shall it be in the case Doderidge Justice the Servant may have the Action also If the Servant be robbed of wares the Master or Servant may have an appeale 8. E. 2. Tit. Robbery two joynt Merchants one is Robbed both shall joyne in the Action and may also joyn in the appeal But it may be objected as Whitlock Iustice did that the Master is not Hospitans I say this is to no purpose A man put his Horse in the Stable and before he goes to bed or lodging the Horse is gone he shall have an action although he did not lodge there For the word transeuntes although he be at the end of his Iourney yet it is within the custom and he shall have action And by Crew if I send cloath to a Taylor and it is stoln from him the Taylor shall have an action of trespasse or the Owner Jones the case of Hue and Cry is a more stronger case then this is for there the Servant ought to swear that he is robbed and yet the Master shall have an action And for the word transeuntes all agreed that although he be at the end of his journey or at an Inne in London yet he is within the remedy of this Law And if a man stay in an Inne a moneth or a quarter of a year shall not he have an action if he lose his Goods Doderidge agreed that if a man be boarded in an Inne and his Goods are stoln he shall not have an action upon this Law And notwithstanding this objection judgment was given for the Plaintiff upon the Verdict Trin. Term 2 Car. In the Kings Bench. Sir William Buttons Case SIr William Button a Iustice of Peace brought an action for these words Sir William Buttons men have stoln Sheep and he spake to me that I should not prosecute them and it seems that the action did not lye because Words Sir William Buttons men have stoln Sheep and be spake to me that I should not prosecute them Sir William did not aver that he is a Iustice of Peace and it doth not appear in what County the said Felony was done 36 Eliz. One brought an action for these words A. is a cosening fellow and the greatest Pickpurse in Northamptonshire and there is not a Purse picked within 40. miles of Northampton but he hath a hand in it And the action did not lye because he did not aver that there were Purses cut Jones Iustice put this case One saith that A. is as strong a Thief as any is in Warwick Gaol he ought to aver that there is a Theef in Warwick Gaol or otherwise they are not actionable Doderidge put this case There is a nest of Theeves at Dale and Sir Iohn Bridges is the maintainer of them these are actionable because it implies maintenance Note that it appeared upon a motion which the Attorney-generall made against one Lane who is a Recusant in Northamptonshire that a Lease for years made by a Recusant of his own Lands after conviction if it be Bona fide will bind the King but if it be upon fraud and covin then it will not and Whitlock said that it is a common course for Recusants to make Leases after their Indictment and before conviction The same Term in the same Court The Case of the Major Bayliffs and Jurates of Maidstone IN a Quo warranto depending against the Mayor Bayliffs and Iurates of Maidstone in Kent Serjeant Finch of Counsell with them of Maidstone put the case briefly in effect thus In the Quo warranto against them it was ordered by the Court that they should have day to plead untill afornight after Trinity Term and the truth was that they had not pleaded accordingly wherupon Iudgment was entred in the Roll and the Writ of Seisin awarded and execution therupon and afterwards by a private order in the Vacation by the chief Iustice and Iustice Jones it was ordered that the Iudgment should be staid and the truth was that it was never entred amongst the Rules of the Court and therfore he prayed that the Iudgment might not be filed but that the last order might be observed and that they might amend their Plea Hendon Serjeant on the other side said that it could not be for by the Iudgment given the King was intitled to have the profits of Franchises which he shal not lose he cited the case which is in F. N. B. 21. Error in B. R. cannot be reversed the same Term before the same Iustices without a Writ of Error but otherwise it is in C. B. and he said that the same course was observed in Eyre there can be no pleading in Eyre after the Eyre determined and upon this he cited the case of 15 E. 4. 7. before the Iustices in Eyre if the Defendant does not come the Franchises shall be seised into the Kings hands nomine destinctionis and if the party who ought the Franchise doth not come during the Eyre in the same County he shall forfeit his Franchise for ever so here after Iudgement entred there can be no plea per que c. Finch we have order from the Court for stay of Iudgement here no perfect Iudgement was given and this is not without president and he cited one Chamberlains Case where the Iudgement was nigh to perfection c. but he did not put the Case Creve ch Justice in this case there was the assent of the Attorney generall who prosecuted the Quo Warranto and so the cases put by Hendon to no purpose Jones upon F. N. B. 21. J. took this difference true it is that the Kings Bench cannot reverse a Iudgement although it be in the same term without a Writ of Error but this is where error lies in Where the Kings Bench may reverse its owne judgmeÌ„t without Writ of Error and where not the same cause in the same Court as upon outlawry but if no error lies in this Court for the same cause but in Parliament then the Kings Bench may reverse the Iudgement without Writ of Error being the same term And the Iudgement here was ever of Record for the Roll untill it be fixed amongst other Rolls is no Record And for the Case of 15. E. 4. 7. it is not like our case in reason for when When a Roll â—s become a Record the Eyre is determined the power of the Iustices in Eyre is also determined but it is not so here for the Iustices have power from Term to Term But Noy argued further for the King that it is a Iudgement of another Term and Execution awarded upon it and said that it is without president that now it should be avoyded and upon the awarding of execution the King under his seal hath averred that judgement is given which cannot be falsified and for Chamberlains Case he said that there was an assent in it Doderidge the Question which now is moved is but this whether a Iudgement entered in a private Roll
resolved by all the Iustices as he said that it shall passe and he said that himself was of this opinion also And to say that by grant of Land at Common Law the use had been raised out of the possessions of the Land which the Grantor then had and by it passe to the Bargainee and that it shall not be raised and passed to another by grant of Land in consideration of marriage which is a more valuable consideration then money is absurd and against all reason And for the solemnity Vses in such cases in respect of marriage were the cause that they alwaies were left as they were at Common Law and not restrained as the case of bargain and sale is which by Common intendment may be made more easily and secretly then that which is done in consideration of marriage which is alwaies a thing publike and notorious but it is not reasonable that every slight or accidentall speech shall make an alteration of any Vse As if a man ask of any one what he will give or leave to any of his Sons or Daughters for their advancement in marriage or otherwise for their advancement this shall be but as a bare speech or communication which shall not alter or change any Vse But where there is upon the Speech a conclusion of a Marriage between the friends of the parties themselves and that in consideration therof they shall have such Lands and for such an Estate there the Vse shall be raised by it and shall passe accordingly to the parties according to the conclusion which Fennor granted But by Popham If it may be taken upon the words spoken that the purpose was to have the Estate passe by way of making of an Estate as by way of Feoffment c. then notwithstanding the consideration expressed the use shall not change nor no Estate by it but at will untill the Livery made therupon And therfore if a man make a Deed of Feoffment with expresse consideration of marriage although the Deed hath words in it of Dedi Concessi with a Letter of Attorney to make Livery therupon there untill Livery made nothing passe but at will because that by the Warrant of Attorney it appeareth the full intent of the parties was that it shall passe by way of Feoffment and not otherwise if it be of Land in possession And if it be of Land in Lease not untill Attornment of Tenants which was granted by all the Iustices But if a man in consideration of money makes a Deed of Gift Grant Bargain and Sale of his Lands to another and his Heirs by Deed indented with a Letter of Attorny to make Livery if Livery be therupon made before Inrolement there it hath been adjudged to passe by the Livery and not by the Inrolement But by Popham where Land is to passe in possession by Estate executed two things are requisite The one the grant of the said Land the other the Livery to be made therupon for by the bare Grant without Livery it doth not passe as by way of making of an Estate And this is the cause that such solemnity hath been used in Liveries to wit if it were of a Messuage to have the people out of it and then to give Seisin to the party by the Ring of the door of the House and of Land by a Turff and a Twig and the like which may be notorious Yet I agree it shall be a good Livery to say to the party Here is the Land enter into it and take it to you and your Heirs for ever or for life or in tail as the case is And albeit Livery by the View may be made in such manner yet by the sealing of the Deed of Grant upon the Land or by grant of it upon the Land without Livery nothing passe but at will But if therupon one party saith to the other after the Grant or upon it Here is the Land enter upon it and take it according to the Grant this is a good Livery But he ought to say this or somthing which amounts to so much or otherwise it shall not passe by the bare Grant of the Land although it be made upon the Land Clench said That when Thomas said to Eustace Stand forth here I do give to thee and thine Heirs these Lands this amounts to a Grant and a Livery also and by the words of the Reservation of the Estate to himself and his wife for their lives in this the Law shall make an use in the said Thomas and his wife for their lives so that by such means it shal enure as if he had reserved the use therof to him and his wife and so it shall enure to them as it may by the Law according to his intent without doing prejudice to the Estate passed to the said Eustace And afterwards Term Mich. 36 37 Eliz. the Case was again disputed amongst the Iustices and then Popham said That the Case of Baâ—gains and Sales of Lands in Cities as London c. as appeareth in Dyer 6. Eliz. are as they were at Common Law To which all the Iustices agreed and therfore shall passe by Bargain by parole without writing And by Bayntons Case in 6 7 Eliz. it is admitted of every side that an Vse was raised out of a Possession at Common Law by Bargain and Sale by parole and otherwise to what purpose was the Statute of Inrolements and by the same case it is also admitted now to passe by parole upon a full agreement by words in consideration of Marriage or the continuance of Name or Blood For it is agreed there that the consideration of nature is the most forceable consideration which can be and agreed also that a bare Covenant by writing without consideration will not change an Vse therfore the force therof is in the consideration of which the Law hath great respect And therfore the Son and Heir apparant ex assensu patris onely may at the door of the Church endow his wife of his Fathers Land which he hath in Fee and this is good by Littleton although the Son hath nothing in it wherby an Estate passe to the wife which is more then an Vse Nature is of so strong consideration in the Law And therupon after advice Iudgment was given for the Plaintiff the Roll of this appeareth in Banco Regis 1 Hill 35. Eliz. Rot. 355. And upon this Iudgment a Writ of Error was brought and the Iudgment aforesaid reversed in the point of Iudgment in the Exchequer by the Statute of 27 Eliz. Kettle versus Mason and Esterby 6. IN a second deliverance between Joh. Kettle Plaintiff and George Mason Vide this case Coke lib. 1. 146 c. and Francis Esterby Avowants the case appeared to be this Thomas May was seised of the Mannor of Sawters and Hawlin in the County of Kent in his Demesne as of Fee and being so therof seised enfeoffed Thomas Scot and John Fremling and their Heirs
Sheriff of another County then where the occasion brought or by Warrant of a Iustice of Peace of another County for matter of the Peace and the like which are not like to the case of Partridge who was beâ—ten in the County of Glocester by Sir Henry Pole for which he brought his Action in London And Sir Hen. Pole would have justified by Assault of the Plaintiff in the County of Glocester with a trâ—verse that he was not guilty in London But it was then ruled in this Court that he could not do it to oust the Plaintiff to sue in London but in such a case he might have alledged that the Assault was done in London because it was also a thing transitory of which they shall take notice there and so help himself if the matter had been true But in the case at the Bar if the speciall matter alledged in the forraign County be false as here the Plaintiff may maintain his Action and traverse the special matter alledged by the Defendant And so a traverse in such a case may be upon a Traverse when falsity is used to oust the Plaintiff of that benefit which the Law gives him Hillary Term 38 Eliz. Wood versus Matthews 1. IN a writ of Error brought by Owen Wood against Griffeth Matthews upon a judgment given in the common Pleas the case was briefly thus The Issue in the Common Pleas was whether one were taken by a Cap. ad satisfaciendum or not and upon the triall therof at the Nisi prius the Jury found for the Plaintiff in this Action to wit that the party was not taken by the said Capias and upon the back of the Pannell entred dicunt per Quer. but on the back of the Postea the Clark of the Assises certified the Pannell thus to wit That the Jury say that no Capias was awarded which was otherwise then was put in Issue or found by the Jury and the Roll of the Record was according to the Postea and upon this Judgment given for the said Matthew then Plaintiff upon which amongst other Errors this variance between the Issue and Verdict was assigned for Error and after deliberation had upon this point and this matter alledged by the Defendant in the Writ of Error and certified out of the Common Pleas the Court awarded as to this point that the Record sent up out of the Common Pleas by the Writ of Error shall be amended according to that which was endorsed on the back of the Pannell for the endorsement upon the Pannell is the Warrant for the certifying of the Postea aâ—d so this Warrant over to him that makes the Entry in the Roll And therfore wheras it was alledged that the Postea was amended in the Common Pleas aftâ—r the Record removed it was holden to be well done there for although the Record were removed by the Writ of Error yet the Nisi prius the Postea and the like remain still there as it is of the Warrant of Attorney and the like And if the Postea had not been amended there but sent up with that which was endorsed upon the Pannel all shal be amended here according to that which was indorsed upon the Pannel and according to this there was a Presidâ—nt shewn Tr. 35. H. 8. between Whitfeild and Wright where the Issue was whether a quantity of Grain were delivered between two Feasts and endorsed upon the Pannel Dicunt pro quaer and yet the Postea certified and the Rolls also made that the delivery was made ad festa and upon this matter alledged in Banco Regis and the Error in this point assigned and certified out of the Common Pleas the Record removed by the Writ of Error was by award of the Court amended and the word Ad razed out and the word Inter written in lieu of it according as it appeareth it ought to have been by the Note upon the back of the Pannel And the like amendment was made lately in the Checquer Chamber upon Error brought there upon a Iudgment given in Banco Regis where the Iudorsment upon the back of the Writ was pro Quer. and the Postea and Roll was that the Plaintiff was guilty and there amended the last Term. Slanings Case 2. NIcholas Slaning of Bickley was seised in his Demesn as of Fee of the Mannor of Bickley and of a Mill in Walkhampton in the County of Devon called a blowing Mill and of another Mill there called a knocking Mill and of an acre of Land there also and of divers other Mannors and Lands in the said County of Devon the said Mills and acres of Land in Walkhampton then being in the possession of one Peterfeild and Atwill of an Estate for divers years then to come and being so seised he with Margaret his Wife levied a Fine of the said Mannor of Bickley and of other Lands omitting the said Lands in Walkhampton to certain Câ—nuzees who rendred the same back again to the said Margaret Slaning for her life with the remainder over to the said Nicholas and his Heirs After which the said Nicholas by Indenture daied 30. Octob. 21 Eliz. gave and enfeoffed all the said Mannors and Premisses to John Fits and others and the Heirs of the said Fits to the Vses Provisoes and Limitations mentioned in the said Indenture which was to the use of himself and the Heirs Males of his body by any other Wife the remainder to Nicholas Slaning of Newton Ferries and the Heirs Males of his body with divers remainders over with this Proviso to wit Provided and it is the intent of these presents and of the parties therunto that the said John Slaning and the Heirs Males of his body or the said Nicholas Slaning of Newton-ferries and the Heirs Males of his body in whomsoever of them the Inheritance in tail of all the Premisses shall happen to be by force of these presents shall pay to Agnes the Daughter of the said Nicholas Slaning of Bickly 200 l. or so much therof as shall be unpaid at the time of the death of her said Father according to the intent of his last Will with a Letter of Attorney to it by which he ordains John Hart and Robert Fort joyntly and severally his Attorney to enter into the said Mannor of Bickley Walkhampton c. and all other the Lands Tenements and Hereditaments in the said Indenture mentioned and possession for him to take and after such possossion taken for him and in his name to deliver full possession and seisin of the Premisses to the said John Fits c. according to the form and effect of the said Indenture wherupon possession and seisin was given of all but that which was in possession of the said Peterfield and Atwill And the said Pererfield and Atwill nor either of them never attorned to the said Grant After which Nicholas Slaning of Bickly made his last Will by which devised to the said Agnes his Daughter 200 l. to be paid in form following
the Assise in manner and form as the Writ supposeth And further that the said West therof disseised the said Mounson namely of the Tenements in the will of one Mounson And did not find either the words of the Will nor the Will it self what it was c. And the Iustices of Assise upon this Verdict upon advice with the other Iustices gave Iudgment that the Plaintiff shall recover c. upon which a Writ of Error was brought in the Kings Bench where it was moved that the Iudgment was erroneous First because the Iury have not found that the Defendant was Tenant of the Free-hold agreeing with the form of the Plea for the Writ of Assise doth not suppose him to be Tenant of the Free-hold and therfore the Verdict in this point not fully found The second Error is that the Seisin of the Plaintiff is not required of according to the charge given to them as well as the Disseisen for the charge was that they should enquire of the Seisen of the Plaintiff c. But to both these the Court answered that the Verdict is well enough notwithstanding these exceptions for every Assise brought supposeth that there is a Disseisor and a Tenant named in it then this Assise being brought against a sole person supposeth him to be a Disseisor and Tenant also and therfore the Verdict saying that he was Tenant as the Writ supposeth is now as strong in this case as if they had found that he was Tenant of the Free-hold for the Tenant of the Free-hold ought to be named in the Writ But if the Assise had been brought against two or more such a Verdict had not been good for it sufficeth if any of them be Tenant of the Freehold and then the Writ doth not suppose one to be Tenant more then another but supposeth one Tenant to be named in the Writ And therfore in such a case the finding ought to be speciall to wit that such a one is Tenant of the Free-hold or that there is a Tenant of the Free-hold named in the Writ But where one only is named in the Writ to be Disseisor and Tenant it is sufficient to find as here for by this it is certainly found that he is Tenant of the Free-hold And for the other point although it be a good direction for the Iudges to the Iury wherby they may the better perceive that there ought to be a Seisin in him or otherwise there cannot be a Disseisen by the other yet in Deed he cannot be a Disseised who was not then seised But the Assise having found the Disseisen the Seisen in Law is found included in the Disseisen But for the point moved that the Verdict was not perfect in as much as they found the Disseisen with a Nisi it seemed to Gawdy that the Iudgment upon this Verdict was erronious as where a Verdict in another Action is imperfect a Venire facias de novo shall be awarded to try the Issue again And if Iudgment be given upon such a Verdict it is error so here the Verdict in this point being incertain there ought to have been a Certificate of Assise to have this better opened But the three other Iustices held as the case is that the Verdict in this point is certain enough for that which cometh before the Nisi as it is placed is meerly nugator as in the case of the Lord Stafford against Sir Rowland Heyward the Iury found Non assumpsit but if such Witnesses say true as they believe they did Assumpsit c. it was but a meer nugation But it seemed to Popham that if the Verdict had been if the words of the Will do not passe the Land then that he disseised and if they passe then that he did not disseise there if the words of the Will be not found the Verdict had been all imperfect but here the Verdict is full and perfect before the Nisi c. and therfore the Iudgment was affirmed Holme versus Gee 8. A Formedon in Descender was brought by Ralph Holme Demandant against Henry Gee and Elizabeth his Wife Tenants and the Case wâ—s thus Ralph Langley and others gave two Messuages and a Garden with the Appurtenances in Manchester to Ralph Holme the great Grandfather of the Demandant and to the Heirs of his body begotten after which the same great Grand-father by Deed indented dated 20. September 14 H. 7. enfeoffed Iohn Gee of one of the said Messuages and of the said Garden rendring yearly to the said great Grand-father and his Heirs 13 s. 4 d. a year at the Feasts of S. Michael and the Annunciation by equal portions after which the said Iohn Gee died seised of the said Messuages and Garden and it descended to Henry Gee his Son and Heir after which the said great Grand-father by his Indenture bearing date 6. Martii 12 H. 8. enfeoffed the said Henry Gee of the other Messuages rendring also to him and his Heirs yearly 13 s. 4 d. at the said Feast aforesaid by equal portions after which Holme the great Grand-father died Stephen Holme being his Son and next Heir who was seised of the Rents aforesaid and afterwards also died seised Robert Holme being his Son and Heir after which the said Henry Gee died seised of the said two Messuages and Garden and they descended to Eliz. his Daughter and Heir who took to Husband one Richard Shalcroft and had Issue the said Elizabeth wife of the said Henry Gee Tenant in the Formedon after which the said Richard Shalcroft and his wife died after which and before the marriage had between the said Henry Gee and Elizabeth now Tenants in the Formedon the said Elizabeth enfeoffed one Richard Greensearch of the said Messuages and Garden after which to wit at the Feast of the Annunciation of our Lady 3 Eliz. the said Henry Gee husband to the said Elizabeth paid 13 s. 4 d. for the said Rent reserved as is aforesaid to the said Robert Holme after which to wit on Munday next after the Assumption of our Lady at Lancaster before the Justices there a Fine was levied with Proclamations according to the Statute between Thomas Aynsworth and Thomas Holden then being seised of the Tenements aforesaid Complainants and the said Henry Gee and Eliz. his wife Deforceants of the Tenements aforesaid wherby the Conusance was made to the said Thomas and Thomas who rendred them to the said Henry Gee and Eliz. his wife and to the Heirs of their bodies the Remainder to the right Heirs of the said Henry the five years past after the Proclamations in the life of the said Robert Holme after which the said Robert died and Ralph his Son and Heir brought the Formedon upon the Gift first mentioned and the Tenants plead the said Fine with Proclamations in Bar and the Demandant replyed shewing the severall discontinuances made by the great Grand-father as aforesaid and the acceptance of the said Rent by the said Robert by the hands of
of the Bailment But Haughton being contra therfore Curia advisare vult The same Term in the same Court The Earl of Shrewsburies Case VPon a Verdict a rule was given to have Iudgment and this was upon the Thursday and upon Sâ—â—uâ—day after thâ— party that was Plaintiff died and it was moved to have a Writ of Error because it was said that the party died before Iudgment in as much as of course aâ—ter the Verdict and the â—ule given for Iudgment there are four daies given to speak in Arrest In the diâ—cretion of the chief â—ustice to allow a Writ of Error The entry of a Iudgment how it shall relate of Iudgment â—â—o so as Yelverton Attorney-generall said he died before Iudgment absolutely given and he moved the Court to have a Supersedeas And it was agreed that it wâ—s in the discretion of the chief Iustice Ex officio to allow a Writ of Error but because it was a cause of great consequence he took the advice of the Court and it was agreed that a Writ of Error was a Supersedeas in it self yet it is good to have a Supersedeas also and if the Writ of Error had been allowed the Court could not deny the party a Supersedeas But because the Writ of Error was not allowed and also because no Error appeared to the Court for where Iudgment is entred this shall relate to the time of the rule given It was resolved that no Writ of Error should be allowed nor any Supersedeas granted The same Term in the same Court. Rones Case IN an Ejectione firmae brought by the Lessee of Rone Incumbent of the Church of Dallinghoe in Com. Suff. It was found by speciall Verdict that the King was the true Patron and that Wingfeild entred a Caveat in vita Incumbentis he then lying in Extremis scilicet Caveat Episcopus ne quis admittatur c. Nisi Convocatus the said Wingfeild the Incumbent dies Naunton a stranger presents one Morgan who is admitted and instituted afterwards the said Wingfeild presents one Glover who is instituted and inducted and afterwards the said Rone procure a presentation from the King who was instituted and inducted and then it came in question in the Spirituall Court who had the best right and there sentence was given that the first institution was Irrita vacua inanis by reason of the Caveat then the Church being full of the second Incumbent the King was put out of possession and so his presentment void But it was adjudged and resolved by all the Court for Rone for 1. It was resolved that this Caveat was void because it was in the life of the Incumbent 2. The Church upon the Institution of Morgan was full against all but the King and so agreed many times in the Books and then the presentation of Glover was void by reason of the super-institution and therfore no obstacle in the way to hinder the presentation of Rone and therfore Rone had good right And if the second institution be void the sentence cannot make it good for the Spirituall Court ought to take notice of the Common Law which saith that Ecclesia est plena consulta upon the institution and the person hath therby Curam animarum And as Doderidge Iustice said he hath by it Officium but Beneficium comes by the Induction And although by the Spirituall Law the institution may be disannulled by sentence yet as Linwood saith Aliter est in Anglia who is an Author very well approved of amongst the Civilians And Doderidge put a case out of Doctor and Studient the second Book If a man devise a summ of money to be paid to I. S. when he cometh to full age and afterwards he sues for it in the Spirituall Court they ought to take notice of the time of full age as it is used by the Common Law to wit 21. and not of the time of full age as it is used amongst them to wit 25. So in this case at the Bar for when these two Laws met together the Common Law ought to be preferred And when the Parson hath institution the Arch-deacon ought to give him Induction And see Dyer 293. Bedingfeilds case cited by Haughton to accord with this case The same Term in the same Court Taylors Case JOhn Taylor a Citizen and Alderman of Glocester was put out of his place by the Common Counsel of the City for some misdemeanor and he sued out a Writ of Restitution and for that the cause of his displacing was not sufficient Writ of Restitution for an Aldermans place his Writ was allowed by reason wherof the other Alderman who was elected in his place was to be removed for the number of Aldermen was full But Hazard another Alderman to the end that the new elect who now was Major should not be displaced was contented to surrender his place in consideration of 10 l. a year granted to him by the Corporation for term of his life with which the Wife of Hazard was not content and therfore he would have left his agreement And therupon the question was whether he might surrender or not And it was said by Coventree Sollicitor that he cannot and he cited Middlecots case an Alderman of B. where the opinion of the Court was 13 Eliz. that he cannot surrender Doderidge perhaps they would not except his surrender Mountague said that Alderman Martin of London gave up his Aldermans place and without question any man in such a case may surrender or leave his place to which the Court agreed and therfore it was ordered that Hazard shall have his 10 l. a year and that he shall stand to his first agreement The same Term in the same Court. May and Samuels Case AN action of Debt was brought upon an Obligation the Condition wherof was to stand to the Arbitrement of John S. concerning all matters between them to the time of the submission who arbitrates that the one shall pay 20 s. and that the other shall make a generall release to him of all matters from the beginning of the world to the time of the arbitrement Arbitrement Haughton Iustice this is an arbitrement but of one part and therfore void but if it had been only that the one shall pay 20 s. it may be good for it shall be intended that the other by reasonable construction shall be discharged or acquitted to which Crook and Doderidge Iustices agreed But by Mountague chief Iustice it ought to be specified yet they all agreed and so it was adjudged that this was a void arbitrement for it was of the one part only to wit that he shall pay 20 s. for the other part for the release to the time of the arbitrement was not within the submission so if the arbitrement had been that the one shall make a release or shall be discharged or acquitted without speaking of the other this being on the one part only is a void arbitrement vide
another 20. H. 6. 15. And a scilicet is but an Exposition of that which is once before and it shall not destroy the precedent matter but if it be contrary to it it is voyd Co. lib. 5. Knights case A scilicet shall not make an alteration of that which went before 15. Jac. B. R. Desmond and Iohnsons Case In a Trover and Conversion the Plaintiffe declared that he was possessed of the said goods 1 Jan. 15. Jac. and that Postea scil the first day of May hee in the yeare aforesaid lost them and that they came to the hands of the Defendant and upon issue joyned it was found for the Plaintiffe and this was moved in arrest of Judgement and by the Court the scil was agreed to be void and the Postea good and the like case was 17. Jac. in Debt The second Question is a man makes Conusance for Rent for him in remainder in taile and does not alledge the precise time when the Lessee for life died but onely that he died and I conceive that it is well enough 1. Because an Avowry which is in lieu of an action is a reall action and in reall actions no precise day need to be alledged 2. Because he avows for 4 s. rent due and the arreare to the remainder which implies that the Lessee for life is dead See 14. Eliz. Dyer The case of a person in one Arundalls case a man was Lessee for ninty years if the Lady Morley should so long live in an action brought by him as Lessee for years in his Declaration he did not averre that the Lady Morley was alive and yet awarded good Trin. 12. Jac. in Hord and Paramores case the defendant avowed as Heir of Sir John Arundell and alledged no time incertaine of the death of Sir John Arundell and yet awarded good for the reason aforesaid and therefore he prayed Judgment for the Avowant The same Terme in the same Court. Jenkin versus Vivian IN trespas Jermy for the Plaintiff took some exceptions to the Plea of the Intr. Hill 1. Car. Rot. 331. Defendant 1. That the Defendant claim common in Trigemore Moore ratione Vicinagii and doth not say a tempore cujus contrarium memoria hominum non existit 2. The Defendant alledgeth that he and all his Occupiers of Down-close had used to have common in the said Tridgemore Moore c. whereas he ought to have shown what estate they had in Down-close who have used to have this coÌ„mon Rol. there néed no prescriptioÌ„in this case no more then in a coÌ„mon appendant which case of a coÌ„mon appendaÌ„t was agreed by the whole Court for it is mixt 6. E. 4. 55. Co. lib. Intr. 625. tit trespas For the 2. exception I agree that if it be by way of prescription then it is not good as it is alledged here but if it be by way of custome as here it is then it is good for a custome goes to Land and a Prescription to persons Hill 11. Jac. Higgs brought an Action upon the Case for erecting of a new Mill and alledged a Custome that he and all the Inhabitants c. an exception was taken to it and it was there ruled that it was good because alledged by way of custome Co. lib. 6. Gatewards case and also Mich. 14. Jac. it way be alledged by way of custom as our case is and 15. E. 4. when it is by way of discharge it may be alledged in all Occupiers Jermy for the Plaintiff It cannot be a custom here for as it is in 23. Eliz. Dyer A custom cannot extend to a particular place and this was agreed by the whole Court But there is another exception he clayms common in Tridgemore Moore for cattle levant and couchant in Down-close and does not aver that these beasts were levant and couchant upon Down-close and per totam Curiam this ought to be averred and it was also agreed that in this case he ought to have prescribed But for the exception of all occupiers it was doubted but for the other exceptions Iudgment was given for the Plaintiff The same Term in the same Court. Chambers Case IT was said in this case that in debt upon a Recognizance acknowledged in Chancery or in any other Court the Defendant cannot demand Oyer of the condition for the Recognizance is not in Court as an obligation is when debt is brought upon it But if Debt be brought upon a Recognizance acknowledged in this Court then the Defendant may demand Oyer of the Recognizance The same Term in the same Court Harison versus Errington IN Error to reverse an Inditement of rescous and Riot taken in the County Palatine of Durham Bankes assigned the Errors whereof one was therâ— was a Warrant to three conjunctim divâ—sim to arrest the sayd Harison and two of them arrest him and therefore the Arrest was not well done for it ought to have been by one or all three and the reason is because it is a ministeriall act otherwise if it had been a judiciall act 14. H. 4. 34. 2. The Inditement of Riot was against three and the Iury found only one of them guilty of the â—â—â—ot this is a voyd verdict for one alone cannot make a riot like to the case in 11. H. 4. 2. Conspiracy against two and only one of them is found guilty it is voyd for one alone cannot conspire And at another day in the same Term Noy took other exceptions 1. Because the Inditement is Jurator pro Domino Rege presentant c. and doth not say that 12. Iurors presentant and peradventure but 11. did present 2. The names of the Iurors ought to have been certified for peradventure they are not probe legales homines but Villains and Outlawes 15. H. 4. 41. 3. It is sound that Rolson the Sheriff by vertue of a Writ directed to him came c. and upon this rescous was made by Harrison c. and it doth not appear what manner of Writ it was scilicet Elegit Capias ad satisfaciend on c. and if there were no Writ there can be no rescous and albeit he had a Writ yet if execution were done by vertue of another Writ which he had the Party may disobey it as if upon an habere facias seisinam the Sheriff makes a Warrant as upon a Capias the party is not bound to obey the Bayliffe if hee bee not a Bayliffe knowne but in case it appeares they were only Bayliffs pro hac Vice Nota that an Inditement before Coronâ—rs which found that the Earl of B. was felo de se was quasht because it did not appear that it was per sacramentum probor legal hominum And in the case of Sarum this Term an Inditement was quasht for the same cause The same Term in the same Court. Rochester versus Rickhouse IN a writ of Error to reverse a Judgement given in Ejectione firmae in Newcastle Banks assigned these errors 1. The Plaintiffe declares of
a Lease made de Burg. sine Tent. which is not good no more then in Ejectione firmae de Mess sive Tent. 2. Because the Judgement is not quod capitur as it ought to be because it is vi armis 3. The judgement is Ideo concessum est where it ought to be consideratus est and for these Errors the Judgement was reversed And the same day another Judgement between Bell and Margery Strongury was reversed for the same causes The same Term in the same Court. Petit versus Robinson IN Error to reverse a Iudgment given in C. B. in a Replevin there Jermy for the Plaintiff assigned two Errors 1. It appears that after the Writ and before the triall it was coram Justiciar Dic. Domini Regis and there was not any speech of any King but of King James before and there is no speech of his demise and therefore this shall be intended before the Iustices of King James which cannot be 2. Because the Nisi prius is certified to be tried before Francisco Harvey Mill. uno Justiciar c. the Postea returned is before Francisco Harvey Arm. argued so there was no such Iudge of Nisi prius as Francis Harvey Banks for the Defendant I conceive the first errors to be because the adjournment was per br Dom. Reg. and King James was named before so that the objection may be that it shall be intended the Writ of Adjournment of King James which cannot be but I conceive the Writ is generall and shall not be intended â—hat it can be adjourned by the Kings Writ who was dead before and the Clerk of the Assises who certified it is bound to take notice of the Kings death 37. H. 6. 28. and also the Record is not per br Dic. Dom. Regis but per br Domini Regis generally And for the second I conceive it is no error and if it be error then if the Certificate be not according to the Copy out of which the Clerke certifies it shall be amended 22. E. 4 22. 35. H. 6. 23. b. Co. lib. 8. 136. Blackmores case which is a stronger case then this But it hath been objected that the Record is certified by the Iustices and now there can be no averment to the contrary but I conceive that this Court may send to the Clark of the Assizes to amend it and those objections were over-ruled in C. B. in the same case Doderidge Iustice I conceive that notwithstanding these exceptions the Iudgement ought to be affirmed for as to the first the Court is bound to take notice of the demise of the King and therefore it shall be intended the King that now is and so the Writ of adâ—ournment good enough in Dyer King Henry 8. made a Patent and it was Eâ—ricus Dei gratia c. where it should be Henricus and yet the Patent good so in a Writ to the Bishop the subscription is Episcop Norw this is good enough for the Bishop of Norwich is very well known And for the other I conceive it is not well alledged because it is not showne whether he were a Knight at the time of the Certificate or not and so it may well stand together that he was a Knight for he might be an Esquire at the time of the triall and before the Record certified might be made Knight Jones Iustice to the same intent and that we ought to take notice of the demise of the King therefore it shall be intended of the Writ of adjournment of the King which now is and therefore it is no error and yet if it were it were amendable Whitlock Iustice agreed and therefore the Iudgement was affirmed by the whole Court The same Term in the same Court. Crabbe and his Wife versus Tooker IN Covenant betweene Walter Crabbe and Anne his Wife against Tooker the covenant upon which the breach was layd was this Tooker the Defendant covenanted with Tooker his Son and Anne Slade one of the Plaintiffs whom he intended to marry to give them their meat and drink in his house and if any discontent should happen between the Father and Son so that he and his Wife Anne should disagree to dwell with Tooker the Father then they should have 6. Beasts gates c. Tooker the Son died Anne disagree to dwell with Tooker the Father and marries with Crabbe who with hâ—s Wife Anne brings this Action and Taylor argued for the Planitiff that the Action lies for albeit the Covenant be in the conjunctive if they disagree yet it shall have a disjunctive interpretation as where a man covenant to levy a fine to one and his heirs if he dies the Covenantor may levy a fine to his Heirs and Hill and Granges case in Plow Two Tenants in common grant a rent this shall be taken for severall Rents and Co. lib. 5. Slingesbyes case also the Wife is party to this covenant and she must either have remedy upon this covenant after the death of her Husband or not at all for she cannot disagree in the life time of her Husband per que c. And it was agreed on the other side that there ought to be a dislike between all joyntly the Father the Son and the Wife and now one of them being dead the covenant is discharged like to the case put in Brudenels case Co. lib. 5. If Administration be grant during the minority of 3 if one of them dies the administration ceaseth and 31. Eliz. in C. B. A Lease was made to three and the Lessor grants to them to be dispunishable of Wast quamdiu cohabitarent one of them dies and it was resolved that now they shall be liable to wast Also the Bar is not bone for it is pleaded that Discordia orta fuit and doth not shew what manner of discord this was and therefore not good as 3 H 6. In Annuity brought Pro concilio c. he ought to shew for what manner of Councel it was Whitlock Justice was of opinion for the Plaintiff and that this Covenant extends to the Wife and that upon equall construction because it comes in place of the first Covenant and this was intended for the benefit of the Wife as well after the death of the Husband as before Jones Justice was of the contrary opinion and that the second covenant was a severall covenant from the first and that the disagreement is to be made by all three joyntly and that when one dies the Covenant is gone 2. Eliz. Dyer A man will that A. B. and C. his Feoffees shall sell his Land B. dies now the Authority is determined The Lord Gray committed the custody of his Son to four one of them dies the authority is gone and in this case there is no matter of interest but an agreement and in such a case as this is a Feme covert hath a will albeit she hath no legall will but in this case there ought to be a disagreement of both and
albeit he died before the day of payment because this was a summ in grosse limited to be paid to the said Thomas at a certain time But if it shall be taken for a Condition in William he thinks cleerly that the said William ought to have given notice to the Executrix of the said Thomas before he had made his first entry into the Land of the Ten. when he intended to make his entry so that the Executrix might be there at the same time to have made demand of the money which ought to have been done or otherwise there cannot be a refusall in the said William and without his refusall or other default in him the Condition cannot be broken if it had such a relation as to make the payment as George ought to do it And so the Executor of Thomas cannot have notice when William will make his first entry into the Land if he do not give him notice of it and therfore if it shall be a Condition it had been broken on the part of William for want of giving notice to the Executor of the time of his first entry wherby the Executor might have notice of the time to make his demand because without a demand refusall cannot be and the Executor is excused to make demand when he had no notice of the time and therfore the default of William in not giving notice of it shall be taken against him as strongly as if he had made a refusall to pay upon demand for if notice had been given to the Executor and he had demanded the money and William had said nothing to it but omitted to pay it yet this shall be a refusall in Law But of this nothing appeareth in the Verdict whether the Executor had notice given to him or not nor nothing mentioned in the Verdict whether any demand or refusall was made of the money or not and therfore the Verdict as to these points is incertain to judge upon whether it shall be taken to be a Condition in William But it seems as the Verdict is that Iudgment ought to be given against the Plaintiff for the conclusion of the Verdict is upon the entry of the Defendant whether this be lawfull or not and not upon the expulsion or whether upon the other Moyetie his entry was lawfull in right of the said William because they were Tenants in Common 3. IN Trespasse of Assault Battery and Imprisonment made such a day at in the Countie of Cornwall brought by against The Defendant saith that he was Constable of the same Town and that the Plaintiff the said day year and place brought an Infant not above the age of ten daies in his armes and left him upon the ground to the great disturuance of the people there being and that he commanded the Plaintiff to take up the said Infant and to carry it from them with him which the Plaintiff refused to do for which cause he quietly laid his hands upon the Plaintiff and committed him to the Stocks in the same Town where he continued for such a time untill he agreed to take up the Infant again which is the same Assault Battery and Imprisonment of which the Plaintiff complains upon which the Plaintiff demurred Fennor was of opinion that that which the Constable did was lawfull and that it is hard that an Officer shall be so drawn in question for it for this shall be an utter discouragement to good Officers to execute their Offices as they ought to do Popham A Constable is one of the most ancient Officers in the Realm for the conservation of the Peace and by his Office he is a Conservator of the Peace and if he sees any breaking of the Peace he may take and imprisen him untill he find surety by obligation to keep the Peace And if a man in fury be purposed to kill maime or beat another the Constable seeing it may arrest and imprison him untill his rage be passed for the conservation of the Peace And if a man layes an Infant which cannot help it self upon a Dunghill or openly in the field so that the Beasts or Fouls may destroy it the Constable seeing it may commit the party so doing to Prison for what greater breach of the Peace can there be then to put such an Infant by such means in danger of its life And what diversity is there between this case and the case in question for no body was bound by the Law to take up the Infant but he which brought it thither and by such means the Infant might perish the default therof was in the Plaintiff and therfore the Action will not lye And therupon it was agreed that the Plaintiff take nothing by his Writ Hayes versus Allen. 4. TErm Pasch 33 Eliz. Rot. 1308. A Cui in vita was brought in the Common Pleas by Ralph Hayes against William Allen of a Messuage with the Appurtenances in St. Dunstans in the East London in which it was supposed that the said Wil. had no entry but after the demise which John Bradley late husband to Anne Bradley Aunt of the said Ralph whose heir the said Ral was made to Tho. Allen and Jo. Allen and counts accordingly shews how Cosin and Heir to wit Son of Wil. brother of the said Anne Wil. Allen traverse the Demise made to the said Tho. and Jo. Allen and at Nisi prius it was found that the said Jo. Bradley and Anne his wife was seised in their demesn as of fee in right of the said Ann of a Messuage in S. Dunstans aforesaid containing from the North to the South 18 foot and from East to West 12 foot and a half and being so seised during their Marriage by their Deed sealed with their Seals enfeoffed the said Tho. Allen and Jo. Allen therof to hold to them and their heirs to the use of the said Jo. Bradley and Anne his wife for their lives and afterwards to the use of the Church-wardens of S. Dunstans Lond. and of their successors for ever to the use of the poor of the same place and that Livery was made accordingly and that the said Deed was inrolled in the Chancery at Westm and that afterwards the said Anne died and that Jo. Bradley survived her died and that the right of the said Mess descended to the said Ra. as cosin and heir of the said A. And that Sir W. Allen K. was seised of a peece of land in S. Dunst aforesaid containing 6 foot 4 inches contigious and adjacent to the said Mess late the said Jo. Bradleys and A. his wife in his demesn as of fee And that the said Sir Wil. after the said feoffment and before this Writ purchased utterly drew away the said Messuage late the said John Bradleys and Ann his wife and drected a new house upon the Land of the said Sir William and upon part of the Land upon which the other house stood containing from the North to the South thirteen foot from the East
to the West eighteen foot ten inches which Messuage so newly built stood the day of the Writ purchased and yet stands c. And if upon the whole matter the said Demise of the said John Bradley and Anne be and in Law ought to be adjudged the Demise of the said Messuage newly built upon the said part of land where the Messuage of the said John Bradley and Anne stood then the Iury find that the said John Bradley demised to the said Thomas and Iohn Allen the said house newly erected as aforesaid as the Plaintiff hath alledged and if not then they find that he did not demise And upon this Verdict Iudgment was given there and an especiall Writ of Habere facias seisinam awarded of the said Messuage with the Appurtenances viz. 18 foot of it from the North to the South and 12 foot and an half of it from the East to the West upon which a Writ of Error being brought in the Kings Bench it was alledged for Eror by Coke Sollicitor that upon this Verdict Iudgment ought to have been given for the Tenant and not for the Demandant for what was remaining of that which was of the house is not a house but only a peece of a house and therfore it ought to have been demanded by the name of a peece of Land containing so much one way and so much another for a house wasted and utterly drawn away cannot be demanded by a Messuage but by the name of a Curtilage or so much Land of such contents for a Praecipe lies of a peece of Land containing so many feet in length and so many in breadth And also Land built during the possession of him which hath it by Tort cannot be demanded by the name of Land by him which hath right but by the name of a house nor e contra for every demand of Land ought to be made according to the nature of which it is at the time of the Action brought be it a Messuage Land Meadow Pasture Wood c. And if the Walls of a house be made upon the Land without any covering yet it shall be demanded but by the name of Land for he said that it cannot be a house without its perfection to be habitable which he said is not here because it stands upon the Land of the said Anne which hath not the perfection of a house habitable without the remnant But this notwithstanding the first Iudgment was affirmed for it was said by Popham and other Iustices that that which is erected upon the Land of the said Anne shal be said a house as to the right of the Heir of the said Anne for a house may be such to be demanded by the name of a house albeit it hath not all the perfection of a house as if it hath no doors so if it hath part of the side wals not made drawn away or fallen yet the remainder continues to be demanded by the name of an house so if part of the covering be decayed yet it shall be demanded by the name of an house and the rather here because with that which is upon the other Land it is a perfect house And I may have a perfect house although the side Walls belong to another as in London where a man joynes his house to the side walls of his Neighbours he hath a perfect house and yet the side walls belong to another and this commonly happens in London but it is otherwise if it were never covered or if the covering be utterly fallen or drawn away for without a covering a house cannot be said to be a house for the covering to keep a man from the Storms and Tempests over head is the principall thing belonging to a house And further suppose that a man hath a Kitchin or a Hall upon Land to which another hath right he which hath right ought to demand it by the name of a house suppose then that there is adjoyning to this upon other land a Parlor a Buttery a Shop a Closet and the like with Chambers over them this doth not change the form of the Writ that he is to have which hath right although before it was built by the name of a house and yet as to the rent both the one and the other was but a house but as to the demandant it is otherwise for they are severall so here And the Demise which before was made of the house drawn away shall be now upon the matter a Demise as to this part of it a new Messuage for if a man make a Lease for years of a house and the Tetmor pull it down and erect there a new house or if land be demised and the Lessee build a house upon it in an Action of Wast for Wast done in this new house the Writ shall suppose that he did wast in the Houses c. which were demised to him and yet in the one case it is not the Messuage which was demised to him and in the other the house was not demised but the Land only But he hath no term in the house but by the Demise before made And it seems to Popham that Allen the Defendant cannot pull down this part of the house erect upon his own land to the prejudice of the house which Hayes demands if this which is erected upon the land of Allen be of such a necessity that without it the house of Hayes cannot stand for a house but if he dies after that Hayes hath built it then Hayes shall have an Action upon the case against him for the damages which he sustained by it As if a man agree with me that I shall set the outer wall of my house upon his land and I do it accordingly and afterwards the party which grants me this licence breaketh it down if the Grant were by Deed I shall have an Action of Covenant for it and if but by Paroll yet I shall have an Action upon the case against him And here this being done by him which was then Owner and Possessor of the one and the other land it shall be taken as a licence in Law to the benefit of him which hath right which he cannot pull down after it is once made but he shall be subject to Hayes his Action for it or otherwise Hayes shall be at great mischief and prejudice by the Act of him which did the wrong which the Law will not suffer but rather shall turn this to the prejudice of him which did the wrong then to the prejudice of the other which shall have wrong by the doing of it for Volenti non fit injuria As if I am to inclose between my Neighbour and my self and my Neighbour pull down this inclosure or part of it wherby my Cattell escape into the land adjoyning and depasture there I shall be excused of this Trespasse in the same manner as if he had licenced me to have occupied it and whatsoever hapneth to this Land adjoyning
disguised For the wholness and closness of your Garments they do signifie integrity to be used in your advices and secrecy in your councels And in that the Garments being single and unlined it betokeneth that you should be sincere and plain in your advises and not double carrying your opinion to your self one way and you advise it your Client clean another way The two Tongues do signifie that as you should have one Tongue for the Rich for your Fee as a reward for your long studies and labours so should you also have another Tongue as ready without reward to defend the Poor and Oppressed And therin to shew your seves thankfull to God for all that which he hath bestowed upon you And for the Rings you give as Gold is amongst all Mettals the purest so should you be of all others of your Profession the perfectest both in knowledge and in the other Virtues before remembred And in that it is a Ring and round without end it betokeneth that you have made a perpetuall Vow to this your Profession and Calling and are as it were wedded unto it And therfore I heartily wish you may alwaies walk therin according as appertaineth to your Calling And this done the ancienst Serjeant beginneth to recite his pleading and so each after other in order And that done the ancientest kneeleth down before the chief Justice of England and so the rest before the Justices and Barons as they are in ancienty and had severally by the said chief Justice their Coifs put upon their heads and then their red Hoods upon their shoulders and then the Serjeants return to their Chambers and put on their party colourd Garments and so walk on to Westminster the one after the other as they be in ancienty bare-headed with all their Coifs on and so are in their turn presented the one after the other by two of the ancientest Serjeants And after their pleadings recited they give their Rings in the Court by some friends and so are therupon set in their place at the Bar according to their ancienty And all this done they return to their Chambers and there put on their black Gowns and red Hoods and come into the Hall each standing at his Table according to his ancienty bare-headed with his Coif on and after setteth himself upon the Bench having a whole mess of meat with two courses of many Dishes served unto him And in the afternoon they put on their Purple Gowns and then go in order to Pauls where it hath been accustomed that they heard Service and had a Sermon Edwards versus Halinder 4. IN an Action upon the Case by Rice Edwards against Edward Halinder The Plaintiff declared by his Bill that one Edward Banister was seised in his Demesne as of Fee of a Messuage in such a Parish and Ward in London and being so seised did let to him the Cellar of the same house the 23. day of April 32 Eliz. for a week from the same day and so from week to week so long as the parties should please at such a Rent by the week wherby he was possessed And further that the said Edward Banister being seised of the said house as is aforesaid afterwards to wit 29. July in the 32. year aforesaid gave to the said Defendant Officium Anglice the Warehouse of the said Messuage being right over the said Cellar for a week from thenceforth and so from week to week so long as the parties should please paying such a Rent wherby the Defendant was therof possessed accordingly And the Plaintiff being possessed of the said Cellar and the Defendant of the Warehouse as aforesaid and the Plaintiff then having in the said Cellar three Butts of Sack to the value of 40 l. c. The Defendant the 30 day of July in the 32. year aforesaid put such a quantity of weight and burthen of Merchandize into the said Warehouse and therby did so overburthen the floor of the said Warehouse so that by the force and weight of the said burthen the said floor the said 30. day of July was broken and by force therof did fall and that therby the Merchandize that were in the said Warehouse did fall out of the said Warehouse into the said Cellar upon the said Vessels of Wine and by force therof brake the said Vessels of Wine wherby the said Wine did flye out of the said Vessels and became of no value to the Plaintiffs damage of a hundred pound c. To which the Defendant saith That within a small time before the Trespasse committed the floor of the said Warehouse sustained as great a burthen of Merchandize as this was And that the Warehouse was demised to him as the Plaintiff hath alledged to lay in it 30. Tun weight wherby he was possessed and so possessed the said 30. day of July did put into the said Warehouse but 14. Tun weight of Merchandize and that the damages which the Plaintiff had by the breaking of the floor was because the floor at the time of the laying of the merchandise upon it also before the lease made to him therof was so rotten and a great part of the Wall upon which the said floor lyes so much decayed that for default of Reparations and supporting therof by those to whom the reparations did belong before the Lease therof made it suddainly brake which matter he is ready to aver Wherupon the Plaintiff demurred and Iudgment was given for the Plaintiff in the Exchequer upon which a Writ of Error was brought in the Exchequer Chamber and the Error assigned was that the Iudgment ought to have been given for the Defendant because that now it appeareth that there was not any default in the Defendant for he was not to repair that which was so ruinous at the time of his Lease and therfore if it did bear so much lately before it cannot fall by the default of the Defendant in the weight put upon it but by the ruinousnes of the thing demised And yet by the advice of the Iustices the Iudgment was this Term affirmed for the Plaintiff hath alledged expresly that the floor brake by the weight of the Merchandize put upon it which ought to be confessed and avoided or traversed wheras here he answers but argumentatively to wit that it did bear more before therfore that he did not break it by this weight or that it was so ruinous that it brake Ergo not by the weight wheras here it is expresly alledged that it brake by the weight put upon it and if lesser weight had been put it would not have broken And he who takes such a ruinous house ought to mind well what weight he put into it at his perill so that it be not so much that another shall take any damage by it But if it had fallen of it self without any weight put upon it or that it had fallen by the default only of the posts in the Cellar which support the floor with which the
dies and afterwards John his Son and Heir dies without Issue the reversion by this descends to the said Christopher who dies leaving Issue And upon this Case made in the Court of Wards the two chief Iustices Popham and Anderson agreed first That upon the devise and death of the Father the said Christopher and William were Joynt-tenants of the Land and not Tenants in Common notwithstanding the word severally because it is coupled with the said word joyntly But yet they agreed also that by the descent from John to Christopher the Fee-simple was executed in the said Christopher for the Moyety in the same Mannor as if he had purchased the Reversion of the whole or of this Moyety and that it is not like to the Case where Land is given and to the Heirs of one of them in which case for the benefit of the Survivorship it is not executed to divide the Ioynture because the Estates are made at one and the same time together and therfore not like to the case where the Inheritance cometh to the particular Estate by severall and divided means And a Decree was made accordingly Trin. 36. Eliz. In the Kings Bench. 1. IT was agreed by all the Iustices and Barons of the Exchequer upon an Assembly made at Serjeants-Inn after search made for the ancient Presidents and upon good deliberation taken If a man have two houses and inhabit somtimes in one and somtimes in the other if that House in which he doth not then inhabity be broken in the night to the intent to steal the Goods then being in his house that this is Burglary although no person bee then in the House and that now by the new Statute made such an Offender shall not have his Clergy for before the Statutes were made which take away Clergy in case of Burglary where any person was put in fear no mention was made in the Inditements of Burglary that any person was in the House But it was generall that the house of such a one Noctanter fregit and such Goods then there Felonice cepit And the breaking of a Church in the night to steal the Goods there is Burglary although no person be in it because this is the place to keep the Goods of the Parish And in the same manner the house of every one is the proper place to preserve his Goods although no person be there And that the Law was alwaies so it is to be collected by the course of the Statutes therof made for first the Statute of 23 H. 8. doth not take Clergy from any in case of Burglary unlesse some of the same Family be in the house and put in fear And in 5 Eliz. 6. The Offendor shall be ousted of his Clergy if any of the Family be in the house be they sleeping or waking And these Statutes were the cause that it was used of late time to put in the Inditements of Burglary that some person of the Family was then in the house to put them from their Clergy But this doth not prove that it shall not be Burglary but where some person was in the house and by 18 Eliz. Clergy is taken away in all cases of Burglary generally without making mention of any person to be there which enforce the resolution aforesaid and according to it they all agreed hereafter to put it in Execution Finch versus Riseley 2. IN this Term the case betweeen Finch and Riseley was in question before all the Iustices and Barons for this assembled at Serjeants-Inn in Fleetstreet where after Arguments heard by the Councell of the parties upon this point only If the Queen make a Lease for years rendring Rent with a Proviso that the Rent be not paid at the day limited that the Lease shall cease without making mention that it was to be paid at the receit whether the Lease shall cease upon the default of payment before Office found therof And by Periam and some of the Iustices the Lease stall not cease untill an Office be found of the default because it is a matter in Fait which determines it to wit the not-payment And by Gawdy it shall be taken as if it had been for the not-payment that the Proviso had been that the Lease shall be forfeited In which case it is not detennined untill Re-entry made for the forfeiture which in the Queens case ought alwaies to be by Office which countervails the re-entry of a common person As where the Queen makes a Lease rendring Rent and for default of payment a Re-entry albeit the Rent be not paid yet untill Office found therof the Rent continues Popham Anderson and the greater part of the Iustices and Barons resolved that it was cleer in this case that Ipso facto upon the default of payment the Lease was determined according to the very purport of the contract beyond which it cannot have any beeing and therfore there needs no Office in the case But where it is that it shall be forfeited or that he shall re-enter there untill advantage taken of the forfeiture in the one case or untill re-entry made in the other case the Term alwaies continues by the contract And where in the case of a common person there is need of a re-entry to undo the Estate there in the case of the King there needs an Office to determine the Estate for an Office in the Kings case countervails an entry for the King in person cannot make the entry And upon this resolution of the greater part of the Iustices in Mich. Term 31 32 Eliz. the same case was in question in the Office of Pleas in the Exchequer between the said Moil Finch Plaintiff and Thomas Throgmorton and others Defendants and there adjudged by Manwood late chief Baron and all the other Barons unanimously after long argument at the Bar and Bench that the Lease was void upon default of payment of the Rent according to the Proviso of the Lease and this immediatly without Office for the reasens before remembred upon which Iudgment was given a Writ of Error was brought before the Lord Keeper of the great Seal and the Lord Treasurer of England where it long depended and after many arguments the Iudgment given in the Exchequer by the advice of Popham and Anderson was affirmed and that upon this reason for the Proviso shall be taken to be a limitation to determine the Estate and not a Condition to undo the Estate which cannot be defeated in case of a Condition but by entry in case of a common person and but by Office which countervails an entry in the case of the Queen And this Iudgment was so affirmed in Mich. Term 36 37 Eliz. Smiths Case 3 IT was found by Diem clausit extremum after the death of Richard Smith that in consideration of a marriage to be had between Margaret Smith and William Littleton a younger Son to Sir John Littleton Knight and of 1300. marks paid by the said Sir John to the said
it shall not be taken by intendment that the Messuages had such a Curtilage to it if it be not specially named Fennors Case 5. IN Trespasse brought by Fennor in the common Bench against for breaking his Close in c. the Defendant pleads a Bar at large to make the Plaintiff assign the place in certain where he supposeth the Trespasse to be done the Plaintiff therupon alledgeth that the place where he complaineth is such c. and sheweth in certain another then that in which the Defendant justifies the Defendant avers that the one and the other are all one and known by the one name and the other and therupon the Plaintiff demurs and adjudged there for the Plaintiff because that in such a case upon such a speciall assignment it shall be taken meerly another then that in which the Defendant justifies in as much as the Plaintiff in such a case cannot maintain it upon his evidence given if the Defendant had pleaded not guilty to this new Assignment that the Trespasse was done in the place in which the Defendant justifies although it be known by the one and the other name and that the Plaintiff hath good Title to it because that by his speciall Assignment saying that it is another then that in which the Defendant justifies he shall never after say that it is the same in this Plea for it is meer contrary to his speciall Assignment And upon this a Writ of Error was brought in the Kings Bench and the Iudgment was there affirmed this Term for the same reason Quod nota Scot versus Sir Anthony Mainy 6. IN Debt upon an Obligation of 200 l. brought by John Scot Gent. against Sir Anthony Mainy Knight the Condition wherof being to perform the Covenant comprised in an Indenture of Demise made by the said Sir Anthony to the said Plaintiff of his Capitall Messuage in Holden with the Lands to it belonging c. amongst which Covenants one was that wheras by the same Indenture he had demised it to him for 21. years that the said Sir Anthony covenanted with the said John Scot that the said Sir Anthony from time to time during the life of the said Sir Anthony upon the surrender of this Demise or any other Demise hereafter to be made by the said Sir Anthony of the said Messuages and Lands and to be made by the said John Scot his Executors or Administrators and upon a new Lease to be made ready ingrossed to be sealed and offered by the said John Scot his Executors or Administrators to the said Sir Anthony for the like tearm and number of years in the aforesaid Indenture comprised for the same Rent c. to seal and deliver to the said John Scot his Executors and Administrators And the said Sir Anthony as to this Covenant pleaded did not surrender nor offer to surrender to him the said Demise nor offer to him any new Demise of the Premisses ready engrossed for to seal it for the like Term c. as it is in this Covenant And for the other Covenants he pleads performance of all To which the Plaintiff replies that the said Sir Anthony after the Obligation and before the Action brought had rendred the said Messuages and Lands by Fine to one Walter Savage and William Sheldon their Executors and Assigns for eighty years from the Feast of Easter next before the Fine which was Pasch 36 Eliz. wherby he said that the said Sir Anthony had disabled himself to renew his Lease according to the Covenant upon which it was demurred in the Commen Bench and the Iudgment given for the Plaintiff as appeareth Trin. 37. Eliz. Rot. 2573. And upon this Iudgment a Writ of Error was brought in the Kings Bench and agreed this Term. And it was moved that the Iudgment given was erroneous in as much as the first act was to be done by John Scot before the new Lease was to be made to wit the surrender of the former Lease and the drawing of the new one ought to have been done by the Plaintiff which not being done on his part the said Sir Anthony is not bound to make the new Lease And also it was moved that as the case is here the said John Scot might surrender to the Defendant notwithstanding the intervening of this Lease between the Lease of the Plaintiff and the Inheritance of the Defendant as if a man make a Lease for years in possession and afterwards make another Lease to a stranger to begin after the end of the former Lease this shall not hinder but that the first Lease may be surrendred to him who was the Lessor notwithstanding the said Term intervening To which it was answered by the Court that the Plaintiff here need not to make any offer of the surrender of his Term to the said Sir Anthony in as much as the said Sir Anthony hath disabled himself to take the Surrender or to take the Lease according to the purport of the Condition and by this disabling of himself the Obligation is forfeited Come per 44 E. 3. 8. and by Littleton also If a man make a Feoffment upon condition to re-enfeoff him this is not to be done untill request therof be made by the Feoffor yet if in the mean time the Feoffee suffer a fained recovery of the Land grant a Rent charge acknowledgeth a Statute taketh a Wife or the like the Feoffor may re-enter without request made to re-enfeoff him and the reason is because that by any of these the Feoffee hath disabled himself to perform the Condition in the same plight as he might have done at the time of the Feoffment in the same manner here for by this render by the Fine the Reversion passe in right so that the Termor in possession attorning to it they shall have the Rent reserved upon the first Lease and therfore the Plaintiff cannot now surrender to the said Sir Anthony but to the Grantees of the Reversion and therfore there shall be no prejudice to the Plaintiff because the Defendant was the cause of disabling the Plaintiff to make the Surrender to him And suppose it be but a Term to begin at a day to come yet by this the Obligation is forfeited because the Obligor hath therby disabled himself to perform the Condition in such a plight as he might have done it when the Obligation was made wherby the Obligation is presently forfeited albeit the Plaintiff never surrender nor offer to do it And therfore the Iudgment there was affirmed Mounson versus West 7. IN an Assise brought in the County of Lincoln before Gawdy and Owen by Thomas Mounson Esquire Demandant against Robert West Tenant for Lands in Sturton Juxta Stu. The Defendant West pleaded Nul Tenant del Frank-tenant named in the Writ and if that be not found then Nul tort nul Disseisin And the Assise found that the said Defendant was Tenant of the Tenements now in Plaint and put in view to the Recognitors of
the now Tenant Henry Gee as is before alledged and that the said Henry was then seised of the said Tenements in Fee in right of the said Eliz. then his wife and although that he alledge the said severall Feoffments to be made by Deeds indented with the reservation as aforesaid yet it is not mentioned in the Replication that he shews forth the Deeds wherby the reservation was made To which the Tenant by way of Rejoynder shew the Feoffment made by the said Eliz. Shalcroft to the said William Greenditch wherby he was seised at the time of the payment of the said Rent at the said Feast of the Annunciation of our Lady and traverse Absque hoc that the said Henry Gee was therof then seised in right of his wife in manner and form wherupon it was demurred in Law and adjudged by the Justices of Assise at Lancaster that the Plaintiff should be barred wherupon the Tenants have now brought their Writ of Error And by Popham and Clench the Iudgment is to be affirmed First because that the acceptance of the said Rent had been by the hands of one who was to pay it to wit the Tenant himself yet this shall not bar the right of Intail in the said Robert Holme as a release of his right should do but this acceptance shall only foreclose him of his Action to demand the Land during his life and therfore the right which the said Robert had being barred by the Fine the Son is without remedy for the Son shall never have remedy upon the Fine levied in time of his Father the five years after the Proclamations being passed But in case where the right begin first to be a right in the Son and not where there was right in the Father And further it seemed to them that the payment of him who had not any thing in the Land at the time of the payment as here shall make no conclusion to him who accept it because this payment is as none in Law And by them the Rejoynder of the Traverse Absque hoc that Henry Gee was seised at the time of the payment in Fee in right of his said Wife in manner and form as in the Replication is ailedged is good enough for he traverseth that which the Demandant hath specially alledged to destroy the Bar and contrary to that which is alledged it shall not be intended that they had other particular Estate at the time of the payment which may make the payment to be good And albeit the Traverse had been Absque hoc that the said Henry was seised in right of his said Wife Modo forma prout the Demandant hath alledged without saying in Fee as it is pleaded here yet the Iury shall be put to find it if he were seised in Fee In jure Uxoris and not of any other particular Estate as in 12 E. 4. 4. A Feoffment is pleaded by Deed the other makes Title and traverseth Absque hoc that he enfeoffed Modo forma not shewing forth the Deed yet he who pleads the Feofment by Littleton shall give no other Feoffment in evidence then that which is pleaded by the Deed. And by 18 E. 4. 3. In Trespasse the Defendant justifies the entry and sowing of Corn because that M. was seised in Fee and sowed the Land and the Defendant as his Servant entred and cut it the Plaintiff saith that it was his Free-hold at the time of the sowing Absque hoc that it was the Free-hold of the said M. and per Curiam it is not good for such matter was not alledged by the Defendant but he ought to traverse the Seisin in Fee which was alledged and good and so it is good here But it seems to Clench that the Replication is not good because he doth not say by the Writing upon which the Reservation was made which concludes Robert by his acceptance Hic in Curia prolat as by Hill 15. E. 4. 15. If a man will bar a woman of her Action for her Land after the death of her Husband by Feoffment made by the Baron and Feme during the Coverture by Deed rendring Rent by reason of acceptance of the said Rent after the death of the husband he ought to shew the Deed and say Hic in Curia prolat or otherwise the Plea is not good because that in such a case albeit it were a Gift in Tail the wife shall not be concluded by her acceptance unlesse that the Gift were by Deed. Popham True it is in case the party will demur upon it but suppose in this case the Tenants had expresly acknowledged the said Feoffments and then concluded afterwards as they have done here shall they afterwards take advantage of not shewing the Deed I think that not no more here where they admit it and plead the other matter to avoid the conclusion for if a double Plea be pleaâ—ed if the other party demur upon it he shall take the advantage of the doublenesse But if he passe it over and they proceed in pleading upon another point the doublenesse is gone And Fennor said that the right which is intended to be saved within the first branch of the Statute of 4 H. 7. is that upon which the party may pursue his Action or enter for his remedy the which the said Robert could not do in when the Fine was levied because he had accepted the Rent but the first right which was in such a case was that in the Demandant Stroud versus Willis 9. IN Debt upon an Obligation of 40 l. by William Stroud Plaintiff against John Willis Defendant the Condition wherof was If the said Willis his Heirs Executors or Assigns should pay or cause to be paid yearly to the said William Stroud the Rent or summ of 37 l. 10 s. of lawfull money at the Feasts of S. Michael and the Annuntiation by equall portions according to the Tenor true intent and meaning of certain Articles of agreement indented made between the said parties of the same date that the Obligation was that then the Obligation shall be void and the Defendant shews the Articles which were thus to wit that the said William Stroud had demised to the Defendants all such Tenements in Yeatminster of or in which the said William then had an Estate for life by Copy Anglice Copie des except according to the custom of the Mannor of Yeatminster from the Annunciation of our Lady then last past for forty years if the said William should so long live rendring yearly to the said William 37 l. 10 s. of lawfull money at the Feasts of S. Michael and our Lady by equal portions under the East-gate of the Castle of Taunton in the County of Somerset c. with divers things comprised in the said Articles To which points the Defendant pleaded that at the time of the making of the said Articles the Plaintiff had not any Estate in the Tenements in Yeatminster aforesaid for tearm of his life by Copy
Anglice Copie des except according to any custom of the said Mannor of Yeatminster and that the Obligation was made for the payment of the same Rent reserved by the said Articles and demands Iudgment c. wherupon the Plaintiff demurred in the Common Bench and there Iudgment was given that the Plaintiff should recover his Debt and Damages as appeareth there Mich. 36 37. Eliz. Rot. 312. upon which a Writ of Error was brought in the Kings Bench and there moved that the Iudgment was erroneous in as much as upon the matter he ought to have been barred of his Action for if an Action of Debt had been brought upon the Demise by the Articles the Defendant might have pleaded as here and the Plaintiff should be cleerly barred As if a man be bound to make an Estate or to assure to another all the Lands which he hath by descent from his Father or all the Lands which he hath by purchase from such a one or the like And of this opinion Gawdy was saying in as much as the Obligation is that he shall be paid according to the true intent of the Articles the intent of them is not that the Rent shall be paid if any Land be not passed by them for it should be paid as by 22 H. 6. if a man be bound to pay a Rent which is reserved upon a Lease made to him he ought to pay it at his peril But if it be to pay it accordingly to the Lease there he said it is not payable but upon the Bond and is to be paid as a Rent And if the Land be evicted in the interim before the day of payment the Obligor shall help himself by pleading of it upon such an Obligation to discharge the Bond so here But it seemed to Popham that the Iudgment was well given and yet he agreed the Cases that were put but he said there was a diversity where the Obligation goes in the generality and where it tends to a speciality for as by 2 E. 4. If a man be bound to be Non-suit in all Actions which he hath against such a one or to assure to another all his Lands in Dale he may say that he hath not any Suit or that he hath no Land in Dale But if it be that he shall be Non-suit in a Formedon depending or to enfeoff him of White acre there it is no plea because he refers to a special point And by 18 E. 4. If a man be bound to another to pay him 10 l. for which a stranger is bound to the said Obligee it is no plea for him to say that the stranger is not bound to pay him 10 l. for when the Condition refers to such a speciall matter this cannot be denied of him who is bound And therfore in this case the Defendant cannot say that there were not any such Articles contrary to that which is specially comprised in the Condition as by 28 H. 6. A man was bound to perform the Covenants comprised in a certain Indenture of Covenants he shall not say that there was not any such Indenture because it resorts to a speciall So I think if a man be bound to pay the Rent of 10 l. a year reserved upon an Indenture of Demise made of Lands in D. payable at such a Feast he shall not say against it that there was no such Demise made nor no such Rent reserved upon the Demise but is estopped of the one and the other And in Hill 3. Eliz. A man was bound thâ—t he shall pay to A. or the Obligee all such summs of mony as T. S. deceased stands bound to pay by his Obligation to the said A. and of one R. P. to the behoof of the Children of such a one according to the Will of the said party and in Debt upon this Obligation he saith that the said T. S. was never bound by any such Writing Obligatory to the said A. and R. P c. to pay c. Pro usu filiorum c. as in the Condition and per Curiam adjudged no good Bar because he is estopped to deny the speciall matter which is matter of Writing and not a bare matter in Deed. Kirton versus Hoxton and others 10. IN an Appeal of Mayhem brought by Kirton Plaintiff against Appeal of Mayhem Rob. Hoxton Esq and divers other Defen the one of the Defen plead Nul tiel in rerum natura as another of the Appellees and if it be not found then as to the Felony and Mayhem not guilty Agreed by the whole Court that such a manner of pleading is not to be suffered in an Appeal of Mayhem because no life is put in danger by the suit And yet it was objected that there are presidents that such form of pleading hath been admitted in Appeals of Mayhem But the Court had respect to it that the reason in all the Books of Law in which it hath been admitted in an Appeal of death and the like is that it stands in Favorem vitae and therfore it is admitted to be good or otherwise by the Books it shall not be admitted to be so for the doublenesse of it But no life is to be put in â—eâ—pardy in this case and therfore such a plea shall not be admitted but the Not guilty shall stand by which the other plea is waived Hillary Term 38 Eliz. Henry Earl of Pembrook versus Sir Henry Backley IN an Action upon the Case between Henry Earl of Pembrook Plaintiff See this Case Coke lib 5. 76. a. and Sir Henry Backley Knight Defendant the case upon the pleading appeareth to be thus The said Earl was seised in his Demesn as of Fee of the Mannor of Stocktrift in the County of Somerset to which Mannor the Office of the custody of the Forest of Selwood in the same County belongeth and also that there was before time of memory an Office within the same Forest called the Lievtenant-ship or Custody of the said Forest belonging to the said Mannor of which also the said Earl was seised in his Demesn as of Fee And that there was one part of the said Forest called the West part of the said Forest in which there were two Walks or Bayliwicks the one called Staverdale walk and the other Brewick walk And that the said Lievtenant had the charge of the Deer and the disposition and appointment of the Keepers of the said Forest And that the said Earl being so seised by his Writing bearing date 5. Novemb. 12. Eliz. reciting that his Father had granted the Office of Lievtenant-ship and Deputy-ship of the said West part of the said Forest Cum vadiis c. quando acciderit and the Keeper-ship of Brewick-walk aforesaid to the said Sir Maurice Barkley Knight and the Heirs Males of his body and instituted and ordained him and the Heirs Males of his body Lievtenant and Deputy therof to the said Earl and his Heirs confirmed the Grant aforesaid And further by the
case who agreed that the wife shall not have it The same Term in the same Court. Dennis versus Sir Arthur Mannaring and others IN the great case between Gabriel Dennis Plaintiff in Trespasse against Sir Arthur Mannaring and Brimblecomb and others the Verdict was found for the Defendants And now it was moved in Arrest of Iudgment for the Plaintiff because no Bail was entred for Brimblecomb one of the Defendants A Verdict is given in B â— before any bail entred not good for every Defendant is supposed in Custodia Marescalli and in this case the Venire facias is awarded to try the Issue between the Plaintiff and Defendants where one of the Defendants is no party in Court And Serjeant More put the case of the Lord Chandoys and Sculler and other Defendants where the Iudgment in such a case was resolved to be erroneous Mountague we ought Discernere per legem quid sit justum and here Brimblecomb being no party in Court no Verdict could be given Doderidge I have seen in this Court where upon a Writ of Error brought in such a case we have compelled him to put in his Bail because he should not take advantage of his own wrong and folly But because that here no fraud appeared to be in the Plaintiff he shall not be bound to stand to the Verdict Haughton agreed but Crook seemed to the contrary But it was agreed that if Brimblecomb had appeared at the Suit of any other the same Term it had been sufficient And these Books were cited to be in the point 32 H. 6. 2. 8 E. 4. 5. 21 H. 6. 10. The same Term in the same Court Hide versus Whistler WIlliam Hide made a Lease for years of certain Lands to Whistler excepting Exception of all Wood under-wood Coppices and Hedgerows to the Lessor all his Wood and under-wood Coppices and Hedgerows and in a Replevin the question was whether the Soil shall passe ther by for the Lessee put his Beasts into a Coppice and the Lessor distrained them wherupon c. And the words of the exception were further standing growing and being in and upon the Premisses And the Lessee covenanted to make Fences but if the Lessor made new Coppices that the Lessee should net make Fences about them And it was said that a Coppice signifies a parcell of Land fenced for the safegard of young Trees And it was said for A Coppice what it is the Plaintiff that Premisses are Pre dimissa and by these words growing and being in the Premisses it shall be intended that the Soil did not passe for it is pre-demised But it was resolved that the Soil it self was excepted by the exception of the Wood and Coppice 14 H. 8. 1. The Bishop of Londons case Co. lib. 5. Ives case and lib. 11. Lyfords case And by the reserving of a Coppice the Soil it self is reserved for by Mountague that which is reserved is not demised and so the Distresse well taken Crook agreed and he said the difference was good between Wood and Trees for by the excepting of Wood the Soil it self is excepted otherwise of Trees Haughton agreed that the Soil it self is excepted in this case and so it was adjudged The same Term in the same Court. Talbot versus Sir Walter Lacen IN a Writ of Covenant brought by Margaret Talbot against Sir Walter Lacen upon a Lease made by the Plaintiff to the Defendant of a Park Covenant to leave the Premistes in repatations at the end of the Term. c. for five years if she should live so long in which the Lessee covenants for him his Executors and Assigns to keep the Premisses in good Reparations and so to leave them at the end of the Term and also to deliver to the Plaintiff upon notice given four Bucks and four Does in season during the life of the Plaintiff in every of the said years And after the expiration of the aforesaid term of five years she brought a Writ of Covenant and assigned the breach because that in the end of the term he committed Wast and because that after the end of the term the Defendant refused to deliver the Deer And albeit the words of the delivery of the Deer are during the life of the Plaintiff yet they are also every of the aforesaid years and therforeit was resolved that she shall not have them during her life in this case And for the other point it was objected that in Fine termini was incertain for it may extend after the term but Ad finem termini had been sufficient Old book of Entries 169. for when he covenants that at the end of the term he would leave the Premisses in reparations and Ad finem termini he did wast this ought of necessity to be intended a breach of the Covenant and therfore it was adjudged that the action of Covenant well lies Mich 16. Jac. In the Kings Bench. Havergall and Hares Case IN this Case which see before fol. 1. b. four points were observed 1. Whether Fisher the Assignee of the Rent were such a person who Before fol. 1. b shall take benefit of the entry 2. When 10 l. is only in arrear whether the Rent of 20 l. shall be said in arrear 3. Whether these advantages which were first granted with the Rent may be granted over 4. When the Vse shall rise whether upon the first Indenture of the grant of the Rent or afterwards For the case was that the Grantee of the Rent of 20 l. covenanted by the same Indenture that if the said rent of 20 l. were in arrear for the space of twenty daies after any day of payment that the Grantee shall distrain and if there be not sufficient distresse upon the Land or if there be a Rescous Replevin or Pound-breach that then it shall be lawfull for the Grantee and his Heirs to enter into the same Land and to retain it untill he be satisfied And the said Rent was granted 9 Jac. it was arrear 11 Jac. the Fine for the better assurance of the Rent was levied 12 Jac. and 13 Jac. the Distresse was taken There were four Causes which give an entry and upon the Distresse and Replevin brought the Assignee enters As to the three first points it was resolved by the whole Court 1. That Fisher was such an Assignee who shall take benefit of the Entry 2. When 10 l. is only arrear the Rent of 20 l. shall be said arrear wherupon there shall be a Title of Entry 3. That these advantages granted with the Rent may be granted over And as to the fourth point it was holden by Mountague and Crook that the Vse riseth upon the first Indenture and not upon the entry after the Replevin brought although the words are that then it shall be lawfull for the Grantee and his Heirs to enter wherby the use is only awaked as it is in the principall point in Shelleys case and although a Fine is afterwards
est rerum omnium vendendarum mensura Bracton 117. 18 E. 3. Hollinghead 109. 50 E. 3. Rot. Pat. Memb. 7. And for transportation 17 E. 3. 19 E. 3. Rot. Pat. 24. De monetis non transportandis 19 R. 2. Rot. Pat. The Dutches of obtained licence to melt Coin to make Plate And divers of the Defendants were within the Kings generall pardon but in as much as they pleaded it in their Rejoynder and not in their answer as it ought to be the Court over-ruled their Plea so that they could have no advantage therby But in as much as they were strangers and not coâ—usant of our Laws and relyed only upon their Counsell the Court had consideration therof in their censure Hillary 17 Jac. In the Kings Bench. Serle versus Mander SErle brought an action upon the case against Mahder for these words to Words I arrest you upon Felony wit I arrest you upon Felony and after Verdict for the Plaintiff it was moved in Arrest of Iudgment by Richardson that the words were not actionable for he doth not say that the Plaintiff had committed Felony But it was rescived by the Court and so adjudged that the action lieth The same Term in the same Court A Iudgment was obtained against one of the Servants of the Lord Hay Iudgment against a Defendant when beyond Sea with an Ambassador reversed Viscount Doncaster when he was Ambassador in Bohemia and attending upon him there And this matter being disclosed to the Court by the Counsell of the Defendant they would not suffer the Plaintiff to have execution upon the said Iudgment but ordered the Plaintiff to declare De novo to which the Defendant should presently answer Memorand It was said to be against the course of the Court to have an Imparlance Imparlance before the Declaration entred The same Term in the same Court The King against Briggs A Quo warranto was brought by the King against Briggs for exercising A Subject cannot have a Forest of certain Priviledges who justified by virtue of a Forest granted to him And by Bridgeman this is the first Quo warranto which he knew that had been brought against any Subject for a Forest for a Subject cannot have a Forest but he may have a Chase which peradventure may passe under the name of a Forest And there are divers incidents to a Forest which a Subject cannot use nor have there ought to be a Iustice of a Forest which a Subject cannot have and such a Iustice ought to be a man of great Dignity 2. There ought to be Verderors who are Iudges also and by 34 E. 1. Ordinatio Forrestae ought to be by Wait but a Subject cannot award a Writ Also there are three Courts incident to a Forest 1. A Court of Attachments which may be without Verderors 2. The Swanimate Court 3. The Iustice seat and this appeareth in 1. E. 3. cap. 8. 21 E. 4. cap. 8 But by the Statute of 27 H. 8. cap. 7. There are some other incidents to a Forest 2. Admits that a Subject may have a Forest yet it fails in this case because he hath shown the exemplification and not the Letters Patents and see Co. lib. 5. Pains case that neither an exemplification or constat are pleadable at Common Law and Co. lib. 10. Dr. Leyfeilds case The same Term in the same Court Sir William Webb versus Paternoster THe case was this Sir William Plummer licensed Sir William Webb to lay his Hay upon the Land of the said Sir William Plummer untill he could conveniently sell it and then Sir William Plummer did make a Lease of the Land to Paternoster who put in his Cattell and they eat up the Hay And it was two years between the license and the putting in of the Cattell and yet Sir William Webb brought an action of Trespasse against Paternester for this Mountague chief Iustice 1. This is an Interest which chargeth the Land into whosoever hands it comes and Webb shall have a reasonable and convenient time to sell his Hay 2. The Lessee ought to give notice to Notice Sir William Webb of the Lease before he ought to put in his Cattell to which Haughton Iustice agreed in both points But Doderidge Iustice said that Sir William Webb had no certain time by this license yet he conceived that he ought to have notice But it was resolved that the Plaintiff had Convenient time a convenient time to wit two years for the removing of his Hay and therfore Iudgment was given against him But admit that there had not been a convenient time yet the Court was of opinion that the Plaintiff ought to have inclosed the Land at his perill for the preservation of his Hay And it was agreed that a license is countermandable although it be concerning A license whether for profit or pleasure countermandable profit or pleasure unlesse there be a certain time in the license as if I license one to dig Clay in my Land this is evocable and may be countermanded although it be in point of profit which is a stronger case then a license of pleasure see 13 H. 7. The Dutches of Suffolks case for a license The same Term in the same Court SIbill Westerman brought an action upon the case against Eversall and had Error Sibell for Isabell Iudgment and in the entry of the Iudgment she was named Isabell 1 Ass and 3. Ass A Fine was levied by Sibill when her name was Isabell and it was not good for it doth not appear to be the same party so in the case at the Bar And for this the Iudgment was reversed The same Term in the same Court JEne as Executor of brought an action upon the case against Chester An Infant chargable for necessary Apparrell because the Defendant made request to the Testator of the Plaintiff to buy for him certain silk Stuffs for Apparrel and to make him a Cloak the Defendant pleaded that he was within age and George Crook said that the Defendant should not be charged because it is not shewn that the Apparrell was for the Infant himself but he was over-ruled in this for it is sufficiently expressed to be for him And it was agreed by the Court that it ought to be shewn that it was Pro necessario vestitu and it ought to be suitable to his calling and as Doderidge said that there was a case adjudged in this Court between Stone Withipole that where Withipole had taken of Stone certain Stuffs for Apparrel being within age and afterwards he promised payment if he would forbeare him some time and the Assumpsit adjudged not good because he was not liable for the Debt at first for the reason aforesaid Trin. 17. Jac. In the Common Bench. Gilbert de Hoptons Case AN action upon the case was brought for those words viz. Thou art a Words Thou art a Theef and hast stoln my Furze Theef and hast stoln
Iudgement for the Plaintiff The same Term in the same Court NOta by Doderidge and Jones Iustices that upon the principall Iudgement reversed the outlawry is also Ipso facto reversed Also if an Outlawry reversed upon revers all of the principall judgement outlawry be awarded if it be not per Judicium Coronator unlesse it be in London the outlawry is voyd It was demanded by the Iustices when the outlawry and Iudgement are affirmed how the entry is And it was answered by Broome Secondary that the entry is generall Quod judicium affirmetur in omnibus and this sufficeth But if the Iudgement be affirmed and the outlawry reversed then the entry is Quod judicium affirmetur Utlagario cassetur The same Term in the same Court Calfe and others versus Nevil and others AScire facias was brought by Joseph Calfe and Joshua Executors of A. against Nevil Davyes and Bingley and the Case was this they became bayle to one Hall who was condemned in an Action to the Testator of the Plaintiff that the said Hall should either render his body to Prison or that he should satisfie the Iudgement the Defendents Plead that after the Scire facias returned and presently after the Iudgement the said Hall brought a Writ of Error in the Exchequor Chamber hanging which the said Hall reddidit se prisonae in exoneratione manucaptorum suor and there dyed and the Plaintiffe demurred upon this Plea because it was double and Calthorp argued for the Plaintiff that it was double or rather treble 1. That Reddidit se prisonae 2. That he was imprisoned 3. that he dyed in Prison And to prove the Piea double in this Case he cited 13. H. 8. 15. 16. 4. E. 4. 4. 21. H. 7. 10. The second matter that he moved against the former was that pendant the Writ of Error reddidit se prisonae and doth not conclude upon the Record hoc peratus est verificare as he ought to have done and for this he cited 7. H. 8. Kelleway 118. If J. S. bee bound in a Recognizance that A. shall appeare such a day before the Kings Iustices at Westminster if his appearance be not recorded hee shall not have any averment by Bricknell and Conisby and in 30. Eliz. It was one Wicks Case which is ours in effect in case of baile Dyer 27. 6. E. 4. 1. 2. For the matter the Plea is nought 1. Because by the Writ of Error brought the Scire facias against the baile is not suspended because the Bayle is a distinct record and upon this he cited the Case of the Ambassador of Spain against Captaine Gifford which was Trin. 14. Jac. That by the Writ of Error brought the baile was not suspended and he said that it was so resolved also in Goldsmith and Goodwins Case 2. For the render of the principall to prison it is not good because it doth not appear upon Record and for this he cited one Austin and Monkes Case which was in 14. Jac. In Scire facias against the baile it is pleaded that the principall had rendered himselfe to prison and upon the matter it appeared that the render was upon Candlemas day which is not Dies juridicis and so the Court this day had no power to commit him to prison for which the Plea was adjudged voyd 3. For the death it is no Plea the baile by it is not discharged because he hath not rendered himselfe in due time and for this he cited Justice Williams and Vaughans Case which was Mich. 3. Jac. where in Scire facias against the baile they pleaded that the principall was dead and thereupon the Plaintiff demurred and in this Case two points were resolved 1. There was no Capias mentioned to have issued against the principall and yet resolved that a Scire facias would lye against the Baile 2. That the Plea in Bar is not good because it may be that the principal dyed after the Capias awarded or after the return thereof because it appeareth that there was once a default in the principal and so the baile forfeited and no Plea afterwards would discharge it and upon this he put this Case A Prisoner escape out of Prison the Goaler makes fresh suit and before he hath taken him the Prisoner dies this is the act of God and yet because it was once an escape an Action of Escape lyes against the Goaler Jermy for the Defendent and he remembred a Case which was Hil 20. Jac. Cadnor and Hildersons Case that by the Writ of Error the bayle is suspended Nota that it was agréed by the Court in this case that by the Writ of Error brought in the bayle was not discharged because it is incertain whether the Iudgement shall be reversed or not Also it was agreed that if the principal dies before a Capias awarded against him that the bayle is discharged It was also agreed by the Court that the Plea was not double for the first matters are but an inducement to the last and yet by Doderidge if severall matters are pleaded in Bar and there be not any dependency on them the Where a Plea is double and where not Plea is double although none of them be materiall but one Jones Justice cited one Hobs and Tadcasters Case which was 43. Eliz. in B. R. where after a Writ of Error brought a Scire facias issued against the Bayle and upon Nihil returned the Plaintiff in the Scire facias brought in an Audita Quaerela and there the matter came in question whether upon the Iudgement the Principall ought presently render himself to prison or that he should stay until a Capias awarded against him and there it was resolved by Popham and all his Companions that the Principal is not bound to render himselfe to Prison untill a Capias be taken out so that if he dies after the Iudgement and before the Capias awarded against him the Bayle is discharged And in the principal Case here it was resolved that a Scire facias does not lye against the Bayle until a Capias be awarded against the Principal because no Capias in this case was awarded against the Principal which could not be by reason of the Writ of Error before his death And also the Plaintiff in his Declaration ought to have averred and shewn that the Capias was awarded against the Principal for these reasons Iudgement was given quod quaerens nil capiet per Billa The same Term in the same Court. Reynor versus Hallet IN an Action upon the Case for these words viz. Reynor is a base Gentleman Words Reynor is a base Gentleman he hath foâ—â— childâ—en by his seâ—vant Agnes and he hath killed or caused them to be killed he hath four children by his Servant Agnes and he hath killed them all or caused them to be killed and after a verdict for the Plaintiff it was moved in arrest of Iudgement by Jermy that the words were not actionable For 1.
Cleland brought a Writ of error against Baldock upon a Iudgement given in where the Plaintiff declared that the Intr. Hill 22. Iac Rot. 59â— Defendant in consideration that he would do all his commands honestly and truly for the space of a yeare assumed to pay him 10 l. and further declared that he had done all his honest and lawfull commands and this promise being found by verdict Iudgement was given against Doctor Cleland and thereupon he brought this Writ of error and Greene assigned two errors 1. The Assumpsit is that he shall doe all his commands honestly and truly and he hath declared that he hath done all his lawfull and honest commands and he may honest commands and yet not honestly 2. It is said that Jurator Assident dampna and it is not said occasione transgression predict and it is against all Presidents But Nota that there were these words ex hac parte opposita and therefore the exceptions were disallowed by the Court and the first Iudgement affirmed The same Term in the same Court. Secheverel versus Dale THis Case was sent out of Chancery to this Court â—o know the Law therein and in Trespas the case was this Henry Secheverell the Father seised in Fée levied a Fine to A. and B. in Fee to the use of himselfe for life absque impetitione vasti with power to cut and carry away the trees and to make Leases for 21 yeares or three lives the remainder to the use of John Secheverell his eldest Son for life without impeachment of waste with the same powers Henry the Father made a Lease to one under whom the Plaintiff claims for three lives rendring the ancient Rent excepting all the trees unlesse those which shall be for cropping lopping and fewell Henry the Father dyes John the Son in the next remainder cut certain trees Victorin Secheverell who clayms by the lease made by the Father brings trespas and two Questions were moved 1. Whether Lessee for life without impeachment of waste may make a Lease excepting the trees and it was objected by the Councel of the Plaintiff that he could not because this second Lease ariseth out of the first fine and out of the estate of the Conusor But the Court prima facie was of opinion that he might well make such a Lease with such an exception See Co. lib. 11. Lewys Bowls his Case and Doctor and Student lib. 1. cap. 1. and by Doderidge Iustice the Lease ariseth out of both the estates Jones Iustice suppose the Lessee absque impetitione vasti assigne over all his estate might he cut the trees and it was conceived that he might for by Doderidge he hath power to dispose of the trees as it was resolved in Lewys Bowls his case Jones he hath no propriety in the Trees untill they be cut Crew ch Justice Admit a Stranger cut the trees who shall have them By all the Court the Lessee without impeachment of waste shall have them 2. Point Tenant for life without impeachment of waste with power to cut and carry away the trees and make Leases for 21. years or three lives the remainder for life to J. S. without impeachment of waste c. Tenant for life makes a Lease for thrée lives and dyes whether he in remainder for life without impeachment of waste with power to cut the trées may cut the trées and take them during the Lease for thrée lives and the Court séemed to be of opinion that he might And Leving of Councell with the Plaintiff argued that when tenant for life without impeachment of waste with power to cut the trees and to make Leases for 21. years or three lives makes a Lease for thrée lives excepting the trées that this is a voyd exception because he hath no interest but a bare Authority 27. H. 6. Fitz. Wast 8. Statham tit Wast 1. makes this a Quaere which Statham was once the owner of the Land in question A man makes a Lease for life without impeachment of waste a Stranger cuts trées the Lessée brings trespas he shall recover no Damages for the value of the trees because the propriety belongs to him in the reversion he may dispose of them Quaere Dyer 284. Daunsley and Southwels Case Co. lib. 11. Lewys Bowles case that such a Lessee may take trées which are blown down and 3. H. 6. 45. Mich 41. and 42. Eliz. C. B. Leechford against Sanders in an Action of waste upon a Lease made to Sanders for life with a proviso that the Plaintiff might dispose of the trées during the estate and resolved that the Action lies not for notwithstanding this power the trées are demised to the Lessée also so here when the trées are excepted he hath no interest but only an authority 2. The exception is voyd for another reason because when such a Lessée makes such a Lease this is not his Lease but it hath its operation out of the originall fine and he who makes this hath but the nomination and therefore cannot adde a condition or exception to it And if the second Lease shall have its being out of the estate of the Lessee for life then there shall be an use upon an use as appears Co. lib. 1. 134. and that the Law will not allow 15. H. 7. and Co. Lib. 1. Albanyes Case If a man devise that his Executors shall fell his Land they cannot adde a condition or exception to this sale as an attornment upon a condition subsequent is voyd Co. lib. 2. Tookers case 3. This case may be resembled to the case of Copy-holds which is in Co. lib. 8. 63. b. in Swaynes Case If a Lord takes a Wife and afterwards grants Lands by Copy according to the custome and dyes his Wife shall not be endowed of this Land for albeit her title of Dower was before the Grant yet the title of Copi-hold which is the custome is elder then the title of Dower so in our case the title of the second Lessee is derived out of the estate of the Conuzées and therefore shall not be clogg'd with the Exceptions of Lessee for life without impeachment of waste 4. This priviledge to cut the trées is annexed to the estates and goes along with the estate and therefore shall not begin before the Stranger be in possession 3. E. 3. 44. 45. Idles case 28. H. 8. Dyer 10. And it may be resembled to the cases of 16. E. 4. and 27. H. 8. Tenant in taile sold the trées if he dyes before the Party takes them he shall never have them because he hath stayd out his time But it may be objected that upon such a Lease he may reserve a rent as it is in Whitlocks case Co. lib. 8. to which I will offer this difference Lessée for life with power to make Leases for thrée lives reserving rent makes a Lease for thrée lives reserving rent this reservation is good because it is but a Declaration of the Lease and of the rent
but if there were no such clause of reserving rent then I conceive it were otherwise But admitting all this were against me yet the justification of the Defendant is not good for by the exception out of the exception the Lessor cannot take the benefit of the bodies of the trées because he will thereby deprive the Lessée of the croppings and loppings c. as in 28. H 8. Dyer Maleverell and Spynkes case Mylward of Lincolnes Inne for the Defendant And first he conceived that the Lessée for life without impeachment of waste might dispose of the trées in the same manner as Tenant in fée might doe with this difference that the disposall thereof ought to be in his life time and so it is resolved in Lewys Bowles case Co. lib. 11. 46. 2. The second matter in the case is whether the Lessée for life without impeachment of waste c. hath only an authority or an interest in the trées and I conceive that he hath an interest for his power is to make Leases of it or of any part for 21. years or 3. lives and that the Conuzors shall be seized to the use of such Lessées now when he makes a Lease excepting the trées the trées are not demised so that he remains still tenant for life without impeachment of waste for the trees 3. Excepting all Timber-trées but for fencing cropping and lopping it hath béene objected that this exception hath no forme It is a generall rule that if a man makes a Grant and in the close thereof except all that which was granted before the exception is voyd and this appears by 34. Ass Pl. 11. A Will was granted salvo stagno molendini so here the last exception takes away all that which was granted before 38. H. 6. 38. in a Quare impedit 28. H. 8. Dyer 19. by Mountague the cropping and lopping of trées belong to the Lessee like to the Duke of Norfolks case in 12. H. 7. 25. and 13. H. 7. 13. and 18. E. 4. 14. and albeit every grant shall be taken most strongly against the Grantor yet it shall have a reasonable intendment for the benefit of the Grantor and this appeares by 7. E. 4. 22. 17. E. 3. 7. 9. E. 4. 2. 21. E. 3. 43. so here the Exception shall have a reasonable intendment that he shall onely have such loppings and croppings as shall be bestowed upon the Park and no other Doderidge Iustice I conceive that by the words without impeachment of waste he hath interest in the trees as long as the estate continues 2. That when he makes a lease by the second power given to him this is derived out of the Fine and shall be good against him in the remainder 3. Because he hath power to dispose of the trées I conceive that when he makes a Lease excepting the trees this is a good exception 24. Eliz. C. B. A man made a Lease for years now he hath the wast of the trees if he assign over his estate excepting the trées the exception is voyd but in our case the Lessée hath not parted with his whole estate 4. So the sole question is whether he in remainder may cut the trées during the estate of thrée lives made by Henry Secheverell and he conceived that he might and so concluded for the Defendant Jones Iustice agréed that the Lessee for life without impeachment of wast hath interest in the trées but this interest is concomitant with his estate and determinable with it 2. I conceive that the exception is good Such things which a man hath by the Law he cannot resign to himselfe upon his assignment as the cropping and lopping of trées as if tenant in taile after possibility c. who is dispunishable of wast by fréedome of the Law assign over his estate reserving the trees he cannot cut the trees but here the Lessee hath a larger liberty then the Law gives to him and he by vertue of this may give away the trees but I conceive that if he had assigned over all his estate then he could not have excepted the trees but here he hath not granted over all his estate for he hath a remainder and may have an estate in possession afterwards and upon this Lease for three lives hee may reserve a rent to himselfe 3. I conceive that this Lease is derived partly out of his owne estate and hee hath not the meere nomination and partly out of the first Fine and therefore such Lessees shall be subject to all charges made by the Tenant for life who made the Lease as Statutes Recognizances c. to wit during the life of the first tenant for life 4. When he dyes who made the said Lease for three lifes whether he in remainder may cut the Trees during the said Lease and he conceived yet not without some doubt that he had no power during the lives of the sayd Lessees Whitlock Iustice agreed with the rest so that it was agreed by all 1. That it is a good exception 2. That the second lease is drawn out of the Fine And the question now is whether he in remainder without impeachment of waste with power to cut the trees hath power to cut them during the lives of the said three Lessees and the Councell was commanded to speake to this point only upon another day The same Term in the same Court. Foster and Taylers Case ERror was brought upon a Iudgement given in C. B. and after the Record was certified into this Court the Common-pleas amended a rasure of the Record which was there and now Bramston Sergeant movâ—â— for the Def. that the Record might be amended here Jones Iustice I doubt whether an inferior Court can amend after the Record is certified here for then it is but a piece of Parchment with them Bramston It is resolved that it may in Blackamores case Co. lib. 8. Doderidge the doubt is whether it may be amended after error assigned in the same Court for this takes away the benefit of the Law from the Plaintiff in the Writ of error Jones at another day said that if in nullo est erratum had been pleaded it could not have beene amended And as it is it cannot be amended because now it is assigned for error and the Plaintiffe was once intitled to his Writ of error which shall not be taken away from him afterwards and in 11. Jac. there was such a case moved by Yelverton the Kings Solicitor and agreed that it could not be amended And Pasch 17. Jac. one Abbingtons case upon a rasure as our case is it was doubted whether it could be amended and by Broom Secondary in the said case it was amended Doderidge in this case it may be amended albeit it be after error brought because it is only the error of the Clerk and it is amendable although the error be assigned in the same point and so was the opinion of the whole Court and therefore it was amended The same
case for there by the word Felony it was manifest what Felony he intended by the circumstances of the speech to wit that he ment such felony for which he might lose his life But the words here being generall of Felony it may be intended as well of a Mayhem aâ— of any other Felony for in an appeal of Mayhem he is arraigned as Felo Domici Regis 40. Ass and the other case of 44. Eliz. I do arrest him of flat Felony is not consonant with the reason of this case for there by the arrest his liberty is taken away but in this case there is no restraint and it is very hard to make these cases agree together for words are as variable as the faces of men c. Jones Justice agreed and he took it for a generall rule that where words carry a double sense and there is nothing to guide the sense more one way then another there the words are not actionable for finis est legis dirimire lites And therefore if one faith of another that he hath the Pox because the sense is ambiguous it shâ—ll be interpreted in mitiori sensu and therefore the words are not actionable to if one sayes of another that he hath stolen his Apples or his Corn because they may be Apples from the tree or Corn in the field the taking whereof is no felony but it was adjudged in the Common-Pleas when I was there that these words viz. Thou art a Thief and hast stolen my Corn are actionable by reason of the addition of the word Thiefe So that the speaking of words of a double sense are not actionable unlesse ex antecedentibus or consequentibus it can be collected that the words were spoken in pejori sensu Then the words in this case I charge you with Felony peradventure intend such a Felony for which he shall recover damages only which is Mayhem and therefore no action will lie These words Thou art forsworn are not actionable because forswearing may be in ordinary communication or in a Court of Justice and it shall be taken in mitiori sensu but if he sayes Thou art forsworn in a Court of Record it is actionable and if in this case he had charged him with Felony and sayd further that he had stolen c. they would have been actionable but here he only charges him with Felony which is an ambiguous word and also it is no direct affirmation and therefore not actionable and Iudgement was given Quod quaerens nil capiat per Billam The same Term in the same Court Goods Case GOod and his Wife brought a Writ of Error upon a Judgement given in the Court of the Castle of Windsor in an Action of Debt there which was entered Trin. Mich. 2 Car. Rot. 119. 120. and two Errors were assigned 1. Because the Judgement there is given in these words ideo consideratum ad judicatum assessum est whereas it ought to be onely by the word consideratum and the Judgement being the act of the Court the Law is precise in it and therefore it hath been resolved that a Judgement given by the word concessum is not good but it ought to be by the word consideratum 2. The costs ex incremento are not said to be given ad petitionem quaerentis aâ— it ought to be for beneficium nemini obt ruditur and therefore it hath been resolved in this Court that an alien born shall not have medietatem linguae if he does not request it and as to this it was answered of the other side that costs ought alwayes to be assâ—ssed ex petitione quaerentis and albeit here the request of the Plaintiff was not precisely put to increase of the costs yet at the beginning of the Judgement it is said Ideo ad petitionem quaerentis consâ—â—eratum c. And that costs shall be given ex in cremento so that this request goes to all the Sentence and by the unanimous opinion of all the Court the Judgement was reversed for both the Errourrs for 1. Ideo considerat adjudicat c. is not good the Judgement being the Act of the Court and the Law hath appointed in what words it shall be given and if other words should be suffered great incertainty and confusion would ensue and needâ—esse verbosity is the mother of difficulty 2. The increase of costs ought to be given ad petitionem quaerentis and the words ad petitionem quaerentis being misplaced will not supply this defect and Dammages ex incremento is alwayes given ad petitionem quaerent for as Bracton saith Omne judicium est trinus actus trium personarum judicis actoris rei and if in this case the usuall form should not be observed all would be in a confusion and in as much as the words are misplaced it is as if they had not been put in at all and therefore void like to a case put in Walsinghams case in Plowden where an averrement misplaced is as if there were none In this case the Judgement was reversed and Trin. 3 Car. in B. B. intr Hill 2 Car. Rot 849. a judgement was reversed because it was Ideo concessum consideratum est FINIS THE TABLE OF THE PRINCIPALL MATERS Contained in this BOOK A. ACceptance 113 Of a second Lease determines the first 9 Action 179 Where the Master shall be charged in an Action for the act of the Servant e contr 143 Action upon the case for words 35 36. 139. 140. 128 129. 148. 150. 177. 180. 184. 187. 207. 210. Action upon the case 116. 144. for pulling down a house 15 Against an Officer for his neglect 27 For laying too much waight wherby goods in another mans possession are lost 46 For stopping of a Water-course 166 Accessaries 107 Adjournment 33 Administration  not avoided by Averment 37. granted by a Lay-man 160 Administrators  Of the Wise shall have a Lease setled on the Wife not the Husband 106 Admittance 125 What the Heir may do before admittance 39 upon a surrender by a Disseisor 71 Addition  Of matter of Ornament shall not avoid a grant 57 Advowson 23 Agreement 134 construed according to the intention of the parties 182 Where to be joynt where severall 204 Alien  Where he may purchase where not 36 Amendment 21. 128. 203 204. Of the Postea and made according to the Pannel and the Record 102 Of a Record after the Record removed and Errour assigned 196 Annuity 87. 86 Pro consilio 135 Appropriation 144 145 Appeal  Of Mayhme 115 Plea in it 115 Assesment  by the major part of Parishoners shall bind the rest 197 Assumpsit 148. 182 183. 193. 206 against an Executor of an Assumpsit in the life of the Testator 30 31 32. generall indebitat Assumpsit 31 without consideration is nudum pactum 178 What shal be a good consideration to ground Assumpsit 183 184. Assise 111. Assets where a Lease for years to a Copyholder in the hand of
doth much concern the Infant in as much as by his false plea he shall be bound to â—nswer of his own Goods if he hath no Goods of his Testator and therfore in a 11 E. 4. 1. he hath remedy against his Guardian for pleading a false Pâ—ea And by Doderidge if he hath no Guardian the Court shâ—ll appoint him a Guardian And if an Infant bring an action as Executor by Attorney and hath Iudgment to recover this is not erronious because it is for his benefit so per Curiam the difference is where he is Plaintiff and where he is Defendant And there is another difference where he is Executor and where not for being Executor his Plea might have been more prejudiciall to him and Coke lib 5. Russels case was agreed for good Law for an Infant may be Executor and may take money for a Debt and make a Release and give an Acquittance but not without a true consideration and payment of the money The same Term in the same Court. Thomas Middletons Case THomas Middleton alias Strickland was condemned for a Robbery at the Where a Felon is condemned and elcapeth and is re-taken upon confession that he is the same party execution may be awarded The Sheriff of Middlesex fined for not attending the Court. Assises in Oxford after which he made an escape and being taken again he was brought to the Bar and upon his own confession that he was the same party who did the Robbery and that he was condemned for it the Court awarded execution And Mountague chief Iustice said thâ—t was no new case for it had been in experience in the time of E. 3. and 9 H. 4. and 5. E. 4. that the Court might so do upon his own confession And because the Sheriff of Middlesex did not give his attendance upon the Court in this case nor came when he was called the Court fined him 10 l And Mountage said that it shall be levied by proces out of the Court and also all other Fines there assessed and not estreated into the Exchequer for then the party might compound for a matter of 20 s. and so the King be deceived The same Term in the same Court. Gouldwells Case IOhn Gouldwell seised of Land in Socage Tenure devised them to his Wife for life the Remainder to John Gouldwell his Son and his Heirs upon Condition that after the death of his Wife he shall grant a Rent-charge to Steven Gouldwell and his Heirs and if John Gouldwell dye withâ—ut Heirs of his body that the Land shall remain to Steven Gouldwell in Tail the Wife dieth John Gouldwell grants the Rent accordingly Stephen Gouldwell grants the Rent over John Gouldwell dies without Heir of his body and the second Grantee distrains for the Rent arrear and Stephen Gouldwell brings a Replevin And it was urged by the Counsell for the Plaintiff that this Rent shall not have continuance longer then the particular Estate and cited 11 H. 7. 21. Edriâ—ks case that if Tenant in Tail acknowledge a Statute this shall continue but during his life and Dyer 48. 212. But it was agreed per Curiam that the Grantee was in by the Devisor and not by the Tenant in Tail and therfore the Grant may endure for ever But for the second point this being to him in Remainder the intent of the Demisor is therby explained that he shall have the Rent only untill the Remainder come in possession for now the Rent shall be drowned in the Land by unity of possession 3. It was agreed and resolved that by the granting of the Kent over this was a confirmation And Mountague said that it was a confirmation during the Estate Tail and shall enure as a new grant afterwards And Haughton and Doderidge said that they would not take benefit of the grant over by way of confirmation for as Haughton said this enures only ought of the Devisor and he hath power to charge the Land in what manner he pleaseth and it is like to an usuall case as if a man makes a Feoffment in Fee to the use of one for life the Remainder over with power to make Leases and after he makes a Lease this is good against Tenant for life and him in the Remainder also And I have considered what the intent of the Devisor should be in granting of this Rent and it seems to me that in as much as the Land is limited in Tail and the Rent in Fee that by this the Grantee shall have power to grant or dispose of the Rent in what manner he would but if the Land had been in Fee I should have construed his intent to have been that the Grantee should have the Rent only untill the Remainder fall to which Doderidge agreed who said that we are in the case of a Will and this construction stands with the intent of the Devisor and stands with the Statute which saies Quod voluntas Donatoris est observanda The same Term in the same Court. Baskervill versus Brook A Man became Bail for another upon a Latitat in the Kings Bench and before Iudgment the Bail let his Lands for valuable consideration Difference between baile in the Kings Bench and the Common Pleas. And how a bail shall relate And afterwards Iudgment was given for the Plaintiff And now it was debated whether the Land Leased shall be liable to the Bailment and it was said by Glanvill of Councell with the Lessee that it ought not to be liable and he put a difference between a Bailment in this Court and a Bailment in the Common Pleas for there the Suit cometh by originall and the certainty of the debt or demand appeareth in the declaration and therfore then it is certainly known from the begining of the Bailement for what the Bail shall be bound But in this Court upon the Latitat there is not any certainty untill Iudgment given before which the Land is not bound and now it is in another mans hands and therfore â—ot liable and he puts Hoes case Co. lib. 5. 70. where iâ— was resolved that where the Plaintiff releaseth to the Bail oâ— the Defendant upon a Suit in the Kings Bench before Iudgment all Actions Duties and Demands that this Release shall not bar the Plaintiff for there is not any ceâ—tain duty by the Bail before Iudgment and therfore it cannot be a Release and he citeâ— the case of 21 E. 3. 32. upon an account and said that it was like to a second Iudgment in that which reduceth all to a certainty and therfor c. But it was said by Mountague and Crook that the Lessee shall be bound for otherwise many Bailments and Iudgments shall be defeated which will bring a great Inconvenience And Mountague said that it was like to the case of a bargain and sale of Land which after it is Inrolled within six moneths shall relate to the beginning of the Bargain so upon the Iudgment given relation is made from the time