Baron answered that he should have them of right see Bartues case in Dyer but the Lord Treasurer said that he saw no reason to satisfie himself thereof Doillie against Joiliffe DOillie Plantiff against Joiliffe in an Action upon the case for false imprisonment of the Plantiffs wife the case was that Leonard Lovies was formerly Plantiff in an action in the Common Pleas against Julian Goddard a feme sole and in this action the Plantiff and Defendant were at issue and a venire facias was awarded and before the return thereof the said Julian took to husband Doillie now Plantiff and after upon a special verdict found in the suit judgement was given in the Common Pleas for the said Julian against th◠said Leonard upon which judgement Leonard brought error in the Kings Bench and a scire facias was awarded against Julian by the name of Julian Goddard as a feme sole and she appeared by Attorney as a feme sole and this as the Defendant said in his answer was by the consent of her husband now Plantiff and after judgement was given to reverse the judgement in the Common Pleas and the entrie of that judgement as it was pleaded by the Defendant here was quod praedict Leonard Lovies recuperet c. versus praedict Julianam c. and costs and damages were taxed c. upon which judgement the said Lovies sued a Capias ad satisfaciendum against Julian Goddard and by vertue of that writ the Defendant here the Sheriff or Devon took the said Julian being the Plantiffs wife and imprisoned her until the Plantiff paid 10. l. which was the cost taxed by the Kings Bench for her deliverance upon which imprisonment the husband only hath brought his action against the Defendant being Sheriff Davenport of Grayes Inne argued for the Defendant and first he thought that between the parties to the error and the first action in the Common Pleas there is an estoppel and admittance that the said Julian continued a feme sole for the process in all the proceedings ought to be as it was in the Original and he vouched 18. Assise pla 16. by which book it appears that if a man bring an assise for lands in the Countie of O. and the Tenants plead a Common recovery of the same land in the Common Pleas this doth conclude the partie to say that the lands did lie else where c. also if an original be depending and before the first Capias or process awarded the Defendant intermarrieth and after a capias issueth against her as a feme sole this is well awarded lib. 5. E. 4.16 and also 5. E. 3. fo 9. and 10. also he said that such a thing as is done between the plea and not after the judgement is not material to alter the proceedings in that course it was begun for the same partie against whom judgement is given shall error have against him for whom the judgement is given except she had married after the judgement for then he agreed that the writ of error shall be brought by the husband and wife in case judgement had been given against the wife while she was sole 35. H. 6. fo 31. and 12. Assise pla 41. and it also appears by 18. E. 4. fo 3. if Trespas he brought against a married wife as against a feme sole and she appears as a feme sole and judgement is given and execution accordingly this is good until it be reversed by error and the Sheriff in such case never ought to examine if it be evil or nor no more then if Trespas be brought against A. my servant by the name of B. and A. is taken in execution the Master shall not take benefit of this misnaming admitting that A. should punish the Sheriff for it also he vouched one Shotbolts case 10. and 11. Eliz. Dyer and 15. Eliz. Dyer 318. in the Earl of Kents case which prove that the Sheriff is to be excused for taking me by a false name and if the Iudges admit this false name yet this judicial writ ought not to be examined by the Sheriff and it was adjourned Shoftbey against Waller and Bromley SHoftbey brought an action upon the case against Waller and Bromley and declared that the Defendants conspired that the said Bromley should commence a suit against the Plantiff and that the Plantiff was then worth 5000. l. and that he was then dwelling in Middlesex and that the Defendants knowing thereof maliciously and falsely agreed that the said Bromley should lay his action in London and prosecute it until the Plantiff were outlawed in the said suit to the intent that his goods should be forfeited to the King and after in performance of the agreement aforesaid the Plantiff suggested that he was dwelling in London and laid his action here which was prosecuted until the Plantiff here was outlawed to his damage c. Tanfield chief Baron thought that if the suggestion was by Bromley to make the process into a wrong County it seemed that the Action should lie against him only but in regard it is shewed in the Declaration that the said suggestion was made by him in performance of the precedent agreement that the action lieth against both which the Court granted Godfrey in this action moved in arrest of judgement and that for two causes the action lieth not upon the matter here it appears by the 4. Eliz. Dyer 214. that a man may say his action wherein an outlawry lies in London and then by the Statute of 6. H. 8. cap. 4. proclamation shall issue into the Countie where he dwelleth therefore the suing of him in another Countie is no such act wherefore an action should be brought no more then if before the Statute of W. 2. cap. 12. a man had brought an appeal Maliciosè yet no remedy before the said Statute as appears in the 13. H. 7. in Kellawaies case because it was lawful to bring an appeal and so notwithstanding the said Statute no action did lie against him who brought an appeal if it abated 9. H. 5. cap. 1. also the Statute of the 18. H. 6. provideth remedy for false appeals or judgement in another Countie maliciosè c. by action of the case whereby it appeareth that in such case the Common Law allowed no action also the Statute of the 18. H. 6. provideth another remedy then that Statute and therefore no action lies against us no more then in the case aforesaid at the Common Law Secondly here is no issue joyned if the Defendants be guiltie of the execution of this practice but only if they be guiltie of the agreement and this is found for the Plantiff but clearly such agreement without execution giveth no cause of action and the word Practizatione comprehends only the going about and not the executing of this conspiracy and therefore the issue should have been general if the Defendants be guiltie or not and therefore he prayed judgement might be stayed and he cited Owen
Slade and Morleys case a case was put which proves it to be according Snig Baron agreed that Iudgement ought to be given for the Plantiff and by Tanfield if I take your goods and detain them until I have caused you to pay me 10. l. a general Action of Trespass lieth and not an Action upon the case and it is cited 7. H. 4. or 7. E. 4. to be accordingly but yet he agreed that judgement should be entred and so it was appointed to be done but then Chibborn for the Defendant said that here is a mistrial for if this trust be not material because it is not effectually shewed in the Declaration as you have argued then the Venue shall come only from the parish where the Wares were laid upon the land and not from the parish also where the appointment or trust was made by the Plantiff and therefore the trial also being from both parishes is a mistrial and the Court agreed that this is a mistrial upon that reason for now the appointment or Trust is but an inducement and therefore needs not to be shewed within what parish it was made and therefore a new Venire facias was granted and upon that a new trial and damages more then before and judgement was given accordingly Arden against Darcie NOta a good case of Attornament which was decreed in the time of Baron Manwood betwixt Arden and Darcie and it was this one Arden was seised in fee of divers lands in the County of c. and made a lease for years and after made a feofment with words of Grant of those lands to A. and B. to the use of the feoffor and his wife for their lives the remainder to Arden his son in tail and after the feoffor said to the Lessee that he had conveyed his land which the Lessee held in lease to the uses aforesaid and the Lessee said I like it well and after he paid his rent to the feoffor generally and it was decreed in the Exchequer Chamber that this is no Attornament because the Attornament ought to be to the feoffees and it appeareth not that the Lessee had notice of the names of the feoffees and therefore it cannot be said to amount to an Attornament but notwithstanding that Decree Arden the same to whom the remainder was limited had his Action depending in the Kings Bench to trie the point again as he said to me also this Term a point concerning the said Decree was in question upon another Bill exhibited in the Exchequer Chamber by Sir Edward Darcie against Arden and the case was as followeth Sir Edward Darcie exhibited his Bill here in the nature of a scire facias against Arden to shew cause wherefore the said Edward Darcie should not have execution of a Decree made in the time of Baron Manwood and the Defendant shewed that Darcie in his first suit supposed by his Bill that he had a grant of the land then and now in question from Queen Elizabeth rendring rent as it appears by the letters Patents and in facto there was no rent reserved upon the Patent and that the Defendant gave answer to the said Bill and admitted the Iurisdiction of the Court and after a Decree was made against the Defendant and the Defendant now having shewed this special matter demurred upon this Bill in respect that by his pretence the Court had not jurisdiction to hold plea in the first suit and here it was shewed that the first decree was made upon a matter in Law not properly examinable by English Bill and that in facto the Law was therein mistaken and therefore the Defendant prayed that the decree may be re-examined Tanfield chief Baron it is usual in the office of Pleas that if an action be brought as a debtor of our Lord the King this is good although that de facto no suggestion be made thereof if it be not shewed on the other side and therefore a writ of Error for this falsity shall not cause the judgement to be reversed as it was resolved in a case in which I was of Councel and so here as it seemeth Altham Baron here we are in equity wherein we are not tied to so strickt a course as if it were in the office of pleas Brock of the Inner Temple for the Defendant in a Court of equity it is in the discretion of the Court to deny Execution of a decree if good cause be shewed and in 18. E. 4. fo 1. judgement was given against a married wife by the name of a feme sole and reversed although she did not shew in the first suit that she was married and in 8. E. 4. judgement was given in the Kings Bench in a suit and by writ of error was reversed although the Defendant had admitted the Iurisdiction of the Court and the chief Baron and all the Court inclined that Arden may exhibit a Bill to reverse this Decree made against him and may shew what point in Law the Iudges mistook in the Decree or otherwise we should not do as Law and Iustice requireth for it is not expedient to be examined by way of Bar to this Bill in the nature of a scire facias and after Arden according to the Decree of the Court and their direction did exhibit his Bill in the nature of a writ of error Comprising how the first decree was erroneously made and prayed that the said decree might be reversed and in his Bill he shewed the point in Law which was decreed and that upon divers long conveyances appears to be thus and so it was agreed by Councel on both parties that Arden the father was seised of the Mannor of Cudworth in the County of c. and was also seised of the Mannor of Parkhal in the same County and of Blackclose c. which was parcel of the Mannor of Cudworth but lying neer unto Parkhal and alwayes used and occupied with it and reputed parcel thereof but in truth it was parcel of Cudworth and that Arden the father made a Conveyance of the Mannor of Parkhal and of all the lands thereunto belonging and reputed as parcel thereof or occupied with it as part or parcel thereof and of all other his lands in England except the Mannor of Cudworth to the use of Arden his son that now is Plantiffe here and if Blackclose will pass to the son by this conveyance or if by intendment it shall be excepted by the exception made it was the question here and was decreed in the time of Baron Manwood that it is excepted by the exception but all the Barons now thought it to be a strong case that Blackclose is not excepted by the exception of the Mannor of Cudworth and so the first decree was upon a mistake out of the Law and Tanfield chief Baron said that the point is no other but that I infeoffe you of Blackacre parcel of the Mannor of D. exceyt my Mannor of D. this doth not except the King
by express terms quaer if in this case there was any land occupied with Parkhal which was not parcel of Cudworth nor of Parkhal for if so then it seems that Blackclose will be within the exception in regard that the words and lands occupied therewith viz. Parkhal are well satisfied Harris Serjeant said that the case is to be resembled to the point in Carter and Ringsteeds case concrrning the Mannor of Odiam where a man was seised of of a Mannor within which the Mannor of D. did lie and is parcel thereof and he by his will devised the Mannor of D. excepting the Mannor of Odiam where the Mannor passeth by the devise and is not excepted Snig and Altham Barons agreed that this proves the case in equity but by the chief Baron Tanfield because this is a rare case that we should reverse or undo a decree made by our predecessors in the very point decreed by them it is good to be advised and therefore they directed Arden to finde presidents if he could by search made for them in the said case and therefore the Attorney general who was of Councel for Darcie had demurred upon the Bill which was exhibited by Arden and that he being not present day was given until another term to hear Councel on both parts at which day the Attorney said that he conceived it a strange case and without president that a Court should impeach and reverse the decrees given in the same Court and that if it should be suffered the subjects would be vexed and troubled without any end or quiet and this stands with the gravity of every Court to maintain their own judgements and therefore several Statutes were made to reverse judgements upon erroneous proceedings and judges of other Courts constituted to examine them which proveth that before the Statutes aforesaid and without aid of them the Iudges would not reverse their own Iudgements and so here Harris to the contrary it is not without presidents that in a Court of equity one and the same decree in the same Court hath been reversed by decree of the same Court upon some consideration had of the erroneous misprisions of Law and it is no dishonour to a Court of justice so to do for matter in Law but otherwise it were for matter of fact for then that betrayeth an Ignorance in the Iudges which would be a dishonour to the Court but for Law men are not Angles and for that point there may be errour to prove that the Court of equity may do so he vouched the Book of 27. H. 8. fo 15. Martin Dockwraies case which is our very case ruled in the Chancery and so he said that in this Court 3. Jac. a decree made in the time of Baron Manwood was reversed upon the like reason and Tanfield chief Baron said to Serjeant Harris that if it appear by your president that if the same matter in Law which was decreed was reversed in the same point in Law then this proveth for you but if it were for matter of fact otherwise it is and therefore we will see your president Kent and Kelway KEnt and Kelway entred Hil. 6. Jac. Rot. 722. in the Exchequer in the case between Kent and Kelway which was debated Pasc 8. Jac. the Iudges pronounced in the Exchequer Chamber that judgement ought to be affirmed notwithstanding their opinion before to the contrary as it appeareth and therefore I demanded of Mr. Hoopwel Clark of the Errors what was the reason of their opinions and he told me that the case was debated by them this Term at Serjeants Inne and then they resolved to affirm the Iudgement and the reasons as he remembred were as followeth and he also delivered unto me the case as he had collected it out of the Records and delivered it to the Iudges which was that the Plantiff in the Kings Bench declared that one Benjamin Shephard was indebted to him in 300. l. and that he sued out of the Kings Bench an Alias Capias directed to the Sheriffe of N. to the intent to compel the said Benjamin Shephard upon his appearance to put in Bail according to the custome of that Court for the Recovery of his debt which writ was delivered to John Shaw Sheriffe of the said County to be executed the Sheriffe made his warrant to the Bailiffe of the liberty of the Wapentake of Newark and the Plantiffe himself delivered it to James Lawton Deputy of the Lord Burley the Kings chief Bailiâ—e of that liberty to be executed and the Deputy Bailiffe by vertue of the said warrant arrested the said Benjamin Shephard whereupon the Defendant with others made an Assault and rescued the said Benjamin Shephard out of the custody of the said Deputy Bailiffe whereby he lost all his debt and damages were assessed at 172. l. and cost 10. l. and in this case the Iudges agreed that notwithstanding the Defendant had rescued the said Benjamin Shephard out of the hands of c. when the said Benjamin Shephard was arrested upon an Alias Capias out of the Kings Bench which writ is only in nature of a plea of Trespass yet the party who rescued him shall answer in this action damages for the debt because the Plantiffe by this means had lost his debt And yet it is not shewed that the Rescuer knew that the Plantiffe would declare for his debt but if in this case the Sheriffe or Bailiffe had suffered a Negligent escape they should be charged only with the damages in the same plea as the writ supposeth and no for the debt and so a diversity also they agreed that the Declaration is good enough to say that he was rescued out of the hands of the Deputy Bailiffe and the course in the Kings Bench was alwayes so upon the return of a rescue notwithstanding the Book of the 7. Eliz. Dyer fo 241. also it was resolved that the Declaration was good saying that he sued an Alias Capias without mention of any latitat before sued also it was agreed that the arrest was good made by the Deputy Bailiffe by vertue of a warrant delivered to the Sheriffe but quere if they should not examine if the Bailiffe had a power given to make a Deputy by his Patent for this appears not in the case Bently and others against Leigh in Trespas Hill 45. Eliz. Rot. 1231. Trin. 7. Jac. in the Exchequer TPe Iudges affirmed a Iudgement this Term between Leigh Plantiffe in a writ of Error and one Bentley and others Defendants and the matter assigned for Error was because the Trespass was brought in the year 45. Eliz. for a Trespass made in the 42. Eliz. and the judgement upon the verdict was against the Defendant and the Margent of the Roll it was entred quod Defendens capiatur where it ought to be pardonatur as he pretended for the general pardon which was in 43. Eliz. had pardoned the fine to the King for the Trespass and this is a thing whereof the Iudges
and Hall the Dean and Canons of Windsor 22. E. 4. were incorporated by the name of Dean and Canons of the Kings free Chappel of St. George the Martyr within his Castle of Windsor adjudged the variance of the Kings and Queens free Chappel was material although the lease was made in the time of Philip and Marie And he vouched also 44. E. 3. fo 3. and 38. E. 3. fo 28. and he said that it seemed to him that this presentation by another name had gained an usurpation by the Provost in his natural capacitie also it seemeth that notwithstanding it is not found that Doctor Airie was presented instituted and inducced yet the special verdict is good enough to have judgement of his part but he agreed that if the truth of the Case had been discovered by the pleading then it ought to be precisely shewed that such exact finding is not necessary in a special verdict as in pleading and he vouched Allens Case 33. Eliz. Banco Regis where the Iury found that Tenant for life made a lease for years and found not the lessor living nor dead and yet in this Case he was intended living and he cited also Haydons Case Cook lib. 3. and Hunts Case 5. Ma. Dyer 153. and he voucht the Case of West against Munson in a writ of error in the Kings Bench wherein the first action being an Assise in the Common Pleas it was alledged for error that the Iury did not finde the Plantiff was disseised but only the Defendant disseised him and yet the judgement was affirmed Dodderidge the Kings Serjeant for the Defendant he agreed that the name of a Corporation is essential to be alwayes used in their grants for thereby they are distinguished from other Corporations but he conceived that in this Case here is a sufficient supplying of that part of the name which is omitted and he said that although the special verdict in one place mentions the name of Queens Colledge yet when they nominate the Corporation it cals them the Provost and Scholers of the Hall omitting the words Queens Colledge and then they finde that the Provost and Scholers by the name of c. and he said that in so much the Iury found precisely that the same Corporation made the demise it is not material by what name they made it and therefore he said that if a Iury finde that I. S. had made a feofment by the name of R. S. this is good enough as it was holden in Shotbolts Case 10. 11. Eliz. and so in 13. E. 2. fitz tit Bastardy pl. 25. a Iury found that two daughters were heirs and that the Defendant was born in espousals a non suit and so 20. Eliz Dyer 361. the Iury found that Executors received rents incident to the reversion and so assets in their hands and he cited also Dyer 372. to the second matter he thought that the omitting of the name precisely of Doctor Airie made the special verdict vitious and will inveigle the Iudges so that they cannot give Iudgement for it may be that Doctor Airie was presented by the same name of Corporation as the other presentee was for he said in truth the Case was so also the special verdict is vitious because they found not any time of the Presentation of Doctor Airie for peradventure he was presented by the said Colledge when he was Provost thereof and then his presentation is not good by 22 E. 4. and to this purpose he cited Heckers case in 12. H. 8. and one Fuljambes case in 6. E. 6. in Bendlows and then admitting that Doctor Airie should be intended an usurper if he shall avoid this lease it was also moved that if a Corporation by a false name present and admission institution and induction is made by a true name if this make a Plenartie and Boswel and Greens case Cook lib. 6. was cited See more after fol. The Maior of Lincolns Case Huddleston and Hills case IN an Attachment against the Maior of Lincoln and the Steward of the Court there being Colshil it was said that if a writ of error be directed to an inferiour Court they ought to execute it in all things although that their fee be not paid nor tendered to them and Mr. Man Secondarie to Roper said that the fee which is demanded by them ought to be indorsed upon the return of the writ of error so that the Iudges may judge of it if it be reasonable and divers presidents warrant that accordingly Huddleston and Hill against Bows an Elegit upon a judgement issued at the suit of Hill and after Hill died and his eldest son sued a scire facias upon the said judgement and holden that it lieth not If a man sue in the Ecclesiastical Court for Tithes of Headlands the Defendant may have a Prohibition but by some he ought to suggest that they are but small Headlands and that there is a custome of discharge in consideration that he paid Tithes in kinde of Meadows and in this case Williams said that if a man keep sheep in one Parish until Shearing time and then sell them into another Parish in this Case the Vendee shall pay the Tithe wool to the Parish where they were depastured in the greater part of the time of the growing of the wool See the Tithing Tavle the fifth question Skelton against the Lady Airie IN a Prohibition the Plantiff saith that was seised of the Mannor of Calthrop and also of the Rectory of Haughton Calthrop and that the land whereof the tithe is demanded is Coppihold and holden of the said Mannor and that this was also found by special verdict accordingly and that it had been always discharged of payment of Tithes and it was argued that the Prohibition did lie for it was adjudged Mich 34. 35. Eliz. that a perpetual union of the Parsonage and the land charged is a sufficient discharge of the Tithes and a prescription may be well enough to be discharged of the payment of Tithes as it appears by a Case put in the Arch-Bishop of Canterburies Case Cook lib. 2. George Crook of Counsel on the other side and he conceived that a perpetual unitie was no perpetual discharge and he said there was no judgement given in the Case cited before and he also said that the Iury in this Case found not a discharge of payment of Tithes but only a new usage to pay by unitie of possession and he cited 10. H. 7. or 6. where the manner of Tithing is set down also he cited the Bishop of Winchesters Case Cook lib. 2. and he cited the Prior of D. Case to be resolved in 40. Eliz. that a Coppiholder may prescribe to be discharged of Tithes by pleading that he was alwayes Tenant by Copie to a spiritual Corporation also he cited the Case of Pigot and Hern mentioned in Cook lib. 2. in the Bishop of Wintons Case fol. 45. and he said that it was adjudged in Sheddingtons Case that if a
impedit praesentare to the Church of D. the Defendant saith that there is no such Church 22. E. 4. fo 34. an action was brought against I. S. Maior of D. and he Traversed that there is no such Corporation Tanfield chief Baron said that if in an action of Trespass the Defendant saith that I. S. was seised in fee and infeoffed him without that c. and the Plantiff saith that I. S. was seised in fee and infeoffed me without that that there was any such person as I. S. in being this is no good Traverse Hern Baron seemed that this Traverse is good in the principal Case but he was once of Counsel with the Plantiff and it was moved that the Case should be Compounded An Information against Page IN an Information against Page and another upon the Statute of 3. 4. E. 6. cap. 21. for buying of Butter and selling of the same by retail contrary to the form of the Statute upon not guiltie pleaded the Iury found one of them only guiltie both of buying and selling and the other not guiltie and it was moved that no judgement may be given in this Case in asmuch as the action is conceived upon a joynt buying by two and it appeareth that this is but by one but it was argued that judgement ought to be given for it cannot be intended in Law as to this purpose a joynt buying for the wrong is several and in proof thereof was cited 36. H. 6. fo 27. the 11. H. 4. Dyer fo 194. or 195. accordingly also this action is for a wrong done to the Common-wealth which is a several wrong by either and to this purpose was cited 40. E. 3. fo 35. 36. H. 6. cited before and 5. H. 5. fo 3. where an action de malefactoribus in Pareis was brought against three and one only was found guiltie and judgement was given against him and there is no difference as to this purpose between this Case and an action of debt upon a joynt contract made by two as appeareth by 21. H. 7. and Partridges Case in Plowden where it is said that the bargaining is but matter of conveyance to the action and according unto this was cited 33. H. 8. Brook tit issue and also 28. H. 6. fo 7. and 36. H. 6. fo 29. and a Case was adjudgeed in Mich. 35. 36 Eliz. in the Kings Bench which proves the same also where an information was brought supposing the Defendant to have bought Cattle of two contrary to the form of the Statute and it was found that he bought them but of one and yet judgement was given Hitchcock to the contrary and he argued that no judgement ought to be given for he said that if an information be brought against two upon the Statute of usury and one only is found guiltie yet no judgement may be given in this Case to which the Court agreed and he cited Dyer 160.5 Ma. where two sued in the Court of Admiraltie one for an offence triable within the bodie of the Countie contrary to the Statutes of 13. 15. of R. 2. and an action was brought against one of them only and good and he vouched also 22. Eliz. Dyer fo 370.2 R. 3. fo 18. where three brought an account against one he pleads he was never their receiver and the Iury found c. and he cited a case to this purpose an information was brought against two for buying of Cattle of one B. and for selling of them contrary to the form of the Statute and in this Case the Iury found the Defendant not guiltie for the buying them of B. but that he bought them of one P. and upon an attaint of the Iury the opinion of the Court was in this case that though the verdict was affirmed yet no judgement ought to be given thereupon and this was the true Case of Lidwood and Pearpoint cited before on the other side as George Crook said York and Allein A Man recovered damages in an action upon the Case against B. who at the time of the judgement was joyntly seised in fee with C. and that after B. and C. aliened the partie who recovered is outlawed the King eight years after this outlawry extends the moitie of this land for these damages recovered against B. and it was moved if he shall have them in extent for them or not also if he shall have it without a scire facias and the Barons were clear in opinion that he shall have it in extent for it was liable to the extent of the partie outlawed before the Alienation and then when it comes to the King by the outlawry although it be after the Alienation it continueth extendible for the King although the Alienation was before the outlawry It was admitted by all the Barons that if a Coppiholder surrender to the use of a younger son and dies that this younger son cannot bring an action until admittance but if the Copihold had descended to the heir he may have an action before admittance see Cook Coppihold Cases lib. 4. fol. 22. and also it was said that all Coppiholders of the Kings Mannors may now have admittance into their Coppihold estates well enough and the order for the stay of their admittances which was made heretofore is now dissolved and quashed Dennis against Drake DEbt was brought by Dennis against Drake Sheriff for an escape a man had judgement in the Kings Bench and a writ of error was brought within the year and after the year passed the judgement was affirmed in the Exchequer Chamber and within a year after the affirmation a Capias issued to the said Drake the Sheriff who took the partie and suffered him to escape and this being the Case upon the declaration in this action the Defendant demurred and all the Barons said that there is no question but a Capias may well issue within the year after judgement affirmed without a scire facias though it be more then a year after the first judgement and it seemed to them that there was no difference though that the writ of error was not brought untill after the year of the first judgement given although in such case there be an apparant neglect in the partie who had not sued his execution within the year and therefore he was enforced to a scire facias thorough his neglect whereas if error had been brought within the year he had never been driven to his scire facias in this Case yet for asmuch as when the judgement is affirmed this is all one as a new judgement they conceived it made no difference and Tanfield chief Baron said that it had been often so judged in the Kings Bench. It was said here that if a man be instituted to a benefice he ought to pay the first fruits before induction by the Statute but by the Common Law it was otherwise for he is not to have the temporalities until induction and therefore he could not pay the first fruits
of the wife of the devisor is not determined until the issue should have come to the age of 18. years and so none of the other points came now in question and judgement was given as above-said Nota that in Mich. 6. Jac. upon a motion made by Mr. Nicholas Row of the Inner Temple it appeared that an inquisition was returned in this Court by force of a commission whereby it was found that one A. was seised of the Mannor of D. and so being seised of the said A. was attainted of Treason in the Kings Bench and of this should be a double matter of Record to intitle the King so that the owner of the land shall be forced to his Petition it was the question and by the Court in regard that the record of the attainder is not in this Court here is not in judgement of Law a double matter of Record but if the attainder he removed into this Court then that and the inquisition would make a double matter of Record and the Attorney general moved that when an office findes the attainder that the party ought to plead no such record Worselin Mannings case AN Information of intrusion was brought against Worselin Manning and others and upon the opening of the evidence at the Bar it appeared that Worsely Manning was an alien born and that he was made a denizen by the King and the Charter of Denization had this Proviso usual in such Charters of Denization that the Denizen should do legal Homage and that he should be obedient and observe the Lawes of this Realm and after by vertue of a Commission under the great Seal an office found that the said Worselin after the Denization purchased the land in question and it was found also by the same office that the said Worselin never did legal Homage and that he was not obedient to all the Lawes of this Realm and there was an offer of demurrer upon the evidence if the Prviso makes the Patent of Denization conditional and so for the not performance thereof the Charter of Denization shall be void and Harris thought clearly that this proviso for the performance and observation of the Lawes doth not make the Patent conditional but the intent only was that if he do not observe them then he shall forfeit the penalties therein appointed to which the Court inclined and after resolved accordingly At another day it was moved in Mr. Rowes case that the possession shall be awarded to the King and in this case Tanfield gave a Rule that Mr. Row ought to plead to the inquisition but no possession should be taken from him for although that the attainder make a double Record yet if the indictment of Treason be taken before Iustices of the peace more then a year after the Treason committed as in this case it was and the partie is outlawed upon this indictment and the inquisition findes this outlawry generally yet this is no double matter of Record for the outlawry is meerly void upon the said indictment because the indictment it self is void and to prove that when an indictment is void that is void as to all purposes be vouched Vauxes case Cook lib. 4. fo 44. and 11. R. 2. and after in this case the Barons awarded proces to plead but not to dispossess the partie Vaux against Austin and others AN Information by Vaux against Austin and others that they did ingross a 1000. quarters of Corn upon not guiltie the Iury found one of the Defendants guiltie for 700. and not guiltie for the residue and found the others not guiltie for all Prideaux moved that judgement may be given to acquit the Defendants in this case and he vouched the 9th of E. 3. fo 1. and 14. E. 4. fo 2. where an Information was brought for forgery and proclaiming false deeds and he was found not guiltie of the proclaiming and 3. Eliz. Dyer 189. in the Lord Brayes case put by the way and therefore he said that if there be an information upon the Statute of Vsury against two and the Iury found the contract to be but with one of them both shall be acquitted and also he vouched Treports case in lib. 6. where a man declared of a lease made by two where in Law it was only the lease of one and the confirmation of the other and therefore evil 8. R. 2. tit brief and if judgement in this case should be given against one being in a joynt information he could not plead it in Bar of another information for the same thing and then he should be twice punished for one fault Hitchcock to the contrary the Defendants plead that they nor any of them are guiltie and issue was joyned thereupon and by him this case is not to be resembled to the cases which have been put of joynt contracts for here the parties commit several wrongs and he said if in a decies Tantum against divers if one be acquitted the other shall be condemned and so in an action of Trespas 37. H. 6. fo 37. touching maintenance and if in Trespas against two one is found guiltie for one part and the other found guilty for the other part and 40. E. 3. fo 35. and 7. H. 6 32. in trespas the Defendant pleads that John S. infeoffed him and R. S. and the Plantiff saith that he did not infeoffe them and the Iury found that be infeoffed the Defendant only in this case judgement ought to be given if either of them be guiltie and therefore there is a difference between that and Wain-wrights case for the information was for the joynt buying of butter and Cheese but here the information is for ingrossing by way of buying and so he prayed that judgement may be given for the King Tanfield chief Baron if upon the Statute of Champertie a man declares upon a joynt demise by two and it is found that one only made the demise it was adjudged good and by him this proves the case in question and the Barons agreed it to be clear that if a contract be alledged to be made with one of them no judgement for usury ought to be given but in the principal case all but Tanfield agreed that several judgements may be given for it is like unto a Trespass and accordingly judgement was given in the principal case against him who was found guiltie Nota by Tanfield chief Baron and all the Court that where the Statute of the 23. Eliz. appointeth that if any will inform against A. Recusant and the Recusant be thereupon convicted that the informer shall have one moitie and the King shall have another yet if a recusant be convicted according to the form of the Statute of 28. Eliz. by indictment an informer can never have any advantage upon an information exhibited after for the Statute of the 28. Eliz. altereth the course of Law which was upon 23. Eliz. and no informer can have any advantage upon a conviction of Recusancy by indictment after the Statute
ought to take notice as it was said by Damport who was of Councel with the Plantiffe in the Error for this word capiatur is of course entred in the Roll for the Kings fine which is due by him who is convicted of Trespass as it appears by Cook lib. 3. in Sir William Harberts case and in this case the fine was pardoned therefore pardonatur ought to be entred as it was in Vaughans case Cook lib. 5. but the Iudges resolved that of these general pardons they are not bound to take notice without pleading for in regard there are divers exceptions in them the partie ought to shew that he is none of the parties excepted as the Book is in E. 4. but if they will they may take notice thereof without pleading as it seems by Vaughans case and so said the Iudges in the Common Pleas this Term and so here the judgement was affirmed Calvert against Kitchin and Parkinson Trin. 7. Jac. in the Exchequer IN Trespas by Calvert against Kitchin and Parkinson upon a special verdict these points were moved and argued by the Councel at Bar and first â—â—e case in substance was that one Parkinson was a devisee of the next avoidance of the Parsonage of D. the which Church became void by the death of the Incumbent and after one A. and the said Parkinson Simoniacally agreed that the said Kitchin should be presented by the said Parkinson to the said Church aforesaid and that after Kitchin not knowing of this Simoniacall agreement was presented instituted and inducted to the Church aforesaid and all this was after the Statute of 31. Eliz. cap. 6. and after Queen Eliz. intending that this presentation belonging to her by reason of this presentation for Simonie by force of this Statute of the 31. Eliz. presented one D. and before that B. was admitted and instituted the Queen died and now the King presented Calvert with out any recital or mention of the presentment made by the Queen and without any Revocation actually made of the said first presentation and thereupon Calvert is admitted and instituted and for the Tithes as Parson he bâ—ought Trespass Hitchcock intended three questions as he said but moved also other things First if a devisee of the next avoidance be a Patron within the intent of this Statute of the 31. Eliz. cap 6. Secondly it within the said Statute here be Simonie in the Patron and not in the Parson if this ought to prejudice the Parson or not Thirdly if the King ought to present by this laps after the Queen had made presentment without recalling of the former presentation or if the presentation of the Queen ought to be adjudged a Turn to the first matter he said that a next avoidance is a thing devisable well enough within this Statute for the truth is it is not a thing of any value in the accompt of Law and therefore it is no prejudice although that the third part do not descend to the Patron for the Common Law intends it to be of no value and he said that the form of conferring to a benefice was ad ecclesiam c. as appears by 7. E. 3. fo 5. and he vouched Bracton to prove that the Patron had nothing but to provide that the Church should be full c. and to prove that this is a thing devisable he said that it was so adjudged in the Common Pleas Mich. 33. and 34. Eliz. Rot. 2122. but admitting that here was not any Patron by reason of any devise then if he who presented be a disturber and had acquired this Patronage hac vice by Vsurpation then that also is given to the King within the intent of this Statute by reason of this agreement for Simonie and therefore he said that if he who had but a nomination corruptly agree to make a presentation or nomination this nomination shall be forfeited to the King within this Statute as it is said in Plowden in Hare and Bickleys case he who hath the nomination hath the effect of the Advowson and also he observed the words of the Statute which say that if any person do for money c. present any one c. that every such persons presentation shall be void and it shall be lawful for the King to give the same benefice for that turn c. so that if he had title or not yet this turn is forfeited to the King as by the Statute of 1. Jac. cap. 33. it is provided if any goods which ought to pay subsidie be laid on the land the subsidie not paid c. the same goods shall be forfeited it hath been agreed that if a stranger who had nothing to do with these goods cause them to be laid upon the land that they shall be forfeited against the owner as it was admitted in Levison and Kirks case in 7. Jac. and so here in respect that the true Patron suffers a Vsurper to present and his presentee to be admitted and inducted this turn shall be forfeited to the King by reason of the Simonie against the rightful Patron and he conceived that although that the Presentee in this case was not partie to this corrupt agreement yet he shall be prejudiced by it although not so prejudiced thereby but that he may be capable to be presented again to the same benefice but hac vice the presentation of him is void for as Littleton saith the presentee ought to accept the Parsonage subject to such charges as the Patron pleaseth who in the time of Vacation hath power to charge it and so by his Act had made it subject to the forfeiture and therefore the person who cometh under him shall be prejudiced and therefore he vouchâ—â— the case in the 19. H. 8. fo 12. if a stranger agree to disseise an infant to the intent to infeoffe the Infant although that the Infant were not knowing of the Coven yet he shall not be Remitted because he came in under a wrong deer To the third matter he said that the King may revoke his presentation and by the same reason he may present another before his Presentee is instituted and to prove it he said that a Common person may recal his Presentation before the institution c. and he vouched the Book of the 31. E. 1. Tit. quare impedit 185. the Abbot of Leicesters case although that Dyer citing of it 12. Eliz. fo 292. conceives the Book contrary but it seems to be in reason that the Law is cleere that a Lay person may change although that a Spiritual person cannot and the reason is because a Lay person did not know his sufficiency peradventure at the first but a Spiritual person by intendment may inform himself thereof wel enough and therefore he vouched 18. H. 7. and 1. H. 8. Kelloways Reports which proves that diversity plainly as he said then he thought by the same reason if the King present one and dye or vary before institution that here he himself or
certain place from whence the Venue should come c. Walter of the Inner Temple it seemeth that the plea is good First this plea although it is but to the writ yet it is peremptory as other pleas to writs are see l. 5. E. 4. fol. as to the conclusion of the plea it is but matter of form which the Clark ought to amend and therefore upon your general demurrer you shall not take advantage of it and by the Court this is but matter of form and not being alledged for one of the special causes agreed that notwithstanding the demurrer be special yet the Court ought to apply the conclusion alwayes as the matter of pleading will bear it and therefore if a man plead to the Iurisdiction of the Court and demand judgement of the writ yet it is good by Newton 7. H. 6. for if the Bar be good the writ is not maintainable and it was said by Popham in a case in the Kings Bench 34. Eliz. that one c. had two issues in one plea. First if one thing be once repeated in a plea repetition thereof will supplie all the residue for avoiding infiniteness in repetitions Secondly one c. will serve to supplie the defect in matter of form as here and as to the Objection that the plea is not good because no certaintie is shewed where the entrie was it seems to me the plea therein is good because here is no need in our case to mention the certainty in the Declaration for here by our plea we offer two things issuable viz. the entrie or not entrie Secondly if it be parcel of the premises or not and when divers things issuable are specified it is not necessary to shew the place of any for it is time enough to shew it in the rejoynder 3. H. 7.11.3 H. 6.8.41 E. 3.8.10 H. 6.1.14 H. 6.31 And therefore it was agreed in the Kings Bench that if one pleads in Bar divers matters issuable the Replication ought not to take issue upon any of them but leave it to the rejoynder to the intent that the place may be shewed therein and so here Secondly here a place is sufficiently shewed by awarding of a venire facias for it is certain enough to shew it to be parcel of the Mannors as it was resolved in Bailies case Trin. 7. Iac. in the Court of Wards then by the same reason it is good enough to shew it to be parcel of all the three Mannors for the Venue shall come from all as it shall be to trie the issue of all and by the demurrer here it is admitted to be parcel of all and therefore c. Thirdly he said that the omission of the place is but matter of form and such a thing is within the Statute of 27. Eliz. and ought to be specially set down or otherwise the partie who demurreth shall take no advantage thereof and to prove that it is but matter of form he vouched the case of Hall and Goodwin in the Kings Beuch Hill 31. Eliz. and he said that a Replication makes not the plea good which is evil in matter of substance and yet a Replication made to a Bar which wanteth a place maketh the plea good which proveth it to be but form also he vouched the case of 34. H. 6.2 in debt the Defendant pleads the receipt of parcel hanging the writ and 34. Eliz. in the Kings Bench between Noy and Midldeton such a plea was in Bar. Stephens the plea is not good in matter for the place where the entrie was made after the last continuance ought to be shewed for alwayes the most certainty ought to be observed for the Venue to arise as 6. H. 7. if Trespass be brought upon the Statute of R. 2. for entring into the Mannor of D. in D. the Venue shall come from the Ville and so here if the place be not parcel of any Mannors yet if it lieth in any Towns mentioned in the Declaration the Venue shall come from the Ville and not from the Mannor 32. H. 6.15 three several places are mentioned and one pleaded a deed dated at the place aforesaid it is not good also here it seemeth if the party will plead and not demur the want of place ought to be shewed in the rejoynder as it hath been conceived on the other side but if he will not replie but demur upon the Bar the plea in Bar is not good Trin. 40. Eliz. in B. R. Rot. 1023. an Action of Covenant was brought by a Bishop of a Lessee and no place alledged where the assignment was made and a demurrer thereupon and adjudged that the plea was not good and there it was also agreed that it was not matter of form and so here see after Tanfield chief Baron excepted to the form of an entrie for the King which was that Postea the Iustices of Assise Deliberaverunt Tenorem placiti c. for by him the Presidents in the Kings Bench are quod deliberaverunt recordum praedictum which as he thought was the best but after upon the view of a President shewed where an exception was taken in Baron Manwoods case upon a writ of error in the Exchequer Chamber after judgement given here and the entrie then allowed to be good and upon the view also of divers Presidents shewed by Turner Master of the pleas the chief Baron and all the Court agreed and resolved that the entrie of Tenorem placiti or Tenorem recordi is as good or better then recordum praedictum c. and therefore nothing was spoken to that exception see the President of pleading in Stradling and Morgans case Plowden where it is Tenorem placiti Sir Anthony Ashleys case IT was agreed by all the Court in Sir Anthony Ashleys case that if the King be intitled to the profits by an outlawry and after B. assigns a debt to the King and the King had granted the profits which accrued by the outlawry to Ashley yet the lands of Ashley may be extended for this debt for the King had no interest in the land but only the profits for the outlawry and therefore it may be extended for debt per Curiam quaere if so for a common person Hill 8. Jac. in the Exchequer Ewer against Moil Hill 8. Jac. in the Exchequer THe case was this that a Commission issued out of the Chancery to Baron Sotherton and others and this was in 7. Iac. to inquire what lands and Tenements the late Prior of Bister in Com. Oxon. had in Caversfield in the County of Bucks and to inquire if a rent reserved upon a grant made to Banbury of the lands of the Priory be arrere or not and by vertue thereof the Iury of the County of Bucks found that the Church of Bister in the County of Oxon. was founded by the name of the Church of Saint Mary and Saint Egbert and that Thomas Banbury Prior in the year c. made a lease to one Banbury of the moitie of
Rot. 906. in the Common Pleas and this was upon a new and Collateral matter as our case is Trin. 20. H. 8. Rot. 247. or 2447. upon an Arbitrament pleaded and he vouched divers other precedents upon the same point Trin. 3. H. 8. 446. or 466. and 14 H. 8. Rot. and 11. H. 8. Rot. 446. and Mich. 31. H. 6. Rot. 141. and. Hill 33. H. 6. Nota that here it was admitted without any doubt that an Ejectione firmae lyeth of a Mannor although it was said at the Bar that Williams Iustice was of opinion to the contrary the last assises at Norwich and so by all Iudgement was entred for the Plaintiff immediately and a Writ of Error was brought but never prosecuted for the Countesse of Pembrook had day given to remove her goods out of the Mansion House and so she relinquished the possession of all the premisses as I heard Trespasse against Gibson and others VPon evidence to a Iury an Action of Trespass against Gibson and others it appears that the Defendant was Deputy to the Duke of Lenox upon his Patent of Vlnage and that by vertue thereof he pretended to make search of certaine Stuffs called new Drapery which the Plaintiff were carrying to London and at the Town of Ware two or three strangers affirming themselves to be servants of the said Gibson did unpack the said Drapery and laid it in the dirt whereby the Plaintifs were hindred of the sale c. And in this case it was agreed if they as Servants to Gibson without his precedent appointment doe seise the Plaintifs goods and the said Gibson approve them to be seised although his Servants without his consent abuse the goods yet Gibson shall be Trespasser ab initio Also they agreed without any scruple although that the first seisure of these goods be admitted to be lawfull as by the pretence or licence in Law yet the abusing of them makes the originall seisure to be wrongfull and trespass lyeth and therefore in this case although it were not proved that Gibson himself appointed or was privy to the misusing aforesaid yet he shall be charged in dammages and so he was for severall seisures in an Action to 32. pounds viz. 30. l. for one seisure and 2. l. for another seisure and so severall dammages for severall Trespasses in one Action and although that by the abusing of an Authority or licence in facto a man shall not be a Trespassor ab initio but an Action upon the Case lyeth yet for misusing of an Authority in Law Trespass lyeth ab initio for if he who hath power to seise Estrayes will labour the Estray a Trespas lyeth for the seising thereof Bagshews case Hill 4. Jacobi in the Kings Bench. Bromleys Case Hill 8. Jacobi in the Exchequer HUtton Serjeant came to the Bar and shewed that one Bromley had before this time made a Lease for years in County Palatine of Durham of certaine Cole-mines in that County rendring rent 100. l. per annum which rent is arreare for divers years and that Bromley became outlawed here in the Common Pleas for debt at the Suit of Cullamour a Merchant and that the King had granted this debt due upon this Lease for years as forfeited for outlawry unto him And Hutton for the Bishop said that it belongs to him because he had all the goods of men outlawed within his County and if this debt belongs to the King or the Bishop it was the doubt the party being outlawed in the County of Northumberland which is out of the County Palatine of Durham Tanfield chief Baron said that the debt shall follow the person and he said that in 21. Eliz. Vere and Jefferies case it was a question if debt upon a Bond shall be forfeited to him who had such a priviledge where the Bond is and he said that in this case it was resolved that he shall have the Bond and debt who had Bona utlagatorum where the Bond is and so it was resolved as he said in a Case referred out of the Realm of Ireland but here is a bebt which accrueth by reason of a reall contract of goods in the County Palatine and he who is Debtor is the party outlawed but not in the County Palatine of Durham And Hutton Serjeant said that he dad the Rolle of a Case in this Court in the time of E. 3 that the Bishop of Durham was allowed a debt in a more strong case then this is for there a Creditor was outlawed in London and his Bond was also in London and the Creditor was only an Inhabitant within the County Palatine yet the Bishop was allowed this debt Curia put in your Claime and we will allow that which is reasonable and it was adjourned Isabell Fortescues case VPon a motion it was shewed by Coventry that upon a penalty imposed upon Isabell Fortescue for her Recusancy and Inquisition issued and it was found by the Iury that the said Isabell was seised of no Lands but those mentioned in a Schedule to the Inquisition annexed and then expresseth divers particulars in the Schedule without expresse finding that she was seised of them this is no good Inquisition nor finding of any seisin by the whole Court And so by the Court where an Inquisition or Schedule saith that the said Isabell was seised of the Mannor of D. as by information this is not good cleerely for it may be she is seised without information but where it was shewed that upon this insufficient Inquisition divers summes of money were levied and paid into the Kings Coffers that this may be restored The Court answered it doth not appear but that the King may by a new Inquisition have this money justly therefore it shall not be delivered out of the Kings Coffers but if you mone good matter in equity to be discharged in your English Bill you shall have restitution c. Brockenburies case THe Kings Debtor suffered A. to manure his Land and therefore the Sheriff seised the goods of A. for this debt whereupon A. to the intent to have his goods again paid the Fees to the Sheriff and made a Bond to the King to pay the Summe due And now upon a motion and Affidavit that the Debtor himself had sufficient to satisfie the debt due it was ordered by the Court that the Fees taken by the Sheriff shall be restored to A. and that the Bond remaine in the Office here and if this debt can be levied of the lands or goods of the Debtor the Bond shall be delivered to A. but if it fall out that it cannot be levied of the Debtor then the King shall resort to A. upon this Bond and he shall have the assistance of this Court for his reliefe against the said Brokenbury the Debtor Robert Beckets case touching Recusancy RObert Backet seised of divers Lands in Fee in the County of Cornwall upon an Indictment in 28. Eliz. was convicted of Recusancy for 10. moneths next before and died
was in a Formedon in remainder and it was moved now by Serjeant Harris if the partie against whom it was given may sue in the Exchequer Chamber by Bill or petition to the King in the nature of a writ of false judgement for the Reversal of that judgement Tanfield seemed that it is proper so to do for by 13. Rich. 2. if a false judgement be given in a base Court the partie grieved ought first to sue to the Lord of the Mannor by petition to reverse this judgement and here the King being Lord of the Mannor it is very proper to sue here in the Exchequer Chamber by petition for in regard that it concerneth the Kings Mannor the suit ought not to be in the Chancery as in case a Common person were Lord and for that very cause it was dismissed out of the Chancery as Serjeant Harris said and Tanfield said that he was of Councel in Pettishals case in the time of the Lord Bromley where it was debated at large if such a judgement ought to be reversed by petition in the Chancery in case where a Common person was Lord and at last it was decreed that it should be as in that case of Patshal and for the same reason here the King being Lord and therefore day was given till the next Term to shew their errours and Serjeant Harris said that the errors are in effect no others then were in the case 9. Eliz. Dyer fo 262. and in Godmanchesters case and it was adjourned Scot and his wife against Hilliar SCot and his wife Plantiffs against Hilliar for these words spoken of the wife viz. she would have cut her husbands throat and did attempt to do it Hutton Serjeant in arrest of judgement said that these words are not actionable for the will or attempt is not punishable by our Lawe and he vouched Cockains case Cook lib. 4. cited in Eaten and Allens case but by the Court an Action lies for the attempt is a cause for which the husband may be divorced if it were true and it is a very great slander and Baron Snig said that in the same Term a judgement was given in the Kings Bench and was affirmed in the Exchequer Chamber upon a writ of error for these words He lay in the high way to rob me and therefore let judgement be entred for the Plan̄tiffe but it was adjudged in the principal case that for the words she would have cut her husbands throat no Action would lie Gooches Case A Coppyholder surrenders into the hands of the Customary Tenants to the use of Anne his Wife and after before any Court the said Coppyholder surrenders the Land into the hands of other Customary Tenants to the use of the said Anne for her life the remainder to Percie in Fee upon condition that he in remainder his Heirs should pay 20. s. per annum at Michaelmas for ever the first payment to commence immediacely after the death of the said Anne viz. at the next feast of St. Michael and this to be paid in the Church Porch or D. to the Church Wardens of D. in the presence of four discreet Parishioners or otherwise that a stranger should re-enter and at the next Court both these surrenders were present and the Steward admitted the said A. according to the second surrender and she dyed and now upon pretence that the rent of 20. s. was not paid by the Heirs of him in remainder the Heir of Gooch who made the surrender had entred and thereupon an Action was brought and upon the evidence the Jury to the County of Bedford now at the Bar These matters were moved by Serjeant Nichols That a surrender into the hands of Customary Tenants cannot be Countermanded and therefore the second surrender void and the admittance shall work to such uses as the first surrender was made as in Anne Westwicks Case Cook Lib. 4. And to prove that a surrender into the hands of Customary Tenants is not countermandable he said that it is not countermandable by death nor surrender Cooke lib. 4. in his Coppyhold Cases That a presentment in the Court may be after the death of the surrenderer and the admittance thereupon is good and he compared it to the Case of the delivery of a Deed as an Escroll which may be delivered as his Deed after the death of the Maker as it is in Jennings and Braggs case Cook lib. 3. which was not denyed by the Court Serjeant Dodderidge said that when a surrender is made upon condition that he shall pay a summe of money to a stranger these words make an estate conditionall and give power implyedly to the Heirs of the party who did surrender to re-enter for non-payment and the words which give power to a stranger to re-enter are meerely void neverthelesse the precedent words shall stand and make the estate conditionall Tanfield Littleton saies that such a re-entry is void for a re-entry cannot be limited to a Stranger Nichols Serjeant said that if a surrender be made that he shall pay so much money that this makes the estate conditionall and gives a re-entry to the Heirs of him who did surrender But when it goes further and doth not leave the condition to be carried by the Law in such case all the words should be void because it cannot be according to the intent as in the case of a reservation of rent the Law will carry it to the Reversion but if it be particularly reserved then it will go according to the reservation or otherwise will be void and so here Tanfield Admit that here was a conditionall estate by vertue of the Surrender last made and this condition is also to be performed to a stranger which generally ought to be taken strictly yet as it is here he who will take advantage thereof ought to prove a voluntary neglect in the party in the not performance of the Condition and inasmuch as there is no certain time appointed when the payment of this Annuall rent should be made but generally at Michaelmas next after the death of the said Anne thereby in this case the Chuch-wardens ought to notifie the death of the said Anne before the first day of payment by reasonable space or otherwise the condition is not broken and also it is appointed here to be paid in the presence of four discreet Parishioners by the party who should perform the condition yet by intendment he hath no notice who are discreet or who are not especially he being an Infant as in our case he is and therefore although the condition is to be performed to a stranger which generally ought to be performed strictly according to 12. E. 3. Yet this is to be intended only in such cases where the party had certain notice of all circumstances requisite for payment thereof and therefore he directed the Iury that for want of knowledge of such circumstances they should give a Verdict that the condition was not broken And Dodderidge
by seisure of two parts of the land c. then when a Statute gives a new thing which was not at the Common Law and limits a course and means whereby it shall be levied that course ought to be pursued and it cannot be done in any other manner the Statute of 8. H. 6. cap. 12. makes the imbesting of a Record Felony and that this shall be inquired by Iury whereof one halfe shall be Clarks of some of the same Courts and that the Iudges of the one Bench or of the other shall hear and determine it and the case was that part of the offence was done in Middlesex and part in London so that the offence could not have such proceeding as the Statute appointed and therefore it was holden that it should not be punished at all Mich. 41. et 42. Eliz. Betwixt Aggard and Standish the Statute of 8. Ed. 4. cap. 2. inflicts a penaltie upon him that makes a retainer by parol and moreover it is thereby ordained that before the King in his Bench before the Iustices of the Common Pleas Iustices of the Peace Dyer and Terminer every man that will may complain against such person or persons doing against the form of this ordinance shall be admitted to give information for the King and it was holden that the informer could not sue for himself and the Queen upon this Statute for an offence done in any Court not mentioned in that Statute the Statute of 35 Eliz. cap. 1. appoints that for the better and spedier levying and Recovering for and by the Queens Majestie of all and singular the pains duties forfeitures and payments which at any time hereafter shall grow due or be payable by vertue of this Act and of the Act made in the 23 d. year of her Majesties Raign concerning Recusants that all and every the said pains duties c. may be recovered to her use by Action of debt Bill plaint or information or otherwise in any of her Courts of her Benth Common Pleas or Exchequer in such sort in all respects as by the ordinary course of the Common Lawes of this Realm any other debt due by any such person in any other case should or may be recovered wherein no essoin c. Note that this Statute extends not to any penaltie upon the Statute of 28. Eliz. cap. 6. also the Common Law doth not give any means to levie a debt upon a trust and as to the general point it seems that no land can be seised after the death of the Recusant 23. Eliz. cap. 1. enacteth that every person of the age of 16. years which shall not repaire to some Church c. but forbear the same contrary to the Tenor of the Statute made in the first year of her raign for uniformity of common prayer and being thereof lawfully convicted shall forfeit to the Queen for every moneth which he or she shall so forbear 20. l. And that statute doth give no forfeiture at all for Lands And also it giveth no penaltie without conviction so that the death of the party before conviction dischargeth all and so without question it was at that day This last Point seems to be remedied in part by the Statute of 28. Eliz. cap. 6. for thereby if the party be once convicted he shall alwaies pay after without other conviction and this Statute gives also a Seisure but before any seisure Three things ought to concur 1. Recusancy 2. Conviction 3. Default of payment And the last of these was the tâ—ue cause of the seisure viz. That is the contempt of not payment Therefore it was adjudged in Sir William Greenes case that this seisure shall not go in satisfaction of such debt but the King shall hold it as a penalty for the contempt untill the debt be paid so that when a Statute imposeth a penaltie for a contempt as the contempt is personall so is the penalty And therefore the death of the party before that it be excuted or turned in rem judicatam dischargeth all and I shall prove it by the different plea in an Action upon a penall Statute and other common Actions and therefore in debt not guilty is no plea but in debt upon a penall Law it is a good Plea for in truth untill it be adjudged it is no debt but a contempt Michaelmas 41 42. Eliz. betwixt Car and Jones and in debt upon the Statute of 2. Ed. 6. not guilty was adjudged a good plea Trin. 42. Eli between Morley Edwards 2. It may be proved by the different forms of judgment for in common actions the judgment is Quod quaerens recuperet c. But in informations the usuall form is Quod defendens foris faciet 41. Ass which implies that it is not perfect untill the Iudgement and before it is only a contempt and if so then by the death of the party it is discharged Thirdly I shall prove it by Authority that the death of the parties before Iudgement dischargeth aswell the contempt as the penaltie of a penall Law 40. Ed 3. Executor 74. debt lies not against the Executors of a Iaylor who suffers Prisoners to escape 15. Eliz. Dyer 322. in the like Case the opinion of the Court was that an Action did not lye against the Executors of the Warden of the Fleet. but there ought to have been a Iudgement against him in his life time for the Offence is but a Trespass by negligence which dies with the Person 18. Eliz. Dyer An Action brought against the Heire and ruled that it doth not lie for it is a Maxime that no Law or Statute chargeth the Heir for the wrong or trespasse of his Father Also it is to be observed in the Principall Case that the Statute limits the seisure to be by Proces out of the Exchequer so no seisure can be without Proces as it may be upon some other Statute But a judiciall course is hereby prescribed whereupon the Partie may plead with the King for his Land and therefore if that course be not pursued in the life of the party it is too late to pursue it after his death Also the words are that he shall seise all the goods and two parts of the Lands of such Offendors But after his death the goods are not his but his Executors and the Lands are not his but his Heirs and a seisure by way of penalty relateth no higher then to the time of the seisure also the words of the subsequent Proviso explame it further for it it be demanded when the King shall seise two parts it is answered at the same time when he leaveth the third part and when must be leave the third part it is auswered in the life of the Recusant That it may be for the maintenance of his Wife Children and Family and after his death he hath neither Wife Children nor Family for in a Writ of Dower the Demandant shall say that she was Wife and not that she is Wife As to the
Woods case in Cook lib. 4. Tanfield chief Baron it is true that the issue should be better if it were general not guiltie of the Trespass aforesaid but yet it is good enough in this case for the special words comprehend as much as the words not guiltie of the practice and agreement aforesaid c. and the word Practizatione comprehends aswel the subsequent Acts of execution as the precedent combination and therefore Tantamounts a general issue and it was good by the Court and as to the action Altham Baron conceived that it lieth although it be for a lawful cause for the Law abhoreth fraud and conspiracy as if two conspire to vex me for my land by suit an action lieth F. N. B. yet it is lawful for every man to sue me without title and he vouched 16. Assise and here it is laid that the Defendants indeavoured to make the Plantiff forfeit his goods which are worth 5000. l. and this is reasonable that it should lie and 9. E. 2. Fitz. discents 52. is our case directly upon the matter and therefore it seemeth to me that it lies Tanfield chief Baron said that 9. E. 2. crosseth this case in part and yet he thought that the action lies to which Snig agreed and it seemed the cases of appeal put by Godfrey did lie well enough without aid of the Statute of W. 2. if there be such a conspiracy Tanfield chief Baron accordingly if it be legally thought without cause yet if without conspiracy the action lieth not for it as it appears in Owen Woods case Cook lib. 4. and in all cases where strangers have nothing to do with the suit brought for the conspiracy and yet combine with the Plantiff in the suit an action upon the case lieth for this vexation and judgement was entred for the Plantiff by the Court. An inquisition for the King was returned here and it was found that Fleet-wood the Kings debtor for his office of receiver for the Court of Wards did purchase a certain Term and interest of and in the rectory of Yeading for divers years then to come and that being so possessed he became indebted to the King and that this term is now in the hands of the Lady Edmonds and by colour of this inquisition the land is extended for the Kings debt Harris Serjeant moved that this inquisition is insufficient to extend the land but good to sell a term and he vouched Palmers case Cook lib. 4. to which the Court inclined but it was adjourned If a Bishop becomes indebted to the King for a subsidie and dieth his successors shall not be charged upon the lands of the Bishoprick but the executors of the predecessor or his heir and if they have nothing the King shall lose it as chief Baron Tanfield said which the Court granted upon the motion of Bridgman for the Bishop of Saint Davids Trallops case A Scire facias issued against Trallop the father and Trallop the son to shew cause wherefore they did not pay to the King 1000. l. for the mean profits of certain lands holden by them from his Majesty for which land judgement was given for him in this Court and the mean rates was found by inquisition which returned that the said mean profits came to 1000. l. upon which inquisition this scire facias issued whereupon the Sheriff returned Trallop the father dead and Trallop the son now appeared and pleaded that he took profits but as a servant to his father and by his commandment and rendred an accompt to his father for the said profits and also the judgement for the said land was given against his father and him for default of sufficient pleading and not for the truth of the fact and he shewed the Statute of the 33 H. 8. cap. 39. which as he pretended aided him for his equitie whereupon the King demurred Hitchcock for Trallop seemed that the Statute did aid him by equity and he moved two things the one that if here be such a debt that the Statutes intends to aid it the other if the Defendant hath shewed sufficient matter of equitie within the intent of the Act and he thought that it is such a debt as the Statute will aid for although that here be au uncertainty of the time of the judgement given for the King that being reduced to a certainty by the inquisition after it shall be within the intent of the Statute for id certum est quod certum reddi potest and the words of the Statute are if any judgement be given for any debt or duty c. and here although that there was no certainty unto how much these mean rates extended at the time of the judgement given yet it is clear that it was a duty at the time of the judgement and then it is within the Statute also he said that the words in the proviso of that Statute explain that the intent of the makers of the Act was so for the words are for any thing for which the partie is chargable and the mean rates are a thing for which he is chargable see Cook lib. 7. fo 20. and the Lord Andersons case there fo 22. as to the point of equitie there seem to be two causes First he shewed that he was but a servant to his father and had given an accompt to him Secondly the judgement was given against him upon a point of mispleading Tanfield chief Baron said that the matter in equitie ought to be sufficiently proved and here is nothing but the allegation of the partie and the demurrer of Mr. Attorney for the King and if this be in Law an admittance of the allegation and so a sufficient proof within the Statute it is to be advised upon and for that point the case is but this a scire facias issueth out of this Court to have Execution of a recognizance which within this Act ought by pretence and allegation of the Defendant to be discharged for matter in equitie and the Defendant pleads his matter of equitie and the King supposing this not to be equity within this Statute demurreth in Law whether that demurrer be a sufficient proofe of the allegation within the Statute or not and it was adjourned Trin. 7. Jac. in the Exchequer Doillie and Joiliffs case again Trin. 7. Jac. in the Exchequer CRessey for the Plantiff said that the Plea in Bar is not good because the Defendant justified by force of a Capias ad satisfaciendum and pleads no return thereof and moved that it is not justifiable without returning of the writ but the Court seemed the plea to be good notwithstanding that but if it were a mean process then it ought to be pleaded to be returned see Cook lib. 5. Hoes case fol. 19. according to this diversitie Tanfield chief Baron thought that the Plantiff shall recover for first the writ of error here is not a writ but a commission and therefore false lattin shall not abate it as it hath been