Language may easily be learned in a short time by converse with Welsh-men And the Statute of 1 Eliz. which establisheth the Book of Common Prayer ordaineth that the said Book of Common Prayer shall be put in use in all the Parish Churches of Eng. and Wa. without any provision there for the translation of the said Book into the Welsh Language But afterwards by a private Act it was done by which it is enacted That the Bishop of Wales should procure the Epistles and Gospels to be translated and read in the Welsh Language which matter our Presentee might do by a Curate well enough And he conceived that by divers Statutes Aliens by the Common Law were capable of Benefices See the Statute of 7 H 2. Cap. 12. 1 H 5 Cap. 7. 14 H 6. Cap. 6. and before the said last Statute Irish-men were capable of Benefices Gawdy Serjeant contrary and he confessed that at the Common Law the defects aforesaid were not any causes of refusal but now by reason of a private Act made 5 Eliz. Entituled An Act made for the translating of the Bible and of the Divine Service into the Welsh tongue the same defect is become a good cause of refusal in which Act the mischief is recited viz. That the Inhabitants of Wales did not understand the Language of England therefore it was Enacted That the Bishops of Wales should procure so many of the Bibles and Books of Common Prayer to be imprinted in the Welsh Language as there are Parishes and Cathedral Churches in Wales and so upon this Statute this imperfection is become a good cause of refusal And he likened it to the Case of Coparceners and Ioynt-tenants Ante 28. who now because that by the Statute of 32 H 8. Ioynt-tenants are equally capable to make partition as Coparceners were by the Common Law Now Partition betwixt Ioynt-tenants within age is as strong as betwixt Parceners within age But as to that point it was said by the Lord Anderson that it is very true that upon the said Statute the want of the Welsh Language in the Presentee is now become a good cause of refusal but because the said Act being a private Act hath not been pleaded by the Defendant we ought not to give our Iudgment according to that Act but according to the Common Law. Another matter was moved because here appeareth no sufficient notice given to the Patron after the said Refusal for the Plaintiff did present the thirtenth of August the Church voyding the fourteenth of March before the nine and twentieth of August the six months expired the fourth of September the Defendant gave notice to the Patron of the refusal and the fourteenth of September was the Collation and it was said by the Lord Anderson that it appeareth here that there are two and twenty days between the Presentment and the Notice which is too large a delay And the Defendant hath not shewed in his Plea any cause for the justifying or excuse of it and therefore upon his own shewing we adjudge him to be a disturber See 14 H. 7. 22. 15 H. 7. 6. and note by Periam it was adjudged in the Case of Mollineux if the Patron present and the Ordinary doth refuse he ought to give notice to the person of the Patron thereof if he be resident within the County and if not at the Church it self which is void XL. Mich. 27 28 Eliz. At Serjeants Inn. THis Case was referred by the Lords of Council to the Iustices for their opinions I.S. by Indenture between the Queen of the one part and himself of the other part reciting that where he is indebted to the Queen in eight hundred pounds to be paid in form following twenty pounds at every Feast of St. Michael until the whole sum aforesaid be paid covenanted and granted with the said Queen to convey unto the Lord Treasurer and Barons of the Exchequer and to their Heirs certain Lands to the uses following viz. to the use of the said I.S. and his Heirs until such time as the said I. S. his Heirs Executors or Administrators shall make default in payment of any of the said sums and after such default to the use of the said Queen her Heirs and Successors until her Heirs and Successors shall have received of the issues and profits thereof such sums of money parcel of the said debt as shall be then behind and upaid and after the said debt so paid and received then to the use of the said I.S. and his Heirs for ever I.S. levyeth a Fine of the said Land to the said Lord Treasurer and the Barons to the uses aforesaid and afterwards being seised accordingly by deed indented and enrolled bargains and sels the said Land to a stranger default of payment is made the Queen seizeth and granteth it over to one and his Heirs quousque the money be paid and after the money is paid And upon conference of the Iudges amongst themselves at Serjeants Inn they were of opinion that now I.S. against his Indenture of bargain and sale should have his Lands again for at the time of the bargain and sale he had an estate in Fee determinable upon a default of payment ut supra Post 93. 3 Len. 43. Owen Rep. 6. 1 Inst 49. 2 which accrued to him by the first Indenture and the Fine which estate only passed by the said Indenture of bargain and sale and not the new estate which is accrued to him by the latter limitation after the debt paid for that was not in esse at the time of the bargain and sale but if the conveyance by bargain and sale had been by Feoffment or Fine then it had been otherwise for by such conveyance all uses and possibilities had been carried by reason of the forcible operation of it XLI Taylor and Moores Case Hill. 28 Eliz. In the Kings Bench. TAylor brought Debt upon an Obligation against Moore Debt Error who pleaded in Bar upon which the Plaintiff did demurre and the Court awarded the Plea in Bar good upon which Iudgment the Plaintiff brought a Writ of Error and assigned Error in this that the Bar upon which he had demurred as insufficient was adjudged good Vpon which now in this Writ of Error the Bar was awarded insufficient and therefore the Iudgment reversed But the Court was in a doubt what Iudgment shall be given in the Case viz. whether the Plaintiff shall recover his debt and damages as if he had recovered in the first Action or that he shall be restored to his Action only c. And Wray cited the Case in 8 E. 4. 8. and the Case of Attaint 18 E. 4. 9. And at last it was awarded that the Plaintiff should recover his debt and damages See to that purpose 33 H 6. 31. H 7. 12 20. 7. Eliz. Dyer 235. XLII Higham and Harewoods Case Hill. 28. Eliz. In the Kings Bench. More Rep. 221. 3 Len. 132. IN an Ejectione firmae the Case was
bargain for cloth as it is in this Case the same doth not maintain the Information So if the Information be granted upon usurious contract by way of mortgage and giveth in Evidence an usurious loan ut supra But if the Information had been conceived generally upon an usurious agreement and giveth in Evidence a loan the same is good enough for every loan is an agreement Manwood There cannot be any loan without bargain nor any forbearing without bargain for he contracts or bargains to do it viz. to lend or forbear Bargain of forbearing is where the first day of payment is not kept and the parties have agreed for a further day for payment c. And it appeareth in this Case that it was a bargain to forbear a sum of mony which should have been paid before And the Information here is upon a bargain by way of loan where was a bargain for forbearing Fuller this word Bargain in the Statute cannot be intended a bargain for wares or such things and so distinct from the other two things c. If in Information upon loan an usurious contract had been given in Evidence that would not maintain the Information And it was moved in this Case if the time of the loan or forbearance of the money shall be accounted according to eight twenty days to every month or by the months in the Kalender viz. January February c. And it seemed to some according to the days as in case of the Statute of 23 Eliz. of Recusants and others conceived contrary in both Cases And Fuller said That in the Case of policy of Assurance made to warrant a Ship one was bound to warrant a Ship for twelve months the truth was she did not perish within the time of the twelve months being accounted according to eight and twenty days but being accounted by the Kalender as January Feb. c. it perished c. and it was said and holden that he had not forfeited his Bond. Gent Baron If I lend one a hundred pounds without any contract for Interest and afterwards at the end of year he gives me twenty pounds for the loan thereof the same is within the Statute for my acceptance makes the offence without any bargain or contract And by Clarke Baron the place where the Defendant accepted excessive Interest ought to be shewed in the Information but not the place where the contract for the loan or forbearance was made for the same is not needful See the Case betwixt Stradling and Morgan Plowd 200. for the setting down of the place in the Declaration where the Extortion was committed The Information here is by way of corrupt bargain and loan The Defendant took at Dertford such a sum where the taking is layed apud Dertford but no place of the corrupt bargain or of the loan And by Gent. If I lend to Beesie for a year and afterwards he takes further forbearance of another year beyond the rate the same is within the Statute but in all Cases the place where the corrupt bargain was made ought to be certainly alledged Manwood Baron the Information is not good for the incertainty of the place where the corrupt bargain was made and although there are many Presidents on the Informes part it is not to purpose for they were admitted without exception and then they passed sub silentio and so of no force There are three things or rather degrees of offences within the Statute In usury within the Statute there ought to be corrupt loan cheivisance or shift 1. corruption 2. he ought to take more than eight pound for one hundred pounds 3. it ought to be for lending or forbearing There was a Case in this Court in the time of this Queen that the Defendant had taken more than ten pounds in the hundred pounds but in the Information no corruption in the bargain was alledged and therefore Iudgment was given against the Informer But in the Case at Bar corruption is set forth in facto and therefore as to that the Information is good enough As unto the forbearing giving of days of payment the same is alledged in the Information but not according to the Statute for the Statute is in the disjunctive but the Information is in the copulative here in our Case the issue is Not guilty under which general issue all the points of the Statute are included and ought to be tried as unto the corruption the same is not sufficiently laid for no place is assigned where the corrupt bargain was made ergo no visne for it to be tried ergo no trial can be ergo no issue for it ergo this point of the Statute doth not come in issue nor can it be tried upon the general issue Not guilty Also he held that all the Offence ought to be within the year for if one make a corrupt bargain for this year and ten years after he takes excessive usury the same is not within the Statute to inform upon it And in truth there is no such offence without corrupt bargain so as he conceived that the word Lending is a strange word but where the Statute is forbearing or giving day of payment in the Information it is giving and forbearing in the copulative that is good enough for the one word enforceth the other and is not double Also the Information hath not shewed whose money it is and therefore it is not good And afterwards Iudgment was given against the Informer and a Writ of Error thereupon brought in the Erchequer Chamber And it was argued by Popham Attorney General that Iudgment ought to have been given for the Queen and the Informer for the shewing of the place where the corrupt bargain was made needs not to be alledged in the Information for the offence punishable by the Statute is the receipt of excessive usury and not the contract And it was the Case of one Bird 20 Eliz. where the Plaintiff shewed the place of the Receipt and not of the contract and yet had Iudgment for the Queen without any exception to it before Iudgment or Error after for the contract is but inducement to the receipt and it shall be tried where the taking was therefore it is not necessary to shew the place of the bargain And it was adjorned CXXVI Saliard and Everats Case Mich. 30 Eliz. In the Exchequer THomas Saliard and Hen. Everat being Recusants convicted Recusants Owen Rep. 37. and not having paid twenty pounds for every month a Commission issued forth to enquire of their Goods and Lands in the County of Suffolk to levy thereon the Debt and penalty due to the Queen And now the Commission being returned the parties appeared and by their Council shewed that some of their Lands returned in the Commission are Copy-hold and prayed as to those Manus Dominae Reginae amoveantur and that upon the Statute of 29 Eliz. cap 5. concerning Recusants viz. that upon default of payment of penalties c.
as a Will but as an Executory Devise Wray It is not a conditional Estate in Fee but an Estate tail Coke They who would prove the Custom to entail Copyhold Land within a Manor it is not sufficient to shew Copies of Grants to persons and the Heirs of their bodies Copyhold Estate but they ought to shew that surrenders made by such persons have been enjoyed by reason of such matter VVray That is not so for Customary Lands may be granted in tail and yet no surrenders have been made within time of memory CCXLV Matthew and Hassals Case Mich. 31 Eliz. In the Kings Bench. IN an Ejectione firmae betwixt Matthew and Hassal the Plaintiff had Iudgment to recover and the Defendant brought a Writ of Error Error 1 Cro. 144. and assigned Error in this that the Iudgment was entred Quod querens recuperet possessionem c. where it should be Terminum vent in ten praedict See 9 Eliz. Dyer 258. Coke contrary That the Iudgment is good enough for the Writ of Execution upon it is Habere facias possessionem and in a real Action the Writ is Quod perens recuperet sesinam and not terram And afterwards Iudgment was affirmed CCXLVI Tempest and Mallets Case Hill. 31 Eliz. In the Kings Bench. IN an Action of Trespass by Tempest against Mallet Iudgment was given and Eror brought and assigned for Error 1 Cro. 153 145. that whereas the Action was brought against four one of them died Mesne betwixt the Award of the Nisi prius and the Inquest taken And it was said on the part of the Defendant in the Writ of Error which was entred upon the Record that the Plaintiff shewed unto the Court the death of one of the Defendants and prayed Iudgment against the others See 4 H. 7. 2 Eliz. 175. And there is a difference where in an Action of Trespass there is but one Defendant and where many Another Error was assigned the Defendant Obtulit se per Higgins Attornat suum without shewing his Christian Name as John or VVilliam for Higgins only without the Christian Name is not any Name for it is but an addition to shew which John or VVilliam Coke The same is helped by the Statute of 32 H. 8. cap. 30. Where it is enacted that after Verdict Iudgment shall be given notwithstanding the lack of Warrant of Attorney of the party against whom the Issue shall be tried or any default or negligence of any the parties their Counsellors or Attorneys and of necessity this default here in the Christian Name ought to be the fault of one of them See also 18 Eliz. Cap. 14. for want of any Warrant of Attorney c. Glanvil The Statute provides for default of Warrant of Attorney c. Then Coke To what end was the Statute of 18 Eliz. made for the Statute of 32 H. 8. provides for defects of Warrants of Attorney Glanvil The first Statutes for Warrants of Attorneys of such persons against whom the Issue was tryed but the later Stat. is general Another Error was assigned Quod defendens Capiatur where the Offence so the Fine is pardoned by Parliament and therefore the entry of the Iudgment ought to be Et de fine nihil quia perdonatur Coke The Iudgment is well enough for in every general Pardon some persons are excepted it doth not appear if the Defendant here were one of them and then the Fine is not pardoned 1 Cro. 768. 778. 3 Cro. 22. for the Court cannot take notice of that as it was holden in Serjeant Harris Case but if the Defendant be charged with the Fine then he ought to plead the pardon and to shew that he was not any of the persons excepted And afterwards at another day the Defendant did alledge that there was a Warrant of Attorney in the Common Pleas. And also it appeareth upon Record that the Defendant did appear upon the Supersedeas by Attorney who had his full Name and therefore prayed a Certiorari de novo to certifie the same matter vide 9 E. 4. 32. VVray A Case here greatly debated betwixt the Lord Norris and Braybrook In nullo est erratum and upon Advice such a Writ of Certiorari was granted after the Plaintiff had pleaded In nullo est erratum for this Plea in nullo est erratum goes but to that which is contained within the body of the Record and not unto collateral matter scil Warrant of Attorneys And afterwards the Writ of Error was allowed and upon the day of return thereof it appeared upon the Record of Supersedeas that the Defendant did appear by such a one his Attorney But it was said by the Court that there ought to be two appearances the one upon the Supersedeas and the other when the Plaintiff declares See as to the name of the Attorney Tirrells Case 1 Mar. Dyer 93. CCXLVII. Palmer and Knowllis Case Hill. 31. Eliz. In the Kings Bench. 1 Cro. 160. PAlmer recovered Debt against Knowllis and sued Execution by Elegit upon which the Sheriff returned that he had made Execution of the lands of the Defendant by the Oath of twelve men but he could not deliver it to the party Execution for it is extended to another upon a Statute upon which the Plaintiff sued a Capias ad satisfaciendum And now came the Defendant by his Counsel and moved that after Elegit returned the Plaintiff could not resort to the Execution by Capias and therefore prayed a Supersedeas Caplas after Elegit because the Capias erronice emanavit But the whole Court was clear to the contrary for upon Nihil returned upon Elegit the Plaintiff shall have a Capias 17 E. 4. 5. See 21 H. 7. 19. A man shall have a Capias after a Fieri facias or Elegit 34 H. 6. 20. and here the special return doth amount to as much as if the Sheriff had returned Nihil Also the Statute of West 2. which giveth the Elegit is not in the Negative and therefore it shall not take away the Execution which was at the Common Law. And here is no Execution returned for after the former extent ended he ought to have a new Elegit which Wray granted And afterwards the said Knowllis was taken by force of the Capias ad satisfaciend and came into Court in the Custody of the Sheriff and the Case was opened and in the whole appeared to be worthy of favour but by the Law he could not be helped and although he instantly prayed a Supersedeas yet the same was denied unto him CCXLVIII The Church-wardens of Fetherstones Case Hill. 31 Eliz. In the Common Pleas. AN Action of Trespass was brought by the Church-wardens of Fetherstone in the County of Norfolk and declared Church-wardens 1 Cro. 145. 179. That the Defendant took out of the said Church a Bell and declared that the Trespass was done 20 Eliz. And it was found for the Plaintiffs And now it was moved by
covenanteth and granteth to the others eorum utrique to make assurance and there it was holden that the word uterque doth amount to quilibet Wray Admit it shall be so taken in a Bond yet it shall not be so taken in an Indictment As if a man make a Lease for years rendring Rent payable at the day of St. Martin although there be two days of St. Martin in the year yet the reservation is good and the Rent shall be taken payable at the most usual day of St. Martin there in the Country But in an Indictment if an offence he laid to be done on St. Martins day without shewing which in certain it is not good Fenner The word uterque is matter of surplusage and therefore shall not hurt the Indictment CCCXXVII Blunt and Whiteacres Case Mich. 32 33 Eliz. In the Kings Bench. Error A Writ of Error was brought upon a Iudgment given in the Common Pleas in a Replevin where the Defendant did avow as Fermor of the Manor of F. in the County of Berks to St. Johns Colledge in Oxford and laid a Prescription there in him and his Fermors to distrain for all Amercements in the Court of the said Manor Amercement and shewed that the Plaintiff in the Replevin was presented by the Homage for not repairing of a House being a customary Tenant of the said Manor according to a pain imposed upon him at a former Court for which he was amerced by the Steward to ten shillings and was also presented for not ringing of his Swine for which he was amerced three shillings four pence and for these Amercements he distrained And upon Nihil dicit Iudgment was given for the Avowant to have return upon which a Writ of Error was brought And Error assigned in that there is not any Prescription laid in the Avowry for the Lord to amerce the Tenants and of common Right he cannot do it See 48 E. 3. And such Amercement is Extortion for the Lord cannot be his own Iudge and therefore he ought to enable himself to distrain by Prescription Another Error because the Fine is laid to be assessed by the Steward 1 Cro. 748. 886. whereas by the Law it ought to be by the Suitors for they are Iudges and not the Steward Another because that in the Avowry it is set down quod praesentatum fuit that he had not repaired a certain House but he doth not say in facto categorice c. that he had not repaired for that is matter traversable 4. Here is no offence for a Copy-holder is not bound to repair by the Common Law if it be not by Prescription for he cannot have House-boot upon the Land as a Termor may if it be not alledged a custom Fenner The Steward may assess Fines for a contempt but not Amercements if not by Prescription Gawdy The Lord of a Mannor cannot assess Amercements for a Trespass done to himself upon his own Lands but otherwise it is of a common Trespass or a Trespass done in the Land of another but for the Distress he ought to prescribe and the Iudgment was reversed CCCXXVIII Page and Fawcets Case Pasch 29 Eliz. Rot. 121. In the Kings Bench. Error 3 Cro. 227. ERror was brought upon a Iudgment given in Lyn where by the Record it appeareth that they prescribe to hold Plea every Wednesday and it appeared upon the said Record that the Court was holden 16 Feb. 26 Eliz. which was dies Dominicus and that was not assigned for Error in the Record but after in Nullo est erratum pleaded it was assigned at the Bar And Almanacks were shewed to the Court in proof of it and it was holden clearly to be Error but the doubt was if it should be tried by Iury or by the Almanacks and it was said that the Iustices might judicially take notice of Almanacks and be informed by them and that was the Case of one Robert in the time of the Lord Catline and by Coke so was the Case betwixt Galery and Bunbury and afterwards the Iudgment was reversed CCCXXIX Geofries and Coites Case Trin. 33 Eliz. In the Kings Bench. IT was found by special Verdict 1 Cro. 25â— that one Avice Trivilian was Tenant for life the Remainder to her Son in tail the Remainder over Tenant for life and he in the Remainder in tail make a Lease for life the Remainder for life rendring Rent Tenant for life dieth he in the Remainder dieth and his Son accepteth of the Rent of the Tenant for life in possession who dieth The Issue in tail entreth he in the Remainder for life entreth c. And it was conceived that this acceptance of the Rent of the Lessee for life doth affirm also the Remainder See Litt. Sect. 521. and such was the opinion of Gawdy and Fenner Iustices CCCXXX The Lord Mordant and Vaux Case Pasch 33 Eliz. In the Kings Bench. THe Lord Mordant brought an Action of Trespass against George Vaux and declared of a Trespass done in quodam loco 1 Inst 225. 1 Cro. 269. called N. parcel of the Manor of Hawarden The Case was William Lord Vaux was seised thereof and thereof levied a Fine to the use of the Lord Vaux which now is for life and after his decease to the use of Ann and Muriel Daughters of the Lord Vaux and their Assigns until Ambrose Vaux should return from the parts beyond the Seas and should come to the Age of 21 years or dye if they should so long live And after the return of Ambrose from beyond the Seas and the age of 21 years or death whichsoever of the said days or times should first happen to the use of the said Ambrose and the Heirs of his body begotten with divers Remainders over Ambrose returned Plow Com. 376. 2. Ante 18. 76. and 31 Eliz. before he came of full age for it is not pleaded that he was of full age levied a Fine to the use of George Vaux the Defendant in tail with divers Remainders over Afterwards the Lord Vaux being Tenant for life enfeoffed the Lord Mordant in Fee upon whom the said George Vaux entred for a forfeiture upon which Entry the Lord Mordant brought the Action Buck argued for the Plaintiff Amb. Vaux had nothing in the Lands in question until his return from beyond the Seas and his full age and the estate doth not begin until both be past and he said that no use did arise to Ambrose until the time incurred for the time of the beginning is uncertain and upon a Contingent as 13 Eliz. Dyer 301. A. makes a Feoffment in fee to the use of himself for life and after to the use of B. who he intendeth to marry until the Issue which he shall beget on her shall be of the age of 21 years and after the Issue shall come of such age then unto the use of the said B. during her Widowhood the Husband dieth without Issue the Wife entreth and her
Surrenders from the said Husband and Wife the Remainder over to the said John Buck in Fee upon condition to pay a certain sum of money c. It was moved That the Surrender is void and without warrant for the warrant was ad capiendum unum fursum redditionem and here are two several Surrenders and so the warrant is not pursued and then the Surrender is void Another matter was because the Remainder to John Buck by the words of the Deputation was absolute and without Condition and now in the Execution of it it is conditional so as this conditional estate is not warranted by the Deputation But the whole Court was clear of a contrary opinion in both the points and that all the proceedings were sufficient and well warranted by the Deputation Another matter was objected because that this Surrender and regrant is entred in the Roll of a Court dated to be holden the second of Maij and the Letter of Deputation bears date the third of June after But as to that The Court was clear of opinion that the mis-entry of the date of the Court should not prejudice the party for this Entry is not matter of Record but is but an Escape and if the parties had been at Issue upon the time of the Surrender made or of the Court holden the same should not be tryed by the Rolls of the Manor but by the Country and the party might give in Evidence the truth of the matter and should not be bound by the Roll and according to this Resolution of the Court Iudgment was given CCCXCVI Mich. 26 27. Eliz. In the Kings Bench. Fines levied THe Case was Tenant in tail leased for sixty years and afterwards levyed a Fine to Lee and Loveday Sur Conusans de droit come ceo c. with a Render to him and his Heirs in Fee And upon a Scire facias against the Conusees supposing the Lands to be ancient Demesn the Defendants made default for which the Fine was avoided and now the Issue in tail entred upon the Lessee for years and he brought an Ejectione firmae Sene facias â— Len. 117. and it was found That the Land was Frank Fee And all the question was If by the Reversal of the Fine by Writ of Disceit without suing forth a Scire facias against the Ter-Tenant should bind him or should be void only against the Conusee and not against the Lessee Atkin. It shall not bind the Lessee for years For a Fine may bind in part and in part not as bind one of the Conusees and not the other 7 H. 4. 111. A Fine levied of Lands part ancient Demesn and part at the common Law the same was by Writ of Disceit reversed in part as to the Land in ancient Demesn and stood in force for the residue 8 H. 4. 136. And there by award of the Court issued forth a Scire facias against the Ter-Tenants and the Iustices would not adnul the Fine without a certificate that the Land was Ancient Demesn notwithstanding that the Defendant had acknowledged it to be so but as to them who were parties to the Fine the Fine is become void as to the said parties and and he who had the Land before might enter i. And he said it should be a great inconvenience if no Scire facias or other Proces should be awarded against the Ter-tenant for he should be dispossessed and disinherited without privity or notice of it where upon a Scire facias he might plead matter of discharge in Bar of the Writ of Disceit as a Release c. which see Fitz. N.B. 98. And so although the Fine be reversed yet he might retain the Land and he resembled this case to the case of 2 H. 4. 16 17. In a Contra formam collationis against an Abbot a Scire facias shall issue forth against the Feoffee and so by the same reason here And for the principal matter he said That the Fine should be avoided against the parties but not against the Lessee Kingsmill The Scire facias brought against the parties only is good enough for they were parties to the Disceit and not the Ter-tenants It was adjorned CCCXCVII Mich. 26 27. Eliz. In the Kings Bench. Error Appearance by Attorney Dyer 135. b. A Writ of Error was brought upon a Iudgment in a Quid juris clamat It was assigned for Error that the Tenant did appear by Attorney whereas he ought not but in person because he is to do an Act in proper person if it be not in case of necessity where the Attorney may be received by the Kings Writ or plead matter in Bar of the Attornment as if he claim Fee c. or other peremptory matter after which Plea pleaded he may make Attorney 48 E. 3. 24. 7 H. 6. 69. 2â— E. 3. 48. 1 H. 7. 27. Another Error was because it is not shewed in the Quid juris clamat what estate the Tenant hath Another matter was If the Grantee of the estate of Tenant in tail after possibility of issue extinct shall be driven to attorn â— Len â—â— and it was said he should not for the priviledge doth pass with the grant See 43 E. 3. 1. Tenant in tail after possibility of issue extinct shall not be driven to attorn 46 E. 3. 13. 27. Ergo neither his Grantee Williams contrary As to the appearance of the Tenant by Attorney because the same is admitted by the Court and the Plaintiff the same is not Error which see 1 H. 7. 27. by Brian and Conisby 32 H. 6. 22. And he said That the Grantee should be driven to attorn for no other person can have the estate of the Tenant in tail after possibility of issue extinct but the party himself therefore not the priviledge and although he himself be dispunishable of Wast yet his Grantee shall not have such priviledge As if Tenant in Dower or by the curtesie grant over their estates the Heir shall have Wast against the Grantors for Wast done by the Grantee but if the heir granteth over his Reversion then Wast shall be brought against the Grantees See Fitz. N.B. 56. And it two Coparceners be and the one taketh a Husband and dieth the Husband being Tenant by the curtesie a Writ of Partition lyeth against him but if he granteth over his estate no Writ of Partition lyeth against the Grantee 27 H. 6. Stathams Aid If the Grantee of Tenant after possibility shall attâ—rn Tenant in tail after possibility of issue extinct shall not have Aid but his Grantee shall have Aid Clark The Grantee of Tenant in tail shall not be driven to attorn If Tenant in tail grant totum statum suum the Grantee is dispunishaple of wast so if his Grantee grant it over his Grantee is also dispunishable c. It was adjorned CCCXVIII Gravenor and Masseys Case Mich 26 27. Eliz. In the Kings Bench. GRavenor brought a Writ of Error upon a common
Williams and Powell for that the said Williams had before brought a Quare Impedit against the said Blower and the Bishop Dyer 353. b. 354. and had recovered against them by default whereupon Williams had a Writ to the Metropolitan to admit his Clerk and in the Writ of Disceit Iudgment was given for the Plaintiffs For it was found That the Summons was the Friday to appear the Tuesday after and so an insufficient Summons and in that Writ of Disceit the Defendants Williams and Powell pleaded That Blower the Incumbent was deprived of his Benefice in the Court of Audience which sentence was affirmed upon Appeal before the Delegates and notwithstanding that Plea Iudgment was given against Williams and Powell Defendants in the said Writ of Disceit And upon that Iudgment this Writ of Error is brought Beaumont assigned four Errors First 1 Cro. 65. because the Bishop and Blower joyned in the Writ of Disceit for their Rights are several 12 E. 4. 6. Two cannot joyn in an Action of Trespass upon a Battery done at one time to them So if one distrain at one and the same time the several Goods of divers persons they according to their several properties shall have several Replevins 12 H. 7. 7. By Wood. So if Lands be given to two and to the Heirs of one and they lose by default in a Praecipe brought against them they shall have several Writs the one Quod ei deforceat Joynder in Action the other a Writ of Right 46 E. 3. 21. A Fine levied to one for life the Remainder to two Husbands and their Wives in tail they have Issue and die Tenant for life dieth the Issues of the Husbands and Wives shall have several Scire facias's to execute the Fine by reason of their several Rights Lands in ancient Demesn holden severally of several Lords are conveyed by Fine the Lords cannot joyn in a Writ of Disceit but they ought to have several Writs so here the Plaintiffs in this Writ of Disceit and the Bishop claims nothing but as ordinary and he loseth nothing in the Quare Impedit and therefore by the Writ of Disceit he shall be restored to nothing The second Error was Because the Bar of the Defendants in the Writ of Disceit was good i. the deprivation c. and the Court adjudged it not good for the Clerk being deprived he could not enjoy the Benefice if the Iudgment in the Qu. Impedit had been reversed Regulâ— Post 330. and where a man cannot have the effect of his suit it is in vain to bring any Action Lessee for the life of another loseth by erronious Iudgment Cestuy que use dieth his Writ of Error is gone for if the Iudgment be reversed he cannot be restored to the Land for the estate is determined 31 E. 3. Incumbent 6. The King brought a Quare Impedit against the Incumbent and the Bishop the Bishop claimed nothing but as Ordinary The Incumbent traversed the title of the King against which it was replyed for the King That the Incumbent had resigned pendant the Writ so as now he could not plead any thing against the title of the King for he had not possession and so could not counterplead the possession of the King. And here in our Case by this deprivation the Incumbent is disabled to maintain this Action of Disceit 15 Ass 8. If the Guardian of a Chappel be impleaded in a Praecipe for the Lands of his Chappel and pendant the Writ he resign the Successor shall have a Writ of Error and not he who resigns for he is not to be restored to the Lands having resigned his Chappel So in our Case A deprivation is as strong as a Resignation The third Error because in the Writ of Disceit it is not set forth that Blower was Incumbent for the Writ of Disceit ought to contain all the special matter of the Case as an Action upon the Case 4 E. 3. Disceit 45. The fourth Error That upon suggestion made after Verdict that Blower was Incumbent and in of the presentment of the Lord Stafford Deprivation and that he was removed and Griffin in by the Recovery in the Quare Impedit by default a Writ to the Bishop was awarded without any Scire facias against Griffin for he is possessor and so the Statute of 25 E. 3. calls him and gives him authority to plead against the King 6 Co. 52. and every Release or Confirmation made to him is good 18 E. 3. Confirmation made by the King after Recovery against the Incumbent is good And 9 H. 7. If a Recovery be had in a Contra formam collationis the possessor shall not be ousted without a Scire facias so in Audita Querela upon a Statute Staple Scire facias Scire facias shall go against the Assignee of the Conusee 15 E. 3. Respon 1. See also 16 E. 3. Disceit 35. 21 Ass 13. A Fine levied of Lands in Ancient Demesn shall not be reversed without a Scire facias against the Ter-tenant Walmesley contrary The case at the Bar differs from the case put of the other side for they are cases put upon original Writs but our case is upon a judicial Writ and here nothing is demanded but the Defendant is only to answer to the disceit and falshood And in this Case the Issue is contained in the Writ which is not in any original Writ and the Iudges shall examine the issue without any plea or appearance of the Tenant and here the Defendant is not to plead any thing to excuse himself of the wrong And here the Iudgment is not to recover any thing in demand but only to restore the party to his former estate and possession and if he hath nothing he shall be restored to nothing And he put many cases where persons who have several Rights may joyn in one Action as a Recovery in an Assize against several Tenants they may joyn in one Writ of Error 18 Ass Recovery in Assize against Disseisor and Tenant they shall both joyn in Error why not also in Disceit 19 E. 3. Recovery against two Coparceners the Survivor and the heir of the other shall joyn in Error As to the second Error Williams and the Sheriff ought not to joyn in the Plea and also the Plea it self is not good for the Writ of Disceit is That Williams answer to the Disceit and the Sheriff shall certifie the proceedings and therefore he shall not plead and also the Plea it self is not good for although the interest of the Incumbent be determined in the Church yet his Action is not gone as if in a Praecipe quod reddat the Tenant alieneth pendant the Writ and afterwards the Demandant recovereth yet the Tenant although his Interest be gone by the Feoffment yet he shall have a Writ of Error and so here and as to the Scire facias there needs none here against the new Incumbent for he comes in pendant the Writ
Action against the Executor of I.D. And it was agreed by the Court that if a man makes his Debtor and a stranger his Executors and the Debtor dieth the surviving Executor may have an Action of debt against the Executor of the Debtor and so it was adjudged in the principal case CCCCXLIX Wollman and Fies Case Mich. 31 32 Eliz. In the Kings Bench. Assumpsit 1 Cro. 179. IN an Action upon the Case upon Assumpsit that the Plaintiff should enjoy such Lands for so many years The Defendant pleaded the Statute of 13 14 Eliz. because the Land is the Glebe Land of such a Parsonage and in truth the Defendant did mis-recite the Statute For the Statute is No Lease after the fifteenth day of May And the pleading is hereafter to be made Secondly the Statute is of any Benefice with cure the pleading is of any Benefice Thirdly The Statute is without absence above eighty and the pleading is without absence by the space of eighty days And for these Causes the Plaintiff had Iudgment CCCCL Frond and Batts Case Trin. 31 Eliz. In the Kings Bench. Debt Payment to the wife not good IN debt upon a Bond upon condition to stand to the Award of I.S. The Defendant pleaded That the said I.S. had Arbitrated that the Defendant should pay to the Plaintiff ten pounds and he said he had paid it to the Plaintiffs wife who received it upon which the Plaintiff did demur And Iudgment was given for the Plaintiff CCCCLI Trin. 31 Eliz. In the Kings Bench. Grants of the King of the Office of Marshal of the Kings Bench. THe Queen granted to George Earl of Shrewsbury An. 15. of her reign the Office of Earl Marshal of England and now came the said Earl and prayed that I. S. one of his Servants to whom he had granted the Office of Marshal of the Kings Bench might be to it because the same is an Office incident to his Office and in his power to grant and that Knowles to whom the Queen had granted the said Office of Marshal of the Kings Bench by the Attainder of North. be removed And a President was shewed 14 15 Eliz. Betwixt Gawdy and Verney where it was agreed That the said office was a several office from the said great office and not incident to it And as to the Case of 39 H. 6. 33 34. the truth is the said office of Marshal of the Kings Bench was granted expresly by the Duke by express words and so he had it not as incident to his office of Marshal of England On the other side there were three Presidents shewed first in the time of E. 2. That the office of the Marshal of the Kings Bench was appendant to the said office of Marshal of England Secondly 8 R. 2. When the said great office was in the King he granted the said office of Marshal of the Kings Bench But 20 R. 2. both offices were rejoyned as they were before in ancient time and there were also shewed Latters Patents of 4 E. 4. and 19 H. 8. by which it appeared That the said inferiour office had time out of mind been part of the great office And it was moved That when the said great office is in the Kings hands and the King grants the said under office if now this office be not severed from the great office for ever Wray It is no severance for the chief office is an office of Dignity which may remain in the King but this under office is an office of necessity and the King himself cannot execute it by which of necessity he ought to grant it Another matter was moved If the Grant of the King unto the Earl of Shrewsbury were good because in it the Grant to Verney of the said under office is not recited according to the Statute of 6 H. 8. 9. As 26 E. 3. 60. The King seised of the Honor of Pickring to which a Forrest was appendant the Bayliwick of which Forrest he granted in fee rendring rent and afterwards he granted the Honor with Appurtenances and afterwards the Bailiff committed a Forfeiture and that was found in Eyre the Grantee of the Honor shall seise it yet the King shall have the Rent And here the Earl of Shrewsbury shall have this office in his power to grant And so much the rather because it was granted but for life CCCCLII Michill and Hores Case Trin. 31 Eliz. In the Kings Bench. MIchil did affirm a Plaint in the Court of the City of Exeter against Hore for twenty pounds and upon Nihil returned Attachment of goods by custom of Exeter it was surmised That Trosse had certain monies in his hands due to Hore and according to the custom of Exeter the said monies were attached in the hands of Trosse who appeared upon the Attachment and pleaded That he owed nothing to Hore upon which there was a Demurrer Error and Iudgment given against Trosse because that Trosse ought to have pleaded not only that he owed him nothing but further that he had not any goods of Hores in his hands And thereupon Trosse brought a Writ of Error and assigned the Error in the principal matter upon which it was demurred and Iudgment given against the Plaintiff because that the Plea of Trosse that he owed him nothing is good enough for if there be not a Debt it is not attachable upon such Attachment And it is a good Plea to a common intent and altogether in use in London were such custom is Another Error was assingned for that Michill had recovered Costs against Trosse where it ought not to be And also Iudgment is not given that Trosse should be discharged against Hore And afterwards the Iudgment given in Exeter was reversed CCCCLIII Dennis and Saint Johns Case Mich. 30 31 Eliz. In the Common Pleas. Debt 1 Cro. 494. IN Debt upon an Obligation against Oliver Saint John and Alice his wife as heir of her Father The Defendants pleaded Non est factum of the Father And it was found by special Verdict That the Obligation was made by the Father of the Wife to the Plaintiff and another whereas in truth The Plaintiff hath declared upon an Obligation made to himself only without speaking of any other joynt Obligee Non est factum and that the Plaintiff as Survivor hath brought the Action and if upon the matter it shall be said the Deed of the Defendant in manner as the Plaintiff hath declared the Iury refer unto the Court And the case 14 E. 4. 1. b. If three enfeoff me and I plead That two did enfeoff me and the same be traversed it shall be found against me for the Feoffment is a joynt act by them all But if a man enfeoffeth me and two others and they dye so as I have all by Survivor in pleading I may shew the Feoffment was made to me alone So 46 E. 3. 17. a. Three Joynt-tenants in Fee make a
Iustice It was a great offence in the Plaintiff but the same ought to be punished according to Law but the Constable cannot imprison a Subject at his pleasure but according to Law i. to stay him and bring him before a Iustice of the Peace to be there examined Wray If the Defendant had pleaded that he stayed the Plaintiff upon that matter to have brought him before a Iustice of Peace it had been a good Plea. Fennor The justification had been good if the Defendant had pleaded that the Plaintiff refused to carry away the Child so all the Iustices were of opinion against the Plea but they would not give Iudgment by reason of the ill Example but they left the parties to compound the matter CCCCLXIII Cole and Walles Case Pasch 33 Eliz. In the Kings Bench. Ejectione Custodiae lieth not upon a Copy-hold Estate 1 Cro. 224. IN an Ejectione Custodiae the Plaintiff declared that A. was seised of the Manor of D. within which Manor are diverse Copyholds of Inheritance and that the Custom of the Manor is that if any Copy-holder of Inheritance of the said Manor dieth his heir within the age of 14 years that then the Lord of the Manor might grant the custody of his Body and Lands to whom he pleased and shewed that one Clevertie a Copyholder of Inheritance of the said Manor died his son and heir within the age of 14 years Hob. 215. Dyer 302 303. upon which the Lord of the Manor committed the custody of his Body and Lands to the Plaintiff and the Defendant did eject him and upon Not guilty it was found for the Plaintiff It was moved in arrest of Iudgment That this Action would not lye upon a Copyhold estate Quod tota Curia concessit and yet it was said that an Ejectione firmae lieth upon a demise of Copy-hold Land by Lease of a Copyholder himself but not upon a demise by the Lord of the Copyhold Quod fuit concessum and afterwards the Case was moved on the Plaintiffs side and it was said That this was but an Action upon the Case in the nature of an Ejectione firmae and this interest is not granted by Copy but entred only into the Court Roll so it is not an interest by Copy but by the Common Law for the words are Quod Dominus commisit custodiam c. and doth not say in Curia and afterwards Iudgment was given for the Plaintiff CCCCLXIV Bond and Bailes Case Trin. 33 Eliz. In the Kings Bench. Judgment upon a Bond where satisfied before a Statute â— Len. 37â— Roll. 926. BOnd brought a Scire facias against Bailes Administrator of one T. B. upon a Recovery had against the Intestate in Action of Debt The Defendant pleaded That before the said Iudgment given the Testator did acknowledge a Statute Staple to one C. and that the Son was not paid in the life of the Testator nor after and that they have not in their hands any goods of the Intestate beyond what will satisfie the said Statute upon which there was a demurrer in Law. And Coke argued That the Bar is not good for here is not pleaded any Execution upon the Statute and then the Iudgment the Statute being of things of as high nature that of which Execution is sued shall be first served and if this Action had been brought upon a Bond the Plea had not been good for although that Brian saith 21 E. 4. That Recognizances shall be paid by Executors before Bonds yet that it is to be intended when a Scire facias is to be sued upon it otherwise not And 4 H. 6. 8. in a Scire facias upon a Iudgment fully administred at the day of the Writ brought is a good Plea by which it appeareth That if the Executors had paid the Debt upon the Obligation before the Writ brought it had been good See 12 E. 3. Executors 73. in a Scire facias upon a Iudgment in Debt given against the Testator Enquiry shall be what goods the Executors had the day of the Scire facias and he said it was moved by Anderson 20 Eliz. in this Court. In Debt upon a Bond against Executors the Defendant pleaded that the Testator was indebted by Iudgment to A. and that they had not more than to satisfie the same and it was holden no plea if not that he pleaded further that a Scire facias was sued upon it Wray said The same is not Law and there is a difference when the Iudgment is given against the Testator himself and where against the Executors for where Iudgments are given against Executors the Iudgment which was given before shall be first executed but if two Iudgments be given against the Testator he who first sues Execution against the Executors shall be first satisfied because they are things of equal nature and before Suit it is in the election of the Executor which of them he will pay See 9 E. 4. 12. As if two men have Tallies out of the Exchequer he which first offers his Tally to the Officer shall be first paid but before that it is in the choice of the Officer which of them shall be first satisfied and therefore 19 H. 6. If the Lease enrolled be lost the Enrolment is not of any effect and Pasch 20 Eliz. our very case was moved in the Common Pleas in a Scire facias upon a Iudgment given against the Testator the Executor pleaded That the Testator had acknowledged a Statute before not satisfied Ultra quae c. and it was holden no Plea for a Statute is but a private and pocket Record as they called it and 32 Eliz. betwixt Conny and Barham the same Plea was pleaded and holden no Plea. Also if this Plea should be allowed Conny and Barhams Case great mischiefs would follow for then no Debts should be satisfied by the Executors for it might be that the Statute was made for performance of Covenants which Covenants perhaps shall never be broken and afterwards Iudgment was given for the Plaintiff CCCCLXV Crew and Bails Case Trin. 32 Eliz. In the Kings Bench. A Writ of Error was brought upon a Iudgment given in the Common Pleas Error 1 Cro. 216. in a Bill of priviledge brought by an Attorney of the said Court upon an Obligation and upon the said Iudgment issued forth process of Execution upon which the Defendant was Outlawed and the Error was assigned in this That upon that Iudgment process of Outlawry doth not lie for Capias is not in the original Action Priviledge and so was the opinion of the whole Court being upon a Bill of priviledge and the Outlawry was reversed and the Error was assigned in the first Iudgment because there were not fifteen days betwixt the Teste of the Venire facias and the return of it but that was not allowed for it is helped by the Statute of 18 Eliz. cap. 14. CCCCLXVI Wade and Presthalls Case Trin. 30 Eliz. In the Kings
gave Iudgment for the Plaintiff for it is in his election to demand his debt in which of those Coyns he pleased either in the proper Coyn of the Contract or of Sterling scil in currant mony And afterwards the said Iudgment was affirmed LIII Henly and Broads Case Mich. 28 29 Eliz. In the Exchequer HEnly brought Trespass against Broad in the Kings Bench 3 Len. 77 Trespass and declared that the said Defendant simul cum quodam I. S. clausum suum fregit c. The Defendant pleaded to Issue and it was found for the Plaintiff and it was objected in stay of Iudgment that the count was not good for it appeareth therein upon the shewing of the Plaintiff himself that the Action ought to be brought against another also not named in the Writ Counts and because the same appears of the Plaintiffs own shewing the Declaration was not good and notwithstanding that said Exception Iudgment was given for the Plaintiff Vpon which Broad brought a Writ of Error and assigned the same matter for Error And there the Case of 2 H. 7. 16. 17. was cited Error where a difference is taken where the Plaintiff declares that the Defendant with one B. did the Trespass him naming in certain and where the Declaration is that the Defendant cum quibusdam alijs ignotis c. See 8. H. 5. 5. And at length all the Iustices of the common Pleas and Barons of the Exchequer were clear of opinion that by the common Law the Declaration was not good for the reason and upon the difference aforesaid but if in Trespass against one who pleads that the Trespass was done by himself and one B. to whom the Plaintiff hath released and the Plaintiff traverse the Release in that case for as much as the matter doth not appear upon the Plaintiffs own shewing but comes in on the part of the Defendant and not denied by him the Declaration is good enough And it was further agreed by them all that now this defect after Verdict is helped by the Statute of 18 Eliz. for it doth not concern substance but only form And afterwards the first Iudgment was affirmed LIV. Wood and Fosters Case Mich. 28 29 Eliz. In the Common Pleas. Replevin Owen Rep. 139. Godbolt 113. WOod brought a Replevin against Humfrey Foster and others and made his plaint of the taking of one thousand Cattle Foster pleaded Non cepit and the others that the property was in another upon which matters they were at issue And as unto the first issue the Case upon the Evidence was that the late Lord Windsore was possessed of certain Sheep and by his Will devised them unto Eliz. his Daughter for her advancement in marriage and of his Will made his Wife his Executrix and died his Wife took to her Husband one Puttenham who being thus possessed leased the said Sheep with a Farm for eleven years by Indenture upon which it was agreed between the said parties that the Lessee should keep so much of the Rent reserved upon the said Lease to buy therewith so many Cattle over so as the whole stock of the said Sheep upon the said Farm should amount to the number of one thousand Cattle and the Lessee also covenanted to yeild and render to the said Puttenham at the end of the said Term one thousand Sheep between two years shorne and four years shorne Afterwards Puttenham by his deed gave unto one A. who had married the said Eliz. the said one thousand Cattle to have them after the said Term the Term expired Puttenham sold and granted them unto Wood who brought them away with him And the said A. pretending that the said Sheep passed to him by the said grant of Puttenham during the said Term seised them and the same was noctanter as they were driven in the high-way unde magna contentio orta suit between the said parties the one charging the other with felony whereupon the Constable of the Town where c. supposing the said matter would grow to an Outrage seised the said Cattle as felons goods and afterwards went to the house of the said Foster which was near unto the high-way and asked his advise upon the matter but he would not meddle therewith Afterwards one Perkins who had bought the said Cattle of the said A. came to Foster and shewed to him that the high-ways there were not sufficient for pasturage of the said Cattle until the said controversy be determined and prayed that the Cattle be delivered to him the said Perkins to keep in the mean time to whom Foster answered that if the said Perkins would find sufficient sureties to deliver back the Cattle to him who had right that he would be content the said Perkins should take them whereupon the said Perkins was bound to Foster to that purpose and took away with him the said Cattle And it was also given in Evidence that the servants of the said Foster had seised the Cattle for the use of their Master And by the clear opinion of the Court upon the whole matter shewed Foster non cepit and according to such direction of the Court the Iury found that Foster non cepit and as to the matter of property the Court was clear of opinion that the grant made by Puttenham of the said Cattle during the Term was utterly void for Puttenham during the same Term had not in the said Cattle either a general or a special property nor also after the Term but if after the Term expired the Lessee will not according to his covenant deliver to Puttenham one thousand Sheep then Puttenham is put to his Action of covenant for here the Lessee was bound to deliver to Puttenham at the end of the Term not the same Cattle which were leased but such a number of Sheep and the same ought to be between two years shorne and four years shorne which could not be the Sheep demised for they did exceed such degree before the end of the said term then the grant of Puttenham during the Term is meerly void And then when after the Term the Lessee according to the covenant delivered to Wood one thousand Sheep he might well sell them to the Plaintiff And such was the opinion of the whole Court and it was said by Iustice Windham that if I let certain Sheep to one for two years Property now upon that Lease somewhat remains in me but that cannot be properly said a Property but rather the possibility of a Property which cannot be granted over See 11 H. 4. 177. 178. 22 E. 4. 10. 11. In the same plea it was also holden that in a Replevin where the plaint is of one thousand Beasts and the Defendant justifies by reason of property upon which the parties are at issue Now upon the Evidence the Defendant may surmise a lesser number of Beasts and drive the Plaintiff to prove a greater number than that which the Defendant hath confessed
K. his Wife the Tenant demanded Iudgment of the Writ upon special shatter and concluded so is the said K. our Wife and not the Wife of A. So in a Cui invita by B. and C. his Wife the Tenant pleaded never accoupled in loyal matrimony the same is no answer to the Wife for she demanded in her own right and if he who aliened was her Husband in possession the Wife could not have other Action for Assize doth not lie because he was her Husband in fact at the said time in possession And see also 50 E. 3. 20. adjudged according to the opinion of Belknap And see also 39 E. 3. As to the marriage in right as the case in question is for upon such marriage if the Husband be murdred before disagreement the Wife shall have an Appeal of Murder and a Writ of Dower so where Appeal is brought of the Rape of his Wife although she be his Wife but in possession and not in right 11 H. 4. 13. by Hulls 168. and by Littleton if the Wife be of the age but of nine years she shall have Dower which see also 35 H. 6. and yet Dower shall never accrue but in case of marriage in right for there never coupled in marriage is a good Plea See 12 R. 2. Dower 54. In Dower the Tenant pleaded that the Husband at the time of his death was but at the age of 10 years and the Demandant now but 11 years and yet Iudgment was given for the Demandant for by Charleton the same was a marriage in right until disagreement See 22 Eliz. Dyer 369. A woman at full age marrieth a Husband of 12 years who dieth before the age of consent the same is a good marriage and so ought to be certified by the Bishop and 7 H. 6. 11. by Newton a woman married within age of consent may bring an Action as a feme sole and the Writ did abate Stamford Prerogat 27. 19 E. 3. Judgment 123. In a Writ of Ward the Iury found that the Infant was of the age of 10 years and no more but they did not know whether she was married or not but de bene esse if she be married assess damages one hundred pounds and if not five pounds upon which it appeareth that marriage at such an age is such a marriage upon which the Lord shall recover damages See 13 H. 3. gard 148. such marriage in the life of the Ancestor infra annos nubiles if there be no disagreement shall bind the King And after the death of the Ancestor the heir shall remain in custodia Domini Regis usque ad aetatem ut consentiat vel dissentiat 45 E. 3. 16. In a Writ of Ward the Infant was found of the age of 12 years and the Iurors gave damages 300 marks if he were married and 27 H. 6. gard 118. 47 E. 3. Br. Trespass 420. and Fitz. Action upon the Statute 37. Trespass de muliere abducta cum bonis viri where the wife is within the age of consent and if I be bounden unto another in an Obligation upon condition to pay a sum of mony upon the marriage day of I S. now if I S. be married within the age of consent I am bound to pay the mony the same day although afterwards the parties do dissent and the Wife after such marriage shall be received in a Plea real upon the Default of her Husband and the words si dicta Eliz ad id condescendere agreare vellet are to be understood of an agreement at the time of the marriage and here the time is limited for the solemnization of the marriage scil at or before they shall have accomplished their several ages of 21 years makes the matter clear For it is in the election of Hanmer the Father to procure this marriage scil that his Son shall take to Wife the said Elizabeth at which of the two times he will scil at or before c. to the marriage before c. is as effectual in respect of the performance of this condition as if the marriage had been had after and as the case is the condition could not be better performed for if the marriage had been stayed till after 14 years c. although the marriage doth not ensue yet the Obligation had been forfeited and that the marriage be solemnized just at the age of both of 14 years was impossible for Thomas Hanmer was the elder by 2 years than the said Elizabeth and therfore they ought to be married at such time which might stand with the condition and the same is done accordingly And as to that which hath been objected That now by disagreement the marriage is determined we ought to observe that Hanmer was bounden for the performance of the Covenant and that his son and heir apparent maritaret in uxorem duceret dictam Eliz. ud vel ante c. which is executed accordingly and he is not bounden for the continuance of the said marriage but the continuance of the same ought to be left to the law which giveth to the parties liberty to continue the marriage by agreement or to dissolve it by disagreement And therefore if I am bounden to you that I S. who in truth is an Infant shall levy a Fine before such a day which is done accordingly and afterwards the same is reversed by Error yet notwithstanding the condition is performed c. and afterwards Iudgment was given against the Plaintiff LXVIII The Earl of Warwick and the Lord Barkleys Case Pasch 29 Eliz. In the Common Pleas. AMbrose Earl of Warwick and Robert Earl of Leicester brought a Writ of Partition against the Lord Barkley Partition Challenge in which the parties pleaded to issue And now at the day of the Enquest the Defendant did challenge that in the whole Pannel there were but two Hundreders and at the first it was doubted by the Court if upon the Statute of 27 Eliz. cap. 6. by which it is Enacted That no further challenge for the Hundred shall be admitted if two sufficient Hundreders do appear the Enquest shall be taken But at length the whole Court was clear of opinion that the said Statute did extend but to personal Actions but this Action of Partition is a real Action and Summons and severance lieth in it but not process of outlawry and therefore here four Hundreders ought to be returned so in an Action of Wast although it be in the personalty and therefore the Council of the Plaintiffs prayed a Tales LXIX The Archbishop of York and Mortons Case Pasch 29 Eliz. In the Common Pleas. THe Archbishop of York recovered in an Assize of Novel disseisin against one Morton before the Iustices of Assize 3 Len. 159. Error upon recovery in Assize upon which Iudgment Morton brought a Writ of Error before the Iustices of the Common Pleas and after many motions at the bar it was adjudged that a Writ of Error upon the said Iudgment
did not lie in the said Court. 18 Eliz. Dyer 250. F. B. 22. That upon Erronious Iudgment given in the Kings Bench in Ireland Error shall be brought in the Kings Bench in England 15 E. 3. Error 72. Fenner who was of Council with the Archbishop demanded of the Court how and in what manner the Record shall be remanded to the Iustices of Assize so as the Archbishop might have execution To which the Court said that the surest way is to have a Certiorare out of the Chancery into the Common Pleas directed to the Iudges there and then out of the Chancery by Mittimus to the Iustices of Assize But Fenner made a difficulty of it to take such course for the remanding of it for doubt they would not allow it to be a Record where it is not a Record for upon the matter the Record is not removed but remains with the Iustices of Assize Then Anderson said Sue Excution out of the said Record but because the Record came before us by Writ of Error it shall be also removed and remanded by Writ and so it was LXX Kempe and Carters Case Pasch 29 Eliz. In the Common Pleas. THomas Kempe brought Trespass Copyhold for breaking of his Close against Carter and upon pleading they were at issue if the Lord of the Manor aforesaid granted the said Lands per copiam rotulorum curiae manerii praedict secundum consuetudinem manerii praedict and it was given in Evidence that within the said Manor were divers customary Lands and that the Lord now of late at his Court of the said Manor granted the Land c. per copiam rotulorum curiae where it was never granted by copy before It was now holden by the whole Court that the Iury are bound to find Dominus non concessit for notwithstanding that de facto Dominus concessit per copiam rotulorum curiae yet non concessit secundum consuetudinem manerii praedict for the said Land was not customary nor was it demisable for the custom had not taken hold of it In the same Case it was also shewed that within the said Manor some customary Lands are demiseable for life only Evidence of customs and some in Fee and it was said by the Lord Anderson that he who will give in Evidence these several customs ought to shew the several limits in which the several customs are severally running as that the Manor extends into two Towns and that the Lands in one of the said Towns are grantable for lives only and the Lands in the other in Fee and he ought not to shew the several customs promiscuè valere through the whole Manor And he remembred a Case of his own experience scil The Manor of Wadhurst in the County of Sussex consisted of two sorts of Copy-hold scil Sook-land and Bond-land and by several customs disseverable in several manners As if a man be first admitted to Sook-land and afterwards to Bond-land and dieth seised of both his Heir shall inherit both but if he be first admitted to Bond-land and afterward to Sook-land and of them dieth seised his youngest Son shall inherit and if of both simul semel his eldest Son shall inherit But if he dieth seised of Bond-land only it shall descend to the youngest and if customary Land hath been of ancient time grantable in Fee and now of late time for the space of forty years hath granted the same for life only yet the Lord may if he please resort to his ancient custom and grant it in Fee. It was also moved in this case If customary Land within a Manor hath been grantable in Fee if now the same Escheat to the Lord and he grant the same to another for life the same was holden a good grant and warrantable by the custom and should bind the Lord for the custom which enables him to grant in Fee shall enable him to grant for life and after the death of the Tenant for life the Lord may grant the same again in Fee for the grant for life was not any interruption of the custom c. which was granted by the whole Court. LXXI Walker and Nevils Case Pasch 29. Eliz. In the Common Pleas. Dower WAlker and his Wife brought a Writ of Dower against Jervice Nevil and judgment was given upon Nihil dicit and because the first Husband of the Wife died seised a Writ of Enquiry of Damages was awarded by which it was found that the Land which she ought to have in Dower the third part was of the value of eight pound per annum and that eight years elapserunt a die mortis viri sui proximè ante inquisitionem assident damna to eight pounds and it appeared upon the Record that after Iudgment in the Writ of Dower aforesaid the Demandants had execution upon habere facias seisinam Damages so as it appeareth upon the whole Record put together that damages are assessed for eight years where the Demandants have been seised for part of the said eight years upon which the Tenant brought a Writ of Error and assigned for Error because damages are assessed untill the time of the Inquisition where they ought to be but to to the time of the Iudgment but the Exception was not allowed Another Error was assigned because that where it is found that the Land was of the value of eight pounds per annum they have assessed damages for eight years to eighty pounds beyond the Revenue for according to the rate and value found by verdict it did amount but to sixty four pounds but that Error was not also allowed for it may be that by the long detaining of the Dower the Demandants have sustained more damages than the bare Revenue c. Another Error was assigned because Damages are assessed for the whole eight years after the death of the Husband where it appeareth that for part of the said years the Demandants were seised of the Lands by force of the Iudgment and execution in the Writ of Dower and upon that matter the writ of Error was allowed LXXII Archpool against the Inhabitants of Everingham Pasch 29 Eliz. In the Common Pleas. IN an Action upon the Statute of Winchester of Huy and Cry by Archoopl against the Inhabitants of the Hundred of Everingham the Iury found that the Plaintiff was robbed 2 Januarii post occasum solis sed per lucem diurnam and that after the Robbery committed the Plaintiff went to the Town of Andover and advertised the Baylies of the said Town of the said Robbery and further found that the said Town of Andover is not within the said Hundred of Everingham and that there is another Town nearer to the place where c. the Robbery was done than the said Town of Andover within the said Hundred but the said Town of Andover was the nearest place where c. by the Kings high-way It was moved that upon this matter the Plaintiff should not have judgment
hands after the Iudgment and prayed execution thereof upon which the Defendant did demur in Law. Vide 2â— H. 6. 40. 41. In debt against Executors of forty marks the Defendant pleaded that he had fully administred and it was sound that the Defendant at the day of the Writ brought had of the goods of the dead twenty marks and no more and gave damges five marks There the Plaintiff had Iudgment for the twenty marks of the goods of the dead and the five marks of their own goods And as to the other twenty marks that the Plaintiff should be amerced 33 H. 6. 24. Where Executors plead that they have nothing in their hands which is found accordingly Afterwards goods of the Testator came to the hands of the Executors Now the Plaintiff upon a surmise shall have out of the same Record a Scire facias to have execution of the said goods Scire facias to have Execution of Assets come to Executors hands after â—iens enter maynes pleaded But see 4 H. 6. 4. contrary for there it is said that upon the matter the original is determined and so no Record upon which a Scire facias can be grounded And see Fitzh abridging the Case Scire facias 25. by the verdict and the Iudgment the Original is abated Vide 7 E. 4. 9. by Moile according to 33 H. 6. and so 46 E. 3. 9. by Belknap And the Lord Anderson demanded of the Prothonotaries the manner of the entry of the Iudgments given in such Cases who said that their Entry is in this manner i. e. Quod querens recuperet that which is expresly found by the verdict but nothing of the residue for of that no mention is made at all And the Court seemed to be of opinion that where upon nothing remaining in their hands pleaded It is found that some part of the sum in demand is in the hands of the Executors there the Plaintiff upon a surmise of goods come to the hands of the Executors shall have a Scire facias 3 Cro. 272. Hob 199. 1 Cro. 318. 319 592. 8 Co. 134. contrary where upon such issue it is found fully for the Defendants that they have nothing in their hands LXXXVIII Fordleys Case Mich. 29 30 Eliz. In Communi Banco Tender pleaded 9 Co. 79. Dy. 25. a. 1 Inst 207. Post 69. 70. a. FOrdley brought debt upon an Obligation the Condition was that if the Defendant viz. the Obligor deliver unto the Plaintiff the Obligee at a such a day and place twenty pounds or ten Kine at the then choice of the Obligee c. that then c. The Court was clear of opinion that the Defendant in pleading the performance thereof ought to tender to the Plaintiff as well the twenty pounds as the ten Kine and for default thereof Iudgment was given against the Defendant See the Number Roll T. 29 Eliz. 1. part 324. vide 14 E. 4 4. b. LXXXIX Barker and Pigots Case Mich. 29 30 Eliz. In Communi Banco EDward Barker brought Debt against Rich. Pigot Executor of the Will of E. Executrix of the Will of R. The Defendant pleaded that he had fully administred the goods of his Testator E. upon which they were at issue Debt which was found for the Plaintiff And it was moved in arrest of Iudgment that here is not any issue joyned which answers to the Action for the Action is brought against the Defendant in the quality of the Executor of an Executor and the verdict extends to the Defendant but is Executor of the said E. for it is found by it that the Defendant hath fully administred the goods of his Testatrix without any enquiry of the Administration of the goods of the first Testator R. in which capacity the Defendant is charged So as here the Writ charges the Defendant in the quality of an Executor of an Executor and in respect of the first Testator and the issue and verdict doth concern the last Testator Execution must follow the nature of the Action And the whole Court was clear of opinion that although that now after verdict Fee-tail be saved and no Iudgment shall be given upon it yet here the Court shall give Iudgment as upon a Nihil dicit in which case the Execution of the Iudgment shall not fall upon the goods of the last Testator according to the verdict but shall follow the nature of the Action which was brought against the Defendant as Executor of an Executor XC Thacker and Elmers Case Mich. 29 30 Eliz. In Communi Banco THacker recovered in an Assize of Novel disseisin against Elmer certain Lands in Hackney and had execution Re-disseisin and the Judgment in it 1 Cro. 323. Elmer entred upon Thacker and ousted him and Redisseised him Thacker re-entred and afterwards brought a Redisseisin And it was moved whether Thacker against his Entry might have a Redisseisin And the opinion of the whole Court was that he might well maintain the Writ for he is not thereby to recover any Land but the Defendant of that Redisseisin being convicted shall be fined and imprisoned and render double damages Vide Book of Entries 502. the Iudgment in a Redisseisin is Quod recuperet seisinam suam of the Land. XCI Blaunchflower and Fryes Case Mich. 29 30 Eliz. In Communi Banco BLaunchflower brought debt upon a Bond against Elinor Frye as Executrix of one Andrew Frye her late Husband who pleaded Debt that this Writ was brought 9 July 27 Eliz. whereof she had notice the first of October after within which time one Lawrence had brought an Original Writ against the said Elinor as Administratrix of the said Andrew And after the bringing of the Writ the Bishop of Bath and Wels committed Administration of the goods of the said Andrew to the said Elinor which Elinor confessed the Action upon which Iudgment was given for the said Lawrence beyond which she had not goods upon which the now Plaintiff did demur in Law. And by Anderson the Recovery pleaded in bar shall not bind the Plaintiff because it appeareth unpon the plea of the Defendant that the Administration was committed after the Writ purchased which matter if the Defendant had pleaded Administration granted pendant the Writ Lawrence could not have had Iudgment to recover As where there are three Executors and debt is brought against two of them if they do not plead that matter in abatment of the Writ but plead c. or confess the Action so that the Plaintiff hath Iudgment to Recover that Recovery shall not bind a stranger who hath cause of Action against them but that he may well falsify it and yet it was said that in such Case the Defendant by the obtaining of the Letters of Administration had made the Writ good against her vid. 13 H. 4. Fitz. Executors 118. Administration committed before the Writ purchased shall abate the Writ brought against the Defendant as Executor but such Administration obtained
the Obligation which was made for the further assurance of the duty And here the Defendant ought to have pleaded the tender and see 14. E. 4. 4. A. is bound unto B. that where he hath granted to the said B. a Rent-charge out of such Land now if the said B. shall enjoy the said Rent according to the form and effect of the said Grant that then c. there he needs not to plead any tender for the Rent is not payable in other manner than it was before contrary if the Condition had been for the payment of the Annuity And of that opinion was the whole Court that he ought to have pleaded a tender Another matter of the Award was that the said Audar should yield up surrender relinquish to the Plaintiff all such Houses and Tenements which he had in his possession by reason of the custody of the said Plaintiff As to that the Defendant pleaded that he had yielded up c. All such Houses c. generally without shewing which in certain And for that cause the Court was clear of opinion that the Plea was not good which see 9 E. 4. 16. If I be bounden upon condition to enfeoff the Obligee of all Lands Tenements which were to I.S. in pleading the performance of that Condition I ought to shew what Lands and Tenements in certain for they pass out of me by the Feoffment See also 12 H. 8. 7. 13 H. 8. Non damnificatus generally where no Plea. 19. Another point of the Award was That the said Audar should acquit and discharge and save harmless the Plaintiff of such an Obligation to which the Defendant pleaded that Querens non fuit damnificatus and that Plea was holden insufficient for he ought to have shewed how he had discharged him and it is not sufficient to answer only to the damnification as if I be bounden to convey unto you the Manor of B. in pleading the performance of the condition it is not sufficient to shew that I have conveyed the said Manor but to shew by what manner of conveyance viz. by Fine or Feoffment c. 22 E. 4. 43. If the condition be to discharge the Plaintiff c. then the manner of the discharge ought to be shewed but if it be to save harmless only then non damnificatus generally is good enough 40 E. 3. 20. 38 H. 6. 39. The condition of an Obligation was that the Obligor should keep without damage the Obligee of such a sum of mony against B. to whom he was bounden for the payment of it and the said Obligor pleaded that at such a day c. the said B. at his request delivered the Obligation to the Plaintiff in liew of an acquittance without that that the Plaintiff was damnified by the said Obligation before the delivery of it and it was holden by the Court that if the Defendant had pleaded that he had kept the Plaintiff without damage and had not shewed how that the Plea had not been good See 22 E. 4. 40. The Lord Lisles Case And afterwards Iudgment was given for the Plaintiff XCVI Heydons Case Mich. 29 30 Eliz. RAlph Heydon pretending title to certain Land entred into it and made a Lease of it to try the title Vpon which his Lessee brought an Ejectione firmae in which the parties were at Issue And now at the day of the Enquest the Iurors were called and but five of them appeared whereupon the Defendant came and shewed to the Court that the said Heydon by his Friends and Servants had laboured the Iury not to appear and that for the further vexation of the Defendant who had four Verdicts in affirmance of his title that the said Heydon to procure the Iury not to appear had surmised to them that he and the Defendant were in course of an agreement whereas in truth no such communication of agreement had any time passed betwixt them And all this was openly deposed in Court as well upon the oath of the Defendant himself as upon the oath of one of the Iurors upon which the Court awarded an Attachment against the said Heydon to answer the contempt And also granted to the Defendant that he might sue a Decem tales with proviso for his own expedition XCVII Smith and Kirfoots Case Mich. 29 30 Eliz. In Communi Banco Debt upon Arbitrament SMith brought Debt upon an Arbitrament against Kirfoot and declared that the Defendant and he imposuerunt se in arbitrium ordinationem judicium Johannis Popham ar arbitratoris indifferenter electi de jure titulo inturesse in quibusdam Messuagijs c. Who taking upon him the burthen of the Arbitration ordinavit that the said Defendant should pay unto the Plaintiff ten pounds in plenam satisfactionem c. and thereupon he brought his Action It was moved by Walmesley Serjeant that the Declaration is not sufficient for it appeareth that the Arbitrament set forth in the Declaration is utterly void because whereas ten pounds is awarded to the Plaintiff nothing is awarded to the Defendant and so the Award unequal and so void But the Court was clear of opinion that notwithstanding that such an Arbitrament be void in Law yet it may be for any thing that appeareth that the award is good enough 1 Cro. 904. â— Cro. 354. 355. For the Plaintiff is not to shew in his Declaration all the Award but such part only of it which doth entitle him to the thing c. and if the Defendant will impeach the Award for any thing that is to come in on his part vide ac Book of Entries 152. 123. vide For the Arbitrament 39 H. 6. 12. by Moile 7 H. 6. 41. XCVIII Arundel against Morris Mich. 29 30 Eliz. In Communi Banco RIchard Arundel sued an Audita Querela against Morris and it was comprehended in the Writ That Morris had recovered against him a certain Debt and that he was taken by a Capias ad satisfaciendum Audita Querela at the suit of the said Morris by Hickford Sheriff of the County of Gloucester who let him go at large c. And they were at issue upon the voluntary escape it was found for the Plaintiff It was objected in arrest of Iudgment that the Writ of Audita Querela is not good for the words are that the Plaintiff captus fuit virtute brevis nostri judicialis whereas this word judicialis is not in the Register but only brevis nostri de capiendo But by the whole Court the Writ is good for the word judicialis is but a word of surplusage and shall not make void the Writ And afterwards Iudgment was given for the Plaintiff XCIX Brook against King. Mich. 29 30. Eliz. IN Debt upon an Obligation by Brook against King the Defendant pleaded that the Bond was endorced with such condition viz. Debt That it the said Defendant King shall procure one I.S. to make reasonable recompence to the
the Letters Patents and the Office given by the Letters Patents ought to be exercised according to the Indenture c. And here appears upon the Declaration no Indenture for no enrolment of such Indenture is shewed and if it be not enrolled then there cannot be any Indenture betwixt the Queen c. and then the Qeeen cannot have an Action upon it for want of enrolment See 21 H. 7. 21. 1 H. 7. 28. and 31. 5 E. 4. 7. and also if there be not a sufficient Indenture then the Plaintiff is not Master of the Mint and then also there is not any new Indenture And then the Plaintiff ought to make the money according to the the old Standard and then might the Defendant well justifie the words Another Exception was taken because the Plaintiff is not at any damage for the Queen cannot have against him but an Action of Covenant upon the said Indenture because the Defendant hath not made the money accordingly which matter is not actionable no more than if the Farmer of the Queen had brought this Action against one for speaking that he had broken the condition or covenants of his Lease And as unto these words So that the Defendant hath saved four thousand pounds those words are not actionable for it may be he hath saved this four thousand pounds to the Queen and such construction the Iudges ought to make of such ambiguous words in such cases scil in optimam partem It was adjorned CXII Mounson and Wests Case Mich. 29 30 Eliz. In the Common Pleas. Challenge 3 Len. 22â— IN an Action of Trespass between Mounson and West the parties were at Issue and now at the Return of the Pannel the Defendant challenged the Array because it was made by Bartholomew Armin who took to Wife the Cosin German of the Plaintiff ex ea had Issue living the mother being dead And upon this challenge the Plaintiff did demur in Law And it seemed to the Lord Anderson that it is not a principal challenge but only to Favour For the matter of the challenge is not consanguinity but only affinity And so it seemed to Periam And Rhodes cited a case adjudged in the Kings Bench. Markham brought an Action upon the Case against Lee who at the Nisi Prius challenged the Array because the Sheriffs wife was sister to the Plaintiffs Wife and that was before the Lord Dyer at Nottingham and that challenge was holden there not to be a principal challenge upon which Error was brought in the Kings Bench And Error assigned in that and for that cause the Iudgment was reversed And by Windham the Writ of Venire facias is quia nulla affinitate c. so as affinity is presumed in Law not indifferent And by Anderson that is to be intended of the Iurors and not of the Sheriff 22 E. 4. 2. The Array was challenged because that the Sheriff c. had married A. Daughter of Eliz. Sister of the Mother of the Plaintiff and that was holden a principal challenge 20 H. 7. 7. 26 E. 3. 21. And afterwards at another Term the Case being moved Anderson Rhodes and Windham were clear of opinion Dy. 37. 191. 319. that it is a principal challenge but Periam haesitavit and put a difference betwixt consanguinity and affinity for affinity is not a principal challenge unless it be averred that the Issue c. is inheritable to the Land. And Anderson put the Case in 14. H. 7. 2. Where one challenged because one of the Iurors had married the Mother of the Defendant it was holden a principal challenge And 15 H. 7. 9. where the challenge was for that the Brother of the Wife of the Defendant had married the Daughter of the Sheriff CXIII Sir Thomas Greshams Case Mich. 29 30 Eliz. In the Exchequer SIr Tho. Gresham being seised of the Manors of Walsingham and Milcham in the County of Norfolk 12 Eliz. Revocation of uses enfeoffed B. and C. to certain uses and that was with clause of Revocation upon the tender of forty shillings and that after such Revocation he might limit new uses and afterwards the year following Sir Tho. Gresham made the like conveyance of his Lands in the County of Suffolk to the said persons to the like uses upon like clause of Revocation upon the tender of forty shillings Sir Thomas tendered to the said Feoffees one sum of forty shillings to revoke the uses raised upon both the Feoffments afterwards raised divers uses of divers of the said Manors holden in Capite Dyer 372. and afterwards Sir Thomas died And afterwards it was resolved by the opinion of the Iustices that by that tender the uses were not revoked but that the Revocation was utterly void for two several sums of forty shillings ought to have been tendered for they were several Indentures and could not be satisfied by one sum After which by a private Act of Parliament 23 Eliz. the said Revocation was enacted and adjudged to be good and sufficient in Law. And now the Lady Gresham was called by process into the Exchequer for a Fine due to the Queen for the said alienation Fine for Alienation because that now the said uses newly raised were good and the said Manor possessed according to the limitation of them for now the Revocation is good because done by the said Statute which recited the whole special matter and that for want of a sufficient Tender the Revocation was void in Law and also reciting the new uses which were declared for the payment of his debts and many honorable Legacies also for the security of those who had purchased underneath the said new uses For remedy whereof it was enacted quod praedict Revocationes bonae sufficientes in lege habeantur reputentur recognoscantur And it was argued by Coke that upon the matter no Fine is due for all those new uses took their essence and effect by that Act of Parliament to which the Queen her self is a party and the principal Agent and therefore against her own Act she shall not claim a Fine c. And also the alienation without licence is a wrong and trespass and an Act of Parliament cannot do wrong and if partition be made betwixt Parceners by Act of Parliament no Fine is due to the Queen which was in ure 23 Eliz. for by Parliament then a Partition was made betwixt the Co-heirs of the Lord Latimer and I do not know that any Fine hath been demanded for it CXIV Bret and Sheppards Case Mich. 29 30 Eliz. In the Common Pleas. Debt BRet brought Debt upon a Bond against Sheppard the Bond was endorced upon condition that where the Defendant was arrested at the sute of one A. if now the Defendant shall appear in the Kings Bench where the process is returnable that then c. And the Defendant said in fact that he had appeared secundum formam effectum conditionis supradict hoc
plead it specially but as our case is here is no Act to be done but a permittance as abovesaid and it is in the Negative not a disturbance in which case permisit is a good plea and then it shall come on the other side on the Plaintiffs part to shew in what Lands the Defendant non permisit Which difference see agreed 17 E. 4. 26. by the whole Court. And such was the opinion of the whole Court in the principal case 1 Co. 127. Another Exception was taken to it that the Defendant had covenanted that his brother Edward should pay to the Plaintiff the said Rent To which the Defendant pleaded that his said brother had payed to the Platntiff before the said Feast of Michaelmas in full satisfaction of the said Rent three shillings and that was holden a good plea and upon the matter the Covenant well performed for there is not any Rent in this Case for here is not any Lease and therefore not any Rent For if A. covenant with B. that C. shall have his Land for so many years rendring such a Rent 1 Roll. 847. 1 Cro. 173. Owen 97. here is not any Lease and therefore neither Rent But if A. had covenanted with C. himself it had been otherwise because it is betwixt the same parties And if the Lessee covenant to pay his Rent to the Lessor and he payeth it before the day the same is not any performance of the Covenant causa patet contrary of a sum in gross Another Covenant was that the said Humphry solveret ex parte dicti Edwardi 20 l. to which the Defendant pleaded that he had paid ex parte dicti Humfridi 20 l. and that defect was holden incureable and therefore the Plaintiff had Iudgment to recover CLXXXVII Geslin and Warburtons Case Mich. 30 Eliz. In the Common Pleas. 1 Cro. 128. IN an Ejectione firmae by Joan Geslin against Hen. Warburton and Sebastian Crispe of Lands in Dickilborough in the County of Norf. Mich. 30. 31 Eliz. rot 333. upon the general Issue the Iury found a special verdict that before the Trespass supposed one Martin Frenze was seised of the Lands of which the Action was brought in tail to him and his Heirs males of his body so seised suffered a common Recovery to his own use Devises and afterwards devised the same in this manner I give my said Land to Margaret my Wife until such time as Prudence my Daughter shall accomplish the age of nineteen years the Reversion to the said Prudence my Daughter and to the Heirs of her body Lawfully begotten upon condition that she the said Prudence shall pay unto my said Wife yearly during her life in recompence of her Dower of and in all my Lands 12 pounds and if default of payment be made then I will that my said Wife shall enter and have all my Lands during her life c. the Remainder ut supra the Remainder to John Frenze in tail c. Martin Frenze died Margaret entred the said Prudence being within the age of fourteen years Margaret took to Husband one of the Defendants John Frenze being Heir male to the former tail brought a Writ of Error upon the said Recovery and assigned Error because the Writ of Entry upon which the Recovery was had was Praecipe quod reddat unum Messuag and twenty acras prati in Dickelborough Linford Hamblets without naming any Town And thereupon the Iudgment was reversed And it was further found that in the said Writ of Error and the process upon it Hutt 106. 2 Cro. 574. 3 Cro. 196. no Writ of Scire facias issued to warn dictam Prudentiam ten existentem liberi ten praemissorum ad ostendendam quid haberet vel dicere sciret quare Judicium praedict non reversaretur The Iury further found that the said Margaret depending the said Writ of Error was possessed virtute Testamenti ultimae voluntatis dict Martini reversione inde expectant dictae Prudentiae pro ut lex postulat And they further found Error that six pound of the said tewlve pounds were unpaid to the said Margaret at the Feast c. and they found that the said John Frenze praetextu Judicii sic reversat entred into the premisses as Heir male ut supra And so seised a Fine was levyed betwixt John Frenze Plaintiff and one Edward Tindal Owen 157. Dyer 321. 1 Cro. 471. 739. and the said Prudence his Wife Deforceants and that was to the use of the said John Frenze And that afterwards Humphry Warburton and the said Margaret his Wife brought a Writ of Dower against the said John Frenze Edw. Tindal and Prudence his Wife of the said Lands The said Edward and Prudence made default and the Demandants counted against the said Frenze and demanded against him the moity of the third part of the said Lands To which the said Frenze pleaded that the default of the said Edward and Prudence idem John Frenze nomine non debet quia he said that he the said John was sole seised of the Lands aforesaid at the time of the Writ brought c. and pleaded in Bar and it was found against the said John and Iudgment given for the Demandants of the third part of the whole Land and seisin accordingly And that afterwards 17 Eliz. the said Frenze levyed the Fine to the said Tindal to the use of the said Tindal and his Heirs And they found that after the said Feast the said Henry Warburton and Margaret his Wife came to the Messuage aforesaid half an hour before Sun-set of the said day and there did demand the Debt of the said twelve pounds Dower to the said Margaret by the said Martin Frenze devised to be paid unto them and there remained till after Sun-set of the said day demanding the Rent aforesaid and that neither the said Tindal nor any other was there ready to pay the same And first it was moved if the said yearly sum of twelve pounds appointed to be paid to the said Margaret were a Rent or but a sum in gross And the opinion of the Court was that it was a Rent and so it might be fitly collected out of the whole Will where it is said that Prudence his Daughter should have the Land and that she should pay yearly to Margaret twelve pounds in recompence of her Dower c. But if it be not a Rent but a sum in gross it is not much material to the end of the case For put case it be a Rent the same not being pleaded in Bar the Dower is well recovered and then when default of payment is made if the Wife of the Devisor shall have the whole was the Question And the Court was clear of opinion that by the suit and Iudgment in the Writ of Dower the Wife of the Devisor had lost all the benefit which was to come to her by the devise For the said Rent was devised to her in recompence of
fide non pro usura and that Issue was tryed in the County of Stafford and was found for the Plaintiff And it was moved in arrest of Iudgment that that Issue ought to be tryed in London where the contract was made Gawdy conceived that the tryal is well As 8 E. 3. 8. In debt upon an Obligation in London the Defendant pleaded that the Obligation was made by duresse at York the same Issue shall be tryed at York At another day the case was put more certain scil that the contract was made at W. in Stafford-shire by which it was agreed that for a Horse and two Tun of Iron the Plaintiff should have for them and the forbearing of the mony for such a small time fifty pounds whereas in truth they were but of the value of forty pounds Tryal and that the said Bond was made for the payment of the said fifty pounds Cook The Issue is well tryed for the ground of the matter is the usurious contract and those of Stafford-shire may better know it than they of London And according to this Tryal it hath been before adjudged H. 28. Eliz. rot 209. Betwixt Sybthorpe and Turner And P. 31. Eliz. rot 303. betwixt Payne and Wilkenson where the Issue was absque hoc that it was a corrupt agreement but the pleading was ut supra And afterwards Iudgment was given for the Plaintiff CCVII. The Queen and Buckberds Case Trin. 36 Eliz. In the Kings Bench. THe Queen recovered against Buckberd in a Quare Impedit Quare Impedit 1 Cro. 162. and thereupon a Writ of Error was brought and it was assigned for Error that the Queen post tempus semestre had Iudgment to recover damages for the value of the Church for half a year Cook The same is no Error as it was adjudged 7 Eliz. 236. See also 34 H. 6. 51. And these damages are not as damages but as a penalty inflicted upon the disturbance See Book of Entries 483. The King in a Quare Impedit counted to his damage of forty pounds and 484. 1000 li. and although tempus semestre transierit yet the King shall recover damages but the value of the Church for half a year for the King at all times may present in his own right for nullum tempus occurrit Regi Damages in a Quare Impedit where by King e contra At another day it was moved by Fenner Serjeant and he conceived that here the Queen is not to recover damages for she doth not present in her own right for the Incumbent had two Benefices without Qualifications therefore the first was void and the Lapse encurred and therefore the Queen did present in the right of the Crown and so is not verus Patronus 14 E. 3. Quare Impedit 54. The King shall not recover damages although he count of damages 3 H. 6. Damages 17. And as to the case of 7 Eliz. it doth not appear there that the King did present by reason of his Prerogative he shewed divers Presidents that the King shall not recover damages in such case P. 7. H. 5. rot 402. 2 H. 6. rot 316. For the Statute was intended to give damages to the very Patron and not otherwise Cook Where the King presents by Lapse he is verus Patronus hac vice as Grantee of the next Avoidance Vide T.E. 1. Quare Impedit 181. The King recovered damages in the case of a Prior. Godfrey said he had searched the Roll of 7 Eliz. and there is more reported in the Book than is in the Roll for Iudgment is given for the Presentee but as for the damages the Court would advise of it Gawdy It is clear that the Queen shall not recover double damages Where only single damages for she cannot lose her presentment quia nullum tempus occurrit and because eo quod tempus semestre transierit but she shall have single damages for they are given for the wrong and disturbance and not for the presentment and therefore the damages are well awarded Wray If the King be not within one part of the Statute as it is agreed as to the double damages it is hard that he be within the other branch Popham Attorney general The Queen ought to recover damages but only single damages but not double damages and the words of the Statute are general therefore the Queen shall have the benefit of it and of all Statutes made for the benefit of the Subjects the King shall take advantage The Statute of Gloucester gives damages in a Writ of Cosinage Aiâ— and Besail and the King brings an Action upon the seisin of his Ancestors he shall recover damages and in construction of Statutes the opinions of them which were next to the making of them is to be much respected Vide 19 E. 2. Rot. 90 19 E. 1. Rot. 255 231 136. And always the King counts to his damage c. and that should be in vain if he should not recover damages And as to the Presidents shewed to the contrary that was the default of those Clerks which the King had presented and when in a Quare Impedit the King had prevailed they contented themselves with the Incumbency without regard of the damages But if damages be not to be given yet the Iudgment to recover the presentment is not erronious And the Iudgment only as to the giving of damages shall be reversed and the Defendant in the Quare Impedit here shall not assign the same for Error because no damages are given 5 Co. 58. for it is for his advantage And always where it is found for the Queen in a Quare Impedit they enquire of the value of the Church A man shall not assign for error that which is for his advantage which should be a trivolous thing if the Queen should not recover damages Gawdy Of things transitorie the Queen may be disturbed and if she be wherefore shall she not recover damages but the doubt is if the intent of the Statute be if the party shall have single damages in any case And here in this case the Iudgment is one and entire and if it be reversed in part it shall be reversed in the whole as in Dower the Tenant pleads that he is always ready c. the Demandant shall have Iudgment to recover her Dower and a Writ shall issue forth to enquire of the damages And see also 17 E. 3. In an Assize of Darrein presentment the Plaintiff had Iudgment to have a Writ to the Bishop And the Assize was taken after for the damages And in the mean time the Defendant brought a Writ of Error and it was holden maintainable for they are several Iudgments but it is not so here for the Entry is Quod querens habeat bre Episcopo quia nescitur quae damna c. for it is one Iudgment Wray It is but one Statute and therefore it shall be construed with one construction and it should
be a strange construction that the King should be within one part of the Statute and out of the other And 34 H. 6. 3. The Kings Attorney could not have damages which is a great proof and authority that the Iudgment for damages in such case is Error The experience and usage of Law is sufficient to interpret the same to us and from the time of E. 3. until now no damages have been given in such case Thrice this matter hath been in question 1. 3 H. 9. and the Iustices there would not give damages 34 H. 6. there the Councel learned of the King could not have damages for the King. And 7 Eliz. there was no damages And whereas it hath been said that a man shall not have a Writ of Error where Iudgment is given for his benefit that if Iudgment be entred that the Defendant be in Misericordia where it ought to be Capiatur yet the Defendant shall have a Writ of Error And he conceived also that here is but one Iudgment Clench The first President after the making of that Statute was that damages were given for the King in such case but afterwards the practice was always otherwise that the said Statute could not be construed to give in such case damages the reason was because the Iustices took the Law to be otherwise And the King is not within the Statute of 32 H. 8. of buying of Tythes nor any Subjects who buy any title of him And here in our case the Queen is not verus Patronus but hath this presentment by Prerogative And if title do accrue to the Bishop to present for Lapse yet the Patron is verus Patronus At another day the case was moved and it was said by VVray that he had conferred with Anderson Manwood and Periam who held that the Queen could not have damages in this case but Periam somewhat doubted of it Gawdy In 22 E. 4. 46. In Dower the Demandant recovered her Dower and damages by verdict and afterwards for the damages the Iudgment was reversed and stood for the Lands Clench It shall be reversed for all for there is but one Iudgment And afterwards Iudgment was given and that the Queen should have a Writ to the Bishop and damages Popham The Court ought not to proceed to the examination of the Errors without a Petition to the Queen and that was the case of one Mordant where an Infant levyed a Fine to the Queen and thereupon brought a Writ of Error and afterwards by the Resolution of all the Iudges the proceedings thereupon were stayed See 10 H. 4. 148. a good case CCVIII Chapman and Hursts Case Trin. 31 Eliz. In the Kings Bench. BEtwixt Chapman and Hurst Tythes the Defendant did libel in the spiritual Court for Tythes against the Plaintiff who came and surmised that whereas he held certain Lands by the Lease of Sir Ralph Sadler for term of years within such a Parish that the now Defendant being Farmor of the Rectory there The Defendant in consideration that the Plaintiff promised and agreed to pay to the Defendant ten pounds per annum during the Term for his Tythes he promised that the Plaintiff should hold his said Land without Tythes and without any sute for the same and thereupon prayed a Prohibition And by Gawdy the same is a good discharge of the Tythes for the time and a good Composition to have a Prohibition upon and it is not like unto a Covenant See 8 E. 4. 14. by Danby CCIX. Kirdler and Leversages Case Trin. 31 Eliz. In the Common Pleas. IN Avowry the case was Avowry 1 Cro. 241. that A. seised of Lands leased the same at Will rendring rent ten pounds per annum and afterwards granted eundem redditum by another deed to a stranger for life and afterwards the lease at will is determined Periam was of opinion that the Rent did continue and although that the words be eundem redditum yet it is not to be intended eundem numero sed eundem specie so as he shall have such a Rent scil ten pounds per annum As where the King grants to such a Town easdem libertates quas Civitas Chester habet it shall be intended such Liberties and not the same Liberties so in the principal case Also he held that a Rent at will cannot be granted for life and therefore it shall not be meant the same Rent But it was afterwards adjudged that the Rent was well granted for the life of the Grantee CCX Heayes and Alleyns Case Trin. 31 Eliz. In the Common Pleas. Cui in vita 1 Cro. 234. Poph. 13. HEayes brought a sur cui in vita against Alleyn And the case was this The Discontinuee of a Messuage had other Lands of good and indefesible title adjoining to it and demolisht and abated the said house and built another which was larger so as part of it extended upon his own Land to which he had good title And afterwards the heir brought a sur cui in vita and demanded the house by the Name of a Messuage whereas part of the house did extend into the Land to which he had no right And by Periam The Writ ought to be of a Messuage with an Exception of so much of the house which was erected upon the soil of the Tenant Demand and the manner of it in a writ as demand of a Messuage except a Chamber And it was argued by Yelverton That the Writ ought to abate for if the Demandant shall have Iudgment according to his Writ then it shall be entred quod petens recuperet Messuagium which should be Erronious for it appeareth by the verdict it self that the demandant hath not title to part of it and therefore he ought to have demanded it specially 5 H. 7. 9. parcel of Land containing 10 Feet 16 E. 3. Br. Mortdanc of a piece of Land containing so much in breadth and so much in length And the moyetie of two parts of a Messuage and 33 E. 3. br Entrie 8. a Disseisor of a Marsh ground made Meadow of it Now in a Writ of Entry it shall be demanded for Meadow Drue Serjeant contrary and he confessed the Cases put before and that every thing shall be demanded by Writ in such sort as it is at the time of the action brought as a Writ of Dower is brought of two Mills whereas during the Coverture they were but 2 Tofts but at the day of the Writ brought Mills and therefore shall be demanded by the name of Mills 14 H. 4. 33. Dower 21. 13 H. 4. 33. 175. 1 H. 5. 11. Walmesly part of a Msseuage may be demanded by the Name of a Messuage and if a House descend to two Coparceners if they make partition that one of them shall have the upper Chamber and the other the lower here if they be disseised they shall have several Assisses and each of them shall make his plaint of a Messuage and by him a Chamber may be
case And at another day it was objected That the Deed could not be acknowledged without a Letter of Attorney being a Corporation which consisted upon divers persons as Prioress and Covent and they are alwaies to be intended to be in their Chapter-house and cannot come into Court to acknowledge a Deed To which it was answered by Cook That this acknowledgment being generally pleaded it shall be intended that it was done by a Lawful means and there is no doubt but that such a Corporation may levy a Fine and make a Letter of Attorney to acknowledge it and see 2 Ma. Fulmerstones case 105. It was further objcted 2 Inst 674. That this Deed was enrolled the same day that it beareth date for the pleading is per factum suum gerens Datum 2 Novemb. 29 Hen. 8. et iisdem die anno irrotulat And by the Statute such a Deed ought to be enrolled within six Months next after the date so as the day of the date is excluded and so it is not enrolled within six Months As to that it was answered by Cook That the time of computation doth begin presently after the delivery of the Deed as in the common Cases of Leases If a man makes a Lease for years to begin from the day of the date the same is exclusive but if it be To have and to hold from the date of the Deed it shall begin presently And an Ejectment supposed the same day is good and then here this Enrolment is within the six Months Dyer 220. b. 1 Cro. 717. and yet see 5 Eliz. 128. Dyer Pophams case It was also objected That it is alledged in the conusans That the Manor was sold to the Lord Audley and that the Deed of Bargain and Sale was acknowledged and enrolled in the Chancery the said Lord being then Lord Chancelor and he cannot take an acknowledgment of a Deed or enrolment of it to himself for he is the Sole Iudge in the said Court so as the Deed is acknowledged before himself and enrolled before himself and that is good enough for here we are not upon the common Law but upon the Statute and here the words of the Statute are performed And the enrolment of the Deed is not the substance of the Deed but the Deed it self Also the acknowledgment of the Deed after it is enrolled is not material for he is estopped to say that it is not acknowledged And as to the matter it self a man shall not have averment against the purport of a Record but against the operation of a Record as not put in view not comprised partes ad finem nihil haberunt c. And against Letters Pattens of the King Non concessit is a good plea which see 18 Eliz. for by such plea it is agreed that it is a Record but that nihil operatur CCLVIII. Osborn and Kirtons Case Hill. 31 Eliz. In the Kings Bench. Rot. 258. IN Debt upon an Obligation The Defendant cast a Protection Debt upon which the Plaintiff did demur Tanfield The Protection is not good for the Defendant is let to Bail and so is intended always in prison for so the Record makes mention and then the Protection quia moratur in portubus Zeland is against the Record Protection and the Court ought to give credit to Records especially Secondly The words of the Protection are That Kirton is imployed in Obsequio nostro which is no cause of protection for the usual form and so is the Law that such a person be imployed in negotio Regni for the defence of England c. For if the King will give aid unto another Princes Subjects employed in such service he shall not have Protection And afterwards variance was objected betwixt the Bill and Declaration and the Protection for the Bill is against John Kirton of A. Gentleman the Protection is John Kirton only But the same was holden no such variance being only in the Addition for before the Statute 1 H 5. additions were not necessary in any actions CCLIX Boyton and Andrews Case Mich. 30 Eliz. Rot. 156. In the Kings Bench. IN Debt upon an Obligation the Condition was Debt 1 Cro. 135. to make sufficient assurance of certain Lands to the Obligee before the tenth day of March 17 Eliz. And if it fortune the said Obligee be unwilling to receive or mislike such assurance but shall make Request to have one hundred pounds for satisfaction thereof Then if upon such Request the Obligor pay one hundred pounds within five months That then the Obligation shall be void And at the day the Obligee doth refuse the assurance and afterwards 27 Eliz. request is made to have the hundred pounds It was the clear opinion of the whole Court That the said Request was well enough for the time and he might make it at any time during his life he is not restrained to make it before the day in which the Assurance is to be made and afterwards judgment was given for the Plaintiff CCLX Knight and Savages Case Mich. 29 30 Eliz. Rot. 546. In the Kings Bench. A Writ of Error was brought upon a Iudgment given in Leicester in Debt Tanfield assigned Error Error 2 Cro. 206. 2 Cro. 109. 654. Sty 91. Yel 164. 165. Post 302. because in that Suit there was not any plaint and in all inferior Courts the plaint is as the original at the common Law and without that no process can issue forth And here upon the Record nothing is entred but that the Defendant summonitus fuit c. and therefore the first entry ought to be A. B. queritur adversus C c. Clench A Plaint ought to be entred before process issueth the summons which is entred here is not any plaint and for that cause the Iudgment was reversed It was said That after the Defendant appeared a Plaint was entred but it was said by the Court That that shall not mend the matter for there ought to be a plaint out of which the process shall issue as in the Courts above out of the original Writs CCLXI Kirby and Eccles Case Trin. 31 Eliz. In the Kings Bench. 1 Cro. 137. IN an Action upon the Case the Plaintiff declared Quod cum quaedam communicatio fuisset betwixt the Plaintiff and one Cowper That Cowper should mast certain Hogs for the Plaintiff the Defendant did promise That in consideration that the Plaintiff promised give unto the Defendant three shillings and four pence for the fatting of every Hog That the said Hogs should be redelivered to him well fatted to which promise and warranty the Plaintiff giving faith delivered to the said Cowper one hundred and fifty Hogs to be masted and that one hundred of them were delivered back but the residue were not It was moved That here is not any consideration for which the Defendant should be charged with any promise but it was argued on the other side That the Promise was the cause
upon a Deed. Hutt 102. Dy. 91. 2 Co. 61. 1 Ma. Dyer 91. and also the wife by her disagreement to it and the occupation of the Land after the death of her Husband hath made it the Lease of the Husband only CCLXXV Rockwood and Rockwoods Case Mich. 31 32 Eliz. In the Common Pleas. Assumpsit 1 Cro. 163. IN an Action upon the case the case was this The Father of the Plaintiff and Defendant being sick and in danger of death and incending to make his Will In the presence of both his Sons the Plaintiff and Defendant declared his meaning to be To devise to the Plaintiff his younger Son a Rent of 4 l. per annum for the term of his life out of his Lands and the Defendant being the eldest Son the intention of his Father being to charge the Land with the said Rent offered to his Father and Brother That if the Father would forbear to charge the Land with the said Rent he promised he would pay the 4 l. yearly to his Brother during the life of his Brother according to the intention of his said Father Whereupon the Father asked the Plaintiff if he would accept of the offer and promised of his Brother who answered he would whereupon the Father relying upon the promise of his said eldest Son forbore to devise the said Rent c. so as the Land descended to the Eldest Son discharged of the Rent and the opinion of the whole Court in this case was clear that upon the whole matter the action did well lye CCLXXVI Petty and Trivilians Case Mich. 31 32 Eliz. In the Common Pleas. Livery of seisin HUmphrey Petty brought Second Deliverance against William Trivilian and upon especial verdict the case was That A. was seised of certain Land and Leased the same for years and afterwards made a Deed of Feoffment unto B. and a Letter of Attorney to the Lessee C. and D. conjunctim vel divisim in omnia singula terras et Tenementa intrate et seisinam inde c. secundum formam Chartae c. Lessee for years by himself makes Livery and seisin in one part of the Land and C. in another part and D. by himself in another part It was first agreed by the Iustices that by that Livery by Lessee for years his Interest and Term is not determined for whatsoever he doth he doth it as an Officer or Servant to the Lessor Secondly It was agreed That these several Liveries were good and warranted by the Letter of Attorney especially by reason of these words In omnia singula c. So as all of them and every of them might enter and make Livery in any and every part And so it was adjudged CCLXXVII Rigden and Palmers Case Mich. 31 32 Eliz. In the Common Pleas. RIgden brought a Replevin against Palmer who avowed for damage feasant in his Freehold The Plaintiff said Replevin That long time before that Palmer had any thing he himself was seised until by A. B. and C disseissed against whom he brought an Assise and recovered Avowry and the estate of the Plaintiff was mean between the Assise and the recovery in it The Defendant said That long time before the Plaintiff had any thing One Griffith was seised and did enfeoff him absque hoc that the said A. B. and C. vel eorum aliquis aliquid habuere in the Lands at the time of the Recovery Walmsley Iustice was of opinion That the Bar unto the Avowry was not good for that the Plaintiff hath not alledged That A.B. and C. Ter-Tenants tempore recuperationis and that ought to be shewed in every recovery where it is pleaded And then when the Defendant traverseth that which is not alledged it is not good Windham contrary For the Assise might be brought against others as well as the Tenants as against disseisors But other real actions ought to be brought against the Ter-Tenants only and therefore it needs not to shew that they were Ter-Tenants at the time of the Recovery and also the traverse here is well enough Another Exception was taken because the Avowry is That the place in which conteineth an 100 Acres of Land The Plaintiff in bar of the Avowry saith that the place in which c. conteins 35 Acres c. but that Exception was not allowed for it is but matter of form is helped by the Statute of 27 Eliz. Another Exception was taken as to the hundred of Cattel and doth not shew in certain if they were Ewes Sty 71. 264. or Lambs or how many of each which also was dissallowed for the Sheriff upon Returno habendo may enquire what cattel they were in certain and so by such means the Avowry shall be reduced to certainty CCLXXVIII RUssell and Prats Case Mich. 31 32 Eliz. In the Exchequer Chamber RUsell brought an action upon the case against Prat and declared That certain goods of the Testator casually came to the Defendants hands and upon matter in Law Iudgment was given for the Plaintiff sed quia nescitur quae damna Error c. Ideo a writ of Enquiry of Damages issued and now Prat brought a Writ of Error in the Exchequer Chamber upon the Statute of 27 Eliz. cap. 8. But note That the Iudgment was given before the said Statute but the Writ of Enquiry of Damages was retorned after the said Statute Writ of Enquiry of Damages the said Statute doth not extend but to Iudgments given after the making of it And it was moved That the said Iudgment is not to be examined here but by the clear opinion of Anderson Manwood Windham Walmesley Gent and Clark Iustices of the Common Pleas and Barons of the Exchequer the Writ of Error lyeth here by the Statute 1 Cro. 235. for in an action of Trespass as this case is full judgment is not given until the Writ of damages be retorned And if before the Retorn of it any of the parties dieth the Writ shall abate and the first Iudgâ—ent which is given before Award of the Writ is not properly a Iudgment but rather a Rule and order and so in a Writ of accompt where Iudgment is given that the Defendant computet cum querente he shall not have Error upon that matter for it is not a full Iudgment See 21 E. 3. 9. So as to the Iudgment in a Writ of Trespass scil That no Writ of Error lyeth before the second Iudgment after the Return of the Writ of Enquiry of Damages are given And also it was holden by all the said Iustices and Barons That an Executor shall have an action upon the case de bonis testatoris casually come to the hands and possession of another Action de bonis Testatoris and by him converted to his own use in the life of the Testator and that by the Equity of the Statute of 4 E. 3. 7. de bonis asportatis in vita Testatoris
the opinion in Baintons Case 8 Eliz. Dyer 37. is not Law and so hath the Law been taken of late Popham contrary If before the Statute of 27 H. 8. the Father covenant in consideration of Advancement of his Son to stand seised to the use of I. S. for life and after the death of I. S. to the use of my Son in Fee here the estate of I. S. in the use is void and yet the estate in the use limited to my Son shall not take effect before the death of I. S. for the estate of my Son is not limited to take effect till after the death of I. S and therefore the possession of the Father is not charged with the use during the life of I.S. But if by way of Feoffment I.S. had refused the Son should have it presently and the Father should not have it for he by his Livery hath put all out of him and it was not the intent of the Feoffment that the Feoffee should have the Land to his own use Popham allowed the difference mentioned before out of 2 E. 4 19 H. 6. betwixt a Feoffment upon condition to enfeoff a stranger and to give in tail to a stranger and that is grounded upon the intent of the parties And Owen Serjeant put the Case cited before 1. 3 Eliz. Dyer 330. A Feoffment is made by the Husband to the use of himself for life and afterwards to the use of one Ann whom he intended to marry for during and until the Son which he should beget on the body of the said woman had accomplished the age of thirty one years and after such time that such Son should come unto such age unto the use of the said woman quamdiu she should live sole they entermarry the Husband dyeth without Issue the wife entreth immediately and continues sole and her Entry was adjudged lawful and the estate in Remainder good although she never had any Son and thereupon a Writ of Error was brought and the first Iudgment was affirmed note by Tanfield and others at the Bar that that was the most apt case to the purpose in the Law and the reason of such Iudgment was because they took it that Deeds ought to be expounded according to the meaning of the parties and estates in possession I grant there ought to be a particular estate upon which a Remainder may depend but the same is not necessary where the Conveyance is by way of use And if I covenant that A. shall have my Lands to him his Heirs to pay my Debts and Legacies the same is by way of bargain and sale and nothing passeth without Enrolment And here the Attainder doth not prevent the use as it hath been objected by Master Solicitor for the use doth rise before the Attainder for William Paget had a Remainder in tail in the life of his Father upon the first limitation c. Periam Iustice I lease my Lands to you to begin after the expiration of a Lease which I have made thereof to I.S. and in truth he hath not any Lease the same Lease shall never begin Manwood chief Baron I lease my Lands to you or grant a Rent to you to begin after the death of Prisoit Serjeant at Law when shall that begin Coke Presently Manwood cujus contrarium est Lex CCLXXX The Queen against the Arch-Bishop of Canterbury Fane and Hudson Mich. 31 32 Eliz. In the Common Pleas. Rot. 1832. THe Queen brought a Quare Impedit against the Arch-Bishop of Canterbury the Bishop of Chichester and Hudson Quare Impedit 4 Len. 107. Hob. 303. 175. Owen 155. and counted that John Ashburnham was seised of the advowson of Burwash was outlawed in an action of Debt during which Out-lawry in force the Church voided for which it belongs to the Queen to present The Arch-Bishop and Bishops plead that they claim nothing but as Metropolitan and Ordinary Fane pleaded that King E. 4. Ex gratia sua speciali c. and in consideration of faithful service c. did grant to the Lord Hastings the Castle and Barony of Hastings and Hundred c. Et quod ipse haberet omnia bona catalla tenentium residentium non residentium aliorum residentium quorumcunque hominum de in Castro Baronia c. or within the same pro munero debit c. tam ad sectam Regis c. quam c. Ut legatorem quid ipse faceret per se vel per his sufficient Deputies c. And from him derived to the now Earl of Huntington as Heir and the said Earl so seised and the said Ashburnham seised of the advowson as appendant to the Manor of Ashburnham holden of the said Barony the Church aforesaid during the Out-lawry aforesaid became void For which the said Fane ad dictam Ecclesiam usurpando presentavit the said Hudson who was admitted and instituted c. with this That idem T.C. verificare vult that the said Church of Burwash is and at the time of the grant was within the Precinct Liberty and Franchise aforesaid and that the said Manor of Ashburnham at the time of the grant aforesaid was holden of the said Barony and the Incumbent pleaded the same Plea if by that grant of King Edward the fourth to the Lord Hastings scil omnia bona catalla c. The presentment to the Church should pass or not was the question Shutleworth Serjeant argued for the Queen he confessed that the King might grant such presentment but it ought to be by special and sufficient words so as it may appear by them that the intent of the King was to grant such a thing for the general words omnia bona catalla will not pass such special Chattel in the Kings grant And he conceived that by the subsequent words no Goods or Chattels shall pass by such Grants but such which may be seised which the avoidance of a Church cannot be quod ipse liceret per se vel ministros suos ponere se in seisinam 8 H. 4. 114. 15. the King granted to the Bishop of London that he should have Catalla felonum fugitivor de omnibus hominibus tenentibus de in terris feodis praedict and of all resiants within the Lands and Fees aforesaid Ita quod si praedict homines tenentes residentes de in terris feodis praedict seu aliqui eorum seu aliquis alius infra cadem terra feodis pro aliqua transgressione c. vid. librum c. and by Tirwit By that Grant the goods of those who are put to Pennance shall not pass so of the goods of one Felo de se vid. 42 E. 3. 5. One being impanelled on the Grand Enquest before the Iustices of Oyer and Terminer pleaded the charter of the King of exemption from Enquests and because in the said charter was not this clause More 126. licet tanget nos
barred but if the Wife enter after the death of her Husband and before the Proclamations pass the issue is not bound by the Fine And if Tenant in Tail granteth totum statum and after levieth a Fine thereof with Proclamations come ceo c. The Issue is barred contrary where the Fine is upon a Release c. CCCXLVI Henningham and Windhams Case 18 Eliz. In the Kings Bench. ARthur Henningham brought a Writ of Error against Francis Windham upon a common Recovery had against Henry his Brother Error Owen Rep. 68. and the Case was That Land was given in special tail to Thomas Henningham Father of the said Henry and the said Arthur the Remainder in general tail the estate tail in possession was to him and the Heirs Mairs of his body Thomas had issue the said Henry and three Daughters by one woman and the said Arthur and two other Sons by another woman and dyed seised Henry entred and made a Feoffnent a common Recovery is had against the Feoffee in which Henry is vouched who vouched over the common Vouchee according to the usual course of common Recoveries Henry dyed without issue Error and Attaint by him to whom the Land is to descend and Arthur brought a Writ of Error being but of the half blood to Henry And it was resolved by the whole Court That Error and Attaint always descends to such person to whom the Land should descend If such Recovery or false oath had not been As if Lands be given to one and the Heirs Females of his body c. and suffers an erronious Recovery and dyeth the Heir female shall have the Writ of Error So upon Recovery of Lands in Borough English for such Action descends according to the Land quod fuit concessum per totam Curiam But it was objected on the Defendants part That because that the Feoffee being Tenant to the Praecipe is to recover in value a Fee-simple and so Henry is to yield a Fee-simple which should descend to the heir at the Common Law if this Recovery had not been therefore he to whom the same should descend should have the Writ of Error for he hath the loss But the said Exception was not allowed And it was said That Tenant in tail upon such a Recovery shall recover but an estate in tail scil such estate which he had at the time of the warranty made c. And afterwards Iudgment was given that the Action was maintainable So if a man hath Lands of the part of his mother and loseth it by erronious Iudgment and dyeth That the Heir of the part of the Mother shall have the Writ of Error CCCXLVII Foster and Pitfalls Case 18 Eliz. In the Kings Bench. IN Ejectione firmae the Case was 1 Cro. â— Brook devised Lands to his Wife in general Tail the Remainder over to a stranger in Fee and dyed he took another Husband and had issue a Daughter The Husband and Wife levyed a Fine to a stranger The Daughter as next Heir by 11 H. 7. entred It was agreed by the whole Court That an estate devised to the wife is within the words but not within the meaning of the Statute Secondly It was resolved That no estate is within the meaning of the Statute unless it be for the Ioynture of the Wife Thirdly Resolved That the meaning of the Statute was That the wife so preferred by the Husband should not prejudice the issues or heirs of her Husband and here nothing is left in the Issues or heirs of the Husband so as the Wife could not prejudice them for the Remainder is limited over CCCLXVIII Greenes Case 18 Eliz. In the Kings Bench. Acceptance of Rent 1 Cro. 3. 3 Co. 64. b. GReene made a Lease for years rendring Rent with clause of Re-entry and the Rent due at the Feast of the Annunciation was behind being demanded at the day which Rent the Lessor afterwards accepted and afterwards entred for the condition broken and his Entry holden lawful Entry Plow Com. in Browning and Bestons Case for the Rent was due before the condition broken but if the Lessor accepts the next Quarters Rent then he hath lost the benefit of Re-entry for thereby he admits the Lessee to be his Tenant And if the Lessor distrain for Rent due at the said Feast of the Annunciation after the forfeiture he cannot afterwards re-enter for the said forfeiture for by his Distress he hath affirmed the possession of the Lessee So if he make an Acquittance for the Rent as a Rent contrary if the Acquittance be but for a sum of mony and not expresly for the Rent all which tota Curia concessit CCCXLIX 20 Eliz. In the Common Pleas. THe Case was Lessee for life the Remainder for life the Remainder in tail the Remainder in fee The two Tenants for life make a Feoffment in fee. Dyer A woman Tenant for life in Ioynture the Remainder for life the Remainder in fee the Tenants for life joyn in a Feoffment Entry for Forfeiture the Entry of him in the Remainder in fee is lawful by 11 H. 7. And if Tenant for life be impleaded and he in the Remainder for life will not pray to be received he in the last Remainder may and so in our case inasmuch as he in the Remainder for life was party to the wrong he in the Remainder in tail shall enter Which Harper and Munson granted Dyer 339. a. i. e. Manwood Although that this Feoffment be not a Disseisin to him in the Remainder in tail yet it is a wrong in a high degree as by Littleton A Disseisor leaseth for life to A. who aliens in fee the Disseisee releaseth to the Alienee it is a good Release and the Disseisor shall not enter although the Alienation was to his disinheritance Lit. 111. which Dyer granted And if Tenant for life alieneth in fee and the Alienee enfeoffeth his Father and dieth the same descent shall not avail him no more than in case of Disseisin Livery of Seism It hath been objected that this is the Livery of the first Tenant for life and the confirmation of him in the Remainder for life Dyer was of opinion That by this Livery the Remainder for life passeth and this Livery shall be as well the Livery of him in the Remainder as of the Tenant in possession and although where an estate is made lawfully by many it shall be said the Livery of him only who lawfully may make Livery Yet where an estate is wrongfully made it shall be accounted in Law the Livery of all who joyn in it And in this the Remainder for life is extinguished by the Livery in the Feoffee and the Livery of him in the Remainder for life shall be holden a void Livery especially when he joyns with such a person who hath not authority to make Livery As if the Lord and a Stranger Disseise the Tenant and make a Feoffment over the whole Seigniory is
afterwards that this murder is dispunishable notwithstanding the Statute of 2 Ed. 6. CCCLXIV The Queen and Braybrooks Case Pasch 25 Eliz. In the Kings Bench. 3 Co. 1 2 c. THe Queen brought a Writ of Error against Braybrook The Case was this That King Ed. 4. was seised of the Manor of Marston and gave the same to Lionel Lord Norris and A.M. and the Heirs of the body of the Lord the Remainder to H. Norris in Tail L and A. entermarry L. suffered a common Recovery against himself only without naming the said A. Hen. Norris is attainted of high Treason by Act of Parliament and by the same Act all his Lands Tenements Hereditaments Rights Conditions c. the day of the Treason committed or ever after c. Hen. Norris is executed Lionel dieth without issue the Queen falsified the said Recovery for one moiety by Scire facias because Anne who was joint-tenant with Lionel was not named party to the said Recovery and afterwards the Queen granted to the Lord Norris Son of the said Hen. Norris Manerium suum de Merston omnia jura in eodem and now upon the said Recovery the Queen brought a Writ of Error and it was argued by Egerton the Queens Sollicitor that this right to a Writ of Error is such a right as is transferred to the Queen by the Act of Parliament for the words are omnia jura sua quaecunque and here is a right although not a present right yet a right although in futuro so it is a right of some quality as A. Tenant in Tail the Remainder in Tail to B.A. makes a Feoffment in Fee B. is attainted of high Treason and by such Act all his Lands c. given to the King. A. dieth without issue the Queen shall have a Formedon in the Remainder and although the Queen hath granted to the Lord Norris Manerium suum de Merston omnia jura in eodem yet by such general words a Writ of Error doth not pass which See 32 H. 8. Br. Patents 98. And also this Action rests in privity of record and cannot be displaced from thence but by Act of Parliament see Br. Chose in Action 14. 33 H. 8. for when the King will grant a thing in Action he ought in his Patent to recite all the circumstances of the matter as the Right and how it became a Right and because the Queen here doth not make mention of this Right as of the Entail the Recovery and the Attainder for that cause the Right doth not pass The Case betwixt Cromer and Cranmer 8 Eliz the Disseisee was attainted of Treason the Queen granted to the Heir of the Disseisee all the Right which came unto her by the Attainder of his Ancestor nothing passed Causa qua supra And always where the King grants any thing which he cannot grant but as King that such a grant without special words is to no purpose Coke contrary he agreed the Case put by Egerton for at the time of the Attainder B. had a Right of Remainder but in our Case Hen. Norris had not any Right but a possibility of a Right of Action i.e. a Writ of Error And he said that this Writ of Error is not forfeitable for it is an Action which rests in privity no more than a condition in gross as a Feoffment in Fee is made upon condition of the party of the Feoffor who is attainted ut supra This word Right in the Act of Attainder shall not transfer this Condition to the Queen and of the Act of Attainder to Hen. Norris it is to be conceived That the makers of the Act did not intend that by the word Right every right of any manner or quality whatsoever should pass to carry a Condition to the Queen and therefore we ought to conceive that the makers of the Act did not intend to touch Rights which rested in privity And as to the Grant of the Queen to the Lord Norris of the Mannor of Merston Et omnia jura sua in eodem he conceived that thereby the Right of the Writ of Error did pass for it is not like Cranmers Case but if in the said Case the Land it self had been set down in the Grant it had been good enough as that Cranmer being seised in Fee of the Manor of D. was there of disseised and so being disseised was attainted of high Treason now the Queen grants to his Heirs totum jus suum in his Manor of D c. and so in our Case the Queen hath granted to the Lord Norris Manerium suum de Merston omnia jura sua in eodem c. at another day it was moved by Plowden that this Right of Writ of Error was not transferred to the Queen by the Act but such Right might be saved to a stranger c. the words of the Act are omnia jura sua and this word sua is Pronomen possessionis by which it is to be conceived that no Right should pass but that which was a present Right as a Right in possession but this Right to a Writ of Error was not in Hen. Norris at the time of his Attainder but it was wholly in him against whom the erroneous Iudgment was had and therefore if in a Praecipe quod reddat the Tenant vouch and loseth and Iudgment is given and before Execution the Tenant is attainted by Act of Parliament by words ut supra and afterwards he is pardoned the Demandant sueth for Execution against the Tenant now notwithstanding this Attainder the Tenant may sue Execution against the Vouchee and afterwards Wray chief Iustice openly declared in Court the opinion of himself and all his companions Iustices and also of all the other Iustices to be That by this Act of Parliament by which all Lands Tenements Hereditaments and all Rights of any manner and quality whatsoever Henry Norris had the day of his Attainder or ever after Lionel then being alive and over-living the said Hen. Norris that this Writ of Error was not transferred to the Queen And that the said Act by the words aforesaid could not convey to the King this possibility of right for at the time of the Attainder the Right of the Writ of Error was in Lyonel and Hen. during the estate tail limited to Lyonell had not to do with the Land nor any matter concerning it And Iudgment was given accordingly And it was holden That he in the Reversion or Remainder upon an Estate tail might have a Writ of Error by the common Law upon a Recovery had against Tenant in tail in Reversion CCCLXV Mich. 25 26. Eliz. In the common Pleas. Copy-holder IN Trespass brought by a Copy-holder against the Lord for cutting down and carrying away his Trees c. It was found by special Verdict That the place where c. was Customary lands of the Plaintiffs holden of the Defendant and that the Trees whereof c. were Chery Trees de
out of the pardon shall be intended and construed the bare Act of Conversion but the whole offence i. the continuance and practise of it is understood As if by general pardon all intrusions are excepted now by that the instant Act of Intrusion i. the bare Entry is not only excepted but also the continuance of the Intrusion and the perception of the profits And note The words of the Statute are conversion permitted and Conversion continued is Conversion permitted And the said Statute doth not punish the Conversion but also the continuance of the Conversion for the penalty is appointed for each year in which the Conversion continues And Egerton Solicitor put this Case 11 H. 8. It was enacted by 3 H. 7. cap. 11. That upon Recovery in Debt if the Defendant in delay of Execution sues a Writ of Error and the Iudgment be affirmed he shall pay damages now the case was That one in Execution brought such a Writ of Error and the first Iudgment is affirmed he shall pay damages and yet here is not any delay of the Execution for the Defendant was in Execution before but here is an Interruption of the Execution and the Statute did intend the Execution it self i. the continuance in Execution ibidem moraturus quousque It was said on the other side That the conversion and continuance thereof are two several things each by it self and so the conversion only being excepted in the pardon the continuance thereof remains in the grace of the pardon And it appeareth by the Statute of 2 and 3. Ph. Ma. That conversion and continuance are not the same but alia atque diversa and distinct things in the consideration of the Law for there it is enacted That if any person shall have any Lands to be holden in Tillage according to the said Statute but converted to Pasture by any other person the Commissioners c. have authority by the said Statute to enjoyn such persons to convert such Lands to Tillage again c. And in all cases in the Law there is a great difference betwixt the beginning of a wrong and the continuance of it As if the Father levyeth a Nusance in his own Lands to the offence of another and dyeth an Assize of Nusance doth not lye against the Heir for the continuance of that wrong but a Quod permittat See F.N.B. 124. It was adjorned CCCLXX Powley and Siers Case Mich. 26 Eliz. In the Kings Bench. POwley brought Debt against Sier Executor of the Will of A Debt The Defendant demanded Iudgment of the Writ for he said That one B. was Executor of the said A. and that the said B. did constitute the Defendant his Executor so the Writ ought to be brought against the Defendant as Executor of the Executor and not as immediate Executor to the said A. The Plaintiff by Reply said That the said B. before any probate of the Will or any Administration dyed and so maintained his Writ Wray Iustice was against the Writ for although here be not any probate of the Will of A. or any other Administration yet when B. made his Will and the Defendant his Executor the same is a good acceptance in Law of the Administration and Execution of the first Will for the Defendant might have an Action of Debt due to the first Testator Gawdy and Ayliff Iustices The Writ is good See Dyer 1 Cro. 211. 212. 23 Eliz. 372. against Wray CCCLXXI Pasch 26 Eliz. In the Kings Bench. THe Case was A seised of certain Lands Bargain and sale of Trees bargained and sold by Indenture all the Trees there growing Habendum succidendum exportandum within twenty years after the date of the said Indenture the twenty years expire The Bargainee cuts down the Trees A. brought an Action of Trespass for cutting down the Trees And by Wray Iustice The meer property of the Trees vests in the Bargainee Post 288. and the Limitation of time which cometh after is not to any purpose but to hasten the cutting of the Trees within a certain time within which if the Vendee doth not cut them he should be punished as a Trespassor as to the Land but not as to the Trees Gawdy contrary And that upon this Contract a conditional property vests in the Vendee which ought to be pursued according to the direction of the condition and because the condition is broken the property of the Trees is vested in A. CCCLXXII Curriton and Gadbarys Case Pasch 26 Eliz. In the Kings Bench. IN in Action upon the Case the Plaintiff declared Leases That the Defendant in consideration that the Plaintiff should make a lease for life to the Defendant of certain Lands Habendum after the death of A. before the tenth of August next following promised to pay the Plaintiff ten pounds the first day of May next after the promise which was before the tenth of August And the truth was That the said ten pounds was not paid at the day ut supra nor the said Lease made And now both sides being in default the Plaintiff brought an Action It was said by Wray Iustice If the Plaintiff had made the Lease according to the consideration and in performance thereof the action would have lyen but now his own default had barred him of the Action But for another cause the Declaration was holden insufficient for here is not any Consideration for the promise is in consideration that the Plaintiff shall lease to the Defendant for life Habendum after the death of A. which cannot be good by way of lease but ought to enure by way of grant of the Reversion so as here is no lease therefore no consideration and notwithstanding that if a Lease be made for life Habendum after the death of A. the Habendum is void and the Lease shall be in possession according to the Premises yet the Law will not give such construction to the words of a Promise Contract or Assumpsit but all the words ought to be wholly respected according to the Letter so as because that no Lease can be made according to the words of the Consideration no supply thereof shall be by any favorable construction And so it was adjudged But before the same imperfection was espied Iudgment was entred and therefore the Court awarded that there should be a cesset executio entred upon the Roll for it is hard as it was said by Wray to drive the party to a Writ of Error in Parliament because Parliaments are not now so frequently holden as they have used to be holden and the Execution was staid accordingly CCCLXXIII Willis and Crosbys Case Pasch 26 Eliz. In the Kings Bench. Error IN a Writ of Error It was assigned for Error That whereas in the first Action the parties were at issue and upon the Venire facias one Gâ—â—gory Tompson was returned But upon the Habeas Corpora George Tâ—â—â—â—son was returned and the Iury was taken and found for the
197 p VVright and the Bishop of Norwiches case 218 p VVhisker and Cleytons Case 219 p VVard and Blunts case 251 p VVeston and Grendons case 255 p VVoodshaw and Fulmerstons case 262 p VVindham and Sir Edward Cleeres case 263 p VVickes and Dennis case 271 p VValgrave and Ogdens case 305 p VVard and Knights case 315 p VViseman and VVaringers case 339 p VVeston and Garnons case 343 p VVillis and Crosbies case 373 p VVilliams and Blowers case 402 p VValpoole and Kings case 407 p VViggot and Clarks case 419 p VVangford and Sectons case 423 p VVilmer and Oldfeilds case 424 p VVolman and Fies case 449 p VVillis and VVhitewoods case 454 p VVade and Presthalls case 466 p VVharton and Morleys case 467 p VValgrave and Agars case 469 p Z. ZOuch and Bamfeilds case 102 p REPORTS AND Cases of Law Argued and Adjudged in the Time of Queen Elizabeth From the twenty fourth to the three and thirtieth year of Her Reign I. Borneford and Packingtons Case Hill. 25. Eliz. in the Kings Bench. IN Trespas It was found by special verdict Custom of Free-Bench That the Defendant was seised of the Manor of B. whereof the place where is parcel demised and demiseable by Copy c. And that B. the Granfather of the Plaintiff was seised of the place where c. according to the custom of the said Manor in Fee-simple and that within the said Manor there is this Custom That if any Copy-holder dieth seised his Wife over-living him shall hold all the Land during her Widowhood as Free-bench and shall be admitted Tenant to the Lord 2 Brownl 21. and that the Heir shall not be admitted to it during the life of his Mother And found also another Custom within the said Manor That if any Copy-holder be convicted of Felony and the same be presented by the Homage that then the Lord might seize c. And it was further found that the Grandfather of the Plaintiff took a Wife and died seised having issue A. Father of the Plaintiff The Wife is admitted to her Free-bench A. is convicted of Felony and that is presented by the Homage and afterwards A. died after which the Wife died c. It was argued by Atkinson that A. is not within the danger of this Custom for during the life of his Mother who by a Claimer is Tenant to the Lord and admitted to it she is Copy-holder and it is not like to the Case lately adjudged of possessio fratris without admittance for there the party was admittable and so he was not here And also it appeareth by the Custom as it is found That the Lord upon such matter shall seize and therefore we ought to make construction that this Custom doth not extend to Cases where the Lord cannot seize but in the Case at Bar the Lord cannot seize by reason of this Free-bench And we ought not by any construction to extend a Custom beyond the words in which it is conceived but it shall be taken strictly and not be supplyed by Equity with a Custom in the place of a Seisure But notwithstanding all this afterwards Iudgment was given against the Plaintiff II. Hill. 25 Eliz. in the Kings Bench. A Copy-holder doth surrender to the use of one A. upon trust that he shall hold the said Land until he hath levyed certain monies and that afterwards he shall surrender to the use of B the monies are levyed A. is required to make surrender to the use of B. he refuseth B. exhibits a Bill to the Lord of the Mannor against the said A. who upon hearing of the Cause decrees against A. that he shall surrender he refuseth now the Lord may seize and admit B. to the Copy-hold for he in such Cases is Chancellor in his own Court per totam Curiam III. Wade and Bemboes Case Hill. 25. Eliz. in the Kings Bench. IN a Writ of Error by Wade against Bembo upon a Iudgment given in the Court of the City of Bristol the Case was That Bembo was Plaintiff in the said Court against Wade in an Action of Covenant and declared of a Covenant made by word by the Testator of Wade with Bembo and declared also that within the said City there is a Custom That Conventio ore tenus facta shall bind the Covenantor as strongly as if it were made by writing And it was holden by the Court that that Custom doth not warrant this Action for the Covenant binds by the Custom the Covenantor but doth not extend to his Executors and a Custom shall be taken strictly and therefore the Iudgment was reversed IV. The Lord Paget and Sir Walter Ashtons Case 25 Pasch 25. Eliz. in the Kings Bench THe Lord Paget brought an Action of Trespass against Sir Walter Ashton who justified because he is seised of three Messuages to him and his Heirs and that he and all those whose estate he hath c. have had the Woodwardship of the Forrest of C. within which the place where c. and also have had within the said Forrest Estovers without number And that one Rowland Bishop of Coventry and Lichfield was seised of the Forrest aforesaid in the right of his Church and by Indenture betwixt him and Sir Edw. Ashton his Ancestor whose Heir he is setting forth that divers debates had been betwixt the said parties concerning some profits within the said Forrest It was agreed betwixt them that the said Sir Ed. Ashton should release unto the said Rowland all his right in the said Office and Estovers and that the said Rowland shoud grant de novo unto the said Edw. and his Heirs the said Office and one hundred loads of Estovers per annum out of the said Forrest After which the said Ed. according to the said agreement did release to the said Bishop ut supra after which the said Bishop by Indenture reciting the said former Convenants in compl Indenturae praedict Convent did grant to the said Sir Ed. the said Office and Estovers pro easiamento dicti Edwardi haered suorum by assignment of the Officers of the said Forrest and if the assignment he not made within ten days after request that then the said Ed. and his Heirs should cut dow wood where they pleased and averred the things released were of as great value as the things granted And upon this matter the Plaintiff did demurr in Law and it was adjuded for the Plaintiff for here no Inheritance in the things granted passed to the said Sir Ed. but only an Interest for his own life 1. Inst 148. a. 398. b. ib. Dy. 253. 1 Cro. 644. for the grant was to Sir Ed. only without the word Heirs and the reference to the Indentures by which the Bishop hath covenanted to grant the Inheritance nor the words in the grant imply an estate in Fee s. pro easimento dict Ed. haered suorum and that in default of Assignment it should be lawful for Sir Ed. and his Heirs
licence by recovery c. N. Vaux the surviving Feoffee died having issue W. Lord Vaux the purchasor died seised his Son and Heir 14 Eliz. levied a Fine Sur Conusans de droit c. and that Fine was levied to the use of the Conusee c. and that without licence The Lord Vaux within five years after the Fine levied entred for the condition broken and now issued forth a Scire facias against the Conusee for that alienation without licence who made default whereupon issued process to seize the Lands whereupon came Sir Tho. Tresham Fine for Alienation without Licence and shewed the whole matter aforesaid and prayed to be discharged It was said that this Prerogative to have a Fine for alienation without licence had lately beginning upon the original creation of Seignories so as this prerogative is as it were paramount the Seignory and shall go paramount the Condition as well as the Condition is paramount the Alienation but if the disseisor of the Tenant of the King maketh a Feoffment in Fee now upon the entry of the disseisee the person of the Feoffee shall be charged with a Fine but the Land by the re-entry of the disseisee is discharged and such is the opinion of the Lord Frowick in his Reading upon the Statute of Prerogativa Regis and the reason is because the disseisor is not Tenant to the King and so when he aliens it cannot be said an Alienation by the Kings Tenant See 45 E. 3. 6. If the Tenant of the King in chief seaseth for life with licence and afterwards grants the Reversion over without licence Entry for Condition what acts it shall defeat the Tenant for life is not bound to atturn in a Quid juris clamat wherfore it seems that if such Tenant doth attorn the King shall seize presently This Entry for the Condition broken is not to have so violent a retrospect to the first livery to which the Condition was annexed that it shall defeat all things mean between the Creation and the breach of the Condition but it shall defeat all mean things which rise upon the act of the party as Rent Dower c. But charges which accrue by reason of Tenure do remain notwithstanding the Entry for the Condition broken As if such a Tenant of the King maketh a Feoffment in Fee upon condition which is broken the Feoffee dieth seised his Heir of full age the Feoffor re-entereth this re-entry by force of the condition broken hath not so avoided the descent but the King shall have Relief upon the said descent for the Relief is paramount the Livery and the condition So if a Feoffee upon condition disclaim in Avowry Condition shall not avoid an Interest vested by which the Lord brings a Writ of Right Sur Disclaimer and hath Iudgment the Feoffee entreth for the condition broken the said re-entry shall not avoid the interest of the Lord by the Iudgment on the Writ of Disclaimer but he may enter at his pleasure and it was moved by Plowden who argued for Tresham that if the Tenant of the King being Non Compos mentis makes a Feoffment in Fee and dieth his Heir entring upon the Feoffee shall not pay a Fine for the Alienation of his Father but the person of the Father shall be charged with it And at the end of this Term after many Arguments and Motions Iudgment was given for the Queen that she should seize the Land and hold the same for the Fine and that she should not be driven to sue the person of the Feoffee or Conusee And by Manwood chief Baron at the Commom Law in many Manors Tenant in soccage upon every alienation shall pay a Fine nomine relevii a fortiori in the Kings case and therefore he was of opinion That this Prerogative to have a Fine for alienation without licence is by the common Law and not by any Statute XII Caters Case Mich. 25 and 26 Eliz. in the Exchequer Chamber A Bill of Intrusion was in the Exchequer against Cater Intrusion 7 Co. 12. 1 Anders 95. who pleaded the Grant of the Queen the Plaintiff replicando said that before the Queen had any thing c. Sir Francis Englefield was seised of the Manor of which c. and he being beyond the Seas the Queen sent her Letters under the Privy Seal Quod ipse in fide legeantiâ quâ dictae Reginae tenebatur indirecte rediret in Angliam praedict tamen Franciscus spretis mandatis dict Reginae venire recusavit for which a Certificate was by the said Queen into the Chancery Quod dictus Franciscus in portibus transmarinis sine licentia dict Reginae remansit And thereupon a Commission was awarded to seize the Lands of the said Sir Francis which was entred in the Replication in haec verba reciting also the Queens Privy Seal and that the said Sir Francis did stay there spretis mandatis c. for which the Queen seised and granted to the Plaintiff And afterwards the Statutes of 13 and 14. Eliz. were made after which the said grant was made to the Defendant upon which matter there was a Demurrer and Iudgment given for the Plaintiff Error And now Cater brought a Writ of Error in the Exchequer Chamber and it was first assigned for Error because that the Record is entred Inter Johannem Cater present hic in Curia by I.S. Attornatum suum and that cannot be for it is oppositum in objecto that one can be present in Court and also by Attorney simul semel for the Attorney is to supply the default of the personal presence To which it was said by Wray Anderson and Periam that the matter assigned was no Error for there are many Presidents in the Exchequer of such Entries which were openly shewed in Court. 48 E 3. 10. R 2. 20 H 7. 20 H 8. And by Manwood chief Baron it is not so absurd an Entry as it hath been objected for if one hath an Attorney of Record in the Kings Bench and he himself is in the Marshalsey there is an Action against him he is present as Prisoner and also by Attorney and by them notwithstanding that here appeareth a contrariety for such Entry properly is presentem hic in Curia in propriâ persona sua yet because many proceedings are according it is the more safe course to follow them for if this Iudgment be reversed for this cause many Records should be also reversed which should be very perillous An other Error was assigned because it is not alledged in the Replication of what date the Privy Seal was nor that any notice of the said Privy Seal was given to Sir Francis to which it was said that the Privy Seal need not any date especially in this case for the matters which are under the Privy Seal are not issuable See 2 Eliz. Dyer 177. Privy Seal nor any traverse can be taken to it and this Privy Seal is not
extend ad veritatem facti which is set forth in the Avowry but only to reputation and so both stand together well enough Rent charge parcel of a Mannoâ— And that a Rent charge may be parcel of a Manor see 22 E 3. 13. 31. E 3. 23. in the Lord Tiptofts Case where it is ruled that title made to a Rent charge as parcel of a Manor is a good title and the Assize awarded upon it and in our Case the Reputation is enforced by the sute at the Court which was also reserved upon the said Feoffment together with the said Rent so as the intent of the parties to the Feoffment was that this Rent so reserved and accompanyed with the said sute shall be esteemed a Rent service and so parcel of the Manor and as to the continuance of Reputation it sufficeth if at the time of the bargain and sale aforesaid which was 26 H 8. it was by many reputed parcel of the Manor and he cited the Case of the Marquess of Winchester The King gave to his Ancestor the Manor of Dale and all lands then antea reputed parcel of the said Manor and in a Bill of Intrusion against the said Marquess he pleaded the grant with averment that the Land then antea reputed parcel Manerii praedict And because he did not shew certainly at what time the Land was reputed parcel of the Manor Iudgment was given for the Queen for it might be for any thing in his Plea that the said Land was reputed parcel of the said Manor before time of memory which Reputation would not serve but such Reputation ought to be within time of memory and understanding He cited also the Case of the Earl of Leicester King Edward the sixth seised of the Manor of Clibery of which a Wood was parcel granted the said Wood in Fee which afterwards escheated to the King for Treason Queen Mary granted the said Wood to another in Fee who granted it to the now Queen who granted the said Manor omnes boscos modo vel ante hac cognit vel reputat ut pars membr vel parcel Maner praedict to the Earl of Leicester and it was resolved in the Exchequer that by that grant the said Wood did pass to the Earl and Iudgment was given against the Queen Dy. 362 â— for it was part of the Manor in the time of E 6. at which time an t ' hac without the word unquam shall be extended ad quoddamcunque tempus praeteritum And Reputation needs not so ancient a Pedigree for to establish it for general acceptance will produce reputation As the house of the Lord Treasurer now called Tibould was of late a private Manor but now hath a new name by which it is known and that within these twenty years which is not so long a time as we have alleged for our Reputation and would pass in a conveyance by such name so None-such But as to Reputation I conceive that Reputation is not what this or what that man thinketh Reputation quid but that which many men have said or thought who have more reason to know it quaenam est inter illos reputatio There was a Case ruled in the Exchequer 13 Eliz. in a Bill of intrusion the Case was that King Hen. 6. was seised of a Manor to which a Neif was regardant who purchased Lands which the King seised and let by Copy as parcel of the said Manor and so continued until the time of E 6. who granted the same to Allice Hardwick and all Lands Tenements reputed parcel of the said Manor And it was adjudged that the said Land so purchased by the said Neif and demised by Copy did pass by the said grant to Hardwick And afterwards the same Term the Iustices without any solemn Argument shewed their opinions in the principal Case viz. That this Rent did not pass by the bargain and sale made as above by Anthony Wingfield to Bohan father of the Avowant for here in the premisses of the Avowry is not any matter set forth importing Reputation or by which it may appear that the Rent in question was ever reputed parcel of the said Manor but rather to the contrary and the bare averment of Reputation in the conclusion of the Avowry is not sufficient to induce Reputation But if the Avowant had set forth in his Avowry any special matter to induce the Court to conceive a Reputation upon the matter of the Avowry as to shew that the Bayliffs of the said Manor had always received the said Rent as parcel of said Manor and as Bayliffs of the said Manor had accounted for it as parcel of the Manor and that the Lessees of the said Manor had enjoyed the said Rent as parcel of the said Manor the same had been good matter to induce a Reputation to have incorporated the said Rent with the said Manor and so judgment was given against the Avowant and of such opinion as was affirmed by Wray was Anderson chief Iustice of the Common Pleas and Manwood chief Baron of the Exchequer XIX Cham and Dovers Case Pasch 26 Eliz. in the Kings Bench. Ejectione firmae IN an Ejectione firmae the Case was that one Michel was seised of the Manor of D. within which diverse parcels of Land part of the said Manor where customary Tenements demised and demisable by copy c. according to the Custom of the said Manor for one two or three lives within which Manor there was a Custom scil that the Lord of the Manor for the time being might grant Copy-hold estates for life in Reversion The Lord granted such Lands for life by copy in possession took a wife and granted the same Copy-hold to a stranger in Reversion for life and died the Copy-holder in possession died the Land demised by copy is inter alia assigned to the Wife for her Dower who had Iudgment to recover in a Writ of Dower who entred and made a Lease thereof to the Defendant who entred against whom the Lessee of the Copy-holder brought Ejectione firmae Custom ad pasturandum non ad colendum and all this matter was found by Verdict and further found that every Copy-holder of the said Manor might Lease his Copy-hold for a year ad pasturandum sed non ad colendum and that the Lease made to the Plaintiff was for a year ad pasturandum 1. Cro. 469. Wells versus Partridge Post 100. Popham Attorny General of Council with the Defendant took exception to the Declaration because the Plaintiff had declared a Lease at the common Law and the Iury have found a Lease by the custom which cannot stand together And such a Verdict doth not maintain the Declaration as if the Plaintiff had declared upon a Lease for years of Lands and the Iury found a devise for years c. but the exception was disallowed by the Court. As to the matter in Law he argued that the Tenant in Dower should
reported by Coke in the Case of the Marquess of Winchester XXVIII Dayrel and Thinns Case Trin. 26 Eliz. In the Kings Bench. Error EDward Dayrel brought a Writ of Error against Sir John Thinn upon a Iudgment had by the Defendant against the Plaintiffs Father of the Manor of Mexden And Error was assigned for want of warrant of Attorney And the Plaintiff prayed one Certiorare to the chief Iustice of the Common Pleas and another Certiorare to the Custos Brevium both which returned non inveni aliquod warr and now Sir John Thinn being dead the Plaintiff brought another Writ of Error by Journeys accounts against John Thinn Son and Heir of the said Sir John Thinn 3 Cro. 91. 2 Cro. 13. 597. 396. 5 Co. Pag. 36. b. 446. who appeared and alledged Diminution in hoc that the Warrant of Attorney is not certified and prayed another Certiorare unto the chief Iustice of the Bench and another to the Custos Brevium and it was argued by Clark that in this Case Certiorare ought not to be granted for a Certificate is in the nature of a tryal which shall not be crossed in the same Action but the parties to the Action and their Heirs shall be bound by it especially when the matter is certified by one who is Iudge of the Record and that Certiorare sued at the prayer of the Plaintiff shall be as peremptory as if it had been sued at the prayer of the Defendant for the Plaintiff may alledge Diminution as well as the Defendant 7 E 4. 25. by Yelverton And a man cannot have Certiorare of a thing which is contrary to the Record which is certified 11 E 4. 10 by Laicon So Diminution cannot be alledged in this Warrant of Attorney because it hath been certified here that no Warrant of Attorney is to be found c. 9 E 4. 32. by Billing Egerton Sollicitor contrary For the Certiorare obtained at the sute of the Plaintiff shall not prevent the Defendant And the course of proceeding in a Writ of Error when Error is assigned out of the Record and not of a thing within the Record is such After Error assigned before that a Sci. fac issueth against the Defendant ad audiendum errores the Plaintiff may pray a Certiorare to the Custos Brevium in whose hands such collateral thing remain for the Plea Roll doth remain in the custody of the chief Iustice but the Original Writs Essoins and Warrants of Attorney remain in the hands of the Custos Brevium and such a Certiorare the Court may grant to the Plaintiff without making the Defendant privy to it And notwithstanding that the Defendant hath pleaded in nullo est erratum and so hath affirmed the Record to be such as is certified yet the Court ex Officio shall award a Certiorare to ascertain themselves if there be any such Warrant of Attorney or not which see 9 E 4. Certiorare 32. by Billing and therefore the Certiorare being awarded ex Officio shall not prejudice the Defendant and to this purpose he cited the Case betwixt the Lord Norris and Braybrook in a Writ of Error where the Lord Norris being Plaintiff prayed a Certiorare to the Custos Brevium to certifie an Original Writ upon which a common Recovery was had and had it and the Custos Brevium certified that there was no Original and afterwards the Defendant prayed another Certiorare and had it and so in our Case here especially because the Defendant was not party to the Record nor hath day in Court at the time that the said Certiorare was granted for the Defendant is not party before the Sci. facias ad audiendum erroreâ— be issued forth against him and therefore he comes timely enough to pray a Certiorare See 28 H. 6. 10. and 11. And I grant that the Certificate upon a Certiorare which was awarded after a Sci. fac ad audiendum errores is peremptory and final but contrary where it is granted before the awarding of such Scire facias See Book of Entries 271. The Plaintiff assigneth Error in the Original Writ petit br Domini Regis Custodibus Brevium c. ad breve illud origin certificand and upon the return of the Certiorare the Plaintiff prayed a Scire facias ad audiendum errores And see there 293. where it appeareth fol. 272. that Certiorare issued at the suit of the Defendant in Error after he had alledged Diminution and that is after Scire facias ad audiendum errores returned and see Certiorare before Sci. facias awarded 271 c. and this Certiorare is only ex officio and awarded only to enform the Court And in respect of the Certiorare the chief Iustice of the common Pleas to whom the Certiorare is directed is but a Minister and not a Iudge And as to the Case of 9 E 4. 32. before cited he could not have a Certiorare Diminution for he could not alledge Diminution because he had pleaded in Nullo est erratum by which Plea he had confessed the Record which is certified to be a full and perfect Record and fully certified and against that matter he shall not alledge Diminution And in our Case there is not any such contrariety as hath been objected for the return of the Certiorare is Non inveni aliquod warrant not precisely quod non habetur aliquod warrantum And therefore if the Court now at the prayer of the Defendant grant another Certiorare upon which is a Retorn quod habetur warr Attornat the same is not contrary to the return of the first Certificate but they may both stand together for upon further search such Warrant of Attorney may be found so upon the matter the Court shall not be enveigled by any such contrariety for non inveni aliquod warrant returned upon the first Certiorare and inveni quoddam warr upon the second Certiorare are not meer contrary And it seemed to Wray chief Iustice that it would be hard to grant a new Certiorare in this Case but if any variance could be alledged it should be otherwise as it was adjudged in the Case of one Lassell who certified no Warrant of Attorney and afterwards it was moved for another Certiorare as it is here and because the Original was inter Johannem Lassels ar executor Testi c. where he was not named Executor in the first Certiorare upon that matter a new Certiorare was granted XXIX Withy and Saunders Case Trin. 26 Eliz. In the Kings Bench. WIthy libelled against Saunders in the Spiritual Court Tithes will not pass by grant without deed and now came Saunders and surmised that Withy had libelled against him for Tithe-grass and shewed that all the claim that Withy had to the said Tithes was by a grant without deed and by the Law such things would not pass without deed And also that the Spiritual Court would not allow of this Plea and therefore prayed a
under the Common Seal authorized one A. to enter in the said Waste and in the behalf of the said Mayor and Burgesses to make election of the said moyety Election c. who did so accordingly And upon this matter gives in evidence the parties did demur in Law and the Iury were discharged 12 Co. 86. 87. Dy. 372. b. 281. Noy 29. And it was holden and resolved by the whole Court that the grant to the Mayor c. was utterly void for the incertainty of the thing granted And if a common person do make such a grant it is good enough and there the Grantee may make his choice where c. and by such choice executed the thing shall be reduced into certainty which choice the Grantee cannot have against the Queen which difference was agreed by the whole Court And it was further holden that this grant was not only void against the Queen her self but also against Sir Walter Hungerford her Patentee It was further holden by the Court that if a common person had made such a grant which ought to be reduced to certainty by Election and the Corporation to whom the grant was made ut supra should not make their election by Attorney but after that they were resolved upon the Land they should make a special warrant of Attorney reciting the grant to them in whih part of the said Waste their grant should take effect East West c. or by buttals c. according to which direction the Attorney is to enter c. XXXVII Watts and Jordens Case Trin. 27. Eliz. In the Common Pleas. IN Debt by Watts against Jorden process continued until the Defendant was Out-lawed and upon the Capias utlagatum he appeared and pleaded to issue which was found for the Plaintiff and Iudgment given accordingly And now came Jourden and cast in a Writ of Error Error and assigned for Error that he appeared upon the Capias utlagatum and pleaded to issue the Original being determined and not revived by Scire facias upon his Charter of pardon Anderson Iustice was of opinion that it was not Error for the Statute of 18 Eliz. had dispensed with it being after verdict for the words of the Statute are For want of any Writ Original or Iudicial Windham Iustice contrary for the Statute doth not extend but where the Original is imbeselled but in this Case it is not imbeselled but in Law determined and at last the Writ of Error was allowed XXXVIII Trin. 23 Eliz. In the Common Pleas. THe Case was A. seised of Lands by his Will devised 3 Len 119. that his Excutors should sell his Lands and died the Executors levy a Fine thereof to one F. taking mony for the same of F. If in title made by the Conusee to the Land by the Fine It be a good plea against the Fine to say Quod partes ad finem nihil habuerunt was the question Fines levyed Anderson conceived that it was But by Windham and Periam upon Not-guilty The Conusee might help himself by giving the special matter in evidence in which Case the Conusee shall be adjudged in not by the Fine but by the Devise As by Windham A. deviseth Devise Co. 1 Inst 113. a. that his Executors shall sell a Reversion of certain Lands of which he dieth seised they sell the same without deed and good for the Vendee is in by the Devise and not by the conveyance of the Executors See 19 H. 6. 23. And by Periam the Conusee may help himself by pleading as he who is in by the Feoffment or grant of Cestuy que use by the Statute of 1 R. 3. XXXIX Albany and the Bishop of St. Asaphs Case Trin. 27 Eliz. In the Common Pleas. ALbany brought a Quare impedit against the Bishop of St. Asaph 1 Cro. 119. who justified for Lapse The Plaintiff by Replication said that before the six months expired he presented to the said Bishop one Bagshaw Quare impedit a Master of Arts and Preacher allowed c. The Defendant by way of Rejoynder said that the Church upon the presentment to which the Action is brought is a Church with Cure of Souls and that the Parishioners there are homines Wallici Wallicam loquentes linguam non aliam And that the said Bagshaw could not speak or understand the Welch Language for which cause he refused him and gave notice to the Plaintiff of such refusal and of the cause of it c. upon which the Plaintiff did demur in Law. And first it was agreed and resolved by the whole Court that in the computation of the six months in such Cases the Reckoning ought not to be according to the Kalender January February c. but Secundum numerum singulorum dierum Co. 2 Inst 361. Co. 6. 61. b. Yel 100. 2 Cro. 141. Departure allowing eight and twenty days to every month Walmesley Serjeant argued for the Plaintiff and he took exception to the Rejoynder for in that the Defendant had departed from his Bar for in the Bar the Defendant intitles himself to the presentment by reason of Lapse and in the Rejoynder he confesseth the presentment of the Plaintff and pleads his refusal of his Clark and shewes the cause of it sc the want of the Welsh Language which is a Departure And he cited divers Cases to the same purpose 27 H 8. 3. In forfeiture of Marriage the Defendant pleaded the Feoffment of the Ancestor of the Heir to divers persons absque hoc that he died in the homage of the Plaintiff the Plaintiff by Replication said that the said Feoffment was made to the use of the said Ancestor and his Heirs The Defendant by Rejoynder saith that the said Ancestor did declare his Will of the said Lands the same was holden a Departure for he might have pleaded the same in Bar and 21 H. 7. 17 18. 37 H 6. 5. in Trespass the Defendant pleaded that I. S. was seised of the Land where c. being Land devisable and devised the same to him and his Heirs the Plaintiff by Replication said that I. S. at the time of the devise was within age c. The Defendant by Rejoynder said that the custom there is that every one of the age of fifteen years might devise his Lands c. the same was holden a departure But to this Exception the Court took not much regard But as to the matter in Law it was argued by Walmesley that the defect of the Welsh Language assigned by the Defendant in the presence of the Plaintiff is not a sufficient Cause of refusal for notwithstanding that it be convenient that such a Presentee have the knowledge of such Language yet by the Law of the Land ignorance of such Language where the party hath more excellent Languages is not any disability and therefore we see that many Bishops in Wales who have the principal Cure of Souls are English-men and the Welsh
the said Goods to the Defendant at London by force of which he took them at London absque hoc that he took them at Coventry and that traverse not holden good for the Defendant by such a gift might justify the taking of the Goods in any place as well as in the place where the gift was made but if in such case the Defendant had pleaded that the Plaintiff delivered the said goods to him at London to deliver them over to A. by force of which he took them at London and delivered them over accordingly in such Cases the Defendant may well traverse the place supposed by the Declaration for by his Plea he hath confessed an immediate delivery of the said goods to him by the Plaintiff and the delivery and the taking all at one time and at one place and it had not been a good plea for the Defendant to say that the Plaintiff delivered to him the said goods at London by force of which he took them at Coventry for the possession is confessed by the first delivery of the goods at London and the supposal of the Plaintiff of a taking in Coventry and the justification of the Defendant of a taking by reason of a delivery at London cannot stand together But if the Defendant plead that the Plaintiff gave to him the goods in London by force of which he took them there there he may take traverse to the place supposed by the Declaration for by the gift it is lawful to the Defendant to take the goods in any place So see 19 H. 6. 35. In false Imprisonment supposed in the County of W. the Defendant doth justify as Sheriff of the County of B. by force of a Writ to him directed to attach the Plaintiff and so he attached him and imprisoned him at C. in the County of B. there the Defendant traversed the County supposed by the Declaration for otherwise he doth not meet with the Plaintiff and the authority of the Defendant doth not extend to the County supposed by the Declaration See also to the same purpose 22 E. 4. 39. by Hussy where the difference is taken when justification is by reason of a Warrant to take goods in any place whatsoever and where in a place certain as to the traverse of the Foundation absque hoc quod praedict Collegium fundatum fuit per nomen Decani Capituli Ecclesiae colleglatae Sancti Petri de Ethelborough apud Westm he hath here traversed that which was not alledged for the placing of the last words of the traverse scil apud Westminst in the end of the traverse seems by common construction to be intended thereby that there is no such Colledge at Westm and not that the Colledge was not founded at Westm for then the traverse should be absque hoc quod collegium praedictum fundatum fuit at Westminster per nomen c. But the most proper traverse that the Defendant could have taken in this case had been absque hoc quod Decanus Capitulum Ecclesiae collegiat de Ethelborough was seised for the Corporation mentioned in the Bill and that which is mentioned in the Bar are not all one but differ in this manner scil in the Bill the Dean and Chapter c. in the Bar the Dean Cannons and Bretheren and perhaps there are two such Corporations and then both cannot be seised and therefore upon the seisin of one of them the traverse shall be taken And afterward Iudgment was given for the Queen L. The Queen against the Bishop of London and Scot. Mich. 28 29. Eliz. In the Common Pleas. Quare Impedit 3 Len. 175. THe Queen brought a Quare impedit against the Bishop of London and Scot and the Case was that A. seised of an Advowson in gross holden of the Queen in chief aliened the same by Fine without Licence the Church became void the Conusee presented The Queen without office found brought a Quare impedit the question was if the Queen without office found Office trove should present And it was argued by the whole Court that if the Alienation had been by Deed only that there the Queen without office found should not have had the presentment for upon such an Alienation by matter in fact without Licence no Scire facias should issue without office found of the Alienation Scire facias but upon an Alienation without Licence by matter of Record a Scire facias lyeth before office which was granted by the whole Court And in the last case the Queen shall have the mean profits from the time of the Scire facias returned but in the first case from the time of the office found See for that Stamford Prerogative fol. penult 8 E. 4. 4. It was also moved if the Queen intituled to the presentment as above pardoneth to the Conusee all Alienations without Licence and Intrusions if the estate of the Incumbent be thereby confirmed but the Court would not argue that point but it was adjorned until another day LI. Braybrooks Case Mich. 28 29. Eliz. In the Common Pleas. Pines levyed THe Case of one Braybrook was moved which was Land was given to A. for life the Remainder to B. for life the Remainder to the said Braybrook in Fee B. being in possession levyed a Fine to a stranger sur conusans de droit come ceo c. A. dyed if now Braybrook might enter for the forfeiture was the question And it was agreed by the whole Court that by that Fine the Remainder in Fee is not touched or discontinued Co. 1 Inst 251 b. 252. 2 Forfeiture 9 Co. 104. Post 211 212. 1 Cro. 219. 220. but because B. had done as much as in him lay for the disposing of Fee-simple by the Fine and hath taken that upon him the same amounts to a forfeiture And it was also agreed by Anderson and Periam that if Tenant for life in possession leveyeth a Fine c. if the Lessor doth not enter within five years after he shall be bounden Windham contrary for by him it is in the election of the Lessor to re-enter immediatly for the forfeiture or to expect the death of the Lessee LII Willshalge and Davidges Case Mich. 28 29 Eliz. In the Exchequer Chamber WIllshalge brought Error in the Exchequer Chamber Enâ—r upon the Statute of 27 Eliz. Cap. 8. against Davidge upon a Iudgment given in the â—ings Bench Hill. 28. Eliz. and assigned for Error that where Davidge had heretofore brought Debt against the now Plaintiff and declared upon diverse Contracts scil that he had sold to Willshalge such Merchandizes for so many Portugues and such Merchandizes for so many Ducats which in toto amounted to seven hundred pounds Sterling which sum he demanded scil in Sterling many 2 Cro. 88. 3 Cro. 536. Yel 80. 135. 136. and not in Ducats and Portagues according to the Contract And upon the Declaration the said Willshalge had demurred in Law and the Court
Another Exception was taken to the Writ because here it appears upon the Plaintiffs shewing that Sir Roger Lewknor had three Daughters and that they have all taken Husbands and that they have issue and that one of the said Daughters is dead living her Husband who is not named in the Writ for which cause the Writ shall abate See 22 H. 6. 24 25. But that Exception was also disallowed for as this Case is there is not any reason that the Tenant by the Curtesy should joyn in this Action for no judgment shall be given here that the Plaintiffs shall recover the place wasted for the term is expired as it appeareth by the words of the Writ scil quas tenuerunt and the Tenant by the curtesy is in possession and where Tenant by the curtesie and the Heir joyn in an Action of Wast Tenant for life shall have Locum vastatum and the Heir the damages which see 27 H. 8. 13. As unto the matter of Law upon the Exceptions of Woods and Vnderwoods it was argued by Shuttleworth that the Action of Wast was not well brought against Ford c. for the Assignment made by Shelley to Ford was with an exception of all Woods and Vnderwoods and therefore Shelley remained Tenant and he ought to answer for the Wood and the Vnderwood in the Action of Wast for upon every demise of Lands the Woods there growing are as well demised as the Land it self for so it appeareth by the Writ of Wast in domibus boscis dimissis ad terminum annorum c. which proves that the Trees are parcel of the demise and so may be execepted See Dyer 28 H 8. 19. by Shelley and Baldwin A man leaseth a Manor except Woods and Underwoods the Lessee cuts the Trees an Action of Wast doth not lie against him for the same for the thing in which the Wast is supposed to be committed was not demised c. and therefore the Lessee shall be punished as a Trespassor and not as Farmer Fenner Serjeant contrary and that the Exception of the Woods and Vnderwoods is meerly void for Shelley who assigns his interest with the said Exception hath not any such interest in the Woods and Vnderwoods so as he can make such exception for he had but an ordinary interest in them as Farmer viz. House-boot Hedge-boot c. which interest cannot by any means upon an Assignment be reserved to the Assignor in gross of the estate no more than if one hath common appendant to his Land and he will make a Feoffment of the Land reserving or excepting the common And he who hath the inheritance of the Land hath an absolute property in the Trees but the Lessee hath but a qualified interest and therefore 21 H 6. 46. the Lessor during the term for years may command the Trees to be cut down and 10 H. 7. 3. Lessee for years hath not any interest in the Trees but for the loppings and for the shadow for his Cattle And in the Case cited where Lessee for life and he in the Reversion make a Lease for life unto a stranger and wast is committed Co. 1 Inst 42. 2. and they bring an Action of Wast the Lessee for life shall have the place wasted and he in the Reversion the treble damages for in him was the true and very property of the Trees and therefore the treble damages do belong unto him and not to the Lessee for life who joyneth with him and the reason wherefore the Lessee for life or years shall recover treble damages against a stranger who cuts down any Trees growing upon the Land to him demised is not in respect of any property that the Lessee hath in the Trees cut down but because he is chargable over to his Lessor in an Action of Wast in which he shall render damages in such proportion So see 27 H. 6. Wast 8. A lease for life is made without impeachment of wast a stranger of his own wrong cuts down Trees against whom the Lessee brings an Action of Trespass in such Case he shall not recover treble damages not for the Trees but only for the breaking of the Close and the loppings for he is not chargeable over to his Lessor for the same because that his Lease was made without impeachment of Wast and if the Lessee hath such a slender interest in the Trees where his Lease is without impeachment of wast his interest is less where it is an ordinary lease without any such priviledge And the property which the Lessee for years hath in the Trees in such Case is so appropriated to the possession that it cannot be severed from it Windham and Anderson Iustices were of opinion that the Exception above is meerly void For Ford the Assignee of Shelly is now Termer and Farmer who alone can challenge interest in the Trees against all but the Lessor and Shelley after his Assignment is meerly a stranger The interest of the Lessee and also of his Assignee in the Trees is of necessity and follows the Farm and the Land as the shadow doth the body And by him where Lessee for years by reason of his lease is to have Wind-fals yet he cannot imploy them but to the benefit and profit of his Farm for if he sell them or spend them elsewhere he shall be punished Rhodes and Periam Iustices that the exception is good as the fruits of the Trees Shovelers c. And afterwards the Case was adjudged upon another point in the pleading so as the matter in Law did not come to Iudgment See Saunders Case 41 Eliz. Where Lessee doth assign excepting the Timber Trees it is a void Exception LXIII Gray and Jeffes Case Pasch 29 Eliz. In the Kings Bench. 1 Cro. 55. Action of assault and Batterry IN an Action upon the Case by Gray against Jeffe the Plaintiff declared that where he had placed his Son and Heir apparent with the Defendant to be his Apprentice and to learn of him the Art of a Tailor That the Defendant had so beaten his Son with a Spade that he thereupon became lame by reason of which he could not have so much with his Son in marriage of him as otherwise he might have because the same lameness is a disparagement to his said son And further shewed that he himself might spend twenty pounds per annum in Lands Haulton argued for the Plaintiff The Action Quare filium haeredem cepit abduxit is given to the Father in consideration that the marriage of his Son and Heir doth appertain to him by the Law and here by the Battery the Son is become so same that he is not so commendable to a Marriage as before and if the Father had lost the whole marriage then the Father should have had the Action Quare filium haeredem c. but here he hath not lost the whole marriage but the marriage is lessened by it and therefore he shall have this Action
of Lond. in Camera Guild-hall Civitatis prâ—ed and demanded 1500 pounds upon such Recognizance acknowledged 20 November 20 Eliz. and upon default of the said Hanmen Owen 25. according to the custom of London used in course of Attachment attached six hundred pounds in the hands of one W. Bolton of Grays-Inn in part of satisfaction of the said debt of one thousand five hundred pounds and now within the year came the said Hanmer ad disonerandum debitum praedicti had a precept of Scire facias against the said Thomas Leigh and after pleaded and demanded Dyer of the said Recognizance and had it quod ipse restitutionem of the said 600 pounds in manibus dict W. Bolton attachiat habere debet And upon the whole Record the Case was thus Rowland Leigh Esquire being seised of certain Manors and other Lands in the County of Glocest had issue Eliz. his Daughter and Heir inheritable to the said Lands and by Indent dated 20 Maii 19 Eliz. granted Custodiam regulam gubernationem educationem maritagium dict Eliz. to the said Thomas Leigh after which the said Thomas Leigh by Indenture 14 Martii 29 Eliz. granted and assignâ—d the said custody Dyer 190 191. rule government education and marriage and all his interest therein and the said Indenture to Sir John Spencer after which the said Sir John Spencer and Thomas Leigh by their Indenture the 26. of August 20 Eliz. granted and assigned to the said John Hanmer the said custody rule government education and marriage oâ— the said Eliz. and all their interest in the same and all the recited Indenturs by which last recited Indenture 29 August the said John Hanmer covenanted with the said Leigh that Thomas Hanmer Son and Heir apparent of the said John Hanmer maritaret in uxorem duceret dictam Elizabetham ad vel antequam dicta Eliz. dictus Tho. Hanmer perimplerint suas separales aetates 14 annorum si dicta Eliz. ad id condestendere agreare vellet and afterwards before the said Tho. Hanmer and the said Elizabeth suas separales aetates 14 annorum perimplevissent sc 8 die Sept. 20 Eliz. the said Tho. Hanmer took to wife the said Eliz. the said Tho. Hanmer then being aetatis 13 annorum and no more and the said Eliz. then being of the age of nine years and no more and Tho. Hanmer aforesaid over-lived c. And pleaded further that the said Tho. Hanmer after he attained his full age of fourteen years and before any agreement or assent by the said Tho. Hanmer to the marriage aforesaid betwixt the said Tho. Hanmer and the said Eliz. had at or after idem Thomas Hanmer came to his age of fourteen years scil 10 die Sept. Anno 22 Eliz. ad dictum matitagium disagreavit maritagium illud renunciavit and all this matter was pleaded in Bar as performance of the Covenant contained in the Indenture of defeazance made upon the Recognizance whereupon the Action is brought And concluded his plea unde petit judicium si dictus Tho. Leigh actionem suam praedâ—ct c. Et quod ipse idem Johannes Hanmer restitutionem dict 600 li sc ut praefert aâ—achiat habere valeat And all the question here was if this marriage had by this manner and afterwards renounced as is aforesaid be such a marriage as is intended in the Covenant so as the said Covenant be satisfied by it And it was argued before the Mayor Recorder and Aldermen of London in their Guild-Hall by Angier of Grays-Inn on the part of Leigh the Plaintiff and he in his Argument did much rely upon the definition of marriage by Justinian in his Institutions Nuptiae maris faeminae conjunctio individua continens viae societatem and the marriage here in question is not according to the said difinition for the persons parties to this contract are not persons able by Law to make such contract because that non attigerunt annos nubiles Ergo nuptiae esse non possunt but only sponsalia a step unto marriage And there is also rendred one reason of the said definition upon the word individua individuam dico quia non nisi morte aut divortio separandum but the marriage now in question might be dissolved without death or divorce as it is in our case by disagreement And see Jurisprudentiae Romanae Lib. 1. Cap. 33. Societas consortium omni vita inter marem faeminam ad concubitum which is societatis hujus consummatio And as every Act doth consist upon three things 1. Inceptio 2. Progressio 3. Continuatio so is it in the Case of marriage but in this case when Thomas Hanmer took the said Eliz. to Wife that is but an inception but the progression and consummation of it is cut off by the disagreement and he much relyed upon the words of the Covenant sâ— dicta Eliz. ad id condescendere agreare vellet so as there is not any liberty left to the Defendant for the agreement or disagreement of the Son but he ought to agree at the peril of his Father but if Eliz. will not agree then the Defendant is not at any mischief for in such case the Covenant doth not extend to him and also here the Father is bound that his Son a stranger to the Obligation should marry the said Elizabeth which he ought to procure at his peril or otherwise he shall forfeit his Bond. Egerton Solicitor of the Queen argued to the contrary This marriage as much as concerns this Covenant is to be considered according to the reason of the common Law and not according to the rules and grounds of the Canon or Civil Law not as a marriage to right but as a marriage in possession and marriage in possession is sufficient always in personal things and causes especially where the possession of the Wife is in question 2 Roll. 585. but where the possession of the Husband is in question there marriage in right ought to be and where marriage in possession fals in averment there it shall not be tried by the Bishop as in the Case of a marriage of right where never accoupled in loyal matrimony is pleaded but by the Country for in case of Wife in possession never accoupled in matrimony is no Plea Postea 181. 12 Len 170. 171. â—3 Len. 129. but not his Wife which see 12 E. 3. br 481. A. brought an Action of Trespass against B. and C. B. pleaded that C. is Wife of the Plaintiff and demanded Iudgment of the Writ the Plaintiff by Replication said never accoupled in Lawful matrimony but it was not allowed but was driven to say not his Wife for if C. was the Wife of the Plaintiff in possession or by Reputation it is sufficient to abate the Writ see also 49 E. 3. 18. by Belknap the right of the Espousal is always to be tried by the Bishop but the possession of the marriage not as in Assize by A. and
the of Inner Temple being at the Bar when this Case was moved said unto Serjeant Shuttleworth that the Case had been adjudged against the Demandant and Scot Prothonotary did affirm that the Lord Dyer was of opinion that the Woman ought to be endowed according to the Custom and not otherwise And Sayer one of the Clarks of Nelson chief Prothonotary said that it was adjudged accordingly 16. Eliz. and that the Case was betwixt Gelbrand Demandant and Hunt Tenant LXXXIV Beverlie and Cornwals Case Mich. 29 Eliz. In the Common Pleas. BEverlie brought a Quare Impedit against Cornwal Quare Imped 2 Roll. 805. Out-lawry pleaded and had Iudgment to recover upon a Demurrer in Law Which see Mich. 28 29 Eliz. And now the Queen brought a Scire facias upon the matter That the said Beverly after the said Iudgment was out-lawed in an Action of Trespass at the sute of I. S. and upon that a Scire facias issued ad respondendum Quare dicta Domina Regina should not have execution of the Iudgment aforesaid by reason of the Out-lawry aforesaid and declared in all as aforesaid And further that the said Cornwal had resigned Vpon which Beverlie did demur in Law. And this Term it was argued by Puckering Serjeant for the Queen that by that Out-lawry the Interest to present is tranferred to the Queen Which see 5 H. 5. 3. Tenant at will of a Manor to which an Advowson is appendant is out-lawed in an Action of Trespass the Church voided by award of the Court it belongs to the King to present And see 8 R. 2. scil Quare Imped 200 A. seised of an Advowson the Church becomes void A. is Out-lawed in a personal Action the King shall have a Quare Impedit in that Case And as to the Exception taken because the Out-lawry is not sufficiently layed in the Writ but only generally viz. utlagatus in Com. Lincoln ad sectam J.S. in placito transgressionis without shewing the Out-lawry at large There is a difference where an Out-lawry is pleaded by way of â—â—r and disability of the person c. and where it is set down in a Writ for a Writ ought shortly and compendiously to comprehend the cause of the Action especially judicial Writs which are not tied to any form certain especially because that the Out-lawry set forth in the Writ is a Record of the same Court For the perclose of the Scire facias is prout per recordum hic in curia plenius apparet And that Record being in the Court the party cannot plead Nul tiel record as if the Record had been in any other Court But he ought to demand Dyer of the Record Which vide 5 H. 7. 24. Walmesley Serjeant contrary By Out-lawry in an Action personal the King cannot seise Land but only take the profits of it 9. H. 6. 20. 21 H. 7. 7. And as our case is nothing doth accrew to the Queen by this Out-lawry for the Queen her self is seised of the Advowson because she usurpando presentavit and her Clerk admitted and although Beverlie hath recovered in a Quare Impedit against the Presentee of the Queen yet because he is not removed by a Writ to the Bishop the Queen continues Patron and nothing remains in Beverlie that may be forfeited But Rhodes and Periam contrary for by Periam if after such Recovery the Incumbent dieth the Patron shall present for by the Iudgment in the Quare Impedit for Beverlie the Patronage is revâ—â—ted in him without any other execution And by Rhodes If after such Iudgment the Patron dieth his Executors shall have a Writ to the Bishop And by Walmesley the Scire facias doth not lie for the Queen for that Writ always runs in privity of the Record upon which it is grounded to which Record the Queen is a stranger and by Out-lawry in an Action personal no Action real shall escheat and therefore this Scire facias being in the nature of a Quare Impedit upon which it is grounded which is a real Action or at least a mixt shall not be forfeited and also it shall be absurd to grant now a Writ to the Bishop for the Queen whereas Iudgment was given against the Queen as in our case it hath been And in no Case the Iudges shall respect the title of the Queen being a stranger to the Writ But where a title for the Queen doth appear upon the pleading or otherwise within the Record 11 H. 4. 224. by Hankford If a clear title for the King be confessed by the parties upon pleading a Writ to the Bishop shall issue for the King so if such matter appear in Evidence 3 Cro. 427. c. the Land in question is seisable into the Kings hands See 9 H. 7. 9. 16 H. 7. 12. so 21 E. 4. 3. by Choke and F.N.B. 38. e. In a Quare Impedit betwixt two strangers if title doth appear to the Court for the King a Writ to the Bishop shall issue forth for the King but in our Case nothing is within the Record to intitle the Queen but all the matter upon which a Writ to the Bishop is prayed for the Queen is out of the Record and a foreign thing And as to the Out-lawry he conceived it is not sufficiently alledged for he ought to have made mention of the Exigent and of all the proceeding upon it and the Iudgment of the Coroners and for defect of that no title is given to the Queen and of that opinion was the Lord Anderson and that it ought to be set forth in the Writ in what Term the said Beverly was out-lawed and the Number Roll also so that if Beverly had demanded Dyer of the Record the Court might know it And by Nelson chief Prothonotary the Term in which the Out-lawry was ought to be comprised in the Scire facias Vide Book of Entries 485. where in a Quare Impedit for the King upon such a title the King shewed in his Count that A. was seised of such an Advowson and granted the next Avoidance to B. and that afterwards one C. impleaded the said B. in a Writ of Account in such a Court where Nihil was returned upon the summons upon which issued forth a Capias upon which is returned Non est inventus c. upon which an Exigent upon which the Sheriff did return quod ad com tent c. ad v. comitat tunc prox praecedent the said B. exactus fuit non comparuit quia ad nullum eorundem comitat apparuit utlagatus fuit and after the the Church voided and that by reason thereof it did belong to the King to present vide ibid. 196. accordingly And as to the Scire facias all the Iudges agreed that upon the matter the Writ lay well enough And it is good discretion in the Court to grant such a Writ And by Rhodes If two Coparceners of an Advowson make composition to present by turns and afterwards
their amendment makes alteration of the substance of the pleading or of the Verdict as 20 H. 6. 15. In Trespass the Plaintiff declared of a continuando usque diem impetrationis brevis viz. 18. die Martii where the Teste of the Writ was 2 die Januarij the Defendant pleaded to Issue which was found for the Plaintiff and that Misprision of the Teste or date of the Writ could not be amended And no amendment upon this Stat. of 27 Eliz. two things are to be considered First that the Iudges in such amendment medle not with matter nor alter the substance Secondly that they do not amend but according to their judicial knowledge Anderson to the same intent for as it hath been said before the truth of the Case doth not appear unto us according to which we can judge and I conceive that upon any amendment upon this Statute we cannot take out one Roll and put in another and as our case is we cannot amend this defect without taking out the whole Roll and therefore in the Case of Leonard which was late Custos brevium here where in a Replevin he avowed for a Rent-service and upon especial Verdict the Case was that Sir Henry Isley held of the said Leonard by Fealty and the Rent mentioned in the Avowry and was attainted of high Treason and the King seised and granted the Land to the Plaintiff upon whom Leonard avowed for the Rent-service and I and my companions were agreed that the rent notwithstanding the seisure and grant of the King remained distrainable of common right but Leonard could not have return of the Cattel because he had avowed for a Rent-service now it appeareth to us upon the Verdict that he had right to so much rent but not to such a Rent but a Rent-seck distrainable of common right so a Rent in another degree and we also agreed that the Avowry was not amendable for then upon such amendment we ought to take out a whole Roll which was not intended by this Statute And he conceived also that in debt against Executors in the Debet detinet such a Writ shall not be amended by this Statute and he conceived that his exception to the Bar quod ad medietatem 60. Messuag c. parcel medietatis c. is relieved by this Statute for the meaning appeareth And also the exception that it is not expresly shewed that the Fine was engrossed in the same Term in which it was levied And Periam moved another matter Co. 1 Inst 71. b. 72. a. if now the parties demurring in Law as to part of the Land in demand and being at Issue upon the residue if the Court shall adjudge the matter in Law before the Issue be tried or not 32 H. 6. 5 6. In Trespass for taking of his Cattel the Defendant as to parcel pleaded not guilty and as to the remnant pleaded another Plea upon which the parties did demur and there they proceeded to trial before the matter in Law determined and found for the Plaintiff and he had Iudgment thereupon for the damages but the costs were suspended until c. And the Defendant brought his Writ of Error 48 E. 3. 15. In an Action of Wast as to parcel the Defendant pleads no Wast and as to the rest pleaded matter in Law upon which there was a demurer joyned It was holden that the Issue should not be tried until the matter in Law be determined But it was said by Fulthorpe in Trespass if the Defendant to parcel plead the Enquest and to other parcel matter in Law in such case he should proceed to trial presently and damages should be taxed of the whole as well of that upon which there was a demurrer in Law as of that of which the Issue was joyned ad quod non fuit responsum See also 11 H. 4. 228. In Trespass the Defendant pleaded to Issue for part and for the residue did demur in Law Process for the trial issued before the matter in Law determined And Periam conceived that the Court might proceed in such Case the one way or the other As to the matter in Law whether the issue in tail upon this Fine should have the Averment he conceived that he should not have the said Averment for that it should be very perilous to the Inheritances of the subjects And he argued much upon the dignity of Fines out of Bracton and Glanvil whom he called Actores non Authores Legis that Fines at the common Law were of great authority until the Statute of West 2. And afterwards by the Statute of 34 E. 3. of non-claim from whence they became to be of so little value in Law that they were accounted no other than Feoffments upon Record so as thereby no assurance was of Inheritances but a general incertainty until the Statute of 4. H. 7. by which Statute they were restored to their ancient power and virtue After which Statute many shifts were devised to creep out of it So as the Statute of 32 H. 8. was made to take away all questions and ambiguities which were conceived upon the said Statute of 4 H. 7. And therefore we who are Iudges ought to frame our Iudgments for the maintaining of the authority of Fines for so the possessions and inheritances of the Subjects shall be preserved And that is the reason that if a stranger levy a Fine of my Land in my name that I have not any remedy but a Writ of Deceit against him who levyes the Fine so if a Feme-covert levyeth a Fine of her Land as a Feme-sole the same shall bind her after the coverture if the Husband do not enter upon the Conusee during the coverture and interrupt the possession gained by the Fine And 17 E. 3. and our Books are very plentiful to this purpose that the Law doth aerge admit of such allegations against such Fines A Fine was pleaded in Bar of Land in A. B. and C. he against whom it was pleaded was not received to aver against the supposal of the Fine that there was no such Town or Hamlet as A. 46 E. 3. 5. A woman Tenant in tail had Issue a Daughter who was inheritable to the tail the Daughter took a Husband they both living the Mother and during her seisin levied a Fine of the Land entailed to a stranger sur conusans de droit come ceo c. who rendred the Land to the Husband and Wife in specil tail the Husband died having Issue the Wife took another Husband had Issue and died the Husband to entitie himself to the Land as Tenant by the curtesy would in pleading have averred the seisin of the Mother at the time of the Fine levyed and he could not and yet he was a stranger to the Fine but he was privy to the estate and his claim was by her who levyed the Fine 6 E. 3. 46. Fitz. Averment 40. In a Writ of Entry sur dissei sin the Fine of the
as in case where the Husband died seised Dy. 370. the which dying seised is not found by the Verdict In which Case it was said by the Court the Demandant might pray Iudgment of the Lands and release damages or the Demandant may aver that the Husband died seised and have a Writ to enquire of the damages quod omnes Pregnotarii concesserunt CXIX Michel and Hydes Case Mich. 29 30 Eliz. In the Common Pleas. Dower DOwer by Michel and his Wife against Lawrence Hyde who appeared upon the grand Cape And it was because that the said Hyde in truth was but Lessee for years of the Land of which c. in which case he might plead non-tenure if now he might wage his Law of non-summons so as the Writ be abated for by the wager of Law he hath taken upon him the Tenancy and affirmed himself to be Tenant 33 H. 6. 2. by Prisoit to which it was said by Rhodes and Windham Iustices that here the Tenant being but Lessee for years is not at any mischief for if Iudgment and Execution be had against him he notwithstanding might afterwards enter upon the Demandant Another matter was moved That where the Writ of Dower was de tertia parte Rectoriae de D. and upon that the grand Cape issued Cape in manum nostram tertiam partem Rectoriae and the Sheriff by colour of this Writ took the Tythes severed from the nine parts and carried them away with him And it was agreed by the said Iustices that the same is not such a seisure as is intended by the said Writ but the Sheriff by virtue of such Writ ought generally to seize but leave them there where he found them And the Court was of opinion to commit the Sheriff to Prison for such his misdemeanor CXX Hamington and Ryders Case Mich. 29 30 Eliz. In the Common Pleas. RIchard Haming Executor of Isabel Haming brought Debt upon an Obligation against Ryder Debt Savil Rep. 74. Owen Rep. 6. 1 Co. 52. 1 Andâ— 162. the Case was that Kidwelly was seised leased for years to John Hamington Husband of Isabel and afterwards John Hamington being so possessed by his will devised that the said Isabel should have the use and occupation of the said Land for all the years of the said Term as she should live and remain sole and if she died or married that then his Son should have the residue of the said Term not expired John died Isabel entred Devises to whom the said Lawr. coveyed by Feoffment the said Land in Fee and in the Indenture of the said Conveyance Lawr. covenanted that the said Land from thence should be clearly exouerated de omnibus prioribus barganijs titulis juribus omnibus alijs oneribus quibuscunque Isabel took to Husband the Son entreth If now the Covenant be broken was the question It seemed to Anderson at the first motion that this possibility which was in the Son at the time of the Feoffment was not any of the things mentioned in the Covenant scil former bargain title right or charge But yet it was conceived by him that the word bargain did extend to it for every Lease for years is a contract and although that the Land at the time of the Feoffment was not charged yet it was not discharged of the former contract And by Windham if I be bounden in a Statute-staple and afterwards I bargain and sell my Lands and covenant ut supra here the Land is not charged but if after the condition contained in the defeazance be broken so as the Conusee extends now the Covenant is broken And by him the word charge doth extend to a possibility and this possibility might be extinct by Livery as all agreed but not translated by grant Ante 33. 3 Len. 43. Covenant or extinguished by release as it was lately adjudged in the Case of one Carter At another day it was argued by Walmesley and he much relied upon the words clearly exonerated utterly discharged or altogether exonerated and without doubt it is a charge which may happen and if it may happen then the Land is not clare exonerated And also former bargains do extend to it and the Term is not extinct by the acceptance of the Feoffment aforesaid of Kidwelly and although that at the time of the Feoffment it was but a possibility and no certain interest yet now upon the marriage of Isabel it is become an actual burthen and charge upon the Land and he cited a Case adjudged 8 Eliz. A man seised of Lands grants a Rent-charge to begin at a day to come before which day he bargains and sells the Lands and covenants that the said Lands are discharged of all charges in that case when the day when the Rent ought to begin is incurred the Covenant is clearly broken for the Lands were not clearly exonerated c. At another day the Case was moved at the Bar. And Anderson openly in Court declared that he and all his companions were agreed that the Land at the time of the Feoffment was not discharged of all former Rights Titles and charges and therefore commanded that Iudgment should be entred for the Plaintiff CXXI Howel and Trivanians Case Hill. 30 Eliz. In the Kings Bench. HOwel brought an Action upon the Case against Trivanian in the Common Pleas and declared Assumpsit that he delivered certain goods to the brother of the Defendant who made the Defendant his Executor and died after which the Plaintiff came to the Defendant and spake with him concerning the said goods upon which communication and speech the Defendant promised the Plaintiff that if the Plaintiff could prove that the said goods were delivered to the Testator 2 Roll. 594. that he would pay the value of them to the Plaintiff And the Declaration was in consideration that the said goods came to the hands of the Testator and also afterwards the goods came to the Defendants hands and upon non Assumpsit pleaded It was found for the Plaintiff and Iudgment given And afterwards Error was brought in the Kings Bench and Error assigned because that the Plaintiff had not averred in his Declaration that he had proved the delivery of the said goods to the said Testator 1 Cro. 105. for the words of the promise are si probare potuisset And also it was assigned for Error that here is not any consideration upon which this promise could receive any strength for the Defendant hath not any profit or advantage thereby scil by the bailment of the said goods to the Brother of the Defendant And also it is a thing before executed and not depending upon the promise nor the promise upon it As the Case reported by the Lord Dyer 10 Eliz. 272. The Servant is arrested in London and two men to whom the Master is well known bail the said Servant and after the Master promiseth to them for their friend-ship to save them harmless from all costs
this matter for although the Town in discretion might have stayed the offender before the death of the party yet it is not bound so to do And the Court took time to advise of the Case CXLVI Jerom and Knights Case Pasch 30 Eliz. In the Kings Bench. JOan Jerom brought an Action upon the Case in the nature of Conspiracy against one Knight and declared Conspiracy 1 Cro. 70. that the said Knight had malitiously caused the Plaintiff to be endicted of Felony and to be arrained upon it and that she was legitimo modo acquietat c. And the Case was that the Defendant came into the Court where the Sessions was holden and complained of the Plaintiff for the said Felony for which the Iustices there comanded her to cause an Indictment to be drawn c. Coke upon the Books of 27 H. 6. 12. 35 H. 6. 14. 27 H. 8. 2. Fitz. 115. It appeareth that if one come voluntarily into the Court and discover Felonies and if it be true which he saith or if he come in Court and draw an Indictment by the command of the Iustices or if he be bound by order of Law to cause the party to be Indicted or to give in Evidence although he do it falsely yet he shall not be punished for the same in Conspiracy or in an Action upon the Case But if he come gratis with malice in him before and maliciosly and falsely cause the party to be Indicted so as falsity and malice are the ground of it c. it is otherwise Gawdy Iustice How shall it be tried if he doth it with malice or not Coke It may be enquired of for malice makes the difference betwixt Murder and Manslaughter and in such case it is to be enquired and here he came to do the same without Process or cohersion in Law. But if he will safely do such office his direct course is to come to a Iustice of Peace and to shew to him that his Goods are stolen and that he doth suspect such a one and then upon examination he shall be bound to come and give in Evidence against the party c. and in such case although that his Evidence he false yet he is not punishable Owen 158. At another day it was said by Coke in the same case ut supra If a man be bound to give Evidence against any person although he give false Evidence no Action lieth Also if one come into Court gratis and discloseth a Felony and gives Evidence if no malice proceed against the party it is not punishable and here fore thought malice is alledged and put in the Declaration to which the Defendant hath pleaded not guilty And now he is found guilty See the Statute of Westminster 2. Cap. 12. Si inveniatur per inquisitionem quod aliquis sit abettator per malitiam c. Wray Iustice It should be hard to charge one with this Action where he hath his goods stolen from him and therefore causeth an Indictment to be drawn against one who he suspects of it who shall be found guilty who should be punished for it for many Malefactors notwithstanding that the Evidence against them be full and pregnant in favour of life are acquitted whereas by Law they ought to be hanged and it is not reason Upon an Acquital of Grace no Conspiracy lieth that upon such an acquital of grace and mercy he should have this Action if such person had used any words of malice before the Sessions an Action upon the case would have lain And afterwards Iudgment was given for the Plaintiff Trin. 27 Eliz. 750. Ratford and afterwards a Writ of Error was brought Trin. 29 Eliz. Rot. 669. In the Original Action the Writ and Declaration were that the Defendant malitiose intendens querentem in nomine vita fama bonis defraudare quandam Billam Indictamenti scribi fecit eam exhibuit to the grand Enquest ibidem false deposuit omnia in ea contenta esse vera which by Coke is full matter of conspiracy for the drawing of an Indictment is not the office of a witness but if it were by the commandment of the Court or of one Iustice of Peace it should be otherwise for there he goes by course of Iustice 21 E. 3. 17. If one conspire with another and afterwards he procures himself to be one of the Indictors his oath shall not excuse his malice before Gawdy If the party had taken upon him to proceed against the party upon any good presumtions he might have pleaded it as to say he found the party in the house suspiciously c. but because he doth not plead any such matter but generally not guilty and the Writ and Declaration stand not answered specially nor controlled with the Verdict there is no reason but that the Iudgment should be affirmed And afterwards the Iudgment was affirmed and it was said by Wray that here the words in the Writ and Declaration are all one as the words in a Writ of conspiracy and the Defendant hath not shewed any special matter to enduce him to the proceedings CXLVII Ferrers Case Pasch 30 Eliz. In the Kings Bench. HUmphry Ferrers brought an Action upon the case and declared that he is seised of an ancient messuage in the Town of Tamworth Prescription and that he and all his Ancestors whose heir he is owners of the Messuage c. have used time out of mind c. to erect Herdells in aperta platea of Tamworth juxta Messuagium praedict every Market day to make Penns there for Sheep and that he c. have used for such penning of Sheep there to take divers sums of mony of such persons who would Penn their Sheep there and further declared that the Defendant had broken and pulled down his Herdels per quod proficuum suum inde amisit And upon this Declaration Godfrey did demur in Law 1. The Plaintiff hath not shewed in his Declaration specially where he hath used to erect his Herdels but generally in aperta platea without shewing in his own Land or in the Land of another if in the Land of another it is no good title for although that those who fish in the Sea may prescribe to set Stakes on the Land adjoyning to the Sea to hang their Nets to dry after they have done Fishing and that is through the whole County of Kent 8 E. 4. for their prescription is for the common Wealth but the same is not so here but only for a private gain also no prescription is good but where some profit comes to him who prescribes for it which see in the case of the Abbot of Buckfast 21 E. 4. 4. 21 H. 7. 20. Also the Declaration is that the Plaintiff hath taken diversas denariorum summas and see the Prior of Dunstables case 11 H. 6. 19. 19 R. 2. Action surle Case 51. But the certainty of the sums do not appear in this Declaration so as the reasonableness of
the custom might be known Also it appeareth here upon the Declaration that Trespass vi armis should lye and be brought for the Declaration is that the Defendant did break and pull down the Herdels which cannot be without express force as 42 E. 3. 24. Trespass upon the case against a Miller and declared that the Plaintiff used to grind at the said Mill without Toll and that he sent his corn to the said Mill to be ground and there the Defendant came and took two Bushels of his said corn And the Writ was upon the prescription to grind sine multura and that the Defendant praedict querent sine multura molire impedivit and by Award of the Court the Plaintiff took nothing by his Writ for he hath declared that the Defendant hath taken Toll and therefore he ought to have a general Writ of Trespass Beaumont to the contrary A Market is as well for the common Wealth as a Fishing Also he is at the costs for providing of Herdels and the erecting of them so as he hath declared he hath taken divers sums of mony for it and as to any sum not certain it is well enough for peradventure sometimes he hath taken a penny sometimes two pence as the parties could agree And as to the exception of vi armis the same is not material for the Plaintiff doth not rely upon the pulling down of the Herdels only but upon the loss of the mony also which he should have had if the Defendant had not broken his Herdels And afterwards Iudgment was given for the Plaintiff CXLVIII Beverly and Bawdes Case Pasch 30 Eliz. In the Kings Bench. BEverly brought a Writ of Error to reverse an Out-lawry pronounced against him at the suit of one Bawdes and shewed Error that he was outlawed by the name John Beverly of Humby in the County of Lincoln Gent. And that within the said County there are two Humbyes scil Magna Humby Parva Humby and none without addition To which it was said of the other side that the truth is that there are two such Towns and that Humby Magna is known as well by the name of Humby only as taken for the name of Humby Magna And upon that they are at Issue And it was moved Tryal by Inquest of what County or place if the Inquest to try this Issue shall come de corpore comitatus or from Humby Magna And by Cooke it shall be tryed by an Inquest of Humby Magna and he confessed that if the Issue had been No such Town then the Inquest ought to be of the body of the County but here is another Issue to be tryed 22 E. 4. 4. In Trespass done in Fulborn and Hinton in the County of C. The Defendant said that there is no such Town nor Hamlet of Hinton within the same County Iudgment of the Writ See there by Briggs the tryal shall be de corpore comitatus See 14 H. 6. 8. Over-dale and Nether-dale and none without addition and so at Issue tryed by them of the body of the County 35 H. 6. 12. And by him wheresoever an Issue may be tryed by an Inquest out of a special Visne there it shall never be tryed by the body of the County As the case before 22 E. 4. Trespass in two Towns A. and B. The Def. as to A. pleads there was no such Town and as to B. pleaded another plea. Now the whole Inquest shall come out of B. for the Inquest in one Town may try any thing within the same County which see Fitz. Visne 27. 22 E. 4. 4. And here in our case the Issue is if Humby Magna be as well known by the name of Humby only as by the name of Humby Magna And therefore the same may well be tryed by Inquest out of the Town of Humby Magna But by Wray Iustice this Issue doth amount to no such Town for the perclose of the plea is and no Humby without addition and the book cited out of 22 E. 4. is not ruled but is only the opinion of Brian and afterwards it was awarded that the tryal was well Another matter was objected because it is not shewed in the Writ of Error betwixt what parties the first Writ did depend for otherwise how can the Plaintiff in the Writ of Error have a Scire facias ad audiendum Errores if none be named in the Writ of Error against whom it shall issue And Godfrey affirmed that upon search of Presidents it was both ways so as it is at the pleasure of the Plaintiff to do it or not And Kemp Secondary shewed divers Presidents to that purpose And afterwards the Out-lawry was reversed CXLIX Cibel and Hills Case Pasch 30 Eliz. In the Common Pleas. Debt for a Nemine pene A Lease was made of a certain House and Land rendring Rent and another sum Nomine poenae and for the Nominae poenae the Lessor brought an Action of Debt The Lessee pleaded that the Lessor had entred into parcel of the Land demised Roll. Tit. Extinguishment upon which they were at Issue and found for the Plaintiff and now the Lessor brought Debt for the Rent reserved upon the same Lease to which the Defendant pleaded ut supra scil an Entry into parcel of the Land demised And issue was joyned upon it And one of the Iury was challenged and withdrawn because he was one of the former Iury And the Issue now was whether the said Cibel the Lessor expulit amovit adhuc extra tenet the said Hills And to prove the same it was given in Evidence on the Defendants part that upon the Land demised there was a Brick-kill and and thereupon a little small cottage and that the Lessor entred and went to the said cottage and took some of the Bricks and untiled the said cottage Suspension of Rent by entry upon part of the Land. But of the other side it was said that the Lessor had reserved to himself the Bricks and Tiles aforesaid which in truth were there ready made at the time of the Lease made and that he did not untile the Brick-kill house but that it fell by tempest and so the Plaintiff did nothing but came upon the Land to carry away his own goods And also he had used the said Bricks and Tiles upon the reparation of the house And as to the Extra tenet which is parcel of the Issue the Lessor did not continue upon the Land Hob. 326. Rolls ubi supra Post 172. but went off it and relinquished the possession But as to this last point it seemed to the Court that it is not material if the Plaintiff continued his possession there or not for if he once doth any thing which amounts to an Entry although that he depart presently yet the possession is in him sufficient to suspend the Rent and he shall be said extra tanere the Defendant the Lessee until he hath done an Act which doth
in the Case which gives cause of suit in Chancery for they will not order a matter there which is directly against a Rule and Maxim of the common Law. As if a Feme Covert be bound c. and the Obligee bring her into the Chancery and if a man threaten me that if I will not pay to him ten pounds he will sue me in Chancery upon which I promise to pay it him no Action will lye And an Infant is not chargeable upon any contract but for his meat drink and necessary Apparel 19 Z. 4. 2. And in Debt upon such necessary Contract the Plaintiff ought to declare specially so as the whole certainty may appear upon which the Court may judge if the expense were necessary and convenient or not and upon the reasonableness of the price for otherwise if the necessity of the thing and reasonableness of the price doth not appear the Chancellor himself would not give any remedy or recompence to the party Wray Justice conceived that the Action would not lye for the contract was void and the Infant in an Action against him upon it may plead Nihil debet And if an Infant sell goods for money and doth not deliver them but the Vendee takes them he is a Trespassor but if the Infant had been bounden in an Obligation with a surety and afterwards at his full age he in consideration thereof promiseth to keep his surety harmless upon that promise an Action lyeth for the Infant cannot plead non est factum which see Mich. 28 29 Eliz. in the Case of one Edmunds And afterwards it was adjudged against the Plaintiff CLVII Charnock and Worsleys Case Trin. 30 Eliz. Rot 833. In the Kings Bench. Owen 21. 1 Cr. 129. CHarnock and his Wife brought a Writ of Error against Worsley the Case was that the Husband and Wife the Wife being within age levyed a Fine and the Wife upon inspection was adjudged within age it was moved if the Fine should be utterly reversed or as to the Wife only should stand against the Husband by Godfrey the Book of 50 E. 3. 6. was vouched where it is said by Candish that where such a Fine is reversed the Plaintiff shall not have execution till after the death of the Husband and by Coke and Atkinson a Fine acknowledged by the Husband and Wife is not like to a Feoffment made by them for in case of Feoffment something passeth from the Husband but in case of a Fine all passeth out of the Wife and the Conusee is in by her only And Atkinson shewed a Precedent in 2 H. 4. where the Fine was reversed for the whole and also another Precedent P. b. H. 8. Rot. 26. A Fine levyed betwixt Richard Elie Plaintiff and N. Ford. and Jane his Wife Deforceants the Wife being within age and Iudgment was given quod finis praedict adnulletur pro nullo penitus habeatur and that the Husband and Wife should be restored and thereupon a Writ issued to the Custos Brevium to bring into Court the Foot of the Fine and it was presently cancelled in Court. Wray this is a strong Precedent and we will not varse from it if other Precedents are not contrary Gawdy who was the same day made Iustice the Fine cannot be reversed as to one and stand as to the other and resembled it to the Case of Littleton 150. where Land is given to Husband and Wife in tail before coverture and the Husband aliens and takes back an estate to him and his Wife for their lives they both are remitted for the Wife cannot be remitted if the Husband be not remitted And a Precedent was cited to the contrary 7 Eliz. where the Case was that the Husband and Wife levyed a Fine the Husband died the Wife being within age the Wife took another Husband and they brought a Writ of Error and the Wife by inspection adjudged within age Fine reversed as to one to stand good against another and the Fine was reversed as to the Wife and her Heirs And it was argued by Golding that here the Writ of Error ought to abate for the Writ is too general whereas it ought to be special Ex querela A.B. nobis humillime supplicantis accepimus c. See the Book of Entries 278. Also the purclose of the Writ is ad damnum impsorum the Husband and the Wife whereas the Wife only hath loss by it and as to the Fine it self he conceived that it should be reversed but as to the Wife as if a man of full age and a man within age levy a Fine in a Writ of Error brought the Fine shall be reversed as to the Infant only and shall stand against the other and he cited the Case of the Lord Mountjoy 14. Eliz. Where a man seised in the right of his Wife acknowledged a Statute and afterwards he and his Wife levyed a Fine and he said that during the life of the Husband the Conusee of the Fine should hold the Land charged with the Statute Also in the Precedent of 2 H. 4. the Iudgment is that propter hunc alios errores the Fine should be reversed and I conceive that another Error was in the said Writ for which the Fine might be reversed in all viz. the Fine was levyed of two parts of the Manor of D. without saying in tres partes dividend And see that where two parts are demanded in a Writ 3 Co. 58 59. Modern Rep. 182. the Writ shall say so Brief 244 Coke contrary and as to the last matter I confess the Law is so in a Writ but not in a Fine for the same is but a Conveyance for it I be seised of a Manor and I grant to you two parts of the said Manor it is clear it shall be intended in three parts to be divided And as to the principal matter I conceive when the Fine is levyed by the Husband and Wife it shall be intended that the Land whereof c. is the Inheritance of the Wife if the contrary be not shewed and therefore if the party will have an especial Reversal he ought to shew the special matter as in Englishes Case A Fine was levyed by Tenant for life and he in the reversion being within age bringeth a Writ of Error now the Fine shall be reversed as to him in the Reversion but not as to the Tenant for life but here it shall be intended the Inheritance of the Wife and that the Husband hath nothing but in the right of his Wife and therefore she shall be restored to the whole for nothing passeth from the Husband but he is named with his Wife only for conformity 11 H. 7. 19. A. takes to Wife an Inheretrir who is attainted of Felony the King shall not have the Land presently by which it appeareth that all is in the Wife and she shall be restored to the whole and the Iudgment shall be according to the Presidents cited
not set down any place or time of the notification of his contentment for the same is traversable Gawdy The Issue here is non Assumpsit Assumpsit and therefore that matter is out of the Book Cook If one assume to pay twenty pounds to another upon request although the Defendant plead non Assumpsit yet if the place and time of request be not shewed Iudgment many times hath been stayed for no Action without a Request so here without notification of his contentment no Action therefore he ought to shew it Gawdy The ground of this Action is the Assumpsit but that cannot be certain without Declaration and thereof notice ought to be given to make certainty of the duty but not to enforce the promise but in our case without a Request Assumpsit will not lye But here it being but conveyance the certainty of the time and place is not necessary to be shewed but the general form shall serve for it is but inducement As if a man will plead a devise of goods to him and assent of the Executors to take them he need not to shew the time and place of the assent Gawdy at another day said that Iudgment ought to be given for the Plaintiff the Assumpsit is the ground and cause of the Action and the shewing of the contentment is only to reduce the Action to certainty And Iudgment was given for the Plaintiff CLXVIII Musket and Coles Case Trin. 30 Eliz. In the Kings Bench. WIlliam Musket brought an Action upon the Case against Cole 1 Cro. 13. and declared that in consideration that the Plaintiff had payed unto the Defendant forty shillings for the Debt of Symon his Son the Defendant promised to deliver to him omnes tales billas Obligationes in which his Son was bounden to him which thing he would not do and it was found by Verdict for the Plaintiff And it was moved for stay of Iudgment because the Plaintiff had not averred in his Declaration that the said Defendant had Bills or Obligations in which Simon his Son was bounden to the Defendant Averment for if there were none then no damage And see Onlies Case 19 Eliz. Dyer 356. D. in consideration that the Plaintiff had expended divers sums of money circa the businesses of the Defendant promised c. Exception was taken to that Declaration by Manwood and Mounson Iustices because it was not shewed in what businesses certain and betwixt what persons Gawdy The Plaintiff here is not to recover the Bills or Obligations but damages only and therefore needeth not to alledge any Bills in certain And 47 E. 3. 3. A. covenants with B. to assure unto B. and his Heirs omnia terras tenementa quas habet in such Counties and for not assurance an Action of Covenant was brought and the Plaintiff declared that the Defendant had broken the said Covenant and that he had required the Defendant to make a Feoffment unto him of all his Lands and Tenements in the said Counties and the plea was not allowed for the Land is not in demand but only damages to be recovered See also 46 E. 3. 4. and 20 E. 3. And in the principal case the Plaintiff had time enough for the shewing to the Iury what Bills or Obligations for the instructing of the Iury of the damages CLXIX English and Pellitary and Smiths Case Trin. 30 Eliz. In the Kings Bench. Assault and Battery 1 Cro. 139 140. IN an Action of Trespass of Assault and Battery and wounding The Defendants say that they were Lessees of certain Lands and the Plaintiff came to the said Lands and took certain Posts which were upon the Lands and they gently took them from him S. pleaded that he found the Plaintiff and P. contending for the said Posts and he to part them mollite put his hands upon the Plaintiff which is the same c. The Plaintiff replyed De injuriis suis propriis absque tali causa per ipsos P. S. allegat upon which issue was joyned which was found for the Plaintiff It was moved in arrest of Iudgment that here was not any issue for the Plaintiff ought severally to reply to both pleas aforesaid for here are several Causes of Iustification and his Replication absque tali causa Nomen Collectivum Post 139. Dy. 182. doth not answer to both Cook This word Causa is nomen Collectivum which may be referred to every Cause by the Defendants alledged reddendo singula singulis and their Iustifications are but one matter and the Defendants might have all joyned in one plea. Wray Both pleas depend upon one matter but are several causes for two justifie by reason of their Interest and the third for the preservation of the Peace And by him and the whole Court although it be not a good form of pleading yet by reasonable construction this word Cause shall be referred to every cause and so the pleading shall be maintained And afterwards Iudgment was given against the Plaintiff CLXX Cater and Boothes Case Trin. 30. Eliz. In the Kings Bench. Intrat Hill. 30 Rot. 58. or 581. IF a Writ of Covenant the Plaintiff declared that the Defendant by his deed bearing date the first of October 28 Eliz. did covenant that he would do every act and acts at his best endeavour to prove the Will of I. S. or otherwise Covenant that he would procure Letters of Administration by which he might convey such a Term lawfully to the Plaintiff which he had not done licet saepius requisitus c. The Defendant pleaded that he came to Doctor Drury into the Court of the Arches and there offered to prove the Will of the said I. S. but because the Wife of the said I.S. would not swear that it was the Will of her Husband they could not be received to prove it Vpon which it was demurred in Law. It was moved by Williams that the Action doth not lie for there is no time limited by the Covenant when the thing should be done by the Defendant for which he hath time during his life for as much as it is a collateral thing See 15 E. 4. 31. if there be not a Request before but admit that the Covenant had been to perform upon request Request then the Plaintiff in his Declaration ought to have shewed an express request with the place and time of it for that is traversable See 33 H. 6. 47 48. 9 E. 4. 22. Gawdy If the Covenant had been eypresly to do it upon request there the request ought to be shewed specially But when a thing upon the exposition of the Law only is to be done upon Request such Request alledged generally is good enough And by Wray the Covenantor hath not time during his life to perform this Covenant but he ought to do it upon request within convenient time but in some case a man shall have time during his life as where no benefit shall be to any of the
and God forbid that Bread and the baking of it should be restrained to any special person especially in a Market Town And as to the case of the Prior of Dunstable that is not to the purpose for there he prescribed to have a Market and the correction of it and the fault there is not in the usurping of a Market in Nusance of the Plaintiff but because the Defendant sold meat there secretly so as the Plaintiff could not have the correction of it See 22 H. 6. 14. And it is not reasonable that such profits be restrained and drawn from the publick good to the private commodity of any person And he cited a case which was ruled in the Exchequer 9 Eliz. upon an Information exhibited there by the Burgesses of Southampton that the King had granted to the Burgesses of Southam that all the sweet Wines brought within the Realm should be unladen at Southam only Grant of the King void And it was agreed by Wray that such a grant was not good to deprive the Common-wealth of such a benefit and to appropriate it to one which might be profitable to many And it was further said by the Lord Wray that if the King will grant by his Letters Patents that A.B. shall be of Counsel only with the Defendant in the Chancery and C.B. with the Plaintiffs in the Exchequer Chamber the same is no good grant c. CC. Park against Moss and How. Trin. 31 Eliz. In the Kings Bench. Intrat Hill. 31 Rot. 31. Trover and Conversion 1 Cro. 181. More 352. 1 Roll. 893. IN an Action upon the Case upon Trover and Conversion The Defendant pleaded that one A. recovered in Debt against I. P. Executor of E. P. one hundred pounds and twenty pounds in Damages The Debt of the goods of the Testator and the Damages of the goods of the Testator si quae fuerint and if not of the goods of the Executor Vpon which A. procured a Fieri facias directed to the Sheriff of N. who made his Warrant to the Defendants to execute the said Writ And before Execution I. P. died intestate and administration was committed to the Plaintiff and the Defendants afterwards did execution of the proper goods of I. P. and sold them and deliver'd the mony to the Sheriff which is the same Trover and Conversion and averred that E. P. had no other goods The Plaintiff by Replication said that the Sheriff upon return of the said Writ of Execution returned as to the principal Debt That the goods of the Testator were wasted and as to the Damages that he could not execute the Writ quia tarde Tanfield I conceive that the false return of the Sheriff shall not make the Defendant punishable for they did execution secundum exigentiam brevis and delivered the monies coming thereby to the Sheriff and if they should not be excused it should be a great inconvenience for it is necessary that the Sheriff have inferiour Officers under him As 37 H. 6. an Executor named in the Will named one to take the goods of the Testator in such a place who did accordingly and afterwards the Executor doth refuse yet the servant shall not be punished for that medling 13 H. 7. 2. 21 H. 7. 23. Where it is said by Read chief Iustice that if the Baily delivereth the body of one who he hath taken in Execution to the Sheriff he shall be excused although that the Sheriff doth not return the Capias And we have pleaded in this case that we have delivered the mony to the Sheriff and that is confessed by the demurrer Altham I conceive that this Execution after the death of the party is not good For an Administrator is another person wherefore new process shall issue against him as in all cases where the person is changed 18 E. 3. If one sueth a Certificate out of a Statute and before execution had he dieth his Executors shall not have execution upon that Certificate but first they ought to have a Scire facias And 28 H. 8. Dyer 29. Transcript of a Fine is removed by the Ancestor out of the Treasury into the Chancery and comes in by Mittimus to have execution and the Ancestor dieth before Execution Now the Heir cannot proceed without a new Mittimus for he is another person See 36 H. 8. Br. Statute Merchant 43. and in our case here at the time of the Execution these are not the goods of the Executor for he is not in esse and it ought to appear whose goods they are which are taken in Execution If Lands be recovered against the Father who dieth and the Heir be ousted by Execution without a Scire facias against the Heir he shall have an Assise And 6 E. 6. Dyer 76. is our case A. is condemned in Debt and a Fieri facias is awarded and before execution A. dieth intestate The Sheriff levyed the Debt upon the goods of the Intestate in the hands of the Administrators upon which the Administrators brought Error and reversed the Execution Tanfield The Execution is erronious but is not void but shall stand until it be reversed by Error And it was holden by the whole Court that the false return of the Sheriff should not prejudice the Defendants At another day it was moved again and it was holden that the averment that the goods put in Execution were the goods of the Testator the day of the Writ of Execution sued was a good averment without saying Execution against an Administrator after the death of the Intestate of the Intestates goods good Execution shall relate to the date of the Writ 3 Cro. 106 330 1 Roll. 893. The day of Execution done for the award of the Writ of Execution shall bind all his goods against whom the Iudgment was given which he had at the day of the Writ of Execution awarded And it was also holden That notwithstanding the death of the party against whom c. The Sheriff might do execution of the goods of the dead in the hands of his Executors according to the opinion of Bryan 16 H. 7. 6. and afterwards in the principal Case Iudgment was given against the Plaintiff CCI. Carie and Denis Case Trin. 31. Eliz. In the Kings Bench. THe Case was Vpon a Latitat the Sheriff returned Retorn of the Sheriff That by vertue of the said process he had arrested the Body of the Defendant and that such a day after and before the Return of the Latitat a Habeas Corpus came to him to bring the body immediately into the Chancery which was done accordingly and there the Prisoner was discharged by the Order of the said Court And the same was holden a good Return for the Sheriff is bound to obey the Kings Writs and to execute them and he cannot compel the party to put in Sureties to appear here And the truth was That the party was brought before the Master of the Rolls and he did discharge him And per
their no cause of Action CCXXXVI Salway and Lusons Case Mich. 30 31 Eliz. In the Common Pleas. MAtthew Salway brought a Writ of Right against Luson Writ of Right 2 Len. 36. and the Writ was Messuag 200. acr jampnor bruerae And exception was taken to the Writ because jampnor bruerae are counted together where they ought to be distinguished severally As so many acr jampnor and so many acr bruer although it were objected on the part of the demandant in the maintenance of the Writ that in the Register the Writ of Right is reditu unius librae of Cloves and Mace together Abatement of a Writ without distinction or severance And it was said that in a Writ of Right we ought to follow the Register and therefore a Writ of Right was abated because this word Pomarium was put in the Writ for in the Register there is no such Writ because the word Gardinum comprehends it But in other Writs as Writs of Entry c. it is otherwise See the Case of the Lord Zouch 11 Eliz. 353 In a Writ of Entre sur disseisin mille acr jampnor bruer But this exception was not allowed for it may be that jampnor bruer are so promiscuous that they cannot be distinguished Vide 16 H. 7. 8. 9. The respect the Iustices had to the Register was such as they changed their opinions and conformed the same to the Register Another exception was taken to the Writ because thereby the Demandant doth demand Duas partes Custodiae del Hay in the Forrest of C. And the Court was of opinion that the Writ ought to be Officium Custodiae duarum partium de Hay c. and not Duas partes Custodiae As Advocationem duarum partium Ecclesiae And not Duas partes Ecclesiae Another Exception because the Writ was duas partes c. in tribus dividend where it should be Divis for Dividend is not in any Writ but only in a Writ of Partition And by Windham the parts of this Office are divided in Right which the Court granted Another Exception was taken because that in the Writ it is not set down in what Town the Forrest of C. is so as the Court doth not know from whence the Visne should come For no Venire shall be de vicineto Forestae as de vicineto Hundredi 1 Cro. 200. Manerii And the same was holden to be a material Exception Another Exception was taken Visne because a Writ of Right doth not lye of an Office for at the Common Law an Assise did not lye of it but now it doth by the Statute of West 2. Cap. 25. for it was not Liberum ten but the party grieved was put to his Quod permittat And of this opinion was the whole Court. CCXXXVII Smith and Lanes Case Mich. 30 31 Eliz. In the Common Pleas. THe Queen was seised of a Manor whereof Bl. acr was holden by Copy in Fee the Queen leased Bl. acr to B. for one and twenty years who assigned the same to the Copyholder who accepted of it The Queen granted Bl. acr to C. in Fee Copyholder determined by acceptance of a Lease 2 Co. 16 17. the term expired C. entred and his entry was holden to be congeable for by acceptance of the sam Term the Customary Estate was determined as if the Copy-holder had accepted it immediatly from the Queen It was also holden by the Court that a Lease for years under the Seal of the Exchequer may be pleaded and that without making mention of the Commission by which the Court of Exchequer is authorized to make such Leases And so are all the Presidents as well in this Court as in the Court of Exchequer And whereas the Court was upon the point of giving their Iudgment It was objected by Shuttleworth Serjeant That here is pleaded a Bargain and Sale of Land without saying pro quadam pecuniae summa And he stood much upon the Exception and the Court also doubted of it and demanded of the Prothonotaries what is their form of pleading Bargain and Sale and consideration of it And by Nelson cheif Prothonotary these words Pro quadam pecuniae summa ought to be in the pleading Scot Prothonotary contrary Anderson conceived it was either way good but Pro quadam pecuniae summa is the best And so Leonard Custos Brevium conceived And the opinion of the Iustices was that a Bargain and Sale for dives Causes and Considerations is not good without a sum of money 1 Co. Mildmays Case And by Windham Bargain and Sale Pro quadam pecuniae summa although no money be paid is good enough for the payment or not payment is not traversable And by Periam If Pro quadam pecuniae summa be not in the Indenture of Bargain and Sale yet the payment thereof is averrable And for this Exception the Iudgment was stayed CCXXXVIII Bedel and Moores Case Mich. 30 31 Eliz. In the Exchequer Chamber Action upon the Case for not performing an Award BEdel brought an Action upon the Case against Moore in the Kings-Bench and declared That the Defendant did assume to perform the Award of J.S. and assumed also that he would not sue Execution upon a Iudgment which he had obtained against the Plaintiff in an Action of Account c. And shewed further that the Award was made c. which Award in Law was utterly void and that the Defendant had not performed the said Award and also that he had sued Execution against the Plaintiff 10 Co. 131. 5 Co. 108. The Defendant pleaded Non-assumpsit and it was found for the Plaintiff and Iudgment given accordingly Vpon which Moore brought a Writ of Error in the Exchequer-chamber upon the Statute of 27 Eliz. And assigned Error Error because the Plaintiff had declared upon two Breaches whereas for one of them there was not any cause of Action for the Award is void in Law then no breach could be assigned in that and then when the Iury hath assessed Damages intirement for both breaches whereas for one there was not any cause of Action by the Law the Verdict was void then the Iudgment given upon it reversable for it is not reason that the Plaintiff have Damages for such matter for which the Law doth not give an Action And if the Iury had assessed damages severally viz. For the not performance of the Award so much Damages and for the suing forth Execution so much then the Iudgment had been good and the damages assessed for the not performance c. void Manwood Chief Baron The verdict is well enough for here the whole Assumpsit is put in issue and there is but one issue upon the whole Assumpsit but if several issues had been joined upon these several points of the Assumpsit and both had been found for the Plaintiff and damages assessed entirely for both breaches then was the Iudgment reversable for being several
and made partition of the Demeans only but the Services of the Free-holders and Copy-holders did remain in Common One of the Daughters took Husband the Husband and the Wife make a Lease of the moyety of the Manor to the Plaintiff for years by word rendring Rent the Lessee entred into the Demeans allotted to the Wife of the Lessor Partition The Husband died and the Wife brought an Action of Wast Anderson By the partition the Demeans are now become in gross and severed from the Manor And if partition be made of a Manor so as the Demeans be allotted to one Sister and the Services to the other now the Mannor is dissolved yet if the other Sister dieth without issue and her part descendeth to the other now it is become a Manor again which Windham and Periam granted 6 Co. 64. See 12. H. 4. 271. And Anderson was of opinion that the moyety of the Demeans did not pass by the words of the moyety of the Manor as if one seised of a Manor maketh a Feoffment in Fee of part of the Demeans and afterwards re-purchaseth them and then makes a Feoffment of the whole Manor the Demeans repurchased will not pass thereby for they were once severed from the Manor and not re-united by the purchase Periam Although that in truth it is not a Manor nor any part of a Manor yet if it hath beeen reputed the moyety of the Manor it shall pass by such name which Anderson grant ed but it is not like to our Case Periam This is an ancient partition as appeareth by the Verdict ten years past and also it hath been reputed the moyety of the Manor therefore it shall pass Windham concessit Periam The intent of the Grantor is the best Interpreter of these words without relying strictly upon the words Anderson If we shall take the intents of men for Law we shall fall into many confusions in our proceedings but the Law is to judge of the meanings of men by their words Ever in the constructions of Wills the intent of the Testators have not had further favour than the words have given leave As to the other point It was argued by Walmsley that the Lease made by the Husband and Wife without Deed was void See 1 Ma. Dyer 91. And if the Wife after the death of her Husband accepts the Rent upon such a Lease reserved it shall not bind her for the consent of the Wife ought to be at the beginning of it which cannot be without Deed. Anderson conceived that the Lease is not meerly void See 15 Eliz. Smith Stapletons Case Plowd 431. Periam The matter is clear for although the Plaintiff declares generally of a Lease made by the Husband Wife yet the Iury hath found that it was by Indenture and that is pursuant enough And if the Husband and Wife make a Feoffment of the Wives Land it is the Feoffment of doth of them which Walmesley granted It was adjorned CCLXXXIV Smalwood amd others against the Bishop of Lichfeild and others Quare Impedit Trin. 31 Eliz. In the Common Pleas. HUmphrey Smalwood Richard Say and Thomas Say Executors of VVilliam Say Quare Impedit 1 Cro. 241. brought a Quare Impedit against the Bishop of Coventry and Lichfeild and M. Incumbent quod permittat praesentare ad Archidiaconatum de Derby which was void Et ad praesentationem Testatoris in vita sua nunc in retardationem executionis Testamenti did belong to the Executors Exception was taken because these words In retardationem executionis Testament could not be applied to a disturbance in the life of the Testator Windham There is not any Writ in the Register of Quare Impedit upon a disturbance made to the Testator Anderson What then therefore no remedy because no Writ according to his special matter 25 E. 3. 25. Goods are taken out of the possession of the Testator upon which the Executors brought Trespass In retardationem executionis Testamenti Writ abated for it ought to be where the Executors themselves were possessed Periam The Advowson it self is valuable not the presentment therefore it cannot be said in retardationem Periam Before the Statute of 4 E. 3. 73. In Case were damages were only to be recovered the Action moritur cum persona but where the thing it self was to be recovered there the Action accrued to the Executors Anderson 7 H. 4. 73. Ejectione firmae of an Ejectment made unto the Testator was maintained by the Executors be equity of the Statute of 4 E. 3 cap. 6. And by the opinion of the whole Court the Executors might have a Quare Impedit upon a disturbance made to the Presentment It was objected also that a Quare Impedit doth not lye of an Archdeaconry-ship for it is not local nor any Indenture made of it but is only a matter of function but it was not allowed for â—iii Archdeacon hath Locum in Coro And by the Statute a Quare Impedit lyeth of a Chappel and by the equity of it of a Prebend c. See the Statute of West 2. Quare Impedit of a Chappel Prebend c. It was moved if the Executors had presented after the death of the Testator whether the Archdeacon ought to receive the Clark of the Testator or of the Executors and the opinion of the Court was That the Bishop should have election therein And afterwards Iudgment was given that the Writ should abate for the disturbance to the Testator cannot be supposed new matter In retardationem executionis Testamenti But yet it was agreed that the Executors might have their special Writ upon their Case for the said disturbance Trin. 31 Eliz. In Communi Banco IN an Action brought against one as Executor who pleaded that he refused upon which the parties were at Issue The Bishop did certifie 1 Cro. 81. 3â—â— 2 Len. 180. quod non recusavit whereas in truth he had refused before the Commissary Tenner Serjeant moved to have the advice of the Court upon that matter and argued that the Court ought to write to the Commissary Which was denyed by the whole Court for he is not the Officer unto the Court to that purpose but the Bishop himself is the Officer And the party cannot aver against the Certificate of the Bishop no more than against the Retorn of the Sheriff The Court was also of opinion that the only remedy for the Defendant was by Action upon the Case against the Bishop for his false Certificate But it was moved That the Issue joyned upon the refusal ought to be tryed by Iury and not by the Certificate of the Bishop and so was the opinion of Windham and Walmesley Periam Where the Issue is whether the Executor did refuse before such a day or after there the tryal shall be by Iury contrary where the Issue is upon refusal generally because the refusal is before him as a Iudge as also is Resignation CCLXXXVII Sutton and Holloway and Dickons Case
appendant to it and conveyed the said capital Messuage and Advowson to the King by the dissolution and from the King to the said Thomas Long who so seised without any Deed did enfeoff the Plaintiff of the said Manor and made Livery and Seisin upon the Demesnes And that the said Thomas Long by his Deed made a grant of the said Advowson to the said Strengham and afterwards the Free-holder attorned to the Plaintiff And by the clear opinion of the whole Court here is a sufficient Manor to which an Advowson may be well appendant and that in Law the Advowson is appendant to all the Manor but most properly to the Demesnes out of which at the commencement it was derived and therefore by the attornment afterwards within construction of the Law shall have relation to the Livery the Advowson did pass included in the Livery And the grant of the advowson made mesne between the Livery and the attornment was void and afterwards Iudgment was given and a Writ to the Bishop granted for the Plaintiff CCXC. Mich. 32 33 Eliz. In Communi Banâ—o Debt A Made a Bill of Debt to B. for the payment of twenty pounds at four days scil five pounds at every of the said four days and in the end of the Deed covenanted and granted with B. his Executors and Administrators that if he make default in the payment of any of the said payments that then he will pay the residue that then shall be un-paid and afterwards A. fails in the first payment and before the second day B. brought an action of Debt for the whole twenty pounds It was moved by Puckering Serjeant Sâ—y 31. 32. 1 Cro. 797. That the Action of Debt did not lye before the last day encurred And also if B. will sue A. before the last day that it ought to be by way of covenant not by Debt But by the whole Court the action doth well lye for the manner for if one covenant to pay me one hundred pounds at such a day an action of Debt lyeth a fortiori Owen 42. 1. 2 Rol. 523. when the words of the Deed are covenant and grant for the word covenant sometimes sounds in covenant sometimes in contract secundum subjectum materiae CCXCI. Lancasters Case Mich. 32 33 Eliz. In Communi Banco Roll. Tit. Covenant pl. 72. AN Information was against Lancaster for buying of pretended Rights Titles upon the Statute of 32 H 8. And upon not guilty pleaded It was found for the Plaintiff it was moved in arrest of Iudgment because the Informer had not pursued the Statute in this that it is not set forth that the Defendant nor any of his Ancestors or any by whom he claimed have taken the profits c. and the same was holden a good and material Exception by the Court although it be layed in the Information that the Plaint himself hath been in possession of the Land by twenty years before the buying of the pretended Title for that is but matter of argument not any express allegation for in all penal Stat. the Plaintiff ought to pursue the very words of the Stat. and therefore by Anderson It hath been adjudged by the Iudges of both Benches that if an Information be exhibited upon the Stat. of Vsury by which the Defendant is charged for the taking of twenty pounds for the Loan and forbearing of one hundred pounds for a year there the Information is not good if it be not alledged in it that the said twenty pounds was received by any corrupt or deceitful way or means And in the principal Case for the Cause aforesaid Iudgment was arrested CCXCII Bagshaw and the Earl of Shrewsburies Case Mich. 32 33. Eliz. In the Common Bench. BAgshaw brought a Writ of Annuity against the Earl of Shrewsbury for the arrerages of an Annuity of twenty Marks per annum Annuity granted by the Defendant to the Plaintiff Pro Consilio impenso impendendo The Defendant pleaded that before any arrerages incurred he required the Plaintiff to do him Service and he refused The Plaintiff by replication said that before the refusal such a day and place the Defendant discharged the Plaintiff of his Service c. And the opinion of the Court was that the Plea in Bar was not good for he ought to have shewed for what manner of Service to do the Plaintiff was so retained and for what kind of Service the Annuity was granted and then to have shewed specially what Service he required of the Plaintiff and what Service the Plaintiff refused Another matter was moved If the discharge shall be peremptory and an absolute discharge of the Service of the Plaintiff and of his attendance so that as afterwards the Defendant cannot require Service of the Plaintiff And by Walmesly Iustice it is a peremptory discharge of the Sevice for otherwise how can he be retained with another Master and so he should be out of every Service VVindham contrary For here the Plaintiff hath an Annuity for his life and therefore it is reason that he continue his Service for his life as long as the Annuity doth continue if he requirreth But where one is retained but for one or two years then once discharged is peremptory and absolute CCXCIII Matheson and Trots Case Mich. 31 32. Eliz. In the Common Bench. BEtwixt Matheson and Trot the Case was Sir Anthony Denny seised of certain Lands in and about the Town of Hertford 2 Len. 190. holden in Socage and of divers Mannors Lands and Tenements in other places holden in chief by Knights-service and having Issue two Sons Henry and Edward by his last Will in writing devised the Lands holden in Hertford to Edward Denny his younger Son in Fee Devises and died seised of all the Premisses Henry being then within age After Office was found without any mention of the said Devise the Queen seised the Body of the Heir and the possession of all the Lands whereof the said Sir Anothony died seised and leased the same to a stranger during the Minority of the Heir by force and colour of which Lease the Lessee entred into all the Premisses and did enjoy them according to the Demise And the Heir at his full age sued Livery of the whole and before any entry of the said Edward in the Land to him devised or any entry made by the said Henry the said Henry at London leased the said Lands by Deed indented to I.S. for years rendring Rent by colour of which the said I.S. entred and paid the Rent divers years to the said Henry And afterwards by casualty the said Henry walked over the Grounds demised by him in the company of the said I. S. without any special entry or claim there made I.S. assigned his Interest to I.D. who entred in the Premisses and paid the Rent to the said Henry who died and afterwards the Rent was paid to the Son and Heir of Henry
Steward as if the Lord of a Manor be beyond the Sea * More 1 Rep. the Writ of Right shall be directed to the Bayliff of the Manor and see 21 H. 7. 36 37. Where the Sheriff or Steward of a Manor may be without Deed and here in the principal case the Retainer is not to keep one Court but to keep the Courts of the Lady of the Manor scil all her Courts until he be discharged It was adjourned CCCX Ascew and Fuliambs Case Pasch 33 Eliz. In the Common Pleas. Andita Querela 1 Cro. 233. AScew was bounden by Statute to Fuliamb and there was not two Seals put to the Statute and Execution was sued upon the said Statute the Conusor brought an Audita Querela and they were at Issue if two Seals were to the said Statute and tried for the Plaintiff in an Audita Querela by the Sheriff of the City of Lincoln And it was moved by Glanvil Serjant That the Issue ought to have been tryed by the Certificate of the Mayor of Lincoln before whom the acknowledgment was and not by Iury which was denyed for the Issue is not whether any such Statute was acknowledged or not but whether the Statute in question hath two Seals or not and that is not recorded by the Mayor as the Statute it self is Another Exception was taken It appeareth by the Margent of the Record that the Issue was tryed by the County of Lincoln where it ought to be tryed by the County of the City of Linc. for Linc. only is in the Margent But to that it was said that such is the usual form to which the Preignothories agreed and the Book of 18 E. 3. 25. was urged where execution of Lands of the Conusor was awarded upon a Statute Merchant and the Statute was to pay c. 16 E. 3. But the Original Writ which issued to take the body of the Conusor was 14 E. 3. And upon that Error brought And the Court agreed that case but these two cases do differ for there the Process was misawarded not so here And although a Writ of Error may lye yet the same doth not prove but that an Audita Querela may lye also And afterwards Iudgment was given for the Plaintiff CCCXI. Jennings and Gowers Case Pasch 31. Eliz. In the Common Pleas. IN the Case betwixt Jennings and Gower the words were 1 Cro. 219. That if the wife of the Devisor would permit one Wats to enjoy such a Term for the Term of three years next following that then she should have all the residue of his Goods and Chattels as his sole Executrix c. Anderson chief Iustice conceived That she should not be Executrix For she is to be Executrix upon a condition precedent to be performed before that she be Executrix And the condition is impossible to be performed and then she shall never be Executrix for where an estate is to be created upon a condition impossible to be performed there the estate shall never come in esse and here the condition is impossible for how can she suffer Wats to enjoy the Term for 3. years next following the 3. years ought to be past before she hath any power either to permit or resist for until the three years be encurred she cannot be Executrix nor before the three years expired can she bring any action as Executrix for her authority doth not begin before the three years be expired Walm Peri. Wind. contrary Although a grant upon a condition precedent doth not take effect until the condition be performed yet such a construction ought not to be used in this case so the intent of the Devisor in this case shall stand If the condition had been that if the wife will find meat and drink to such a person until his death That then she shall be Executrix shall not the Wife be Executrix till after the death of such party truly yes for otherwise she should never be Executrix which is utterly against the meaning of the Testator for it was not his intent that the Ordinary should commit Administration of his goods in the mean time And afterwards Anderson changed his opinion and agreed with the other Iustices Periam The subsequent words prove directly that the meaning of the Testator was to make his Wife Executrix immediately until she were disturbed by the said Wats for the words are that if she refuse to suffer the said Wats to enjoy c. Then his Son shall be his Executor which words imply that by a disturbance made by the Wife her Executor-ship should cease and that the Son should have it which cannot properly be if she was not Executrix from the beginning And it is the usual course in the construction of Wills to consider all the clauses of the Will and to judge upon all the words of the Will and not upon one part only and such construction the Iudges used in the cases of Param and Yardley and Welden and Elhing And afterwards at another day Iudgment was given for the Wife That she was Executrix presently and her authority should not expect until the three years were expired if not that any actual disturbance can be proved to be or have been made by the Wife against the Will of the Devisor and the words of the Will will receive such construction that she shall be Executrix until an actual disturbance of Wats CCCXII Palmes and the Bishop of Peterboroughs Case Pasch 33. Eliz. in the Common Pleas. Quare Impedit 1 Cor. 241. IN a Quare Impedit by Margaret Palmes against the Bishop of Peterborough who pleaded That the Plaintiff did present unto him one I. S. of whom the Bishop asked if he were within Orders and if he had his Letters of orders and because the Presentee could not shew the Bishop his Orders he refused him And commanded him to come another time and shew to him his Orders and that the Presentee did never do it nor offered to the said Bishop his said Orders without that he did disturb him in other manner And by Periam and Anderson it is no Plea for upon his own shewing the Defendant is a disturber Refusal of the Bishop Degg 75. For although that the Statute of 13 Eliz. requires that no man shall be admitted to a Benefice with cure of souls if he be not a Deacon yet the Statute doth not extend to compel the Clark to shew his Orders and therefore when he for such a frivilous cause doth refuse to admit him the same is a disturbance And afterwards exception was taken to the Count because that the Plaintiff being Tenant for life of the Advowson of the gift of her Husband Co. 5 Rep. 57. had not alleadged any Presentment in her Husband or any of his Ancestors but only in her self But that was not allowed for that point hath been lately over-ruled in this Court in the case betwixt Specot and the Bishop of Exeter 8 H. 5. 4. adjudged
Plaintiffs At another day the Case was moved again And then it was the clear opinion of the whole Court that the Action was maintainable although that the Plaintiff in the first Action had acknowledged satisfaction And it hath been adjudged here in this Court in the Case betwixt Hill and Hill that notwithstanding such satisfaction that the Action lieth See F.N.B. 130. b. for the payment after doth not take away the Action but mitigate the damages only for the Act of a third person shall not take away an Action once vested CCCXVII Greenliff and Bakers Case Mich. 32 33 Eliz. In the Kings Bench. Assumpsit 1 Cro. 193. THe Plaintiff declared that whereas he was bound to the Defendant in an obligation of forty pounds for the payment of twenty pounds the Defendant the second of No. after in consideration that the Plaintiff at the Request of the Defendant had paid the said twenty pounds without suit at Law promised to deliver to the Plaintiff before such a day an Obligation by which one A. was bounden to the Defendant in forty pounds with a Letter of Attorney to demand the same of the said A. and to sue for it in the name of the Defendant which he had not done and in that matter the Plaintiff had Iudgment and thereupon the Defendant brought a Writ of Error First here is not any consideration for the payment of the mony is no more than he ought to do and which he was compeliable to do c. Secondly the same is no benefit to the Plaintiff but only a matter of charge to sue the said Bond against A. Thirdly upon the Venire facias the Sheriff returned but twenty three Iurors As to the first Error it was the opinion of Gawdy and Fenner Iustices that here is not any consideration for the Defendant hath not any benefit by it and the Plaintiff doth no more than he ought to do and the payment was in respect of the Debt and not of the Defendants Request And by Gawdy upon this promise an action doth not lye for the Plaintiff is not to have any benefit by it but travel Fenner contrary and that the Action lieth for that as to the third Error the same is helped by the Statute of 32 H. 8. and the Statute of 18 Eliz. of imperfect and insufficient return of any Sheriff Fenner Not only the return is naught but also the Pannel is insufficient And it was moved by Tanfield that it was adjudged in this Court Pasch 25 Eliz. betwixt Cook and Huet that where A. was bounden to B. in forty pounds B. promised to A. that if A. would pay the mony without suit he would deliver him the said Bond by which he is bound to the said B. and it was holden a good consideration Quod fuit concessum per totam Curiam but that is not like to the case at Bar and it was holden in the same Plea That if the Obligor pay the duty at the day and place that if the Obligee will not deliver the Bond yet the Obligor shall not have the Detinue for it CCCXII Guildfords Case Mich. 32 33 Eliz. In the Kings Bench. Indictment upon the Statute of 23 Eliz. GUilford was Indicted upon the Statute of 23 Eliz. cap. 1. for withdrawing divers persons her Majesties Subjects from the Religion established in England to the Roman Religion and to promise obedience to the Church of Rome and for that he himself was with-drawn from the obedience of the Queen Coke took Exception to the Indictment because that the Indictment was not found within the year after the offence committed In the said Act there is a Proviso That all offences against the Act shall and may be enquired of within the year and day after the offence committed Popham Attorney General This case is not within that Proviso but doth depend upon other Statutes before viz. 1 5 13 Eliz. touching the acknowledging of her Majesties supream Government in causes Ecclesiastical or other matters touching the service of God or coming to Church or establishing of true Religion within this Realm shall and may be enquired as well before the Iustices of the Peace as other Iustices named in the said Statute within one year and a day after such offence committed And he said these words in the Proviso refer only to such offences contained in the said Act which toucheth the Supremacy and causes Ecclesiastical c. and such offences ought to be enquired within the year and day But this Indictment here doth consist upon other matter for withdrawing himself from the obedience of the Queen which is an offence out of the compass of the said Proviso and therefore the enquiry of it not restrained unto any time and the Statute of 13 Eliz. extends to Bills Writings Instruments c. and not to the words with-drawing by words which is supplied by 13 Eliz. with-drawing by other means and the restraint of the Enquiry at the time goes to the hearing of Mass and saying of Mass and not repairing to the Church but as to with-drawing the same is at large not restrained by that Statute And he said that this Indictment doth consist upon many offences some to offences within the Proviso and as to those the Indictment is void Some to other offences as Treason the offence of with-drawing the Enquiry of which is not restrained and therefore this Indictment shall stand Also it was the intent of this Statute not to restrain this Court but only the Iustices of Peace for they are specially named Coke conceived that this word Touching c. did not extend to any thing contained in the Statute of 23 Eliz. but only to offences within the Acts of 1 5 13 Eliz. which were incertain before also this Proviso is in the Disjunctive against this or against the Acts of 1 5 or 13 Eliz. so as that which follows is to be applied to the last Disjunctive and not to the whole sentence and always when a thing is named certain and after general things the words subsequent shall be referred to the general words and not to that which is certain Also if Touching c. doth refer to this Statute the sentence would have begun with it but here it begins with the Supremacy of which nothing is spoken in this Statute and therefore it ought to be referred to the Statute which begins it and that is 1 Eliz. and then it shall be preposterous to come after 23 Eliz. and these words shall and may ought to be so construed shall is restrictive of it self and may shall be referred to that which was restrained before as the proceedings upon the Statute of 1 Eliz. cap. 2. were restrained to the next Sheriffs And he conceived that this Court is as well restrained to Time as any other Court for the words are as well before Iustices of the Peace as before other Iustices named in the said Statutes and in the Statute of 5 Eliz.
this Court is especially named Wray This Proviso begins with Iustices of the Peace therefore it doth not extend to offences which are Treason and the meaning of this Statute of 23 Eliz. was to enlarge the Statutes of 1 5 Eliz. for where the offence against the Statutes before was to be enquired at the next Session and the other within six Months now by this Statute it may be enquired at any time within the year and day but it doth not extend to restrain the proceedings against offences of Treason for the words of the Statute are That such offences shall be inquired before Iustices of Peace within a year c. But in the next clause the Iustices of Peace may punish all offences against this Act but Treason by which it appeareth that no offences are restrained to time but those which the Iustices of the Peace have authority to hear and determine and that is not Treason Gawdy to the same purpose For all the Proviso is but one sentence and there the whole shall be referred to spiritual offences as the not coming to Church c. CCCXXIII Filcocks and Holts Case Mich. 32 33 Eliz. In the Exchequer Error Assumpsit IN an Action by Filcocks against Holt Administrator of A. the Plaintiff declared how that the Husband of the Defendant who died intestate was indebted to the Plaintiff in ten pounds by Bill and that the Defendant in consideration that the Plaintiff would permit the Defendant to take Letters of Administration and give to her further day for the payment of the said ten pounds promised to pay the said ten pounds to the Plaintiff at the day And upon a Writ of Error brought in the Exchequer upon a Iudgment in the Kings Bench in that case It was assigned for Error that here is not any consideration for by the Law she is to have Administration being wife of the Intestate and as to the giving of further day for the payment of the ten pounds the same will not make it good for it doth not appear that she was Administratrix at the time of the promise made and then she is not chargeable and then c. And such was the opinion of the Court. And it was said by Periam Iustice and Manwood chief Baron That the Bishop might grant Letters of Administration to whom he pleased if he would forfeit the penalty limited by the Statute â—atch 67 68. Also it was said where an Executor or Administrator is charged upon his own promise Iudgment shall be given de boniâ— propriis for his promise is his own act CCCXXIV Adams and Bafealds Case Mich. 33 Eliz. In the Kings Bench. Action upon the Case AN Action upon the Case was brought and the Plaintiff declared That where such an one his Servant departed his service without cause or license the Defendant knowing him to be his Servant did retain him in his Service and so kept him Tanfeild The Action doth not lye for if my Servant depart out of my service and another doth retain him an Action doth not lye at the Common Law if he do not procure him to leave my service and afterwards retain him or immediately taketh him out of my service And this Action is not grounded upon any Statute See 11 H. 4. 176. 47 E. 3. 14. 9 E. 4. 32. Gawdy The Action lieth for here is damage and wrong done to the Plaintiff Fenner contrary For the wrong is in the departure and not in the Retainer and upon the Statutes it is a good Plea to say for the Defendant that the party was vagrant at the time of the Retainer and the sciens doth not alter the matter CCCXXV Nash and Mollins Case Mich. 32 33 Eliz. In the Kings Bench. Prohibition 1 Cro. 206. Tithes NAsh and Usher sued a Prohibition against Mollins for that the Defendant had libelled against them in the Spiritual Court for Tithes of Wood growing in Barking Park in Essex the other did surmise that the Lands were parcel of the possessions of the Prior and Covent of Cree Church and that the said Prior and his Successors time out of mind c. had held the said Lands discharged of Tithes and held them so at the time of the Dissolution c. and the other part traversed it whereupon they were at Issue if the Prior c. held the Land discharged tempore Dissolutionis c. And now on the part of the Plaintiff in the Prohibition certain old persons were produced who remembred the time of the Monasteries and that they did not pay any Tithes then or from thence Exception was taken to the suggestion by Coke that here is nothing else than a Prescription de non Decimando for here is not set forth any discharge as composition unity of possession priviledge of order as Templarii Hospitiarii c. â—enner Iustice Spiritual persons may prescribe in non Decimando for it is not any prejudice to the Church Wray Although it is not set down the special manner of discharge yet it is well enough for we ought to take it that it was by a lawful means as composition c. or otherwise For the Statute is that the King shall hold discharged as the Abbot c. and we ought to take it that it was a lawful discharge of Tithes tempore dissolutionis And afterwards the Iury found for the Plaintiffs in the Prohibition But no Evidence was given to prove that the Defendant did prosecute in the Spiritual Court contrary to the Prohibition CCCXXVI Sheldons Case Mich. 32 33 Eliz. In the Kings Bench. SHeldon Talbot and two other four persons in all Indictment upon the Statute of 23 Eliz. were Indicted upon the Statute of 23 Eliz. of Recusancy the words of the Indictment were Quod illi nec eorum uterque venerunt to any Parish Church c. It was moved by Atkinson That the Indictment is not good for uterque doth refer unto one of them and not where they are many as here and so is an insensible word and so upon the matter there is no offence laid to their charge And the Iustices doubting of it demanded the opinions of Grammarians who delivered their opinions that this word uterque doth aptly signifie one of them Exposition of words and in such signification it is used by all Writers Gawdy I conceive that the opinions of the Grammarians is not to be asked in this case But I agree that when an unusual word in our Law comes in question for the true construction of it then the opinion of Grammarians is necessary But uterque is no unusual word in our Law but hath had a reasonable Exposition heretofore which we ought to adhere unto which see 28 H. 8. 19. Three bound in an Obligation Obligamus nos utrumque nostrum and by the whole Court uterque doth amount to quilibet And see 16 Eliz. Dyer 337 338. Three Ioyntenants in Fee and by Indenture Tripartite each of them
the Right of the Complainants come ceo c. with warranty of the said Husband and Wife for which the Complainants did render a Rent of fifty pounds per annum with clause of distress in dictis Manerijs to the said John Amy the Heirs of Amy and also rendred the Tenements aforesaid with the Appurtenances to the said John and Amy for their lives the Remainder to the said Francis their Son in tail the Remainder to the said Amy and her Heirs and that John and Amy dyed by force whereof the said Rent descendeth to the said Plaintiff as Son and Heir of the said Amy and that the said Francis entred into the said Mannors as in his Remainder and was seised in tail and was seised of the said Rent by the Hands of the said Francis and afterwards thereof did enfeoff the said Garmons the Defendant c. The Tenant pleaded That the Plaintiff was never seised so as he could be disseised and if c. Nul tor nul disseisin which was found for the Plaintiff who had Iudgment and Execution upon which the Tenant brought a Writ of Error Stephens assigned Error First the Fine is levyed of two Manors inter alia so as no other Lands passed by the Fine besides the Manors and so the Rent is granted out of the said Lands and Manors and no other Lands which passed by the Fine and then upon the Plaintiffs own shewing it appears that all the Tenants of the Lands charged with the Rent in demand are not named in the Assize Second Error This Rent is granted only out of the Estate tail for Amy hath Fee in both as well the Rent as the Land and then when the Estate tail is determined the Rent is also determined and he hath not averred the life of the Tenant in tail or any of his Issue wherefore it shall be intended that he is dead without issue and then the Rent is gone and then he hath not any cause to have Assise Bourchier As to the first conceived and argued that it is not Error for although these words inter alia c. yet it shall not be intended that the Conusor had any other Lands or that the Rent is issuing out of other Lands than those two Manors which are expressed not inter alia As to the second the continuance of the tail needs not to be averred for the Tenant in tail hath enfeoffed the Tenant of the Land by which the estate tail is discontinued And although the Tenant in tail be dead without issue yet the Rent doth remain until Recovery of the Land by Formedon in the Remainder Fenner Iustice was of opinion Vaugh. Reâ— 175. That the Per nomen should go unto the Mannors only and should not extend to the inter alia For if a man in pleading saith that J.S. was seised of twenty acres of Land and thereof inter alia did enfeoff him per nomen of Green-wead the same shall not have reference to the inter alia but only to the twenty acres And the averment of the continuance of the Tail needs not for the Estate-tail is discontinued Gawdy Iustice was of opinion That the per nomen should go as well to the inter alia as to the two Manors and then all the Ter-tenants are not named in the Assise and the same not to be pleaded for it appears of the Plaintiffs own shewing and there needs no averment of the continuance of the Tail for the cause aforesaid Clench Iustice The per nomen doth refer to all which see by the Fine which shews that other Lands passed by the Fine than the said two Manors And as to the second point he said There needed no averment Gawdy As to the first Error the same cannot be saved by any way but to say That the Conusor was not seised of any other Lands than the said two Manors and then the Fine doth not extend unto it and then no Rent is granted out of it Fenner In the Common Pleas in the great case of Fines it was holden that in pleading of a Fine it needs not to say That the Conusor was seised for if the Conusor or Conusee were seised it is sufficient for such pleading is contrary in it self for a Fine sur conusance de droit come ceo c. doth suppose a precedent Gift It was also objected That here is a confusion in this Fine for the Rent is rendred to the Husband and Wife and to the Heirs of the Wife and the Land is rendred to the Husband and Wife for their lives the Remainder to Francis in Tail the remainder to the Wife and her Heirs And these matters cannot stand together in a Fine but the one will confound the other But as to that it was said that the Law shall Marshall these two renders so as they both shall stand And it is not like unto a Rent-service for a Rent-service issueth out of the whole Estate And therefore if a Remainder upon an Estate for life Eschears the Seigniory is gone even during the life of the Tenant for life which see 3 H. 6. 1. contrary of a Rent-charge For if the Grantee of a Rent in Fee purchaseth the remainder of the Land out of which it is depending out of an Estate for life he shall have the Rent during the life of the Tenant for life And of that opinion were all the three Iustices for the Conusors took by several Acts and the Estate is charged for it cometh under the Grant. Fenner Iustice There is a difference betwixt a Rent service and a Rent-charge or Common for that shall charge only the Possession but a Rent-charge shall charge the whole Estate And therefore if he who hath a Rent-service releaseth to him in the Remainder upon an Estate-tail or for life the Rent is extinct which Gawdy denied And this Case was put The Disseisee doth release to the Lessee for years of his Disseisor nihil operatur But if the Disseisor and Disseisee joyn in a Release to such Lessee the same is good for first it shall enure as the Release of the Disseisor and then of the Disseisee c. CCCXLIV Tedcastle and Hallywels Case Mich. 32 33 Eliz. In the Kings Bench. Debt 2 Roll. 594. 1 Cro. 234 235. IN Debt upon a Bond the Defendant pleaded That the Condition was That whereas John Hallywel had put himself to be an Apprentice to the Plaintiff if the Defendant John Hallywel during his Apprenticeship or any other for him by his consent or agreement take or riotously spend any of the Goods of his said Master the Plaintiff If then the Defendant within one month after notice thereof given to him do pay and satisfie the Plaintiff for all such sums of Monies Wares c. so taken or riotously spent by the Defendant or by any other by his procurement or consent the same being sufficiently proved that then c. The Defendant by protestation Quod nec
extinct as if he solely had been seised so if he in the Reversion and a Stranger disseise for life and make a Feoffment over the Seigniory is gone and yet it is the Livery of the Lessee only And although it be but the confirmation of him in the Remainder for life yet thereby the Remainder is gone and extinct And afterwards Iudgment was given that the Entry of him in the Remainder in tail was lawful And it was said by the L. Dyer That if Tenant for life be the Remainder for life the Remainder in fee Tenant for life in possession alieneth in fee that he in the Remainder in fee cannot enter for it was not to his disinheriâ—in CCCL 20 Eliz. In the Kings Bench. THe Case was That a Capias ad Satisfaciend was delivered to the Sheriff 5 Co. 88 89. and after the Sheriff did arrest the party against whom the Capias issued by force of a Capias Utlagatum and then the party in the Capias came to the Sheriff and prayed that the party remain in Execution for his debt also and notwithstanding that the Sheriff let the Prisoner go at large and upon both Writs returned Non est inventus It was the opinion of all the Iustices That the Sheriff was not bound in point of Escape to detain the Prisoner for the Debt of the Plaintiff and it is not like where one is in the Fleet in Execution there if other condemnations in other Courts be notified to the Warden of the Fleet he shall be chargeable with them all It was holden also per Curiam That if the Body had been returned by Capias Utlagatum that the Court at the prayer of the party would grant that the Prisoner might remain in Execution for the debt as in case of a Capias pro fine CCCLI The Lord Saint John and the Countess of Kents Case 19 Eliz. In the Common Pleas. IN Evidence given to the Iury in an Action of Debt brought by the Plaintiff against the Defendant Grants of Executors of omnia bona sua 1 Cro. 6. It was said by Dyer and Manwood Iustices That if Executors grant omnia bona sua that the goods which they have as Executors do not pass which see 10 E. 4. 1. b. by Danby but the contrary was holden by Wray chief Iustice of the Kings Bench and by Plowden in Bracebridges case P. 18 Eliz. and they denied the opinion of 10 E. 4. to be Law for by such Grant made by Executors the goods of the Testator do pass CCCLII. 19 Eliz. In the Common Pleas. NOte It was said by Dyer and Manwood Iustices That if one be condemned in an Action upon the Case Abatement of Writ 3 Len. 68. or Trespass upon Nihil dicit or demurrer c. And a Writ issueth forth to enquire of the Damages and before the return of it the Defendant dieth that the Writ shall not abate for the awarding of the said Writ is a Iudgment And it was said by Manwood Account In a Writ of Account the Defendant is awarded to account if the Defendant account and be found in Arrearages and dieth the Writ shall not abate but Iudgment shall be given that the Plaintiff shall recover and the Executor shall be charged with the Arrearages and yet account doth not lye against them CCCLIII 19 Eliz. In the Kings Bench. A. Did recover in Debt against B. whereupon a Fieri facias issued to the Sheriff of Devon and the Defendant seeing the Writ of Execution in the Sheriffs hands Attachment of Goods after the Money is in the Sheriffs hand is void said to him that he would pay the Debt recovered at Exeter such a day to satisfie the Execution at which day the Defendant paid the mony accordingly and presently came an Officer of the City of Exeter and attached the mony in the Sheriffs hand supposing the said A. to be indebted so much to one C. in whose name he made the Attachment Antea 29. 1 Cro. 6â— and now on the behalf of the said A. a Certiorare was prayed to remove the Attachment hither and it was therefore holden by the whole Court that the Attachment was void and a Certiorare granted And Wray said If it can be proved by Oath that if the Defendant did procure or was assenting to the said Attachment that Process of Contempt should issue against him and the Sheriff demanded of the Court what return he should make because the monies were attached in his hands and taken from him by force to which Wray answered That the Sheriff ought to answer the monies to the Plaintiff which were once in his hands by force of the Execution and that it was his folly to suffer the mony to be taken from him by colour of the said Attachment and if the mony was taken by force the Sheriff had his remedy by an Action of Trespass for the Attachment was void but the Sheriff at the return of the Writ ought to answer for the Mony. CCCLIV. 19 Eliz. In the Common Pleas. TEnant for life bargained and sold his Lands to A. and his Heirs and afterwards levied a Fine to the Bargainee Forfeiture 4 Len. 124. â— Len. 60 65. Sur conusans de droit come ceo c. It was holden by the Court that it was a forfeiture committed by the Bargainee not by the Bargainor who at the time of the Fine had nothing to forfeit and it was said by Manwood Iustice That if Tenant for life be disseised and takes a Fine ut supra of a Stranger it is a forfeiture and yet he in the Reversion hath but a right in Reversion so that if Tenant for life be disseised and the Disseisor commits Wast he in the Reversion shall have an Action of Wast against Tenant for life and if two Tenants for life be disseised by two A. and B. and one of the Tenants for life doth release unto A. and the other Tenant for life doth re-enter he hath the Moiety in common with the other to whom the Release was made and he hath revested the intire Reversion in him in whom the Reversion was before c. CCCLV. 20 Eliz. In the Common Pleas. Bracebridges Case THe Case was Thomas Bracebridge seised of a Manor in Fee leased a Messuage parcel of it to one Curtes for 21 years and afterwards 35 H. 8. leased the same to one Moore for 26 years to begin after the expiration of the former Lease and afterwards 5 E. 6. he enfeoffed Griffith and others to the use of the Feoffees themselves and their Heirs upon condition That if the Feoffees did not pay to the said Thomas Bracebridge 2000 l. within 15 days after that then immediately after the said 15 days the Feoffees should stand seised of the said Manor to the use of the said Thomas Bracebridge and Joyce his wife for their lives without impeachment of Wast and afterwards to the use of T. B. their second Son in tail with divers Remainders
Litis contestationem the right of the Suit is so vested in the Proctor Swinburn 212. that he is a person suable until the end of the Suit and also he reported their Law to be * Bro. Devise 27. 45. Office of Exce 347. Shâ—p Touchstone c. 454. Plowd 345. Orphans Legacy 281. Note It was adjudged contrary to this Mich. An. Dom. 1653. in the Kings Bench. in Doâ—mlowes Case Poph. 11. That if a Legacy be bequeathed to an Infant to be paid when he shall come to the Age of twenty one years if such a Legatory dieth before such age yet the Executor or Administrator of such Legator shall sue for the said Legacy presently and shall not expect until the time in which if the Infant had continued in life he had attained his full age And as to the Prohibition it was argued by Egerton Solicitor General That the Grant aforesaid is not triable in the Spiritual Court As if the said Lady Lodge had suffered a Recovery to be had against her as Executor by Covin c. the same is not examinable in the Spiritual Court but belongs to the temporal Conusans and therefore he prayed a Prohibition But on the other side it was said That if the Prohibition be allowed the Legatory hath no remedy but that was denied for the party might sue in the Chancery And after the Prohibition granted the Court awarded a special Consultation quatenus non extendat ultra manus Executoris quatenus non agitur de validitate facti i. the Grant aforesaid CCCLXXVII Huddy and Fishers Case Hill. 28 Eliz. In the Kings Bench. Debt DEbt was brought upon a Bond the Condition of which was for the performance of Covenants Grants and Agreements in an Indenture And in the Indenture it was recited That in consideration that the said Huddy should build a Mill upon the Land demised by the Defendant to the Plaintiff by the same Indenture Attaint and a Water-course by the Land demised the Defendant leased the said Land to the Plaintiff and the Lease was by the words Dedi concessi And the Plaintiff assigned the breach of the said Covenant in Law in that the Defendant had stopped the said Water-course so made by the Plaintiff upon which they were at Issue and it was found for the Plaintiff upon which the Defendant brought Attaint and the false oath was found and it was moved in Arrest of Iudgment That here is no Issue and then by consequence no Verdict and then no false Oath and then no cause of Attaint for here the Issue is taken upon the stopping of the Water-course which upon the shewing of the party is not any cause of Action for in the Indenture there is not any express Covenant Clause or Agreement that the Lessee should enjoy the Water-course so to be made only there is a Covenant in Law rising upon these words Dedi concessi which cannot extend to a thing not in esse at the time of the making the Indenture Coke who argued for the Defendants in the Attaint resembled this case to the case in 23 E. 3. Garr 77. Where it is holden that the warranty knit to the Manor shall not extend to the Tenancy escheated And 30 E. 3. 14. The Recovery in value shall not be in larger proportion than the Land warranted was at the time of the warranty made So in our case this Covenant shall not extend to any thing which was not in esse at the time of the Covenant made And see 25 Ass 2. where the Court shall reject a Verdict or part of a Verdict c. And because the now Plaintiff might after the Verdict have alledged the same in arrest of Iudgment which he did not he shall not be helped by Attaint but it shall be accounted his folly that he would not for his own ease and to avoid circuity of Action shew the matter in stay of Iudgment As 9 E. 4. 12. by Littleton If a man be Indicted of Felony if the Iudgment be insufficient but he takes not advantage of it but pleads the general Issue and is acquitted he shall never after have a Writ of Conspiracy c. And for another cause Iudgment ought not to be given in this Case because it doth not appear that Execution hath been sued and then here is no party grieved And then this Action being conceived upon the Statute of 23 H. 8. Cap. 3. which gives it to the party grieved doth not lye for a party grieved cannot be intended without Execution sued See 21 H. 6. 55. by Paston False oath Iudgment and Execution do entitle the party grieved to Attaint And see the Stat. of 23 H. 8. which enacts That the party shall be restored to as much as he hath lost therefore he ought to lose by Execution before he be a person able 〈◊〉 bring this Action But as to that matter see the Statute of 1 E. 3. 6. by which it is Enacted That the Iustices shall not leave to take Attaint for the damages not paid so as before the said Statute no Attaint lay before Execution 33 H. 6. 21. by Prisoit 5 H. 7. 22. t. E. 1. Attaint 70. 8 E. 2. Assize 396. And it was moved That for another cause the Attaint doth not lye as it is pursued in Process upon it for the Plaintiff hath not pursued the Statute upon which the Attaint is grounded for the said Statute gives special Process in this case against the Petit Iury Grand Iury and the party viz. Summons Re-summons and Distress infinite but in this Case the Plaintiff hath sued otherwise which is against the direction of the Statute And that was taken to be a material Exception by Clench and Gawdy Iustices for the Verdict doth not save the matter of Process in this case by the Statute of 18 Eliz. which doth not extend to proceedings in penal Causes wâ—â—ch see by the words of the Statute by an express Proviso But Quaere If it be a penal Statute because a lesser punishment is enacted by it than that which was before inflicted upon such offenders And as to the matter of Execution Quaere If the Plaintiff be not pars gravata in hoc only that he is subject to the said Iudgment and so liable to Execution CCCLXXVIII Penruddock and Newmans Case Hill. 28 Eliz. In the Kings Bench. IN an Ejectione firmae Execution 2 Len. 49. the Plaintiff declared upon a Lease made by the Lord Morley and upon Not guilty pleaded this special matter was found that William Lord Mountegle seised of the Manor of D. whereof c. became bounden in a Statute in such a sum to A. who died the Executors of A. sued Execution against the said Lord i. upon the Extendi facias a Libertate issued forth upon which the said Manor was delivered to the said Executors but was not returned It was further found That the said Executors being so possessed of the said Manor the said Lord
Recovery against Massey Error And in the said Recovery four Husbands and their VVives were vouched and now the Plaintiff brought this Writ of Error as heir to one of the Husbands and Exception was taken to his Writ because the Plaintiff doth not make himself heir to the Survivor of the four Husbands Egerton The Writ is good enough for there is a difference betwixt a Covenant personal and a Covenant real for if two be bound to warranty and the one dyeth the Survivor and the heir of the other shall be vouched and he said each of the four and their heirs are charged and then the heir of each of them being chargeable the heir of any of them may have a Writ of Error And afterwards the Writ of Error was adjudged good Ante 86. And Error was assigned because the Vouchees appeared the same day that they were vouched by Attorney which they ought not to do by Law but they might appear gratis the first day without Proces in their proper persons and so at the sequatur sub suo periculo See 13 E. 3. Attorn 74. and 8 E. 2. ib. 101. Another Error was assigned Because the Entry of the warrant of Attorney for one of the Vouchees is po lo. suo I.D. against the Tenant where it should be against the Demandant for presently when the Vouchee entreth into the warranty he is Tenant in Law to the Demandant Coke As to the first Error Although he cannot appear by Attorney yet when the Court hath admitted his appearance by Attorney the same is well enough and is not Error As to the other Error I confess it to be Error but we hope that the Court will have great consideration of this case as to that Error for there are one hundred Recoveries erronious in this point if it may be called an Error And then we hope to avoid such a general mischief that the Court will consider and dispense with the rigor of the Law As their Predecessors did 39 H. 6. 30. In the Writ of Mesne But I conceive That the Writ of Error is not well brought for the Voucher in the said Recovery is of four Husbands and their Wives and when Voucher shall be intended to be in the right of their Wives which see 20 H. 7. 1. b. 46 E. 3. 28. 29 E. 3. 49. And so by common intendment the Voucher shall be construed in respect of the Wife So also the Plaintiff here ought to entitle himself to this Writ of Error as heir to the Wife And for this cause The Plaintiff relinquished his VVrit of Error And afterwards he brought a new VVrit and entituled himself as heir to the wife CCCXCIX The Queen and the Dean of Christchurch Case Mich. 26 27 Eliz. In the Kings Bench. Praemunire 3 Len. 139. THe Queens Attorney General brought and prosecuted a Praemunire for the Queen and Parret against Doctor Matthew Dean of Christ-church in Oxford and others because they did procure the said Parret to be sued in the City of Oxford before the Commissary there in an Action of Trespass by Libel according to the Ecclesiastical Law in which suit Parret pleaded Son Franktenement and so to the Iurisdiction of the Court and yet they did proceed and Parret was condemned and imprisoned And after that suit depended The Queens Attorney withdrew the suit for the Queen And it was moved If notwithstanding that the party grieved might proceed See 7 E. 4. 2. b. The King shall have Praemuire and the party grieved his Action See Br. Praemunire 13. And by Brook none can have Praemunire but the King Coke There is a President in the Book of Entries 427. In a Praemunire the words are ad respondendum tam Domino Regi quam R.F. and that upon the Statute of 16 R. 2. and ib. 428 429. Ad respondendum tam Domino Regi de contemptu quam dict A. B. de damnis But it was holden by the whole Court That if the Kings Attorney will not further prosecute the party grieved cannot maintain this suit for the principal matter in the Praemunire is The conviction and the putting of the party out of the protection of the King and the damages are but accessary and then the principal being released the damages are gone And also it was holden by the Court That the Presidents in the Book of Entries are not to be regarded and there is not any Iudgment upon any of the pleadings there but are good directions for pleadings and not otherwise CCCC Mich. 26 27. Eliz. In the Kings Bench. Fines levied 1 Cro. 35. THe Case was A. gave Lands in tail to B. upon condition That if the Donee or any of his heirs alien or discontinue c. the Land or any part of it that then the Donor do re-enter The Donee hath issue two Daughters and dieth One of the two Daughters levieth a Fine Sur Conusans de droit come ceo Forfeiture to her Sister Heale Serjeant the Donor may enter for although the Sisters to many intents are but one Heir yet in truth they are several Heirs and each of them shall sue Livery 17 E. 3. If one of the Sisters be discharged by the Lord the Lord shall lose the Wardship of her and yet the Heir is not discharged And if every Sister be heir to diverse respects then the Fine by the one Sister is a cause of Forfeiture Harris contrary For conditions which go in defeating of estates shall be taken shortly Conditions and here both the Sisters are one Heir and therefore the discontinuance by the one is not the Act of the other Clench Iustice The words are Or any of his heirs therefore it is a forfeiture quod fuit concessum per totam Curiam And Iudgment was given accordingly CCCCI Mich. 26 27 Eliz. In the Kings Bench. THe Case was Assumpsit Hutt Rep. 34. Hob. 284. A Woman seised of a Rent-charge for life took Husband the Rent was arrear the wife died the Tenant of the Land charged promised to pay the Rent in consideration that the Rent was behind c and some were of opinion Because that this Rent is due and payable by a Deed that this Action of the Case upon Assumpsit will not lye no more than if the Obligor will promise to the Obligee to pay the mony due by the Obligation 3 Cro. 5. an Action doth not lye upon the Promise but upon the Obligation But it was holden by the whole Court That the Action did well lye for here the Husband had remedy by the Statute of 32 H. 8. And then the consideration is sufficient and so Iudgment was given for the Plaintiff CCCCII. Williams and Blowers Case Hill. 27 Eliz. In the Kings Bench. REignold Williams and John Powell brought a Writ of Error against the Bishop of Hereford and Blower Error upon a Recovery had in a Writ of Disceit by the said Bishop and Blower against the said
and that appears by the Record but if it had been in before the Writ brought then a Scire facias would lye See 9 H. 6. It was adjorned CCCCIII Flemmings Case Mich. 26 27 Eliz. In the Kings Bench. FLemming was Indicted upon the Statute of 1 Eliz. because he had given the Sacrament of Baptism in other form than is prescribed in the said Statute and in the Book of Common Prayer Indictment upon the Statute of 1 Eliz. and the said Indictment was before the Iustices of Assize Wray and Anderson Of such offence done before and now he is Indicted again for which it was awarded that he suffer Imprisonment for a year and shall be adjudged ipso facto deprived of all his Spiritual promotions And upon the Indictment Flemming brought a Writ of Error and assigned Error because in the second Indictment no mention is made of the first Indictment in which case the second Indictment doth not warrant such a Iudgment Wray Iustice If the first Indictment be before us then is a second Iudgment well given contrary if it be before other Iustices Clench The second Indictment ought to recite the first conviction and if one be Indicted for a Rogue in the second degree the first conviction ought to be contained in such Indictment in an Indictment the day and time are not material as to true recovering in facto And it might be that this last Indictment was for the first offence for any thing appeareth Coke who argued to the same intent compared it to the Case of 2 R. 2. 9. and 22 E. 4. 12. 12 H. 7. 25. Indictment certified to be taken coram A.B. Justiciariis Domini Regis ad pacem c. without saying necnon ad diversas felonias c. is void and if a man hath been once convicted he shall not have his Clergy if it appeareth upon Record before the same Iustices that he had his Clergy before CCCCIV The Mayor of Lynns Case Hill. 27 Eliz. In the Kings Bench. THe Mayor of Lynn was Indicted Indictments for that he had received twenty four shillings of one A. for giving of Iudgment in an Action of Debt depending before him against one B. and he was indicted thereof as of Extortion In contemptum dictae Dominae Reginae contra formam Statuti Coke The Indictment is insufficient for there is not any Statute to punish any Iudge for such a matter For the Statute of West 1. Cap. 26. is made against Sheriffs Cap. 27. Clerks of Iustices Cap. 30. The Marshal and his Servants Statute 23 H. 6. against Sheriffs 3 Inst 145. and other Statutes against Ordinaries But no Action lies against a Iudge for that which a Iudge receives is Bribery and not Extortion Et satis poenae est judici quod Deum habeat ultorem and therefore he said the party indicted ought to be discharged Gawdy Iustice If in the Indictment there be words of Extortion or Bribery although such an offence in a Iudge be not materially Extortion if these words contra pacem c. had been in the Indictment it had been good quod Clench concessit And afterwards the party was discharged CCCCV. Crisp and Goldings Case Mich. 28 29 Eliz. In the Kings Bench. Assumpsit 1 Cro. 50. 2 Len. 71. IN an Action upon the Case by Crisp against Golding the Case was That a Feme sole was Tenant for life and made a Lease to the Plaintiff for five years to begin after the death of Tenant for life and afterwards the 18. of October made another Lease to the same Plaintiff for 21 years to begin at Michaelmass next before and declaring upon all the said matter he said Virtute cujus dimissionis i. e. the later Lease the Plaintiff entred and was possessed Crast Fest S. Mich. which was before the Lease made and further declared that in consideration that the Plaintiff had assigned to the Defendant these two Leases the Defendant promised c. and upon non Assumpsit it was found for the Plaintiff and damages taxed 600 l. Coke argued for the Plaintiff against the Solicitor General who had taken divers exceptions to the Declaration i. Where two or many considerations are put in the Declaration although that some be void yet if one be good the Action well lieth and damages shall be taxed accordingly and here the consideration that the Plaintiff should assign totum statum titulum interesse suum quod habet in terra praedict ' 2. Exception that the Lease in possession was made after Michaelmass i. 18 October and the Declaration is Virtute cujus dimissionis the Defendant entred Crastino Mich. and then he was a disseisor and could not assign his interest and right which was suspended in the tortious disseisin and so it appeared to the Iudges and he said there was not here any disseisin although that the Lessee had entred before that the Lease was made for there was an agreement and communication before of such purposed and intended Lease although it was not as yet effected and if there were any assent or agreement that the Lessee should enter it cannot be any disseisin and here it appeareth that the Lease had his commencement before the making of the Lease and before the entry But put case it be a disseisin yet he assigned all the Interest quod ipse tunc habuit according to the words of the consideration and he delivered both the Indentures of the said Demises and quacunque via data be the assignment good or void it is not material as to the Action for the consideration is good enough Egerton Solicitor contrary In every Action upon the Case upon Assumpsit there ought to be a Consideration promise and breach of promise and here in our Case the Consideration is the assignment of a Lease which is to begin after the death of the Lessor who was but Tenant for life which is meerly void and that appeareth upon the Record and as to the second part of the Consideration and the assignment of the second Lease it appeareth that the Plaintiff at the time had but a Right for by his untimely entry before the making of the Lease he was not to be said Lessee but was a wrong-doer c. in 19 Eliz. in the Kings Bench this difference was taken by the Iustices there and delivered openly by the Lord Chief Iustice i. When in an Action upon the Case upon Assumpsit two Considerations or more are laid in the Declaration but they are not collateral but pursuant as A. is indebted to B. in 100 l. and A. promiseth to B. that in consideration that he oweth him 100 l. and in consideration that B. shall give to A. 2 s. that he will pay to him the said 100 l. at such a day if B. bring an Action upon the Case upon this Assumpsit and declares upon these two promises although the consideration of the 2 s. be not performed yet the Action doth well lye
his Parishioner all demands in his Lands his Tithes thereby are not extinct and afterwards a Consultation was granted CCCCXII Lee and Curetons Case Trin. 31 Eliz. Rot. 902. In the Kings Bench. Debt 1 Cro. 153. IN Debt upon an Obligation the Defendant pleaded Non est factum and it was found for the Plaintiff and Iudgment given and afterwards the Defendant brought Error and assigned for Error that the Declaration was per scriptum suum obligat Error without saying hic in Guria prolat to which it was answered by Coke that the same was but matter of form for which a Iudgment ought not to be reversed for that the Clark ought to put in without instruction of the party and so it was holden in a case betwixt Barras and King 1 Cro. 768. 778. 3 Cro. 22. M. 29 30 Eliz. Another Error was assigned because the Iudgment is entred de fine nihil quia perdonat where it should be quod capiatur although the Plea were pleaded after the General pardon and for that cause the Iudgment was reversed for if the pardon be not specially pleaded the Court cannot take notice of it as it was holden in Serjeant Harris Case CCCCXIII Lacy and Fishers Case Trin. 31 Eliz. In the Kings Bench. IN a Replevin the taking is supposed in S. which Land is holden of the Manor of Esthall the Defendant made Conusans as Bailiff of the Lord of the Manor aforesaid and issue was taken upon the Tenure Trial. and it was tryed by a Iury out of the Visne of Esthall only Tanfield The trial is good for the issue ought not to have been tried by both Visnes S. and Esthall for two things are in issue If it be holden or not 2. If it be holden of the Manor of Esthall for which cause the Visne ought to be from both places and the opinion of the Court was That for the manner of it it was not good as if an issue be joyned upon common for cause of vicinage it shall be tried by both Towns See 39 H. 6. 31. by Littleton and Danby and the case in 21 E. 3. 12. was cited in a per quae servitia the Mannor was in one county and the Lands holden in another county the Tenant pleaded that he did not hold of the Conusor and that he was tried by a Iury of the County where the Land was See 2 H. 4. Gawdy denied the Book cited of 21 E. 3. to be Law and the reason wherefore the Visne shall come from both places is because it is most likely that both the Visnes may better know the truth of the matter than the one only Another Exception was taken Exposition of Stat. 21. H. 8. cap. 19. because the Conusans as it seems is made according to the Statute of 21 H. 8. 19. and yet the party doth not pursue the said Statute through the whole Conusans for by the Statute in Avowry or Conusans the party needs not to name any person certain to be Tenant to the Land c. nor to make Avowty or Conusans upon any person certain and now in this Conusans he hath not made Conusance upon any person certain but yet he hath named a person certain to be Tenant c. and in as much as this Conusans is not made either according to the Common-Law or according to the Statute it cannot be good But that Exception was dissallowed by the Court for if the Statute remedieth two things it remedieth one and the Conusance made in form as above was well enough by the opinion of the whole Court. CCCCXIV Diersly and Nevels Case Trin. 31 Eliz. In the Kings Bench. IN an Action of Trespass the Defendant pleaded Not-guilty 2 Roll. 682. and if he might give in evidence That at the time of the Trespass the Freehold was to such an one and he as his servant and by his Commandment entred was the question and it was said by Coke That the same might so be well enough and so it was adjudged in Trivilians Case for if he by whose commandment he entreth hath Right at the same instant that the Defendant entreth the Right is in the other by reason whereof he is not guilty as to the Defendant and Iudgment was given accordingly CCCCXV. Savage and Knights Case Mich. 29 and 30 Eliz. Rot. 546. In the Kings Bench. Error Ante 185. 1 Cro. 106. 2 Cro. 109. 654. Sty 91. Yelv. 164. Sty 115. A Writ of Error was brought upon a Iudgment given in Leicester in Debt Tanfield assigned for Error because in that suit there was not any Plaint for in all inferior Courts the Plaint is as the Original at the Common Law and without that no Process can issue and here upon this Record nothing is entred but only that the Defendant summonitus fuit c. and the first Entrie ought to be A. B. queritur versus C c. Clench Iustice a Plaint ought to be entred before Process issueth forth and this Summons which is entred here is not any Plaint and for that Cause the Iudgment was reversed CCCCXVI Rawlins Case Trin. 31. Eliz. In the Kings Bench. IN Trespass for breaking his Close by Rawlins with a continuando It was moved by Coke that the Plaintiff needed not to shew a Regress to have Damages for the continuance of the first Entry scil for the mean profits and that appears by common experience at this day Gawdy Iustice whatsoever the experience be I well know that our books are contrary and that without an Entry he shall not have damages for the continuance if not in case where the Term or estate of the Plaintiff in the Land be determined and to such opinion of Gawdy the whole Court did incline but they did not resolve the point because a Regress was proved See 20 H. 6. 15. 38 H. 6. 27. CCCCXVII Harris and Bakers Case Trin. 31. Eliz. In the Kings Bench. Accompt Damages 3 Len. 192. Collet and Andrews Case 2 Len. 118. 3 Len 149. IN an accompt damages were given by the Iury and it was moved that damages ought not to have been given by way of damages but the damages of the Plaintiff shall be considered by way of Arrearages but see the Case H. 29 Eliz. in the Common Pleas betwixt Collet and Andrews and see 10 H. 6 18. In Accompt the Plaintiff shall count to his damage but shall not recover damages vide 2. H. 7. 13. 21 H. 6. 26. The Plaintiff shall not recover damages expresly but the Court shall adâ— quoddam incromentum to the Arrearages Coke It hath been adjudged that the Plaintiff shall recover damages ratione implicationis non Retentionis CCCCXVIII Mich. 26. Eliz. In the Kings Bench. THe words of the Statute 32 H. 8. cap. 37. of Rents are that the Executor of a Grantee of a Rent-charge may distrain for the arrearages of the said Rent incurred in the life of the Testator so long as the Land charged doth continue in
the Seisin or possession of the Tenant in Demesn who ought immediately to have paid the said Rent so behind to the Testator in his life or in the Seisin or possession of any other person or persons claiming the said Lands only by and from the said Tenant by Purchase Gift or Discent in like manner as the Testator might or ought to have done in his life time And now it was moved to the Court. If A. grant a Rent-charge to B. the Rent is behind B. dyeth A. infeoffeth C. of the Lands in Fee who diverse years after infeoffeth D. who divers years after infeoffeth E. It was holden by Walmesey Periam and Windham Iustice against Anderson Lord chief Iustice that E. should be chargeable with the said arrearages to the Executors of A. But they all agreed That the Lord by Escheat Tenant in Dower or by the curtesie should not be charged for they do not claim in by the party only but also by the Law. CCCCXIX Wigot and Clarks Case Hill. 32 Eliz. In the Common Pleas. IN a Writ of Right by Wigot against Clark for the Mannor of D. in the County of Glocester the four Knights gladiis cincti did appear Writ of Right and took their corporal Oath that they would choose 12 c. ad faciendum magnam Assisam and by direction of the court they withdrew themselves into the Exchequer chamber and there did return in Parchment the names of the Recognitors and also their own names and at the day of the return of the Pannel by them made the 4 Knights and 12 others were sworn to try the issue and it was ordered by the Court That both the parties scil the Demandant and the Tenant or their Attornies attend the said 4 Knights in the Exchequer chamber and to be present at the making of the Pannel so as each of them might have their challenges for after the return of the Pannel no challenge lieth and thereupon the said 4 Knights went from the Bar and within a short time after sitting the Court they returned the Pannel written in Parchment in this form Nomina Recognitorum c. inter A. petentem B. tenentem and so set down their names six other Knights ten Esquires and four Gentlemen and the Iustices did commend them for their good and sufficient Pannel and thereupon a Venire facias was awarded against the said parties CCCCXX Pory and Allens Case Trin. 30 Eliz. Rot. 611. In the Common Pleas. THe case was That Lessee for 30 years leased for 19 years 1 Cro. 173. Owen 97. Post 322 323. Surrender 1 Cro. 302. and then the first Lessee and one B. by Articles in writing made betwixt them did conclude and agree That the Lessee for 19 years should have a Lease for three years in the said Lands and others and that the same should not be any surrender of his first Term to which Articles the said Lessee for 19 years did after agree and assent unto and it was the opinion of all the Iustices of the Court that the same was not any surrender and they also were of opinion That one Termor could not surrender to another Termor CCCCXXI Glanvil ane Mallarys Case Trin. 31 Eliz. Rot. 321. In the Common Pleas. GLanvil was Plaintiff in Audita Querela Audita Querâ—la 1 Cro. 2â—8 against Mallary upon a Statute Staple for that the conusor was within age at the time of the acknowledging of it it was moved for the Defendant that the Court ought not to hold Plea of this matter because there was no Record of the Statute remaining here and therefore by Law he was not compellable to answer it c. and a President was disallowed 5 H. 8. where such a pleading was allowed and judgment given that the Defendant eat sine die Loves Case Dudley and Skinners Case vide 16 Eliz. Dier 332. But on the other side divers presidents were shewed that divers such Writs had been shewed in the Common Pleas as 30 Eliz. Loves case and the Lord Dudley and Skinners case and thereupon it was adjudged that the Action did well lye in this Court. CCCCXXII Pet and Callys Case Mich. 32 Eliz. In the Common Pleas. Debt IN Debt upon a Bond for performance of covenants the case was I. S. by Indenture covenanted with I.D. that such a woman viz. R.S. at all times at the request and charges of I.D. should make execute and suffer such reasonable assurances of such Lands to the said I.D. or his heirs as the said I. D. or his heirs should reasonably devise or require I.D. devised a Fine to be levied by the said Woman and required her to come before the Iustices of Assise to acknowledge it and the woman came before the said Iustices to that intent and because the said woman at that time was not compos mentis the said Iustices did refuse to take the Conusans of the said Fine and this was averred in the pleading in an Action brought upon the said Bond for performance of Covenants where the breach was assigned in not acknowledging of the said Fine and upon the special matter the party did demur in Law and the opinion of the whole Court was that the condition was not broken for the words are general to make such reasonable assurances which c. but if the words had been special to acknowledge a Fine there if the Iustice doth refuse to take such acknowledgment the Bond is forfeited for the party hath taken upon him that it should be done Wangford and Sextons Case Mich. 22 Eliz. In the Common Pleas. 1 Cro. 174. Kel 87. a. THe Plaintiff had recovered against the Defendant in an Action of Debt and had execution The Defendant after the day of the Teste of the Fierifacias and before the Sheriff had medled with the execution of the Writ bona fide for money sold certain goods and chattels and delivered them to the buyers it was holden by the Court that notwithstanding the said Sale that the Sheriff might do execution of those goods in the hands of the buyers Executions for that they are liable to the execution and execution once granted or made shall have relation to the Test of the Writ CCCCXXIV Wilmer and Oldfields Case Trin. 29 Eliz. Rot. 2715. In the Common Pleas. Award IN Debt upon a Bond the Condition was to perform the Award of I. S Antea 140. c. the Arbitrators make Award That the Defendant before such a day shall pay to the Plaintiff 1000 l. or otherwise procure one A. being a stranger to the Bond to be bound to the Obligee for the payment of 12 l. per annum to the Plaintiff for his life the Defendant pleaded the performance of the Award generally the Plaintiff assigned the breach of the Award in this That the said A. had not paid the said 100 l. without speaking of the cause of the award of the 12 l. per annum upon which the
yet afterwards he seemed to be of other opinion And as to that which hath been objected That the Lease is void to all intents and purposes according to the words of the Statute for by some it cannot be resembled to the case cited before of the Bishop of Coventry and Lichfeild that such a Grant should bind him and not his Successors for if this Grant in our Case shall not be void presently it shall never be void for the Colledge never dieth no more than Dean and Chapter Mayor and Commonalty To that it was answered by Drew That although there be some difference betwixt such Corporations and that the words of the Statute are general void to all intents constructions and purposes yet they shall construed according to the meaning of the makers of the Act whose scope was to provide for the Successors and not for the present Incumbent and to the utter impoverishing of all Successors without any respect to the party himself as it appeareth by the preamble of the said Statute where it is observed That by long and unreasonable Leases the decay of Spiritual Livings is procured for the remedying and preventing of which long Leases this Act was made and that the Successors should not be bound thereby And these Leases are not void simpliciter sed secundum quid i. e. as to the Successors As upon the Statute of 11 H. 7. cap. 20. Discontinuances made by Women c. shall be void and of none effect yet such a Discontinuance made is good against the Woman her self So upon the Statute of 1 Eliz. concerning Bishops See now Coke Lincoln Colledge Case 37 Eliz. in the third Reports 60. A Lease made by Dean and Chapter not warranted by the said Statute shall not be void untill after the death of the Dean who was party to the Lease So upon the Statute of 13 Eliz. of fraudulent Conveyances such fraudulent Conveyance is not void against the Grantor but against those who are provided for by the said Statute and that the Lease in the principal case is not void but voidable all the Iustices agreed to be avoided by the Colledge or any other who claim by it and by Anderson If such a Lease should be void then great mischief would fall to the Colledge for whose benefit this Statute was made for if such Lease be made rendring a small Rent then if before the defect be found or espied the Rent was arrear the Colledge could not have remedy for the said Rent Also by Periam Such a Lessee might have an Action of Trespass against a stranger who entreth upon the Land which proves that the Lease is not void but voidable and afterwards notwithstanding all the Objections Iudgment was given for the Plaintiff and the chief Authority which moved Periam Iustice to be of such opinion was Lemans case cited before 28 H. 8. Dyer 27. where a Lease was made to a Spiritual person against the Statute of 21 H. 8. and a Bond or Obligation for performance of covenants and thereupon an Action was brought and the Plaintiff therein had Iudgment and recovered which could not have been if the Lease were utterly void against the Lessor and Lessee as the very words of the Statute are and although it is not alledged in the Book that that was any cause of the Iudgment yet in his opinion it was the greatest cause of the Iudgment in that case CCCCXXVIII Bighton and Sawles Case Pasch 35 Eliz. In the Common Pleas. IN an Action upon the case it ws agreed by the whole Court 1 Cro. 235. That where Iudgment is given that the Plaintiff shall recover and because it is not known what damages therefore a Writ issueth to enquire of the damages That the same is not a perfect Iudgment before the damages returned and adjudged and therefore they also agreed that after such award and before the damages adjudged that any matter might be shewed in Court in arrest of the Iudgment and by Periam Iustice the difference is where damages are the principal thing to be recovered and where not for if damages be the principal then the full Iudgment is not given until they be returned but in Debt where a certain sum is demanded it is otherwise CCCCXXIX Maidwell and Andrews Case Pasch 33 Eliz. In the Common Pleas. MAidwell brought an Action of Covenant against Andrews Covenant and the Case was this That R. was seised of Lands and leased the same for life rendring Rent and afterwards devised the Reversion to his wife for life and died Andrews the Defendant took to wife the wife of the Devisor the Devisee of the Reversion afterwards Andrews bargained and sold the said Reversion to one Marland and his heirs during his own life and afterwards granted the Rent to the Plaintiff and covenanted that the Plaintiff should enjoy the said Rent during his Term absque aliquo legitimo impedimento of the said Andrews his Heirs or Assigns or any other person claiming from the said Marland Marland died seised and the same descended to B. his heir and the breach of the Covenant was assigned in this i. in the heir of Marland who hath the Rent by reason of the Grant of the Reversion to Marland ut supra the Defendant pleaded the Grant of the Reversion to Marland per scriptum without saying Sigillo suo sigillat hic in Curia prolat absque hoc that the said Reversion and Rent descended to B. and thereupon the Plaintiff did demur in Law and the causes of the Demurrer was assigned by Yelverton Serjeant 1. The Grant of the Reversion is pleaded per sciptum and he doth not say sigillat for a Reversion cannot pass without Deed although it be granted but for years and a bare writing is not a Deed without sealing of it and therefore the pleading ought to be per scriptum suum sigillat or per factum suum for factum suum implies the ensealing and delivery 2. It ought to be pleaded hic in Cur. prolat for the Court is to see such Deed to the end they may know if it be a lawful Deed Traverse 1 Cro. 278. without razure interlining or other defects 3. The Defendant hath traversed the descent where he ought to have traversed the dying seised for of every thing descendable the dying seised is the substance and the descent is but the effect And although the Grant of the Reversion was but for the life of the Grantor yet the estate granted is descendable as 27 E. 3. 31. Tenant by the Courtesie leaseth his estate to one and his heirs the Grantor dieth his Heir entreth and a good Bar against him in the Reversion and see 14 E. 3. Action 56. Annuity granted to one and his Heirs for the term of another mans life the Grantor dieth living Cestuy que vie the Heir of the Grantor brings a writ of Annuity and it was holden maintainable and he said that were the dying seised is confessed and avoided by
it should be lawful for the Defendant to cut down good for Fire-boot and Hedge-boot without making any wast or cutting more than necessary And the Plaintiff assigned the breach in that Covenant which is in truth the Covenant of the Plaintiff that the Defendant had committed wast in felling wood c. And the Condition was to perform all Covenants and Agreements And Exception was taken because that the Condition ought to extend but unto Covenants to be performed on the part of the Lessee but the Exception was not allowed for it is the Agreement of the Lessee although it be the Covenant of the Lessor the Plaintiff CCCCLVIII Foster and Wilson against Mapes Trin. 31 Eliz. In the Kings Bench. Covenant Ow. 100. 1 Cro. 212. FOster and Wilson brought an action of Covenant against Mapes and declared That by certain Indentures of Articles it was agreed betwixt the Plaintiffs and the Defendant whereof one part was sealed with the seal of the Defendant and the other with the seals of the Plaintiffs that whereas the Defendant had leased to the Plaintiffs the Parsonage of B he covenanted That he would keep the Plaintiffs harmless concerning the same against one N. B And declared further That the said N.B. had entred upon them And that at the time of the making of the Indentures he was Parson of B. The Defendant had pleaded Non est factum and it was found by special Verdict That the Defendant sealed one part of the Indentures and that one of the Plaintiffs only sealed the other part Exception was taken to the Declaration because there is not set forth in it any sufficient breach for when the Defendant Covenants to save the Plaintiffs harmless against B. the same is to be intended of a lawful Eviction As in Puttenhams Case 13 Eliz. Dyer 306. But if the Covenant had been That the Lessee should peaceably enjoy the Term sine ejectione interruptione alicujus personae upon an unlawful entry of a wrong doer an action lieth See 16 Eliz. Dyer 328. And here the finding of N.B. to be Parson at the time is to no purpose And there is not layed any express title in N.B. but only by implication for it might be that the Parson had leased to the Defendant rendring Rent with clause of re-entry and the Parson had entred for the Condition broken and the Plaintiffs ought to have shewed and not generally that he had entred and that he was Parson Also it is layed That N. B. was Parson at the time of the Entry but it is not shewed what Entry which may be taken that he was Parson at the time the Plaintiffs entred by virtue of their Lease and not when the said N. B. entred upon the Plaintiffs Also the Plaintiffs have not declared That they had entred by force of the Lease aforesaid and if not then they cannot be ejected c. and then no breach of Covenant Pudsey contrary We have declared that the Parsonage was demised to us and that N. B. being Parson hath entred and the Record was read i. That where the Defendant had demised to the Plaintiffs the Parsonage of B. It was agreed That the Defendant always should keep harmless the Plaintiffs and the Premisses against N.B. for and concerning omnibus pertinentiis c. Tanfield The breach is well laid and the words of the Covenants amount to as much as if he had said that he would keep them from all interruption and the difference is when the Covenant is general i. keep harmless c. the same doth not extend but to a lawful interruption but when it is special against such as one there is extends to any interruption whatsoever Gawdy Iustice conceived That the breach of Covenant is well laid i. that N. B. hath entred upon them and removed them 1 Inst 384. and be it by wrong or by right the same is a breach for he hath not kept harmless the Plaintiffs for the premisses and profits of them against N.B. 2. E. 4. 15. A Bond was endorsed upon condition That the Obligor should defend to the Obligee for such a time such Land whereof he had before enfeoffed him It was holden That if a stranger ousteth the Obligee without any Title the Bond is forfeited by reason of the word Defend And although the Plaintiffs have not laid in their Declaration that they have entred the same is not material for it is not the point of the Action Fenner Iustice conceived That the difference put at the Bar betwixt general Covenant and special is good Law and that in case of such a special Covenant interruption without Title gives an Action but he conceived that because it is not alledged that the Plaintiffs had entred that there was no breach of Covenant See 9 Eliz. Dyer 257. Wray The words of the Covenant do amount to peaceable enjoying during the Term and so to an interruption without Title Fenner 18 E. 4. 27. A. is bound to B. to save B. harmless from an Obligation made by the Plaintiff to one R. if R. affirm a plaint of Debt against the said Plaintiff upon the said Bond the Bond of A. is forfeit but here the Plaintiffs cannot be harmed for they have not entred Gawdy The conclusion of the Declaration is That N.B. entred upon the profits and removed them so as they could not take the profits thereof so it is implied that the Plaintiffs had entred and afterwards Iudgment was given for the Plaintiff CCCLIX Marshes Case Trin. 31 Eliz. In the Kings Bench. MArsh Executor of one Nicholson Error by Executors to reverse an Attainder of the Testator Owen Rep. 147. 1 Cro. 22. brought a Writ of Error to reverse an Outlawry in Felony had against his Testator the Error assigned was plain but it was moved that this Writ of Error would not lye Gawdy The Action will well lye for by this Suit the Plaintiff intends to reverse and so undo the Outlawry for which cause this matter ought not to be objected against him for the Executor may have this Action as well as the Heir Fenner Iustice Where the principal reverseth the Attainder the same shall extend to the Accessory In Assise against Tenant and disseisor each of them may have a Writ of Error and the reversal by the one shall make void the Record as to both and he needs not any Garnishment for by intendment the King is to have all his goods and the King is always presumed present in this Court quod tota Curia concessit and therefore there needs not any Garnishment by Scire facias but Wray said we use in such cases to call the Attorney General of the King to know if he can say any thing wherefore the Outlawry should not be reversed The Error assigned was That the Exigent issued forth into London and the Sheriff returned that he had proclaimed the party de Com. in Com. quousque c. where he ought say de Hustingo in Hustingum and
that was holden by the Court clearly to be Error and afterwards at another day it was moved by Coke That a man attainted of Felony could not make Executors for he is dead in Law and as Bracton saith solus Deus facit Haeredes homo nominat Executores and therefore the Heir only shall have a Writ of Error also an Executor cannot have a Writ of Error but only upon a Iudgment given in a personal Action but this Attainder is a thing of a higher nature as where a Woman poysoneth her Husband the Heir shall not have an Appeal for Murder is changed into Treason and that offence is a thing of a higher nature so this Attainder is of a higher nature than in the personalty Also it may be mischievous to the Heir for the Executor may forthwith bring and pursue his Writ of Error by which the Iudgment shall be affirmed and so the right of the Heir shall be bound also when Error is brought to reverse an Outlawry of Felony a Scire facias ought to be sued against the Lords mediate and immediate which cannot be here at the Suit of the Executors also it was found by Enquest of the Coroner that the Testator fugam fecit so that thereby if he had been acquitted he shall lose his goods and then the Executors have not any reason to bring this Writ of Error but see 11 H. 4. Error 51. That Executors shall have a Writ of Error of an Outlawry pronounced against their Testator and if it be reversed they shall have restitution of the goods of the Testator but it doth not appear there that it was upon an Indictment of Felony Altham As well the Executor as the Heir is a person able for to sue a Writ of Error in such case as 13 E. 4. where a false oath is given against one in Assise and dieth the Heir shall have an Attaint for the Land and the Executor in respect of the damages Popham Attorney General This Outlawry is a real Iudgment therefore the Executor cannot have Error upon it Wray It is good that this case be considered for it may be mischievous for thereby the Executor shall avoid the Attainder against the King and the Lords Fenner That cannot be without a Scire facias Gawdy The Executors shall have this Action and as to that which hath been objected that the party attainted cannot make Executors the same is no reason for the Executors do pretend that their Testator was not lawfully outlawed and so by this Suit they do endeavour to take away that disability and therefore it ought not to be objected against the Executor and if the Case here be That the Testator had not lands but only goods there is no reason but that the Executors should have a Writ of Error otherwise the goods of the Testator should be lost and it was clearly holden by Wray chief Iustice That the Executor might have and pursue this Writ of Error the Outlawry of the Testator notwithstanding and afterwards the Outlawry was reversed accordingly CCCCLX Trussels Case Trin. 31 Eliz. In the Kings Bench. Habeas corpus Owen Rep. 69. ◠Cro. 213 516. Co. 3 Inst 213 215. TRussel was removed out of the Counter of London by Habeas corpus into the Kings Bench. Egerton The Queens Solicitor moved the Court that Trussel was a person attainted of Felony and so had not any lands or goods to satisfie c. and also his life was not his own and upon the Return of the Habeas corpus it appeared that Trussel was detained in Prison for an Execution and for divers Actions and it was the opinion of the Court Executions Post 329 330. that as to the Execution he ought not to be discharged for then the party should lose his debt for ever but as to the other actions it was the opinion of all the Iustices that Trussel ought to be discharged of them for a man so attainted ought not to be put to answer nor taken in Execution and so are all our Books And they said that they had conferred with the Iustices of the Common Pleas and with the Barons of the Exchequer which were of a contrary opinion in this case upon the very matter and not upon the manner of the pleading but yet we will discharge our Consciences as we have done for there is not any Book against us Egerton stetit super semitas antiquas and at last it was awarded That Trussel should be discharged of all Actions brought against him CCCCLXI Sovers Case Trin. 31 Eliz. In the Kings Bench. SOver and others were Indicted upon the Statute of 8 H. 6. Indictments upon the Statute of 8 H. 6. of forcible Entry because they had expulsed one A. out of his Land and disseised the Mayor and Commonalty of London who were in Reversion and the same being removed hither Restitution was prayed thereupon and White for the City who was in Reversion and the Lessor prayed that no Restitution might be for they had let the House to another Restitution Yelv. 81. Dy. 141 142. and that he who had procured this Indictment claimed in by a Custom of London That the Executor of the last Termor should not be put out if he shall give as much for it as any other will whereas in truth there is not any such Custom and for that cause the Restitution was stayed and it was said by the Court that Restitution shall be always made to him in the Reversion and not to the Lessee for years for he who is disseised shall be restored and then the Lessee may re-enter CCCCLXII Beal and Carters Case Trin. 31 Eliz. In the Kings Bench. IN an Action of false Imprisonment False Imprisonment Owen Rep. 98 287. the Defendant justified because the Plaintiff brought a Child of the age of six years and not above into the Parish Church of W. eundem ibidem relinquere voluisset intendisset without keeping or nourishment to the danger and destruction of the Child contra pacem for which the Defendant being Constable of the said Parish arrested the Plaintiff and put him in prison until he did agree and promise to carry the Child from whence it came upon which the Plaintiff did demur in Law. It was moved that the Iustification was good for every Subject might do it à fortiori a Constable and if in this case the Child being so exposed should be famished for want of nourishment it had been murder as it was holden at Winchester before the Lord chief Baron 20 Eliz. Another Exception was taken to the Plea because he saith quendam infantem without naming him and he ought to say Quendam infantem ignotum Antea 56. but that Exception was not allowed Another Exception ibidem relinquere intendisset but he doth not say that he did depart from it and then his meaning is not traversable or issuable or to be tried by Iurors See 22 E. 4. 45. Gawdy
is not of any effect but utterly void So is the grant of the presentment to the Church where the Church is void for it is a thing in action See the Lord Dyer 28 H. 6. 26. 3 Ma. Dyer 129. 11 Eliz. Dyer 283 Walmsley Serjeant put this Case Two Ioint-tenants of a Rent the one may release to the other but if the Rent be behind now the one cannot Release his Interest in the Arrearages to the other And afterwards in the Principal case Iudgment was given that the Release was void CCXXXIII Sammes and Paynes Case Mich. 30 31 Eliz. In the Common Pleas. Intr. Trin. 29 Eliz. Rot. 721. IN an Ejectione firmae the case was That the Mother being seised of certain Lands had issue two Daughters Tenant by the curtesie 1 And. 184. Goldsb 81. 82. 8 Co. 34. and by Indenture covenanted with diverse persons to stand seised to the use of Eliz. her eldest Daughter in tail upon condition that the said Eliz. should pay to her other Daughter within a year after the death of the Mother or within a year after the said other Daughter should come to the age of eighteen years 300 l. And if the said E. should fall in the payment of the sum aforesaid or should dye without issue before such payment then to the use of the said second Daughter in tail The Mother dieth E. taketh Husband hath issue afterwards dieth without issue before the day of payment And if the Husband shall be tenant by the curtesie or not was the Question And by the Court cleerly he shall be For as to the condition of payment of the said Sum the same is not determined for she died without issue before the day of payment scil before the second Daughter came of the age of eighteen years as to that there is no condition broken as to the point of dying without issue The same is not a condition but rather a Limitation of the Estate and the same is no more than what the Law saith and the estate tail in Elizabeth is spent and determined by the dying without issue and doth not cease or is cut off by any Limitation and afterwards Iudgment was given for the Tenant by the curtesie And by Anderson If a Feoffment be made to the use of I. S. and his heirs until I. D. hath done such a thing and then unto the use of I. D. and his heirs the thing is done and I. S. dieth his wife shall be endowed CCXXXIV Bowry and Popes Case Mich. 30 31 Eliz. In the Common Pleas. 1 Roll. 676. Plow Queries vers finem BOwry brought an Action upon the Case against Pope and declared that in the time of E. 6. the Dean and Chapter of Westminster leased two houses in Saint Martins in London to Mason for sixty years The which Mason leased one of the said Houses to one A. and covenanted by the Indenture of Lease with the said A. that it should be lawful for the said A. his Executors and assigns to make a window in the shop of the house so to him assigned and afterwards in the time of Queen Mary a window was made accordingly where no window was there before And afterwards A. assigned the said house to the Plaintiff And now Pope having a house adjoining had erected a new building super solum ipsius Pope ex opposito the said new Window Nusance so as the New Window is thereby stopped The Defendant pleaded Not guilty and it was found for the Plaintiff and it was moved for the Defendant in arrest of Iudgment that here upon the Declaration appeareth no cause of action for the window in the stopping of which the wrong is assigned appears upon the Plaintiffs own shewing to be of late erected scil in the time of Queen Mary The stopping of which by any act upon my own Land was holden lawful and justifiable by the whole Court. But if it were an antient window time out of memory c. there the light or benefit of it ought not to be impaired by any Act whatsoever and such was the opinion of the whole Court. But if the case had been That the house soil upon which Pope had erected the said building had been under the estate of Mason who covenanted as abovesaid Then Pope could not have justified the nusance which was granted by the whole Court. CCXXXV Lee and Maddoxes Case Mich. 30 31 Eliz. In the Common Pleas. Intrat Mich. 29 30 Eliz. Rot. 1737. Covenant WIlliam Lee brought a Writ of Covenant against Richard Maddox Isabel his Wife and declared That one Errington the first husband of the said Isabel was endebted to the Plaintiff in 20 l. and that one Georgy Ashley was also endebted to the said Errington in the like sum of 20 l. And also that the said Errington made and constituted the said Isabel his Executrix and died and afterwards the said Isabel by Indenture dum ipsa sola fuit reciting that whereas her said late husband was endebted to the Plaintiff in the sum aforesaid and whereas the said George Ashley was also endebted unto her said late Husband in the like sum Now for the better satisfaction of the Plaintiff for his said Debt she appointed and constituted the Plaintiff atturnatum suum irrevocabilem ad petendum levandum recuperand recipiend ad usum suum proprium in nomine dict Isabellae de dicto Georgio the said twenty pounds And the said Isabel covenanted quod ipsa ad requis dict quer de tempore in tempus adjuvaret manu teneret quamlibet omnes sectam sectas quam vel quas dictus querens commensaret prosequeretur in nomine dictae Isabellae against the said George to the use of the Plaintiff Non existendo Non-suit voluntarie or making any Discontinuance Release Revocations Anglice Countermand without the assent of the Plaintiff And declared further that the Plaintiff had brought a Suit against the said George for the said Debt and shewed all in certain And that the said Isabel depending the said Suit Countermand had taken to Husband the Defendant without the assent of the Plaintiff And if by this Marriage the said Suit be countermanded was the Question And first it seemed to the Court that the Declaration was insufficient Request because there is not any request surmised in the Declaration for the words of the Covenant are Quod ipsa ad requisitionem c. So as it seemed to the Iustices that the Plaintiff ought to have notified to Isabel that he had commenced such Suit otherwise the Action will not lye And also the Court was of opinion that here is not any Countermand for by the taking of the Husband the Writ is not abated but only abateable and therefore the Plaintiff ought to have shewed 1 Roll. 781. that by the taking of the Husband the Writ by Iudgment was abated otherwise it is not any Countermand and
Plaintiffâ— and Iudgment given accordingly Amercement It was argued on the part of the Plaintiff in the first Action that the same is a thing amendable As 9 E. 4. 14. A Iury was impannelled by the name of I.B. and in the Habeas Corpora he was named W.B. and by such name sworn c. And upon Examination of the Sheriff it was found that he was the same person who was impannelled and it was amended and made according to the Pannel But the opinion of the whole Court was That as this case is it was not amendable and it is not like the case of 9 E. 4. For there the Examination was before the Verdict when the Sheriff was in Court but here it is after Verdict and the Sheriff is out of Court and cannot be examined and for these causes the Iudgment was reversed CCCLXXIV Ognell and the Sheriffs of Londons Case Pasch 26. Eliz. In the Exchequer OGnell brought Debt upon an Escape by Bill in the Exchequer against the Sheriffs of London Escape 1 Cro. 164. the Case was That one Crofts was bound to the now Plaintiff in a Recognisance and afterwards committed for Felony to the Prison of Newgate of which he was attainted and remained in Prison in the custody of the Sheriffs Afterwards Ognell sued a Sc. fac upon the said Recognisance against Crofts the Sheriffs returned a Cepi and the especial matter aforesaid and after Iudgment given against Crofts for Ognell Crofts got his pardon and escaped It was argued That notwithstanding this Attainder Crofts is subject to the Execution obtained upon the Recognizance See the case of Escape betwixt Maunser and Annesley 16 Eliz. in Bendloes case 2 E. 4. 1. It is said by Watman That a man out-lawed for Felony shall answer but shall not be answered See 6 E. 4. 4. One condemned in Redisseisin was taken by a Capias pro fine and committed to Prison and afterwards out-lawed of Felony the King pardons the Felony yet he shall remain in Execution for the party if he will But if the party be once in Execution for the party and then out-lawed of Felony it seems by 6 E. 4. Fitz. Execution 13. that the Execution is gone And all the Barons were clear of opinion in the principal case for the Plaintiff And they also said That if one who hath a Protection from the King be taken in Execution and Escape the Gaoler shall answer for the Escape and that was one Hales Case And afterwards Iudgment was given for the Plaintiff Hales Case and one of the causes of the Iudgment was because that the Sheriffs had returned Câ—pi upon the Process CCCLXXV Bishop and Redmans Case Hill. 26 Eliz. In the Kings Bench. BIshop a Doctor of the Civil Law brought an Action of Covenant against Redman Archdeacon of Canterbury and declared upon an Indenture by which the Defendant did constitute the Plaintiff Officiâ—â—em suum of his Archdeaconcy for three years and gave to him by the said Indenture Authoritatem admittendi inducendi quoscunque Clericos ad quaecunque beneficia Ecclesiastica infra Archidiaconatum praedict ' and also Probate of Wills and further granted to him omnem omnimâ—dam Archidiaconatum Jurisdictionem suam praedict ' absque impetitione deâ—â—egatione restâ—ictione c. after which Doctor Young was created Bishop of Rochester which is in the Iurisdiction of the said Archdeaconry and the Defendant took upon him to enthronize the said Bishop in his said Church and took of him for his Fee twenty Nobles whereupon the Plaintiff brought this Action It was moved for the Defendant that upon the matter the Action doth lye for the Office of enthronizing or enstalling of a Bishop doth not pass by the said Indenture nor is there any word in the Indenture that doth extend unto it for the Bishop is not a Clark and the Plaintiff by the Indenture hath not to do but with Clarks not with Bishops and it appeareth by the Grant of Subsidies by the Clergy in Parliament that a Bishop and a Clark are distinct things See Instrumentum hereof Praelatus Clericus c. Also the Plaintiff hath not to do with a Bishoprick but with Benefices and a Bishoprick is not a Benefice but a higher thing And further the Plaintiff hath power to admit and induct which doth not extend to installing or inthronization for that belongs to a Bishop and the Court was clear of opinion That by this Grant there did not pass any power to instal or inthronize Bishops and the general words i.e. omnem omnimodam jurisdictionem Archidiaconatum praedictam Words which amount to Covenant did not mend the matter for the word Praedictam doth not restrain the words Omnem omnimodam c. but admitting that It was moved If upon this Indenture Covenant lieth for there is not any express Covenant yet the words absque impetitione denegatione restrictione do amount to so much to make the Defendant subject to his Action if the matter in it self would have served for him and so was the opinion of the Court. CCCLXXVI Lady Lodges Case Hill. 26 Eliz. In the Kings Bench. THe Lady Laxton of London by her Will bequeathed to Matthew Luddington and Andrew Luddington Prohibition Poph. 11. Dyer 59. several Legacies in monies to be paid to them respectively at their several ages c. and made the Lady Lodge her Daughter her Executrix and died Andrew died before his full age Matthew took Letters of Administration of the goods of Andrew and sued the Lady Lodge in the Spiritual Court for the Legacy bequeathed to Andrew before which Suit begins the Lady Lodge with Sir Thomas her Husband gave all the goods which she had as Executor of the said Lady Laxton to Sir William Cordel Master of the Rolls and to William Lodge Son of the said Sir Thomas and his Lady depending which Suit the Lady Lodge died after which sentence was given against her being dead and now a Citation was out of the Spiritual Court against William Lodge Executor of the said Lady Lodge to shew cause why the sentence given against the said Lady Lodge should not be put in Execution against him and sentence was given against the said William Lodge who appealed to the Delegates and there the sentence was affirmed And now came William Lodge into the Kings Bench and set forth the grant of the said Lady Lodge as aforesaid and that the same was not examinable in the Spiritual Court and thereupon prayed a Prohibition And Awbrey Doctor of the Civil Law came into Court to inform the Iustices what their Law was in certain points touching the Case in question and as to the sentence given against the Lady Lodge after her death he said That if the Defendant died before issue joyned which is called Litis contestationem the Suit shall cease but if he dieth after Litis contestationem it is otherwise for in such Case the Suit shall proceed for after