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
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
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
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
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
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
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
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
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
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
at last after many motions it was resolved by all the Iustices Averment â—here superâ—luous that the Averment aforesaid was superfluous ex abundanti for it had been sufficient for the Plaintiff to have assigned the breach of the Covenant in the not repairing the Messuage without any Averment de non appunctuando and if the house in the not repairing of which the breach of Covenant is assigned was appointed to be pulled down the same shall come in on the defendants part to whose advantage it trencheth for such appointment doth discharge the Covenant as to that In the same plea it was moved in stay of Iudgment that one Sharp Solicitor of the said Sir John in the said suit had given eight shillings to the Iurors mean betwixt the Charge and their Verdict and that matter was testified by the oaths of two men upon which the Court examined the said Sharp who upon his oath denied the matter and also the Foreman of the Iury to whom the mony was supposed to be given who upon his oath denied the same And it was moved if receipt of mony by any of the Iurors should make the Verdict void and by Wray it shall not for it is but a Misdemeanor which is punishable on the person of him who takes the mony But Gawdy and Ayliff Iustices the Verdict is void See 24 E 3. 24. 14 H. 7. 1. 20 H. 7. 30. And for that cause the Iudgment was reversed XXII Cordall and Gibbons Case Pasch 26. Eliz. Intr. Trin. 25. Eliz. Rot. 492. In the Kings Bench. IN an Ejectione firmae upon not guilty pleaded the Iury found the special matter viz. that one Hierom Heydon was seised of two Messuages whereof the Action is brought and came to Cordall the Plaintiff and prayed him to send him ten pounds Cordall asked him what assureance he would give him for the re-payment of it he answered that he would mortgage to him the said two Messuages whereupon Cordall lent him the mony and afterwards they both went to the said two Houses and being before the doors of them Heydon called Tenants at will of the Houses and said to them Sirs I have borrowed of this Cordall ten pounds upon these Houses and if I pay this mony at Michaelmas next I must have my Houses again and if not then I bargain and sell these Houses to Cordall and my Will is that you become his Tenants after which Heydon put the said Cordall into the Houses and seeing him in the Houses he put in the Keys of the said Cordall by the Windows c. And it was adjudged by the whole Court that this conveyance by word of mouth was good enough to pass the estate ut supra and the words of bargain and sale in this Case are as strong as of gift and grant See 38 E 3. 11. 43 E 3. 11. 27 E 3. 62. 28 E 3. 11. XXIII Richards and Bartlets Case Pasch 26 Eliz. Intr. Mich. 25 26 Eliz. Rot. 72. In the Kings Bench. DOrothy Richards Executrix of A. her former Husband Assumpsit brought an Action upon the Case upon a promise against Humfrey Bartlet and declared that in consideration of two weighs of Corn delivered by the Testator to the Defendant he did promise to pay to the Plaintiff ten pounds to which the Defendant said that after the Assumpsit the Plaintiff in consideration that the said two weighs were drowned by Tempest and in consideration that the Defendant would pay to the Plaintiff for every twenty shillings of the said ten pounds three shillings four pence scil in toto thirty three shillings four pence did discharge the said Defendant of the said promise and averred further that he hath been always ready to pay the said sum newly agreed upon which there was a demurrer And the opinion of the whole Court was clearly with the Plaintiff first because that here his not any consideration set forth in the Bar by reason whereof the Plaintiff should discharge the defendant of this matter for no profit but damage comes to the Plaintiff by this new agreement and the Defendant is not put to any labour or charge by it therefore here is not any agreement to bind the Plaintiff See 19 H. 6. Accord 1. 9 E. 4. 13. 12 H. 7. 15. See also Onlies Case 19 Eliz. Dyer then admitting that the agreement had been sufficient yet because it is not executed it is not any Bar And afterwards Iudgment was given for the Plaintiff XXIV Lendall and Pinfolds Case Pasch 26 Eliz. In the Kings Bench. IN Trespass for breaking of his Close by Lendal against Pinfold Trespass the Case was that two brake the Close and entred and did the Trespass the Owner of the land brought an Action of Trespass against one of them and had Iudgment and execution accordingly and afterwards brought Trespass against the other Bar. 1 Cro. 667. 2 Cro. 73. 1 Cro. 30. 31. and declared upon the same Trespass And by Ayliff Iustice it is a good Bar and he likened it to the case of one Cobham who brought an Action of Trespass of Assault and Battery and recovered and had execution and afterwards brought an Appeal of Mayhem against the same person upon the same matter the said Recovery and execution is a good Bar c. so here as to the breaking of the close but not as to the Entry But by Wray it is a good Bar for the whole and he likened it to the case of Littleton Pl. 376. A Release to one of the Trespassers shall discharge both Gawdy agreed in opinion with Ayliff XXV Kempe and Hollingbrooks Case Pasch 26 Eliz. In the Exchequer IN an Ejectione firmae for Tythes the case was upon the Statute of 18. Eliz. Cap. 6. By which it is enacted that no Masters Tithea and Fellows of any Colledge in Cambridge or Oxford shall make any Lease for life or years of any Farm or of any their Lands Tenements or other Hereditaments to the which any Tythes arable Land Meadow or Pasture doth or shall appertain unless the third part at least of the accient Rent be reserved and payed in Corn for the said Colledges c. otherwise every Lease without such Reservation shall be void c. If now the said Statute shall be construed to extend to Leases of such extraordinary pecuniary Tithes which are not natural or paid in kind It was argued that the said Statute is to be intended of Tithes in kind and also of such things to be demised which render Corn Hay c. But the Tithes in London which is the thing demised in our case doth not render any such thing Tithes in London but only mony according to the decree made for payment of Tithes in London in the time of E. 6. And although the words of the Statute be other Hereditaments to the which any Tithes c. Yet the said Statute doth extend to Tithes in gross but they ought to be
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
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
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
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.
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
before And as to the President cited 7 Eliz. the same is not to the purpose for the second Husband was a stranger to the Fine for it would be absurd to reverse the Fine as against him Egerton Solicitor General Presidents are not so holy quod violari non debeant as to be rules to other Iudges in perpetuum and I conceive that the Fine shall be reversed as to the Wife only for the Fine is but a Conveyance and the Husband may lawfully convey the Land of his Wife for his life and if the Husband alone had levyed the Fine the same had bounden the Wife during his life If a woman Lessee for life taketh to Husband him in the Reversion and they joyn in a Fine the Fine shall stand as to the Inheritance of the Husband but shall be reversed as to the Interest of the Wife Coke it shall be intended here all the Interest and estate in the Land to be in the Wife as 20 H. 7. 1. Where the Husband and Wife are vouched it shall be intended by reason of the Warranty of the Wife only and so the Counter-plea shall be of the seisin of the Wife and her Ancestors Wray when the Husband and Wife joyn in the Fine it shall be presumed the Inheritance of the Wife and if it be otherwise it ought to be specially shewed and as to that which hath been said that if the Husband alone had levyed a Fine it should have bounden the Wife during the life of the Husband the same is true but such Fine is but a discontinuance but the right continueth in the Wife but when the Husband and Wife joyn in the Fine all passeth out of her and if the Fine in such case for the Inheritance shall be reversed in all to whom belongs the Free-hold to whom shall he be attendant Gawdy 12 H. 7. 1. In a Praecipe quod reddat against three they vouch severally the Voucher was not received and yet they might have several Causes of Voucher but the Law presumes they are Ioynt-tenants and have a joynt cause of Voucher if the contrary be not shewed And afterwards Iudgment was given quod finis predict reversetur and Wray said he had conferred with many of the other Iustices who were of the same opinion Gawdy the Fine shall be reversed in all for this is an Error in Law of the Court F. B. 21. D. For by this Fine the Husband giveth nothing divided from the estate of the Wife but all passeth from the Wife and therefore all shall be reversed and if the Fine should be reversed as to the Wife only then the Fine levyed now by the Husband alone is a discontinuance by which the Wife by the common Law shall be put to her Cui in vita and that is not reason Also we cannot by this Reversal make the Conusee to have a particular estate during the life of the Wife And therefore the Fine is to be reversed for the whole and as void for the whole to the Conusee CLVIII Cage and Paxlins Case Trin. 30 Eliz. In the Kings Bench. 1 Cro. 125. 3 Len. 16. DAniel Cage brought an Action of Trespass against Thomas Paxlin for Trespass done in a Close of Wood called the Frith-Close and in the Park and for taking of certain Loads of Wood the Defendant pleaded that the Earl of Oxford was seised of the Mannor of W. of which the place where c. is parcel and leased the same to J. S. for years excepting all Woods great Trees Timber-trees and Vnderwoods c. And covenanted with the Lessee and his Assigns that he might take Hedg-boot and Fire-boot super dicta premissa and shewed further that the said I. S. assigned his Interest unto the Defendant and that he came to the said Close called the Frifth-Close Lease of Lands excepting the wood and cut the Wood there for Fire-boot as it was lawful for him to do c. And note that after the Lease aforesaid the said Earl had assured the Inheritance thereof to Cage the Plaintiff And it was argued by Godfrey that the Lessee cannot take Fire-boot in the said Close for the wood c. is excepted and was never demised and by the exception of the wood the soil thereof is excepted See 46 E. 3. 22. A. leased for life certain Lands reserving the great wood by that the soil also is reserved vi 33 H. 8. Br. Reservation 39 28 H. 8. 13. 3 Len. 16. And by the words of the Covenant the intent of the Lessor appeareth that the Lessee shall have his Fire-boot out of the residue of the Lands demised for praemissa here is equivalent with praedimissa And he cited the Case moved by Mountaine cheif Iustice 4 E. 6. in Plowden in the Case betwixt Dive and Manningham 66. A. leaseth unto B. a Manor for years excepting a Close parcel of it rendring a Rent and the Lessee is bounden to perform all Grants Covenants and Agreements contenta expressa aut recitata in the Indenture if the Lessee disturb the Lessor upon his occupation of the Close excepted he hath forfeited his Obligation c. But our Case is not like to that Post 122. And if I let the Manor of D. for years except Green-meadow and afterwards I covenant that the Lessee shall enjoy the Premisses the same doth not extend to Green-meadow Snagg Serjeant to the contrary and by him praemissa are not restrained to praedimissa but to all the Premisses put in the former part of the Indenture of Demise therefore the Lesse shall have Fire-boot in the one and the other 2 Roll. 455. 2 Cro. 524. Post 122. and he put a difference betwixt all Woods excepted and all woods growing excepted for in the one case the soil passeth in the other not And as to the Case cited before in Plowden 66. that is true for exception is an Agreement And he said that by that exception the soil it self is excepted and these woods which are named by name of woods contrary where a Close containeth part in woods and part in Pasture And by the exception of Timber-trees and Vnder woods all the other woods are excepted but not the soil As if a man grant all his Lands in D. Land Meadow Pasture and woods thereby passeth by exception of this Close of wood the soil also is excepted and he conceived that although all the woods be excepted yet by the Covenant an Interest passeth to the Lessee Select Case 155 Hob. 173. Dy. 19 198 314. 21 H. 7 31. More 23. 1 Roll. 939. so as he may take Fire-boot without being put to his Action of Covenant As 21 H. 7. 30. A. leaseth unto B. for life and Covenants in the Indenture of lease that he shall be dispunished of Wast although the same be penned by way of Covenant yet it is a good matter of Bar being all by one Deed And afterwards Iudgment was given for the Plaintiff as to that
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
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
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
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
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
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
good as a new devise in Reversion upon the precedent Condition and not as a Remainder quod Windham concessit but Periam was very strong of opinion That it is a Limitation Two Ioyntenants of a Term A. and B. A. grants his part to B. nothing passeth by it for as a Grant it cannot be good Owen 102. 1 Cro. 314. 1 Inst 186. for as one Ioyntenant cannot enfeost his Companion no more can he vest any thing in him by grant for he cannot grant to him a thing which he hath before for Ioyntenants are seised and possessed of the whole all which was granted per Curiam and Anderson said That if Lands be granted to A. and B. and the Heirs of A. B. cannot surrender to A. for a Surrender is as it were a grant And as a Release it cannot enure for a Release of a Right in Chattels cannot be without a Deed. CCCLXXXIV Hollingshed and Kings Case Hill. 29 Eliz. In the Common Pleas. Debt HOllingshed brought Debt against King and declared That King was bounden to him in a Recognizance of two hundred pounds before the Mayor and Aldermen of London in interiori Camera de Guildhall London upon which Recognizance the said Hollingshed heretofore brought a Scire facias before the said Mayor c. in exteriori Camera and there had Iudgment to recover upon which Recovery he hath brought this Action and upon this Declaration the Defendant did demur in Law because that in setting forth of the Recognizance he hath not alledged That the Mayor of London hath Authority by Prescription or Grant to take Recognizances and if he hath not then is the Recognizance taken Coram non Judice and so void And as to the Statute of West 2. cap. 45. It cannot be taken to extend to Recognizances taken in London which see by the words De his quae recordat sunt coram Cancellario Domini Regis ejus Justiciariis qui Recordum habent in Rotulis eorum Irrotulatur c. And also at the time of the making of that Statute 1 Cro. 186 187. London had not any Sheriffs but Bayliffs and the said Statute ordains that Process shall go to Sheriffs c. But the whole Court was clear of a contrary opinion for they said We will know that those of London have a Court of Record and every Court of Record hath an Authority incident to it to take Recognizances for all things which concern the Iurisdiction of the said Court and which arise by reason of matters there depending Another matter was objected for that the Recognizance was taken in interiori Camera but the Court was holden in exteriori Camera and therefore not pursuant But as to that it was said by the Lord Anderson That admit that the Recognizance was not well taken yet because that in the Scire facias upon it the Defendant did not take advantage then thereof he shall be bounden by his said admittance of it as if one sue forth a Scire facias as upon a Recognizance whereas in truth there is not any Recognizance and the party pleads admitting such Record and thereupon Iudgment is given against him it is nor void but voidable Fleetwood Recorder of London alledged many Cases to prove that the Courts of the King are bounden to take notice Priviledges of London That they of London have a Court of Record for if a Quo warranto issueth to Iustices in Eyre it behoves not them of London to claim their Liberties for all Courts of the King are to take notice of them And at last after many motions the opinion of the Court was for the Plaintiff And it was said by Anderson and in manner agreed by the whole Court That if depending this Demurrer here the Iudgment in London upon the Scire facias be reversed yet the Court here must proceed and not take notice of the said Reversal CCCLXXXV Bedingfeild and Bedingfeilds Case Hill. 29 Eliz. In the Common Pleas. Dower DOwer was brought by Anne Bedingfeild against Thomas Bedingfeild The Tenant out of the Chancery purchased a Writ De circumspecte agatis setting forth this matter That it was found by Office in the County of Norfolk that the Husband oâ— the Demandant was seised of the Manor of N. in the said County and held the same of the Queen by Knights Service in chief and thereof dyed seised the Tenant being his Son and Heir of full age by reason whereof the Queen seised as well the said Manor as other Manors and because the Queen was to restore the Tenements tam integre Primer seisin c. as they came to her hands it was commanded the Iudges to surcease Domina regina inconsulta It was resolved per Curiam That although the Queen be entituled to have Primer seisin of all the Lands whereof the Husband of the Demandant dyed seised yet this Writ did not extend unto any Manors not found in the Office for by the Law the Queen cannot seise more Lands than those which are contained in the Office And therefore as to the Land not found by the Office the Court gave day to the Tenant to plead in chief And it was argued by Serjeant Gawdy for the Tenant That the Demandant ought to sue in the Chancery because that the Queen is entituled to have her Primer Seisin and cited the case of 11 R. 2. and 11 H. 4. 193. And after many motions It was clearly agreed by the Court That the Tenant ought to answer over for the Statute De Bigamis Cap. 3. provides that in such case The Iustices shall proceed notwithstanding such seisin of the King and where the King grants the custody of the Tenant himself 1 H. 7. 18 19. 4 H. 7. 1. A Multo fortiori against the Heir himself where he is of full age notwithstanding the possession of the King for his Primer seisin By the Statute of Bigamis after the Heir was of full age the Wife could not be endowed in the Chancery But now by the Prerogative of the King such wives may be endowed there Si viduae illae voluerint and after many motions The Court awarded That the Tenant should plead in chief at his peril for the Demandant might sue at the common Law if she pleased CCCLXXXVI Hill. 28 Eliz. In the Common Pleas. THe Case was Exchange The Husband was seised of Lands in the right of his Wif the Husband and his Wife both joyned in exchange of the Lands with a stranger for other Lands which exchange was executed the Husband and the Wife seised of the Lands taken in exchange aliened the same by Fine It was holden by Rhodes and Windham Iustices That the Wife after the death of her Husband might enter into her own Lands notwithstanding that Fine And Rhodes resembled it to the case reported by my Lord Dyer 19 Eliz. 358. The Husband after marriage assured to his Wife a Ioynture they both levy a Fine 1 Inst 36.
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
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
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