be at one time customary and go according to the custom and at another guildable And the whole Court Crooke only being absent were against him that the custom was good Hicks against Webbe 83. IN Trespass for a way the Defendant did justifie and said that he had a way not only ire equitare averia sua fugare but also carrucis carreragiis carriare The Plaintiff traversed it absque hoc that he had a way not only ire equitare c. in the words aforesaid and thereupon they were at issue and found for the Plaintiff Glynn moved in arrest of Judgment that the Issue was ill joyned because it was not a direct affirmative but by inducement only And the whole Court was against him And Justice Iones said That if I say that not only Mr. Glynn hath been at such a place but also Mr. Iones without doubt it is a good affirmative that both have been there But they all agreed that the pleading was more elegant than formal 84. In the Case betwixt Brooke and Boothe Justice Barckley said that it is a Rule That if there be two things alledged and one of necessity ought to be alledged and he relies on-only upon the other it is no double Plea As if a man plead a Feoffment with Warranty and relieth upon the Warranty it is not double 85. Justice Barckley said That the Court of the Exchequer they may make a Lease for three Lives by the Exchequer-Seal Clarke against Spurden 86. IN a Writ of Error to reverse a Judgment given in the Court of Common Pleas the case was shortly thus A. wife of I.S. intestate promiseth to B. to whom Adnistration was committed that if he shall relinquish the Administration at the request of C. and suffer A. to Administer that A. will discharge B. of two Bonds In Assumpsit brought by B. in the common Pleas he alledged that he did renounce Administration and suffered A. to Administer and that A. had not discharged him of the two Bonds And it was found for the Plaintiff And thereupon Error was brought because B. doth not shew that he did renounce the Administration at the request of C. And Rolls for the Plaintiff in the writ of Error did assign the same for Error Justice Barckley all the other Justices being absent held that it was Error for consideration is a thing meritorious and all ought to be performed as well the request on the part of C. as the permission of the part of B. which ought to be shewed For perhaps B. was compelled to relinquish it in the Ecclesiastical Court as it might be for of right the wife ought to Administer And therefore it ought to have been averred that it was at the request of C. And therefore if it had been that he should renounce at the charge of C. it ought to be averred that it was at the charge of C. And it was adjourned 87. A man Libelled in the Spiritual Court for Tithes for barren cattle and it was moved for a Prohibition upon this suggestion viz. That he had not other cattle than those which he bred for the Plough and Pale and thereupon Barckley being alone there granted a Prohibition And the same Parson also Libelled for Tithes of Conies and for that also he granted a Prohibition for they are not Titheable if not by custome And here Barckley said That if Land be Titheable and the Tenant doth not plough it and manure it yet the Parson may sue for Tithes in the Ecclesiastical Court North against Musgrave 88. IN Debt upon the Statute of 1 2 Phil. Mar. c. 12. the words of which Statute are That no man shall take for keeping in pound impounding or poundage of any manner of distress above the sum of four pence upon pain of forfeiture of five pounds to be paid to the party grieved And the Plaintiff shewed that his Cattle were distreyned and impounded and that the Defendant took of him ten pence for the poundage And thereupon the Plaintiff brought an Action for the penalty of five pounds and found for the Plaintiff And the Judgment was That he should recover the five pounds and damages ultra praeter the mony taken for the poundage And thereupon a Writ of Error was brought and three things assigned for Error First because the Action was brought for the penalty of five pounds only and not for the six pence which was taken above the allowance of the Statute which ought not to be divided Which was answered by Justice Barckley all the other Justices being absent That notwithstanding it is good for true it is that he cannot bring his Action for fifty shillings part of the penalty because it is entire but here are two several penalties and he may divide and disjoyn them if he will or he may wave the six pence For quilibet potest renunciare juri pro se introducto The second was That he doth not demand that which is ultra praeter the four pence given by the Statute and yet the Judgment is given for that which is not good To which Justice Barckley said That the Judgment was good For no judgment is given for that which is ultra praeter the four pence but only for the four pounds because he doth not demand it And we cannot judge the Judgment to be erroneous by Implication The third Objection was That Costs and Damages are given which ought not to be upon a penal Law For he ought not to have more than the Statute giveth and therefore upon the Statute of Perjury no Costs are given so upon the Statute of Gloucester of Wast the Plaintiff shall recover no more than the treble value But Rolls who was on the contrary said That there are many presidents in the common Pleas that Damages have been given upon this Statute But Barckley and Iones who afterwards came and seemed to agree with Justice Barckley in the whole was against it That no Damages ought to be given and desired that the Presidents might be viewed But here Rolls offered this difference Where the penalty given by the Statute is certain as here upon which he may bring Debt there he shall recover Damages but where the penalty is uncertain as upon the Statute of Gloucester for treble damages the Statute which giveth the treble value and the like there because it is incertain he shall have no more Barckley asked Mr. Hoddesdon If the Informer should recover Damages And he and Keeling Clerk of the Crown answered No but said Damages should be given against him and it was adjourned 89. Skinner Libelled in the Ecclesiastical Court for thâ— Tithes of Roots of a Coppice rooted up And Porter prayed Prohibition And it was said by Iones and Barckley Justiceâ—â— no other Justice being present That if cause were not shewed before such a day that a Prohibition should be awarded because it is ad exheredationem and utter destruction of 〈◊〉 And the Opinion was that the
pay to the Plaintiff such costs as shall be delivered by note of the Attorneys hand and it was here adjudged that there needs no averment because it was to be done by a stranger but otherwise it had been if it had been to be done by the Plaintiff himself and by the Justices the only question here is Whether the Attorney shall be taken for a stranger or not Justice Foster that the Defendant ought first to make his election which is to pay either the eight pound which is certain or the costs which shall be delivered by a note of the Attorney Besides here the Attorney is a stranger because the suit is ended and to the Defendant he is totally a stranger and therefore he ought to seek him to have the note delivered to him But notwithstanding he did conceive that as this Case is Judgment ought to be stayed because the Plaintiff hath not well entitled himself to the Action because he hath not averred that there were costs expended in such a suit and in the Case ciâ—ed by Rolls the Plaintiff did aver the costs incertain Justice Crawley it is without question the Defendant hath Election in this case but as this Case is he ought to have notice and if the Case had been such that the Plaintiff himself had been to have delivered the note then without question there ought to be notice and here the Attorney is no stranger but is a servant to the Plaintiff as every Attorney is And I conceive that if the Case had been that the Plaintiffs servant had been to deliver such a note that there notice ought to be given And for want thereof in this Case I conceive that the Judgment ought to be stayed Bankes Chief Justice I doubt upon the different Opinions of my Brethren whether Judgment ought to be stayed or not I agree that the Defendant hath Election in this Case and further I agree that where a thing is to be done by the Plaintiff or Dâ—fendant himself there notice ought to be given but otherwise in Case of a stranger and upon this difference stands our Books as 10 H. 7. and all our Books but the Question here is Whether the Attorney be a stranger or not and I conceive that it is not in the power of the Plaintiff to compel him to bring the note and is all one as a stranger and therefore the Defendant ought to seek the Attorney to deliver this unto him but the Case was adjourned because Justice Reeve was not present in Court 187. A. said to B. Thou hast killed my Brother for which B. ought an Action upon the Case and by Serjeant Whitfield it will not lie because it is not averred that the Brother of the Defendant was dead at the time and if he were not dead then it is no slander because the Plaintiff is not in danger for it 4 Rep. 16. a. Snaggs Case Aâ—â— Serjeant Evers contrary because the words imply that he is dead and besides in the Innuendo it is also shewed that he was â—ead for that is the innuendo C. c. fratrem nuper mortuum But by the whole Court the words are not actionable without averment that he was dead and the Innuendo doth not help it Hobarts Rep. p. 8. Miles and Iacobs Case acc 188. A Frenchman had his Ship taken by a Dunkirk upon the Sea and before that it was brought infra praesidia of the King of Spain it was driven by a contrary wind to Waymouth and there the Dunkirk sold the Ship and Goods to a Lord in Waymouth whereupon the Frenchman having notice of his ship and goods to be there libelled in the Admiralty pro interesse suo against the Lord the Vendee of the Ship shewing that it was taken by Piracie and not by Letters of Mart as was pretended and thereupon a Prohibition was prayed and by Foster a Prohibition ought to be granted for whether the Dunkirk took it by Letters of Mart or as a Pirate it is not material the sale being upon the Land and infra corpus comitatus and so he said it was adjudged in such a case for whether the sale were good or not Non constat Justice Crawley conceived it should be hard that the sale being void if it were taken as a Pirate or by Letters of Mart not being brought infra prâ—sidia of the King of Spain that by this means you should take away the Jurisdiction of the Admiralty but he said he did conceive it more fit for the Frenchman to have brought a Replevin which he said lieth of a Ship or Trover and Conversion and so have had the matter found specially Bankes Chief Justice conceived that there should be a Prohibition otherwise upon such pretence that it was not lawful prize and by consequence the sale void you would utterly take away the Jurisdiction of the Common Law But because there was some misdemeanor in the Vendee the Court would not award a Prohibition but awarded that the buyer should have convenient time given him by the Court of Admiralty to find out the seller to maintain his Title and in the mean time that he give good caution in the Admiralty that if it be found against him that then he restore the ship with damages But note the Court did agree Justice Reeve only absent that if a ship be taken by Piracie or if by Letters of Mart and be not brought infra praesidia of that King by whose subject it was taken that it is no lawful prize and the property not altered and therefore the sale void and that was said by the Prâ—ctoâ— of the Frenchman to be the Law of the Admiralty Rudston and Yates Case 189. RVdston brought an Action of debt upon an Obligation against Yates for not performance of an Award according to the Condition of the Bond the Defendant pleaded that the Arbitrators Non fecerunt arbitrium upon which they were at issue and found for the Plaintiff and it was now moved in arrest of Judgment by Trevor that the Defendant was an Infant and therefore that the submission was void and by consequence the Bond which did depend upon it and he conceived the submission void First because it is a Contract and an Infant cannot contract and he took a difference betwixt acts done which are ex provisione legis and acts done ex provisione of the Infant an Infant may bind himself for his diet schooling and necessary apparel for that is the provision of the Law for his maintenance but a Bond for other matters or Contracts of other nature which are of his own provision those he cannot do Secondly an Arbitrator is a Judge and if an Infant should be permitted to make an Arbitrator he should make a Judge who by the Law is not permitted to make an Attorny which were against reason Thirdly it is against the nature of a Contract which must be reciprocally binding here the Infant should not be bound and the man of full
age should be which should be a great mischief And where it is objected it may be for his benefit To that he answered that the Law will not leave that to him to judge what shall be for his benefit what not and to this purpose amongst other he cited it to be adjudged That where an Infant took a shop for his trading rendring renâ— and in debt brought for the rent the Infant pleaded his Infancie the other replied that it was for his benefit and livâ—lihood and yet it was adjudged for the Infant vid. 13 H. 4. 12. 10 H. 6. 14. Books in the point and therefore he prayed that Judgment might be stayed Bramston Heath and Mallet Justices Barckley being then impeached for High Treason by the Parliament were clear of Opinion That the submission by an Infant was void and they all agreed That if the Infant was not bound that the man of full age should not be bound so that it should be either totally good or totally void But Ward who was of Counsel with the Plaintiff said that the case was not that the infant submitted himself to the award but that a man of full age bound himself that the Infant should perform the Award which was said by the Court quite to alter the Case To that Trevor said that the case is all one for there cannot be an Award if there be not first submission and then the submission being void the Award will be void and so by consequence the Bond and to prove it he cited 10 Rep. 171. b. where it was adjudged that the non-performance of a void Award did not forfeit the Bonâ— and many other Cases to that purpose And the Court agreed That if the Condition of a Bond recite that where an Infaâ—â— hath submitted himself to an Award that the Defendant doth bind himself that the Infant shall perform it that the samâ— makes the Bond void because the submission being void allâ— void and therefore day was given to view the Record 190. A. and B. are indicted for murder B. flies and A. brings a Certiorare to remove the Indictment into the Kingâ— Bench Whether the whole Record be removed or but partâ— Keeling the younger said that all is removed and that theâ— cannot be a Transcript in this Case because he said the Writ saith Recordum processus cum omnibus ea tangentibus but the Chief Justice doubted of it and he said that the Opinion of Markham in one of our Books is against it and he said it should be a mischievous case if it should be so for so the other might be attainted here by Outlawry who knew not of it and note that Bramston Chief Justice said That the Clerk of the Assises might bring in the Indictment propriis manibus if he would without a Certiorare 190. A man was outlawed for Murder and died his Administrator brought a Writ of Error to reverse the Outlawry and it was prayed that he might appear by Atturney and by Bramston Chief Justice and Justice Mallet none other being then in Court it was granted that he might for they said that the reason wherefore the party himself was bound to appear in proper person is that he may stand rectus in Curia and that he may answer to the matter in fact which reason fails in this case and therefore the Administrator may Appear by Attorney 191. One said of Mr. Hawes these words viz. My Cozen Hawes hath spoken against the Book of Common Prayer and said it is not fit to be read in the Church upon which Hawes brought an Action upon the case and shewed how that he was cited into the Ecclesiastical Court by the Defendant and had paid several sums c. The Defendant denied the speaking of these words upon which they were at issue and it was found for the Plaintiff and now it was moved by Keeling for stay of Judgment That the words are not Actionable as to say A man hath spoken against a penal Law which doth not inflict punishment of life and member will not bear Action and the punishment which is inflicted by the Statute of 1 Eliz. cap. 2. is pecuniary only and not corporal but in default of payment of the sum that he shall be imprisoned for such a time which meerly depends upon the non-payment and is incertain And by the same reason he said to say of a man that he hath not Bowe and Arrows in his house or not a Gun or to say of a man That he hath spoken against any penal Law whatsoever would bear Action which should be unreasonable wherefore he prayed that Judgment might be stayed Brown contrary the words are actionable because that if it was true that he spoke them he subjected himself to imprisonment by the Statute of 1 Eliz. although not directly yet in default of payment so as there might be corporal damage and to prove it he cited Anne Davies Case 4 Rep. 17. a. where it is said that to say that a woman hath a Bastard will bear Action because that if it were true she was punishable by the Statute of 18 Eliz. Further he said that if the words are not Actionable yet the Action will lie for the special damage which the Plaintiff hath suffered in the Ecclesiastical Court Justice Mallet the words of themselves are not Actionable because that the corporal punishment given by the Statute doth depend upon the non-payment and is not absolute of it self but the Action will lie for the temporal damage and therefore he conceived that the Plaintiff ought to have Judgment Justice Heath that the Plaintiff ought to have Judgment for the pecuniary Mulct is a good cause of Action there being in default of payment a corporal punishment given But here is not only injuria but damnum also which are the foundations of the Action upon the Case and if the words of themselves be not Actionable yet the Action will lie for the damage that the Plaintiff here suffered by the citation in the spiritual Court Bramston Chief Justice doubted it and he conceived it hard that the words should bear Action because as he said the corporal punishment doth meerly depend upon the not payment and upon the same reason words upon every penal Law should bear Action and therefore this being a leading Case he took time to consider of it It was said To say of a man that he had received a Romish Priest was adjudged Actionable and that was agreed because it is Felony At another day the Case was moved again and Justice Mallet was of the same Opinion as before viz. That the words themselves were not actionable but for the special damage that the Action would lie and he said that one said of another That he was a Recusant for which an Action was brought in the Common Pleas and he conceived the Action would not lie Justice Heath was of the same Opinion as before that the words oâ— themselves would bear Actioâ— and
â—e conceived That if a man speak such words of another that if they were true would make him liable to a pecuniary or corporal punishment that they would bear an Action and here the Plaintiff was endamaged and therefore without question they will bear an Action Bramston Chief Justice as before also That the words are not Actionable neither of themselves nor for the damage not of themselves for no words which subject a man to a pecuniary Mulct if they were true either at the Common Law or by the Statute will bear an Action For by the same reason to say that a man hath erected a Cottage or to say that a man hath committed a Riot would bear Action 37 Eliz. in the Common Pleas. One said of another That he did assault me and took away my Purse from me and upon Not Guilty pleaded it was found for the Plaintiff and Judgment was stayed because he might take his purse from him and yet be but a Trespasser So as it appeareth that words ought to have a favourable construction to avoid multiplicity of Suits and if these words would bear an Action by the same reason words spoken against every penal Law should bear Action which against the reason given before should be a means to increase Suits And he took it for a rule If the words import scandal of themselves by which damage may accrue then the words will bear action without damage otherwise not and therefore the damage here shall not make the words Actionable which of themselves are not actionable as I conceive they are not Besides by this means the Act of a third person should prejudice me which is against reason as here the Act of the Ordinary by the Citation and damage thereupon accrued which perhaps might be ex officio only for which cause he conceived that Judgment should be stayed but because there were two Judges against one Judgment was given for the Plaintiff Mich. 17º of the King in the Common Pleas. 192. BAine brought an Action upon the Case against for these words viz. That he kept a false Bushel by which he did cheat and cosen the poor he said in his Declaration That he was a Farmor of certain lands and used to sow those lands and to sell the Corn growing on them and thereby per majorem partem used to maintain himself and his family and that those words were spoken to certain persons who used to buy of him and that by reason of those words that he had lost their custom the parties were at issue upon the words and found for the Plaintiff and it was moved by Serjeant Gotbold in arrest of Judgment that the words were not actionable because that the Plaintiff doth not alledge that he kept the false Bushel knowing the same to be a false Bushel for if he did not know it to be a false Bushel he was not punishable and by consequence no Action will lie and compared it to the case Where a man keeps a Dog that useth to worry sheep but he doth not know of it no Action lieth against him for it but yet notwithstanding Bankes chief Justice and Crawley were of Opinion that the words were Actionable for of necessity it ought to be taken that he kept the Bushel knowingly for otherwise it is no cousenage and here being special damage alledged which was the loss of his custom as he had pleaded it the maintenance of his livelihood they hold the words clearly actionable gave Judgment accordingly Note the other Judges were in Parliament 193. Doctor Brownlow brought an Action upon the case for words against 〈◊〉 spoken of him as a Physitian which words were agreed to be Actionable but yet Serjeant Gotbold conceived that although that the words were actionable that the Plaintiff had not well intitled himself to his Action because although that he said that he is in Medicinis Doctor yet because he doth not shew that he was licensâ—d by the Colledge of Physitians in London or that he was a Grâ—dâ—ate of the Universities according to the Statute of 14. H. 8. cap. 5. that therefore the action will not lie see Doctor Bâ—unchams case 8 Rep. 113. â— where he shewed the Statute aâ—orâ—said and pleaded it accordingly that he was a Graduate of the University of Cambridge wherefore he prayed that Judgment might be stayed Bankes Chief Justice and Crawley doubted whether the Act were a general Act or not for if it were a particular Act he ought to have pleaded it otherwise that they could not take notice of it but upon reading of the Statute in Court they agreed that it was a general Act wherefore they gave day to the party to maintain his Plea 194. By Bankes Chief Justice upon an Elegit there needs no Liberate otherwise upon a Statute and note the Elegit doth except Averia Corucae Dye and Olives Case 195. IN an Action of false Imprisonment the Defendant shewed that London hath a Court of Record by prescription and that the same was confirmed by Act of Parliament and that he was one of the Serjeants of the Mace of that Court and that he had a Warrant directed unto him out of that Court to arrest the Plaintiff pro quodam contemptu committed to the Court for not paying twenty shillings to K. B. and that in pursuance of the command of the Court he accordingly did arrest the Plaintiff Maynard that the justification was not good because the Defendant doth not shew what the contempt was nor in what Action so as it might appear to the Court whether they had Jurisdiction or not And if such general Plea should be tolerated every Court would usurp Jurisdiction and every Officer would justifie where the proceeding is Câ—ram non Iudice and void and thereby the Oâ—â—icer liable to false Imprisonment according to the case of the Marshalâ—ee in the 10 Rep. And here the pleading is incertain that the Jury cannot try it and he put the case of the Mayoâ— of Plymouth The Mayor hath Jurisâ—iction in Dâ—bt and Trespass is brought there which is Coram non Iudice But in this Action the parâ—y is imprisoned pro quodam contemptu shall this be a good Justification in a false imprisonment brought against the Officer certainly no. Serjeant Rolls contrary that the Plea was good because that the Defendant hath shewed that the Court was holden secundum consuetudinem and therefore it shall be intended that the contemptâ— was committed in a Case within their Jurisdiction and therefore he cited the 8 Rep. Turners Case to which Maynard replied that that doth not make it good because that issue cannot be taken upon it At another day the Judges gave their Opinions Justice Mallet That the Plea is not good because that it is too general and non constat whether within their Jurisdiction or not and where it was objected that he is a Minister of the Court and ought to obey their commands and therefore it should go hard that he
harmless and doth not shew how as he ought to have done but he ought to have pleaded non damnificatus and that had been good without any further shewing which he hath not done and therefore the Plea was not good and it was agreed that the same was not helped by the Demurrer because the same was matter of substance but the Plaintiff might take advantage of it notwithstanding and therefore Judgment was given for the Plaintiff 201. In Debt Judgment was given against the principal whereupon a Scire facias issued forth against the Bail and Judgment upon Nihil dicit was given against them whereupon a Writ of Error was brought and Error assigned that there was no warrant of Attorny filed for the Plaintiff and upon debate whether the warrant of Attorny ought to be filed or on the Court seemed to incline their opinion upon these differences but gave not any Judgment First where it may appear to the Court that there was a warrant of Attorny and where not If there was not any warrant of Attorny there they cannot order the making of one but if there was one they conceived that they might order the filing of it Second difference Where the warrant wanting were of the part of the Defendant and where of the part of the Plaintiff in the Writ of Error if it be of the part of the Plaintiff such a warrant of Attorney shall not be filed because he shall not take advantage of his own wrong the last thing was where the Record by the lachess of the Plaintiff in the Writ of Error is not certified in due time there the warrant of Attorny shall be filed And the Books cited to warrant these differences were 2 H. 8. 28. 7 H. 4. 16. 2 Eliz. Dyer 180. 5 Eliz Dyer 225. 1 2 Phil. Mar. Dyer 105. 15 Eliz. Dyer 330. 20 Eliz. Dyer 363. and 6. El. Dyer 230. Note that it was said by Crawley That it is all one wheâ—e there is no warrant of Attorney and where there is and he said there are many Presidents accordingly and that the same is holpen by the Statute of 8 H. 6. cap. 1 2. But Bankes Chief Justice contrary That it is not helped by the Statute of H. 6. and so it is resolved in the 8 Rep. 162. And he caused the Proâ—onotharies so search Presidents but yet he said they should not sway him against the printed Law because they might pass sub silentio And the Chief Justice observed also that the same is not holpen by the Statute of 18 Eliz. for that helps the want of warrant of Attorny after Verdict only and not upon Nihil dicit as this case is or upon wager of Law or upon confession or non sum informatus And the Court said That it shall be a mischievous case that Attornies should be suffered to file their warrants of Attorny when they pleased and therefore they gave warning that none should be filed after the Term and willed that the Statute of 18 Eliz. cap. 16. should be put in execution Mich. 17º Car. in the Kings Bench. 202. ACertiorare was directed to the Commissioners of Sewers who according to the Writ made a Certificate to which Certificate divers exceptions were taken by Saint-Iohn the Kings Sollicitor First that it appeareth not by the Certificate that the Commission was under the Great Seal of England as it ought to be by the Statute of 23 H. 8. cap. 5. Secondly the Certificate doth not express the names of the Jurors nor shew that there were twelve sworn who made the prâ—sentment as by the Law it ought to be but only quod praesentatum fuit per Iurator ' so that there might be but two or three Thirdly it appears by the Certificate that it was presented by the Jury That the Plaintiff ought to repair such a Wall but it is not shewed for what cause either by reason of his Land prescription or otherwise Fourthly they present that there wants reparation but doth not shew that it lies within the Level and Commission Fifthly there was an Assesment without a presentment contrary to the Statute for it is presented that such a Wall wanted reparation and the Commissioners assessed the Plaintiff for reparation of that Wall and another for which there was no presentment Sixthly the Tax was laid upon the person whereas by the Statute it ought to be laid upon the Laâ—d Seventhly there was no notâ—ce given to the Plaintiff which as he conceived ought to have been by reason of the great penalty which folâ—ows for non-payment of the Assesment for by the Statute the Land ought to be sold for want of payment These were the Principal exceptions taken by the Sollicitor Lane thâ— Princes Attorney took other exceptions First because they assess the Plaintiff upon information for they said that they wâ—re credibly informed that such a Wall wanted reparation and that the Plaintiff ought for to repair it whereas they ought to have done it upon presentment and not upon information or their private knowledge Secondly that they assessed the Plaintiff and for not payment sold the distress which by the Law they ought not to do for that enables them only to distrein and it was intended by the Statute that a Replevin might be brought in the Case for it gives Avowâ—y or Justification of a distress taken by reason of the Commission of Sewers and there ought to be a Replevin otherwise no avowty and if Sale of the distress should be suffered then that priviledge given by the Parliament should be taken away which is not reasonable Keeling of the same side and he said that it was adjudged Pasch. 14 Car in this Court in Hungers case That the certificate of the Commissioners was insufficient because that it was not shewed that the Commission was under the Great Sâ—al of England as by the Statute it ought to be and the Judges then in Court viz. Mallet Heath and Bramston strongly inclined to many of the exceptions but chiefly to that that there wanted virtute Literarum Paten But day was given to hear Counsel of the other side 203. A man acknowledgeth a Statute and afterwards grants a Rent-charge the Statute is afterwards satisfied Whether the grantee of the rent may distrein without suing a Scire facias was the Question which was twice or thrice debated at the Bar but because it was before that Mallet the puisne Judge was Judge the Court gave order that it should be argued again Thornedike against Turpington in the Common Pleas. 204. IN Debt upon a Bond the Defendant demanded Oyer of the Condition and had it which was that the Defendant should pay so much in a house of the Plaintiffs at Lincoln The Defendant pleaded payment at Lincoln aforesaid upon which they were at issue and the Venire facias was De Vicines civitatis Lincoln and found for the Plaintiff And now it was moved in arrest of Judgment that it was a mis-trial because the Venire
Judgment 226. A man libelled for Tithes in the Ecclesiastical Court in his libel he set forth how that the Tythes were set forth but that the Defendant did stop and hinder the Plaintiff to carry them away any other way than through the Defendants Yard and when he was carrying them that way the Defendant being an Officer did attach them for an Assessment to the poor and did convert them to his own use upon which a Prohibition was prayed because that the Tythes being set forth an Action of Trespass lieth at the Common Law but Serjeant Clarke was against the Prohibition because that the Libel is grounded upon the Statute of 2 E. 6. cap. 13. which is That if the Parson c. be stopt or let in carrying his Tythes that the party so stopping or letting should pay the double value to be recovered before the Ecclesiastical Judge But notwithstanding that it was resolved that a Prohibition should issue because he that will sue upon the Statute ought to mention the Statute or to make his demand secundum formam Statuti But here the Plaintiff doth not sue upon the Statute for he doth not mention it nor the double value as he ought for they all agreed that he ought to ground his Action upon the express clause of the Statute for the double value wherefore a Prohibition was granted 227. It was resolved upon the Certificate of the Pronotharies viz. Gulson Cory and Farmer that the custom of the Court was That if a man sueth another for such a sum or thing for which the Plaintiff ought to have special Bail and doth not declare against him in three Terms that the Defendant being brought to the Bar by a Habeas Corpus ought to be discharged upon an ordinary appearance and that they said is the course and practice in the Kings Bench and that was now resolved to be as a certain Rule from thenceforth in this Court by all the Judges viz. Foster Reeve Crawley and Bankes Chief Justice 228. It was said by Justice Reeve that if A. being seised of an Advowson grant the next presentation to B. and B. makes a Bond to A. to pay him twenty pounds when the Church shall fall void that that is Simony and so he said it was adjudged in this Court in Pooles Case and the whole Court did agree that it was Simony for otherwise by this way the Statute should be utterly defeated and note that it was said by Serjeant Rolls at the Bar That it had been often â—adjudged that the Obligor could not avoid such an Obligaion without special averment Palme against Hudde 329. PAlme brought a Quare impedit against Hudde and the case was thus It was debated by Serjeant Godbold the Plaintiff brought a Quare impedit against the Defendant the Defendant shewed how the King was intitled by reason of Simony and that the King had presented the Defendant and that he was persona impersonata of the presentation of the King the Plaintiff denied the Simoniacal contract upon which they were at issue and it was found for the Defendant so as that Judgment was given for the Defendant And the same Plaintiff brought this second Quare impedit against the same Defendant who pleaded all the matter before and the Judgment but did not say that he was now persona impersonata but that he was tunc persona impersonata and that was said by the Serjeant to be naught for he said that at the Common Law no Parson might plead to the Title of the Parsonage but only in the abatement of the Wrâ—t or such like Pleas sâ—e Lib. Entries 503 and 522. and 8 Rep Foxes case and he said that that is a Plea at the Common Law and not upon the Statutâ— of 25 E. 3. for then he ought to have pleaded that Est persona impersonata and not that fuit and that to enable him to plead to the Title of the Patronage according to the Statute for he who will plead according to the Statute ought to pursue it or otherwise his Plea is not good he cannot plead to the Title of the Patronage without shewing that he is persona impersonata the Books are clear 7 Rep. 25 26. 15 H. 7. 6 and 7. 2 R. 2. Incumbt 4. 4 H 8. Dyer 1. 27. And to say that tunc fuit persona impersonata is but an argumentative Plea that because he was then so he is now and such Pâ—ea is not good for it ought to be positive and not by way of argument or illation Besides it may be that he was persona impersonata tunc and not tunc for he might resigne or be deprived after or the like and therefore it is a Non sequitur that he was persona impersonata then and therefore now and it shall be intended rather that he is not persona impersonata nunc for paroles font Plea and the Plea of every man shall be taken strong against himself wherefore he concluded that the Plea was not good Foster agreed that the Parson cannot plead to the Title of the Patronage without shewing that he is persona-impersonata but the Question here is as he conceived Whether the Plaintiff be not stopped by this recovery and Judgment yet remaining in force to say the contrary Bankes Chief Justice It is true that generally the Parson without shewing that he is persona impersonata cannot plead to the Title of the Patronage But whether the Defendant cannot plead the Record and Judgment yet in force against the Plaintiff without shewing that he is persona impersonata that is the Question here Note it was the first time it was argued Harwel against Burwel in a Replevin in the Kings Bench. 230. THe Case was thus A man acknowledged a Statute to the Plaintiff and afterwards granted a Rent-charge to the Defendant afterwards the Statute is extended and safied and then the grantee of the Rent distreins And whether he might distrein without bringing a Scire facias was the Question And by Serjeant Rolls he cannot distrein without a Scire facias brought and he took it for a Rule That because the Conusee came in by matter of Record he ought not to be put out or disturbed without matter of Record for if that should be suffered it would be a great discouragement to Debtees to take this manner of security for their debts and the Conusor cannot enter without bringing a Scire facias and if the Conusor himself cannot enter it is a good argument à fortiori that the grantee of a rent cannot distrein without a Scire facias and that the conusor himself cannot enter without bringing a Scire facias vid. 15 H. 7. 15. 4 Rep. 67. Fullwoods case And the grantee of the Rent is as well within the ground and rule before put as the conusor himself and therefore he compared the case to the case in the 10 Rep. 92. that he who claims under another ought to shew the original conveyance But he took
a difference where the party comes in by act of Law and where by the act of the party he who comes in by act of Law shall not be put to his Scire facias for so he should be without remedy and if that should be permitted it should a be subtile way for the conusor to avoid the possession of the conusee and then he himself to take benefit of it and that should be a fine way to defeat the Statute Besides by this way if the Statute should be satisfied by casual profit or if the time should be expired and the Statute satisfied by effluxion of time if in that Case the grantee should be permitted to distrein the beasts of the conusee for a great Rent perhaps before that the Conusee by possibility might remove from the Land it would be a great disturbance to the Conusee Besides if a stranger enter upon the conusee the conusee upon his regress may hold over but not so in this Case where the grantee of the Rent distreins and that should be also a great prejudice to the conusee But it was objected that the grantee of the rent could not have a Scire facias and therefore if he might not distrain he should be without remedy To which he answered that if it should be so it is his own fault for he might have provided for himself by way of covenant But he conceived that he might have a Scire facias for he said that it is a Judicial Writ issuing out of the Rolls which might be framed and made according to the case of any man and it is not enough to say thâ—â— there was never such a Writ granted in the like case but he ought to shew where it was ever denied besides it is not always necessary that he that shall have this Writ should be party to privy to the Record as appâ—areth by these Books 46 Ass. Scire facias 134. 32 E. 3. Scire facias 101. and 38 E. 3. 12. Br. Scire facias 84. Again it is not necessary that the Scirâ— facias should be either ad computandum or ad rehabendum terram as it was objected for as I have said before it may be framed according to the case of any man and vary accordingly wherefore he prayed Judgment for the Plaintiff and note that at this time Justice Heath seemed to incline for the Plaintiff Thorne against Tyler in a Replevin 231. THe Plaintiff shewed that the Defendant took certain Beasts of the Plaintiff such a time and place and detained them against gages and pledges c. The Defendant as Baily of the Mannor of the Lord Barckley made conusance of the taking of the cattle and said that long time before the taking of them the Lord Barckley was seised in see of a Mannor in Gloucestershire within which there were Copy-hold-Tenants time out of mind demiseable for one two or three lives that there was a custom within the same Mannor that if any copyhold-tenant did suffer his messuage to be ruin'd for want of repairing or committed waste that is presented by the homage that such tenant so offending should be amerced and that the Lord had used time out of mind to distrein the beasts as well of the tenant as of the under-tenant of such customâ—ry tenements levant and couchant upon such customary tenements for such amercement and further said that one Greening was tenant for life of a customary tenement within that Mannor and made a Lease unto the Plaintiff for one year and that 15 Car. the homage did present that Greening had suffered his Barn parcel of the customary Tenements aforesaid to fall for want of repair for which he was amerced to ten shillings and that in Iuly 16 Car. the Defendant as Bayly of the Lord Barckley did distrein the Plaintiffs cattle being under-tenant for the said amercement upon the said customary tenement and so he made conusance and justified the taking of the beasts as Bayly of the Lord Barckley The Plaintiff confessed that Greening was tenant and that he made a Lease to the Plaintiff for a year and further he confessed the want of repairing and presentment and the amercement upon it but he denied that there is any such custome upon which they were at issue and the Jury found for the Defendant that there was such a custom and it was moved in arrest of Judgment that the custom was not good because it was unreasonable for here the Tenant offended and the under-tenant is punished for it which is against all reason that one should offend and another should be punished for it Besides the under-tenant here is a stranger and the custom shall never extend to a stranger and therefore the custom to punish a stranger who is not a Tenant of the Mannor is a void custom Further it was said that the amercement properly falls upon the person and therefore being personal it cannot be charged upon the under-tenant But notwithstanding all these Objections it was resolved by all the Justices upon solemn debate that the custom was good and therefore that the avowant should have Judgment Justice Mallet custom si aliqua defalta fuerit in reparatione to amerce the tenant and to distrein averia sua vel averia subtenentis levant and coucbant upon the customary tenement is a good custom I agree that a custom cannot extend to a stranger who is not within the Mannor and therewith agreeth 3 Eliz. Dyer 194. b. pl. 57. Davis Rep. 33. a. 21 H. 6. and many other Books but the matter 〈◊〉 is whether the Plaintiff be a stranger or not and I conceive that he is no stranger but a good customary tenant and he shall have any benefit or priviledge that a customary tenant shall have although he holdeth but for one year and by the same reason that he shall enjoy the priviledge of a customary tenant he shall undergo the charge for Qui sâ—ntit commoduin sentire debeâ— â—nus and by the general custom of England every Copyholder may make a Lease for one year as is resolved in the 4 Rep. 26. â— and it is good and if so then the Plaintiff here cometh in by custom and is no stranger but a good customary tenant and therefore the custom may well extend to him as there is Dominus pro tempore so there is tenens pro tempore and such is the Plaintiff here and he held that the wife that â—ath her widows estate according to the custom of the Mannor is a good customary tenant A woman Copyholder for life where the custom is that the husband shall be tenant by the curtesie dieth I hold the husband in that case a good customary tenant In Gloucester where this Land is there is a custom that Executors shall have the profits for a year and I conceive them good customary tenants Besides this under-tenant here is distrainable by the Lord for the rents and services reserved by the Lord or otherwise
the greater part of their living thereby And he said that if a Gentleman buy and sell Land he is not within the Statutes for it ought to be taken those who buy and sell personal things The second point It was agreed by all that Copyhold is within the Statute of 13 Eliz. 1 Iac. First because it is no prejudice to the Lord because there ought to be composition with the Lord and the Vendee And although the sale ought to be by Indenture yet the Vendee ought to be admitted by the Lord. And the difference in Heydons case in 3 Rep. was agreed Secondly It is expresly within 13 Eliz. and therefore within 1 Iac. also by way of recital although the Statute of 1 Iac. hath new provisions And by the Statute of 21 Iac. it was said That these Statutes shall be construed most beneficial for the Creditors because their ground is suum cuique tribuere 5 Eliz. Dyer Vmpton and Hides Case The Acts of Explanation shall be taken most beneficial and liberally And the Statute of 13 Eliz. says expresly That the Commissioners shall dispose of Lands as well Copy as Free But although a Copyhold be not within the later part of 13 Eliz. expresly yet by connexion it is And the Statute of 13 Eliz. guides the Statutes 1 21 Iacobi Justice Iones did agree That the Copyhold is within 13 Eliz. but not the person of the Copyholder although the person be within 1 Iac. And the chief Justice said That his Opinion was that upon the Statute of 21 Iac. which is That these Statutes shall he taken liberally that Copyholds although they had not been named had been within these Statutes It was said by Justice Barckley who argued for the Defendant That the verdict hath not found within 13 Eliz. because the verdict hath not found fraud expresly but badges only thereof See Meriel Littletons Case in the Chancellor of Oxfords Case That the Fraud ought to be expresly found but so it is not here for here it is found that the Son was an Infant at the time of the purchase and also that the purchase was with the mony oâ— the Father which are only inducements of Fraud But he argued it was within 1 Iac. because the Father hath caused oâ— procured this conveyance to his child as the Statute speaks And here is Fraud apparent Et quod constat clarè non debâ—verificari And therefore if a man enfeoff his Son it is Fraâ—â— apparent ought not to be found particularly But it was resolved by all the other Justices That here was not fraud apparent and therefore it ought to be found by the Jury The third and chief point in this Case was He being no Inholder at the time of the purchase and afterwards becoming an Inholder whether he were within the Statute of 13 Eliz. And it was resolved he was not But here Justice Barckley who argued for the Defendant was against it And he argued that if a man purchase and sell and afterwards become a Tradesman and Bankrupt that that was not within the Statute but if he keepeth the Land in his hands there he conceived him within the Statute as it was in this case And he was against the Book of the Chancellor of Oxfords Case of relation to devest the Advowson and he said It is not like to the Case in 6 7 Eliz. there cited Iâ— Eriches Case in the 5 Rep. there is a Rule taken that A verbis legis non est recedendum and in our Case it is within the express words of the Statute which are That if any person which hereafter shall become a Bankrupt c. And here he after became a Bankrupt But it was resolved by the others with whom Justice Barckley did concur after that it was not within the Statute Justice Crook argued That it is not within the words of the Statute which are If the offender purchase and that the sale shall be good against the offender and here he was not offender at the time of the purchase and using no Trade shall he be punished for that after Besides here the soâ— should be punished for the offence of the Father which the Law of God will not suffer Smith and Cullamers Case 2 Rep. he ought to be endebted at the time otherwise he is no offender And he might give away his goods before he was in Debt And the mischief here will be That Lands purchased 40 years before should thereby be defeated And I hold that it a man ba a Tradesman and afterwards leaves his Trade and thâ—n purchaseth and afterwards becomes a Tradesman again and a Bankrupt that he is not within the Statute But Justice Iones was of opinion that iâ— he be a Tradesman at the time although not an offender yet he is within the Statute But the chief Justice did argue that he ought to be an offender and the thing which makes him to be an offender is his intent to defraud his creditors Iones It shall be hard in this Case to cause the estate to be reached by this Statute for perhaps it was for the marriage of the son and perhaps the son might sell it and after the father become Bankrupt it would be hard to void the sale The Chancellor of Oxfords case was a stronger case for there the party was Indicted And if a man be Accomptant to the King and afterwards sell yet the sale shall be avoided by the King But if he be not accomptant and â—ellâ—th and afterwards becomes Accomptant the sale shall not be defeated And here he became Inholder after the purchase and being a clear man at the time of the purchase he shall not now be within the Statute Chief Justice If that should be permitted all things which the party did should be defeated and therefore he agreed That although he be a Tradesman yet if he be not in debt if he purchase for another or give unto another if no fraud be found it is not within the Statutes And Judgment accordingly was given for the Plaintiff Young against Fowler 68. YOung brought an Action upon the Case against Fowler for disturbing of him to execute the Office of Register to the Bishop of Rochester and upon Not guilty pleaded the Jury gave a special verdict They found that the Office was granted by one Bishop to one for life which was confirmed by the Dean Chapter which Bishop died and afterwards Iohn Young was created Bishop And then they found that the Office was grantable in Reversion time out of mind c. And that Iohn Young Bishop did grant the said Office of Register to Iohn Young his son now Plaintiff in Reversion And that the Office was to be executed by the said Iohn Young or his Deputy which Iohn Young the son was but of the age of 11 years at the time of the Grant but they found that he was of full age before the Tenant for life died And then they found that Iohn Young
granted And here it was agreed That if a woman do convey a Lease in trust for her use and afterwards marrieth that in such case it lies not in the power of the husband to dispose of it and if the wife die the husband shall not have it but the Executor of the wife and so it was said it was resolved in Chancery 70. Barckley and Crooke there being no other Justice at that time in Court said That upon a Petition to the Archbishop or any other Ecclesiastical Court no Prohibition lieth But there ought to be a Suit in the Ecclesiastical court And by them a Libel may be in the Ecclesiastical court for not repairing a way that leadeth to Church but not for repairing of a high-way and upon suggestion that the Libel was for repairing a high-way a Prohibition was granted 71. Many Indictments were exhibited severally against several men because each by himself suffered his door to be unrepaired and it was shewed in the Indictments that every one of them ought to repair And thereupon it was moved that they might be quashed but the Court would not quash them without certificate that the parties had repaired their doors but it was granted that Process should be stayed upon motion of Counsel that reparation should be immediately done But at the same time many Indictments for not repairing of the high-way which the Parishioners ought to have repaired according as it was found by Verdict the same Term were quashed for the same defect But in truth there was another fault in the Indictment for that it was joynt one only whereas there ought to have been several Indictments but they were quashed for the first defect 72. A Replevin was brought in an Inferiour Court and no Pledges de retorno habendo were taken by the Sheriff according to the Statute of West 2. c. 2. After the Plaint was removed into this Court by a Recordari and after Verdict given it was moved in arrest of Judgment want of Pledges for thâ—se reasons because the Pledges de retorno habendo are given by that Statute as 2 H. 6. 15. and 9. H. 6. 42. b. And that Statute saith That Pledges shall be taken by the Sheriff and therefore no other can take them notwithstanding that Pledges might be found here in Court And 3 H. 6. 3. and F. N. B. 72. a. say That where Pledges are found that they shall remain notwithstanding the removal of the Plaint by Recordari and the reason is because the Sheriff is a special Officer chosen to that purpose by the Statute and therefore no other can take them Besides there would be a failer of Justice if the Court should put in Pledges for then there might be no remedy against the Sheriff for that he found no Pledges and no remedy against the Pledges because they are not found according to the Statute and so a failer of Justice and by that means the Sheriff should frustrate and avoid the Statute for no Pledges should ever be found and so he should take advantage of his own laches and wrong Farther it was objected that these proceedings are the judicial act of the Court and therefore the Court will not alter or diminish them L. Entries 1. and 3 H. 6. And farther it was said That the cases of Young and Young and Dr. Hussies case adjudged in this Court That Pledges may be found at any time before Judgment were in Action upon the Case and not in Replevine as our case is for which there is special Provision made by the Statute But it was answered and agreed by the whole Court that Pledges may be found by this Court for the Pledges given by the Statute of West 2. are only to give remedy against the Sheriff and if the Sheriff do not his duty but surceaseth we may as at the Common Law put in Pledges and yet notwithstanding remedy may be against the Sheriff upon the Statute for his neglect And farther it was agreed That Pledges may be found at any time before Judgment as in Young and Youngs Case and Dr. Hussies Case it was adjudged And Judgment was affirmed 73. There can be no second Execution granted out before that the first be returned 74. Two Joyntenants of a Rectory agree with some of their Parishioners that they shall pay so much for Tithes and notwithstanding one of thâ—m sueth for Tithes in the Ecclesiastical court and a Prohibiâ—ion was prayed because that one of them cannot sue without the other and the Court would not grant it and their reason was because although that one of them cannot sue without the other by our Law yet perhaps the spiritual Court will permit it 75. Husband and Wife brought a Writ of conspiracie and it was adjudged that it would not lie And Iones cited this case That Husband and Wife brought an Action upon the Case against another for words viz. That the Husband and Wife had bewitched another and it was not good because that the wife cannot joyn for Conspiracie made against the husband nor for trespass of Battery as the Book is 9 E. 4. But Justice Crook was of Opinion That the Conspiracie would well lie because that the Indictment was matter of Record and therefore not meerly Personal but the whole Court was against him and Justice Barckley took the difference where they sue for Perâ—onal wrong done to thâ—m there they shall not joyn but wherâ— they have a joynâ— Interest as in case of a Quare impedit there they shall joyn Thurston against Ummons in Error to Reverse a Iudgment in Bristow 76. THurston brought an Action upon the Case against Vmmons declared That the Defendant brought an Action against him at the Suit of Hull without his privity And thereupon did arrest and imprison the Plaintiff by reason whereof all his Creditors came upon him and thereby that he had lost his Credit c. And a Verdict was found for the Plaintiff and thereupon Error brought and two Errors were alledged 1. That the Action will not lie because in truth there was a just Debt due to Hull in whose name he sued 2. Because it is not shewed that the causes of Actions which the other Creditors had against him did arise within the Jurisdiction of the Court of Bristow And notwithstanding the first Error alledged Judgment was affirmed by the whole Court upon this difference where Hull himself sueth or commenceth Suit against the Plaintiff there although by that Suit he draw all the Creditors upon the back of him and so perhaps undo him yet because it was a lawful act no Action upon the Case lieth against him But where one commenceth Suit against another in the name of another and without his privity that is Maintenance which is a tortious Act and therefore an Action will lie so in the principal case As to the second Error alledged the Court differed in Opinion Barkley That the damages were ill assessed because they were given aswel for
the Actions brought by the other Creditors But Justice Bramston contrà That the damages were well assessed because that the Actions brought by the Creditors were added for aggravation only and the cause of the Action was the Arrest and Imprisonment like the case where a man speaks words which are in part actionable and others only put in for aggravation and damages is assessed for the whole it is good There was a third Error assigned That the Venire facias was de Warda omnium Sanctorum de Bristow without shewing in what Parish Childe against Greenhil 77. CHilde brought Trespass against Greenhill for Fishing in seperali piscaria of the Plaintiff and declared that the Defendant pisces ipsius cepit c. And Verdict found for the Plaintiff And it was moved by Saint-Iohn in Arrest of Judgement because the Plaintiff declared of taking of pisces suos whereas the Plaintiff they being ferae naturae hath not property in them Register 94 95. and F. N. B. and Book Entries 666. No count that the Defendant cepit pisces ipsiuâ— but ad valentiam c. without ipsius So Fines Case in Dyer 7 H. 6. 36. 10 H. 7. 6. 12 H. 8. 10. by Brudnell 13 E. 4. 24. 7 Rep. case of Swannes And the Book of 22 H. 6. 59. is over-ruled by the case of Swannes 34 H. 6. 24. And the same is matter of substance and therefore not helped after Verdict An Action of Trover and Conversion against husband and wife quia converterunt is not good and it is not helped after Verdict because it is matter of substance Rolls for the Defendant I agree that lepores suos or pisces suos without any more is not good But where he brings an Action of Trespass for taking them in his Soil there it is good because it is within his Soil So in our case for taking pisces suos in his several Piscary and with this difference agree 22 H. 6. 59. 43 E. 3. 24. so Regist. 93 102. 23 H. 6. tit Tresp 59. 14 H. 8. 1. and the Book of 43 E. 3. saith That in Trespass the Writ shall not say Damam suam if he do not say that it was taken in his Park or Warren or saith damam domitam or as the Book is in 22 H. 6. in my Soil or Land and by Newton he shall say there damas suis. And admit that it was not good yet I hold that it is helped after Verdict because it is not matter of Substance for whether they be pisces suos or not the Plaintiff shall recover damages Justice Barckly It is true that in a general sense they cannot be said pisces ipsius but in a particular sense they may and a man may have a special or qualified property in things which are ferae naturae three ways ratione infirmitatis ratione loci ratione privilegii and in our case the Plaintiff â—ath them by reason of Priviledge And it was agreed by the whole Court That Judgment should be affirmed upon the very difference taken by Rolls that where a man brings Trespass for taking pisces suos or lepores suos c. and the like that the Action will not lie But if he bring Trespass for fishing in his several Piscary as in our Case or for breaking of his Close and taking lepores suos c. there it will lie Pitfield against Pearce 78. IN an Ejectione firme the Case was thus Thomas Pearce the Father was seised of Lands in Fee and by Deed in consideration of Marriage did give and grant this Land to Iohn Pearce the now Defendant his second Son and to his Heirs after his death and no Livery was made Thomas Pearce died the Eldest Son entred and made a Lease to the Plaintiff who entred and upon Ejectment by the Defendant brought an Ejectione firme Twisden The only question is whether any estate passeth to the Son by the Deed and it was said there did and that by way of Covenant And it was agreed That in this Case if Livery had been made it had been void because that a Freehold cannot begin at a day to come But I may Covenant to stand seised to the use of my Son after my death So a man may surrender a Copyhold to take effect after a day to come Com. 301. So a man may bargain and sell at a day to come 1 Mar. Dyer 96. Chudleighs Case 129. 20 H. 6. 10. A use is but a trust betwixt the parties and 7 Rep. 400. There need not express words of Covenant to stand seised to an use 25 Eliz. Blithman and Blithmans case 8 Rep. 94. Besides these words dedi concessi are general words and therefore may comprehend Covenant and words shall be construed that the Deed may stand if it may be 8 Ass. 34. 7 E. 3. 9. But I agree that if the intent appeareth that it shall pass by transmutation of possession that there it shall be so taken but here his intent doth not appear to be so for if there should be Livery then the son should take nothing for the reason before given which is against his meaning Mich. 21 Iac. Rot. 2220. Buckler and Simons Case Dyer 202. Vinions case The cases cited before are in the future tense but the words are here I give c. 36 Eliz. Callard and Callards Case Stand forth Eustace reserving an estate to my self and my wife I do give thee my Land and the better Opinion was That in that case it did amount to a Livery being upon the Land for his intent is apparent Mich. 41 42 Eliz. Trelfe and Popwells Case adjudged in such case That an use shall be raised For which it was concluded that in this case there is a good estate raised to Iohn Pearce by way of Covenant Rolls I conceive that not estate is raised to Iohn Pearce by this conveyance It was objected That it shall inure by way of Covenant to raise an use I agree that if the meaning of the party may appear that he intended to pass his estate by way of raising of an use otherwise not And here is no such appearance Foxes Case in 8 Rep. is a stronger case and here it doth not appear that he meant to pass it by way of use But by the word give he intended transmutation of possession 8 Rep. Bedells case Mich. 18. Car. Rot. 2220. in the Common Pleas it was adjudged That a gift of a Remainder after the death of the grantor was void wherefore he concluded for the Plaintiff and so Judgment was given by the whole Court And Justice Iones said When a man makes a doubtful Conveyance it shall be intended a Conveyance at the Common Law And it shall not be intended that the Father would make him Tenant for life only punishable of wast Mich. 15º Car ' in the Kings Bench. 79. IT was moved for a Prohibition to the Counsel of the Marches and the Case was such A man seised of Lands in Fee
that it was his own horse but quendam equum and for that reason by the whole Court the Judgment was affirmed More of the Case of Leake against Daweâ— 108. SErjeant Mallet for the Plaintiff That the Scire faâ—â—â—s is good notwithstanding the exceptions for these reasons First because it is not a Declaration but a Writ which is not drawn by Counsel and it is to declare the matter briefly but if it were in a Declaration yet I hold it good because he saith that it was modo adhuc seisitus existit which as I conceive helps it and besides it is not his title but the title of his Adversary which he is not bound to plead so exactly as his own title See for that 14 Eliz. Dyer 204. 2 Car. beswixt Green and Moody in Audita Querela he shewed that there was Debt brought upon a Lease for years to begin at a day to come and did not shew whether the Lessee entred before the day or not so as he might be a disseisor and yet notwithstanding it being in Audita querela which is an equitable Action it is good Hil. 1 Iac. betwixt Blackston and Martin in this Court a Scire facias was brought to avoid a Statute and it was shewed that the Defendant was Tenant but doth not shew how Tenant but it said ad grave damnum which could not be if he were not lawful Tenant and therefore adjudged good notwithstanding that general allegation See new Book of Entries Mollins case 98 99. a strong case to this purpose Besides he said That here issue was taken upon another point Whether he bargained or not and therefore he conceived in this Scire facias that it is not hâ—râ— needful to shew the Inrolment and for these reasons prayed Judgment for the Plantiff Serjeant Wild for the Defendant That the shewing of the Inrolment is not helped by the Issue joyned being matter of substance for he saith that virtute cujus and of the Statute of 27 H. 8. of uses that the Defendant was seised and we ought not to intend an Estate by any other means or seisin than himself hath alledged And thâ—refore it ought to be adjudged upon his own pleading whether the Defendant hath any estate without inrolment or entry by force of the Statute of Uses And I conceive he hath not True it is that all circumstances ought not to be pleaded but the substance viz. the Inrolment and therefore it ought to be pleaded as Fulmerston and Stewards case is in the Commentaries and 2 Eliz. Dyer And no estate passeth without Inrolment not a Fee-simple for then there ought to be Inrolment according to the Statute and no estate at will can pass without Entry for that is as opposit ' in objecto that a man shall be tenant at will against his will for his Entry proves his intent to hold at will For Littleton saith By force whereof he is possessed so that there ought to be possession to make an Estate at will And in case of a Lease for years although it be true that he is a Lessee for years to many purposes before Entry yet an Entry ought to be pleaded And Dyer 14. is non habuit non occupavit is no good plea in a Lease for years contrary in the case in a Lease at will which is a strong proof that he is not Lessee at will before entry 3 Iac. betwixt Bellingham and Fitzherbert 5 El. Dyer 10 Eliz. Mockets case Mich. 15 Iac. betwixt Coventry and Stacie resolved that a release to the Bargainee before Inrolment is not good And by consequence he hath not an estate at will before Inrolment or Entry made for if he had the Release should be good 18 H. 8. the Lord Lovells case that no estate at Will Lastly Parrolls font plea and the case of a man shall not be taken to be otherwise than he hath pleaded it and he having pleaded that virtute cujus and of the Statute of Uses that the Defendant was seised he shall be concluded thereby 5 H. 7. A man shewed that another licenced him to enter into his land and occupy for a year it is not good but he ought to plead it as a Lease Besides the virtute cujus is not traversable as the 11 Rep. Pridle and Nappers case is Rolls accord and he said That if it shall be construed That the Conusee shall have an estate by Disseisin the Plaintiff ought to plead it that the Defendant was seised by way of disseisin And where it was objected That this is a Writ and not a Declaration he answered It is a Writ and Declaration also and therefore he ought to declare his case at large and the defect of the Conveyance viz. the want of Inrolment is not supplied by the virtute cujus And he having made that his Title you ought to judge upon it and not otherwise But the whole Court viz. Bramston Ch. Just. Crooke Iones and Barckley Justices That the Scire facias was good for it was said that the Defendant perquisivit sibi heredibus suis and concludes virtute cujus and of the Statute of Uses he was seised which is a good averment that he hath a Fee and it was not material how he hath it and he need not shew his Title so fully being a stranger to it And this being an equitable Action if the Court upon this Writ shall conceive sufficient matter upon which the Plaintiff may bring his Action it is good and the Court ought to give Judgment for him for being but matter of form it is not material unless a Demurrer had been special upon it And wheresoever there is damnification there the Court ought to give Judgment for the Plaintiff notwithstanding a defect of form in the Writ And Barckley said That if a man be seised of Bl. acre and Wh. acre and acknowledgeth a Statute and afterwards makes a Lease for years of Wh. acre the remainder over in Fee then the Conusee purchase Bl. acre and extendeth the land of the Lessee for years he held that he in the remainder should have an Audita querela or a Scire facias for the damnification which came to his interest And he held that he who had but interesse termini should have an Audita querela That one jointly only might have an Audita querela and that the death of one of them should not abate the Writ And he held that Cestui que use before the Statute might have an Audita querela all which proves it to be but an equitable Action upon which the Law doth not look with so strict an eye as upon other Actions And as to the Objection which was made by Râ—lls that he ought to shew That the Conusee had an estate by disseisin Iones was against that for that no man is bound to betray his Title And for these reasons it was adjudgâ—d by the whole Court That the Judgment should be affirmâ—d 109. A Writ of
it then a Prohibition shall be granted And note that it was said by Bankes Chief Justice that before the Statute of 1 Eliz. the Ecclesiastical Court might punish any person for not coming to Church pro reformatione morum salute animae 163. Where there are several Modus alledged there several Prohibitions shall be granted but where divers are sued joyntly and they alledge one Modus only there they shall have but one Prohibition by Reeve and Foster Justices the others being absent Pasch. 15º Car in the Kings Bench. Edwards and Rogers Case 164. THe Case was thus Tenant for life the Reversion to an Ideot an Unkle heir apparent of the Ideot levied a Fine and died Tenant for life died the Ideot died the only Question was Whether the Issue of the Unkle who levied the Fine should be barred or not Iones that it should his chief reason was because the Son must make his conveyance by the Father and as to him he is barred As in a Writ of Right he ought of necessity to name his Father and that by way of Title so here But Crooke and Barckley contrary and their reason was because that here the Issue of the Unkle doth not claim in the right line but in the collateral Secondly because the naming of the father here is not by way of Title but by way of pedigree only Note that Serjeant Rolls in the Argument of the Serjeants case which was the very point said that this case was adjudged according to the Opinions of Crooke and Barckley viz. that the fine should not bar the Issue The Serjeants Case aforesaid was Trin. 17 Car. 165. Payne the elder and Payne the younger were bound joyntly and severally in an Obligation to Dennis who afterwards brought Debt upon the Bond against both And after appearance Dennis entred into a Retraxit against Payne the younger and whether this were a discharge of the elder also was the Question And this Term it was argued by Maynard for the Defendant that it was a discharge of Payne the elder also for it doth amount to a Release and it is clear that a release to one shall discharge both Rolls contrary that it goeth only by way of Estoppel and not as a release and therefore shall not bar Barckley Justice that it amounts to a Release and therefore shall discharge both 7 E. 4. Hickmots case in the 7 Rep. the Plaintiff shall not have judgment where he hath no cause of Action And here by his Retraxit he hath confessed that he hath no cause of Action and therefore he shall not have judgment Further a Retraxit is not an Estoppel but a Bar of the Action besides here he hath altered the Deed and it is not joynt as it was before like as where he interlines it or the like there the Deed is altered by his own act and therefore the other shall take advantage of it Crook Justice contrary for it is not a Release but quasi a Release and if the Obligâ—e sueth one and covenanteth with him that he will not further sue him the same is in the nature of a Release and yet the other shall not take advantage of it So in this case 21 H. 6. there ought to be an actual Release of which the other shall take advantage and therefore in this Case because it is but in the nature of an Estoppel the other shall not take advantage of it Sprigge against Rawlenson 166. IN a Writ of Error to reverse a Judgment given in the Common Pleas in an Ejectione firme the Case was R. brought an Ejectione firme against S. and declared of an Ejectment de uno mesuagio uno repositorio And the Jury found for the Plaintiff and assessâ—d damages entire upon which a Writ of Error was brought here and the Error which was largely debated was that Rep. sitâ—rium which was here put for a Ware-house is a word uncertain and of divers significations as appeareth by the Dictionary And therefore an Ejectione firme de uno repositorio is not good and by consequence the damages which are joyntly assessed are ill assessed And in an Ejectione firme seism shall be given by the Sheriff upon a Recovery as in a Precipe quod reddat and therefore the Ejectment ought to be of a thing certain of which the Sheriff may know how to deliver seifin otherwise it is not good Barckley and Crook Justices were that the Judgment should be affirmed and that it was certain enough but Iones and Bramston Chief Justice contrary that it was utterly uncertain For that is Repositorium in which a man reposeth any thing and an Ejectione firme de uno tenemento is not good because there are several â—enements So here because there are several Repositories and the Sheriff cannot tradere possessionem and afterwards Barckley released his Opinion and judgment was given that the Judgment given in the Common Pleas should be reversed Trinit 17º Car ' in the Common Pleas. 167. A Man having a Legacie devised unto him out of a Lease for years which Indenture oâ— Lease was in the hands of a Stranger The Legatee suâ—d the Executors in the Spiritual Court to assent to the Legacie And Evars Serjeant prayed a Prohibition because they order that the Lease should be brought into Court which they ought not to have done being in the hands of a stranger But the Prohibition was denied by the whole Court for they may make an executor assent to a Legacie out of a Lease and therefore may order that although that the Lease be in the hand of a third person that it shall be brought in to execute it For the Order although it be general binds only the Defendant and it was agreed by the Court that assets or not assets is triable by them Juxon against Andrewes and others 168. IN an Ejectione firme the Defendants pleaded not guilty the Jury found them not guilty for part and guilty in tanto unius messuagii in occupatione c. quantum stat super ripam and whether this Verdict were sufficiently certain so as the Court might give judgment upon it and execution thereupon might be had was the question And by Whitfield Serjeant the Verdict is certain enough it hath been adjudged that where the Jury find the defendant guilty of one Acre parcel of a Mannor that it was good so of the moiety of a Mannor which is as uncertain as in this case And it is as certain as if they had said So many feet in length and so many in breadth for if the certainty appeareth upon the view of the Sheriff who is to deliver the possession it sufficeth and Clark Serjeant who was of the same side said that it is a Rule in Law Quod certum est quod certum reddi potest and this may be reduced to certainty upon the view of the Sheriff and therefore it is certain enough Besides it is the finding of the Jury who are lay gents M. 8. Iac. in
the Kings Bench an Ejectione firme was brought for the Gate-house of Westminster and the Jury found the Defendant guilty for so much as is between such a room and such a room and adjudged good and here it is as uncertain as in our case Mich. 19 Iacobi Smalls case in Hobarts Rep. The Jury in an Ejectione firme found the Defendant guilty of a third part and good Mallet Serjeant that the Verdict is uncertain and therefore not good And it is not sufficient that the certainty appear to the Jury for it behooveth that certa res deducatur in judicium Institut 227. a. 3. E. 3. 23. b. 18 E. 3. 49. 40 E. 3. 5 Rep. Playtors case Secondly here is no certainty for the Sheriff to give execution for so much in length or in breadth that is quod stat super ripam doth not appear And thirdly thereupon great inconvenience will arise that no attaint will lie upon such uncertain Verdict so as the defendant shall be without remedy and the whole Court except Justice Crawley Banks Reeve and Foster did resolve that the Verdict was insufficient for the incertainty and all agreed That there is great difference betwixt Trespass and Ejectione firme for such Verdict in Trespass may be good for there damages are only to be recovered but in an Ejectione firme the thing it self And their reason in this Case was That although the certainty may appear to the Jury yet that is not enough for they ought to give judgment oportet quod certa res deducatur in judicium And they agreed that if they had found him guilty of a Room it had been good and so the Cases on the Acre of Land and of the third part of a Mannor is good for those are sufficiently certain for of them the Law takes notice The Opinion of Crawley wherefore the verdict should be good was because the demand here was certain although the Jury found it in tanto c. And where there may be certain description for the Jury it is good enough and the rather because the Verdict is the finding of lay gents and he compared it to the case of the Gate-house aforesaid but he agreed that if the Writ of Ejectione firme had been brought de tanto unius messuagii c. quod stat super ripam that it would not have been good but the Verdict is good for the reason aforesaid But Justice Reeve said that that which is naught in the demand is naught in the Verdict and therefore naught in the judgment and therefore the Court would not give judgment and therefore a Venire facias de novo was prayed and granted by the Court. 169. Couch libelled against Toll ex officio in the Ecclesiastical Court for Incontinencie without a Citation or presentment and for that the Defendant was excommunicated and Gotbold prayed a Prohibition which was denied by Crawley and Reeve Justices the others being absent and it was said by Reeve That where they proceed ox officio a Citation is not needful but put case it were yet they said that no Prohibition is to be granted as this case is because that where the Ecclesiastical Court hath Jurisdiction although they proceed erroneously yet no Prohibition lieth but the remedy is by way of Appeal and there he shall recover good costs and it was said by Crawley That if the party be retorned cited and he is not cited That an Action upon the case lieth 170. A woman libelled in the Arches against another for calling of her Iade and a Prohibition was prayed and granted because the words were not defamatory and do not appertain unto them And Reeve said that for Whore or Bawd no Prohibition would lie but they doubted of Quean 171. Bacon Serjeant prayed a Prohibition to the Court of Requests upon this suggestion That one Executor sued another to accompt there and an Executor at the Common Law before the Statute of West 2. cap. 11. could not have an accompt for cause of privity and now by that Statute they may have an accompt but the same ought to be by Writ and therefore no accompt lieth in the Court of Requests Secondly they have given damages where no damages ought to be given in an Accompt And lastly they have sequestred other Lands which is against the Law and for these reasons he prayed a Prohibition Whitfield Serjeant contrary 1. It is clear that an accompt by Bill lieth for an Attorney in this Court and so in the Kings Bench and Exchequer and as to damages it is clear that in an accompt a man shall recovâ—â— damages upon the second judgment but as to the sequestâ—â—ion he could not say any thing but further he said That it was not an accompt but only a Bill of discovery against Trustees who went about to defeat an Infant and upon the reading of the Bill in Court it appeared that the suit was meerly for the breach of a trust and for a confederacie and combination which is meerly equitable Wherefore a Prohibition was denied because it was no accompt but as to the Decree for sequestring other Lands the Prohibition was granted Trin. 17º Car ' in the Kings Bench. 172. EAste brought an Action upon the Case upon an Assumpsit against Farmer because that where the Plaintiff had sold to the Defendant so much wood the Defendant in consideration thereof did assume and promise to pay so much money to the Plaintiff and to carâ—â— away the wood before such a day the Defendant pleaded thâ— he paid the money at the day aforesaid but as to the carrying of it away before the day he pleaded non assumpsit and the Jury found that he did not pay the money at the day but as to the other they found that he did assume and promise as aforesaid and it was moved in Arrest of judgment that the finding of the Jury was naught for being but one Assumpsit and the same being an intire thing it could not be apportioned and therefore they ought to find the intire Assumpsit for the Plaintiff or all against him And the Court agreed all that and awarded that there should be a Repleader and the Chief Justice Bramston said That for the reason given before the Defendants plea was not good and therefore the Plaintiff might have demurred upon it which he hath not done and therefore they agreed that the Verdict was naught for the reason aforesaid 173. Williams was indicted at Bristow upon the Statute of 1 Iac. cap. 11. for having two wives and upon not Guilty pleaded the Jury found a special Verdict which was thus That the said Williamt married one wiâ—e and was afterwards divorced from her causa adulterii and afterwards married the other and if that were within the Proviso of that Statute which provides for those who are divorced was the Question And it was resolved without argument by Bramston Chief Justice and Heath Justice the other being absent That it is within the Proviso for the
when there is no Processus entred and that failing all fails and besides it is meer for delay of Justice and they agreed that a Writ of Error bearing Teste before Judgment is good as is the book of 1 E. 5. 4. because that there the foundation stands good and it is the usual course of practise for the preventing and superseding of Execution Tuder against Rowland 213. AN Ejectione firme was brought and in the Writ was vi armis but it wanted in the Declaration and whether it were Error or not or whether it were amendable or not was the Question and Shaftoe for the Plaintiff held clearly that it was not Error but the Court did not hear it at that time the Case was Entred Pasch. 16 Car. Rot. 333. 214. Bolstrood prayed a Prohibition to a Court-Baron as also an Attachment against the Steward for dividing of Actions to bring the same within their Jurisdiction to defeat the Common Law as also for refusing to suffer the Defendant to put in any other Attorney for him than one of the Attorneys of that Court and the Court awarded a Prohibition and the Steward Darey of Lincolns-Inn then at the Bar the Court ruled that he stand committed until he had answered to interrogatories concerning that misdemeanor and they said That an Attorney at Common Law is an Attorney in every inferiour Court and therefore ought not to be refused Rudston and Yates Case entred Hill 15 Car. Rot. 313. 215. RVdston brought an Action of Debt upon a Bond against Yates the Defendant demanded Oyer of the deed and condition thereof and upon Oyer it appeared that the Bond was conditioned to perform an award to which the defendant pleaded that the Arbitrators made no arbitrament upon which they were at issue and the Jury found this special Verdict that the Defendant Yates and one Watson submitted themselves to Arbitrament and found that the Arbitrators made an Award and found the Award in haec verba but further they found that Watson was within age at the time of the submission and whether upon the whole matter the Arbitrator had made any award or not the Jury left it unto the Court so as the Question is no other but whether an Infant may submit himself to an award or not for it was agreed that if the submission were void that the award was void and by consequence the Bond void and note that the Case was that Yates bound himself that Watson who was an Infant should perform the Award and the Condition recites that where Watson who was an Infant had submitted himself to an award that the Defendant binds himself that he should perform it c. So then if the Submission be void all is void no submission no award and so no breach of the Condition and therewith the Books agree 17 E. 4. 5. 19 E 4. 1. 28 H. 6. 13. 5 Rep. 78. 10 Rep. 131. b. And by Justice Mallet the submission is void and void in part void in all for a submission is an entire thing and therefore cannot be void as to the Infant and stand good as to the man of full age There are but two Books express in the point 14 H. 4. 12. 16 H. 6. 14. and none of those are of any authority in the first there is no debate of the Case And the second is a flat quere and as I conceive the better Opinion is that the award is void for where it is there objected that it may be for the avail of the Infant Br. tit Coverture and Infancie 62 says Quere of that for it may be that the recompence given by the award may be of greater value than the Law would give in the Action and therefore by possibility it may be a disadvantage unto him and the Case betwixt Knight and Stone Hill 2. Car. in this Court Rot. 234. where this very point was in question it was resolved that if the Infant had been bound to perform the award that the Obligation had been void Further it was agreed that if it appear afterwards to be to his prejudice that that shall make the award void but the principal point was not adjudged because that the parties agreed But whereas it was then and now also objected That if an Infant cannot submit himself to an Arbitrament that thereby he should be in a worser case than a man of full age for he may have done a Trespass which subjects himself to damages by suit in Law which if he cannot discharge by this way he should be in a worse condition than a mâ—n of full age for he should lose that advantage To that he answered that if an Infant should be permitted to that he might have loss thereby for he hath not discretion to chuâ—e a compâ—tent Arbitrator and an Arbitrator might give greater damages than the cause did require and he is worse than a Judge of the Court is he is not sworn a Judge is Besides an Inâ—ant hath divers priviledges which the Court would allow but an Arbitrator not If an Infant make default the same shall not bind him so if he confess an Action the same shall not bind him and therefore he is in better Case without submission than by it and if an Infant cannot chuse an Attorney much less a Judge for an Arbitrator is a Judge an Infant cannot bind himself Apprentice although it may be pretended to be for his benefit so 21 H. 6. 31. he cannot chuse a Bayliff yet that is for his benefit he cannot give an acquittance if he do not receive the money 5 Rep. Russels case but if it be apparent for his benefit it may be good as a Lease of Ejectment to try a title made by an Infant is good because it is apparent for his benefit an Infant is in custodia Legis and therefore we are bound by Oath to defend him Besides an Infant hath not power to dispose of his goods himself and then how can he give such a power to another For which reasons he conceives the submission void and if no submission no award and therefore he gave Judgment against the Plaintiff Quod nihil capiat per â—illam Justice Heath also against the Plaintiff True it is that in this Case a stranger is bound that the Infant shall perform the award but that recites the submission by the Infant and the issue is whether they made any award or not so as the ground is whether there be any submission or not for no submission no award that so by consequence Judgment ought to be given against the Plaintiff and he held clearly that the submission is void that an Infant cannot submit himself to an Arbitrament the Judgment of Arbitrators provided that they keep themselves within their Jurisdiction is higher than any Judgment given in any Court for if they erre no Writ of Error lieth to reverse their Judgment and there is not so much as equity against them and therefore it should be a hard
imply an affirmative will bear an Action 19. It was said to a Merchant That he was a cousening Knave And the Opinion of the Court was the chief Justice and Justice Crooke being absent that the words were not actionable because he doth not touch him in his Profession for the words are too general But it was said That to call him Bankrupt was actionable And mall Cases where a man is touched in his Profession the words are actionable But to call a Lawyer a Bankrupt is not actionable Justice Iones said that Serjeant Heath brought an Action for these words One said of him That he had Vndone many and it was adjudged actionable because he touched him in his Profession 20. Kingston upon Hull is a Particular and Limited Jurisdiction and they held Plea of a Bond which was made out of their Jurisdiction and thereupon a Capias was awarded against the Obligor who was arrested upon it and suffered by the Sheriff to escape And the Opinion of the Court was clear That no escape would lie against the Sheriff upon the difference in the case of the Marshalsea That if the Court hold Plea of a thing within their Jurisdiction but proceed erroneously that it is avoidable by Error but if they have not Jurisdiction of the cause all is void and coram non Iudice 11 H. 4. and 19 E. 4. Acc. So in the principal Case for they held Plea of a thing which was out of their Jurisdiction and therefore the whole proceeding being void no Action can lie against the Sheriff for there was no Escape 21. Where a man is Outlawed and the Outlawry reversed notwithstanding the Original doth remain and the cause that the Original was determined was the Outlawry and now Cessante causa cessat effectus 22. A man made a Lease for years with exception of divers things and that the Lessee shall have conveniens lignum non sâ—â—ccidendo c. vendendo arbores c. Now the Lessee cut down Trees and the Lessor brought an Action of Covenant and the Opinion of the Court was That the Action would lie and that it is as a Covenant on the part of the Lessee because the Law gives him reasonable Estovers and by this Covenant he abridgeth his Priviledge 23. Justice Iones said and so it was agreed by the Court In what case soever there is a Contract made to the Testator or the Intestate or any thing which ariseth by Contract there an Action will lie for the Executor or Administrator but Personal Actions die with the Testator or Intestate 24. The Administrators of an Executor shall not sue a Scire facias upon a Judgment given for the Testator because the Testator now died Intestate because there is no privity And so it hath been many times adjudged 1 Rep. 96. a. 5 Rep. 9. b. The Earl of Oxford and Waterhouse Case in a Writ of Error to reverse a Fine 25. WAterhouse levied a Fine the Earl of Oxford pleaded that he was beyond Sea at the time of the Fine levied Waterhouse replied That he came here into England in August within the five years and upon that they were at issue The Jury found that he came over in Iuly And notwithstanding the Opinion of the Court was clear That the Writ of Error did not lie For although the Jury have found that he came over in Iuly yet the substance of the matter is that he was in England so as he might have made his Claim and therefore the Fine should bar him And Justice Barckley compared it to the Case of 10 Eliz. Dyer 271. b. which Case is a Quaere in Dyer but Resolved in the 6 Rep. 47. a. A man brought Debt against an Heir who pleaded that he had nothing by Descent The Plaintiff pleaded that he had Assets in London and the Jury found Assets in Cornwal and good for the substance is whether he had Assets or not 26. If a Nobleman who is not a Baron or Earl of this Realm in an Action brought against him or by him be named Knight and Earl of such a place it is good because that although he cannot be sued or sue another by the name of Earl Baron c. yet by the name of Knight he may and that is sufficient 27. Writ of Error was brought here to reverse a Judgment given in Ireland it is a Supersedeas to the Execution for although the Record it self is not sent over for fear of losing the same in the water or otherwise yet a transcript is made thereof which is all one And Justice Barckley compared it to the Case where a Writ of Error is brought in this Court to reverse a Fine in the Common Pleas there the Record it self is not sent but a Transcript thereof because we have not a Cirographer to receive it but the Transcript is all one Sir John Compton's Case upon the Statute of Winchester 13 Ed. 1. and 27 Eliz. of Robberies 28. SIr Iohn Compton Knight brought an Action against the Hundred of Olison or the like name for a Robbery done upon Red-hill in the County of Surry within the aforesaid Hundred and the Robbery was done upon his man and five hundred and ten pounds was taken from him And in this Case it was agreed by the Justices That although there be a remisness or negligence in the party who was robbed to pursue the Robbers or that he did refuse to lend his Horse to make Hue and Cry yet this doth not take away his Action nor excuse the Hundred if notice be given with as much convenient speed as may be as the Statute of 27 Eliz. speaks for them to make Hue and Cry And although the Party who was robbed doth not know the Robbers at the present time and thereof takes his Oath before a Justice of Peace as the Statute of 27 Eliz. hath provided and afterwards comes to know them and so he affirm yet this doth not take away his Action And it was resolved also that notice given in one Hundred five miles from the place where he was robbed is sufficient and the reason is because that the party who is a stranger to the Country cannot have conusance of the nearest place or Town Chief Justice That notice given at one Town and Hue and Cry levied at another is good And the Jury found for the Plaintiff And thereupon a Quaere was made by one who was of Counsel with the Hundred Whether such persons who become Inhabitants after the Robbery and before the Iudgment whether they should contribute And Justice Barckly said That all who are Inhabitants at the time of the Execution should pay it 29. A Vicar cannot have Tithes but by Gift Composition or Prescription For all Tithes de jure do appertain to the Parson 30. A man was bound to the Good Behaviour for Suborning of Witnesses Plowden against Plowden 31. PLowden the Son brought Trespass against Plowden the Father for taking the Plaintiffs Wife cum bonis viri And
the Case was That he did reject and eject his Wise without giving of her Alimony for which she had Sentence in the High Commission-Court and the Defendant took those Goods for the Alimony of the Wife And Justice Barckley said That the Defendant might plead Not guilty Lister against Hone in Trover and Conversion for a Hawk 32. JUdgment was given for the Plaintiff but it was moved in arrest of Judgment because it was not said in the Declaration that it was a tame Hawk Dyer 13 Eliz. 306. b. and 43 E. 3. Acc. And here it was said That the words of the Declaration shew that it was a wild Hawk for the words are For taking Accipitricem suum Anglicè vocat ' a Ramish Fawlcon and it was said that Ramish is as much as to say inter ramos agens but that was denied for a Ramish Hawk is a Fowl Hawk by which the contrary is implied that it was tame And here it was farther said for the Defendant that if reclamato be omitted de bonis suis propriis will not help it But it was said in affirmation of the Judgment that although reclamato be omitted yet that de bonis suis propriis will help it and Justice Barckley with all the Justices except the Chief Justice who was absent did agree very strongly That the Judgment should be stayed because that a Hawk is ferae naturae and although it be tamed yet if it fly away and hath not animam revertendi then occupanti conceditur Vide 27 Hen. 8. And for the words de bonis suis propriis they do nothing for the Party had but a Right of Possession and not of Property and if it be it is but a qualified Property as 7 Rep. 17. b. He agreed that if a man hath a wild Hawk in his possession and another man takes it out of his possession Trespass will lie but if it fly away then Capiat qui capere potest And thereupon Judgment was stayed Parkinson against Colliford and others Executors of a Sheriff 33. THe Case was That Judgment was given against another man at the Plaintiffs suit in Debt in the Common Pleas and upon that a Writ of Error was brought in the Kings Bench and the Judgment affirmed and upon that a Fieri facias directed to the Sheriff who levied the Mony and died the Writ being not returned and thereupon Debt was brought against his Executors and these exceptions were taken 1. That the Writ of Fieri facias was not returned and therefore the Sheriff should not be charged in Debt but otherwise if it had been returned 2. That no Debt lieth against the Sheriff although it had been returned 3. Admit that it would lie against himself yet it will not lie against his Executors because it is a Personal wrong and dieth cum Persona 4. That the Fieri facias was awarded out of this Court and it doth not appear whether it were awarded after the Record removed into this Court or not Justice Barckley with whom all the other Judges did agree was of Opinion That Debt would lie against the Sheriff where he sells goods upon a Fieri facias for now he is Debtor in Law and the Defendant discharged against the Plaintiff and â—â—e may plead it and therefore it is reasonable that the Defendant should be answerable to the Plaintiff and he took the difference betwixt Seisin of goods only and where the Sheriff seiseth and selleth them for till Sale no Debt will lie against him And it was said that Accompt will lie against him and if Accompt by the same reason Debt As to the return of the Writ he said that the Sheriff is not compellable to make it and therefore it 's nothing to the purpose and the difference stands where the Sheriff returns a Jury where not in case of Elegit the Writ ought to be returned but not in case of Fieri facias as is 1 H. 7. Clerk of the Hampers Case Farther I conceive that it will lie against the Executor and it is not like the Cases which are Personal where the action moritur cum Persona but here the goods came to the Executors and therefore it is reason to charge them And it is not like the Case in Dier 10 Eliz. 271. a. where it is said An Action of Debt will not lie against the Executor of a Keeper nor an Escape for there the body comes not to the Executor And this very difference may be collected out of Dier in the place aforesaid and the difference will stand where there is a personal wrong done to him and where not And for the Exception That it doth not appear whether the Fieri facias was brought after the Record removed or not To that they said una voce that it appeareth that it was upon these words of Record viz. That the Record was brought hither and here remained and it is not needful to shew that Errour was brought c. Justice Iones I conceive that Debt will lie against the Sheriff because the Sheriff had it delivered to him to deliver over And if I deliver mony to deliver over Debt will lie for him to whom it ought to be delivered So in this Case And because also the Defendant is discharged and may plead the same and therefore there is reason to charge the Sheriff Farther I conceive also that it will lie against the Executors And I shall take this difference where the wrong is ex maleficio for there it dieth with the person and where ex contractu for there it doth not die with the person If I deliver goods to a man and he diâ—th an Action of Trover will lie against his Executors And here the Sheriff could not have waged his Law for the Debt is brought upon matter of Record upon which wager of Law lieth not but upon simple contract And the Sheriff hath here made himself Debtor in Law upon Record Justice Crook It is reason to charge the Sheriff because the Defendant is discharged and may plead that his goods were taken in Execution by the Sheriff in satisfaction of the same Debt And the Executors may be charged because no wager of Law lieth because the Debt is here brought upon matter of Record And he agreed with Justice Iones in the difference betwixt maleficium and contractum And therefore they did all conceive that the Action would lie And in Spekes Case in the Common Pleas it was voted that the Action would lie against the Sheriff 34. In a Habeas Corpus the Case was thus A man would erect a Tavern in Birchin-lane and the Mayor and Communalty for his disobedience because he would not obey them but would erect a Tavern there against their wills they knowing the same to be an unfit place did imprison him And the Opinion of the Court was That he should be remanded because that the Mayor and Communalty had authority over him and they might appoint him a place in which he might
erect his Tavern For it is a disorderly Profession and not fit for every place And it was adjudged in this Court That a Brewhouse ought not to be erected in Fleet-street because it is in the heart of the City and would be annoyance to it And if one would set up a Butchers shop or a Tallow-Chandlers shop in Cheap-side it ought not to be for the great annoyance that would ensue And therefore the Mayor and Communalty may redress it And therefore the party was remanded and was advised by the Court to submit to the Government of the City Note the Recorder certified the Custom That the Mayor might appoint a place 35. Upon a Recovery in a Court-Baron against one he offered here to wage his Law And Justice Barckley doubted whether wager of Law would lie in such Case To which Justice Iones said Yes and Barckly agreed hereunto because the Recovery was in a base Court and not in a Court of Record Vide 2 E. 4. 36. No antient Mill is Tithable but Mills newly erected shall pay Tithes by the Statute of 9 E. 2. 5. Meade against Axe in a Writ of Error to reverse a Iudgment 37. THe Case was Axe brought an Action against Meade for these words spoken of the Plaintiff a Dyer by the Dâ—fendant Thou art not worth a Groat And the Plaintiff added that these words amongst Citizens of such place where they were spoken have the common acceptation and doth tant amount as the calling of him Bankrupt The Errors which were assigned by Meade Plaintiff in the Writ of Error were 1. Because it is added that the words were spoken inter diversos ligeos and doth not say Citizens of the place where they have such acceptation 2. Because that the Judgment is Consideratum est and the words per Curiam left out And the Court was clear that for these two Errors the Judgment should be reversed But the Court was clear of Opinion That the words of themselves are not actionable and that the averment in this Case was idle and to no purpose because the words of themselves imply a plain and intelligent sense and meaning to every man And it was compared to the Cases Where there is no Latine for words there where words of no signification are put to express them there they ought to be explained by an Anglicè but where the words are significant there needs not any Anglicè Now if you will explain significant words under an Anglicè contrary to the meaning and true intendment of the word it self the Anglicè is void So in our Case of Averment The reason which was conceived wherefore the words of themselves are not Actionable Because that many men in their beginnings are not worth a Groat and yet their credit is good with the world But if he had laid specially That he was damnified and haâ— lost his Credit and that none would trust him upon this special matter the words would be Actionable Bonds Case 38. IN Trespass the Plaintiff declared That the Defendant entred in his Land and did cut down and carry away two Loads of Grass in the Plaintiffs Soil in a certain piece of Ground in which the Trespass was supposed to be done to strow the floor of the Church and that he cut two Loadâ— there to estrew the floor of the Church and did not say that it is the same Trespass c. And it was adjudged Error But the Court was clear that the Prescription for cutting of grass to estrew the Church was good because it was but in the nature of an Easement And so to have a washing-place in the land of another and so the custom here in London to shoot in the land of another and so for the Inhabitants of a town to have a way over the land of another to their Church But Mr. Rolls who moved the Case at the Bar said That it was adjudged that Inhabitants of a town by custom should have an Easement over the Freehold or in the Freehold of a Stranger but not profit Apprender But as I remember the Plaintiffs Freehold lay near the Church and for that reason the Court might conceive the same to be but an Easement Vide 2 H. 3. cited by Justice Iones Vid. Gatewoods Case 6 Rep. 60. b. Conysbies Case 39. UPon the Lease of an House the Lessee Covenanted that he would Repair the House with convenient necessary and tenantable Reparations The Lessor brought Covenant and alleaged a breach of the Covenants in not repairing for want of Tiles and dawbing with Morter and did not shew that it was not Tenantable And the Opinion of the Court was that he ought to have shewed it for the house may want small Reparations as a Tile or two and a little Morter and yet have convenient necessary and tenantable Reparations 40. A Writ of Error was brought and the Error assigned was want of Pledges And the Judgment was reversed although it was after Verdict And so was it adjudged in Dr. Hussies case and Young and Youngs case in this Court and the Reason was given because that otherwise the King should lose his Amercement 41. Fish in the River are not Titheable if not by Custome 42. Two referred themselves to Arbitrement and the Arbitrators arbitrate that one of them should pay a certain sum to the other and the other in consideration thereof should acquit him of a Bond wherein they both were bounden to a third person in a 100 lib. eo circiter and it was objected That the Arbitrators had arbitrated a thing incertain by reason of these words eo circiter But the Opinion of the Court was That there was sufficient certainty because that in this Case it doth not lie in their power to know the direct sum and because a small variation is not material but if they as in Salmons case 5 Rep. will arbitrate that one shall be bound in a Bond to another and not express in what sum the same is utterly void for the incertainty Difference was taken where the Arbitrators arbitrate one party to do a thing which lieth in his power and where not without the help of a third person there the Arbitrament is void and in the principal Case the difference was taken by the Court where the Bond is forfeit and the penalty is incurred and where not or the day of payment is not incurred there payment at the day is a good discharge and acquittance but where it is incurred it is not But Justice Iones said That he might compel the Obligee upon payment although the Bond was forfeit to deliver the Bond by Subpoena in Chancery or that he suffer an Action to be brought against him and then to discharge it and pay it Goodman against VVest Debt upon the Statute of 5 Eliz. Cap. 9. 43. THere was an action brought against the Plaintiff in the Common Pleas who procured Process to issue against the Defendant for his Testimony in his Cause and a Note of
the Process was lest at the Defendants house being sixty miles from London and twelve pence to bear his charges which the party did accept And the party who served the Process promised the Defendant sufficient costs And here Mr. Iones who was of Counsel with the Defendant took three Exceptions 1. Because the Process was not served upon the Defendant as the Statute requires but a Note only thereof and it being a Penal Statute ought to be taken strictly 2. There was but 12 d. delivered to the Defendant at the time of the serving of the Process which is no reasonable sum for costs and charges according to the distance of place as the Statute speaks and therefore the promise that he would give him sufficient for his costs afterwards is not good 3. The party who recovers by force of this Statute ought to be a party grieved and damnified as the Statute speaks by the not appearance of the Witness and because the Plaintiff hath not averred that he had loss thereby by his not appearance therefore he conceived the Action not maintenable For the first the Court was clearly against him because it is the common course to put divers in one Process and to serve Tickets or to give notice to the first persons who are summoned and to leave the Process it self with the last only and that is the usual course in Chancery to put many in one Subpoena and to leave a Ticket with one and the Label with another and the Writ with the third and that is the common practice and so the Statute ought to be expounded But if there be one only in the Process there the Process it self ought to be left with the party For the second the Court did conceive That the acceptance should bind the Defendant but if he had refused it there he had not incurred the penalty of the Statute For he ought to have tendred sufficient costs according to the distance of the place which 12 d. was not it being 60 miles distant But for the third and last Exception the Court was clear of Opinion That the Action would not lie for want of Averment that the Plaintiff was damnified for the not appearance of the Defendant And so it was adjudged that the Plaintiff Nihil capiat per Billam 44. The Opinion of the Court was That whereas one said of another That he will prove that he hath stollen his Books that the words are actionable for they imply an affirmative and are as much as if he had said That he hath stollen my Books And so if I say of another That I will bring him before a Iustice of Peace for I will prove that he hath stollen c. although the first words are not actionable yet the last are Molton against Clapham 45. THe Defendant upon reading Affidavits in Court openly in the presence and hearing of the Justices and Lawyers said There is not a word true in the Affidavits which I will prove by forty Witnesses and these words were alledged to be spoken maliciously And yet the Court was clear of Opinion that they will not bear Action And the reason was because they are common words here and usual where an Action is depending betwixt two for one to say That the Affidavit made by the other is not true because it is in defence of his cause And so it was here The Defendant spake the words upon the reading of the Affidavits in a cause depending betwixt the Plaintiff and the Defendant And therefore if I say That J. S. hath no Title to the Land if I Claim or make Title to the Land Or if I say That J. S. is a Bastard and entitle my self to be right Heir the words are not actionable because that I pretending Title do it in defence thereof And Justice Barckley said That there are two main things in Actions for words the words themselves and causa dicendi and therefore sometimes although that the words themselves will bear Action yet they being considered causa dicendi sometimes they will not bear Action Now in our Case causa dicendi was in his own defence or his Title and therefore they will not bear Action 46. Outlawry was reversed for these two Errors 1. Because it was not shewed where the party Outlawed was inhabitant 2. Because it was shewed that Proclamations were made but not that Proclamation was made at the Parish-Church where c. Buckley against Skinner 47. THere was Exception taken because that the Defendant pleaded and justified the Trespass cum equis and said nothing to the Trespass done porcis bidentibus And the Opinion of the Court was That the Plea was insufficient for the whole And Justice Iones said That if several Trespasses are done to me and I bring Trespass and the Defendant justifie for one or two and sayeth nothing to the other that the whole Plea is naught because the Plea is intire as to the Plaintiff and the demurrer is intire also But Justice Barckley was of Opinion that the Plea was naught quoad c. only and that Judgment should be given for the other Vide 11. Rep. 6. b. Gomersall and Gomersalls Case 48. A man pleaded a descent of a Copy-hold in Fee The Defendant to take away the descent pleaded That the Ancestor did surrender to the use of another absque hoc that the Copy-holder died seised And the Opinion of the Court was That it was no good traverse because he traversed that which needed not to be traversed for being Copy-hold and having pleaded a surrender of it the party cannot have it again if not by surrender Like the Case of a Lease for years Helliers Case 6 Rep. 25. b. For as none can have a Lease for years but by lawful conveyance so none can have a Copy-hold Estate if not by surrender But if a man plead a descent of inheritance at the Common Law there the defendant may plead a feoffment made by the Ancestor absque hoc that he died seised because he may have an estate by disseism after the feofment Traverse of the descent and not of the dying seised is not good so was it adjudged in this Court Vide 24 H. 8. Dyer 49. It was moved in Arrest of Judgment upon an Action of Trespass upon the Statute of 2 E. 6. cap. 13. because that the Plaintiff said that the Defendant was Occupier only and did not shâ—w how he occupied or what interest he had And the 〈◊〉 â—pinion of the Court was that he need not because here he makes no Title and whosoever it be that taketh the Tithe is a Trespasser And therefore Justice Iones said That it was adjudged in this Court that an Action lieth against the disseisor for the Tithes so against a servant and so if one cut them and another carry them away an Action lieth against any of them 50. The Parish of Ethelburrow in London alledged a custome that the greater part of the Parishioners have used to
choose their Church-wardens and they chose two the Parson chose a third The Official of the Bishop gave Oath to one of them chosen by the Parish but refused to swear the other and would have sworn the party chosen by the Parson but the Parish was against it upon which the Parson Libelled in the Ecclesiastical Court And a Mandat was here praid That the Official swear the other who was chosen by the Parish and a Prohibition to stay the Suit in the Ecclesiastical Court. Upon the Mandat the Justices doubted and desired that Presidents and Records might be searched and at length upon many Motions Presidents and Records shewed a Mandat was granted But there being Suit in the Ecclesiastical Court bâ— the other whom the Parson chose a Prohibition was granted without any difficulty But at first the Counsel prayed a Prohibition for not swearing the other which the Court refused to grant because there was no proceeding in the Ecclesiastical Court and a Prohibition cannot be granted where there is no proceeding by way of Suit Vaughan against Vaughan in Action upon the Case upon Assumpsit 51. THe Defendant did promise that he would make such a Conveyance of certain Lands and pleaded That he had made it but did not shew the place where it was made And the Court was clear of Opinion that he need not for it shall be intended upon the Land And so in case of performance of Covenants it is not needful to shew the place where c. Norrice and Norrices Case 52. COpy-holder for life where the custome is That if the Tenant die seised that he shall pay a Heriot The Lord granted the Seigniory for 99 years if the Tenant should so long live And after that he made a Lease for 4000 years Tenant for Life is disseised or more properly ousted and died Here were two Questions 1. Whether there were any Heriot to be paid and admitting there were yet who should have it whether the Grantee for 99 years or he who had the 4000 years And the Court was clear of Opinion in both points without any argument 1. That a Heriot was to be paid not withstanding that the Tenant did not die seised because he had the estate in right and might have entred although he had not the possession And Justice Barckley compared it to the Case in C. 3. Rep. 35. a. in Butler and Bakers Case where a man hath one acre of Land holden in Capite and a hundred acres of Socage Land and afterwards he is disseised of the Capite Land and afterwards makes his will of all his Socage Land in that case he is a person having of Capite Land as the Statute speaks And yet that right of Capite Land shall make the devise void for the third part for notwithstanding the disseisin yet he is Tenant in Law And as to the second point the Court was clear of Opinion also That he in remainder or he that had the Estate for 4000 years for note the Action was brought by him in the Remainder for the Heriot should not have it And their reason was because the Tenant for life was not the Tenant of him who had the future interest of 4000 years but of him who had the interest for 99 years But they were not clear of opinion that the Grantee for 99 years should have the Heriot Justice Barckley was that the Grantee for 99 years should have it But Justice Iones there being then none in Court but they haesitavit And the reason of the doubt was because that eo instante that the Tenant died eodem instante the estate of the Grantee for 99 years determineth Justice Iones put this Case A Seigniory is granted for the life of the Tenant the remainder over in fee the Tenant dieth Who shall have the Ward Justice Barckley said he who is Grantee of the particular estate but Iones seemed to doubt it Vide 44 E. 3. 13. Lewes against Jones in a Writ of Error 53. JUdgment was given for Iones against Lewes in an Action brought in the Common Pleas And Lewes here brought a Writ of Error and assigned for Error That he was an infant at the time of the Action brought against him And that he appeared by Attorney whereas he ought to appear by Guardian or procheine amy The defendant pleaded in avoidance of this Writ of Error That there was no Warrant of Attorney The Plaintiff allegando shewed the Error before And the Defendant pleaded in nullo erratum est And the Judgment was reversed But the Opinion of the Court was That the better way had been for the Plaintiff to have demurred in Law for there being no warrant of Attorney there was no appearance at all and so are the Books 38 E. 3. and 14 E. 4. 54. In Vtburt and Parhams Case it was agreed That a man may be Non-suit without leave of the Court but he cannot discontinue his Suit without consent of the Court. Davis and Bellamies Case in Attaint 55. THe Defendant brought Attaint and the Verdict was affirmed and Costs prayed upon this Rule that where the Plaintiff shall have costs there the Defendant shall have costs But they were denied by the Court for that ought to be taken in the original Action and not in case of Attaint But upon the restituatur there costs shall be given but that is in the original Action 56. If two joynt-tenants be of a Rectory and one sueth for Tithes by himself only it is nâ— cause of Prohibition So if a Feme Covert sue solely upon a desamation a Prohibition shall not be granted 57. The Sheriff of a County made a Warrant Balâ—ivis suis to arrest the body of such a man and the Bayliffs of the Liberâ—y return a Rescous And Exception was taken to it because that the Warrant was Ballivis suis and the Return was made by those who were not his Bayliffs and it was adjudged for the Liberty might be within his Bayliwick and so are all the Presidents And there was another Exception because the place of the Rescous was not shewed and for that the Book of 10 E. 4. was cited for there the Rescous was adtunc ibidem and did not shew the place To that it was answered by the Court and agreed that adtunc ibidem is altogether incertain if the place be not shewed but in the principal Case the place was shewed at the first and always after that tunc ibidem only without naming of the place and adjudgâ—d good For that tunc ibidem throughout the Declaration hath reference to the place first shewed and it was adjudged good 58. Outlawry was reversed for this Error because that the Exigent was Secund exactus ad Com' meum ibidem c. 59. A Hundred may prescribe in Non decimando and it is good for it is the custome of the County which is the best Law which ever was But a Parish or a particular Town cannot prescribe in Non decimando And
therefore iâ— the King be deceived either in point of profit or in point of Title his Grant is void 9 H. 6. Where he is not deceived in point of profit he shall not avoid the Grant 26 H. 8. The second reason That a Deed ought to be construed Vt res magis valeat quam pereat 34 H. 6. A man having a Reversion deviseth his land in Manibus thereby the Reversion passeth 9 E 4. 42. Release of all Actions against Prior and Covent shall be construed and intended all Actions against the Prior only for an Action cannot be brought against the Covent Farther by this construction you would avoid this deed and by the Rule of Law the deed and words of every man shall be taken very strong against himself ut res magis valeat as is said before And it is against reason to conceive that it was the meaning of the parties that nothing should pass A third reason was because the grant was a distinct clause of it self And the words which were objected at the Bar to be restrictive were in another distinct clause and therefore shall not restrain that which was before for words restrictive ought to be continued in one and the same sentence Wherefore they having granted all their Tithes in Chesterton by one clause the false recital afterwards in another clause shall not make the grant void See 3 4 Eliz. Dyer in Wast 31 Eliz. the Lord Wenworths Case in the Exchequer upon this Rule of distinct clauses And Atkins and Longs case in the Common Pleas upon which cases Justice Iones did rely The fourth reason was That construction ought to be made upon the whole Deed And it appeareth by the context of the Deed That it was the meaning of the parties to grant the Tithes by the Deed. Further the Exception of the four things sheweth That it was the meaning of the parties to grant all things not excepted as the Tithes in this Case For exceptio firmat Regulam And to what purpose should the Exception be if they did not intend to pass all other things not excepted See 4 Car. Hâ—skins and Trâ—ncars Case Sir Robert Napwiths Case 21 Iac. cited by the chief Jâ—â—tice to that purpose Wherefore it was agreed by the whole Court that Judgment should be given for the Defendant And the Opinion of the Court was clear also That although some of the Tithes had been in the Tenure of Margaret Petâ—e that yet the grant was good And that was after Argument upon the Demurrer to avoid all scruples to be after made by Counsel because it was conceived That some of the Tithes were in her Tenure Crisp against Prat in Ejectione firme 67. THe Case upon the four Statutes of Bankrupts viz. 34 H. 8. 13 Eliz. 1 Iac. and 21 Iac. was thus Ralph Brisco 9 Iac. purchased Copyhold to him and his Son for their lives the Remainder to the Wife in Fee 11 Iac. he became an Inholder and about twelve years after a Commission of Bankrupt is obtained against him And thereupon the Copyhold-land is sold by the Commissioners to the Defendant Ralph Brisco dieth and his Son Iohn Brisco entred and made the Lease to the Plaintiff The Defendant entred upon him and he brought an Ejectione firme And Judgment was given upon solemn argument by the Justices for the Plaintiff The first point was Whether an Inholder be a Bankrupt within these Statutes And it was resolved by all the Justices viz. Iones Crook Barckley and Bramstone chief Justice that an Inholder quatenus an Inholder is not within these Statutes Justice Barckley and Justice Iones one grounded upon the special Verdict the other upon the Statutes did conceive That an Inholder in some cases might be within these Statutes Justice Barckley did conceive upon this special Verdict that this Inholder was within them because it is â—ound That he got his living by buying and selling and using the Trade of an Inholder And he conceived upon these words Buying and selling in the verdict and getting his living thereby although that the Jury have also found him an Inholder that the same is within the Law And he agreed That he who liveth by buying or selling and not by both is not within the Law but in our case the Jury have found both And it hath been adjudged That he who buys and sells cattle and stocks his ground with them that he may be a Bankrupt within those Statutes I agree that a Scrivener was not within 13 Eliz. for he doth not live by buying and selling but by making use of the monies of other men but now he is within 21 Iac. But in our case the Inholder buys his grass hay and grains and provision also for his Guests and by selling of them he lives But he agreed That if the Jury had found that he was an Inholder only and not that he did get his living by buying and selling that in that case he was out of the Law And for these reasons he did conceive That this Inholder as by the special Verdict is found was within the Statutes of 13 Eliz. and 21 Iacobi Justice Iones An Inholder may be or not be within these Laws upon this difference That Inholder who gets his living meerly by buying and selling as many of the Inholders here in London do they are within these Statutes But those who have Lands of their own and have hay and grain and all their provisions of their own as many have in the Country those are not within the Statutes Farther he said That buying and selling doth not make men within these Statutes for then all men should be within the Statutes but they ought to be meant of them who gain the greatest part of their living thereby and live chiefly or absolutely thereby But Bramston chief Justice and Justice Crook were clear of Opinion that an Inholder could not be a Bankrupt neither by the Statutes nor according as it is found by the special Verdict And their reason was because that an Inholder doth not live by buying and selling for he doth not sell any thing but utter it He which sells any thing doth it by way of contract but an Inholder doth not contract with his Guests but provides for them and cannot take unreasonable rates as he who sells may and if he doth he may be Indicted of Extortion which the seller cannot Wherefore they concluded that an Inholder is not within the Statute of 13 Eliz. 1 Iac. Justice Crook remembred these Cases Webb an Inholder of Vxbridge brewed in his house and sold his Beer to his Guests And it was adjudged in the Exchequer that it was not within the Statute of Brewers And Bedells Case who being a Farmer bought and sold cattle and adjudged that he was not a Bankrupt within these Statutes And he put thâ—se cases upon this reason That where the Statutes said Get their living by buying and selling that it ought to bâ—â—or the greater part that they gain
made a Feoffment to the use of himself for life the remainder in tail to I. S. He in the remainder Levied a Fine And the Counsel of the Marches upon a surmise That the Tenant for life died seised according to their Instructions would settle the possession upon the heir of Tenant for life against the Conusee For their Instructions were made That where a man had the possession by the space of three years that the same should be settled upon him until trial at Law were had But the whole Court was against it because it doth appear that he had but an estate for life and so the possession appertained to him in the remainder And here it was said by Justice Barckley that their Opinion hath been That the possession of Tenant for life should be the possession of him in the Remainder as to this purpose Note that the Principal case here was although the Case before put was also agreed for Law thus Tenant in Tail levied a Fine to the use of himself for Life the remainder in Fee to I. S. and died In that Case the Council in the Marches would settle the possession upon the heir of Tenant in tail against the Purchaser who held in by the Fine which had bar'd the estate tail by which the Issue claimed and the whole Court was against it for which cause a Prohibition was granted 80. Habeas corpora was directed to the Porter of Ludlore to bring the bodies of Iohn Shielde and William Shielde into the Kings Bench the case shortly as appears upon the retorn was this Powell the Father brought a Bill in the nature of an Information against the said Iohn and William Shield before the Council of the Marches in Wales for an unlawful Practice Combination and Procurement of a clandestine Marriage in the night betwixt Mary Shield a Maid-servant and the Son of Powell who was a Gentleman of good credit and worth the Parson also being Drunk as he himself sware and the same also being without Banes or Licence for which offence they were severally Fined to the King and an hundred Marks damages given to the Plaintiff and farther ordered by the Council that they should be imprisoned till they paid their several fines to the King and damages to the Party and found Sureties to be bound in Recognisance for their good behaviour for one year and till they knew the farther Order of the Council and these were the causes which were retorned And upon this retorn Glynn who was of Counsel with the Prisoners moved many things and many of them as was conceived by the Court altogether impertinent But the Objections which were pertinent were these First That the Councel of the Marches as this case is have no Jurisdiction because the clandestine Marriage is a thing meerly Spiritual and therefore not within their instructions The second was That they have exceeded their Instructions in that they have given damages to the party above fifty pounds For by their Instructions they ought not to hold Plea where the Principal or Damages exceed fifty pounds But as to the first he said there may be this Objection That they did not punish them for the clandeâ—â—inâ— Marriagâ— which in truth is a thing meerly Spiritual but for the unlawful Practise and Combination and for the execution of it To which he answered That they have not Juristiction of the Principal and therefore not of the Accessory here note that it was afterwards said by Bramston Chief Justice That the unlawful Practise and Combination was the Principal and the clandestine Marriage but the Accessory which was not contradicted by any Farther it was objected by Glynn That they were Imprisoned for the damages of the Plaintiff and it doth not appear whether it was at the Prayer of the Party as he ought by the Law Bankes the Kings Atturny-General contrary And as to the first Their Instructions give them power to hold Plea of unlawful Practises and Assemblies And this is an unlawful Practise and Assembly and therefore within their Instructions And although that Heresie and clandestine Marriage and such offences per se are not within their Instructions yet being clad with such unlawful circumstances and practises they are punishable by them As to the second he said The Instruction which restraineth them that they do not hold Plea above fifty pounds is only in civil Actions at the several suit of the party But there is another Instruction which gives them power where the cause is criminal to assess damages according to the quality of the Offence and at their discretions As to the third Objection he said That the Retorn being that they were in execution for the damages it ought to be meant at the Prayer of the Party otherwise it could not be For which causes he prayed thâ—â— the Prisoners might be remanded And the whole Court Crooke being absent were clear upon this Retorn That they should be remanded because it appeareth that their Fines to the King were not payed And therefore although that the other matters had been adjudged for them yet they ought to be remanded for that one And as to the Objections which were made the Court agreed with Mr. Attorney except in the point of Damages and for the same reasons given by him But as to the point of the Damages whether they have gone beyond their Instructions and so exceeded their power in giving above fifty pounds damages or not It seemed to the Court they had and as it seemed to them if the Retorn had been That the Kings Fines were paid it would have been hard to maintain that the assessing above fifty pounds damages was not out of their Instructions but because the Kings Fines were not paid they were Remanded without respect had thereunto for the reasons given before 81. It was said by the Court That when Judgment is given in this Court against another and Execution upon it and the Sheriff levieth the mony the Lord Keeper cannot order that the mony shall stay in the Sheriffs hands or order that the Plaintiff shall not call for it for notwithstanding such Order he may call for it And it was farther said by the Court That an Attachment shall not be granted against the High Sheriff for the contempt of his Bayliffs And a Writ of Error is a Supersedeas to an Execution but then there ought to be notice given to the Sheriff otherwise if he notwithstanding serve the Execution he shall not run in contempt for which an Attachment shall be granted 82. Serjeant Callis came into Court and moved this case Chapman against Chapman in Trespass done in Lands within the Dutchy of Cornwal which were Borough-English where the custome was that if there were an estate in Fee in those Lands that they should go to the younger Son according tthe custome but if in Tail the should descend to the Heir at Common Law And it was moved by him that the custom was not good because it cannot
which cometh to the benefit of the Parson there if he demand Tithes of the thing in lieu whereof this is done that a Prohibition shall be granted And there is another rule That Custom may make that titheable which of it self is not titheable And here he said to Dr. Skinner being then in Court That he had two matters to help him and if any of them be found for him that a Prohibition ought not to be awarded 101. Justice Barckley said That if a man be living at the day of Nisi prius and dieth before the day in Banck the Writ shall not abate So if a man be living the first day of the â—â—rliament and dieth before the last day yet he may be Attainted and the reason is because in the eye and judgment of Law they are but one day by relation which the Law makes 102. There were three Brothers the Eldest took Administration of the goods of the Father and after Debts and Legacies paid the younger Brothers sued the eldest in the Ecclesiastical Court to compel him to distribute the Estate And thereupon a Prohibition was prayed and denied by the Court for they having Jurisdiction of the Principal may have Jurisdiction of the Accessary 103. A. Libelled against B. in the Spiritual Court for these words Thou art a Drunkard and usest to be Drunk thrice a week And upon that 150 Caroli in Easter-Term as you may see before a Prohibition was prayed and granted And now Littleton the Kings Sollicitor came in Court and moved for a Consultation and he said that the Statute of Articuli Cleri gave power unto the Ecclesiastical Court to have conusance of those and the like words Register 49 F. N. B. 51. They may hold plea for defamation as for calling Adulterer or Usurer 13 H. 7. Kellaway 27 H. 8. 14. And he cited many Judgments in the like cases where Prohibitions had not been granted and amongst others this Case Mich. 20 Iac. inter Lewis Whitton Libel in the Ecclesiastical Court for calling him Pander and no prohibition granted And the like Case was for calling another Pimp and no Prohibition granted Justice Iones That a Prohibition should be granted for they have conusance of defamation for any thing which is meerly Spiritual or which doth concern it where they have conusance of the principal else not as in Heresie Adultery and the like but in this Case they have not Conusance of the principal True it is that it is peccatum But if they should punish every thing which is Sin they would altogether derogate and destroy the Temporal Jurisdiction And therefore if I say that another is an Idle man or envious these are deadly Sins and yet they have not Conusance of them And he cited Coltrops Case adjudged in the Common pleas which was our very Case in point and there he said that upon solemn debate it was adjudged That a Prohibition should be awarded Bramston Chief Justice agreed Barckley contrary That a Consultation should be awarded and he said in many Cases although they have Jurisdiction of the principal yet they shall not have Conusance as in the Case of 22 E. 4. tit ' Consultation But he said that the Offence of Drunkenness is mixt and is an offence against the Spiritual and Common Law also and if it be mixt both may hold plea and Adultery and Murder are the common effects of Drunkenness which are offences against both Laws and therefore he shall be punished by both But yet Barckley yielded to the Judgment cited by Iones And therefore the whole Court Crooke being absent was That a prohibition should be awarded 104. Rolls moved this Case The Parishioners of a certain Parish in Devonshire did alledge a Custom to chuse the two Churchwardens of the Parish and they did so the Parson chose another and the Archdeacon swore one of the Church-wardens chosen by the Parish and refused to swear the other but would have sworn him who was chosen by the Parson And because they did refuse him they were Excommunicate Rolls prayed a Mandat to the Archdeacon to compel him to swear the other chosen by the Parish and a Prohibition also by reason of the Excommunication And he cited a preeedent for it which was the case of Sutton-Valence in Kent And the whole Court Crooke being absent inclined to grant them for they said they conceived no difference betwixt London and the Country as to that purpose for as in London they are a Corporation and may take Land for the benefit of the Church So throughout England they are a Corporation and capable to take and purchase Goods for the benefit of the Church And therefore they did conceive there was no difference See the case before the case of the Parish of Saint Ethelborough London 105. Keeling moved to quash an Indictment of Rescous because it is shewed that the Rescous was at W. and doth not shew that W. was within this County and if it was not within the County then it was an Escape and no Rescous And we cannot aver in this case that it was out of the County Farther it was not shewed where the Rescous was so that upon the matter it is no Arrest nor was the Indictment vi armis as it ought to be As to the first the Court strongly inclined that they might well intend it to be within the County because the Indictment says in Com. meo apud W. tent But for the other Exceptions the Indictment was quashed 106. In Trespass of Assault and Battery and Wounding the Defendant pleaded Not Guilty as to the Wounding and pleaded special matter of justification as to the Assault and Battery and found for the Plaintiff and it was moved in arrest of Judgment That the plea was repugnant for Assault and Battery doth imply Wounding and therefore it is repugnant for him to justifie it for it is a confession of wounding But Justice Crooke and Justice Barckley the others being absent were clear that the plea was good for so is the common form of pleading and farther he might be guilty of the Battery and not of the wounding for Crooke said Wounding implied Assault and Battery but not è contra Brookes against Baynton 107. IN a Writ of Error to reverse a Judgment given iâ— the Court of Common pleas in Trespass for assault battery and wounding it was assigned for Error by Maynard That there was variance betwixt the Original and the Declaration for the Original was only of Battery and Wounding of himself and he declared of Battery and wounding of him and his horse also for he said that quendam equum upon which the Plaintiff equitavit percussit its quod cecidit c. and that was not helped by the Statute But Rolls contrary and here is no variance for the alledging of striking of the horse was only inducement to alledge the Battery of himself for he doth not bring the Action for the beating of his horse for it was not alledged
Error was brought to reverse a Judgment given in the Common pleas and after a Certiorari and Errorâ— assigned they in the Common pleas did amend the Record And by the whole Court Crooke only absent they cannot do it for after a transmittitur they have not the Record before them And Barckley said That the difference stands betwixt the Common Pleas and the Kings Bench and betwixt the Kings Bench and the Exchequer For the Record remains always in this Court notwithstanding a Writ of Error brought in the Exchequer-chamber and therefore we may amend after Wherefore the Court said that if the thing were amendable that they would amend it But the Court of Common Pleas cannot Sewel against Reignalls 110. THe case was thus Husband and Wise did joyn in an Action of Debt in the right of the Wife as Administratrix to I. S. And the Defendant being arrested at their suit did promise to the Husband in consideration that the Husband would suffer him to go at large that he would give him so much The husband and wise did joyn in an Action upon the Case upon the promise made to the husband alone And upon Non assumpsit pleaded it was found for the Plaintiff Porter moved in arrest of Judgment that the promise being made to the husband only that they ought not to joyn in the Action Barckley the Action is well brought for the husband is Administrator in the right of the wife for otherwise the consideration were not good For if he were not Administrator then he could not suffer him to go at large and then if he be Administrator in the right of his wife the promise which is made to the husband is in judgment of Law also made to the wise and they ought to joyn in the Action But Crooke Iones and Bramston Chief Justice contrary That â—â—e Action will not lie because the promise is of a collateral thing and not touching the duty due to the wise as Executrix for then perhaps it would have been otherwise And they said against the Opinion of Barckley that this sum received should not be assets in their hand And Bramston said that it is not like the case where a man promiseth to the father of Iane Gappe in consideration of a marriage to be had betwixt his daughter and him that he would make her a Joynture there as well the daughter as the father may bring the Action And it was adjourned 111. A Parson Libelled in the Ecclesiastical Court for Tithes And after Sentence Rolls moved for a Prohibition upon the Suggestion of a Modus decimandi but it was not granted because too late But Rolls took this difference and said that so had been the Opinion of the Court where the party pleads the Modus and where not for if he plead it there notwithstanding a Sentence Prohibition hath been granted contrary where he doth not plead it But notwithstanding the Court refused to grant a Prohibition 112. The Parishioners of a Parish together with the Parson sued the Churchwardens in the Ecclesiastical Court to render Accompt and recovered against them and Costs taxed Afterwards the Parson released the Costs and notwithstanding the Parishioners sued for the Costs and thereupon a Prohibition was prayed because that the Costs are joyntly assessed and the release of one would bar the others But the Opinion of the whole Court that a Prohibition shall not be granted For the costs recovered there an Action might be sued in the Ecclesiastical Court and therefore although that in our Law the release of one shall bar the others yet the Action being sued there and they having conusance thereof the same is directed according to their Law And therefore it hath been adjudged that if the husband and wise sue in the Ecclesiastical Court for the defamation of the wife and Sentence be given for them and Costs taxed and afterwards the husband releasâ—th the costs in the suit commenced in the Ecclesiastical Court it shall not bar the Wife for the reasons given before Brooke and Booth against Woodward Administrator of John Lower 113. IN Debt upon a Bond the Defendant prayed Oyer of the Condition which was entred in haec venba The Condition of this Obligation is such That if the Obligor did deliver to the Plaintiffs two hundred weight of Hops in consideration of ten pounds already paid and fifty five pound to be paid at the delivery and the Plaintiffs to chuse them out of twenty four Bags of the Obligors own growing and to be delivered at F. at a day certain Provided that if the Plaintiffs should dislike their Bargain that then they should lose their ten pounds and if they liked they should give ten pounds more c. Upon Oyer of which the Defendant pleaded that the Plaintiffs non elegerunt And upon that the Plaintiffs did Demur in Law and shewed for special cause of Demurrer that the Plea was double Withrington for the Plaintiffs that the Plea is double in that the Defendant hath alledged that he was ready and that the Plaintiffs non elegerunt which are both issuable pleas and each of them of it self admitting no request of the part of the Defendant requisite is sufficient in bar of the Action Besides he conceived as this case is that the first act ought to be done by the Defendant for he ought to shew the bags and request the Plaintiffs to make election And he compared it to the case in 44 E. 3. 43. and also to Hawlins case 5 Rep. 22. Farther he conceived that the Defendant ought to have alledged that he had twenty four bags and twenty four bags of his own growing for if he have not them it was impossible for the Plaintiffs to make choice and by consequence the condition broken Twisden contrary That the plea is not double for the alledging himself to be ready was but inducement to the subsequent matter quod non elegerunt And he relied only upon their election and in proof thereof he relied upon the Books 1 H 7. 16. and 24 E. 3. 19. Farther here no notice is requisite not he ought not to aver that he had them for he being bound to deliver them he is estopt to say that he hath them not 19 Eliz. Dyer 314. and 3 Eliz. Dyer As to the shewing of them we ought not to do it for the Plaintiffs ought to do the first Act viz. Request the Defendant to shew thâ— bags for them to make choice of And the whole Court strongly enclined against the Plaintiffs for the reasons before given and they advised them to waive the Demurrer and plead de novo which they did Thorps Case 114. IN an Action upon the Case upon Assumpsit it was agreed by the whole Court That where there is a mutual promise viz. A. promiseth to B. that he will do such a thing and B. promiseth to A. that in consideration thereof that he will do another thing If A. bring an Action against B. and alledge a
breach in non faciendo and saith that he is ready to do the thing which he promised but that the other refused to accept of it Notwithstanding the breach is well laid and the Action well lieth for it was idle and more than the Plaintiff was compelled to do to shew that paratus est to do the thing which he promised So that if there were a breach upon the part of the Defendant it is sufficient and if there was a breach on the Plaintiffs part the Defendant ought to bring his Action for it And the difference was taken by Bramston Where the promise is conditional and where absolute as in our case And agreeing with this difference it was said at the Bar and Bench That it was adjudged 115. Hutton moved to quash certain Presentments because they were taken in a Hundred-Court which is not the Kings Court and therefore coram non Iudice It was said by Justice Iones That a Hundred may have a Leet appendant to it and then they were lawfully taken Barckley and the whole Court answered because it doth not appear to the Court whether there was so or not that the Presentments were void 116. Concerning damage clear It was agreed that it was hard that the Plaintiff should be stopt of his Judgment until he had paid his damages clear For perhaps if the Defendant be insolvant the Plaintiff should pay more for damages clear than he should ever get And therefore the Court was resolved to amend it This damage clear is twelve pence in the pound of the damages given to the party in this Court and two shillings in the Common pleas See the Register where is a Writ for damage clear Harris against Garret 117. IT was agreed by the whole Court that it is no good plea to say That such an one was bound in a Recognisance and not to say per scriptum obligat ' and to conclude that it was secundum formam Statuti doth not help it But in a Verdict it was agreed to be good And according to this difference it was said by the Court That it was adjudged in Goldsmiths case and Fulwoods case 118. It was agreed by the Court that upon a Certiorari to remove an Indictment out of an Inferiour Court that the Defendant shall be bounden in a Recognisance to prosecute with effect viz. to Traverse the Indictment or to quash it for some defect And if he doth not appear an Attachment shall issue out against him Iustice Crooks Case 119. IT was agreed by the Court That although a Bill be preferred in the Starchamber against a Judge for Corruption or any other for any great misdemeanour yet if the Plaintiff will tell the effect of his Bill in a Tavern or any other open place and by that means scandalize the Defendant that the same is punishable in another Court notwithstanding the suit dependant in the Starchamber And so Iones said that it was adjudged in a Bill in the Starchamber against Justice Crooke which was abated because it was brought against him as Sir George Crooke only without addition of his Office and Dignity of Judge Trinit 16º Car ' in the Common Pleas. 120. AN Apothecary brought an Action upon the Case upon a promise for divers Wares and Medicines of such a value and shewed them in certain The Defendant pleaded in Bar that he had paid to the Plaintiff tot tantas denarior ' summas as these Medicines were worth and doth not shew any sum certain And the plea was holden to be no good plea wherefore Judgment was given for the Plaintiff 121. A Contract was made betwixt A. and B. Mercers That A. should sell to B. all his Mercery Wares and take his Shop of him In consideration of which A. promised that he would not set up his Trade in the same Town And adjudged a good Assumpsit in the Kings Bench as Littleton Chief Justice said But if one be bound that he will not use his Trade it is no good Bond. 122. Rolls moved this Case A Writ of Error was brought upon a Judgment given in Yarmouth and the Case was thus A. and B. were bound to stand to the Arbitrament of I. S. concerning a matter which did arise on the part of the wise of B. before coverture I. S. awarded That A. should pay to B. and his wife ten pounds at a place out of the Jurisdiction And thereupon upon an Action brought upon the Bond a Breach was assigned for not payment of the mony at the place And here it was objected That it was Error because it was there assigned for Breach the not payment of the mony at a place out of Jurisdiction and for that cause the Judgment was not well given Secondly because that the Award was That payment should be made to B. and his wiâ—â— which was out of the Submission But notwithstanding Judgment was affirmed by the whole Court. For as to the 〈◊〉 issue could not be taken upon payment or not payment oâ— of the Jurisdiction because it was not Traversable As 〈◊〉 the second the Controversie did arise by reason of the wiâ—e and therefore the Award was within the Submission beiâ—â— made that the payment should be to both 123. It was said by the Court that it was one Kellway Case adjudged in this Court That a Promise made to an Atturny of this Court for Solliciting of a Cause in Chanceâ—â— was good and that it was a good consideration upon whiâ—â— the Atturny might ground his Assumpsit For it was resâ—â—ved That it was a lawful thing for an Atturny to Sollicite 124. The Court would not give way for Amendments Inferiour Courts 125. By Iones and Barckley Justices If there be an insufficient Bar and a good Replication after a Verdict theâ—â— shall be a Repleading Contrary where there is no Verdict Smithson against Simpson 126. A. And B. were bound to stand to and observe suâ—â— Article Agreement Order or Decree as thâ— Kings Council of the Court of Request should make A brought an Action upon the Bond against B. and pleaded that the Kings Councel of the Court of Request made such Order and Decree and that the Defendant did not observe it The Defendant pleaded That the King and his Council did not make the Decree and adjudged by the Court that the Plea was not good 127. Sir Matthew Minkes was Indicted of Manslaughter and found Guilty And it was moved by Holâ—orne of Counsel with Sir Matthew that the Iudictment was insufficient because there was dans c. without adtunc ibid. according to Presidents as also because it was plagam sen contusionem which is incertain as also that the party killed languebat à pred' 15 die usque decimam sextam And he said That there was no time between those two days but it ought to have been That he languished from such an hour till such an hour and that he said were the ancient Presidents And he said That an Indictment that A.
it turns the Avowry into a Justification in our Case so as you shall not make us Trespassers but that we may well justifie to save our damages Crawley Justice that the Avowry is turned into a Justification and that there is sufficient substance in the Plea to answer the unjust taking the distress Justice Reeve that it is good by way of Avowry for the distress being lawfully taken at the time it shall not take away his avwry therefore he shall have Retorn for that was as a gage for the rent and therefore differs from the other Cases Justice Foster put this Case at the Common Law Distress was taken and before avowry Tenant for life died Whether he shall avow or justifie But all agreed that at the least the Avowry is turned into a Justification but it was adjourned 179. The Court demanded of the Protonotharies Whether a man might make a new assignment to a special Bar and they said no but to a common Bar only viz. that the Trespass if any were was in Bl. Acre there ought to be a new assignment by the Plaintiff but Reeve and Crawley Justices the other being absent held clearly that the Plaintiff might make a new assignment to a special Bar and further they said that the Plaintiff if he would might trise the Desendant upon his Plea but we will not suffer him to do so because that his Plea is meerly to make the Plaintiff to shew the place certain in his Replication in which the Trespass was done 180. The Disseisee levieth a Fine by Reeve and Crawley Justices it shall not give right to the Disseisor because that this Fine shall enure only by way of Estoppel and Estoppels bind only privies to them and not a stranger and therefore the Disseisor here shall not take benefit of it and therefore they did conceive the 2 Rep. 56. a. to be no Law Vid. 3 Rep. 90. a 6 Rep. 70. a. 181. Serjeant Callis prayed a Prohibition to the Court of Requests for cause of priority of Suit but by Foster and Crawley Justices the other being absent priority of Suit was nothing the Bill being exhibited there before Judgment given in this Court 182. The Case of White and Grubbe before being moved again it was said in this case by Reeve and Foster Justices that where a man is indebted unto another for divers wares and the debt is superannuated according to the Statute of 21 Iac. cap. 16. and afterwards they account together and the party found to be indebted unto the other party in so much mony for such wares in that Case although that the party were without remedy before yet now he may have debt upon accompt because that now he is not bound to shew the particulars but it is sufficient to say that the Defendant was indebted to the Plaintiff upon accompt pro diversis mercimoniis c. 183. A Prohibition was prayed unto the Council of the Marches of Wales and the Case was thus A man being posfessed of certain goods devised them by his will unto his wife for her life and after her decease to I. S. and died I. S. in the life of the wife did commence Suit in the Court of Equity there to secure his Interest in Remainder and thereupon this Prohibition was prayed And the Justices viz. Banks Chief Justice Crawley Foster Reeve being absent upon consideration of the point before them did grant a Prohibition and the reason was because the devise in the remainder of goods was void and therefore no remedy in equity for Aequitas sequitu◠legem And the Chief Justice took the difference as is in 37 H. 6. 30. Br. Devise 13. and Com. Welkden Elkingtons Case betwixt the devise of the use and occupation of goods and the devise of goods themselves For where the goods themselves are devised there can be no Remainder over otherwise where the use or occupation only is devised It is true that heir looms shall descend but that is by custome and continuance of them and also it is true that the devise of the use and occupation of Land is a devise of the land it self but not so in case of goods for one may have the occupation of the goods and another the Interest and so it is where a man pawns goods and the like For which cause the Court all agreed that a Prohibition should be awarded Trin. 17º Car. in the Kings Bench. 184. A Man was sued in London according to the custom there for calling a woman Whore upon which a Habeas corpus was brought in this Court and notwithstanding Oxfords case in the 4 Rep. 18. a. which is against it a Procedendo was granted and it was said by Serjeant Pheasant who was for the Procedendo and so agreed by Bramston Chief Justice and Justice Malle◠That of late times there have been many Procedendo's granted in the like case in this Court 185. An Orphan of London did exhibite a Bill in the Court of Requests against another for discovery of part of his estate And Serjeant Pheasant of Counsel with the Defendant came into this Court and Prayed a Prohibition upon the custom of London That Orphans ought to sue in the Court of Orphans in London but the whole Court which were then present viz. Chief Justice Bramston Heath and Mallet Justices were against it because that although the Orphan had the Priviledge to sue there yet if he conceive it more secure and better for him to sue in the Court of Requests then he may waive his priviledge of suing in the Court of Orphans and sue in the Court of Requests for quilibet potest renunciare juri pro se intraducto c. and Heath said that he always conceived the Law against the Case of Orphans 5 Rep. 73. b. But which is stronger in this Case the Court of Orphans did consent to the Suit in the Court of Requests and therefore there is no reason that the Defendant should compel the Infant to sue there wherefore they would not grant a Prohibition but gave day until Mich. Term to the Defendants Counsel to speak further to the matter if they could Trin. 17º Car. in the Common Pleas. Dewel against Mason 186. IN an Action upon the Case upon an Award the case was this The Award was that the Defendant should pay to the Plaintiff eight pound or three pound and Costs of suit in an Action of Trespass betwixt the Plaintiff and Defendant as appears by a note under the Plaintiffs Attorneys hand ad libitum defendentis c. And the Plaintiff doth not aver that a note was delivered by the Attorney of the Plaintiff to the Defendant and the Defendant pleaded Non assumpsit and it was found for the Plaintiff and it was moved in arrest of Judgment for the reason given before Rolls contrary that there needs no averment and he said it was Wilmots case adjudged in this Court Hill 15 Car. where the Case was that the Defendant should
should be punished for it he conceived that there is a difference betwixt an Officer of an inferiour Court which ousts the Common Law of Jurisdiction and one of the four Courts at Westminster for where an Officer justifies an Act done by the command of an Inferiour Court he ought to shew precisely that it was in a Case within their Jurisdiction and he cited 20 H. 7. the Abbot of St. Albâ—rs case Justice Heath contrary the party is servant to the Court and if he have done his duty it should be hard that he should be punished for it and he agreed that there is a difference betwixt the Act of a Constable and a Justice of Peace and the Act of a Servant of a Court for the Servant ought to obey his Master and although it be an inferiour Court yet it is a Court of Record and confirmed by Act of Parliament and all that is confessed by the Demurrer Bramston Chief Justice that the Plea is naught because that it is too general and incertain true it is that it is hard that the Officer should be punished in this case for his obedience to which he is bound and it is as true that the Officer for doing of an act by the command of the Court whether it be just or unjust is excused if it appear that the Court hath Jurisdiction but here it doth not appear that the Court hath Jurisdiction and if the Court had not Jurisdiction then it is clear that the Officer by obeying the Court when they have not Jurisdiction doth subject himself to an Action of false imprisonment as it is in the Case of the Marshalsy in the 10 Rep. but it was adjorned c. The Bishop of Hereford and Okeleys Case 196. THe Bishop of Hereford brought a Writ of Error against Okeley to reverse a Judgment given in the Common Pleas the point was briefly this One under the age of twenty three years is presented to a Benefice Whether the Patron in this case shall have notice or that lapse otherwise shall not incur to the Bishop which is grounded upon the Statute of 13 Eliz. cap. 12. And upon debate by the Counsel of the Plaintiff in the Writ of Error that which was said being upon the general Law of notice nothing moved the Court against the Judgment given in the Common Pleas upon solemn debate as it was said and therefore they gave day to shew better matter or else that Judgment should be affirmed The Reasons of the Judgment in the Common Pleas were two First upon the Proviso of the Statute which says That no Lapse shall incur upon any deprivation ipsâ— facto without notice Second reason was upon the body of the Act which is That admission institution and induction shall be void but speaks nothing of presentation so as the presentation remaining in force the Patron ought to have notice and that was said was the principal reason upon which the Judgment was given and upon the same reasons the Court here viz. Mallet Heath and Bramston Justices held clearly that the notice ought to be given or otherwise that Lapse shall not incur but they agreed that if the Act had avoided the presentation also that in such case the Patron ought to have taken notice at his peril being an avoydance by Statute if the Proviso help it not Mich. 17º of the King in the Common Pleas. 197. A. Said of B. that he kept false weights for which words B. brought an Action upon the case shewed how that he got his living by buying and selling but did not shew of what profession he was and by all the Court viz. Foster Reeve Crawley and Bankes in the Common Pleas the Action will not lie First because he doth not shew of what Trade or profession he was and it is too general to say that he got his living by buying and selling Secondly because although that he had shewed of what Trade he was as that he was a Mercer as in truth he was that yet the words are not actionable because there is nothing shewed to be done with them or that he used them and it can be no scandal if the words do not import an act done by the false weights for he may keep them and yet not use them and he may keep them that another do not use them and the keeping of false weights is presentable in Leet if the party use them otherwise not And where one said of another That he kept a false Bushel by which he did cheat and cousen the poor the same was adjudged actionable that is True and differs from this case for there he said he not only kept them but used them and cheated with them but it is otherwise in our case and this case was compared to Hobarts Reports where one said of another That he kept men which did rob upon the High-way and adjudged that the words were not actionable for he might keep them and not know of it Bankes the action upon the case for words is to recover damages and here it can be no damage First because he doth not shew of what profession he was and Secondly because although he had shewed it yet the words will not bear Action and Judgment was given against the Plaintiff 198. It was moved by Serjeant Wild That depositions taken in the Ecclesiastical Court might be given in evidence in a Trial in this Court and the Court was against it because they were not taken in a Court of Record and they said although the parties were dead yet they ought not to be allowed and by Bankes Chief Justice no depositions ought to be allowed which are not taken in a Court of Record and Foster and Reeve were of Opinion that although the parties would assent to it yet they ought not to be given in evidence against the constant rule in such case Crawley contrary for he said that a writing which by the Law is not Evidence might be admitted as Evidence by the consent of the parties 200. A man was bound to keep a Parish harmless from a Bastard-child and for not performance thereof the Obligee brought Debt upon the Bond the Defendant pleaded that he had saved the Parish harmless and did not shew how the Plaintiff replied and shewed how that the Parish was warned before the Justices of Peace at the Sessions of Peace and was there ordered by Record to pay so much for the keeping of the childe and because the Defendant had not saved him harmless c. The Defendant pleaded Nul tiel Record upon which the Plaintiff did demur And here two things were resolved First that the Plea Nul tiel Record upon an Order at Sessions of Peace is a good Plea because that an Order at the Sessions of Peace is a Record Secondly that notwithstanding Judgment ought to be given for the Plaintiff because the Dâ—fendants bar was not good in that he hath pleaded in the affirmative that he hath saved the Parish
by that to discharge themselves which the Defendant here should lose if the Obligation should stand in force as to him only 8 Rep. 136. Sir Iohn Needhams case If a woman Obligee taketh one of the Obligors to be her Husband the same is a discharge to the other Two commit a trespass the discharge of one is the discharge of both yet it is there joynt or several at the will of the party who releaseth But it may be objected that it is a Casual act here and therefore shall not be so prejudicial to the Plaintiff here To that he answered That that shall not help him because it is his own lachess and default and the same Objection might have been made in Piggots case where the Obligation is altered in a material place by a stranger without the privity of the Obligee and yet there it was resolved that the same shall avoid the deed Besides if the Obligee had delivered the same over to another to keep and it had been eaten with Rats and Mice yet that would not excuse him and by the same reason shall not help the Plaintiff here Matthewsons Case C. 5 Rep. differs much from this case because there the Covenants are several and not joynt as in this Case and therefore if the Covenanâ—ee doth release to one of the covenanters that shall not discharge the others For the Cases of 14 H. 8. and Piggots Case they differ much from our Case for there the covenants or conditions against the Law are void ab initio by the construction of the Law and no alteration as in our case by the Act or default of the party by matter ex post facto and therefore those Covenants or Conditions against the Law cannot vitiaâ—e those which were good and according to Law because they took not any effect at all So if a Monk and another be bound the Bond is void as to the Monk and good as to the other because there is no subsequent alteration by the party but the same is void by construction of law ab initio and upon the same reason stands the Case of the Fine put of the other side For which causes he prayed Judgment for the Defendant Note the Court viz. Foster Reeve Crawley and Bankes Chief Justice did strongly incline that Judgment ought to be given for the Defendant and their reason was That if the Obligee by his Act or own lachess discharge one of the Obligors where they are joyntly and severally bound that the same discharges them all but gave day for the further debating of the Case for that this was the first time it was argued 207. By Justice Foster and Bankes Chief Justice a Trust is not within the Statute of 21 Iac. cap. 16. of Limitations and therefore no lapse of time shall take away remedy in Equity for it but for other Actions which are within the Statute and the time elapsed by the Statute there is no remedy in Equity and that they said was always the difference taken by my Lord Keeper Coventry but Justice Crawley said that he had conferred with the Lord Keeper and that he told him that remedy in Equity was not taken away in other Actions within this Statute 208. It was said by the whole Court that they never grant an Attachment without an Affidavit in writing 209. The Case before of the warrant of Attorney was betwixt Firburne and Cruse and was entred Trinit 17 Car. And now it was resolved upon reading of Presidents in Court that no warrant of Attorney shall be made or filed because that it is an error and not helped being after judgment in Nihil dicit that none of the presidents came to our case The greatest part of presidents were these viz. the first was 1 Car. Taylor against Thellwell the same appeared to be upon demurrer and no Judgment given Another was Mich. 3 Car. Peasgrove against Brooke and in that Case it did not appear that any Writ of Error was brought Another was Paseh 5. Car. Tayler against Sands Another Hill 6. Car. Smith against Bland in that it was conceived to be amendment only and it was agreed for Law that where there was a warrant of Attorney it might be amended for any defect in it as where there is a misprision of the name or the like as it is resolved Br. amendment 85. and so is 1 and 2 Phil. and Mar. Dyer 105. pl. 6. expresly where Alicia for Elizabetha in the warrant of Attorney was amended and that after a Writ of Error brought by construction of the Statute of 8 H. 6. and so is 9 E. 4. Br. amendment 47. And Justice Reeve said it cannot appear to us by any of the said Presidents whether there was a warrant of Attorney or not and perhaps upon examination it might appear to the Judges that there was a warrant of Attorny which is helped by the Statute of 8 H. 6. and that might be the reason which caused them to order that it should be filed but that doth not appear to us and therefore the presidents were not to the purpose Besides it doth not appear by any of them whether judgment were given or not and before judgment it may be amended as the Book is 9 E. 4. 14. br amendment 47. Besides in one of them the Plaintiff did neglect to remove the Record which is the very case in Dyer and that was the reason that the warrant of Attorney was filed but in this Case there appearing to be no warrant of Attorney it is not helped by the Statute of 8 H. 6. and after a Judgment and that upon Nihil dicit which is not holpen by the Statute of 18 Eliz and there is no Lachess in removing of the Record by the Plaintiff and for these reasons the whole Court was against the Defendant in the Writ of Error that it was Error and therefore ought not to be amended Note that in this Case it was moved that the warrant of Attorney might be filed in this Court after Error brought in the Kings Bench but observe that if it had been a thing amendable that had been no impediment to it for things amendable before Error brought are amendable after and if the inferior Court do not amend them the superior may and so it is adjudged 8 Rep. 162. in Blackmâ—res case and so is the Case express in the point 1 and 2 Phil. and Mar. Dyer 105. pl. 16. Where a warrant of Attorney was amended in Banco after Error brought and the Record certified This is only my own observation upon the Cale Mich. 17º Car. in the Kings Bench. 210. AN information was brought for the King against Edgerley Carrier of Oxford because that where by the custom of England no Carrier or other person ought to carry above two thousand weight and that with a Waggon having but two wheels and but four horses that the Defendant had used for the space of a year last past to drive Quoddam gâ—statorium
case that an Infant should have power to submit himself to that which should be final against him and no remedy for consensus tollit errorem wherefore he conceived that the submission was void and if that which is the ground faâ—ls all fails An Infant may take any thing for that is for is advantage and cannot prejudice him and the Church lâ—ke an Infant is in perpetual Infancie and conditionem meliorem facere potest but deteriorem nequaquam And where it was objected in this Case that this submission might be for the avail of the Infant and therefore should be good he answered and took this for a rule that an Infant shall never submit himself to any thing under a pretence of benefit which by possibility may prejudice him and with that agreeth the better Opinion of 10 H. 6. 14. that it shall not bind him because it may be to his prejudice for they may give greater damages than peradventure the Law would give in any Action brought against an Infant But 14 H. 4. is not any Authority Where it was objected that it shall be voidable at the election of the Infant To that he answered that it is absolutely void and therefore there cannot be any Election and it should be hard that the man of full age should be bound and the Infant not an Infant shall not be an accomptant because that Auditors cannot be assigned to him and he conceived that an Infant cannot bind himself an Apprentice but it is usual in such cases for some friend to be bound for him and as this Case is it appeareth by the Award that it might be for the prejudice of the Infant For the Arbitrators award that the Infant shall pay five pound for quit-Rents and other small things now what these small things were Non constat and they might be such things for which by the Law the Infant was not chargeable and by the same reason that they may assess five pound they might have set twenty pound and more and it should be inconvenient that an Infant should have such a power to submit himself to the Judgment of any which might charge him in such manner Besides part of the Award is void for the incertainty for it is said small things and it doth not appear what in certain and void in part void in all and for these reasons he gave Judgment against the Plaintiff Bramston Chief Justice agreed that the submission is void and not voidable only as it was objected for then it should be tale arbitrium until reversal of it 10 H. 6. and 14 H. 4. are no Authorities or if they be the best Opinion is for the Infant as it hath been observed and Knight and Stones Case cited before is no authority for no Judgment was given in the Case But all in that case agreed that the award was void because it was awarded that the Infant upon the payment of an hundred pounds should make a release which proves that the submission was also void because that if it should be good by the same reason the release Where it was objected that it shall be voidable at the Election of the Infant To that he answered that the submission ought to be either absolutely good or absolutely void for the end of an Arbitrament is to conclude and compose controversies and the Arbitrators are Judges to determine them which should never be done if it should lie in the power of the Infant to make good or frustrate the Arbitrament at his Election for which cause to say that it shall be conditional is against the nature of an Arbitrament and to say that it shall bind the Infant absolutely cannot be and to say that it shall bind the one and not the other is unequal Besides there can be no election in this case for if he were within age nothing binds him if at full age he ought to perform it Besides the Arbitrament it self as this Case is and as it was before observed by Heath is void for the award was That the Infant should pay five l. for quit-Rents and other small things and it doth not appear what those small things were so that for any thing that appeareth it might be for such things for which the Infant by the Law was not chargeable and therefore is void for the incertainty and void in part void in all and by the same reason as the Arbitrators might award five pound they might award twenty pound or more But he conceived that if it had appeared in certain that the things had been such for which the Infant is by the Law chargeable perhaps it had been good but here it doth not appear what the things were and therefore it was not good Trinit 4 Car. Pickering and Iacobs case it was resolved that a Bond taken for necessaries of an Infant was good 8 E. 4. Arbitrators Award more than the debt is the same is naught so here for any thing that appeareth to the contrary the Award was to pay such things as the Infant was not liable to pay and therefore void But note Reader I conceive that an Infant cannot submit himself to an Arbitrament for things for which by the Law he is chargeable for the reason given before because the Arbitrators may charge him farther than by the Law he is liable which should be to his prejudice and he hath not any remedy for it Judgment was given against the Plaintiff Quod nihil capiat per Billam The Case was entred Hill 15 Car. Rot. 313. The Serjeants Case Trin. 17 o Car. in the Common Pleas. 216. THe Serjeants Case was this A. seised of Land in see B. his Brother levied a Fine come ceo to C. B. had issue D. and died A. died without issue C. entred D. entred and gave it to C. and R. his wife and to the heirs of their two bodies C. levied a Fine come ceo with proclamations to D. C. and R. have issue L. C. dieth D. confirmeth to R. his estate to have to her and the heirs of her body by C. begotten R. dies D. enters L. oustes him D. brings entre in the Quibus In this Case there are two points First Whether the Fine levied by B. shall bar his Issue as this Case is or not and that is the very point of Edwards and Rogers Case Pasch. 15 Car. in the Kings Bench and admitting it shall not bar D. then the second point is what is wrought by the confirmation if by that the Issue in Tail shall inherit or not and that is the very point in the 9 Rep. Beaumonts Case Saunderson and Ruddes Case in Common Pleas Trin. 17 Car. 217. SAunderson brought an Action upon the Case for words against Rudde the Case was this The Plaintiff being a Lawyer was in competition for a Stewardship of a Corporation and the Corporation being met together for Election of a Steward the Plaintiff was propounded to be Steward and then the Defendant being one of
the Statute to prove that the Plaintiff cannot plead this plea the words of which are That the Plaintiffs shall have such Pleas and Aid-prayers as at the Common Law and if the Plaintiff could have pleaded this Plea by the Statute the Statute would not have enacted that there should be the like Aid-prayers as at the Common Law for if the Plaintiff might plead this plea then there need not any Aid-prayer and as at the Common Law no Aid-prayer was grantable of a stranger to the avowry so neither is it so now and to prove that he cited 27 H. 8. 4. 19 Eliz. New Entries 598. 26 H. 8. 5. against the Institutes 312. a. Besides the Statute gives the like pleas as at the Common Law and therefore no new pleas and that caused me to give those reasons before at the Common Law and if this should be suffered every wrangler by putting in of his cattle should put the Lord to shew his title which would be a great prejudice to him The Statute of 25 E. 3. c. 7. enables the possessor to plead to the title of the Patronage and that it is not till induction if it be against a Common person which he ought to shew otherwise he is not inabled to plead to the title as it is in the 7 Rep. 26. a Dyer fol. 1. b. But note there the Statute enables him to plead to the title which is not so in our Case the general words of the Statute of West 2. have always received construction at the Common Law as appeareth by 18 E. 3. 3. 10. 22 E. 3. 2. 9 Rep. Bucknells case and 11 Rep. 62 63. there you may see many Cases cited which have the like words of reference to the Common Law as the Statute in that Case and there always they have received construction by the common Law the Authorities cited before against me are not against me for they say that the Plaintiff after this Statute may have any answer which is sufficient so clearly by these authorities the answer ought to be sufficient and that is the question in our Case Whether the answer be sufficient or no which as I have argued it is not because the Plaintiff is not enabled to take this traverse by the Common Law and the Statute doth not give any other Plea than at the Common Law 26 H. 8. 6. is express in the point That the Plaintiff being a stranger is not enabled by this Statute to meddle with the tenure wherefore I conceive that the Plaintiff is not a person sufficient within the Statute to take this traverse without taking some estate upon him as in see for life or years c. But for the latter point admitting that the Plaintiff were enabled by the Statute to take this traverse yet I hold clearly that as this case is he hath not pursued the form of the common Law in the taking of it and I agree the rule that the Plantiff cannot traverse the seism without admitting of a tenure and therefore the traverse here is not good because he takes all the tenure by protestation Besides I agree that traverse of seism generally is not good 9 Rep. Bucknells case and I agree that traverse of seism per manus is not good without confessing the tenure for part and here he takes all the tenure by protestation and therefore not good 18 E. 2. Fitz. Avowry 217. is express in the point that the traverse is not good Wherefore I conclude that Judgment ought to be given for the avowant Justice Crawley that Judgment ought to be given for the avowant he held clearly that the avowry is within the Statute and that being within the Statute the Plaintiff is enabled to take this traverse and that he grounded upon the Books of 34. H. 8. Br. Avowry 113. 24. H. 4. 20. 9 Rep. 36. and Hobarts Rep. 129. Brown and Goldsmiths Case Then he being inabled by this Statute to take this plea as a very tenant the Question is Whether the Traverse here per manus be good or not and he held not but he ought to have traversed the tenure as this Case is that the traverse of the seism per manus generally is not good I ground me upon the 9 Rep. Bucknells Case 35. a. and I agree the third rule there put that Ne unque seisie per manus is a good plea but that must be intended where the Plaintiff confesseth part of the tenure which he hath not done in this Case as it appeareth by the fourth rule there taken which is an exception out of the precedent rule upon which I ground my opinion and therefore the traverse here is not good Besides Homage and Fealty are not within the Statute of Limitations and therefore not traversable and if it should be permitted the rule in Bevills Case 4. Rep. 11 12. and Com. 93. Woodlands Case which resolve that they are not traversable should be by this means quite defeated Further in this Case the fealty only is in demand and the Plaintiff hath traversed the seism of the rent as well as of the fealty which is not good I agree the Book in the 9 Rep. Bucknells Case fol. 35. that seism is not traversable but only for that for which the avowry is made if not that seism be alledged of a superior service for which the avowry is not which by the Law is seism of the Inferiour service with which agrees 26 H. 8. 1. 21 E. 4. 64. But in our Case seism is not alledged of a superiour service for which the avowry is not made but of an inferiour viz. of a rent which is inferiour to fealty as the Books are of 21 E. 3. 52. Avowry 115. and 19 E. 4. 224. and which of right ought to be so unless a man esteem and value his money above his conscience and therefore the traverse of the rent which is inferior service and not in demand is not good Besides you cannot traverse the seism of the fealty without the traverse of the seism of the rent because the seism of rent is the seism of fealty and the rent is not here in demand and therefore not traversable and therefore you ought to have traversed the tenure for although it be said that rent which is annual is inferiour to all other services 4 Rep. 9. a. yet it is resolved that the seism of rent is seism of all other services further I conceive that if you avow for one thing you need not to alledge seism of other services 24 E. 3. 17. 50. seemeth to cross the other authorities before cited but I believe the latter authorities Wherefore I conclude that Judgment ought to be given for the avowant Bankes Chief Justice I conceive that it is a plain avowry upon the Statute and therefore I need not to argue it here are two Questions only The first Whether this Plaintiff who is a stranger be enabled by the Statute of 21 H. 8. to plead
Statute of 12 E. 2. cap. 6. it is expresly ordained that no Officer of a City or Burrough should sell Wine or Victuals during his Office I confess this Statute is repealed by the Statute of 3 H. 8. but yet there is a Provision in that Statute that it extend not to London then the Law being that none of those things shall be sold by any Officer by retail during his Office the Oath which makes a man to abjure that which the Law forbids of necessity ought to be taken as lawful besides there is a Writ grounded upon the Statute of 12 E. 2. which you shall find in the Register 184. a. Fitz. N. B. 173. b. that the party grieved might have directed to the Justices of assises commanding them to send for the parties and to do right c. Wherefore I hold the Oath good and lawful notwithstanding this Objection For the point of notice I conceive it is not needful and if it be I ask who it is ought to give notice in this Case and I say that no person is tied to do it wherefore he ought to take notice of it at his peril For the debito modo electus I say that it is good being in a Retorn upon a Habeas corpus it is said that it was secundum consuetudinem which includes all things needful for the objection That it is averred in the retorn that he was idoneus habilis but that it is no part of the custom that it should be so for it is only in general Si aliquis liber homo and doth not say habilis idoneus and therefore the custom should not be good I answer that it is averred in the Retorn that it is so that he is elected and that is sufficient for us to ground our Judgment but further I conceive that the debito modo helps it wherefore upon the whole matter I conclude that the custom is good and the Retorn sufficient and therefore that the prisoner be remanded Pasch. 18º Car ' in the Common Pleas. Barrow against Wood in Debt 238. IN Debt upon an Obligation brought by Barrow against Wood the Defendant demanded Oyer of the condition ei legitur c. and the effect of it was this That the Defendant should not keep a Mercers-shop in the Town of Tewkesbury and if he did that then within three moneths he should pay forty pound to the Plaintiff upon which the Defendant did demur in Law and the point is only whether the condition be good or not Serjeant Evers the condition is good because it is no total restraint for it is a restraint here only to Tewkesbury and not to any other place wherefore I conceive the condition good I agree the Case in 11 Rep. 53. b. where a man binds himself not to use his Trade for two years or if a husbandman be bound he shall not plough his Land these are conditions against Law because where the restraint is total although it be temporal there the condition is not good but the condition is not totally restrictive in our Case and he compared this Case to the Case in 7 H. 6. 43. feoffee with warranty Proviso that the feoffee shall not vouch it is a good condition because not totally restrictive for although that the feoffee cannot vouch yet he may rebut so in this Case although the Obligor cannot use his Trade in Tewkesbury yet he may use it in any other place And the Condition is not against Law for if it were such a condition then I agree it would be naught but yet the Bond would stand good for this is not a condition to do an act which is Malum in se for there the condition is naught the Bond also as 2 E. 4. 2. b. by Cooke Instit. 206. b. But although a man cannot make a feoffmâ—â—t upon condition that the feoffee shall not alien yet the feoffee may bind himself that he will not alien and the Bond is good and so I say in our Case and if the condition in this Case should not be good it would be very inconvenient for it is a usual thing in a Town in the Country for a man to buy the shop of another man all his Wares in it and if the same being a small town where one of that profession would serve for the whole Town he who bought the shop and wares should not have the power to restrain him the same being the ground reason of the contract from using of that trade in that plaâ—e it would be very inconvenient wherefore he conceived that the condition was good and prayed Judgment for the Plaintiff Serjeant Clarke for the Defendant that the condition is not good for it is against the Law and void because it takes away the livelihood of a man that is one of the reasons against Monopolies 11 Rep. 86 87. And that I conceive is grounded upon the Law of God for in Deut. chap. 24. ver 6. it is said that you shall not take in pledge the nether and upper milstone for that is his life So that by the Law of God the restraining of any man from his Trade which is his livelihood is not lawful And surely our Law ought not to be against the Law of God and that is the reason as I conceive wherefore by our Law the Utensils of a mans Profession cannot be distreined because by that means the means of his livelihood should be taken away And 2 H. 5. fol. 5. b. by Hull the condition is against Law and yet the case there is the very Case with our case for there a man was bound that he should not use his Art in D. for two years whereupon Hull swore by God that if the Obligee were present he should go to prison till he had paid a fine to the King because the Bond is against Law and therewith agrees the 11 Rep. 53. b. 7 E. 3. 65. A Farmer covenants not to sow his land the covenant is void so as I conceive that although the condition be restrictive only to one place or for a time yet because it takes away the livelihood of a man for the time the condition is against Law and void and he cited a Case in the point against Clegat and Batcheller Mich. 44 Eliz. in this Court Rot. 3715. where the condition of a Bond was That he should not use his Trade in such a place and it was adjudged that the condition was against Law and therefore the Bond void and for these reasons he prayed that Judgment might be entred that the Plaintiff nihil capiat per billam Justice Reeve did produce some Presidents in the point and he said that the Law as it had been adjudged stood upon this difference betwixt a contract or Assumpfit and an Obligation A man may contract or promise that he will not use his Trade but he cannot bind himself in a Bond not to do it for if he
do so it is void And for that he cited Clegat and Batchellers Case before that the obligation in such Case is void and he said that the reason which was given by one why the Bond should be void was grounded upon the Statute of Magna Charta cap. 29. which wills That no freeman should be ousted of his Liberties but per legem terrae and he said that the word Liberties did extend to Trades and Reeve said that by the same reason you may restrain a man from using his Trade for a time you may restrain him for ever And he said that he was confident that you shall never find one Report against the Opinion of Hull 2 H. 5. For the other part of the difference he cited Hill 17 Iac. in this Court Rot. 1265. and 19 Iac. in the Kings Bench Braggs case in which Cases he said it was adjudged against the Action upon a Bond but with the Action of the Case upon a promise that it would lie But note that all the Judges viz. Foster Reeve and Crawley Bankes being absent held clearly that if the condition be against the Law that all is void and not the condition only as was objected by Evers and it was adjorned Apsly against Boys in the Common Pleas in a Scire facias to execute a Fine upon a Grant and Render Intrat Trin. 16 Car. Rot. 112. 239. THe Case upon the Pleading was this A fine upon a Grant and Render was levied in the time of E. 4. upon which afterwards a Scire facias was brought and Judgment given and a Writ of seisin awarded but not executed Afterwards a fine Sur coâ—usans de droit come ceo c. with Proclamations was levied and five years passed and now another Scire facias is brought to execute the first fine to which the fine Sur conusance de droit come ceo is pleaded so as the only Question is Whether the fine with Proclamations shall bar the Scire facias or not Serjeant Gotbold for the Plaintiff it shall not bar and his first reason was because not executed 1 Rep. 96 97. and 8 Rep. 100. If a disseisor at the Common Law before the Statute of Non-claim had levied a fine or suffered Judgment in a Writ of Right until Execution sued they were no bars and a fine at Common Law was of the same force as it is now and if in those Cases no bar at Common Law until Execution that proves that this interest by the fine upon grant and render is not such an interest as can bar another fine before execution Besides this Judgment by the Scire facias is a Judgment by Statute and Judgment cannot be voided but by error or attaint Further a Scire facias is not an Action within the Statute of 4 H. 7. and therefore cannot be a bar 41 E. 3. 13. 43 E. 3. 13. Execution upon Scire feci retorned without another plea and it is not like to a Judgment for there the party may enter but not here Besides it shall be no bar because it is executory only and in custodia legis and that which is committed to the custody of the Law the Law doth preserve it as it is said in the 1 Rep. 134. b. and he compared it to the Cases there put and a fine cannot fix upon a thing executory and the estate ought to be turned to a right to be bound by a fine as it is resolved in the 10 Rep. 96. a. 9 Rep. 106. a. Com. 373. And the estate of him by the first fine upon grant and render is not turned to a right by the second fine Lastly the Statute of 4 H. 7. is a general Law and in the affirmative and therefore shall not take away the Statute of West 2. which gives the Scire facias and in proof of that he cited 39 H. 6. 3. 11 Rep. 63. 68. and 33 H. 8. Dyer 15. I agree the Case which hath been adjudged that a fine will bar a Writ of Error but that is to reverse a Judgment which is executed but here the Judgment is not executed and therefore cannot be barred by the fine wherefore he prayed Judgment for the Plaintiff Note that it was said by the Judges that here is no avoiding of the finâ— but it shall stand in force but yet notwithstanding it may be barred and they all said that he who hath Judgment upon the Scire facias upon the first fine might have entred and they strongly inclined that the Scire facias is barred by the fine and doth not differ from the Case of a Writ of Error but they delivered no opinion Taylers Case 240. THe Case was thus The Issue in Tail brought a Formedon in Descend and the Defendant pleaded in Bar and confessed the Estate Tail but said that before the death of the Tenant in Tail I. S. was seised in fee of the lands in question and levied a fine to him and five years passed and then Tenant in Tail died whether this plea be a bar to the Plaintiff or not was the Question and it rested upon this Whether I. S. upon this general Plea shall be intended to be in by disseisin or by feoffment for if in by disseisin then he is barred if by feoffment not and the opinion of the whole Court was clear without any debate that he shall be intended in by disseisin and so the Plaintiff is Bar as the Books are 3 Rep. 87. a. Plow Com. Stowels Case and Bankes Chief Justice said that it shall not be intended that Tenant in Tail had made a feoffment to bar his issues unless it be shewed and it lies on the other part to shew it and a feoffment is as well an unlawful Act as a dissâ—isin for it is a discontinuance Commins against Massam in a Certiorare to remove the proceedings of the Commissioners of Sewers 241. THe Case upon the proceedings was thus Lessee for years of Lands within a level subject to be drowned by the Sea covenanted to pay all assessments charges and taxes towards or concerning the reparation of the premisses A wall which was in defence of this level and built straight by a sudden and inevitable Tempest was thrown down one within the level subject to be drowned did disburse all the mony for the building of a new wall and by the order of the Commissioners a new wall was built in the form of a Horshooe afterwards the Commissioners taxed every man within the level towards the repaying of the sum disbursed one of which was the lessee for years whom they also trusted for the collecting of all the mony and charge him totally for his land not levying any thing upon him in the reversion and also with all the damages viz. use for the mony Lessâ—e for years died the lease being within a short time of expiration his executor enters and they charge him with the whole and immediately after the years expired the executors brought this
well lie Bramston Chief Justice for the Avowant that 〈◊〉 may well distrâ—in and cannot have a Scire facias but if he may have a Scire facias yet he may distrein without it There is no authority in the Law directly in the point in this Case I agree that if there be any prejudice to the conusee there it is reason to have a Scirâ— facias It was objected that it is a constant course to have a Scire facias in this Case But I believe you will never find a Scire facias brought by the Grantee of a rent or other profit apprender Besides the best way to judge this Case is to examine what the Scire facias is which ought to be brought and what the Judgment is which is given upon it whether he may recover the thing in demand or not vid. 32 E. 3. Fitz. Scire facias 101. 47 E. 3. 11. which are brought to have account and to shew cause wherefore he should not have the land see Fitz. Scire facias 43. v. The old Entries the Judgment which is given thereupon and the demand there is quod tenement praed redeliberatur and may the grantee in this Case have the land and thing in demand certainly not and that gives sufficient answer to the Cases objected by my Brother Heath where the second conusee shall have a Scire facias against the first Besides you shall never find in all our Books that a man shall have an attaint or a writ of error but he who may be restored to the thing lost by the judgment or verdict 2 R. 3. 21 Dyer 89. 9 Rep. the Lord Sanchars Case so in debt and erroneous Judgment upon it wherewith agreeth Doctor Druries Case 8 Rep. 12. 18 E. 3. 24. the feoffee shall have a Writ of Error because he shall have the land and see 32 E. 3. Scire facias 101. And the grantee shall not have a Writ of Error in this Case upon erroneous Judgment and for the same reason he shall not have a Scire facias and the grantee cannot have a Scire facias for want of privity and therefore I conclude that he cannot have a Scire facias for if he might certainly it would have been brought before this time either for this cause or for some other profit apprender It was objected that he shall not be in better condition than the conusor that is regularly true as to the right but he may have another remedy It was objected that the reason why that a Statute without a Scire fatias shall not be defeated is because he is in by Record and therefore shall not be defeated without Record but that is not the true reason but the reason is because the conusee ought to have costs and damages besides his debt as is Fullwoods Case 4 Rep and 15 H. 7. 16. is that the Chancellor shall judge of the costs and damages But 47 E. 3. 10. 46 E 3. Scire facias 132. by all the Judges that they lie in averment But here an inconvenience was objected that great arrerages should be put upon the conusee for a little mistaking to that he said that of a small mistake the Court shall judge and it shall not hurt him but if he hold over being doubly satisfied it is reason that he pay the arâ—erages and he put this Case A man acknowledgeth a Statute and afterwards makes a lease to begin at a day to come the lâ—ssee shall have a Scire facias for where remedy doth fail the Law will help him for which cause he concluded and gave Judgment for the avowant Trin. 18 Car ' in the Kings Bench. Paulin against Forde 248. AN Action upon the Case brought for words the words were these Thou art a thievish Rogue and hast stolen my wood innuendo lignum c. Gardiner the words are not actionable because it shall be intended wood standing or growing and not wood cut down and so he said it had been adjudged so if a man says of another that he hath stollen his Corn or Apples the words are not actionable because they shall be intended growing Bramston Chief Justice that the words are actionable because that wood cannot otherwise be meant but of wood cut down because it is Arbor dum crescit lignum dum crescere nescit for which cause he conceived that the words were actionable and it was adjorned Chambers and his wife against Ryley 249. ACtion upon the Case for words the words were these Chambers his wife is a Bawd and keeps a Bawdy-house for which words the Action was brought and the conclusion of the Plea is ad damnum ipsorum Wright the words are not actionable because it is not the wife that keeps the house but the husband and therefore the speaking the words of the wife cannot be any damage to him but admit the words were actionable the husband only ought to bring the Action because the speaking of the words is only to his damage Bramston Chief Justice the wife only is to be indicted for the keeping of a Bawdy-house and therefore she only is damnified by the words and the husband ought to joyn in the Action but that is only for conformity and the conclusion of the Plea is good for the damage of the wife is the damage of the husband and therefore ad damnum ipsorum good And here it was agreed that to say that a woman is a Bawd will not bear an Action but to say she keeps a Bawdy-house will Porter who was for the Action cited a Case which was thus One said of the wife of another that she had bewitched all his beasts and she and her husband joyned in an Action and upon debate it was adjudged good and there the conclusion also of the plea was ad damnum ipsorum Rickebies Case 250. RIckebie was indicted in Durham for Murder and afterwards the Indictment was removed into the Kings Bench where he pleaded his Pardon which Pardon had these words in it viz Homicidium feloniam felonicam interfectionem necem c. seu quocunque alio modo ad mortem devenerit And note there was a Non obstante in the Pardon of any Statute made to the contrary and whether these words in the Pardon were sufficient to pardon Murder or not was the Question Hales for the Prisoner said that the Pardon was sufficient to pardon Murder and in his argument first he considered whether Murder were pardonable by the King at the Common Law or not and he argued that it was the King is interessed in the suit and by the same reason he may pardon it It is true that it is Malum in se and therefore will not admit of dispensation nor can an appeal of Murder which is the suit of the Subject be discharged by the King but the King may pardon Murder although he cannot dispense with it see Bracton lib. 3. cap. 14. And the Law of the Jâ—ws differs from our Law
done was murder he would not have pardoned it and the words Ex certa scientia shall not make the Grant good where the King is deceived by false suggession of the party See Altonwoods Case 1 Rep. 46. a. 52. b. 9. E. 4. 26. b. is an authority in the point by Billing Charter of Pardon ought to make express mention of murder or otherwise it will not pardon it and 22 H. 7. 91. b. Keilway Pardon of all felonies will not pardon murder Br. Charter de pardon 10. there ought to be express words of murder in the pardon See the Old Entries 455. 2 H. 7. 6. by Ratcliffe objected that the King may pardon murder with a Non obstante that I agree but if ought to be by express words See Stamford Pleas of the Crown fol. 103 104. and 19. a. Where it is said that a pardon of all felonies doth not extend to murder Besides I conceive that a Non obstante cannot dispense with the Statute of 13 R. 2. I agree that where there is a penalty only given by the Statute there the King may dispence with it I agree the Book of 2 H. 7. 6. there it was a penalty only I agree also that the King may dispense with the Statute of Quia emptores â—errarum as the Book is N. B. 3. 211. f. But when a Statute is absolute and not Sub modo there he cannot dispense with it See 18 Eliz. Dyer 352. and 8 Rep. 29. Princes Case Institut 120 a. and Hobarts Rep. 103. The King with a Non obstante cannot dispense with the Statute of Simony because it is a positive Law and not Sub modo and this Statute of 13 R. 2. is for the common good It was objected that the King may pardon murder by the Common Law and that the Statute of 13 R. 2. takes away the inquiry only further it was objected that the Statute of 2 E. 3. did allow that the King might pardon murder but not so easily and the Statute of 13 R. 2. is saâ—â—ng our Regality by which was concluded that his Prerogative is saved Bracton fol. 133. a. saith that the Kings pardoning of murder was contra justitiam and Register fol. 309. Se defendendo and per infortunium only are pardonable and that well expounds the Statute of 2 E. 3. cap. 2. which enacts that Charters of Pardon shall be only granted where the King may do it by his Oath that is to say where a man kills another Se defendendo or per infortunium And for the saving of the Regality which is in the Statute of 13 R. 2. to that I say that the Judges ought to judge according to the body of the Act and that is express that the King cannot pardon murder 5 E. 3. 29. and Kelway 134. there it is disputed but yet it came not to our Case for that is only of a pardon of the Kings suit and for these reasons he prayed that the pardon might not be allowed Keeling for the King that the pardon is not sufficient to pardon murder The Kings pardons ought to be taken strictly and so is the 5 Rep. The Question here is not whether the general words shall extend to murder but whether it ought to be precisely expressed in the Pardon or not and he held that it ought and hâ— held that the King cannot dispense with the Statute of 13 R. 2. by a Non obstante the Books of 2 R. 3. 2 H. 7. 6. 11. Rep. 88. That the King may dispense with a Penal Law he agreed but he said that this Act of 13 R. 2. binds the King in point of Justice and therefore the King cannot dispense with it and Institutes 234 the King by a Non obstante cannot dispense with the buying and selling of Offices contrary to the Statute because it toucheth and concerneth Justice Wherefore he prayed that the Pardon might not be allowed FINIS THere is lately Reprinted Mr. March's Actions for Slanders and Arbitrementâ—â— Sold by Mris Walbanck at Grays Inn-Gate in Grays-Inn-Lane An Exact TABLE to these REPORTS Alphabetically composed by the Author Abatement of Writ See Title Writ Acceptance WHere a Witness hath not a reasonable sum delivered to him for Costs and Charges according to the distance of place as the Stat. of 5 Q 9. saith yet if he accept it it shall binde him See Tit. Witnesses 1. Accompt For what things a Husband who is administrator to his Wife shall be accomptable in the Ecclesiastical Court for what noâ— pa. 44. pl. 69 Where an accompt by Bill lies for an Attorney of the Common Bench Kings Bench or Exchequer and where iâ— an accompt a man shall recover Damâ—mages upon the second Judgement 99 100 pl. 171. In Debt upon an accompt it sufficeth to say that the Defendant was indebted to the Plaintiff upon an accompt pro diversis mercimoniis without reciting the particulars 102. pl. 175. Action upon the Case Where if a man sue another in the name of a third person without his privity an Action upon the Case will lye against him where not 47 pl. 76. Where oâ—e who is not of the Jury cauâ—seth himself to be sworn in the name of one returned of the Jury and gives his Verdict either party may have an Action upon the Case against him 81. pl. 132. A man retorned cited in the Ecclesiastical Court where he was not cited shall have an action upon the case 99. pl. 169. Action upon the Case for words What words shall be actionable and what not pa 1. pl. 3. pa. 7. pl. 17 18 19. pa. 15. pl. 37. 19. pl. 44. 20. pl. 45. 58. pl 90. 59. pl. 91 93. 76. pl. 119. 82. pl. 135. 107. pl. 184. 109. pl. 187. 113. pl. 191. 115. pl. 192. 116. pl. 193. 119. pl. 197 146. pl. 217. 62. pl. 96. 211. pl. 248. 212. 149. Actio personalis moritur cum persona What shall be said to be an Action personal and to dye with the person what not 9. 13 14. Alimony Where a man puts his Wife from him he is compellable by the Ecclesiastical Court to allow her Alimony 11. pl. 31. The High Commission Court had not power to allow Alimony 80. pl. 129. Amendment Where amendment may be in the inferiour Court after Errour brought where not 72 pl. 109. No amendments allowed in Courts below 78. pl. 124. No amendment after a Verdict without 〈◊〉 82. pl 133. A Declaâ—ation cannot be amended in substance wiâ—hout a new Original otherwise o◠〈◊〉 93. pl. 161. A Warrant of Attorney may be amended after Errour brought 121. pl. 201. 129. pl. 209. In an Ejectione firme vi arms was in the Writ but wanted in the Count whether it be amendable or not quaere pa. 140. pl. 113. Appendant Leet may be appendant to a Hundred 75. pl. 115. Apportionment Where a Debt or other duty may be apportioned and several Actions brought where not 57. 61. Assumpsit being an entire
of peace are coram non judice 27. pl. 63. Presentments taken in an Hundred-Court are coram non judice 75 pl. 115. Corporation Churchwardens in London are a Corporation and may purchase Lands to the benefit of the Church but Churchwardens in the Country though a Corporation are capable onely to purchase Goods to the benefit of the Church 67. pl. 104. Covenant A man makes a Lease and that the Lessee shall have conveniens lignâ—m non succidend ' vendeâ—d ' arbores the Lessee cuts down Trees the Lessor may bring an Action of Covenant 9. pl. 22. Lessee of a house Covenants to repair it with convenient necessary and teneatable Râ—parations in Covenant the Lesser alleadgeth a breach in not repairing for want of Tyles and daubing with Morter and doth not shew that it was not tenentable therefore nought 17. pl. 39. A man by Deed conveys Land to his second Son by these words I do give and grant this Land to I. S. my second Son and his Heirs after my death and no livery made and dyes the Estate passeth not by Covenant and therefore the Son taketh nothing 50. pl. 78. Covenant with two severally and good 103. pl. 176. Counsel Counsellors Counsel saith to his Client that such a contract is Simony and he saith that Simony or not Simony he will do it and thereupon the Counseller maketh this Simoniacal contract this is no offence in him 83. pl 136. Custom and Perscription By the Custom of London a man may transfer over his Apprentices to another 3. pl. 6. By the Custom of London the Mayor may restrain any man from setting up his Trade within the City in a place unapt for it and for his disobedience may imprison him 15. pl. 34. Custom to cut Grass in the soyl of another to strow the Church good Custom 16. pl. 38. Custom or Prescription in non decinando by a Hundred is good but not by a Parish or particular Town 25. pl. 59. A Law or Ordinance where the Custom will warrant it that he that puts in his beasts in the Common beyond such a limit or bound shall pay 3 s. 6 d. is a good Law 28. pl. 64. Custom that if a man have see in Land that it shall descend to the youngest Son and if Tail that then to the Heir at Common Law is a good Custom 54. pl 82. Prescription to have Common for all beasts commonable is naught but for all beasts commonable levant and couchant is good 83 pl. 137. A Hille hath a Chappel and buries at the Mother-Church and for this have time cut of mind repaired parcel of the wall of the Church it is good for to excuse them from repairing the Church Inhabitants of a place prescribe to repair the Chappel of ease and in regard of this that they have been time out of minde freed from all reparations of the Mother-Church good prescription 91. pl. 151. Hille hath a Chappel of ease and a Custom that those with in such a precinct ought to find a Rope for the third Bell and repair part of the wall of the Mother-Church in consideration of which they have been freed of payment of any Tythes to the Mother-Church whether this be a good Custom or not quaere ubi supra Damage Cleer WHat Damage Cleer is and the prejudice that a man may have in this that he cannot have his Judgement before that he hath payed the Damage cleer 76. pl. 226. Damages and Cost Heir apparent ravished of full age his Fatâ—er shall not recover Damages 5 pl. 8. In Attaint the Verdict was affirmed and the Defendant in the Attaint prayed Costs but was denyed by the Court. 24 pl. 55. A man distraiâ—s for a Penalty asseâ—â—ed by Custom and distrainable by Custom and upon a Beplevin brought Judgement was given for the Avowant and Damage assessed and whether Damage ought to have been given or not quaere 38. pl. 64. Where Damages entire shall be nought and where not 47. pl. 76. 96. pl 166. 47. pl. 76. Where Costs and Damages shall be recovered upon a Penal Law where not 56. pl. 88. 61 pl. 95. Prisoner removing himself by Habeas corpus shall pay the costs of the removal otherwise where he is removed by the Plaintâ—ff 89. pl. 143. In an Accompt a man shall recover Damages upon the second Judgement 99. pl. 171. Debt A Sheriff levies money upon a Fieri fa cias Debt will lie against him and if he dyes against Executors 13. pl 33. In Debt upon an Accompt it sufficeth to say that the Defendant was indebted to the Plaintiff upon an Accompt pro diversis mercimoniâ—â— without reciting the particulars 102. pl. 175. 105. pl. 182. Defamation If a man Libel in Court Christian for calling of him Drunkard Prohibition lies See Tit. Prohibition 1. D. Libelled in the Ecclesiastical Court for these words She is a beaâ—â—ly quâ—an a 〈◊〉 qâ—ean a copper-â—os'd qâ—ean and 〈…〉 and hath 〈◊〉 500 l. and 〈…〉 with whorâ—s and Regâ—â—s upon which a Prohibition was prayed and granted 89. pl. 144. A woman Libelled in the Spiritual Court against one for calling her Jade upon which a Prohibition was prayed and granted but if it be Libelled for calling one whore or bawd no Prohibition lies 99. pl. 170. By the Custom of London an Action lies for calling a woman Whore and ruled a good Custom 107. pl. 184. Default Appearance Administrator of one Outlawed for murder brought Error to reverse the Outlawry and was allowed to appear by Attorney 113. pl. 190. Demands Demandable Grantee of a Rent to be paid at the house and if the Rent be behinde and lawfully demanded at the house that then it shall be lawful for the Grantee to distrain whether a distress upon the Land be a sufficient demand as this Case is or not quaere 147. pl. 218. Denizen Alien Merchant goes beyond Sea and marries an Alien who have Issue the Issue is a Denizen 91. pl. 150. Deprivation Where a Church shall be void without sentence of Deprivation See Title Void Voidable Devises Devise of Goods to one for life the Remainder to another the Remainder is void 106. pl. 183. Divorce A man divorced causâ adulterii is within the Proviso of the Statute of 1 of King Iames ca. 11. but not a man divorced causâ— saevitiae 101. pl. 175. Discontinuance A man may Nonsuit without the consent of the Court but not Discontinue without the Courts consent 24. pl. 54. Dispensations Whether the King by a Non obstante in his Charter of Pardon may dispense with the Statute of 13 R. 2. ca. 1. or noâ— quaere If you peruse this Case you shall finde much excellent learning upon that point in what Case the King may dispense with Statutes in what not 213. pl. 250. Distress Horses traced together are but one Distress Fetters upon a Horse-leg may be distrained with the Horse 91. pl. 149. Distribution Whether the Ordinary after Debts and Legacies
paid may inforce a Distribution or not quaere 65. pl. 102. 93. pl. 158. Double Plea Where two things are alleadged and the one of necessity onely or by way of inducement and the party relies onely upon the other that is no double Plea 55. pl. 84. 74. pl. 113. Ejectione Firme Ejectone Firme de uno repositorio nought for the incertainty 96 pl. 166. Ejectione Firme de tanto unius messuagii c. qâ—aâ—tum â—â—at super ripam is nought for the incertainty and so where the Tâ—over of the Jury is such it is nought 97. pl 168. Elegiâ— Upon an Elgit there needs no Liberate otherwise upon a Statute Note the Elegit excepts averia Caruâ—â— 117. pl. 194. Equity Certain special Cases where there shall be remedy in Eqâ—ity where not pa 83. pl. 1â—8 88. pl. 141 90. pl. 145. 93. pl. 159. 99. pl 1â—1 102 pl. 175. 105. pl. 182. 106. pl. 183. 129. pl. 207. Errors In Error to reverse a Judgement in Debt upon an Arbitrament Judgement was reversed first because that in the reference to the Arbitrament there was no word of the submission Secondly because that the entry of the Judgement was considâ—ratum est and per Curiam omitted 7. pl. 16. In an Actâ—on for words Judgement was reversed because that it was averred that the words were spoken inter diversos ligeos and doth not say Cives of the place where they have such an acceptation as also for that the Judgement was Consideratum est and per Curiam Omitted 15 pl 37. In Trespass the Defendant justifies by a special Custom by Vertue of which he did it and doth not say quae est eadem transgressio for which Judgment was reversed 16. pl. 38. Judgment was reversed for want of Pledges 17 pl. 40. Outlawry was reversed because it did not appear where the party outlawed was inhabitant as also for that it did not appear that Proclamations were made at the Parish-church where c. 20. pl. 46. Judgement reversed for the appearance of an Infant by Attorney 24. pl. 53. Oâ—tlawry reversed because the Exigent was Secund. exact ' ad Com' Meum â—bm ' c. 25. pl. 58. A. Wife of I. S. intestate promises to B. to whom Administration was committed that if he would relinquish Administration at the request of C. and permit A. to Administer that A. would c. in Assumpsit by B. he shewed that he renounced Administration and permitted A. to Administer but doth not shew that it was at the request of C. by Barkley Just. it is Error 55. pl. 86. Judgement ought not to be judged erroneous by implication 56. pl. 88. 61. pl. 95. A Writ of Error upon Dower well lies before the Retorn of the Writ of Enquiry of damages but whether a Writ of Error lies in an Ejectione firme before Judgment given upon the Writ of Enquiry quaere 88. pl. 142. Want of Warrant of Attorney for the Plaintiff after Judgment upon nihil dicit is Error and not amendable 121. pl. 201. 129. pl. 209. Writ of Error bearing Teste before the Plaint entered is nought otherwise where is bears Teste before Judgment 140. pl. 112. In an Ejectione firme the Writ was 〈◊〉 armis but it wanted in the Count and whether this is error or amendable or not quaere 140. pl. 213. Escape Upon mean Process if the Sheriff retorn a Cessi and Rescous no Action lies against him for the escape otherwise in case of Execution 1. pl. 1. Estoppel Morgager makes a Lease for years by Deed indented after performs the condition and makes a Feoffment in â—ee the Feoffee claiming undeâ— the Estoppel shall be bound by the Lease 64. pl. 99. If a man bind himself to deliver any thing he is estopped to say that he hath it not 74. pl. 113. Estoppel binds only parties 105. pl. 180. Evidence to an Inquest upon Issues joyned Depositions taken in the Ecclesiastical Court cannot be given in evidence at Law though the parties were dead 120. pl. 198. Executions prayer in execution A second Execution cannot be granted before the retorn of the former 47. pl. 73. Where a man is imprisoned for the Kings Fine and upon a Habeas coâ—pus it is retorned that he is in Execution also for the Damages of the party it ought to be intended at the prayer of the party 5a pl. 80. Executor Administrator An Executor or an Administrator may maintain an Action for any Coâ—tâ—â—ct made to the Testator or Inâ—estate or for any thing which riseth ex contractu 9. pl. 23. Administrator of an Executor shall not sue a Scire Faâ— ' upon a Judgement given for the Testator 9. pl. 24. A Sheriff levies moneys upon a Fâ—â—ri Fas ' and dies Debt will lie against his Executors 13. pl 33. Whether the Executor of a Phâ—llizer shall have the profits of the Writs which are to â—e subscribed with his name or his Successor quaere 90. pl. 147. Expositors of Statutes The Judges are the sole Expositors of Acts of Parliament though they concâ—rn Spiritual matters 90 pl. 148. Extinguishment and Suspension Three covenant joyntly with two severally after one of the covenantors marries one of the covenantâ—es whether the covenant be good or not 103. pl. 176. Fine to the King IF a Carrier spoil the High-ways by drawing a greater weight than is warrantable by the Custom of the Realm he is â—inable to the King 145. pl. 210. Fines of Lands Disseisee levies a Fine to a stranger this doth not give the right to the Disseisor 105 pl. 180. Tenant for life the Reversion to an Ideot an Uâ—cle Heir apparant to the Ideâ—â— levies a Fine and dies Tenant for life dâ—eth the Ideâ—t dies whether the Issue of Uncle who levied the Fire â—â—albe barred by this or not quaere 4. pl. 164. 146. pl. 216. Forcible Entry Restitution cannot be awarded to the Plaintiff if it doth appear that he hath seisin yet the King shall have his Fine and if the Indictment be adtunc adhuc the Defendant keeps the possession forcibly where the Plaintiff was in possession Re-restitution shall be awarded 6. pl. 12. Forgery To forge a Will in writing though without a Seal is forgery within the Statute of 5 Q. ca. 14. Freehold What shall be said a grant of a Freehold to commence at a day to come what not 31. pl. 66. Gardeins of a Church WHere the Custom is for the Parishoners to chuse the Churchwardens the Person by colour of the Cannon cannot chuse one and if the Minister of the Bishop refuse to swear one of them chosen by the Parish a Mandat lies to inforce him to it and if the Parson thereupon doth Libel in the Ecclesiastical Court a Prohibition lies 22. pl. 50. 67. pl. 104. The Gardeins of a Church in London are a Corporation and may purchase Lands to the use of the Church and in the Country they are a Corporation capable to purchase Goods to the
say per scriptum obligatorium and to conclude that it was secundum formam statuti will not help it but in a Verdict it was agreed to be good 76. pl 117. Apothecary brought an action upon the case upon a promise for divers wares medicines of such a value the Desendant pleads in bar that he payed to the Plaintiff tot tantas denariorum summas as the medicines were worth and shews no sum in certain and therefore naught 77. pl. 120. A. and B. were bound to stand to and observe such order and decree as the Kings Counsel of the Court of Requests should make A. brought an action against B. and pleaded that the Counsel of the King of the said Court made such order and decree and that the Defendant did not observe it the Defendant pleaded that the King and his Counsel did not make the decree which is naught 78. pl. 126. Where a bad plea shall be made good by Verdict See Title Verdict 2. If a man plead an affirmative plea as that he hath saved the Plaintiff harmless and doth not shew how it is naught otherwise of a negative plea as non damniâ—icatus c. 121. pl. 200. What shall be said to be an argumentative plea what not 207. pl. 247. Pleas of the Crown Bayliffs endeavour to break open a house to serve an Execution upon the owner who not desisting upon his threats he shot and killed one of them it is not murder but man-slaughter 3 pl. 7. Many notable resolutions upon the Statutes of Winchester and 27 Q. of Robberies 10 pl. 28. Pledges Judgement reversed for want of Pledges 17. pl. 40. In a Replevin brought in an inferior Court and no Pledges de retorno habendo taken by the Sheriff according to the Statute of W. 2. ca. 2. upon the plaint removed into the Kings Bench that Court may find Pledges and that any time before Judgement 46. pl. 72. Presentments in Courts Presentments taken in an Hundred Court were quashed because that it is not the Kings Court and therefore coram â—on judice 75. pl. 115. Priviledge If the Clerk of a Court be elected into any office which requâ—res his personal constant attendance as Churchwarden or the like he shall have his priviledge otherwise not as for watching and warding and the like 30. pl. 65. Ordered by the upper House of Parliament 16 Caroli that onely menial servants or such as tend upon the person of a Knight or Burgess should be priviledged from arrest 92. pl. 157. Debt against a husband and his wife as executrix who are sued to the Exigent and at the retorn of it the husband being an officer in the Exchequer came into Court and demanded his priviledge and whether as this case is he shall have it or not quâ—ere 149. pl. 219. Prohibition A man libelled in the Ecclesiastical Court against one for these words Thou art a drankard and usest to be drunk thrice a week upon which a Prohâ—bition was prayed and granted 6. pl. 11. 66. pl. 103. If the Ecclesiastical Court proceed upon a Canon which is contrary to the Common Law Statute Law or Custom a Prohibition lies 22. pl. 50. 67. pl. 74. Two joynt Tenants of Tythes the one sues in the Ecclesiastical Court without the other or a Feme Covert solely for deâ—amation this is no cause of Prohibition 25. pl. 26. pa. 47. pl. 112. See pa. 93. pl. 112. Upon a Petition to any Ecclesiastical Judge without suit there no Prohibition lies 45. pl. 70. A man is compellable in the Ecclesiastical Court to repair a way which leads to the Church but upon a Libel there to repair a highway a Prohibition lies 45. 70. Tenant in Taâ—l levyed a Fine to the use of himself for life the Remainder in see to I. S. and died the Counsel of the Marches wou'd settle the possession upon the Heir of the Tenant in Taâ—l against the purchasor upon which a Prohibition was granted 51. pl. 79. Libel for Tythes for barren Cattle upon a suggestion that the party had no cattle but for plough and pale Prohibition was granted the same Parson libelled for Tyth of Coneys upon which a Prohibition was also granted 58. pl. 87. No Prohibition after sentence in the Ecclesiastical Court 73. pl. 111 92. pl. 156. Many men recover Costs in the Spiritual Court one of them releases the others sue there for their costs this is no came of Prohibition Baron and Feâ—â—e recover costs there for defaming the wife the Baron releases this will not baâ— the wife 73 pl. 112. See pa 25. pl. â—6 pa. 4â— pl. 〈◊〉 Contract betwixt the Vicar and a 〈◊〉 shiâ—ner to pay so much for 〈…〉 Tythes the Vicar dies his 〈…〉 in the Ecclesiastical Court for them 〈◊〉 on which a Prohibition was granted by reason of the real contract which is a temporal thing 8â— l. 1â—0 Libel in the Ecclesiastical Court for these words 〈…〉 upon which a Prohibition was granted 89. pl. 144. Where the Ecclesiastical Court hath conâ—sance of the cause though they proceed erroneously a Prohibition will not lie 92. pl. 152. See pa. 98. pl. 169. 〈◊〉 The Ecclesiastical Courts may hold plea of an excuse for not going to Church and no Prohibition lies 93. pl. 162. Where there are several Moâ—â—ses there several Prohibitions shall be granted where one Moaâ—s onely though divers parties all shall have but one Prohibition 94. pl. 163. If the Ecclesiastical Court proceed against a man without Citation where they have Jurisdiction no Prohibition lies the remedy is by way of Appeal 98. pl. 169. See pa. 92. pl. 152. 〈◊〉 Legatee may sue an executor in the Spâ—ritual Court for to assent to a Legacy Assets or not Assets may be tried by them and no Prohibition lies 96. pl. 167 A woman Libelled against another for calling of her lade upon which a Prohibition was granted but for Whore or Eawd no Prohibition lies quaere whether or not for Quan 99. pl. 1â—0 If a man be sued in the Court of Requests to account there a Prohibition lies See Title Sâ—â—â—â—stratica 1. 2. A man exhibited a 〈◊〉 in the Court of Requests for moneys due upon an account upon which a Prohibition was granted for that it is no 〈◊〉 than Debt upon an account further they referred the 〈…〉 the 〈◊〉 to â—â—â—ers which 〈…〉 of Prohibition 102. pl. â— 5 〈…〉 If a Ship â—e taken at Sea whether b Letters of Mart or by â—itacy if it be sold infra coâ—pus conitatus and the party Libels against the vendee in the Admiralâ—y a Prohibition lies 110. pl. 188. Upon deciding of Actions in an inferiour Court a Prohibition lies 141. pl. 214. Property In Trover and Conversion for a Hawk if he doth not say that it was reclaimed the Action will not lie for that it doth not appear he had a property in it and to say that he was possessed of it ut de bonis suis propriis will not