moneths after his decease and if his Executors refuse his will was that his overseers shall take the profits upon the same condition and appointed that both obligations be made to the Plantiff and the devisor died and the Executors within 3. moneths shewed the will to the overseers but no obligation was offered to be made within the 6. moneths and the Plantiff required the Executors to enter into the obligation and to pay the rent which was not done and he claimed the reversion and brought his action afterwards in London where the lease was made and not in Southwark where the land did lie and this case was twice argued by Councel at the barre and now it was argued by the 3. Iustices Hobert being absent And Iones Iustice moved a point which was not moved at the barre viz. that the Plantiff is devisee of the reversion and so is privie in estate only and for that reason the action ought to be brought in Southwark where the land lies and not in London where the contract was made but the lessor himself had liberty to bring the action where he pleased in regard of the privitie of estate and contract and so was it adjudged in the Kings Bench between Glover and Humble and here though this be
after verdict and no exception taken by the Defendant yet we as Iudges of the case may take notice of that ex officio and give judgement against the Plantiff and the 3. Iustices agreed that here is a condition by which the reversion is vested in them but it is in the Plantiff till performance of that which not being performed by them within the time limitted the Plantiff ought to have the rent and though the Will is that it shall be with the advise of the overseers and no advise is found yet that is at the peril of the Executors who ought to give notice of that to the overseers being to their advantage and for that see 21. H. 6. 67. 46. E. 3. 5. 18. E. 3. 27. 11. H. 4. 13. which cases were cited by Serjeant Harris at the barre and they agreed that the overseers shall not have the reversion for though it was devised to them yet that was upon the refusal of the Executors and no refusal is found but only a non performance of the condition and also the devise is tied to them upon condition to do that within 6. moneths which ought to be performed in convenient time at the least though it be in case of a Will and so they concluded that the Plantiff had right as to the matter in Law but that judgement shall be given against him upon the matter supra and it was resolved that this was not aided by any Statute of Ieofailes for this is a mistrial but another point was moved whether the Plantiff shall pay costs within the Statute of the 23. H. 8 or 4. Iac. the words of the Statute are if the Plantiff be nonsuite or verdict given against him upon a lawful trial but here it was resolved that he should not pay costs for no verdict is found against the Plantiff but rather for him and judgement is given against him because he mistook his action and in Bishops case Coo. 5. judgement was given against the Plantiff upon a material variance in the verdict and no costs was given and it is not only out of the letter of the Statute but also out of the intent for it may not be imagined that the Plantiff had stirrd an unlawful suite when the matter which he declares is found for him and that Statute is not taken by equity as Hutton said for it hath been agreed here that if Executors are nonsuite or judgement given against them upon a verdict they shall not pay costs within the Statute of the 23. H. 8. or 4. Iac. and so is the constant practise for the Statute speaks of any contract or specialty made with the Plantiff or between the Plantiff and Defendant and the Executor brings an action upon the contract of another and in the principal case judgement was entered that the Defendant should go without day and that he shall not have costs against the Plantiff Bret and Ward NOte upon evidence to a Iury between Bret and ward upon the dissolution of a Vicarage in the County of Warwick which was part of the Priory of Dantry where the Pope by his Bull gave to the Vicar minutas decimas et alteragum and it was certified by the Doctors that alteragum will pass to the Vicar Tithe wool c. and the usage was shewed in evidence and the Copie of the Popes Bull and the Court would not credit that without seeing the Bull it self and so the Plantiff was nonsuite and the Iury was discharged Bacon against Weston BAcon brought an action of debt upon an obligation against Weston as an Administrator to one Okes and he pleaded that the said Okes such a day and year in his life time acknowledged a judgement to him in the Kings Bench upon an indebitatus est of 1500. l. and died and that he retained so much of the goods to satisfie himself and that over that 1500. l. he had put 40. s. and it was moved that he ought to plead the general issue and give this matter in evidence as he may well but it is a mischief to the Plantiff to take issue upon that for then he ought to say that he had assets Hobert true he may give this in evidence or he may plead that the judgement was not satisfied or defezanced but we may not compel him to change his plea except he will assent Potter against Brown POtter brought an action upon the case against Brown for these words he innuendo the Plantiff as is arrant a thief as any is in England for he did break open the Trunck of the Plumbers standing in my Lord of Suffolks Hall with another mans tools and took out 20. l. and upon a general issue it was found for the Plantiff and damages given to twenty pound and Hendon Serjeant moved in arrest of judgement First because for want of an averment that there are Thiefs in England and it had been adjudged that if A. say of B. he is as arrant a Thief as any is in Warwick Goal yet B. ought to aver that there are Thieves in Warwick Goal but it was holden by the Court viz. by Hutton Winch and Iones that there needs not any such averment and the difference is when the words do relate to a particular place and when to an entire realm and the same law when it is tied to one kinde of fellony for it is very well known that there are Thieves in England and any in other realm and Hendon moved that the last words extenuate the former for the latter shew that he took that as a trespas for he did not say that he stole 20. l. out but took it out and so it shall be intended that he took it as a trespasser as to say B. is a Thief for he took money out of my Pocket implies a trespass and he is a thief for he took my horse this shall be supposed that he took him as a trespasser and Hutton said that till the time of Hen. 8. there was not any actions brought for words and to the end to settle peace he thought words not to be taken so largely and favorably in giving way to unruly tongues and to the unbridled humours of men but rather strictly to curb them for their evil language see after East 22. Jac. C. P. Easter Term in the 22. year of King James in the Common Pleas. VPon Wednesday being the 25th day of April and the first day of this Easter Term which was the first day which I came to Report and it was agreed by the Court the same day that if one come to the Bar to make his law in debt brought against him upon a simple contract that the Plantiff shall be demanded and if he will be nonsuit he may and then the Defendant shall not recover costs against him but as I have heard that this was to have been intended where the Plantiff was an executor or Administrator and not of any other Leonard Barley against Foster BEtween
and at that day the Court was of opinion that judgement shall be given for the Plantiff for by the rejoynder the Defendant had shewed that he had forfeited the bond though that be another matter then is in the replication and so he shall have judgement super totam materiam according to the judgement in Francis Case Coo. 8. for their the declaration stood good though the Plantiff had not cause of action in the same manner yet because it appeared he had cause of action he shall have judgement Weaver against Best VVEaver against Best in debt for 48. s. in the debet and detinet and for 2. shirts in the detinet only and he declared that the Defendant such a year retained the Plantiff to be his servant in husbandry giving him 48. s. and a shirt by the year and he shewed that he retained him for the next year and he averred that he served him and they were at issue upon nihil debet and the Plantiff had a verdict for him and it was now moved in arrest of judgement by Serjeant Brigman because he had not shewed that his retainer was according to the Statute of the 5th of Eliz. which Statute limitteth the form of there retainer and their wages and other things and he had not shewed the place where service was and also he had joyned two debts in one action one in the debet and detinet the other in the detinet only and Winch Iustice said that the Statute of the 5. Eliz. extends to such as are retained in husbandry and therefore other retainers are left as they were before the Statute at the Common law and this shall be intended to be a retainer according to the Statute if the contrary be not shewed by the other partie for his retainer was for a year and therefore it shall be intended that the wages was appointed by the Iustices and it was also said by the Court that if the justices of the peace in this kinde do neglect to set down the wages yet a servant may bring an Action upon his own contract also it was said that he needs not to shew the place where he served for if he did no service yet if he did not depart it is very good and for the other matter it was clear that he may bring his Action so by several precipes in one writ Thornes case IT was agreed clearly between Thorn and C. that where an obligation is made and the obligor and the obligee conferred about it and the obligor said to the obligee that he had forged this this is actionable for here it refers to a certainty but if he had said to the other thus he was a forger and had forged falsâ— writings no action will lie for the words are to general in that case also it was agreed clearly by the Court the Sheriff may not arrest a man upon a Capias after the time of the return of the writ Grasier against Wheeler Grasier as Executor brought an action of Covenant against Wheeler upon a lease made by the Testator rendring rent and this was made by I. S. and the Defendant covenanted that the lessee should pay the rent and the Plantiff assigned the breach in non-payment of 30. l. to the Testator such a day when it was due and for 10. l. due in his own time and the attorney of the Defendants as to the 10. l. pleaded non sum informatus and as to the other he pleaded that the Defendant paid to the Testator 7. l. in money and a horse in full satisfaction of all the said 30. l and that the Testator accepted that in full satisfaction and the Plantiff said that this was paid to the Testator for another debt absque hoc that he received that in satisfaction of the 30. l. and now Devenport argued that the issue was misjoyned for the issue ought to have been taken upon the payment and not upon the acceptance and he cited Pinnels case Coo. 5. where the payment in full satisfaction ought to be pleaded precisely and he said that he agreed to the case of Nichols Coo. 5. where the issue was joyned upon payment upon a single Bill and found that this was not paid and the Plantiff had judgement but if the issue had been found for the Defendant that had not been aided by the Statute for though it had been paid yet that was no bar Bridgman contrary and he said the difference is where the issue is joyned upon a matter alledged by the adverse partie and they are at issue upon a point which is not material that is aided by the Statute of the 18. Eliz. and where no issue at all is joyned there is not any help Winch Iustice said that this is an issue which will make an end of the matter And at another day this Tearm Serjeant Harvey moved the case again in arrest of judgement because the issue is joyned upon the acceptance which is not material and he cited Fowkes case depending in this Court debt upon an obligation and the Defendant pleaded the acceptance of another obligation in satisfaction which in verity is no bar and issue was taken upon that and it was doubted whether this being insufficient be aided by the Statute or not Bridgman Serjeant said to the contrary and he said as before that because the issue is taken upon the allegation of the Defendant if it is not good yet it is aided by the Statute of 32. H. 8. and Hutton said this is a full issue and as to the traverse said it is a material issue for he pleaded that he accepted them for another thing absque hoc that he accepted them in satisfaction of the 30. l. which is the most proper issue for he said it is clear that he may say that he accepted them for part c. and good and so here The Countess of Barkshire and Sir Peter Vanlore in Dower IT was agreed clearly in Dower between the Countess of Barkshire and Sir Peter Vanlore that if the Tenant plead never seised to have Dower and in verity the husband of the demandant had an estate but that was by disseisin which is avouched by the entrie of the deseissee who had a title paramont this is no title by which she may have Dower though they are at issue upon this plea and also it was agreed that if a man had a good estate by bargain and sale from him who had right to alien that and yet after he accepts a fine upon conusance of right as that c. from the other partie though in this case this be a conclusion to the parties between whom the fine was to denie that the land was of the gift of the Conusor and so that he was seised yet it is not any conclusion to the jurors to finde the verity of the matter in fact and that he had nothing of the gift of the Conusor also it was agreed in that case if a man held lands
years notwithstanding his advancement and he resigned during the 3. years and issue there taken upon the resignation and this case proves all the partes of our case first that the King may dispence and that by his dispensation he is compleat person to resign and if he do resigne during the years the King shall not have the prerogative to present again for that was satisfied with the dispensation and also when the King came to his prerogative by subjects means he ought to take that as it falls for otherwise he loses that quite vide Bastervils case Coo. 7. and another reason is if it be not satisfied then the King shall have another which is mischievous and this being a new case such president is not to have more favour then the necessitie of the Law will require and so my opinion is that it is all one as if it had for life and there is a good case 9. Ed. 3. 20. where the King had 2. presentments vide the case but it was upon another reason but the case of 21. H. 7. 8. Frowike where the grantee of the next avoydance had judgement to recover and the incumbent resigned so that it is the second presentment yet the Plantiff shall have the effect of his judgement and he had a writ to the Bishop quere the application for I did not well heare that but in our case if the prerogative of the King was not satisfied yet it ought to appear that when he presented Gee he had no title but that was an usurpation and if the King was not satisfied then the Plantiff shall not have judgement for then Gee was an usurper and upon that declaration the Plantiff shall be barred but now for the last point admit that the King was satisfied of his prerogative by his presentation of Gee whether the Plantiff had lost his course I think he had in the first place the words of the devise are the first the next avoydance which shall hap after the death of Athur Basset now it hath been objected that the King had the first by his prerogative and therefore he shall have the second I think in this case Brook presentation 52. is a strong case where a presentation was granted to one and after to another when the first is void and ruled that the second grantee shall not have the second and so Dyer 35. it ought to be taken according to the words for otherwise he shall not have any for modus et Conventio uniunt Legem and the case of quare Impedit 152. proves something to this purpose for a man had 4. advowsons and granted the next which should hap of them to I. S. and he died and the heir assigned the wife for her Dower one Mannor to which the advowson was appendant which first became void and ruled that the Grantee shall not have that against the feme and then it was moved by Thorpe that he shall have the second but Shard said certainly never which proves that if the turn of the Grantee was taken from him by the indowment of the feme he had lost that for ever the like case is the 15. H. 7. 7. 14. H. 7. 22. moved by Mordant that the Grantee of the third shall have the fourth when the wife is indowed of the third which case is brought to prove a case which without question is not law and that is that the King being Gardian of the Grantee of the next avoydance and he grant that in this case the heir shall have that at his full age which without question is now law for by the same reason his course may be the 20. but there are two rules from this which seem to cross this opinion one rule is that the words of the grantor shall be taken most strong against himself and the other that the Grantor shall not be received to avoid his own grant as it is said in Davenports case Coo. 8. but yet these rules are to be intended where the words are compleat for as the case is the 13. Ed. 3. Grant 65. that where the husband and his wife are joynt Tenants for life and he in reversion grant the lands only which the husband held in this case nothing passeth for the reversion was expectant upon a lease which the husband and wife held nay I will cite one case where a man by his own Act shall avoid his own grant in a quare Impedit Elmes against Taylor where a man was seised of the Mannor to which the advowson was appendant and he granted the third next avoydance and after against his own grant he usurped and it was adjudged that by this usurpation he had gained the advowson to be appendant to his Mannor again and that the Grantee had lost his course and so the case in Dyer 283. where the Church was void and the patron granted the next avoidance tunc vacant to another and this pro hac unica vice tantum and there resolved that the grant was not good and that it should not extend to another and so in our case it shall not extend to a second another reason is if the King had a prerogative he is bound and every derivative estate under him for he shall not be in better case then the grantee for he was bound by the law of the land and for that it is equitie and it is Iustice that the estate of the grantee should be bound and so in this case like to the case in Plowden 207. and Dyer 231. where by Act of Parliament the possessions of an Abbot were bound now if afterwards the Abbot made a lease for years or granted the next avoydance and then after they came to the King he shall avoid the grant for the interest of the Grantor was bound by Act of Parliament and see the case of the universitie of Oxford Coo. 10. where a man before he was a recusant convict he granted the next avoydance and after he became a recusant convict and then the Church became void now the grantee shall not present for his interest was bound by Act of Parliament and so he must take it and here it behoves him to take that as it is bound with the prerogative of the King and so upon all the matter he hath lost his title and he concluded that the Plantiff shall be barred The argument of Justice Winch. WInch Iustice of the same opinion but because his argument was much to the purpose of that with Hutton and the Lord Hobert therefore I will not Report that verbatim and Winch said I will speak to the last point which was moved by my brother Hutton and I hold that where he had the first granted to him now he shall have none at all for it is punctually expressed that he shall have the first and that shall not extend to the next which may be granted but I grant if two coparceners had an advowson and the eldest presented and
the year and afterwards the money not being paid Hickman sued forth a Capias ad satisfaciendum against Sir William Fish directed to the Sheriff of Bedfordshire for 210. l. and now upon a habeas Corpus Sir William Fish was brought to the bar and Serjeant Crawley moved for a supersedeas for him because the writ emanavit improvide c. and by the Court it is a cause to discharge him of the execution for the Capias ought to have issued for 200. l. only and he ought to have sued a scire facias though this was after the year because the Proces was not continued but they said withall it was in their discretion whether they will grant a supersedeas for they may put the Defendant to his writ of error It was ruled that if an action of debt was brought and the venire facias to trie the issue is in placito debiti and so is the habeas Corpus and the Pannel but in the Iury Roll of the nisi prius at the latter end of the jurata there it is placito transgressionis and agreed in this case this is amendable or in this case it is good without amendment Wen against Moore THomas Crew Serjeant did move in arrest of judgement where one Wen brought an Action upon the case against Moore and upon non assumpsit it was found for the Plantiff and he said that the Colloquium was laid to be at Bourn in the Countie of Lincoln and the venire facias was de Vicineto de Born without the letter u. and for that reason that they are several Towns therefore error for if the entire Town is omitted the trial is insufficient but the Court held this to be very good without amendment and shall be intended to be the same Town It was moved in arrest of judgement by Serjeant Finch that where one had brought an Action upon the case against one and shewed that the Defendant in consideration of 12. d. given to him by the Plantiff he assumed and promised that if the Plantiff may prove that he cut quandam arborem upon the land of Sir Francis Vain tunc crescent that he would give to him 10. l. and this being proved by the Plantiff it was now moved in arrest of judgement that quandam arborem is an individual tree and it ought to be aliquam arborem and another cause was alledged because it was not shewed that this was upon the land of Sir Francis Vain then growing but only he had said growing and that may be for perchance he purchased the land afterwards and before the Action brought and so it might be growing though not tunc crescent at the time of the promise but the Court c. Winch Hutton and Harvey seemed that the declaration was good for they said there is no question if quandam had been out this had been good for it is the singular number and he that certain or be that incertain yet by the verdict it is made certain that this is a tree and also those words tunc crescent do refer to the time when the tree was feld and not to the promise Holman against Sir Thomas Pope and Elizabeth his wife SErjeant Hendon moved in a case where an Action was brought by one Holman against Sir Thomas Pope and Elizabeth his wife as daughter and heir to Sir Thomas Watson and pending the writ Pope died and he moved that the writ ought not to abate because it is brought against her as daughter and heir where the land is assets in which the husband had nothing like to the case of an Executrix who brings her action in her own name and the name of her husband and pending the writ the husband dies the writ shall not abate but Justice Harvey said this case of Executors was adjudged against him and Hobert chief Justice was of opinion that the writ shall not abate but day was given over in that case Sir Thomas Holbeach against Sambeach IN the case between Sir Thomas Holbeach and Sambeach in a replevin where a demurrer was joyned the case was this one being Tenant for life and he in remainder in tail joyned in a grant of a rent in fee out of that and then they joyned in the levying of a fine to a stranger and his heirs and in this case it was said that the estate of the grantee of the rent which before was determinable is now made absolute and a judgement was also cited to be in that case lately adjudged to which the Court seemed to agree and they said if this be the point they will give judgement presently Crompton against Philpot. HEndon Serjeant moved in arrest of judgement in a case for Philpot a crier of this Court where one Crompton had recovered 40. l. damages against him in an action upon the case for words spoken against Crompton c. he innuendo the Plantiff stole a ring and had been hanged for that but for me and it was said in the first place that it doth not expresly appear that the words were spoken of the Plantiff himself neither is this introduced by any precedent Colloquium as it ought for otherwise the innuendo will not aide it but in veritie the declaration was that the words were spoken de eodem Richardo innuendo c. and also he said that the words are not actionable because that no value is exprest but it was ruled if that were but petie Larcenie the action lies but the Court gave no absolute opinion in the case for they were willing to compound for the poor man The residue of Michaelmas Term in the two and twentieth year of King James Brown and Ware against Barker BRown and Ware brought an action agaist Barker and they declared that whereas there was a suit depending between the Plantiffs and other Coppiholders of such a mannor in the Chancery against Brook their Lord and that one Woolsey was there Clark and that he for his fees and for the procuring of a decree had disbursed 14. l. and that there being a Communication between the Plantiff and the Defendant concerning the same he being a Coppiholder of the same Mannor that in consideration that they would pay to Woolsey 14. l. he would pay to the Plantiffs 40. s. upon request and the Plantiff shewed that they had paid the 14. l. and that the Defendant had not paid the 40. s. Licet postea saepius requisitus fuisset and upon non assumpsit pleaded it was found for the Plantiffs and now it was moved in arrest of judgement by Crook Serjeant First because he is a stranger to the suit for he had not alledged that the Defendant was a partie and then it is no consideration but this was over-ruled because they paid the 14. l. upon his request the second exception was that this postea saepius requisitus was not sufficient in this case because that he ought to express the certaintie when and the place where the request was made
this rent for this is forced in by the name of land which is absurd and contrary and here is not any fine levied directly of the rent nor any Silver of the King paid for that but only by the judgement of consequence and now for the Statutes of fines whether it is a fine within these Statutes and I hold that it is not and I am of opinion that if the rent had been behinde before all the dayes of proclamation pass and the issue had accepted that he is remitted and the same law is if Tenant in taile of such a rent and he acknowledge such a fine with proclamations and the proclamations pass now if his issue had accepted the rent before the proclamations passed he is remitted and now for the Statute of 32. H. 8. that is not taken by equitie because it is a Statute of explanation which regularly may not be inlarged and so appears in Butler and Bakers case and now for the agreement it self that is not any thing for this is by a contrary name which may not be good like to the case of the Lord Cromwel for there was an agreement to raise a rent by fine but here is an agreement to pass a rent by another name and will any man say that if a man agree to levie a fine of rent by the name of an advowson that this will pass the rent and I think that the case of Thornton is good law and so is also the case which is put after that of the advowson and yet I agree if Tenant in tail do accept a fine with render to another for years that shall bar him because that doth not work a discontinuance but otherwise where it is for life and so in my opinion the rent remains and the avowant shall have judgement The argument of the Lord chief Justice Hobert HObert to the contrary the short question is whether the rent is extinct by the fine of the land and I hold that it is and it is agreed it is a bar against the parties themselves though not against the issue and that being granted I see no second reason wherefore the issue shall not be barred and first I am of opinion that this plea of not comprised it is not good because this fine doth work by way of release but it was said at the bar that things ought to pass litterally in a fine which I denie and also every informalitie of a fine which is cause to reject that is not a cause to frustrate that when that is levied and the words of the Statute are of any lands Tenements or hereditaments any wise intailed and if there be any word in the conveyance which will carry that it is sufficient and it shall be put upon the construction of the law and as to that that the fine shall be according to the writ of covenant but I say if there be no writ of covenant then there is no departure but it was said that the Silver of the King was not paid which I also denie for it was paid inclusively and the words of the Statute are of any thing any wise intailed and Tenant in taile had as great power to pass that by fine as Tenant in fee simple and for the case of Thornton I know he was a learned man but let it suffice that he was so esteemed but for his opinion I do utterly denie that and I do denie the case put by my brother Hutton of the Piscary for I hold if a man had a Piscary in another mans land and levies a fine of that by the name of land this will pass the Piscary clearly and so the same if a man have an office appertaining to land intailed and a fine is levied of that by the name of the land this shall bar the issue and I denie that Statutes of explanation shall alwayes be taken litterally for it is impossible that an Act of Parlâ—ament should provide for every inconvenience which happens and so the case of Godfrey and Wade adjudged that the fine of the youngest son may not bar the eldest and yet within the words the eldest was heir to him but this word heir shall be expounded as his heir and so we use to expound the Statute of 4. H. 7. which is an original Statute and bindes parties and privies and here the eldest brother is not privie for he claimes before him and so I conclude that the rent is gone and judgement was given accordingly Sir Robert Hitcham against Brooks SIr Robert Hitcham Serjeant of the King brought an action upon the case against Brooks and set forth in his declaration that he was one of his Majesties Serjeants at law and that the Defendant spoke these words of him I doubt not but to prove he innuendo Sir Robert Hitcham hath spoken treason and upon not guiltie pleaded it was found for the Plantiff and now it was moved in arrest of judgement by Hendon first because it is not a direct affirmation that he spake treason but he doubts not but to prove that like to Penticosts case which was adjudged here where one Baker said of him I will prove that Penticost was perjured and no action will lie because he did not directly affirm that he was perjured Secondly because he had not shewed when he spoke those words and perchance it was in his infancie or lunacie or before the general pardons Thirdly here is not any allegation of any conference had of the King before and the speach of Treason is not Treason but when there is an intent to commit that and words shall be taken in the best sence as the case of Stanhop Cook 4. and so in the case between the Earl of Shrewsbury and Sir Thomas Stanhop one laid to Sir Thomas Stanhop that the Earl is a subject nay said Sir Thomas that is his grief and adjudged those words are not actionable and yet the words might be taken as if he had repined to have a Soveraign but the words were taken in the best sence Finch to the contrary this is more then a bare affirmation for he said he doubted not but to prove that asmuch as if he had said I am sure of that and Mich. 16. Iac. Sidnams case where one said I think in my conscience that if Sir Iohn Sidnam might have his will he would kill the King and all his good subjects and adjudged upon a writ of error brought of that the words are actionable and so in Whorewoods case so sure as you beleeve that God rules the world and that the King rules the Kingdome so sure did Whoorwood steal such goods and adjudged to be actionable and yet perchance the partie to whom he spake did not beleeve either of them and so Woods case 18. Iac. I will call him in question for killing of a man I will pawn my shirt but I will hang him and so here and prayed judgement for the Plantiff Ashley Serjeant contray words which may be taken
in a double sence shall be taken in the best sence and it shall be intended he spoke Treason in putting of a case or in speaking that after another and yet he offended not and so if he had said that he had written or printed Treason for so do the printers of the King and the Clark of the Crown and so I conceive that the Plantiff shall not have judgement Easter 1. Carol. ANd Serjeant Bawtrey the Term following argued for Serjeant Hitcham that it was plain that the Defendant spoke the words with a full intent to take away his life and to speak Treason is to speak ex corde suo and not that which another spake and now in Easter Term 1. Carol. judgement was given for the Plantiff by Hobert Hutton Harvey and Crook with one accord and they said the limitation of the time is not material for if it was spoke in his infancie c. Brook ought to have shewed that and Crook cited Walgraves case 32. Eliz. in B. R. one said of him that he was not a good subject and adjudged because he spoke them maliciously and he being one of the privie chamber that the action will lie and so 5. Iac. Blanchflower and Alwood thou haste spoke Treason and shall be hanged for that adjudged to be actionable and the 7. Iac. Barford against Prowse thou haste spoken Treason and I will prove that adjudged to be actionable and judgement was given for the Plantiff according Pleadal against Gosmore PLeadal brought an action against Gosmore for the taking of his Colt and fettering him by which the Colt was much the worse and the Defendant justified and shewed that the Colt was taken within such a Mannor which was the Counteses of Hartfords and that she had estrayes within the same Mannor and he justified the taking as Bailiff to her and shewed that he fettered him to the end to keep him from doing harm because he was wild and Serjeant Attoe demurred in law and he said that a man may not fetter an estray because he shall be paid for his keeping and for the hurt that he did and he cited a judgement 8. Iac. in this Court Rot. 1749 between Harvey and Blacklock for the taking of his horse and the fettering him by reason of which he fell into a ditch and was drowned and the other justified the taking as an estray and he fetred him to one of his own horses because he was wild and they both fell into a ditch and were drowned c. and adjudged to be no Plea and the reason which the Lord Cook gave was because he shall be paid for the keeping of him and for his damage and of this opinion was Hobert in the case at the bar but Winch Hutton and Harvey contrary that he may fetter him as he may his own horse and for the case which was alledged they said that there was no proclamation pleaded and so the justification was not good and judgement was entred for the Defendant and this was the last case that ever Iustice Winch spake to in the Court for he being a man not more admired for his profound learning then he was reverenced for his pietie and integritie died upon Friday following being the fourth day of Februarie in the morning as he was making readie to go the Hall Elizabeth Davis against Hawkins THere was a case between Elizabeth Davis and Hawkins in the spiritual Court for defamatorie words and sentence was given against the Plantiff who appealed to the Arches and judgement was given for the Plantiff and 12. d. costs and then came the general pardon and the Defendant did appeal to the deligates and there the second sentence was affirmed and greater costs given and the Defendant did plead the general pardon and they would not allow of that and now it was moved for a prohibition and these points were debated by the Councel and agreed by the Court c. by Hobert and by Harvey that though this suit and sentence is only for to make the partie to denie the words and confess his fault in some publick place yet it is in effect as if it were meerly at the suit of the King for reformation and this is a new invention which they had found out to take away the benefit of the pardon of the King and now to the new costs which were taxed by the deligates they were not taken away by the pardon for though the first offence was yet because this new suit was not only to quash the sentence for the offence but also for the costs ergo these new costs were assigned for the unjust vexation for he was the cause of the removing of that and so they may do for the unjust vexation but not for the first offence The End A perfect Table of the Principal matters contained in this Book A ACcompt against a Bailiff to the damage of 100. l. and judgement to accompt he makes default what judgement shall be given 5. Accompt what is a good Plea in bar therein 9 An action upon the case where a request and the time and place thereof necessary and where not 2 Action for saying the Plantiff is a false for-sworn knave and took a false oath at a Commission 2 3 Action for saying thou art a Thief and hast stolen 20. load of my furzes lieth not 3 10 Action for c. thou hast stolen Hay from Mr. Bells Racks and judgement for the Plantiff 6 Action upon the case upon a promise what is a good consideration a quaint difference taken 7 8 Amendment of a judgement where and within what time good matter 89 Award where good in part and void for the rest 1 Action for words that the Plantiff stole Tobacco out of his Mrs. shop not good without averring that there was Tobacco there 15 Attachment denied upon an affidavit 15 16 Audita Querela where it lieth against one Feoffee and where before an Ouster 20 23 Action upon a promise what consideration is good therein to forbear 22 23 Action upon the case for procuring the Plant to be indicted for stealing Vetches where it lieth and if it ought to be a writ of conspiracie 28 54 An action by an Auditor for saying you are a Cozner and live by Coznage 33 39 40 41 An action for saying the Plantiff loaded a ship with Barley and stole 7. quarters of it by measure it lieth 41 Avowrie for rent granted to the father and that it was arrear to his son good without saying in whose time it was arrear 48 Action upon the case to save the Plantiff harmless for keeping a prisoner good without saying he was lawfully arrested 48 49 In avowrie for rent upon a lease by the father the son claimeth by discent the Plantiff saith the father devised the reversion to another the jury found a devise only of two parts judgement given for the Avowant 49 50 Amendments not allowed upon indictments actions popular or penal Statuts and
like to the case of a common for a man may prescribe to have common in another mans land for this is but a reception of the profits with the mouthes of his cattle but in our case it is all one as to prescribe to have the land it self and I may not prescribe to have land it self for I may not say that I and my ancestors had used to have such land for such a prescription is void to which Hobert chief Iustice and all the Court agreed as to that point and then to prove that this is all one as to prescribe to have the land it self he said that if a man lets the profits and the herbage of land for years this is a lease of the land it self as was lately adjudged in this Court which was also granted by the Court also he said that this appears by the 27. of H. 8. 12. that a man shall have a praecipe quod reddat of pasturage or herbage but not of common and a formedon lyes of pasturage 4. E. 4. 2. the Regist fo 177. Ejectione firme lyes of pasturage and so he concluded that upon the matter he prescribed to have the land it self but Hobert chief Iustice and all the Court to the contrary that the prescription is good for that may have a good beginning by grant for a man may lawfully grant the pasturage and the feeding of his land when that is not sowed and by consequence if that may be good by grant it may be good by prescription and judgement was commanded to be entered for the Defendant See prescription 51. and 52. In trespass the Defendant pleaded in barre that such a one was seised of land in the right of his wife and that his wife died seised and that he was heire to her entered and gave Colour to the Plantiff the Plantiff replied that the husband and wife were joyntly seised and that the wife died after whose death the husband was seised by Survivor-shipp absque hoc that the wife died seised and Warberton and Hutton being only present the traverse is not good that the wife did not die seised but it ought to be that she did not die sole seised In trespass for the taking of goods in a place in yorkshire and the Defendant justified as servant to the Bishop of Durham and he shewed that the Bishop of Durham had a Faire and that time beyond memory he and his predecessors had used to seise the cattle that were sold if he who bought them refused to pay toll and if the thing taken was not redeemed within such a time he might sell the same And he justified in a place in Durham absque hoc that he was guilty in Yorkshire and by Warberton and Hutton this is a good traverse to the place for it is local If a Capias issued here to have the body of such a one at Westminster such a day and the Sheriff bring the body or return the writ before the day this is good by Iustice Warberton Tutter against Fryer TUtter against Fryer a rent charge was granted for years with a nomine poenae a clause of distress if that was not paid at the day and the rent was behinde the years incurred and it was moved by Athowe that though the years are incurred that he may distrain for the nomine poenae but the Court was of a contrary opinion for that depends upon the rent and the distress is gone as to both of them Duncombe c. against the Bishop of Winchester c. DUncombe and others against the Bishop of Winchester and others Defendants in a Qu Imp. and the case was that Sir Richard Weston was seised of the said Church in fee in grosse and was convicted of recusancy and a Commission issued to certain Commissioners to seise two parts of his lands and goods and they seised this advowson inter alia into the hands of the King and the King granted the advowson to the Plantiff and the Church became void and whether the King or the university of Oxford shall have that was now the question and it was appointed to be argued the next Term. Potter against Turner IN the Kings Bench Pasch 19 Iac. the case between Potter and Turner was as I conceived to this effect A. was indebted to B. in 20. l. and C. was indebted to A. in 30. l. and A. in satisfaction of the debt which he owed to B. assigned the debt of 30. l. which C. owed to him and made a letter of attorney to sue in his name A. and B. acquainted C. with this agreement and C. promised to B. in consideration that he will forbear till such a day that he will pay him the money and upon this promise he brought the action against C. and he pleadded non assumpsit and it was found for the Plantiff And it moved in arrest of Iudgement that the consideration was not sufficient according to Banes case Coke 9. If executors who had not assets promise to pay a debt of the Testator this shall not binde them because they who made the promise were not chargeable but on the other side it was said by Whitwick of our house that this was a good consideration for the assignement of that debt was lawful and no maintenance at all as appears by 15. H. 7. 6. and a recovery by B. against C. is a good plea in barre in an action brought by A. against C. but Dodderidge Houghton and Chamberlin only present to the contrary for B. here had only an authority to sue and this is at all times Countermandable by A. As if I deliver goods to my servant to deliver over to I. S. and I. S. promise my servant that in consideration that he will deliver them to him he will give him so much money this is no consideration except that they are delivered accordingly for this is only an authority to deliver goods which is alwayes countermandable by me And Iudgement was entered for the Defendant vide 4. E. 4. 14. Ewer and Vaughan IT was said by Dodderidge and A. in the argument of the case between Ewer and Vaughan that it had been adjudged by all the Iustices in one Trewmans case that no writ of error lyes of a judgement given in the Stanneryes in Cornwal A Prohibition to the Admiralty MAny poor Marriners sued one Iones the Master of a ship for wages in the Admiral Court and judgement was given against Iones and now he prayed to have a prohibition and he suggested that the contract was made at London in England and so the suit was not maintainable in the Admiral Court but the prohibition was denyed because he had not sued his prohibition in due time viz. before a judgement given in the Admiral Court which in point of discretion they disallowed and also these are poor Marriners and may not be delayed of their wages so long and besides they may all joyn in a Libel in the Admiral Court but
plea for the Plantiff to say that he was seised till the Defendant disseised him absque hoc that C. enfeoffed him and for that reason he ought to traverse the feofment made by B. for the other was but a mean conveyance see Dyer 107. in Trespass the Defendant conveyed to the donee by 5. or 6. discents by dying seised of the estate taile in every of them the Plantiff confessed the intaile and conveyed to him by feofment made by the heir of the donee which was a discontinuance and took traverse to the dying seised of the same feoffor and ruled to bee evil for he ought to traverse the most antient discent 43. H. 3. 7. Secondly it is evil because he had confessed the seisin of E. 6. and the grant by the same King to Wyat and so had confessed and avoyded the seisin of the same King and then the Law will not suppose that E. 6. purchased that again and for that the traverse of his dying seised is evil when he had sufficiently confessed and avoided that before as Dyer 336. in Vernons case a discent was pleaded to the heire from his ancestor the other party said that the ancestor devised that to him absque hoc that this discended to him as son and heire and ruled to be evil for a traverse needs not when he had confessed and avoyded that before Vide 14. H. 8. Sir William Meerings case 26. H. 8. 4. by Fithzherbert but Brook in the abridgement of the same case said that if the traverse is evil then he had waved the plea before and all was evil 7. E. 4. by Littleton for hereby the representation of Queen Eliz. she had gained the inheritance to the Crown and then the traverse being evil he had waved the former plea which was good without traverse and this seisin in the Crown is not answered but by way of argument as here 14. H 6. 17. he ought to traverse absque hoc that he died in his homage 20. E. 4. 5. 35. H. 6. 32. Serjeant Iones to the contrary and as to that which hath been said that the presentment is alleaged to be in jure coronae and the confessing the presentment is a plea by way of argument to which he answered that the record is not so but the seisin of the advowson is alleadged by discent to Elizabeth Queen by force of which she was seised in jure coronae and Iones argued that the traverse is good for every plea in barre ought either to be traversed and denied or confessed and avoided and here that ought to be traversed Dyer 208. 312. in avowry for a rent charge and seisin was alleadged in the grantor of the land in fee and the Plantiff said he was seised in taile he ought to traverse that he was seised in fee and a good traverse Hill 2. Iac. in C. B. Rot. 1921. Edwards against D. it was pleaded that such a man was seised in fee of a rent charge and the other confessed that he was seised in fee and that a long time before he enfeoffed one I. S. there he ought to traverse that he was seised at the time of the grant see the new book of Entryes Tavener and Gooches case in a Qu. Impedit And a note by the Lord Cooke also he said that after the grant there may be an usurpation and so the dying seised in the case of an advowson in gross ought to be traversed â—e 21. E. 4. 1. 20. E. 4. 14. and as to that which hath been said against the protestations he answered it ought to be traversed and for that the rest ought to be taken by protestation and in some cases the conveyance is traversable see Cromwels and Andrews case And so he concluded and prayed judgement for the Plantiff Note that he said that it was adjudged in that Court 2. Iac. in the case of the Bishop of Winchester that two usurpations gaine the advowson from the King And the reason was because the King by an usurpation may gaine an advowson in him out of a Common person and if the King Vsurpe and the right patron present he is remitted Hobert by such usurpation the possession is gained from the King but not the right and note that upon the argument in the principal case by Bawtry and Iones it was ruled by Hobert Warberton and Hutton that if the Defendant do not shew better cause by such a day judgement shall be given against him and Hutton said that he had studied the case and found no doubt but that the traverse is good Winch was absent in the Chancery M. 19. Iac. C. P. IT was moved for a prohibition by Harris Serjeant to the Court of Audience because that the Plantiff was sued there for saying to one thou art a Common Quean and a base Quean and Harris said that a prohibition had been granted in this Court for saying to one that she was a piperly Queen and it was the case of Man against Hucksler and Finch said though the words are not actionable in our Law they are punishable in the spiritual Court for the word Quean in their Law implies as much as whore but Hobert said that this word Quean is not a word of any certain sense and is to all intents and purposes and individuum Vagum and so in certain see more after Note that it was said by Justice Warberton that it was adjudged in the case of one Ablaine of Lincolns Inne that if a man made a lease for years rendering rent and the lessee or a stranger promise upon good consideration to pay the rent that in this case no action upon the case will lye for it is a rent and is a real thing and Hutton Justice being only present agreed this was upon the motion of Finch Serjeant Mic. 43. Eliz. in the Kings Bench in an action upon the case he declared how he let certain land to the Defendant for years in consideration of which the Defendant promised to pay him for the farm aforesaid 20. l. and Hitcham moved that the action will not lye because it appears to be for a rent for which an action of debt lyes but by Gaudy Fenner and Clench it is not a rent but a summe in gross and for that reason because he promised to pay that in the consideration of a lease cleerly an action upon the case lyes but Sir John Walter replyed that a writ of error was brought of this case of Simcocks in the exchequer chamber and the matter in law was assigned for error and it was ruled that no action upon the case will lye for Walmsley said this was a rent for of necessity there ought to be supposed a commutation between the lessor and lessee and that the lessor demanded of the lessee how much he would give for that and then he answered 20. l. this made an entire contract and for that reason an action of debt lyes and not an action upon the case and Savil and
Kingsmil agreed to this In evidence to the Iury in a replevin brought by I. S. against one Bennet for the taking of beasts and the Defendant made Conusance and he said that Mr. Potts was seised of 6. acres of land and granted a rent charge out of that to one William Pots his son in taile and for rent behinde he avowed and the issue was that the rent did not pass by the grant and Hobert said that in this case the avowant ought to prove that the grantor was seised of 6. acres or more and not of 4. or 5. acres if he will maintain his issue in this case Action upon the case for words he innuendo the Plantiff stole the Tobacco out of his Mrs. shop Finch moved the declaration was not good because he had not averred that there was a communication concerning him before and where the person is incertaine there the innuendo is void Hobert and Winch held that to be good but then Hobert moved that the declaration was not good because he said the Tobacco in his Mrs. shop and had not averred that there was Tobacco there to which also Winch agreed but if he had said that he had stolen Tobacco out of his Mrs. shop such declaration without any averment is good but here the words the had altered the sense and so there ought to be an averment and Winch said that if he had said that he had stole 2 or 3 pound of Tobacco out of his Mrs. house this had been good without any averment for the certainty appears and it was adjourned Trin. 19. Jac. Sir George Stripping in Wast SIir George Stripping brought an action of waste and an estrepment was awarded to the Sheriff of Kent to prohibit him to make waste and the Sheriff returned the writ executed accordingly and now there was an affidavit made to the Court that since the estrepment he had cut down certaine Willowes which grew upon the bank of the River by which a bank fell down and a meadow adjoyning was overflowed and upon this affidavit Davies moved for an attachment against the Defendant for it appears by this affidavit that waste is committed for the cutting of willowes in this case is waste because that they support the bank as if they grew neer a house Hobert and Winch being only present that this is a waste in law but yet no attachment shall be awarded because that this appears only by affidavit and is only the collection of the party and this doth not appear by pleading or by the recorâ— of the Sheriff and Brownlow said that in this case he ought to have a Pond which was granted Maior against two Bayliffs ACtion of false imprisonment was brought by Major against 2 Bayliffs of a corporation who pleaded not guilty and at the nisi prius the Plantiffe was nonsuite and now Serjeant Richardson moved upon the Statute of cap. 5. 7. Iac. for double costs and that upon the very words of the Statute and the question was whether the costs ought to be taxed by this Court or by the Iustices of Assize Hobert said that upon the nonsuite the Iustices of Assize might have commanded the Iury to have taxed the single costs and then the same judge might have doubled them and that within the words of the Stat. but if the judge grants this then upon his certificate the double costs shall be assessed for otherwise the party shall be without any remedy and Brownlow ch Prothonotary agreed with that as to the certificate that this Court shall assesse the Costs and Brownlow had a president according Mich. 19. Jac. Grice against Lee. GRice against Lee in an action upon the case and the Plantiff declared that he being long time before and still is seised in fâ—e of certain messages and lands in Layton Buzard in the County of Bedford and that to these messuages he had a common appendant time beyond memory c. in 600 acres of waste called Layton Heath and had common in 600 acres of wood in Layton aforesaid and that the Defendant had made certaine conney borroughs and which the aforesaid couneys where he had not made any mention of any conneys before eat up the grass and that the Defendant had inclosed the said wood by which the Plantiff had lost the profits and the Defendant as to the digging of the heath for coneys said that E. 3. granted to the Dean and Cannons of Windsor that they and their successors haberent in omnibus terris dominicalibus liberam Warrennam sibi tunc et successor et in posterum conferendam And that the 20. E. 4. the Duke of Suffolk and his wife granted to them the said Mannor of Layton whereof the said Heath is parcel and said that 22. E. 4. it was enacted by Parliament that all charters made by King E. 3. to the Deane and Canons of Windsor shall be good and that the said Deane and Cannons of Windsor being so seised of the Mannor of Layton and of the Heath in the 3. H. 7. erected a free warren and that by mean conveyance the said D. and C. conveyed that to the Defendant and so justified the making of the said coney borroughs by vertue of the charter of E. 3. and as to the 600. acres of wood he justified by the licence of the father of the Plantiff who then was seised of the common and upon these pleas in barre the Plantiff demurred and Serjeant Richardson took exception because that it is not expressy alleadged that hee was seised of the house and land to which the common is appendant at the time of the making of the conney borroughs for he only said that a long time before the erection of the conney borroughs and yet he is seised which immplies that he was seised before and after but not at the time of the warren made and for this he cited the Book of entries where waste was brought and he counted of a lease for life to the Defendant and a grant of the revertion and an attornment of the Tenant and that the Defendant had made waste and ruled to be evil because he had not alleadged that this was after the attornement and so in Stradlings and Morgans case and he cited a judgement 5. Iac in C. B. Adkinson brought an action of trespass against I. S. and declared quod per multos Annos jam preteritos he had exercised marchandize and that the Defendant such a day said of him that he was a Bankrupt and it was adjudged that the declaration was evil because he had not alleadged that he exercised marchandize at the time of the speaking of the words and he said that the cause of the judgement was entered upon the roll and the same case he could shew to the Court and Hobert desired to sâ—e that for he doubted much of the law of the same case to which Winch and Hutton agreed and Richardson said that as to that which may be said that a fee
return and this was granted by Hobert chief Iustice at another day this Term Peter Vanheath against Turner PEter Vanheath brought an action against Turner and declared upon the custome of Merchants that if any Merchant over the sea deliver money to a factor and make a bill of exchange under his seal and this is subcribed by the Mr. or by any of the company of such Merchants that the Merchant himself or all the company or any one in particular may be charged to pay that and he shewed that one Morgan was factor of the company of which the Defendant was one and that the said Morgan did substitute one Greenway to whom the Plantiff delivered 100. l. upon a bill of exchange to which bill one Bounder being one of the company set to his hand in England and so the action accrewed to the Plantiff The Defendant pleaded nihil debet per legem and upon that the Plantiff demurred in law and the question was whether the Defendant may wage his law and it was argued by Serjeant Harvey that he shall not wage his law for this is only an action upon the case and sounds only in nonfesance and here is no privity between the Plantiff and Defendant for the bill was made over the sea and subcribed here in England and he shall not charge the Defendant without a special custome so that it is plaine that it is custome which made the Defendant lyable and if the Defendant do not pay for this no action of debt lyes but only an action upon the case and every plea ought to conclude to the point in action and for that in trover and conversion non culp is a good plea and yet he may traverse the finding for this tends to the issue and is good and so in debt upon a lease for years nihil debet is a good plea or non dimisit for the cause aforesaid but when the plea doth not tend to the point in issue it is otherwise for he ought to traverse that which tends to the point in issue and in our case the Defendant may traverse the custome or give answer to the nonfesance but he shall not wage his law and an action lyes upon this contract against the Mr. for this and so he concluded that judgement ought to be given for the Plantiff Harris Serjeant contrary this non payment is not a non fesance in the Defendant and here the Defendant may not plead not guilty or non assumpsit for no promise was made and it is a general rule in law that where a man may traverse the conveyance there he shall not wage his law see 5. H. 7. but here the Defendant may not traverse the conveyance Ergo he may wage his law and 5. H. 7. the successor of an Abbot shall have his law of a contract made with his predecessor and he said that the book of the 23. E. 3. is not law Hobert chief Iustice if the Bayliff at the common law make a substitute the substitute is not chargeable but here the custome will bind the law Secondly he laid 2. or 3. Merchants trade over the sea who made a factor there who takes money there and gives a bill and this is subscribed by one of the company that this should bind all or any of the company is not a good custome and the custome of Merchants is part of the common law of this Kingdome of which the judges ought to take notice and if any doubt arise to them about there custome they may send for the Merchants to know there custome as they may send for the Civillians to know there law and he thought that the Defendant ought to be admitted to wage his law for the delivery of the money made a contract in law and as he may have an action of debt so without question he may have an action upon the case and so count upon a promise and then the Defendant may not wage his law Mich. 19. Jac. C. P. Doctor Hunt against Allen. DOctor Hunt brought an action of debt upon an obligation of 100. l. against the heire of Edmond Allen and the condition of the obligation was that whereas the testator Edmond Allen in the first year of the raigne of the King hath given and granted to the Plantiff the presentation to the Church of D. if therefore the said Edmond Alllen from time to time shall make good the said grant from all incumberances made or to be made by him and his heirs that then c. and the grantor dyed and the Church became void and the heire of the grantor presented and whether this was a breach of the Condition was the question and Hobert chief Iustice and Winch being only present thought this tortious presentation to be no breach of the condition but this extends only to lawful disturbance by the heire and by the pleading here it appears that though the heire presented yet he had no right to present because that his father had granted that before and then the presentation of the heire is as a meer stranger And those general words will not extend to a tortious disturbance by the heire but Hobert said that the words shall have such a construction as if it had been said that he shall enjoy the same from any act or acts made by him or his heires and in this case there ought to be a lawful eviction to make a breach of the condition but otherwise if the condition had been that he shall peaceably enjoy from any act or acts made by him or his heires in that case a tortious disturbance would have been a breach of the condition but it was adjorned till another time Information was for that one such his apprentice departed out of his service and the Defendant received and retained him without a testimonial from the Mr. contra formam Statuti And so he demanded 5. l. the Defendant pleaded nihil debet per patriam and it was found against him and now Hendon Serjeant moved in arrest of judgement that an apprentice is out of the clause of the Statute of the 5th of Elizabeth and that the same Statute extends only to servants and to labourers retained within that Statute for the statute saith be it enacted that no person or persons that depart out of service without shewing of a testimonial as is above remembered and this branch as is above remembered had only reference to the next clause before and the same branch before makes only mention of certaine trades in which an apprentice as in our case is not included and the certificate set down within the Statute proves that an apprentice is not within the Statute for the words are I. W. servant to such a one c. and so it extends to servants and not to apprentices and secondly he said the information is not good because he had not shewed in what trade this apprentice served and perchance he was retained in such a trade as is not
and to be forth comming and for that reason he ought to appear within a convenient time when the Plantiff demands him which Hobert also granted but he said that there needs not any demand if the course of the Kings Bench is contrary and Iones Iustice said that he had a judgement given in the Kings Bench that the bail is forfeit after default is assigned in the principal and Winch said that the course of the Kings Bench is that default ought to be assigned in the principal upon the return of the Capias before the Bail shall be charged and it was agreed if that course be there it shall be observed here also but it was said by Hutton that there ought to be a scire facias awarded and returned against the Bail before the Bail is forfeit and it was adjourned until another time that they might see presidents Cyprian Web against Barlow CYprian Web brought a replevin against Barlow and the Defendant avowed as lessee for life of the Mannor of Froston to which the Plantiff is a Copiholder of a Copihold of the same Mannor and that 15. Iaco. in mense May he girdled and cut a tree in the middle upon his Copihold and that the steward Anno Supradicto charged the homage to finde this by which he had forfeit his Copihold and the Defendant being Lord of the Mannor distrained his beasts damage feasant and the Plantiff said that the custome of the Mannor is that every Copiholder may lap and girdle absque hoc that he cut the tree and upon that the Defendant demurred and Attoe argued for the Plantiff in the replevin that this is no cause to forfeit the Coppihold for though the steward did charge the homage to finde that yet it doth not appear that he gave any proof of that And secondly the forfeiture is alledged to be in May and the Court was holden in April before which was impossible which the Court granted as to that last point and for that the Plantiff had judgement East 21. Jac. C. P. Thorntons case in a Prohibition THornton prayed a prohibition to the Arches and the case was such one had a recovery in a quare Impedit and he had a writ to the Bishop against Thornton upon which A. his Clark was admitted c. and after the recoverer died and Thornton supposing his heir to be in the ward of the King and that the said A took another benefice without sufficient qualification by which the Church was void by Cession and he attained a presentation of the King and he was admitted c. by the Lord keeper being within the Diocess of Lincoln and A. sued him in the spiritual Court and Thornton prayed a Prohibition and it was granted per Totam Curiam for without question there ought nothing to be questioned in the spiritual Court after the induction of the partie and whether it is a Cession or no doth properly belong to the Common Law and Iones cited a judgement in Williams case according note that by the constitution of Otho and Othobon that institution and induction is voidable in the spiritual Court if no Prohibition be prayed Sheldon against Bret. IN a quare Impedit between one Sheldon and Bret Hutton said that we in Chancery have adjudged that the grant of the next avoydance for money when the Parson was sick in his bed ready to die is Simony for the Statute is if the contract be made directly or indirectly by any way or means Fleming against Pitman FLeming brought an action of Covenant against Pitman and he declared upon an indenture and that the Defendant Covenanted to serve him honestly and faithfully as an apprentice in the mystery of Drapery for seven years and that he had defrauded him of his goods c. the Defendant pleaded the Statute of the 5. of Eliz. that none shall be an apprentice to any of the most worthy trades among which Drapery is one except his father have freehold to the value of 40. s. per annum to be certified to the place in which he is to be apprentice by three of the Iustices of the peace of the same County and this certificate to be inrolled in the Town book and he pleaded that no such certificate was made and he pleaded the branch of the Statute of the 5. of Eliz. which made every retainer contrary to the form of this Statute to be void and the Plantiff replied that he had 40. s. per annum and the Defendant rejoyned that he had not 40. s. per annum upon that the Plantiff demurred because the Defendant said in his rejoynder that he had not 40. s. per annum and in his plea he pleaded no such certificate and the Iustices c. Hutton Hobert and Iones said that the retainer is good though there is not any such certificate or inrolment if re vera the father had 40. s. per annum for the intent of the Statute is that sufficient mens sons should be apprentises which is observed if the father had 40. s. per annum and Winch cites Englefields case upon the Statut 28. Eliz. cap. 3. that every one which claims by a conveyance from a Traitor shall bring in his conveyance to the Chequâ—e to be inrolled and yet if it be brought in though it be not inrolled the intention of the Statute is fulfilled and Iones cited a case in Banco Regis 18. Eliz. Robins case upon the Statute of 21. H. 8. of Pluralities where it was adjudged that a dispensation is good though it is not inrolled and yet there are as strong words of inrolment as may be And after in Trinity term 21. Iac. the same case was argued again by Attoe for the Plantiff and by Hitcham for the Defendant and per totam Curiam at that time it was agreed cleerly that this is a departure but for the second point whether the pleading of the certificate were good or no that was the doubt and Iustice Hutton thought there ought to be a certificate precede the indenture or otherwise that shall be void but Hobert as to that would not give his opinion but he seemed as Hutton and Hobert chief Iustice took exception to the laying of the action for he thought the Statute of the 5. of Eliz. shall not be intended so strong against infants as to make Collateral covenants to be good but Attoe moved that this covenant is incident to the retainer to serve truly and faithfully and yet if it were a Collateral covenant yet he had lost the advantage of that by his pleading as in debt upon an obligation against an infant if he plead non est factum he shall not have advantage of his Infancy to which Hobert also agreed but he said this is not like to our case for here it appears by the Count of the Plantiff that the Infant was but of the age of 15. years at the time of the retainer of which the Court ought to take notice and here the
one covenant and it had been otherwise for if no estate had appeared he shall not be chargable in law nor perchance he would not deal with him and we ought not to take notice of any thing but that which is upon record nay his own plea proves that they are several covenants for to the negative covenant he pleads negatively and to the other he pleads in the affirmative and so the very intent proves them to be several covenants and Hobert of the same opinion that it shall be taken as a present grant to charge the present possession and so judgement was commanded to be entred for the Plan. Entred Easter Term 18. Jac. C. P. THe case of Goldingham and of Saunds was new moved again by Serjeant Winch and he prayed a writ of seisin against Saunds and the doubt was whether the first judgement being absolute with a cestat executio was good or whether this ought to be conditional and I conceive that in our books there are those differences in this point if the Tenant do vouch in a forraign Countie then without any more the demandant shall have judgement against the Tenant presently 17. Ed. 3. 50. 13. H. 4. judgement 224. because the demandant shall not recover Cook 9. but onely in the same Countie and the reason is clear in Anne Beddingfields case because the original may not extend to another Countie but if the voucher be in the same Countie then in some cases it shall be against the vouchee and in some cases it shall be against the Tenant and if the vouchee will come and render Dower then the judgement shall be conditional against him c. if he had in value and if he had not then against the Tenant and the other against the vouchee and so is Dyer fo 202. and Grayes case was a conditional judgement against the vouchee and so is the case 18. Ed. 3. fo 56. out of which books I note that in some cases the vouchee shall have judgement against him and the judgement in that case shall be conditional and so if the vouchee make default then the judgement shall be conditional against him 4. Ed. 3. 35. the old print 2. H. 4. 7. but if the case be that the demandant is delayed in his execution by the vouchee then he shall recover against the Tenant as if vouchee be in the ward of the King Dyer 326. and so in the case of a Common person as is 17. Ed. 3. by the Reporter who also cites a judgement given in the time of the same King though the opinion of the book is against that but then it hath been said that this is mischievous for then the Tenant shall loose his warranty I answer no more then when he is vouched in the ward of a Common person and over this the Law doth provide a remedie for him See 27. H. 8. cap. 10. 32. H. 8. cap. 5. as the Act of H. 8. if the feme be evict of the Dower by a title which is paramount then she may have a scire facias against the Tenant and if the vouchee had not assets in this case then the Tenant shall have execution against them as they hap and so is the judgement in Dyer 202. and there was a judgement in this Court 38. Eliz. Marie Ashburnham brought a writ of Dower against Skinner who vouched the heir of the husband as in this case and they were at issue upon assets in the same Countie and the same judgement as here and it was found by verdict for the vouchee and after the judgement and before the voucher was determined a writ of error was brought and affirmed and our case here is as strong as this and so I pray a writ of seisin for the demandant Serjeant Hendon to the contrary the question is whether this ought to be a conditional judgement or whether this may be absolute with a cesset executio as the case was here and I shall lay this foundation that it is in the election of the feme when the heir is vouched in the same Countie whether she will have the same against the Tenant or vouchee but for the case of 17. Ed. 3. that is but a quere of the Reporter which I do not value for the book it self was otherwise that it ought to be conditional because it is in the election of the feme to have that against either and for Dyer 202. there the question is whether the judgement shall be presently or stay and expect till the issue is tried between the vouchee and the Tenant but no question whether this shall be conditional or no and the reason is when he is vouched in the same Countie if he had assets then she had not election for there it shall be onely against the vouchee if that be found by verdict or confessal and this is for the benefit of the purchasor and also for the benefit of the demandant in Dower for the warranty in the antient time was the Common assurance of the realm and for that reason if the judgement may be against the heir it shall never be against the Purchasor and also it is for the benefit of the feme who is demandant in Dower for if she be indowed against the Tenant and afterwards she be evicted she shall not have a scire facias but if it was against the heir then she shall have a scire facias to have in recompence and so is 16. Ed. 3. Iudgement 3. that if in Dower the heir is vouched and made default the judgement shall be against him out of which I do conclude that the judgement ought of necessitie to be conditional for by this the State of the feme and of the Tenant is preserved for if the feme shall have that against the heir then she saves her warranty in Law and therefore if the judgement at the first may be absolute then you take away all advantages from the feme and the purchaser if it hap that it shall be against vouchee and for that reason it is not good for it is unalterable and it is a principle in out Law that the feme shall recover against the heir if he be vouched in the same Countie if he had assets and not against the Tenant 6. H. 3. Dower 16. the demandant shall recover immediately against the vouchee when he was vouched as heir and so is 18. Ed. 3. recovery in value 16. et 31. Ed. 3. vouch 30. there the judgement was against the vouchee though he had nothing by descent at the day of the writ purchased there is a writ in the register which recites such a recovery voucher and judgement conditional and so is the 34. H. 6. expresly and for that to say that the judgement may be absolute is to make all those books erroneous and the case of Dower differs from all other cases of vouchers for if land discend in tail it is sufficient assets for the feme to
have Dower because the feme is dowable of them for this sufficeth to say that he had assets generally 7. Ed. 2. Dower 184. out of which I conclude that this voucher is not like to other vouchers but this is onely to secure the estate of the Purchasers and then as to the president I answer first it was found there that the vouchee had nothing and also it was never debated for a writ of error was brought of that and nothing done for this was referred to Arbitrement and so I pray that no writ of seisin may be awarded and the Court semed to be of opinion that the judgement may be conditional chiefly Hobert and Iones vehemently but now they said because that judgement is once given they are not to reverse their own judgements and to give another judgement and now it is as if he had no assets but yet that doth not aide an erroneous judgement given before and therefore if the Tenant will be relieved he ought to bring his writ of error but it was said that if this judgement was to be given again this was as it should be because that is all one now as if he had not assets and the judgement stood as it was Potter against Brown NOw the case of Potter and Brown was moved again and Hendon took two exceptions as before first for default of averment and secondly the words are not actionable for it was adjudged in Lanes case if one say of another that he is as arrant a Thief â—s any is in the Goal of Warwick this is not good without averment that there are Thieves in Warwick Goal and here it shall be so for the law doth not suppose that there are Thieves in England and besides here in this case the subsequent words do qualifie the other for the words under the for ought to be of such a thing as is Theft and that is not so in our case Serjeant Richardson to the contrary the last words do not qualifie but rather aggravate them for he gives a reason of his speach and this taking is to be understood with a fellonious intent for the first words do charge him to be a Thief and therefore the last words shall be intended that he took them with a fellonious intent for he did not only charge him in the general but in particular but the Court c. Hobert Hutton and Winch said that the Plantiff shall not have judgement because he failes of averment for he did not say expresly that he is a Thief but as arrant a Thief as any is in England and we are not to enquire after words except they are plain for if one say he was in Warwick Goal for stealing of a Horse adjudged not to be actionable and we may not presume that there are Thiefes in England and so judgement was arrested Adams against Ward INtra Trin. 21. Iac. Rot. 1845. note that it was said in an action upon the case between one Adams and Ward an Attorney that whereas one Hennings sued Adams in an action of debt and Adams retained Ward to be his Attorney and gave him warrant to plead the general issue and Ward suffered the judgement by nihil dicit that this was not any cause of an action except it was by Covin and for that if Adams had not laid in his declaration that this was by Covin he should not have recovered and at another day it was agreed that the Covin was not traversable by Plea but only in evidence at the Bar. Cook against Cook in Dower IN a writ of Dower between Cook and Cook they were at issue and at the day of nisi prius the Defendant pleaded that the demandant had entred and was seised and yet is seised since the last contrivance c. Octabis Sancti Hillarii ultimo quo die continetur usque ad hunc diem c. vicesimum diem Februariâ— which in verity was the day of the nisi prius and it was demurred upon this Plea for two causes the first was because he had not shewed that the Tenant was disseised for otherwise it shall not abate the action and to say that the demandant was seised was not sufficient for though this implies so much that the other was disseised yet here it ought to be expresly alledged but the Court spake nothing to this but Winch thought this to be very good according to Dyer 76. there the entrie is pleaded only and yet good but they resolved that the pleading of the continuance is not good for it is from one Term to another nisi prius justiciarii Venerint c. and he ought to have precisely shewed that but the question now was whether the demandant shall have judgement to have seisin or have apetite Cape only and Iustice Hutton said that it was adjudged in Sir Henry Browns case that if a man pleaded an insufficient Plea after the last continuance there the Plantiff shall have judgement as if the first issue had been tried for him and for this he cited the new book of entries fo 57â— and this may not be a judgement by default for they both appeared and therefore he shall have the same judgement as if the first issue had been tried for him and it was said in this case though the Defendant did demur generally yet this is very good The residue of Trinity Term in the 22. year of King James GOdsel an Attorney brought an action upon the case for words and he laid in his declaration that the Defendant spoke those words among other Master Godsel is a knave for he forged false deeds for which he was imprisoned at York and should have lost his ears and the jury found only these words Godsel is a forger of writings and deserves to lose his ears and Hendon moved in arrest of judgement that the words which are found are not the words in the declaration for the words were there that he forged deeds and it is only found to be writings and it was adjudged in this Court between Brown and Ellis that for saying an Attorney had forged writings no Action will lie for they are too general and besides it doth not at all appertain to him to make writings and so for Nowels Case he is Cooped up for forging of writings and it was adjudged not to be actionable and so to say he is a forger of writings by which he had cozned fatherless Children the words are not actionable because he did not say Deeds and upon this motion and reason the judgement in this case was arrested This case is Entred Hillarie the 21. Jac. Roll. 550. Sir George Trenchard against Peter Hoskins TRenchard brought an Action of Covenant against Peter Hoskins and declared upon an indenture bearing date the 19th of September 44. of Eliz. made between Iohn Hoskins father of the Defendant and the Defendant on the one part and the Plantiff on the other parte by which they bargained and sold certain lands to the
years then this is void by resignation and so is the case of Packhurst that when he resignes during the years of the Commendam the Patron shall have that and not the King and so also my opinion is clear that if he had died within the 6. years limitted by the Commendam that the King shall not have that for then it is void by death and not by the assumption of the Bishoprick which book proves directly that a Commendam may be aswel for years as for life but yet I do not hold that upon those temporary Commendams if the Bishop continued Parson during the years and made no Act to impeach that then is a void cause S. the assumption of the Bishoprick and then when that is determined the supension is determined and it is void by the original cause S. by the assumption of the Bishoprick and this Commendam doth not turn the second or first Patron to any prejudice for the incumbent is still in by the presentation of the Patron and the determination of the Commendam is not any cause of the avoidance of the benefice but this is quasi non causa which is causa stolida as the Logicians do term it but in this case the assumption is the cause of the Cession and it is like to the case of 25. Ed. 3. 47. where the King brought a quare Impedit against the Arch-Bishop of York for a Prebendary vide the case and ruled in that case that the confirmation of the King had not taken away his title to present and the reason was because the confirmation had not filled the Church but continued that full which was full before and here this temporarie Commendam may not restrain the King to present afterwards for this is not a presentation and therefore may not take away the title of the King and here the Plantiff hath not well expressed it for he hath not shewed in this Court that the presentation of the King was lawful neither that Chardon held that by vertue of the Commendam for all the 6. years but only that the Church became void by the Laws of England and that is not sufficient and then if all before were for the Plantiff yet the question is whether he hath lost his turn and I think that he hath omnis argumentatio est à notoribus and the first is better known then the second and the second may not be the first and there when the devise gave him the first it is idle to say that he shall have the second for that departs from the meaning of the words and in every grant the law implies quantum in se est and no man may say that the devisor did intend to warrant that from antient Titles and so the Lord Hobert concluded his argument and said his opinion was that the Plantiff shall be barred and judgement was commanded to be entred accordingly Mich. 22. Jac. C.P. Michaelmas Term in the two and twentieth year of King James in the Common Pleas. DAvenport moved for the amendment of a Record where a recovery was suffered of lands in Sutton in the Countie of York and the indenture of bargain and sale was by the right name and the indenture of uses by the right name but the writ of entrie was of the Mannor of Sulton and upon the examination of the parties to be recovery that the recovery was to no other uses then is expressed and mentioned in the said indenture this was to be amended Sheis against Sir Francis Glover SHeis brought an action upon the case against Sir Francis Glover and shewed for the ground of his action that where one Harcourt was bound to the Plantiff in a Recognizance c. upon which the Plantiff took forth an elegit and the Defendant being the Sheriff of the Countie took an inquisition upon that upon which it was extended but he refused to deliver this to the Plantiff but yet he returned that he had delivered that and upon that he brought his Action and upon not guiltie pleaded it was found for the Plantiff and now it was moved in arrest of judgement by Serjeant Hendon and the reason he shewed was because he laid his action in an improper Countie for though the return was in Middlesex where the Action was brought yet because the land lies in Oxfordshire where the seisin ought to be delivered the place is Local and for that the Action ought to be brought there and now Serjeant Breamston argued that the Action was well brought in Middlesex for this being but a personal thing he may bring that in either of the Counties as 14. Ed. 4. 13. Ed. 4. 19. expresly in the point and to the second objection that had been made that an Averment may not be against the return of the Sheriff to that Breamston answered that in an other Action an Averment may be against the return of the Sheriff though not in the same Action as 5. Ed. 4. but it was agreed to have a new trial by the preservation of the Iustices for otherwise it seemed the opinion of the Court was that the Plantiff shall have judgement upon the reasons urged by Serjeant Breamston Mary Baker against Robert Baker an Infant in Dower MAry Baker brought a writ of Dower against Robert Baker an Infant who did appear by his Gardian and he pleaded that his father who was husband of the demandant was seised of a Messuage and of land in Socage and devised that to the demandant for her joynture in full satisfaction of all Dower and he shewed that after the death of his father the demandant did enter into the said Messuage and land and was seised of that by vertue of the devise and to that the demandant did replie by protestation that he did not devise and for plea confessed the seisin of the husband and her own entrie but she further shewed that the Infant who was then Tenant was but of the age of 14. years and that she entred as Gardian in Socage to the Infant and disagreed to accept of that by vertue of the devise and traversed the entire and the agreement and it was said by the Court that his bar is good though it had been more pregnant to have alledged that she entred virtute legationis praedictae and so was seised and after it was said that the Replication was very good without the traverse for this was not expresly set down but that was but meerly the consequence of the plea which in veritie was not traversable Hickman against Sir William Fish HIckman had judgement for 600. l. and 10. l. damages against Sir William Fish and he acknowledged satisfaction for 410. l. of the said debt and damages and after there was an agreement between them that if Sir William did not pay the residue by such a day that then it should be lawful for Hickman to take out execution against the said Fish without suing of any scire facias though it was after
pleads no award the Plantiff maintaines the award and the breach the Defendant rejoyned that before the time of the award they discharged the Arbitrators 75 Debt by a servant for wages in the debet and detinet and for 2 shirts in the detinet only good without shewing that it was according to the Statue and by several precipes in one writ 75 In Dower the Tenant pleads never seized to have Dower the husband having an estate but by disseizing which was avoided by entrie no Dower 77 In Debt two were bound for the appearance of annother and judgement against the debtor who upon the capias offers his body the Plantiff refuses the suerties are discharged but the Plantiff may take a Capias within the year but if he had come on the capias and had not Suerties and he refused him Quer. if he be not discharged 77 78 Dower of a reversion after a lease for years she shall have the rent and the Defendant pay no damages 80 Dower what judgement shall be given where the vouchee dieth whether absolute or conditional 81 88 Dower where the trial ought to be by witnesses and in what manner 82 Dower the Tenant pleads that the demandant had entred and disseized since the last continuance 90 Where the Demandant shall have judgement and where only a petit Cape 90 Dower against an Infant who pleads a devise to the demandant in satisfaction of Dower and entrie 100 E ERror lieth not for a judgement given in the Stanneries in Cornwal 8 If an Executor be nonsuit he shall pay no costs 10 Executor where he bringeth an action he ought to shew the Will otherwise if the issue be joyned 19 If the Debtor makes the Debtee Executor he may retain and plead fully administred 19 Execution what fees are due to the Sheriff where the debt exceeds 100. l. 21 22 Essoign in a Formedon after the Vouchee appeared 34 Escape against the Warden of the Fleet retaking upon fresh suit good after an action but not after issue joyned 35 Escheat where lands are given to a Monasterie and all the Monks die who shall have it the founders or the Lord of whom it is holden 38 Executor where he or a devisee shall have the Corn 51 If an Executor waste the goods of a Testator and dies intestate his Administrator shall be liable and by the Court 31 Ed. 3. Coo. 11. gives no remedy but against an immediate administrator 65 Estray whether the partie may fetter him or no 67 68 124 An Executor where compellable to plead a general issue and give the special matter in evidence 70 Executor may bring an action in the debet and detinet upon his own contract 80 Executor an action brought against him by Journeys accompts where good 82 Execution where the partie shall be discharged by supersedeas at the Courts discretion 100 101 Execution see purchase 112 F TEnant for life and he in remainder in tail Covenant to levie a fine Tenant for life dies if he in the remainder ought to do it 4 In a Formedon the Tenant pleads that at the day of the writ the Plantiff was seised of the moitie thereof not good 23 Fees where an action of the case lieth for them by a Sollicitor 53 54 G GEneral issue where it ought to be pleaded and where not 70 H HErriot whether it be due to the Lessee of part of the Mannor or to the lessee of the whole Mannor 46 47 57 I INformation for ingrossing a 100. Quarters of Corn and upon inquiry he is found guiltie of a 100. it is good for so much 5 In an idempnitate nominis the Plantiff prayed a superdeas to stay Execution Curia Advisari vult 6 Information for entertaining his apprentice without a Testimonial contrary to 5 Eliz. 25 Joynture the father makes a feofment to the use of himself for life the reversion to his son and his wife intail this is no Joynture though the father die in the life of the son so if it had been for years 33 Infant and Apprentice unto what Covenants lyable 63 64 Issue in a quare impedit is joyned the wife one of the Plantiffs dieth before the venire facias the writ doth not abate because it was a Chattle vested in her husband 73 Infant where he may declare uses upon a fine and what acts are by him void or voidable 104 Infant in a judgement against him where he shall be relieved by audita querela or error and whether against the Attorney who suffered it 114 K VVHere the King may seise without office and where not 9 Where an usurpation gaineth an advowson from the King 14 King where he hath title to present the incumbent being created a Bishop in Ireland and what act is a dispensation thereof and where a Commendam is well granted and the several kindes thereof 94 95 96 97 98 L A Lease of a rectorie excepting the Gleab void otherwise if parcel of the Gleab 23 A Lease for a year and so from year to year this is a Lease for 3. years and if the Lessee hold over Quer. what remedy for the rent 32 A Lease for years by him in remainder in tail if destroyed by a recoverie 41 42 43 In a lease to trie a title of several parcels he ought to enter into them all severally 50 M A Miss-trial is not aided by any Statute of Jeoffales 69 N NUsance by stopping the winde abated 3 Nusance for stopping a light abated 4 Notice to give bond where necessarie and where not 26 27 New Assignment if it be more large then the declaration it is good in Trespass but otherwise in an ejectione firme 65 Notice where ought to be taken and by whom 108 120 O ORdinary what power he hath to dispose after debts and legacies paid 11 An Obligation where good upon the Statute 23. H. 6. 20 21 50 51 P A Prescription to pay the Vicar a Buck in Summer and a Doa in Winter for a Park which becometh Disparked 144 Prescription to have land it self void 6 Prescription See Replevin A Prohibition to the Admiraltie lieth not after judgement given there 8 Protestation where good and where not 13 14 Prohibition where it lies to the Court of Audience for saying thou art a common and base Quean 14 15 Promise by a Lessee or a stranger to pay rent if an action he thereupon 15 A Presentation by the Lord Chancellor where it belongeth to the King is only voidable 19 Prohibition where it lies for a seat in the Church a difference between the Lord of the Mannor and another Person 19 A Protection from a Peer not good in a Capias utlagatum 24 A Prohibition where the parties agree in the modus but varie in the place of payment lieth not 33 A Prohibition awarded against one who sued in the Court of Audience Administrators for a Legacie as Executors 64 65 In a prohibition the Tenants of a Dean and Chapter alledge prescription for non-payment
secondly the Plantiff had not shewed himself the party agrieved because he had not shewed an ouster and before an ouster no audita querela lyes for the purchasor but otherwise for the heir as 17. assise 24. Hobert and Winch only present the liberate is an ouster of it self Empson against Bathrust EMpson against Bathrust in an action of debt upon an obligation of 23. l. the condition was to pay 20. l. and the Defendant pleaded the Statute of the 23. of H. 6. cap. 10. that no Sheriff may take an obligation by colour of his office in other manner or form then is there prescribed by the Statute and he shewed that a Statute of 200. l. was acknowledged to him the Defendant by I. S. and that this was extended by the Plantiff being sheriff and that it was agreed between one Charles Empson brother to the Plantiff and the under-sheriff before the liberate executed that the Defendant should enter into the said bond to the use of the Plantiff the Plantiff confessed this and pleaded the Statute verbatim where upon the Defendan demurred and Hendon argued for the Defendant and said there is 3 points in the case first when the sheriff doth take an obligation with penalty for money which is given to him for his fees which are due by the Statute of the 29. of Eliz. whether this be good within the Statute the second point is when the Sheriff extends the Statute and the conusee enters into bond for the payment of his fees after the extent and before the liberate returned whether this is good and thirdly where the Satute gives 12. d. in the pound for the first 100. l. and if that exceed then but 6. d. whether this shall be taken but only 6. d. in the pound for all that exceeds a hundred pound or whether he shall have 12. d. for the first 100. l. and 6. d. for the rest and if any of these 3. points be against the Plantiff he shall not have judgement And first Hendon argued that this bond with penalty is out of the Statute of the 29. Eliz. for first in our case the bond is void by the 23. H. 6. for it is taken to another and not to the Sheriff and besides the same Statute doth not extend to any obligation with penalty and then it never was the intent of the 29. of Eliz. that any other should be taken or after another manner and the Statute of the 23. H. 6. was made only to prevent the extortion of the Sheriffs and of their officers as may appear by a particular recital of the Statute and yet he agreed that by the equity of the same Statute he shall have 4. d. for every warrant as appears by the new book of entries and then he said if the Sheriff take other fees or in other manner it is extortion and for that by 21. H. 7. if he takes an obligation or covenant which tends to extortion the law will meet with that and he relyed much upon Manninghams case Com. 65. where it is said the Sheriff may take a bond with a great penalty for the appearance of the party but not for his fees by the Stat. of 23. H. 6. for that Stat. as to fees is not repealed by the 29. Eliz. and so he concluded this bond with penalty for his fees was extortion and void by 23. H. 6. which is not repealed by the 29. Eliz. and by consequence void for that Statute was not made to punish them but to prevent all extortion in them and this Statute is penued strictly to prevent any thing which had but any colour of extortion like to the Statute of the 13. of Eliz. cap. 8. against usury if any evasion be made by any indirect dealing to avoid this yet the Statute will meet with that as appeares in Claytons case and for that reason he concluded this bond with a penalty to be void But admitting the bond to be good the Sheriff had not taken that in due time for before the liberate there is no compleat execution but otherwise in the case of a Statute Merchant for there needs no liberate of it self see the books of entries 59. the difference agreed by which it is apparent that before the liberate there is no compleat execution and the words of the 29 of Eliz. are for the serving and the executing c. so that before execution the Sheriff shall have nothing for this word for implies a condition precedent as an annuity pro consilio impenso he ought to shew that he had given counsel and yet it is true that this Statute of the 29. Eliz. hath made a contract between the Sheriff and the party that hath execution and he may have his contract for it is a contract in law and so it was resolved but he shall not have that before execution as was holden Pasch 14. Iac. Rot. 5. 39. B. R. Pierpoint against Bowley that the Sheriff shall be bound to redeliver the fees to the party if it be not fully executed by which it is apparent that before execution no fees are due to the Sheriff and as to the third he argued that the Sheriff shall have only 6. d. in the pound when that exceeds a hundred pound for the intent of the Statute is to put that incertainty and not to make fractions but it will be objected the inconvenience that will ensue upon this construction for then the Sheriff shall have as much for the executing of 100. l. as for 200. l. to this he answered that this may well be for it is the words of the Statute and for authority in that point he cited the case of Fosset and the Sheriff of Nottingham Pasch 36. Eliz. Rot. 1301. where this very point came in question indeed no judgement was given in the case but the opinion of the Court was as he had argued and so he prayed judgement for the Defendant Bawtry Serjeant to the contrary and he argued briefly as to the first point that the obligation with penalty was taken for due fees for it is a due debt and then what reason is there that he shall not take an obligation for a due debt and as to the second point he argued that the bond was well taken before execution for the words of the Statute are that the Sheriff shall not take of any either directly or indirectly for that which he shall leavy or extend in execution c. and this word for implies a taking before or after 21. H. 7. saith that the prisoner shall be discharged paying his fees and this payment ought to be before discharge and the common law said that an hostler may retaine a horse for his meat in this case payment ought to be for his meat before the delivery of his horse and Coo. 5. Graies case there Popham said if a man had pot water by prescription paying 6. d. in this case he ought to pay before he hath the water for otherwise the
shall be given for the Plantiff and yet they agreed he might have demurred upon the declaration and that was good and also they held if that had been generally saepius requisitus c. it had not been good because the request is parcel of the promise and therefore ought to be precisely set down to be after the promise and the payment of the 52. l. but here they said for the time it is very well expressed by this word postea and there is not any defect but only in the place for postea implies that this was after the promise and payment of the money and Hobert said that all the points of the declaration quoad the substance are good only it fails in the place where the request was made and this varied by the issue and all the rest is sufficiently alledged to ascertain the Court that the promise is broken and Hutton said that in his opinion such a request ought to be given in evidence but Harvey said that though the request is parcel of the promise and that ought to be sufficiently alledged and so it was here so that the Court may give judgement of that and he said that postea requisitus had relation to the time of the promise and the payment of the money and judgement was given accordingly for the Plantiff in the said case Sir John Davis priviledge denied NOte that this day being the 26. of November Davis who was the Kings first and chief Serjeant came to the Bar and he offered to move the Court and they refused to heare him because his course was gone in his absence and he claimed his priviledge that the Kings Serjeant might move at any time but Iustice Hutton answered that 20. years agoe when he was made Serjeant there was no such custome or priviledge except they moved for the King and so said Iustice Winch also and he said that though of late time such favour had been given to them yet that was ex gratia Curiae and this was an evil custome especially now when the King had five Serjeants and he used to have but two and so they told him they would not allow of any such priviledge or prerogative neither would they hear him upon any such account and they said perchance of favour they might hear him Austin against Beadle AUstin brought an ejectione firme of lands against Beadle and declared of a lease made at Haylesham and the Defendant pleaded that Haylesham praedict ubi tenementa jacent is within the five Ports where the writ of the King rans not and so he pleaded to the jurisdiction of the Court and the other replied that the Town of Haylesham was within the Countie of Sussex absque hoc that it was within the five Ports and upon that the Defendant demurred and it was argued by Finch that the traverse was not good and he said that he ought to have traversed absque hoc quod villa de Haylesham ubi tenementa jacent is within the five Ports for the veritie was that it was part in the five Ports and part in the Countie of Suffex and the land lies in that part which is in the five Ports and for that he may not take issue upon that traverse for then it will be found against him and so he said it was held 50. Ed. 3. 5. that the Plantiff in trespass there in his declaration and replication he distinguished the part and so the Plantiff ought here but it was answered by the Councel of the other side and resolved also by the Court that the traverse is good and that the Bar is naught and if the Plantiff may not traverse in other manner and that the Defendant in his Bar he ought to have made his distinction and every plea which goes to the jurisdiction of the Court shall be taken most strong against him who pleads that and the traverse here ought to be to the Town and not to ubi which was idle for the law said as much and we do not imagine any fractions of Towns and so I conclude the Plantiff ought to have judgement Ashley against Collins IN a case between Ashley and Collins it was agreed clearly by the Court that if an infant made an obligation and after he being sued upon that an Attorney without warrant suffers a judgement by non sum informatus that this was no cause to grant an audita querela and upon the opinion of the Court the audita querela was quasht for it was said he shall have a writ of error if he were within age and if he was not then he shall have his writ of disceit against the Attorney Anthony Gibson against Edward Ferrers ANthony Gibson brought an Action of debt of 1000. l. upon an obligation made the 11th of December 21. Iac. and the Defendant came and demanded Oyer of the condition and the condition recited that whereas there were differences between the said parties concerning some accompts now they had for the final determination of them they had put themselves upon the award and arbitrement of Gerrard de Malines to be made before the last day of December next if therefore the said Edward Ferrers his Executors c. shall and do for his and their parts perform stand to and keep the said Arbitrement of the said Gerrard de malines that then c. quibus lectis et auditis idem Edwardus dicit quod praedictus Antonius Actionem suam versus cum habere non debet because he said that the said Gerrard de malines did not make any Arbitrement and the other replied and shewed an Arbitrement which he did award to Gibson interested to be paid for money among divers other things and upon that the Defendant did demur in law and it was argued by Bridgman Serjeant for the Defendant that Arbitrement is void for it is for the payment of interest and I hold that Arbitrators who are judges indifferently chosen may not award interest to be paid for that is an unlawful thing for all the Statutes which have been made concerning usury have branded that to be unlawful and those differences which are submitted ought to be intended to be lawful differences and he cited a case in the Kings Bench where an action upon the case was brought upon a promise made upon consideration that if the Defendant will forbear the principal together with the interest that he will pay that at a certain day and it was adjudged that the action lies because there was no certain interest set down for he said if the certaintie of the interest had been set down the consideration had not been good and then if this thing be so unlawful that a man may not binde himself by his promise then á fortiori Arbitrators may not award that and for another reason it is void because that interest is awarded for the time after the submission was made and so I pray that the Plantiff may be barred Hendon contrary I hold the award