Fifthly that he retained one Steveson in one of the Chapels of ease who was a man of ill life and conversation scilicet an Adulterer and a Drunkard Sixthly that he did not catechise according to the Parish Canon but only brought many of Dr. Wilkinsons Catechisms for every of which he paid 2 d. and sold them to his Parishoners for 3 d. without any examination or instruction for their benefit And that he when any Commissions were directed to him to compel any person in his parish to do penance he exacted mony of them and so they were dismissed without inflicting any penalty upon them as their censure was And that he and his servants used divers menaces to his Parishioners and that he abused himself and disgrac'd his function by divers base labours scilicet He made mortar having a leathern a prou before him and he himseif took a tithe Pig out of the Pigsty and afterwards he himself gelded it And when he had divers presents sent him as by some flesh by some fish and by others ale he did not spend it in the invitation of his friends and neighbours or give it to the poor but he sold the flesh to Butchers and the ale to Alewives again And that he commanded his Curat to marry a couple in a private house without any licence and that he suffered divers to preach which peradventure had not any licence and which were suspected persons and of evil life It was said by Henden that they cannot by the Statute of primo Eliz. cap. 1. meddle with such matters of such a nature but only examine heresies and not things of that nature and that the High-Commissioners at Lambeth certified to them that they could not procéed in such things and advised them to dismiss it But they would not desist and the Iudges Richardson being absent granted a prohibition if cause were not shewed to the contrary Note it was said by the Iustices a discontinuance could not be after verdict Humbleton against Bucke THeophilus Humbleton was Plaintiff in an Assumpsit against Bucke and declares that whereas there was a controversie between one Palmer who pretended to be Lord of the soyl and the Inhabitants of such a Village concerning Common in ripa maritima which Palmer claimed to be his own soyl The Tenants claim common there and a liberty to cut grass and make hay of it and to carry it away Palmer incloses the soyl Humbleton enters upon the place enclosed and also takes the grass being one of the Tenants And Palmer brought a Trespass against him and then Bucke assumes to the Plaintiff in consideration of a Iugg of Beer and in consideration that the Plaintiff in the Trespass hanging against him would plead a Plea in maintenance of their title of Common he immediatly would pay to him the half of his expences or if he failed of that he would pay him forty pounds And further he said that he pleaded not guilty in that action of Trespass which was found for him and that he expended so much money the half of which the Defendant refused to pay to him c. The Defendant pleads non defendit sectam in maintenance of their Common which was found against him And Davenport moved in arrest of Iudgement because that he ought to have pleaded such a Plea by which the title of Common might come in question but when he pleads not guilty he disclaims the matter of Common And also the word immediatly is not to be taken so strictly that he should pay the money in the same instant c. But the Plaintiff must declare what costs he had expended and then he shall have reasonable time by the Statute to pay the money But Athowe answered that the verdict which was in the Kings Bench helps him For it was there found that that land was the Kings wast and that Palmer was not owner of the soyl and therefore for that his plea was good for the title of Common cannot come in question Richardson Chief Iustice said that that is not a maintenance of the title of Common against Palmer First he cannot give that verdict in evidence in a prescription for the Common and the maintenance by that Plea of not guilty is for the soyl and not for the Common and whoever is owner of the soyl the title of Common is not specially against Palmer but it is general against every one in the world And so was the opinion of Harvey and Crook And Crook said that although the verdict had found the Assumpsit and so admitted that that plea was for maintenance of the title yet that shall not bind us For if a verdict finds matter which is repugnant or a thing which cannot come in question it shall not bind us But by Iustice Yelverton it was said That because the Iury have found the Assumpsit they have admitted all the residue And for that we do not doubt of it no more than the Iury have decreed As in an Ejectione firm If they be at issue upon the collateral matter it shall be admitted that there was an ejectment and so it was adjudged But this cause was deferred to another time to be argued more c. Meridith Mady against Henry Osan aliis MEridith Mady brought debt against Henry Osan for that he and 5 others were bound to perform the Arbitrament of thrée elected by them and the Plaintiff concerning all tithes and all other matters of controversie between them and that they still and all the Parishioners should perform and stand to the award made c. And upon breach of the award made was the action brought For the award was that when any of the Parishioners clip their sheep they ought to give notice to Mady the Parson to the intent that he or his Servants may be there And the Defendant did not give notice c. The Defendant by rejoynder pleads that Allen and others that they were Deputies to receive the Tithe-wool and that they or one of them were present at the clipping and so they demur Athowe said that notice ought to be given to the Parson himself for perchance he would be there himself had he notice And for that the breach alleged is not answered And also he said that they or some of them were present and does not name him as he ought for he may come in issue c. Richardson If the Arbitriment was made for some things within the submission and some things without It is good for those things that are within and void for the residue And although the Parishioners did not submit yet it is good because the six are bound for them Hutton said that the Award for the notice is not good for it is not well assigned where the notice should be given And an Arbitrement ought to be reasonable but it is unreasonable that he ought to inquire Mady wheresoever he is to give him notice as Cook 77. Salmons Case Crook said that the Award is
the Iustices it should be a confirmation during the life of the Feme If Iudgement be given in an action at Common law the Chancellor cannot alter or meddle with the Iudgement given against him But he may proceed against the Person for a corrupt conscience because he took advantage of the Law against his conscience quod nota c. William Watsons Case AN action of Battery was brought against William Watson for battery committed by him insimul cum I. Watson And Iudgment was given against him and dammages and levyed and payed to the Plaintiff And after in another Action which was brought against I. Watson and he also was found guilty And Diggs moved in arrest of Iudgement for that that he had recoveted and had execution against W. Watson But by the Court Where several actions are brought against two for the same battery and a recovery is had against the one and an action is brought against the other and that found also The Court can never intend that to be the same Battery Because he may commit 20 Batteries in one day But if he may take any advantage of the first recovery it ought to be shewed in pleading But if there be but one Original against both and several Declarations produced when he hath recovered he hath dammages against the other But if he recover against the other before he had execution against the first Then he had his election to have whether dammages given against the first or the dammages given against the other And Coo. lib. 11.56 Heydons Case by Richardson is to the same effect Eve against Wright Eve brought a Replevin against Wright who was known as Bayliff to the Lord Peters For that the Lord Peters had a Court Léet within the Mannor of Writtle And that he distreined for an amerciament upon the Plaintiff at that Court Leet of the Lord c. And upon issue that he had not such a Léet The Iurors found that the Lord Peters at the time when c. had a Leet within the Mannor and that the Tenants ought to come to his Léet But also they found that the Warden and Fellows of New College in Oxford had a Rectory also within the Mannor of Writtle called the Roman fee And that they time out of mind c. had a Léet within that Rectory and that the Plaintiff is a Resiant within the Roman fee But whether upon the whole matter the Lord Peters had a Leet upon all the Resiants within the Mannor of Writtle they prayed the discretion of the Court in that And it was said by Richardson That the matter is found expresly for the Lord Peters And if the Court séemed to be agréed then he assess'd dammages and that Verdict was clearly for the Defendant And if the matter in Law might well come in question as the Iurors intend scilicet whether a Person will be compellable to two Léets yet Iudgement shall be given for the Lord Peters For it might be a general Leet of the Hundred or a special Leet within a Mannor within the Hundred As it is expresly 21 E. 3.34 And the Case of the Countess of Northumberland and Devonshire was in this Court before this time agreed Crook Iustice 18 Iac. Banc. Reg. One Cooks and Sables Case there was agreed to this purpose Though a man is not compellable to be attendant to two Leets although they be held at several daies Yet by that Custom they may be attendant Like to Walgraves Case which was adjudged in this Court That a Mannor may be held by Copy of another And that the Lord of a Copyhold-Mannor may grant Copyhold And this Iudgement was affirmed good in the Kings Bench in a Writ of Error For Custome hath abolisht that And the opinion of the Court was That he cannot be attendant on two Leets if they be held at several daies It was said by Richardson That the Lord of the Roman fee shall not be Subject to the Leet of the Lord Peters As appears by 21 E. 3.33 And Crook said That that Book was good Law For there when the party is amerced in the one Court he cannot be punished in the other Court for the same offence And afterwards Richadson and the whole Court said That he himself shall be subject to another Court for his resiance or otherwise he should be exempt from every Leet Humbletons Case MOre of this you have before Now they afterwards come and the Case was recited in some thing different from the former scilicet That there being such a Communication as afore the consideration was That Palmer having now brought an Action against him he should defend the said Sute in maintenance of their Tytle of Common and that immediatly after Iudgement given he should pay him half his costs or 40 l. Vpon which this Assumpsit is brought And the Issue was Whether he defended the Sute in maintenance of their Title of Common and it was found against the Defendant And by the whole Court the Plaintiff had well declared the consideration For the words are that he maintain the Title against Palmer for the promise was after the acttion brought And the Plaintiff is not to prescribe what Plea hee 'll plead but that he defend that Sute And then when Palmer is not owner of the Soyle as appears in the evidence in the Kings Bench. And so if a pretence to common fail he should be punisht for a Trespass where he ought not Palmer being an Introcer upon the King And every Commoner may break the Common if it be inclosed Although he does not put cattel in immediately But he may infriender by the other Commoners or his Tenents and his Title of Common only excuses him of the Trespass And also the Iury had found that it was in maintenance of the Title of Common expresly And so Iudgement was entred for the Plaintiff pleno consensu Dorothy Owen against Owen Price DOrothy Owen brought an action of the Case against Owen Price upon a trover of Conversion of one Load of Wheat and one other of Barley within the Rectory of Broody And upon not guilty the Iury found a special Verdict to this effect viz. Marmaduke Bishop of St. Davies seised of the Rectory of Broody and a Mannor parcell of the Bishoprick 3 August 27 El. makes a Lease of them being formerly demised to Anne-Davyes and the two Daughters P. and C. habendum a die datus for their lives successively viz. to A. and her Assigns for her life rendring the antient rent and afterwards the first of September 27 El. makes a Letter of Attorny to I. S. to enter in the Rectory and Mannor and there to deliver seisin secundam formam Cartae which he did accordingly The Lease is confirmed the Bishop dies and Wilburn his Successor accepts the rent of A. and without any entry makes a second Lease for two lives to the Defendant and he is translated Laude the next Successor before any acceptance makes another Lease for
three things were moved in arrest of Iudgement which Serjeant Barkely answered There was a covenant to enter into an obligation at Michaelmas and the Plaintiff shews that he entred before So he does not perform the consideration which he conceived to be a good performance For if a man be bound to doe an act or pay money at Michaelmas a payment before is good H. 7. 17. 2. pasc It is shewn that an action of Covenant was brought after And they say that upon his shewing covenant does not lie but debt but he said that the Plaintiff had his election here to have debt or covenant As in the Lord Cromwels case the words covenanted provided and agreed give advantage of a condition or covenant If a covenant had been sor 30 l. then debt only lyes But here it is to perform an agreement Thirdly that it appears within the declaration that the action of the case was 6 years before the action brought And so by the Statute of 21. Jac. the action does not lye I agree if the cause was 6 years before yet the breach was within the 6 years and that is the cause of action 6. rep 43. In a covenant there is the deed and the breach of the covenant and that is the cause of the action And therefore being matter in Deed an accord with satisfaction is a good plea to it 13. E. 4. Attaint is grounded upon matter of record but the false oath is the cause of it For that there also accord is a good plea So in our case the non performance by default was not at the time limitted which was before the 6 years but no action was brought against the Plaintiff untill within the six years And then he is not damnifyed untill within the six years 5 Rep. 24. Richardson For the two first exceptions he agreed with Barkley as to the third he said that there can be no action before the breach of the promise or covenant But the breach here is before the six years for the non performance of the agreement is a breach and a breach is a damnificationn In one Boughtons case the non payment is a damnification But all the question here was whether that ought to be pleaded but I conceive that it need not for by the Statute-law the action is taken away And it being a general law the court ought ex officio to taken notice of it For in that after verdict if it appears that there is no cause of action although the verdict be found for the Plaintiff he shall never have Iudgement And upon the matter that latches in time amounts to a release in law the proviso cannot ayd you For every man shall be intended without those disabilities for that that he would shew that he would have advantage of it And Crook of the same opinion for the reasons given before and said that although the Statute took away the Common law yet it is good law and done for the ease of the subject and for that shall be favoured as the Statute of limitations in all cases But he said the non performance was not a damnification before the action brought As if I be bound as for surety for A. who is bound to save me harmlesse Although he does not pay it at the day There is not a breach before the arrest or Iudgement For by the Iudgement the lands and goods are liable But for the arrest his body is troubled for that now the Scriveners put in such obligations that they save harmlesse the party and pay the money at the day But for the other matters in all he agreed and cited Richardson and Burroughs Case Where a payment before the day was adjudged a payment at the day Yelverton That is not found that there is any sufficient notice given to the Defendant by the Plaintiff of the agreement made which he ought to have And he agréed in omnibus with Richardson and said that Scriveners use things ex abundanti Richardson It is said habuit notitiam in the Declaration but does not say by whom Yet after verdict it shall be intended a good notice And although that Nichols had given the notice it is sufficient If there be a Lease for years upon condition that he doe not assign the other accepts the rent of the Afsignee before notice He shall not be bound by that acceptance before notice But if notice may be proved either by the Plaintiff or by any although it be by a meer stranger It is sufficient Yelverton denied that for he said That none but privies can give the notice of it as the case is Et adjournatur Denne and Sparks Case before RIchardson If a will be of lands and goods and that was the occasion of this will the revocation is only tryable at the Common Law But when the will is of goods only the occasion of it shall be tryed only in the Spiritual Court For it is incident to the probate of the will quod fuit concessum And he said that in the case before if the will be not revoked the devise is good at the time and the administration shall be granted as of his goods for the Law will not change the property of the residue after debts and legacies paid Crooke The case here is that the Testator makes his will of his lands and goods and devises the residue of his goods ut supra to his wise his Executrix who dies before probate Denne sues to be administrator as the goods of the first Testator and alleges revocation which because that his Proctor did not goe and swear that in fide Magistri sentence was given against him Vpon that he appeals in which there was the same Obligation and affirmed by the Oath of his Proctor Yet sentence was given against him And a prohibition ought to be granted for three reasons First For that the Will is of Lands and Goods and the occasion of that tryable here Secondly they offer injustice in giving the allegation Thirdly The Wife here dying before the probate the administration ought to be granted as of the goods of the Testator and not as of the wife And also they here would inforce Denne if he had the administration to take it cum testamento annex Which shall be an admittance by him that there was not any revocation Richardson for the first reason he agréed that the revocation shall be tryed by the common law But the goods here are only in question and all the usage and practice is that a prohibition shall be granted with a quoad the lands For the second That they will not allow the allegation If they will not pursue their rules and order of Iustice That is not a cause of a Prohibition but appeal for the third It is fit that there shall be an election if debts and Legacies are owing But it doth not appear here that there are any debts or Legacies to be paid but after Harvey agréed with Crook
them the word Iudas is material here for loquendum ut vulgus If he had said you have plaid the Iudas with your Clyent without doubt is actionable Which Richardson also agreed and said if one says of an Attorney that hes a false Attorney an action lies Sed adjournatur Hawes's Case IN Dower the Defendant pleads ne unque seise que dower It was found by the Iury that the Husband was seised and died seised and assess dammages to the Plaintiff generally And it was moved in arrest of Iudgment because that the Iurors did not enquire of the value of the land and then ultra valorem terrae tax dammages as much as is the usual course as the Prothonatories informed the Court. For the Statute of Merton gives dammages to the Wife scil valorem terrae And the Statute of Glouc. cap. 1. gives costs of sute But by the Court Iudgement was given for the Plaintiff although the dammages are given generally and certainly intended for the value of the Land And there might be in the Case a Writ of Error Hil. 5. Car. Com. Banc. Simcocks against Hussey SImcocks brought waste against Hussey for cutting 120 Oakes and the Iury upon nul wast pleaded found him guilty of cutting 20 in such a field and so sparsim in other fields which was returned upon the Postea but nothing said of the other 20. where in truth the Iury found him not guilty of them but the Clark of Assizes took no notice of that By the Court If the Clark had taken notice there might have been an amendment by them But here they gave direction to attend the Iudge of Assize to examine the truth of it And if they could procure the Clarks to certifie the residue they would beleeve it Dower DOwer was brought for the moiety of 45 acres of land and for part non tenure was pleaded which was found for the Plaintiff and for other part Ioyntenancy which was after imparlance Whereupon the Plaintiff demurred and Bramston prayed Iudgement and answered farther for that that it was after imparlance and cited one Doctor Waterhouses case in Dower where it was adjudged that non-tenure after imparlance was not a plea And by the same reason shall not joyntenancy be 32 H. 6. 29. And by the Court it was adjudged quod respondeat ouster But otherwise it would have been if there had been a special imparlance tam ad breve quam ad narrationem And it was prayed to have Iudgement upon the verdict And by the Court it was said that they should have Iudgement And that there might be two Iudgements in this action for the several parts of the land Sir Francis Worthly against Sir Thomas Savill HE brought an action against Sir Thomas Savill for batterie In which it was found for the Plaintiff in not guilty pleaded and 3100 l. damages was given Which verdict was last Term. And in this Term it was shewn to the Court that the Declaration entred upon the imparlance roll was without day moneth and year in which the battery was committed Which was observed by the Atturneys and Counsel of the other part and that a blank was left for it But afterwards in the time of this vacation in the night time the Key of the Treasury being privily obtained by a false message from Mr. Brownlow Prothonotary the record was amended and some things were interlined to make it agree with the Issue Roll which was perfect And these things were affirmed by severall affidavits Whereupon Atthowe moved that those parties privie to this practice might be punisht and that the record might be brought in Court and made in statu quo prius Crew on the other side demanded Iudgement for the Plaintiff for whether there is an imparlance Roll or no. If none then the matter is discontinued and that ayded by the Statute If you will have an Imparlance Roll then I think these omissions are amendable by the Clarkes although after verdict Harvey The Course of the Court is for I am not ashamed to declare that I was a Clark for 6 years in Brownlowes Office If the Declaration was with a blank and given to the Attourney of the other side if in the next term the Atturneys of both sides agrée upon the Issue Roll Vpon this agreement the Clark for the Plaintiff had always power to amend the Declaration Because that by the acceptance of the other side there was an assent Richardson The imparlance Roll is the original Roll and ground for the Issue Roll which is the Record of the Court And I agrée that it is reason to amend the nisi prius Roll. Harvey gave an excellent reason whereupon the Pregnotaries were demanded what was the course of the Court Brownlow Gulston and Moyle all agréed that the course is That an imparlance roll may be amended if no recordaâ—uâ— That if no recordatur or rule be to the contrary and a Declaration delivered with blanks the Clarks have always amended it And Brownlow shewed where the book of 4 E. 4. was objected to the contrary and he had séen the Record and there was a recordatur granted Richardson Debt is brought against one as heir and there is omitted ad quam quidem solutionem haeredes suas oblig shall that be amended And it was said by all the Pregnotaries it should And Moyle said that in 13 Iac. there was a case between Parker and Parker upon a trover and conversion and the Imparlance Roll was entred with a blank as here and upon non-guilty pleaded it was found for the Plaintiff and I fear it will be mended By the Court this difference will reconcile all the books scil where there is a recordatur and where not It was agreed by some one of the Iudges that a recordatur might be granted out of the Court. And so Brownlow cited a president Pas 4 E. 4. rot 94. to the same purpose And so Iudgement was given for the Plaintiff Starkeys Case before IVdge Yelverton now being in Court the Counsel of the Plaintiff prayed his opinion and shewed the reasons given before to have Iudgement And Yelverton said that the word Iudas here did not bear an action It was two of the Apostles names and the betrayer Iudas was a Traytor to Heaven and therefore this reason should not be drawn to earth to cause Actions between men But for the word common Barrettor being spoken of a common person is not actionable until conviction he is not punishable for it If he called him convicted Barrettor Convicted Barrettor to a common person is actionable it is actionable But being spoken of an Atturney or an Officer of Iustice it is actionable Littleton tells us what they are they are meant stirrers up of unjust sutes which is a grand offence in an Atturney And they put the case of Sir Miles Fleetwood One called him the Kings Deceiver which was adjudged actionable and that it ought to be understood of his Office And for that in
the principal case Iudgement was given for the Plaintiff Iohn Costrell against Sir George Moor. JOhn Costrell and Ioan his wife brought an action upon the Case against Sir George Moor and declares That whereas the said Iohn and Ioan were seised of a Messuage and lands in right of his wife Ioan A man having land in right of his wife in trust they cannot both joyn in the action but the Husband only and that the said Iohn and Ioan and all their predecessors time out of mind c. had common in such a waste which is the soyle of the Defendant pro omnibus a veriis levantibus cubantibus c. and the Defendant had inclosed 20 acres of the said waste and made a fish pond of it there so that they could not take the profits as before with their cattel Vpon the general issue pleaded it was found for the Plaintiff And Crawley moved in arrest of Iudgement For that the prescription is ill made and that the Husband and wife cannot joyn in this action but the Husband might bring the action only And also where it is said that they cannot take the profits with their Cattel when the wife cannot have Cattel during the Coverture Richardson said the prescription is good and it would have been better if he said all those whose estate the wife had But this tantamounts and is as well in substance for that goes meerly to the estate of the Wife Trin 5 Car. Com. Banc. which was granted But for the second I doubt if the Wife may joyn in this Action If a man be seised in right of his Wife he may have Trespass for Trespass done upon the Land there the Wife shall not joyn for she cannot have the dammages if she survive And there is no difference between this Case and the principal Case It is Trespass on the Case and for the personal and temporary trespass and such for which the Wife should have the Action after the death of the Husband unless that the Defendant continue the Pond c. I agree if Battery be done to the Wife they both shall joyn for the Wife might have had the Action if she survived And so it was resolved in the Cooks of Grays-Inns Case they might joyn For the wrong was done to the Wife But here the Husband only lost the benefit of the Common and the wife could not take it with her Cattel For she had not any Cattel during the coverture And Yelverton also was of the same opinion But Hutton said In a Quare impedit the Husband and Wife shall joyn And yet the avoidance goes to the Executors of the Husband Hitcham In an Ejectione firm or ravishment of Ward the Feme joyns quod concessum fuit Yelverton said that in 4 E. 4. it is express that the Wife shall not joyn in trespass done upon the Land of the Wife for dammages shall be recovered in lieu of profits Moor against Everay MOor and his Wife brought dower against Everay To parcel he pleads non tenure and to the other parcel ne unque seise de dower which goes to the tryal and there the Tenant makes default and upon that a petit cape is awarded and now at a day in bank one Lumbard prays to be received upon the Statute of Gloucester to save his term c. But Henden alleged to the contrary First That Statute is not to this purpose in force by the Common law Tenant for years cannot falsifie 6 Rep. Periams Case Then because it was hard that a recovery should be had by Covin and the Lessee for years without remedy for his term the Statute of Gloucester was made which gives a receipt for the Lessee for years after the Statute 21 H. 8. was made which gives the Lessee power to falsifie The Common experience of the Court is If an habens facias seisinam issue there is not any saving of the term of Lessee for years Hil. 39 Eliz. in Bests Case A receipt was moved and denied For if the Lessee had a good term he might have trespass for entry upon him Littleton though says in his Chapter of Tenant for years that he shall be received Hutton The Statute of Gloucester aids them only who knew and had notice of the Recovery 21 H. 8. aids them who had not notice of it And it is better to prevent mischief than to remedy it after and as to that a final Bar. I was of Counsel in some Cases where the Lessee was received And if the Lease be not good the Lessor may avoid it by Plea scil Traverse or Demurer And I remember the issue taken upon the Term and found against the Termor And it was Mr. Fulhams Case against Sergeant Harris Sed adjournatur Fawkenbridges Case IT was moved he having Iudgement before to have costs where the Court doubted because that it was a special Verdict and the Statute of 23 H. 8. cap. 15. says That where a Verdict is found against the Plaintiff But in a special verdict it is neither found for or against But it may be said that when it is adjudged against the Plaintiff then it is found against him And 4 Iac. cap. 3. which gives costs in an Ejectione firmae had the same words if any verdict c. But it may be answered That as in Demurrer no costs shall be recovered no more in a special verdict For that the Plaintiff had a Prohibition causam litigandi And the Statute may be intended of vexatious Sutes c. But Brownlowe said that he had many times given costs upon the Statute of 4 Iacob For that the Prothonotaries were commanded to search Presidents The University of Cambridge THe Vniversity of Cambridge claimed by their Charter to be Clarks of a Market and that they had power by their Office to make orders and execute them And they made an Order that no Chandler should sell Candles for more than 4 d. ob the pound And because that one R. sold for 5 d. he was imprisoned and a Prohibition granted But it séemed that an Habeas corpus was more proper For he was not presented First For that they could not imprison without course of Law Secondly Because that as Clarks of a Market they have nothing to do with but Victuals and Candles are not Victuals The Sheriff of Surrey against Alderton THe Sheriff of Surrey returns a rescous against one Alderton That whereas there was a Iudgement had against B. and a fieri facias awarded upon that by vertue of his Warrant directed to R. to take the Goods of B. By vertue whereof such a day the said R. diversa bona catalla ipsius did levy and had them in his custody No rescous can be of Goods and one Alderton rescued them from the Bayliff contra voluntat ipsius Rich. The return is naught First For that that it is rescued from the Bayliff Secondly It is of Goods whereof a rescous cannot be returned Yelverton contrary in
good and it shall be intended that the Parson is alwaies resident in his Parsonage as a Surrender or an Attournment shall be intended upon the Land and it is not requisite to name any place And it seemed to Harvey that the Arbitrement was good although that all the Parishioners had not submitted to it Because that these were bound for them 18 E. 4. 22. 1â—… 1. And Iudgement was afterwards in the next Term given for the Plaintiff Iohn Paston against William Manne IOhn Paston brought an Ejectione firm against Manne and a special verdict was given to this effect scilicet Edward Paston was seised of the Mannor of Bingham parcel whereof was the Land in question grantable by Copy And he by his Deed indented in consideration of a Mariage to be had between Tho. Paston his Son and the Daughter of I. S. covenanted with I.S. to stand seis'd of the Mannor to the use of his Son for life and after to Mary the wife for life the remainder to the first Son between them in tail with divers remainders over The Mariage was solemnised and they found moreover that there was a Custome that the Lord might have liberty of fould course for 100 Sheep throughout all the Copiholdland lying in the East and North field the Customary places and Lands in these Fields not being inclosed from the Feast of St. Michael to the Feast of the Annunciation if the grain was carried in by that time Or otherwise from the time of the carrying in to the Annunciation if it be not sowed with seed again and that those 15 acres in question be in the Corn-field And that Thomas Paston granted that Copihold to the Defendant in Fee and that in 14 Iacobi the Defendant enclosed the Land without Licence of the Lord and if Licence was obtained then he ought to have paid a Fine which the Lord would have assest And if any of the Tenents inclose without Licence they find that they have used to be punisht and pay those penalties which the Lord would assess And they also found that that incloser by the Copiholder was with a Ditch of six foot in breadth and 3 foot in depth and that the land which he digged out was but to make a Bank upon the Land upon which a hedge of quick thorn was set and that four gaps were left in the inclosure of nine feet in breadth And they found that the Defendant did not at any time compound for a Fine And then they find that the Copiholders which before this inclosed without Licence were amerced and commanded upon a pain before a certain day to throw up their inclosures And now for this inclosure Thomas enters for a forfeiture and dies his Wife makes a Lease of it and the Defendant ejects the Lessee Atthowe held that he had forfeited his Copihold for that inclosure is against the Custome of the Mannor which is found For the Custome is the life and soul of a Copihold as it is in the 4 Rep. 31. Brownes Case The breaking of that is a forfeiture and make the Copiholder have an Estate at will meerly whereas before he had an Estate not meerly at the will of the said Lord but secundum volunt domini And so by the inclosure the Lord cannot have his fould course and so the custome is broken 42 Ed. 3. 25. For not doing the services the Lord may enter and have the Emblements If a Copiholder makes a feoffment it is a disseisin for which there may be an Assise of novel disseisin de libero tenement of Lands whereof the profits or of the Rent issuing out of the Land there is a forfeiture And Littleton said that a rescous Replevin Enclosure and denying the Rent is a Disseisin And what is a Disseisin of a Freehold is a forfeiture of the Copihold Rescous by a Copiholder is a forfeiture for all the books say that a denial of a rent is a forfeiture And it is held that if a Copiholder brings a replevin it is a forfeiture and the Lord may enter presently But if he avow then perchance he hath dispensed with it And an inclosure is more strong than a denial 11 E. 3. Assise 88. cited in Taverners Case 4 Rep. The heir cannot have an Assise before entry but if the Defendant menaces him or stops up the way it is a Disseisin 14 Ass plac 19. 8 E. 2. As 374. A stopping up of the way is a disseisin but if he can go another way he can have nusance 29 Ass 49. But it will be objected that the Lord had another remedy for he might have an Action of the Case And for that not enter for a forfeiture But an Action of the Case does not restore him to the Freehold but give dammages only And if an Assise be brought it affirms the Disseisin and makes forfeiture and that agrees Taverners Case That where several Copiholds were granted by one Copy a rent denied of one forfeits that and not the others But admit it is a forfeiture if the leaving the Gaps dispence with it And it seem'd that not for he loses the profit of the Fould-course for 500 Sheep would tear their fleeces by such a narrow passage and the inclosure is an impediment to hinder their spreading in their feeding And so every one also may inclose and leave gaps and the Lord perhaps compell'd to put and remove the Shéep ten times in one day and so the Sheep worse at night than in the morning c. Secondly if the Lord had given Licence then he would have had a Fine but he would so be his own Carver And the Lord had no remedy for a Fine upon admittance after Surrender 4 Rep. 46. He had no remedy there by Action of debt nor by Action of the Case without promise to the Admittance c. Lord grants a Copihold Escheat he ought to improve his Fine before or he hath no remedy for he is not compelled to grant the Copihold again and therefore he shall have what Fine he will And it is not found also who may inclose paying his Fine A Lord admits a Copiholder for life with remainders the admittance of Tenent for life was the admittance of the remainder but he shall have his Antefine 4 Rep 23. And if they may inclose paying a Fine then the Lord had an Estate at the will of the Tenents Thirdly when it is found that the Lord amerced and commanded upon pain c. that is no mitigation or dispensation of the forfeiture For ruinous Houses pull'd down is a forfeiture without Custome to the contrary Because no waste lies against a Copiholder as against Lessee for years And yet the Lord in favour may amerce such a Copiholder if he will and that is no dispensaition but an affirmation of the forfeiture And so because the Lords were conscionable and would not take the forfeiture that does not prove that it is a Dispensation Fourthly the making of the gap and hedge of
consideration of the Premises c. Which was a thing executed before the obligee shewed the obligation to the Obliger that in consideration of that promise to pay the debt is not a good consideration In consideration that the Testator is indebted c. I will pay at two days is not a consideration But in consideration that the Testator was indebted and you will forbear is a good consideration That you will forbear paululum temporis is not a good consideration without expressing for a day or c. as it is adjudged c. Richardson in consideration that the Testator was indebted is not a good consideration And then in consideration that he made appear that the debt is due is not good for he ought to do that before it can be paid But more after c. Abree against Page ABree brought an Action against Page who pleads that the Plaintiff had released to him after the Obligation made upon which Debt is brought All and all manner of Errors and all manner of Actions Sutes and Writs of Error whatsoever which the said Iohn for any matter or thing c. And I the said Iohn am by these presents excluded of Writs or Sutes Actions of Error or Sutes against him the said c. Vpon which the Plaintiff demurred Amhurst said that the Action is barred The pretence is that that Release extends only to Errors Littleton said the Obligation makes the Duty presently And a Release of all Actions shall bar him 8 Rep. Althams Case And Bullocks Case an Obligation shall be taken more strongly against him that makes it 19 H. 6.42 Two have Goods in Ioynture and give all their Goods their several Goods pass also And if two grant rent their several rents pass also according to their several Interests And then he said it should be a bar of all Actions and Sutes and that amounts to a Release 21 H. 6. 51 H. 6. one was bound to save a Sheriff harmless against I. S. And he pleads that he was taken by a Capias and made an Obligation and that he kept his day And that was adjudged a good Plea Which shews that words not formal may bar an Action c. Richardson said If the Release be of Actions and Sutes Substantive no question but Debt is barred and that Déeds he granted should be taken more strongly against him that makes them He agréed to the Cases put by Amhurst But more after c. Bowett and Langhams Case ELlen Bowett procured a Corpus cum Causa out of the Common-Pleas to the Sheriff of London who returns that she was imprisoned upon a Sute against her by George Langham as a Feme sole Merchant according to the Custome there Now the Truth was that her Husband being a Vintener was prest by the King to be a Souldier and goes over-Sea The Feme afterwards takes an House and buys Wine of Langham who trusted her supposing she was a Feme sole Merchant Afterwards the Husband returns and the Wife denies to pay for the Wine and the doubt was if the Feme was a sole Feme Merchant by the Custome so or not and the words of the Custome were read That where the Wife meddles in a Trade in which the Husband may meddle nothing she shall have all advantages and shall be sued as a Feme sole Merchant c. But by Richardson and Yelverton Shee is not a Feme sole Merchant within the Custome For her Husband exercises himself the same Trade And a Feme sole Merchant by Yelverton ought to be the Widow of a Tradesman who takes a second Husband and afterwards exercises the Trade of the first Husband Secondly she ought to be a Feme Covert and not a Virgin or Maiden Thirdly she ought to be of another Trade than that which her second Husband was For if she may exercise the same Trade of her Husband when he is over the Sea the Husband may go over Sea and return within a year and then she is a Feme Covert c. And so make her a Feme Sole or Covert at his pleasure And Richardson and Yelverton said that that would be a prejudice to all the Wives in London so that they would never be fréed from imprisonment But Crook Hutton and Harvey to the contrary And they said that if the Husband meddle with the Trade of his Wife then she is not chargeable as a Feme sole Merchant But if the Husband be over Sea or become Banckrupt or relinquish his Trade and the Wife exerciseth the same Trade or they both exercise the same Trade distinctly by themselves and not meddle the one with the other She is a sole Merchant or otherwise it would be a great inconvenience For the Wife when her Husband is over Sea would contract and gain much Goods of others into her hands and the parries shall not have any remedy But Richardson said that he who sells ought to take notice whether she be Feme Covert or feme sole Merchant by the Custome or not his peril Ayliffes Case AN Action of battery was brought against Ayliffe and his Wife for a Battery done by the Wife upon the Plaintiff And the pleading was that the Baron and Feme came and defended the force and wrong c. And the Baron for his said Wife says that she is not guilty And upon that the Issue was joyned and found for the Plaintiff against him And in arrest of Iudgement it was awarded that the Issue was ill joyned For the Wife there pleads nothing So there was nothing done at that time with the Sute Tayler against Philips TAyler and Margaret his Wife exhibit a Bill in the Council of Marches against Phillips and his Wife For that the Wife of Philips had sent a scandalous Letter to the Wife of Tayler And the Letter was written to this effect ut sequitur Mrs. Tayler I have often heard of your clamorous tongue whereas if you want matter against your Enemies you exclaim of your Friends and give out that I am jealous of my Husband with Mrs. Anne he was never so precise to take on him to be ashamed how he liked the Border of a Womans Pettycoat and you being not able to throw the first Stone at him need not to have been one of his Accusors Neither know I what he can be accused of unless it were for being in your Chamber before you were up Which I never heard was prohibited to any neither know I why it should be to him You may challenge me for a Coward that I meet you not at the Crosse as you have challenged others having been a Pupill in the School of Scoulding and a rare Artist therein But I durst not have done it lest I should have been so hoarse that it might have have been said I had the Pox. And the Court proceeded to the hearing of the matter and sentenced the Defendant to be imprisoned and fined 40 l. to the King and 40 l. dammages to the Party And
Sergeant Henden moved for a Prohibition for that that their Instructions are Whereas there be divers Books News and Tales spread abroad and Libells made by which the Subjects are abused and the Peace may be broken you shall proceed against such Persons till the Authors be found out and they be punished by fines imprisonments papers set on their breasts and the like And he said that those words are not accomtable at Common-law and therfore are not as they seem within their Instructions But admit that yet they have not power to give dammages to the Party Richardson said In the Star-Chamber libellous Letters that are spitefull and scandalous to defame any although that they bear not an Action at Common-law yet they are punishable there and also they give dammages to the Party wronged But there is difference betwéen the Star-Chamber and that c. Henden said that Magna Charta makes the difference Quod nullus liber homo capietur aut imprisonetur nisi secundum legem terrae So by the Common Law and their instructions they have not power to give damages to the party Richardson chief Iustice said that no prohibition should be granted for the Fine of the King for they have power in that Case without question and to the punishing in that matter And if they err in Iudgement for the Libellious Letter and adjudge it to be Libellious where it is not We cannot award a prohibition nor grant error But for the damages that Court differs from the Star-chamber for the Star-chamber had its power by its self and differs from the Common Law But that Court is by Commission and therefore they ought to follow their Instructions And therefore a prohibition as to the damages shall be granted And Yelverton also was of the same opinion but he said there was another clause in their Instructions And for that a prohibition as to the damages shall be granted Hutton and Harvey said That if the sute was by information than it is clear that damages cannot be given But it is by Bill so in nature of an Action as I conceive which concludes that they were damnified But it is now brought too late to grant a prohibition where the parties have admitted the action But a day was given to shew cause why a prohibition should not be granted quoad the damages And so they concluded for that time Note that it was said by the Court That if money be lent upon Interest and the Scrivener who makes the Obligation reserves more then 8. l. in the 100. l. That that is not an usurious Contract See the cause c. Eaton and Morrisâ—s Case EAton and Morris being reputed Churchwardens but they never took any Oath as the Office requires present a Feme Covert upon a Common report for Adultery c. And the husband and wife Libel against them in the Ecclesiastical Court for that defamation And when sentence was taken and ready to be given for them the Churchwardens appeal to the Arches and for that that that presentment cannot be proved but by one witness they sentenced the Baron and Feme And now Ward who that term was made a Serjeant by a special call moved for a prohibition but it was denied by the Court for they were Plaintiffs first And also it is a cause which this Court had not any Conusance of Marshes Case before MOre of Marshes Case which is before Richardson Hutton Harvey and Yelverton said That the consideration also is good For although that it be not expressed that the Plaintiff himself shewed the accounts yet it appears fully that they were upon the request of the wife viewed And it shall be intended by Common presumption that the Plaintiff himself shewed them for he had the custody of them and is owner of them And the Books of Merchants are their secrets and treasure and they will not shew them by their good will Now it is not like to the case of an Obligation for there the certainty of the debt was before and he was compellable to shew it But the certainty here cannot appear without great search and labour and there can be no compassion to shew their Books And by Hutton Iustice There is no question but if the promise had been made after the Sute commenced it haâ—… been good No question by Richardson and it is agreed by all That if the Defendent had required the Books to be brought to his house or to another place it should have been good And there is not any difference although the Books were shewen in the shop by the servant for he permitted his Books to be viewed c. And Yelverton said that Beechers Case and Banes Case is more infirm than this Case is And yet adjudged there to be good And so it was awarded that Iudgement should be entred for the Plaintiff Si non c. Of a Communication of Marriage A Communication between I.S. and A. was of the Marriage of I S. being possessed of a term for years and of certain goods promised to A. that if she would be married to him and they had issue a son that he should have the term If a Female that she should have the moyetie of the goods And after they intermarry and have issue B. a daughter The husband dies and B. brings an action upon the Case against the Administrator of I.S. By the Court she cannot bring the action unless as Administratrix of A. or in the name of A. And the Case of Stafford was recited Where there was a Communication between Stafford and a woman That if she would marry with him that Stafford would leave her at his death 100. l. And after the intermarriage and death of the husband in an action brought by the wife the question was whether the promise was extinguisht by the intermarriage And after grand disputes it was resolved that the intermarriage was but a suspension of the promise And so it was concluded Kitton against Walters KItton brought debt upon the Statute of 5. Eliz. cap. 9. for Perjury against Walters for an Action of Trespass for Battery was brought against him by I. S. and he pleaded not guilty and that the Defendant was brought as a witness And that he falsely and corruptedly deposed and did not speak voluntarily that the Plaintiff in the Trespass was wounded and beaten c. And that he could not labour for half a year c. And upon the general issue pleaded it was found for the Plaintiff and Hendon moved to have Iudgement But it was objected that the party grieved shall not have that Action for that he did not say voluntarie deposuit c. For although that he falsly deposed wherein voluntary is not but a conclusion and voluntas ought to be in the premisses and corruptive does not include that and so was the opinion of the whole Court And it was awarded that the Plaintiff nil capiat per breve A servant of a Bayliffs Case IT was awarded
was found for the Plaintiff And Atthowe moved in arrest of Iudgement First for that That in the Record it was entred that the Issue was inter praedict Robertum where it should have been Radulphum And secondly that the words were not actionable Richardson said as to the mistake it was helped by the word aforesaid And although that it was inter praedict Andrews it should have been well For it cannot be intended but the same Andrews And Crook Iustice cited Dyer 260. Cook and Watsons Case to be the same Case and 11 H. 7. Penningtons Case That the words were actionable For the Statute punishes forgery and the procurers of forgery And it is all one although he did not say falsly procured as the precise words of the Statute are Yet it shall be intended that that is implyed in the word Forge But if it had been said the Deed given in evidence was forged that was not actionable Wood against Symons VVOod against Symons in a Prohibition in which Symons libels for Tithes of Hay And Wood suggests for the Prohibition That he used to pay tithe of Hay in specie in consideration whereof he used to be discharged for all Doles Green-skips and Headlands not exceeding the breadth that a Plough or a Teame might turn about the Lands And Henden moved for a Consultation For that it is said about c. that is circa terras arabiles When the truth is there are Skips at the side of Lands as broad as the Lands themselves and then he would be discharged of them also Whereas it ought to be at the end of the Head-lands only Richardson said that in arable lands inclosed Pasture is at the end and at the sides which is mowed and yet discharged of tithes But the Court in respect there was a Prohibition granted said That he ought to joyn Issue or demurre upon the Declaration Summons IN a Writ of partition after the Summons an Estrepment was granted and generally against the Parties and their servants For in partition no dammages are to be recovered Quod nota Escape IF a Sheriff remove his Prisoners out of the County without being commanded it is an escape But if he remove them from one place to another in his County as he changes his Gaol it is not an Escape But if he remove prisoners for their ease and delight in the same County it is a Escape As the Case was cited by Harvy That one went with his Prisoner to a Bear-bating in the same County And it was adiudged an Escape And Hutton Iustice said So that if a Sheriff permit his Prisoners to go to work for their benefit it is an Escape And the Question was if in an Audita Querela for a voluntary Escape of one in Execution there should be bayl and the opinion of the Court was That if it appears That the Cause upon which the Audita Querela is grounded is called a good proof by the Record and that he should not be bayled unless good and special bayl Duncombe against Sir Edward Randall IN an action upon the Case betwéen Duncombe and Sir Edward Randall for diversion and stopping of a River It was agreed by the Court That if one had antiently Ponds which are replenisht by Chanels out of a River He cannot change the Chanels if any prejudice accrew to another by that And yet the effect by prefluxions is to have the Ponds fed out of the River But sic utere tuo ut ne laedas alieno The Vicar of Hallifaxes Case A Chaplain that was under the Vicar of Hallifax libells against him for his Sallary And he prescribes that the Vicar ought to pay the Chaplains four pounds a year And the Vicar prays a Prohibition First for that he alleges That the Chaplains were eligible by himself And because that Chaplain was not elected by him He is not Chaplain But he is in of his own wrong c. Secondly That prescription for Sallery was tryable at the Common law Yelverton the Sallery is spiritual as the Cure it self is spiritual for which it is to be payed As the Case in Dyer 58. Pl. 4. But a Prohibition was granted untill it was determined to whom the election appertained And that now depends by Prohibition in this Court Assault and Battery TRespass of Assault and Battery was brought against two and the one of them appeared and a Verdict was found against him The other was in the insimul cum And dammages were taxed against him who appeared But the Court by view of the Plaintiff increase the dammages from 30 l. to 40 l. And afterwards a verdict was given against the other Defendant and dammages also were taxed And Thime moved that the other Defendant had murdered the Officer who came to serve the Execution upon him for the 40 l. And so they by possibility might recover nothing against him that the Court would increase the dammages against this Defendant upon another view of the wound But the Court denied that For they can have but view one time in this Action But if they had brought several Actions then it had béen otherwise But he directed him to stay all untill the first Defendant was hanged And then they may make a view and increase the dammages Margery Rivets Case A Iudgement in Debt was brought against Margery Rivets Administratrix durante minori aetate of her Son And in a Scire facias against her she pleaded in Bar that she was Administratrix c. and that such a day her Son came to full age scilicet 17 years and that after she refused before the Ordinary And that the Administration was granted to a Stranger And that she had delivered all the Goods in her hands at the time of the Writ brought or after c. The Plaintiff replies and confesses all the Bar But that before the delivery of the Goods and Administration granted by the Ordinary devastivit and does not say that praedicta Margery devastavit The Defendant joyns Issue Quod praedict Margery non devastavit Which was found for the Defendant And Hitcham the Kings Sergeant moved in arrest of Iudgement For that that there was no Issue For every Issue ought to be returned certain and the Issue grows upon the affirmative Then the word of the Defendant quod praedict does nothing for the affirmative makes the Issue Coo. Countess of Salops Case A Bar may be taken upon Common intent But a Replication ought to be precise and certain In the Exchequer Chamber Tho. Harris's case One pleads that he was seised of White acre and Infeoffac .. And adjudged naught for it ought to have been feofavit inde For he may be seised of White acre and enfeofft of another acre And also it may be said that another devastavit although that the wife was Administratrix Atthowe observed all the course of the Reeord there is not a word of Margery in the Replication but only in the recital But says ante diem quo devastivit And
found for the Plaintiff and Finch Recorder moved in arrest of Iudgement first for that they assigne the wast in a Park where the wast is in Land c. Secondly Because that that Action did not lye for them both alike for if the Grandfather and he in the remainder in tayle had joyned in a Lease yet they could not joyne in wast The Books are If Tenant for life and he in the remainder joyn in a Lease they may also joyn with wast 21 H. 8 14. Although 19 H. 7. be put otherwise And 2 H. 5. Sir William Langfords Case Two joynt Tenants to the Heirs of one of them and they make a Lease for life And it was adjudged that they might joyn in wast for the Tenant for life had a reversion for life and had not made any Forfeiture If the Grandfather and he in remainder had joyned in a Lease and afterwards in wast it had been naught for the lease came out of the first root And it was resolved Tr. 2 Jac. Kings Bench Poole and Browses Case That one in remainder cannot have wast where there is an intermediate Estate for life Yelverton and Hutton did not believe the Case of 2 Jac. Crook If there be Tenant for life with such a power c. of Lands held in capite he may make Leases for life without Licence of Alienation and well proves this cause Yelverton and Hutton For the wast being assigned in a Park it is good for a Park is Land Sed adjournatur Hodges against Franklin TRover and Conversion is brought by Hodges against Franklin The Defendant pleads sale of the Goods in Marlborough which is a Market overt and the Bar was well pleaded and an Exception was taken For that that it is not said that Toll was payed It was said by Hutton That there are divers places where no Toll is to be paid upon sale in Market And yet the property is changed and Iudgement accordingly Grimston against an Inn-keeper IN an Action upon the Case it was said at the Bar and not gain-sayed That they ought to say in the Declaration Trasiens hospitavit for if he board or sojourn for a certain space in an Inne and his Goods are stollen the Action upon that is not maintainable And for omission although the Verdict was given for the Plaintiff Iudgement was given Quod nihil capiat per billam upon fault of the Declaration and he paid no Costs Wilkins against Thomas IT was said by the whole Court That a consideration is not traversable upon an Assumpsit but they ought to plead the generall issue and the Consideration ought to be given in Evidence Ireland against Higgins IReland brought an Action upon the Case against Higgins for a Greyhound and counts that he was possessed ut de bonis suis propriis and by Trover came to the Defendant and in consideration thereof promised to re-deliver him It seemed to Yelverton that the Action would not lye and the force of his Argument was that a Grey-hound was de fera natura in which there is no property sed ratione fundi live Deer and Coneys and vouchd 3 H. 6. 56. 18 E. 4. 24. 10 H. 7. 19. for a Hawk for Hares are but for pleasure but Hawks are Merchandable This difference in 12 H. 8. is allowed so long as a Dogge is in the possession of a man an Action of Trespasse lyes detinue or replevin But no Action if he was out of his possession and so had not a property then there is no consideration which is the foundation of an Action Hutton to the contrary and said the whole argument consisted upon false grounds as that a Dogge is ferae naturae Which if it were so he agreed the difference in 12 H. 8. But he intended that a Dogge is not ferae naturae for at first all Beasts were ferae naturae but now by the industry of man they are corrected and their savagenesse abated and they are now domesticae and familiar with a man as Horses and a tame Deer if it be taken an Action lyes Rogers of Norwich recovered Damages pro molosso suo interfecto And 12 H. 8. So of a Hound called a Blood-hound And a Dogge is for profit as well as for pleasure For a Dogge preserves the substance of a man in killing the Vermine as Foxes And now is not an Horse for the pleasure of a man for a man may goe on foot if he will and an Horse is meat for a man no more than a Dogge Therefore an Action may lye for the one as for the other And for a Hawk he ought to shew that it was reclaimed for they are intended ferae naturae One justifies in 24 Eliz 30. for a Battery because he would have taken away his Dogge from him A Repleavin was brought for a Ferret and Nets and a Ferret is more ferae nat than a Dogge Seale brought 25 Eliz. Trespass for taking away his Blood-hound and there it was said to be well laid And then now if he has a property the consideration is good enough to ground an Assumpsit It is adjudged that a feme dowable The heir promises to endow her before such a day and the Action is maintainable upon that by the Court Intraturudic pro quer if no other matter were shewed by such a day Jenkins Case HE brought an Action upon a promise to the Plaintiff That if he marryed her with the assent of her Father she would give him 20. l. Adjudged a good consideration by the Court. 3 Car. rot 414 Sir Edward Peito against Pemberton SIr Edward Peito is Plaintiff against Pemberton in a Replevin and the Defendant was known as Bayliff to H. Peito and said that H. Peito the Grandfather had granted a Rent for life to H. Peito the Son to commence after his death The Plaintiff confesses the grant but sayes that after the death of Peito the Grandfather these Lands out of which the Rent issued descended to Peito the father who made a Lease for a thousand years to the Grantee and dyes The Avowant confesses the Lease but sayes that before the last day of payment he surrendred to the Plaintiff Vpon which there was a Demurer and the question was whether the surrender of the Lease would revive the rent Harvey If he had assigned the Lease to a stranger the rent had been suspended 5 H. 5. One grants a rent charge who had a reversion upon a Lease for life to commence immediately there the question was when the Lease was surrendred whether the rent now became in esse because that the Lease which privileged the Land from distresse is now determined in the hands of the Grantor himself Crook If the Grantor had granted reversion to a stranger and the surrender had been to him It was clear that the suspension had been for the term Hutton If a man seised of a rent in Fee takes a Lease of Lands out of which c. for years and dyes the
Executor shall have the Land and yet the heir cannot have the rent Harvey In this Court it was the case of one Asham who had a purpose to enclose a Common and one Tenant was refractory wherefore Asham made him a Lease of the soil in which he had Common and afterwards he surrenders it again And it was agreed that the Common was suspended during the term Crook A Lease for years is by the contract of both parties and the surrender may revive the rent but by the surrender the arrearages shall not be revived And suppose that the surrender was by Indenture and a recitall of the grant that is a grant and then it is expresse that by the surrender their intent was that the rent should be revived 3 H. 6. A surrender determines the interest of all parties but of a stranger But it is determined to themselves to all intents and purposes Crook It was one Cooks Case against Bullick intrat 45 Eliz. rot 845. Com. ban It was there adjudged and this diversity was taken If one devise Lands in Fee and after makes a Lease for years of the same Lands to the Devisee to commence after his death it is a countermand of his will if the Lease was to commence presently it is no countermand and the reason is In the first case both cannot stand in Fee the Devise and the Lease But when the Lease commences immediately he may outlive the Lease And this Case is put upon the intents of the parties But Henden This Case is also adjudged If two Tenants in Common are and one grants a Rent charge the Beasts of the other are not distreinable But if a Tenant in Common takes a Lease for years of another his Cattel are discharged again But Yelverton and Hutton doubted that Case and so it was adjourned to be argued c. Thomsons Case THompson libells for delapidations against the Executors of his predecessor and Henden moved for a Prohibition for that that Thompson is not incumbent for his presentment was by the King ratione minoritatis of one Chichley and the King had not any such Title to present for where the King mistakes his Title his Presentment is voyd and he is no Incumbent 6 Rep. 26. Greens Case And Sir Thomas Gawdys Case where the King presented jure praerogat when he had another Title and the present Action was adjudged voyd and whether he is incumbent or not that shall be tryed But by the Court a Prohibition was denyed because that he was now incumbent And the Iudges would not take notice of the ill Presentment of the King But in case of Symony the Statute makes the Church voyd and then the Iudges may take notice of that and grant a Prohibition if the Parson sues for Tythes But if a quare impedit be brought and appears that the King had not cause of Presentment then a Prohibition may be granted which also was granted by all the other Iustices Richard Youngs Case RIchard Young was Demandant in a Formedon and admitted by Prochein amy and the Warrant was allowed by a Iudge and it was certified and entred in Gulstons Office in the Roll of Remembrance but it was not entred in the Roll as the course in the Common Bench is and after Iudgement is given for the Plaintiff And for that Formeden the Defendant brought a Writ of Errour and removed the Record and assigned it for Errour And before in nullo est erratum pleaded And Davenport moved that it might be mended for he said that there was a difference between that Court and the Kings Bench as it is in the 4 Rep. 43. Rawlins Case for the Entry of the Roll was Richard Young came et obtulit se per atturnat suum where it should have been proximum amicum And the Entry in the Remembrance Roll was That he was admitted per Gardianum Richardson said that all the Books are That an infant ought to sue by Prochein amy and defend by his Guardian and so is a Demandant But the Court agreed That that should be amended according to the Certificate As a speciall Verdict should be amended according to the Notes given to the Clerk And Davenport said that he would venture it although it was by Guardian for he held it all one if it were by Guardian or by Prochein Amy. See afterwards more of this The Vicar of Cheshams Case THe Earl of Devonshire had a Mannor in the Parish of Chesham in Buckinghamshire which extended to Latmos where there is a Chapell of Ease and the Vicar of Chesham Libells for Tithes against one of the Tenants of the Mannor And Henden moved for a Prohibition for that that the Earl prescribed that he and all his Tenants should be acquitted of all the Tythes of Land within Latmos paying 10. s. per. ann to the Chaplin of Latmos And he said that such a Prescription is good as it was adjudged in Bowles Case And a Prohibition was granted Wildshieres Case IT was agreed by the whole Court That for Executing of a Capias utlagatum or for a Warrant to Execute it or for a return of it no Fee is due to the Sheriff c. It was afterwards agreed upon an Habeas corpus sued by Wiltshiere who was imprisoned being under-Sheriff by the Lord Chamberlain for arresting Sir George Hastings Servant to the King upon a Cap. utlagat That he may well doe it upon the Servant of the King for it is the Sute of the King himself and he is sworn to serve it and there is no cause of the Commitment returned but only a recitall of the Commitment unless he was released by the Lord. And the Iudges took exception to that and said that it ought to be unless he can be released by the Law and said if no cause be returned they ought to dismisse the Prisoner And they ordered the Keeper to inform the Lord Chamberleiâ— and that their Opinion was and so was the Opinion of all the Iudges of England That he who procured the Commitment of the under Sheriff ought to pay all the Charges and Expences Quod nota Wentworth against Abraham THe Lord Wentworth brought an Action upon the Case against Abraham upon an Assumpsit and declares that the Defendant 1 die Maii Anno Dom. 1625. in consideration that the Plaintiff would permit the Defendant to re-enter in a Messuage and Croft in which the Defendant had dwelt before promised that he would pay to him 30. s. yearly during the time that he should enjoy it And that he permisit ipsum reentrare and that he should enjoy it a year and an half which ended at Michaelmas 1626. And for that he would not pay 45. s. he c. And upon non Assumpsit pleaded it was found for the Plaintiff And it was moved by Davenport in Arrest of Iudgement for that that the Assize is to pay 30. s. Annuatim then before the Action be determined nothing is due and the Plaintiff cannot divide the
tax cannot be made by the Church-wardens But by the greater number of the Inhabitants it may and a Prohibition was granted But by Yelverton If it be cited by ex Officio a Prohibition will not lye For so it was ex insinuatione c. For the Wardens came and prayed a Citation c. But by Richardson Harvey and Crook privately a Prohibition will lye in both Cases Commin against Carre COmmin brought Trespass against Carre for taking of two Heifers The Defendant pleads that the King was seised of a Wapentake in Yorkshire And had so large Iurisdiction as another Turn of the Sheriff And then he said that the Plaintiff plaid at Cards within that Wapentake in the House of such an one and said that that is contra formam Statuti 33 H. 8. ca. 9. And said then that he plaid at Cards another day And thirdly that he broke a Pin-fold c. And that the 24 Martii 21 Iac. warning was given to the Plaintiff he being an Inhabitant for a year before within the Iurisdiction of that Court that he ought to appear the last day of March following And said that the Court was then held and those offences were presented and that for his not appearing he was amerced 12 d. and for the playing 6 s. 8 d. and for the breaking the pound 3 s. 4 d. And now for all those amerciaments he distrained by vertue of a Warrant of the Steward of the Court and does not say what warrant And then justifies the selling of the said Heifeâ—s for 20 s. and that he retained 17 s. and offered the surplusage to the Plaintiff Atthow there is not any thing to prove any sorfeiture by the Plaintiff For the Statute is upon two branches First That no Common house of play be kept Secondly If any use those Houses and play c. That it is not said that that is a Common house of play But then it will be said that it is alleged contra formam Statuti and that will imply that But now that is not sufficient For if any inform contra formam Statuti If by his own shewing it does not appear contra formam Statuti He shall not have Iudgement Richardson A Common house of play is a House for lucre maintained for play And there the Law makes a difference between Common persons and private c. But contra formam Statuti will not serve For the offence ought to be alleged fully Yelverton made four causes of Distress selling the Distress If it be good for any it is sufficient And if there be a Iustification for three causes in Avowry If it be good by any It is sufficient 9 H 6. But so it is where a trespass c. Harvey A Iustification in a Leet That he distreyn'd and sold and delivered the overplus to the party in the Case of the King it is good But in the Case of Common persons I doubt whether he may sell And in the Case of the King he ought to deteyn the distress for 16 daies before sale But by Yelverton and Hutton All Leets are the Courts of the King and they may be used as the Courts of the King And it was said afterwards by Richardson That the Statute was grosly mistaken And that divers amerciaments were wanting And so Iudgment for the Plaintiff Traver against the Lord Bridgewater et Ux. TRavers brought an action upon the Case against the Lord Bridgewaters and his Wife Administratrix of T. D. her Husband deceased For that the said T. D. in consideration that the said Travers tradidisset deliberasset to the said T. D. divers Merchandizes he promised to pay c. The Defendant pleads that the said T. D. non assumpsit And 't was found for the Plaintiff and pleaded in Arrest of Iudgement that it was no Consideration And adjudged for the Defendant For when he said tradidisset deliberasset That they might be his own Goods Otherwise if he had said vendidisset de novo E. 4. 19. Accordingly Palmers Case IT was held by the Court If a man assume to pay mony due in consideration to forbear to sue him paululum temporis And if he forbear for a convenient time It is a sufficient consideration upon which to ground an Assumpsit The case was between Palmer and Rouse P. 40 El. rot 537. The Plaintiff counts that I. S. was indebted to him upon an Obligation and he forfeited it and dies and made the Defendant his Executor And that the Plaintiff was forced to sue the Obligation and in consideration of the premises The Defendant assumed that if the Plaintiff would forbear him pro brevi tempore that he would pay him And the Paintiff fidem adhibens c. forbore 4 years to sue him and said that the Defendant had Assets The Defendant said absque hoc that he had Assets And upon that the Plaintiff demurred and adjudged for him For the alleging of Assets in the Count is surplusage And now the consideration was sufficient for he had counted he had forbore for four years Panton against Hassel PAnton brought an action upon the Case of trover and conversion against Hassell who declared That whereas he was possessed of certain Iewels 16 April he lost them and 20 Ian. they came to the hands of the Defendant and he converted them And this was supposed to be done in Huntingtonshire The Defendant pleads that time out of mind c. the City of Bristow is and hath been a Market overt in Shops et locis apertis and the Defendant bought them in his Shop And further shews that he is a Gold-Smith by reason of which he was possessed of them as his proper Goods and converted them to his own use which is the same conversion Hutton When the Defendant had supposed an absolute property by the sale in the Market overt that Conversion after cannot be a Conversion of the Goods of the Plaintiff For of necessity there ought to be a mean time between the change of the property and the conversion Also the Custome is naught for he ought to say in locis apertis shops apertis For the cause of the change of the property is Because every one may come thereto and see if they are his Goods and there challenge them So that by some intendment in this prescription that Shop might he a private Shop And although that it be averred in facto that that Shop is apert Yet when the prescription is mislayed the Bar is naught For if Issue be taken que fuit shop apert That is not a good issue Also he prescribed that there was a Market overt every day except Sunday and Festivals and that it was not Sunday or Festival where it should have been nec Festival per que c. Harvey said That word apertis shall have relation as well to shops as to locis Hutton at Newgate Sessions seven of the Iustices being present there was a Question That if a man having Cloath
from the Bishop to be confirmed They cannot but walk in the steps of the Bishop And a day was given to shew why a Prohibition should not be granted And so it was ruled Feakes against ONe was sued in the Councel of Marches upon a Bond of 500 l. to pay 40 marks per annum And he alleged that he did not intend to take the forfeiture of the Bond but to compell him to pay the 40 Marks per annum And a Prohibition was granted to the Court at the motion of Hoskins For that their instructions were not to hold Plea but for c. And if this should be permitted it is but a window to draw more within their Iurisdiction and also the King would lose his Fines But he ought to have an Action of Debt Harvy If an Obligation was to perform an Annuity of such a sum by another Deed. The party may bring his Action upon the Obligation or Annuity And Yelverton said If it were to perform a Collateral thing or if the Condition was all one with the Obligation they cannot sue for the performance there Quod nota Intra Mich. 3 Car. rot Banc. 633. Watson against Vanderlash VVAtson brought an Action upon the Case against Vanderlash for scandalous words and declares that whereas he was skillfull in the art of Chirurgery and that he made much gain of that Art of the Kings Subjects that now is c. Et colloquio tunc ibidem habito de peritia sua in arte Chirurg c. et de quodam Matthews nuper ante sub cura ejus who is now dead He spake these words Thou didst kill Mr. Matthews thou didst kill him And upon not guilty pleaded it was found for the Plaintiff and an hundred pound dammages given And now this was urged in arrest of Iudgement by Crew That he does not allege that he was a Chirurgean at the time of the words spoken So that his allegation to be a Chirurgean does not include the time c. that he spoke those words And then his profession is not discredited Secondly he does not allege thac he died under his cure but that he is dead For if those had been alleged it would have been more questionable And for that the words are not Actionable Now a man may kill a man divers wayes and justifie it As a Minister of Iustice 14 Eliz. in the Kings Bench Yates and Bostocks Case Thou wast the cause that I. S. did hang himself and that I. N. did cut his own throat And adjudged that they are not Actionable for he might have committed an Offence and because the other prosecuted him he might cut his own throat or hang himself and so this man might be under his cure and he doe his best endeavour to save him but yet he might dye And the Court does never extend words further than the Law directs them Coo. 4. 15. Stawloeps Case and Hexts Case fol. 20. Barhams Case The Court there does not supply that which the words doe not directly imply And here in this Case where the words may have a qualification they shall be taken in mitiori sensu Henden The word kill generally will bear an Action because that it shall be intended to be felonionsly as in the Lady Cockains Case Although it was not Felony in facto But here the words so spoken and particularly applyed they will not bear an Action They had a discourse of his skill in Surgery and of one Matthew who was sick of a dangerous disease Then that cannot to be intended it was Felony objecting the fayler of skill will not bear an Action As if I should say of a Lawyer He hath lost his Clients Cause And as it may be taken in mitiori sensu it cannot be strained to Perjury And so here there can never be intended a voluntary killing But Bramston and Finch on the other side That although there are not these words Tunc existenti Chirurgeon yet there are other words which supply them for it is That when Matthews was under his cure he was a Chirurgeon c. And the words are actionable without other reason for that he impeaches his credit and implies misbehaviour in his Art Hutton For the Exceptions we ought to intend that he continued a Surgeon and that his skill continued And also it is supplyed Then being speech of his skill c. Which proves that then he was a Sureon And Then ought to be intended that he is a Chirurgeon for it is not to be supposed that he laid aside his profession in the mean time And for the words if he had said For lack of skill of Chirurgery c. thou didst kill him will bear an Action for that is a slander to his profession And if one had said Goe not to such a one for he hath no skill in Chirurgery if he be a Chirurgeon if is actionable Or if of a Lawyer Goe not to such a one c. for he will deceive you And the Question will be whether it ought to be intended that he killed him for want of skill If one sayes Such a one was found dead and you killed him there it should be intended murderously And for the Case put by Crew I agree that a man may be a cause that another hangs himself by imagination But if one sayes You did kill such a one as hanged himself or cut his own throat that will bear an Action And so it ought to be intended also that when he sayes of a Chirurgeon c. That it was for want of skill Goe not to such an Inne the Plague hath been lately there These words are actionable for it drives away Guests Then these words were spoken to hinder him in his profession and benefit And because that he dyed under his hands it ought to be necessarily intended that it was for want of skill Harvey of the same Opinion Also there is sufficient matter to prove that he was a Chirurgeon at the time of the speaking the words c. When he came to the words it is saie that there was a speech between them c. and the speech was of his skill and of Matthews death If he had said Thou hast killed I. S. or murthered I. S. whereas he is living that will not bear an Action And so also it was that he dyed of his disease it must be by consequence that he did not kill him But it is said that he dyed that may be by killing And for that the word kill without doubt will bear an Action for if it be not murther it may be Man-slaughter And so it shall be intended if you cannot make a Iustification as a Minister of Iustice or se defendendo And then when he sayes that he killed him it shall be meant for want of skill which is actionable I. S. hath no more Law than a Horse If he had resembled him to any thing but a Beast it would not maintain an action But if he
have come to full age the fourth day after The Court agreed that one may be non-suited the Essoyn day and if he confess an Action that day it shall be good And thereupon Iudgement was given that by the relation the Statute should be avoided c. Crookes Case A Feme sole leases at the will of the Lessor and after the Feme takes an husband If by the taking of the Baron the will of the Feme be determined and it was thought not Fenne against Thomas Hil. 3 Car. Com. Banc. A Man inhabiting in the most remote part of England was arrosted eight times by Latitat and no Declaration is put in Banco Reg. And the Counsell prayed Costs for the Defendant The Prothonotary said that he shall not have Costs unless he come in person But Richardson said on the contrary and he shall have Costs for it appears that he had been put to travell and a day given to shew cause why the Costs shall not be given Spark against Spark SPark brought an Ejectione firmae against Spark for lands in Hawkschurch in the County of Dorset The Case was a Copy was leased for a year except one day and that was found in the Verdict to be warranted by the Custome The sole Question is if an Ejectione firmae lyes And by Hutton If Tenant at will makes a Lease for years an Ejectione firma lyes but if it be a Copy-hold for years an Ejectione firmae will not be maintained Deakins's Case IT was said at the Bar and not gain-sayed If a man perjure himself against two the one by himself cannot have an Action upon the Statute but they ought to joyn for he is not the only party grieved Bentons Case A Man Leases for life and afterwards Leases for years to commence after the death of the Lessee for life rendring Rent the Reversion is granted Tenant for life dyes Lessee for years does not attourn And it seemed That the reversion passes without Attournment And he shall have Debt or shall Avow Williams against Thirkill AN â—…ion of Debt was brought by Williams against Thirkill Executor of I. S. who pleads a Receipt against him of 300. l. over and above which non c. The Plaintiff replies that the receipt was by Covin And so they are at issue and it was found for the Plaintiff and judgement was entred de bonis Testatoris And it was said by the by in this Case That Debt by Paroll may be forgiven or discharged by Paroll Ploughman a Constables Case PLoughman a Constable suffers one who was arrested pro quadam felonia antea fact to Escape And because it is not shewed what Felony it was and when it was done for it may be it was done before the Generall Pardon the party was discharged Hobsons Case VPon an Indictment of Forcible Entry Quod ingress est unum Messuag inde existens liberum Tenement I. S. And because he does not say Adtunc existens and without that it cannot refer to the present time scilicet of the Indictment He was discharged Sir Thomas Holt against Sir Thomas Sandbach SIr Thomas Holt brought Trespass against Sir Thomas Sandbach quare vi armis Because whereas the Plaintiff had used time out of mind c. to have a Water-course by the Land of the Defendant So that the water run through the Land of the Defendant to the Land of the Plaintiff The Defendant he said had vi armis made a certain Bank in his own Land so that the water could not have his direct course as it was wont to have Harvey It séems to me that the Action does not lye For a man cannot have an action of Trespass against me vi armis for doing of a thing in my own Soyl. But Trespass vi armis lyes against a Stranger who comes upon the Land and takes away my Cattell And such like things but not in this Case But he may have an Assise of Nusance As in Case where one makes an House joyning to my House So that it darkens my House by the erection of a new House I may have an Assise of Nusance against him who does it But Crook was on the contrary But it séemed to Richardson that he shall have Trespass on his Case but not vi armis And to that which hath been said That if one build a House to the nusance of another upon his own Land That he to whom the nusance is done may have an Assise of Nusance that is true And also if he will he may pull and beat down such an House so built to his Nusance if he can do if upon his own Land But he cannot come upon the Land of the other where the Nusance is done to beat it down per que c. Hutton of the same opinion By which it was awarded that the Writ shall abate And he put to his Action upon the Case Hitcham moved a Case to the Iustices One I. by Indenture covenants with an other that he should pay him annually during his life 20 l. at the Feast of St. Michael or within 20 daies after 10 l. and at the Feast of our Lady or within 20 daies after 10 l. The Grantée before the 20 daies passe and after the Feast of our Lady dies If the Executors of the Grantee shall have the Rent or not And the Iustices Hutton being absent said That it was a good Case And said that the Executors shall not have it Because it is not at all due untill the 20th day be past Fawkners Case A Lease was made to one for 40 years the Lessee makes his Testament and by that devises it the term to I. S. for term of his life if he shall live untill the said term be expired And if he dies before the years expire then the remainder of the years to F. for term of his life and if he die before the term be expired the remainder of the years to the Churchwardens of S. I. If the remainder to the said Church shall be good or not was the Question Because that the Wardens of the Church are not coporate so that they may take by that Grant Hutton and Harvy said that the Remainder was not good to them And said that the first Remainder was not good Peters against Field A Bill obligatory was shewed to the Court in Debt brought upon it And in the end of the Bill were these words In witnesse whereof I have hereunto set my hand and he had writ his name and put to his Seal also And because no mention was made in the Bill of no Seal to be put to the Bill It was moved to the Iustices If the Bill be good or not And it was agreed by the whole Court that the Bill was good enough Tomlinsons Case A Parson makes a Lease for 21 years The Patron and Ordinary confirm his Estate for 7 years the Parson dies The Question is Whether that confirmation made the Lease good for 21
payment of 72 l. And he alleges that the Defendant did not become bound in the Statute but that he himself delivered possession as soon as he could And upon non-assumpsit pleaded it was found for the Plaintiff And Atthowe moved in Arrest of Iudgement It is not a good consideration or promise He said that there was a Colloquium and an Agreement and in Consideration thereof c. That is not a good Consideration And the second Consideration that he delivered c. tam citius quam potuit It is not good for it is uncertain For it may be a year or two years or a day after And the other promise to pay 8 l. in the hundred deferendo diem And there is not any deferring the day for it is not shewn that it is due before and that he shall be bound in a Statute and that no sum is expressed which is uncertain Richardson There is a good Consideration and a good promise There was an Agreement touching the sale of a Banck and an acre of Land and take all alike and that perfects the Agreement And it is plain that the Agreement was for 72 l. and the delivery of the possession or making of assurance is not any Consideration But the promise is all the Consideration And he might have omitted the averment of the delivery of the possession But there is a cross and mutual promise upon which the Action might lye As many times it had been adjudged in this Court and in the Kings Bench. And for the words tam citius quam potuit the Law appoints the time scilicet so soon as he can go remove his goods things out of the House c. As in Case where one sels goods for mony the Vendee shall have for telling the mony And so here at the most till request be made And although it is not expressed in what sum he shall be bound by the Statute Yet it appears that it is for the payment of 72 l. And then the sum ought to be double in which he is bound As if one arbitrate that he pay 72 l. and enters into an Obligation for the payment of it That shall be in the double sum In which Case he said that he could shew several Iudgements of it Crook If one promise to me divers things some of which are certain It is good But also for the time of the delivery there the Law adjudges of that And the sum of the Statute shall be double as it had been said But for the Case of the Arbitrament it is adjudged contrary as 5 Salmons Case And admit that it be uncertain It is a reciprocal Assumpsit and an Action will lye upon that Hutton If a promise to enter into an Obligation there ought to be a reasonable sum as the Case requires for it And in this Case it being in a Statute which is more penal than an Obligation I conceive the same sum of 72 l. will serve And for the time of the delivery of the possession It ought to be in convenient time or upon request As 2 H. 6. And the Law adjudges of the inconveniences of time And although that he fails in the sum of his promises the end of his promise is good enough and the other is not concluded by that Action But he might allege other considerations in actions brought by him Yelverton There is but one promise against another And the sum in the Statute ought to be the same sum As the Case where an Annuity is granted of 20 l. untill the Grantee be advanced to a benefice That ought to be a benefice of the same value But I doubt whether it should be double Harvey It is there by way of promise And then one promise is the consideration of another and there is no breach for it ought to be upon request And then the Action being brought upon that side the request cannot be alleged and one promise good against another Then be the sum what it will ought the Defendant to be bound single or double The Assumpsit not being performed all agreed that the Action well lies A Verdict against an Infant NOte that it was said If a verdict pass against an Infant and the Defendant dies after verdict and it is shewn Iudgement shall not be given against him For the Court does not give Iudgement against a dead man and that is matter apparent and the other is doubtfull matter Fortescue against Jobson A Man seised of certain Lands hath Issue two Sons and devises one part of his Land to the eldest Son and his Heirs and the residue to the youngest Son and his Heirs And if both dye without Issue that then it shall be sold by his Executors and dyes The eldest Son dies without Issue And the opinion of Hutton That the Executors could not sell any part before that both are dead For the youngest Son hath an Estate tayl in Remainder in the part of his eldest Brother So that the Executors cannot sell it And if they do sell it yet that shall not prejudice the younger Brother So long as he hath Heirs of his Body Richardson said That although that the eldest Son aliens and after dies without Issue That the Exâ—…cutors may make sale For that that no interest was given to them But only an Authority to sell the Lands Dicksons Case A Writ de partitione fac against two the one appears and grants the Partition the other makes default Hutton said a Writ shall issue to the Sheriff to make Partition but cesset executio untill the other comes For Partition cannot be by Writ but between the whole Otherwise it is of Partition by agreement Rothwells Case IF a Man makes a Lease for life and the Lessee for life makes a Lease for years And afterwards purchases the reversion and dies within the Term yet the Lease for years is determined And the Heir in reversion may oust him and avoid But if one will make a Lease for years where he had nothing and afterwards purchases the Land and the Lessor dies If that be by Deed indented The Heir shall be estopped to avoid it By Hutton Crook and Richardson Sir Charles Foxes Case THe Case of Sir Charles Fox was now moved again by Henden It was objected that there ought to be an express demand at the day or otherwise he ought not to distreyn But first it appears that he had a good Title to the Rent then there being a verdict found he ought to have Iudgement upon the Statute But not admit that Yet the Demand is good for the words are legitime petit and no time expressed And although the Demand is after the day yet it is sufficient for all the arrerages for the words are tunc et ibidem but c. And the Difference is between the Demand which intitles to the Action and to the thing it self Maunds Case 7 Rep. 20. 40 Eliz. between Stanley and Read Where it was agreed That the day
reference to the Authority for otherwise the Lessee shall not be attendant to the Tenant for life As suppose at the first the limitation was to the Lessee for life the Remainder to Iacinth c. rendring Rent he in the Remainder shall never have the Rent But in this Case it is otherwise Holmes against Chenie IN an Assumpsit the Plaintiff declares that there was an account between him and the Plaintiff of divers sums of mony And it was found that the Defendant owed to the Plaintiff 3 l. And upon that he promised being required he would pay it And in arrest of Iudgement it was said Because the Plaintiff does not shew for what thing the mony was due the Declaration was naught To which Atthowe answered That if it was upon an indebitatus Assumpsit generally that the Action will not lye although there had been many Presidents ante hac to the contrary But in Case you will give a years day to pay upon which the Defendant assumes the Action will lye But there is a difference upon that and our Case put That one was indebted upon a reall contract and other things and appears by account that upon all Debts 40 l. is due c. Now by that the promise is upon the Account and that had made all certain Yelverton There cannot be a debt upon an Insimul computassir without shewing of what nature the Debts were Richardson An account cannot be of a thing certain Debt upon an Obligation is and rent certain And if those with other things come in Account and upon that an Action is brought what shall be pleaded by the party upon the specialty Crook Debt certain does not lye in Account But suppose that part of the Obligation is payed And afterwards by an Account it appears what is payed and what not and then he promises to pay the arrerages which is proved as he ought For although Debt implies a promise yet an Account not Now when things are truly in certainty he may have an Action upon a general Insimul compurassit For the Law avoids prolixity of the Declaration which would be infinite if all petit Debts were named And he agreed that the difference put by Atthowe in the Case of an Action c. upon an Indebitat Assump Richardson and Yelverton also agreed Atthowe It is sufficient in an Action of the Case upon an Account to prove the Account without shewing what the Debt was And he cited 3 H. 4. That a Debt certain with other things incertain may lye in Account as in our Case there may be double charge prevented by a verment Although all the things in special by which the debts did arise shall not be shewn yet he ought to shew of what nature the debts were as upon contracts so much or upon mutat so much c. and so infiniteness shall be avoided c. Moyle Pregnotary That 22 Jac. That a general indebitatus is now in peace For it was ruled by all the Iustices in the Exchequer Chamber to be naught Et adjournatur Walsingham and Stones Case IT was said by Huttnn in this case That a Parishioner compounding for his tithes for his life was naught without déed And it was said by Yelverton That the use in the Kings Bench is That if a Defendant in a prohibition dies his Executors may procéed in the spiritual Court And it may be a rule for the Iudges in the Ecclesiastical Court to procéed also And then the Plaintiff may if he will have a new prohibition against the Executors c. Binge and Hodges IN Binge and Hodges case one of the Iurors was named Richard Smith in all the process against the Iurors And after the tryal Ward moved in arrest of Iudgement for that that Rise Smith was sworn upon the tryal and not Richard And by the Court he cannot make such an averment against a Record For then an Affidavit overthrowes a tryal And that which is aided by 21 Jac. cap. 13. is when a Iuror is named by one name in one place of the of the Record and by another name in an other place of the record There now it shall be aided upon this Statute by averment that he is the same man c. Bristowes Case IN the case of one Bristowe The sute was in the Court of Requests for that that the Plaintiff and the Father of the Defendant had made such an agréement to pay money c. And it was moved for a prohibition And by the Court it was granted for that that a mutual agreement is a sufficient consideration upon which an action upon the case will lie And that notwithstanding that there was a decrée in the Court of Requests against the Defendant there And for that the sute is against the heir which is against the rule of Law that the heir shall be charged in the place of his father Whatsoever agréement the father makes is nothing to the purpose to charge the heir although he had assets either by Law or equity And the Court of Equity ought to give relief in such cases For this agreement although it be in writing being without Seal It is not but an Ecclesiastical agreement Mrs. Peeles Case MRs. Peele moved for a prohibition to the High Commissioners King Charles 15 Feb. anno primo regni sui granted a Commission to divers to enquire Dyer and Terminer of all incests adulteries and misbehaviours and all other crimes punishable by the Ecclesiastical Law Afterwards there were divers articles exhibited to them against the Lady Purbeck for adultery and Mrs Peele and others That she in Annis Domini 1621 1922 1623 or 1624. in some one or all of these was an Abettor of this Adultery For which she was sentenced to pay 200 l. c. and that she made a poenitential acknowledgement of her offence and farther that she shall be imprisoned untill she found security for the performance of that order And upon the Articles and the sentence the general pardon of 21 Iac. was pleaded Henden prayed a prohibition and agreed that they might aver that the whole offence was committed before the pardon And he cited a case in the Common Bench 6 Iac. rot 142. Longdale was charged with adultery and the charge was laid after the pardon Yet that charge did not so conclude him but that he might aver that to be before to have the benefit of the pardon It was urged on the other side that such averments would overthrow infinite sentences given before Bramston It is pretended to be done after for the averment is not but a monstrans of the truth of the matter and the Subject shall never have benefit of the pardon without such averments Atthowe it appears that there was an offence and it was proved also And if you allow a prohibition you overthrow all sentences there And also a prohibition ought not to be grounded upon several matters but one only Yelverton said that a prohibition may be grounded
and Yelverton And a prohibition was granted Holmes against Chime before PResidents were shewn that such actions were brought scil Hill 3. Car. Elwin against Atkins and Hill 1. Car. Cophin against Cophin both in this Court. And Richardson said although the book makes a doubt of it yet his opinion was that the action would lie For it would be a miserable thing that all things should be shewed precisely And so Iudgement was given for the Plaintiff Port against Yates IN a replevin the case was The Defendant was known as Bayliff to Thomas Kett and the land was Copyhold land And 10 Maii. 3 Car. When it was granted by the Lord of the Mannor to the wife of Thomas Kett. The Plaintiff confesses that the Land is Copyhold land but that the Lord granted 1 Iacob to Robert Salter in Fée who had two daughters the wife of the Plaintiff and the wife of Thomas Kett and dyed seised and that the land descended to them upon which they demurred Berkely The first grant shews that the Defendant was in of all and the descent to the wife but for the moyety whereupon the grant of the whole is not traversed nor confessed and avoided And he cited Dyer 171. Pl. 8. to be the same case in effect and so ruled But Hutton Harvey and Crooke held what difference there was betwéen this case and the case in question Hutton the descent here which is pleaded makes the second grant void But by Richardson although that it be avoided Yet it is not confessed And afterwards for that that upon the whole truth of the matter disclosed It appears that a Copartener cannot distrein the lands of another damage feasant and the matter of form in pleading ought not to be regarded by the Iudges upon the Statute of 21 Eliz. cap. 5. Iudgement was given for the Plaintiff Cockett against Delayhay COcket brought an action upon the case in Bristow against Delahay for these words Cockett hath forged a deed and because of that came out of his own Country And the Defendant justifies that he did forge a Déed in Middlesex of lands in Hartfordshire without that that he spoke in Bristowe Richardson said that that plea was naught either with traverse or without the Traverse Whereupon Henden altered his plea scil That he forged a déed of those lands at South Mimms in Middlesex where the lands lie By vertue of which he justified the words at Bristowe Richardson It is a good plea for now the other can plead nothing but de injuria sua propria And then the tryal shall be in Middlesex And by Crooke if there be a Demurrer there shall be a writ of inquiry of damages issue to Bristowe Issue IF the issue be not made up it may be tryed by Proviso But if the Plaintiff neglect that there may be called a non-sute upon the roll for there it shall be discontinued quod nota Page against Tayler PAge brought an Action against Tayler as Receiver c. which was found against him c. And Iudgement was given that he accounted and before the Auditors he pleaded that before the Action brought there was an arbirement that he should pay to the Plaintiff 11 l. in satisfaction of all accounts and demands which he had performed And it was ruled by the whole Court that that was not a good plea in discharge before Auditors but a plea in bar of the account And by Crooke an accord with satisfaction may be pleaded in Bar not in discharge Which the Court seemed to agree And by Crooke If the Defendant had any other matter to shew on the Declaration before Auditors it might be shewn c. Richardson Although that the Arbitrament was made after the action brought it cannot now be pleaded but he ought to have his Andita querela Manninghams case In Manninghams case The doubt was this A condition of an obligation made to Manningham was that he should pay after his death to his Executors after his death 10 l. per annum to the use of the Children of Manningham And Manningham dyed and there was no Executor whether the payment should be to the Administrator and so the obligation forfeited Berkly said that it ought to be payed to the Administrator for an Executor includes an Administrator And this money is as assets if not to satisfie debts yet to perform this case which is illsgal 5 H. 7. 12. 26 H. 8. 7. And also if a man limit a thing to be done to his Executors that may be done to his Administrators So that the nominating of the Executor is not but an expresse intention to whom the money shall be paid viz. to him who presents his person And he compares that to the case of 46. E. 3. 18. A rent upon a condition reserved to the Executors goes to the Administrators 15 E. 4. 14. Dy. 309. Cranmers case Where it seemed that if a lease be made to one for life and after to his Executors for years that the Executors shall not have the term as assets 32. E. 3. A quid juris clamat Fitzharb A Lease for life to his Executors for years in remainder Lessee for life atturns saving the term which proves that the Executor had that as privy not as strangers And he cited Chapmans and Daltons case the principall So that the Infant and the Executors shall have the money in right of the testator and therefore it goes to the Administrator Secondly The Executor extends to an administrator 8. rep 135. there kindes of Executors and an Administrator is an Excecutor datinus 3 H. 6. An action is brought against divers executors by the Statute when some appears upon the distresse it answers that extends to an Administrator although the Statute names only Executors Thirdly It does not appear here that Manningham made not Executors for it may be that he made Executors and that they dyed intestate or before probate And he cited 18. H. 8. And Shelleyes case 1. rep and 33. Eliz. If Executors dye before probate It is in Law a dying intestate Richardson Here is but meer trust and as it hath been said It doth not appear whether he had made Executors or not For if he dye and makes Executors and they dye before probate or refuse he dyes ab intestato but not intestate Nor shall it be questioned if the obligation had been to pay to Manningham only or to him and his Executors But it goes to the administrators But because that he had specially put his Executor Whether he ought to have the forfeiture of the obligation or whether he ought to have the sum to be annually payed to the Administrator Berkley the letters of administration make mention that he dyed ab intestaro Atthow That is matter de hors but by the declaration it is clear that he dyed intestate And the action brought by Administrator who who had not any cause of action Secondly admitt that there was an Executor and the money payed to him that
Iurisdiction of this Court it ought not to be received without Oath c. But if in Covenant or debt for money to be paid at another place he pleads payment accordingly or the Covenants performed in the place limited which was out of the Iurisdiction it ought to be received without Oath quod not Double delay BY the course of the Court double delay cannot be allowed as if the Defendant in debt plead that the Plaintiff is a Recusant convicted and had a special imparlance afterwards the Plaintiff conforms The Defendant cannot plead Outlawry in the Plaintiff Iohn Felton's Case MEmorand quod Thursday 29 die Novembr 1628. Iohn Felton was arraigned in the Kings Bench for the murther of George Duke of Buckingham And the Iustices of the Common Bench demanded of the Serjeants of the King who were present in the Kings Bench what was done with Felton And Ashley answered That he had confessed the fact and that the ordinary sentence of death was given against him But they marvelled that for so notorious offence the sentence was not that he should be hanged in chains Yelverton That any other sentence than the ordinary sentence cannot be given But after that he is dead his body was at the disposition of the King which was not denyed by the other Iustices Turner against Hodges TUrner brought Trespasse quare clausum fregit against Hodges The Defendant said that loco in quo c. is Copyhold and that the Lord Dudley is seised of the Mannor of Sedgley and granted the Copyhold in Fee to Roger Turner and he makes a Lease to the Defendant Hodges for a year The Plaintiff replies that there is custom within that Mannor If a Copyholder makes a lease without licence of the Lord for a year and dies within the term it shall be void against the heir And upon the issue of Nul tiel record it was found for the Plaintiff And Atthowe prayed Iudgement and shews that the custom is good and not contrary to reason 4 rep 26. It was resolved that lessee of a Copyhold without licence for a year may maintain an Eject firm for his term is warranted by the Law by force of the general custom of the Realm But that ought to be intended by the custom within every Mannor within the Realm Whatsoever a Copiholder does is by Custom The Case here is that it shall be void by the death of the Lessor which is an Act of God That was that if Copiholder made a Lease for years and afterwards aliens that to be void against the Alienee would be unreasonable 39 Eliz. There was a Case referred to the Iudges out of Chancery which was debated in Sergeants Inne Littleton 59 b. Armesstrong Lord of a Mannor prescribes that a Copiholder upon the change of every Lord should pay a Fine But by all the Iudges it was ruled a void Custom For the Lord might change his Mannor every day But if it had béen That after the death of the Lord he should have a Fine That is a good custom For it is the act of God So in our Case the custom is void against his Heir which is by the act of God In some Cases a custom alters the nature of a Free-hold land 5 Rep. 84. Perrymans Case A Feoffment shall not be good untill it be presented in the Court of the Mannor a good custom If a free-hold estate may be controlled by a custom a multo fortiori a Copi-hold estate Barkley argued on the other side Although it be found for the Plaintiff Yet if the custome be void a void custome is no custome And for that it is said in the Earl of Lecesters case That a void custome cannot be confirmed by Act of Parliament And that is a void custome We ought to consider the nature of a Copyhold Inheritance By the Common law it is but an Estate at will But the Common law so takes notice to establish it by a custome That there may be possessio Fratris of it and he may have Trespass against his Lord. If Tenant at will be out-lawed his Estate is determined But Copyhold is not determined or forfeited by Out-lawry As it was adjudged 44 Eliz. So that the Law takes notice of it as of an other Estate of Inheritance Where an Heir after his death may enter as Heir at Common law and have Trespass because that it descends At Common law he had power to make a Lease for a year For it is not the custome of the Mannor that he may make such a Lease For then it is pleaded If a Copiholder makes a Lease for divers years without alleging a custome or Licence of the Lord he cannot maintain an Ejectione firm against his Lord but perhaps against a Stranger It may be then if it be the very Law if he may make a Lease for one year if this custome be good It will be contrary to the very liberty of the Estate 19 Eliz. Dyer Solomons Case Custom that Tenant in Fee-simple shall not make a Lease for more than 5 years is void So Littleton says That a Condition that the Feoffee should not alien was void And a Condition that Tenant in tayl should not suffer a Common recovery is void Because that it restrains that Liberty which is annexed to the Estate And for the difference between the Father and the Heir in our Case there is not any difference For the Heir is all one with Father and in loco patris For he might have Trespass by discent of a Copihold Sir William Herberts Case And then if the Father shall be bound by the Lease so shall the Heir Richardson said That Iudgement ought to be given for the Plaintiff Copihold as it is created by Custome so in all it is guided by Custome For at the Common law a Copiholder could not make a Lease for a year But because that it is a general custome of all Mannors in England For it is not but a meer Estate at will by the Common law Then this custome is not against the Liberty of the Estate For a Custome inables that the Lease and a Custome ought to destroy it upon a Contingency as here by the death of the Father For that the Lord may know his Tenant And therefore the Case is reasonable and not to be compared to the case of a Freehold in Dyer A Freehold may be restrained by Custom And yet a Freeholder may be restrained by custome As antient demesn which he passes by the delivery of a Turf or a pair of Gloves and it is not convenient for it is at the peril of him who takes the Lease Copyholder makes a Lease for a year But if he dye within the year his Heir within age it shall be void against the Lord. So that the Lord during the nonage shall have the Copihold to hold for his Services is a good Custome And so in our Case Hutton agreed That at the Common law it might be restrained by custome
And a Condition that a Lease for 3 years shall be void if the Lessor dye during the term is a good Condition Without doubt the custome is as old as the Estate then it is as good to abridge the Estate as to the other to create it is It is reasonable too For the Lord should have his Tenant in possession by which he may the better pay his Fine But if the Lease be made by Licence of the Lord It is a Confirmation For that if the Copiholder makes a Lease for years with Licence and dies without Heir The Lord shall not avoid the Lease In some place the custome is If a Copiholder dies before Candlemas the Executor shall have it for that year to remove and dispose the Copiholders Estate Custome in this Case you see tolls the Heir And he agreed the Case and difference cited by Atthowe out of Cook Littleton Harvey agreed That it is a good custome for the Lord and for the Tenant For the Lord to know his Tenant and for the Tenant to have the Estate and pay the Fine Yelverton agreed also the Lease for a year is in it self made by custom And the same custome may confound it For there is a concurrence of others or one may controll another 21 H. 7. 14 H. 8. A Lease for years provided the Lessor may enter at his will that is a good lease determinable at will being uno flatu so So in our Case But it is done that a Copiholder within the year surrenders his Copihold that the Lease shall be void That is an unreasonable custome In the Kings Bench It was adjudged A Copiholder makes a Lease for years by Licence and the custome if the Lessee was not in possession at the time of the death of the Lessor that it shall be void Lessee assigns that over and the Assignee holds it For custome ought to be taken strictly And he agreed the Case put by Hutton of an Executor And the difference that against the Lessor it should not determine And the reason put before And so judgement was given for the Plaintiff Stone against Walsingham before THe case was again moved in Court which was that they agreed de anno in annum so long as the one should be Parson and the other Parishioner si ambobus partibus tam diu placuerit he should retain his tithes for 6 s. 8 d. per annum And Richardson Iustice said and it was not denied that the suggestion is naught for the incertainty of it and a Prohibition cannot be granted upon that For the words de anno in an make an estate for a year And the next words make an estate for life the last but an estate at will what shall be traversed here It is seen that for years it is good without Deed but not for life And if it be but at will when the other demands his tithes the Will is determined But at an other day the suggestion was made That he made severall agreements with his Parishioner that he pay 6 s. 8 d. for his tithes for 4 years And then a Prohibition was granted Harvey sufficit If an agreement be proved for those 4 years Wilson against Peck WIlson brought an action upon the Case against Peck and declares A Man may justifie in maintenance that he was a Sollicitor That the Defendant in consideration that the Plaintiff should be his sollicitor in several sutes depending against him in this Court affirmed that he would give to him for his pains as much as he deserved And he said that he deserved five marks And upon an Assumpsit pleaded it was found for the Plaintiff And it was moved in arrest of Iudgement that the consideration was against Law because that it was maintenance But Henden on the contrary And that it was lawfull to have a sollicitor 5 H. 7. 20. There it is said that a man may justifie in maintenance that he was a sollicitor And the fees of an Officer 3 Iac. cap. 7. gives satisfaction in that case It was said that a sollicitor is not a man known at the common law but an Attourney and had his fees set out by the Law 9 Eliz. Dyer Onelyes case But Munson and Manwood held that it was maintenance in a sollicitor to prosecute and pay money for another And Dyer did not oppose that opinion Pas 13 Iac. Rot. 75. Com. Banc. Solomon Leeches case An Atturney of this Court brought an action upon the case for solliciting of sutes And there it was conceived that it was an ill consideration and could never have judgement But Richardson said that in Solomon Leeches case he brought an action for the money disbursed and not only for as much as he deserved for his labour And said that a Sollicitor is a person known in the Law 1 H. 7. And it was one Snowdens case One brought an action against him And he justified that such an one made a title to his Clyents land and that he was his Sollicitor in the suit And ruled to be a good Iustification By which it appears that a Sollicitor is a person known in the Law And the Stat. 3 Iac. much prevails with him for to be of that opinion And it would be a miserable case if you would allow no Sollicitors but Attourneys in the Star-chamber Chancery For there the Attournies will not move out of their Chambers And also it is convenient that Attournies of this Court follow businesses in the Kings Bench And the case was in consideration that he would be my servant and follow my sutes I promise him as much as he deserved An action will clearly lie here and a Sollicitor will not alter the Case For he is not but a servant Hutton on the contrary I may retain a man in my service he may follow my sutes but then he ought to maintain the action upon the Statute For a Sollicitor is within the Statute and a Sollicitor of sutes is one kind of maintenance and we ought not to allow it And so it was taken in Leeches case That there was no remedy for a Sollicitor if he had not an obligation And he said that in the Star-chamber in the time of Egerton a Sollicitor was punish'd there Yelverton agreed with him Harvey said that the same case is now depending in the Kings Bench. And the opinion is that an Attourney or a Counsellor who had a profession towards the Law might sollicite any sute in any Court and it is not maintenance But another person not Yelvert agreed to that but said that he ought to shew in his Declaration that he is an Attourney And afterwards the parties agreed c. Scire facias against the Bayle IF a Scire facias be brought against the bayle and Iudgement be Debt be brought against the bayl that the Plaintiff be satisfied out of the lands and chattels of the bayle and so a capias does not not lie against them But if debt be brought as
who was censured for Adultery with the wife of Stock and censured as here And an House was broken to apprehend and a Prohibition was afterwards granted for that that nullus liber homâ— c. ought to be imprisoned c. without lawfull proceedings Secondly 23 H. 1. 8. appears the particular course of proceeding in Spiritual causes Richardson The first part of the sentence is not part of the punishment But that she shall be taken untill she gave security c. And it is not but agreeable to the Ecclesiastical course For if she be taken by a Writ de excommunicat capiendo and then to perform the sentence or make agreement for the second part It is express within their power Brampstone said she is a feme Covert and part of the sentence is impossible scil that she should pay the Fine and then by that means the imprisonment would be perpetual Yelverton They cannot imprison without bayl Their Commission does not give them such power And at another day Richardson said That it was out of the High Commission and the Fine estreated For that now no Prohibition may be granted c. Smith et al. against Pannel SMith et alioc Church wardens of Bignel in Essex presented to the Arch-deacon that one Pannel was a Rayler and a sower of Discord amongst his Neighbours Whereupon the Arch-deacon inioyned him purgation et sur motion the Court granted a Prohibition for this Case belongs more perhaps to the Leet than to the Spiritual Court unless the rayling were in the Church or any waies tending to the Ecclesiastical rights Wats against Conisby ELizabeth Wats Wife of Edward Wats libelled in the Spiritual Court against Iane Conisby for a legacy of 100 l. the Defendant pleaded a Release of Wats the Husband after mariage and there were no Witnesses to the release to prove the same in regard they were dead and therfore it was not allowed but upon averment of the party that there were Witnesses that could prove the Release to be the hand of the party and that had heard the party confess so much that he had subscribed to the Release Prohibition was granted concerning this averment Lashes Case IOhn Lash brought to the Bar by a Habeas corpus cum causa directed to the Mair Aldermen and Sheriffs of London who certified the cause as followeth That there hath been a Court of Orphans time out of mind in London and that the custome hath been that if any Freeman or Free-women die leaving Orphans within age unmaried that they have had the custody of their Bodies and Goods And that the Executors or Administrators have used to exhibite true Inventories before them and for the Debts due to the deceased to become bound to the Chamberlane to the use of the Orphans in a reasonable sum to make a true account upon Oath of them after they be received And if they refuse to become bound to commit them till they become bound and then sheweth that one Joan Cather Widow being a Free woman-Fishmonger died leaving divers Orphans and that Iohn Lash was Administrator and had exhibited an Inventory of 1000 l. debt unreceived and was required by this Court to give bond in 1000 who refused per quod And it was alleged for the Prisoner by Sergeant Atthowe that he was already bound in the Ecclesiastical Court to make account and so he should be twice bound also he was inform'd that there was no such custom for Widdows of Freemen But the Court resolved that they could not examine the truth of the custom but the validity of it and they held it reasonable if it were true which is returned but if the Ecclesiastical Court would impugn a lawfull custom the Court would grant a Prohibition Scot against Wall SCot moved to have a Prohibition that whereas he had 20 acres of wheat and had set out the tenth part for tithe the Defendant pretending that there was a custom of tithing that the Owner should have 54 Sheaves and the Parson 5 and so he sued for tithes for that there was no such custom for the Court said that the modus decimandi must be sued for as well in the Ecclesiastical Court as for the tith it self and if it be allowed between the parties they shall proceed there but if the custom be denyed it must be tryed at the Common law and if it be found for a custom consultation must be granted if not then the Prohibition is to stand Farmer against Sherman IOhn Farmer brought Prohibition and the Case was thus And Abbot having a Privilege to be discharged of tithes quam diu manibus propriis c. in the time of E. 4. made a gift in tayl 31 H. 8. the Abby was dissolved question whether upon the clause of discharge of tithes within the Statute of Monasteries the Donee and his Heirs should be discharged and held that he should not for that Statute dischargeth none but as the Abbot was discharged in the time of the dissolution so that they must claim the Estate and discharge under the Abbot but if by a common recovery the reversion had been barred before or after the Statute it had been otherwise Napper against Steward NApper against Steward the Parson had a Prohibition against divers of his Parishioners that libelled in the Spiritual Court to make proof by Witnesses of divers manner of tithing in perpetuam rei memoriam Hide against Ellis A Prohibition for Hide against Ellis farmor of the rectory of Stanfield in Com. Berks prescribed that all tenants and occupyers of meadow had used to cut the grass to strow it abroad called Tetting then gathered it into wind-rows and then put it into grass-cocks in equal parts without any fraud to set out the tenth cock great or small to the Parson in full satisfaction as well of the first as of the latter math Vpon traverse of the custom it was found for the Plaintiff exception was taken that the custom was void because it imports no more than what every Owner ought to do and so no recompence for the 2 maths But the Court gave Iudgement for the Plaintiff for dismes naturally are but the tenth of the Revenew of any ground and not of any labour or industry where it may be divided as in gross it may though not in corn and in divers places they set out the tenth acre of Wood standing and so of grass and the Iury having found out his form of tithing there it is sufficient and the like Iudgment upon the like custom in the Kings Bench Pasc 2 lac rot 191 or 192. inter Hall Symonds Int. Hil. 2 Car. rot 2445. Bells Case AN action of Debt was brought by Bell upon an Obligation against one as heir of the Obligor scil Brother and Heir And the Defendant pleads riens per discent from the Obligor And upon that issue there was a speciall verdict found that the Obligor seised of Lands which descended to his Son
afterwards at another time he spoke these words of him That he was a Common Barrettor and a Villain and he would make him lose his practice And upon not guilty pleaded it was found that the Defendant spoke thâ—se words Thou art a Common Barrettor and a Judas and a Promoter But not the other words And 50 l. dammages was given to the Plaintiff Vpon which Ayliff moved in arrest of Iudgement because the words were too general And if they had béen spoken of another person they would not lye Hil. 30 Jac. Hawk against Moulton I will not leave thee any thing thou art a common Barrettor And there was demurrer joyned upon the Declaration but no Iudgement The words are here found without relation to his profession But if the last words had béen found it would have been questionable Mich. 41 Eliz. Hather an Attorney brought an action for these words Thou art a Flagging Jack and a Cousener and wouldst have cousened me And adjudged not actionable Because it does not appear that they were spoken with relation to his profession But Hitcham Barkley and Heidley of the other side And that the words were actionable being spoken of an Attorney scil to say he is a Common Barrettor For although there is a doubt if it be spoken of a Common person Yet these are scandalous to an Attorney for no man now will retain him in his Business If one had said of an Attorney That he is a Common stirrer up of Sutes and a disturber of the peace and so a mover of unjust actions without doubt it had been actionable And a common Barrettor comprehend aâ—l that Hil. 8. It was doubtfull whether a Thief were actionable without alleging when and what he had stoln But it was adjudged actionable For Thief intimates that he had done all that which might make him a Thief And so Banckrupt to a Merchant A Common Barrettor in 8 Coment is said to be a Common mover of strifes and there it is said that he ought to be fined and imprisoned if he be convicted Westminster 2. cap. 32. There it is ordained that a Sheriff shall not permit a Barrettor to remain in the County much less this Court will not permit him to be an Attorney For it is that an Attorney ought to be discréet and of honest behaviour 4 H. 4. cap. 18. 3 Jac. cap. 7. They ought to be men of sufficiency and honest disposition These words touch him in his honesty and disposition An Attorney ought to be a man of good conscience 20 E. 4. 9. There it is said that if a Clyent will put in a Plea which the Attorney thinks in his Conscience is not true He may plead non sum informatus and disceit does not lye against him then if the words should be true he touches him in his profession and he might never more be an Attorney In Birchleys Case 4 Rep. You are a corrupt man These are smaller words and more general yet actionable Yet such words make a man to mistrust him and trust next skil is most requisite in an Attorney 14 Jac. Com. Banc. Rot. 1753. Small an Attorney against Moon He is a forgeing Knave adjudged actionable yet to a common person they shall not be accomptable and the case before Distrey an Attorney brought an action against Dorrel in the Common Bench for these words Take heed of him for he is the falsest Knave in England and he will cut your Throat And judged actionable and that the words shall be understood false as an Attorney And a Common Barrettor is more infamous than any of these And the word Judas here ought to be accepted according to the usual understanding of it scil for a betrayer And what can be more scandalous to an Attorney than to be a Betrayor of his Clyents For which he prayed Iudgement for the Plaintiff Richardson said It is doubtfull whether the words will bear an action Barrettor is a notorious offender and if he be to be convicted he is to be fined and bound to his good behaviour And it is hard to make a definition of a Common Barrettor but a description may be made that he is a mover of Sutes and contentious in dispositions and practice But whether the words shall have relation to him as Attorney is the Question Birchleys Case A corrupt man This directly relates to his practice so of Cousener But such a thing which ought not to be applyed to him as Attorney is not actionable Common Brabler Swaggerer Breaker of the Peace which Barrettor comprehends being spoken of an Attorney are not actionable For they do not refer to him as Attorney And the Statute cited before of Westminster 2. It is to be intended if he be found to be a Barrettor And then he should be put out of the Court. And here if there had been a communciation of him as an Attorney then it would be actionable But it ought to be laid habens Collequium of him as Attorney For then of necessity it ought to be understood of his Office And so also the words Trust him not he will cut your Throat ought to be understood of him as Attorney he will cut the throat of your Cause Hutton and Harvey on the contrary And said the words here are as well applicable to his profession as if it had béen found that there was a Colloquium of him as Attorney For it is laid that he was an Attorney and that he lived by that profession and that the Defendant maliciously to hinder him in this profession spoke these words It hath been said what a Common Barrettor is and his punishment is appointed by 24 E. 3. Littleton also mentions speaking of Feoffments made to Barrettors scil Quarrellors then being spoken of an Attorney none but quarrelsome men will go to quarrelsome Attorneys For although he deals in Sutes yet his carriage and practice ought to be fair and peaceable And without Question if it be said Thou art a cousening Attorney an Action lies But by Harvey perhaps Cousening generally will not And if of a common person it be said He is convicted of common barretry It will bear an Action And by Hutton to say of an Attorney he is a Recusant convicted it will bear an Action If it be said of a Iudge that he is a Common Barrettor an action lies And if it be actionable for speaking so of a Iudge it is so of an Attorney For he is in an inferiour ranck a Minister of Iustice and he ought to be chosen of the most honest discreet and religious men and these words if true make him incapable of being Attorney here As in Smalls Case before it was held To say of a Bishop he is a Papist will bear an Action For then he cannot hold his Bishoprick If one said of a Merchant he is a poor man is not actionable But if he said he is worth nothing had been questionable Because that it tantamounts to a Banckrupt And by
agreed clearly that a Covenant to stand seised of as much as should be worth 20 l. per annum is méerly void And so by the Court it was lately adjudged Flower against Vaughan FLower sued Vaughan for tithes of hay which grew upon Land that was heath ground and for tithes of Pidgeons And by Richardson If it was mere waste ground and yeeld nothing it is excused by the Statute of payment of tithes for 7 years But if sheep were kept upon it or if it yeeld any profit which yeeld tithes then tithe ought to be payed As the case in Dyer And for the Pidgeons which were consumed in the house of the Owner he said that for Fish in a Pond Conies Deer it is clear that no tithes of them ought to be paid of right wherefore then of Pidgeons Felony to take Pidgeons out of a Dove-coat quod nemo dedixit and a day was given to shew wherefore a Prohibition should not be granted And the Court agreed that it was Felony to take Pidgeons out of a Dovecoat And afterwards a Prohibition was granted but principally that the Pidgeons were spent by the Owner But by Henden they shall be tithable if they were sold Clotworthy against Clotworthy IN Debt upon Obligation against the Defendant as Heir to Clotworthy scil son of Clotworthy without shewing his Christian name And Iudgement was given against the Defendant upon default and upon that Error brought and that assigned for error and after in nullo est erratum pleaded But Henden moved that it might be amended and he cited one Wosters and Westlys Case Hil. 19. Iac. rot 673. where in a Declaration in Debt upon an Obligation there was omitted obligo me haeredes and after was amended And he said that in this Case the Plea roll was without Commission of the Christian name then by the Court the Plea roll may be amended by the Imparlance roll but not è converso And the Case of the Obligation is the misprision of the Clark But here there was want of instructions Dennes Case IN Dennes Case of the Inner Temple issue was joyned in a Prohibition whether the Will was revoked or not and for a year the Plaintiff does not prosecute nor continue it upon the Iury roll And by the Court now it is in our discretion to permit it to be continued or not which the Prothonotaries agréed Mosses Case IN one Mosses Case in an Assumpsit for debt which was out of the 6 years limited by the Statute of 21 Iac. part within the time If the Iury found for the Plaintiff and taxed dammages severally The Plaintiff recovered for that that is within the time and not for that that was without But if dammages are intirely taxt the Plaintiff cannot have Iudgement of some part Which was granted by the Court. And by Richardson where an Action is brought upon an Assumpsit in Law and the Request is put in which is not more than the Law had done the Request there is not material But where a Request is collateral as in Pecks case there it is material Hutton said that in Pecks Case it was agréed by the whole Court that a Request was material but they conceived that the postea requisitus was sufficient For which afterwards it was reversed in the Kings Bench. Richardson said if one sells an Horse for money to be paid upon Request and no Request is shewn he can never have Iudgment which was not denied Boydens Case BOyden Executer of Boyden brought a scire facias to execute Iudgment given against Butler for the Testator which was directed to the Sheriff upon nihil habet returned testatum a scire fac is directed to the Sheriff of S. who returns Ployden terretenant of the Mannor which Butler was seised of at the time of the Iudgement Ployden appears and demands Oyer of the scire fac and of the return and pleads that long time before A. B. and C. were seised of the Mannor in fee and before the first return makes a feoffment to the use of one Francis Boyden for life who makes a Lease to the Defendant for 80 years And because that Francis Boyden aforesaid is not returned terretenant demanded Iudgement of the writs aforesaid Bramston said that the conclusion here to the writ is naught for a writ shall never be abated where we cannot have a better The matter here is the return of the Sheriff that Mr. Ployden is terretenant to which he makes no answer but by Argument And in all Cases where a special non tenure is pleaded it is used to be a Traverse upon which issue may be taken 8 E. 4. 19. 7 H. 6.16.17 But in our case no issue was taken and here all the matter alleged may be found c. For the matter although general non tenure is no plea yet a special non tenure may be pleaded 7 H. 6. 17. 25. 8 H. 6. 32. In real actions non tenure of a Franktenement is good But here a Chattel is only in question 2ly he may plead non tenure of Franktenement where the Lessee shall be concluded and bound But here here Edw. Boyden is not bound Crawly said that the plea is good and for the matter the difference is between the general and the special non tenure The general non tenure is no plea but in a praecipe quod reddat as it is But a special non tenure is a good plea in a scire facias nomina praecipe 31 H. 6. non tenure 21 Statham scire fac The Plaintiff in a scire fac does not demand Land but execution Yelverton In Holland and Lees Case in the Kings Bench this point It was adjudged that the Writ shall abate Richardson This Writ is a judicial Writ and by that Plea a better Writ given you For where before it was against the Terre-tenants generally he might have now a particular scire fac against Francis Boyden and both waies are good either to demand Iudgement of the Writ or Iudgement of the Court if execution ought to be against him quod concessum per totam curiam And agreed also by the Prothonotaries that a special scire facias might issue against Francis Boyden Turner against Disbury TUrner against Disbury in Trespass Where the Writ was quare domum clausum fregit but the Declaration was quare domum clausum canem molossum cepit which was found for the Defendant And it was moved by Hitcham for the Plaintiff in arrest of Iudgement to prevent costs for it That there is not a material difference between the Original and the Declaration For that that there is more in the Declaration than in the Original And then here is no Original to warrant part of the Declaration But this variance was between the Original it self which remained with the custos brevium and the Declaration For the Original as it was recited in the Declaration according to the usage in this Court agreed with the Declaration
all his Interest which he had before usurpation During the life of the Incumbent and non-age of the Infant the Vsurper had an Estate in fee. But after the death of the Incumbent and full age of the Infant the Estate of the Vsurper ceased And the reason is upon the Statute of Westm 2. Infans habeat candem possessoriam actionem qualiter antecessor And 33 H. 6. 42 is that an Vsurper puts an Infant out of possession Infans habeat eandem actionem possessoriam qualiter antecessor But that ought to be understood during the Infancy only Et adjournatur Rawlins's Case HE was Plaintiff in a Replevin and was non-suted after Evidence given to the Iury and the Iurors did not find Costs and Dammages And afterwards a Writ of Enquiry of dammages was granted And Ashley moved that the writ might not be filed Because that the Writ of Inquiry of dammages could not issue but awarded from the Court And the Plaintiff here being non suted was out of the Court and that nothing might be done against him And the Prothonotaries said That in Case of a Verdict where the Iurors omit to find dammages a Writ of Enquiry is many times granted Writ of Enquiry may be granted after a verdict when Jury omit the dammages But they were commanded to search for Presidents in Case of a non-sute Richardson cited one Grimstons Case in the Kings Bench. Which was one Plaintiff in Action upon the Case against an Inne-holder was non suted and the Declaration was insufficient And for that the Plaintiff might not have costs But by Henden It is ordinary now in the Kings Bench If the Defendant had a Verdict although the Declaration be insufficient Yet he shall have Costs Nurse a gainst Pounford NUrse a Barrester of Grays-Inne brought an Action upon the Case against Pounford And declares that he is a Counsellor and was of Councel with several Noble men and that he was Steward to the Lord Barkley of 20 Mannors and also the receiver of his Rents for those Mannors And that the Defendant maliciously intending to disgrace him to the Lord Barkley writ an infamous Letter against him to the Lord Barkley Which Letter was here recited and it was to this effect briefly ut sequitur scil Your wonted Courtesie to Strangers incourageth me to desire your Honor not to protect your Steward in his unlawfull Sutes He hath unjustly vexed his own Brother by Sutes and caused him to be arrested and taken out of his Bed forcibly by Catchpoles He hath likewise almost undone me who have maried his own Sister notwithstanding his entertainment at my House for himself Wife Servants and Horses for several years And now instead of payment thinks to weary me out with Vexations and Sutes at Law I hope your Lordship will give no countenance to him in these things By reason of which Letter the Lord Barkley turned him out of his Office The Defendant pleads not guilty which was found for the Plaintiff And it was moved in arrest of Iudgement that the Action here would not lye Atthowe said that the Action would lye well by reason of the particular loss the Plaintiff had And that is proved by Anne Davies Case Coo. 4. Such words that there are spoken of a maried woman are not actionable But of a Feme sole who had a Suter the Action will lye If one said of a Feme sole That she is a Whore and such a mans Whore It will not bear an Action in our Law But in the Spiritual Court it will And perhaps for Whore generally there And in the Case of Anne Mayes there was a loss of preferment which she might have But here the Plaintiff lost the preferment which he had If a man said to the Ordinary of a Clark presented to him that he is a Bastard seditious or heretique by reason of which words the Ordinary refuses him An Action lies for the Clark for the temporal losse and he cited Butchers Case and Stewkleys Case Cook 4. Also he cited Sir Gilbert Gerrards Case Cook 4. 18. If one said Take not a Lease of such an one I have a Lease of it an Action does not lie But if the party by reason of those words could not demise it to one with whom he had Communication for the Lease Then it lies Or if he said that another had a Lease of that also an Action lies 6 E. 6. Dyer 72. One saying that a Merchant would be a Banckrupt is Actionable Because that no man will trust him 7 E. 4. 24. One threatens another if he will come abroad he will beat him For the threatning an Action does not lie But if for that Cause he could not go abroad about his Business an Action will lye Secondly It hath been objected that the Action does not lie Because that it appears that the Letter was written out of the time of Limitation by the Statute of 21 Iac. which is for Slander That the Action ought to be brought within two years after the Slander I agree if it be brought for slanderous words But this is an Action upon the Case only An Action upon the Case for slandering of a Title is not within the Statute 21 Jac. for the two years but for the six years So here the Action is not for slanderous words For the Letter does not bear an Action But for the temporal loss But it was resolved by the Court That the Action did not lie For by Richardson Chief Iustice In all Cases where you will maintain an Action for words there ought to be some particular words of Slander spoken or written by which the particular loss came Here is a Letter it had not any Slander in it And it cannot be conceiceived that the Lord turned him away out of his Service or Office by that Letter which does not touch him in his Office of Stewardship nor his Receivorship If he had written that the Plaintiff was a contentious and troublesome man that had been more questionable than this is Yet it would not bear an Action And Richardson said that they alwaies conceived Sir Gilbert Gerrards Case not to be Law For if a man said that he himself had a Title to the Land of an other it is not actionable although he lost by that But if he had said that another man had Title to the Land of another that is actionable And no Case can be shewen where an Action upon the Case lies upon a particular losse unless the words carry some slander with them Hutton said the words of the Letter are not actionable But if being said to be done maliciously and falsesly and to the intent the Lord Barkley should put him out of his place and upon that the Lord displaced him then there would be more doubt of it But here the Iury had found the Defendant guilty and that seemed only to the writing of the Letter and it might be false notwithstanding But if the Iury had found that
action upon the case lies for retaining the servant of another And by them the retainer without being testimonial which is an offence against that Law is after the years of reteiner expired For so are the words of the Statute But they said that the Information was naught because that it does not appear that the Defendant did not retain him out of the Parish where they served before For the Statute says out of the City Town or Parish c. except he have a testimonial And the words secundum formam Statuti will not aid it And in the same Village or City c. The Statute does not require a testimonial because that there it was known c. And for these reasons after here said for the Plaintiff Iudgement was stayed if c. Jennings against Cousins IEnnings brought a Replevin against Cousins who avowes for damage feasant The Plaintiff replies that post captionam ante deliberationem he tendered 3 s. which was a sufficient amends for the Trespasse and the Defendant notwithstanding detained his Cattel contra vadum pleg c. Vpon which they demurred And by the whole Court the Replication is naught For Pilkintons Case was agreed to be good Law that the tender ought to be before pounding but any time before the impounding it is sufficient But here ante deliberationem implies that the Cattel were impounded and it is not shewn in certain that the tender was before And it was agreed in trespass That the Defendant may plead the Trespass to be involuntary and disclaim in the Title without pleading the Statute of 21 Iac. for the Statute is a general Statute Whereupon Iudgement was given for the Defendant Butts against Foster THe Plaintiff in an Action upon the Case the Plaintiff declared That whereas he was a man of good fame carriage and behaviour and free from all blot or stain Yet the Defendant with purpose to draw his life in Question and traduce him amongst his Neighbours in presentia multorum c. crimen felonae ei imposuit ea occasione illum arrestari causavit et per spatium duarum dierum in custodia detineri coram Iohanni Pettyman uno Justic ad pacem c. duci procuravit nequisfime prosecutus est c. The Defendant pleads not guilty which was found for the Plaintiff And Hitcham moved in arrest of Iudgement that the Action would not lie And of that opinion was Hutton because that he did not proceed to indictment For there an Action of that lies in the nature of a Conspiracy But if an Action should lie here it would be a mischievous Case for by that every man would be deterred to question any person for felony And it was said by Hutton If one said You have broken the Peace and I will cause you to be arrested and procures a Warrant from a Iustice of Peace by which he is arrested No Action here will lye But Berkley on the other side said to the contrary and of that Opinion was Richardson Chief Iustice that the Action will well lye And by Richardson The Defendant ought to have justified that there was a Felony done and that he suspected him c. But he pleads not guilty And it does not appear by the Declaration what was done with the Plaintiff after he was brought to the Iustice of Peace and by that it shall be implyed that he was dismissed upon his examination And here the Plaintiff was imprisoned and carried before a Iustice of Peace which is an act done as well as in the case where there is an Indictment And an Attourney of the Court cited one Danvers and Webly's Case In that very case it was adjudged that the Action lay But it was adjourned to another day Champues Case OUnson makes his will gives 200 l. to Tho. Champues son of Jeremie Champues Also to other Children of Ieremy 20 l. a piece to be paid at their several marriages or ages of 21 years And after wills that his Executor should enter into bond to the several parents to pay the several Legacies to the several Children at the ages of 21 years or their marriages And his Executor after his death gave an Obligation to Jeremy Champues to pay the 200 l to Thomas at his full age or marriage But in the Spiritual Court afterwards upon libell it was ordered that he pay the legacies presently Thomas being under age of tender years And for that Henden moved for a prohibition Richardson although the sute for a Legacy be properly in the Spiritual Court yet if there be an Obligation given for the payment of it it is not turned to a duty in the Common Law and then it is not tryable there This is one reason why a prohibition shall be granted Secondly another reason is because that they sentenced the payment of the Legacy against the Will and against Law and the Obligation here will not alter the case for it is given to another person not to the Legatee and then the Legatee notwithstanding the Obligation may sue in the spiritual Court But by Richardson it is all one for here the Will orders the Obligation to be made Which Hutton changing opinion and Harvey agréed For now because the Obligation is given if the sentence shall be given the party is liable to the Obligation also to perform that And by Richardson it seemed that the clause in the will of the Obligation to be entered into by the Executor to pay at the marriage or 21 years of age the several Legacies c. extends to the first Legacy of 200 l. to Thomas although it be coupled to the last Legacy which should be by a new and several Item And by that clause the intention of the Testator appears that the 200 l. which is given generally and no time of payment named It shall not be paid until marriage of 21 years of age And a prohibition was commanded to be granted NOte It was said by Richardson chief Iustice If a man had a way over the Land of another for his Cattel and upon the way he scares his cattel so that they run out of the way upon the land of the owner and the party who drives the Cattel freshly pursues them c. That in Trespasse he who had the way might plead this special matter in justification Green against Brouker and Greenstead IN Trover and reversion the Plaintiff declares That whereas he was possessed of a bag of hops and a bag of flax to the value of c. And that the Defendant found them and the third day of October converted them And the Defendants plead that Sandwich is an antient Village and that the custom of forrain attachment is used there as in London and that these goods were lost upon default in November and traverses absque hoc that they were guilty of any conversion in October Pasc 7 Car. Com. Banc. or any other time or day than the times before which are
open Pound if they dye the Distreyn is chargeable 75 A demand before a Distress if the Demand is out of the Land if not then see 86 Where Damages shall not be mitigated 93 Where a Demand ought to be certain and where not 109 On a Devastavit a Writ de bonis propriis issues 110 If a Debtee mary Debtor what becomes of the Debt see 120 In what Cases A must declare tam pro domino rege quam pro seipso 122 Double delay not allowed 126 E DElay in arrear of Error not hinder Execution 17 If a Sheriff remove his Prosoner out of the County without command It is Escape 34 Where he permits him to go for his pleasure Escapes lies ibid. Ne unque Executor found against him upon a Scire fac shall be only de bonis testat 48 Eject firm lies against Tenant at Will if he leases for years 73 If the Conisee permits the Conisor being in execution to go at large be an Escape 79 Excommunication to strike in the Church 86 If an Executor dies before probate the Goods belong to the Administrator of the first Testator 105 A Rent upon Condition reserved to the Executors goes to the Administrator 115 If a devise be void if no Executor be made 118 Ejectments do not lie of a Mannor 146 In Ejectment he ought to shew the certain quantity of Land 176 Antient Demesn is a good Plea in Ejectments 177 F A Franktenement cannot pass from a day to come 29 Feoffment to the use of a Stranger ought to be tendered to him 56 Denyal of the Rent a Forfeiture 6 A Subject may have a Forest but not a Justice Seat 60 No Clergy for Felony committed upon the high way otherwise upon the foot way 75 In a Formedon he ought to make himself heir to him who died seised last of the E-Estate tayl 78 Felony to take Pidgeons out of a Dove-coat 149 Fieri Facias no Bar to the Capias although part of the debt be satisfied 159 I INdictment quassavit for incertainty 35 Upon a Judgement if the Money be paid to the Attorney it is good but otherwise of a Scrivener 48 Inne-Keeper ought to say in his Action transiens hospitavit 49 If Land be descended to an Infant the Sheriff shall surcease his extent 54 59 Iudgement had against an Infant may be reversed 65 Judgement reversed for want of Pledge 59 Imparlance roll may be amended 143 Infans habeat eandem actionem possessoriam qualiter antecessor 160 An issue mistaken cannot be amended 164 K IF the King enters upon any Tenant a Petition of right lies 29 The King cannot take a man in execution out of Prison to his wars causa vid. 57. L VVHether a Lease to two be determined by the death of one 85 Whether a Grant of Estovers out of another place than was the Lease be good 78 Libell for the Seat in a Church 94 Where upon a Lease the Heir shall be estopped and where not 91 Libell for Tithes of two pecks of Apples 100 M VVHat things go to the making of a Feme sole Merchant 9 Where inter-mariage is but a suspension of a promise 12 An action brought in consideration of a mariage 50 How a Lord shall recover in a Writ de valore maritagii 55 O FOr what Causes an Outlawry may be reversed 93 P IN Partition no dammages are to be recovered 34 Prescription for Sallery of a Vicar is tryable at Common law 33 Prohibition where the thing might be tryed and proved at Common law 15 Where Prohibitions shall be granted and where not 19 27 28 49 50 51 60 68 69. Parson cannot discontinue 88 Prohibition upon words 94 A Protestando is no Answer 104 Symony a good suggestion for a Prohibition 116 Whether a Prohibition may be without alleging a Custom 117 Per minas pleaded 121 R VVHether the word Successive so makes a Limitation of a Remainder good matter and Cases thereupon 22 23 24 25 26 If a Feme sole Executrix of a Term mary him in reversion and dies the Term is not drowned 36 Release of Actions and Sutes substantive bars Debt 15 Nul tiel Record replyed where Recusancy convict is pleaded by the Defendant the Record must be shewn 18 Where a Reversion passes without Attornment 73 Where one Request may serve for several Debts 84 Whether on a Rescous the Action shall be brought by the Plaintiff against the Rescousor or against the Sheriff 95 Where no averment against a Record 107 Where a Feme shall be remitted and what makes a Remitter 110 No Rescous can be of Goods 145 Arrerages for rent upon an Estate for life cannot be forfeit for Outlawry 164 S TO grant a Supersedias there must be execution erronice emanavit alleged 30 Surrender determines the Interest of all parties but a Stranger 51 In Case of Symony the Statute makes the Church void 51 No fee due to the Sheriff for the executing of a cap. utlagat 52 That he might arrest the Kings Servant upon this Writ ibid. Quicquid plantatur solo cedit solo 57 T TRover and conversion brought for a load of wheat 22 A discharge of Tithes by the Parson for years runs with the Land and not with the person 31 Where toll ought to be pleaded in Trover and conversion 49 Trespass against Baron et feme dum sola fuit both shall be taken 53 If Part and Portion a like make joint tenancy or tenancy in Common 55 Trespass brought by Baron and Feme they must not say ad damnum ipsorum otherwise of Jointenants 2 Tithes of Fish due meerly by Custom 13 Tithes where due by the Common law of the Land no Prohibition ibid. Tithes of Limekills 14 The word Equally makes Tenancy in Common 64 No Trespass lies against a Disseisors Lessee 66 Where Tithes of young Cattel 85 93 Tithes for hedging Wood. 18 A Term evicted on Elegit is grantable upon a Statute Merchant or Staple not tithes for milk of Calves 100 No Composition for tithes for life without Deed. 107 No tithes for Estovers burnt in an House 110 V A Special Verdict may be amended according to the notes given to the Clark 52 A Verdict finding matter repugnant or which cannot come in question binds not the Court. 4 If a Scrivener not the party reserve more than just interest no Usury 11 Where the Visne and the return differ it is not good 83 If Defendant dies between Verdict and Iudgement Iudgement will be stayed 90 Whether Beer Brewers are within the Statute and intent of Victuallers 101 W VVAste committed by a Stranger the Lessee dies no remedy against the Seranger 97 Tenant for life and he in remainder may join in Waste 105 The Warden of the Fleet nor Westminster never may take Obligations for Dyet 146 REPORTS AND CASES TAKEN In the third fourth fifth sixth and seventh years of the Reign of the late King Charles c. Ralph Marsh against John Culpepper RAlph Marsh brought an action upon the
case against Iohn Culpepper and Anne his wife for an Assumpsit made by Anne dum sola fuit And afterwards the Assumpsion is found by verdict And Davenport moved in arrest of Iudgement for that that there was not a sufficient consideration for whereas the wife was Administratrix to Goddard her first husband who was indebted to the Plaintiff for so the Plaintiff declared and that he intended to sue the wife as Administratrix and that the wife requested him that two might surveigh the account between her husband and the Plaintiff to which the Plaintiff assented and that two surveighed it accordingly when it appeared that the debt was due and that then the fore-acknowledgement of her husband to be so indebted In consideration of the premises assumed to pay the debt part at Michaelmas and the other part at a convenient time after But there is noe consideration to make her chargeable de bonis propriis as their purpose is to make her by their Declaration against her and not as Administratrix For it is not mentioned that in consideration that she had assetts or that the Plaintiff would forbear to sue her or otherwise c. So that the debt of her husband by the Assumpsit cannot be changed to her own debt And it is not like Banes case Co. Re. 9. 94. For there the Plaintiff was to forbear to sue him and for that assets is not requisite The like is Beeches case 15 Eliz. in that Court reported New Entries fol. 2. Richardson of the same opinion because there is not any consideration nought but the assent of the wise to the accompt which will hardly charge her de bonis propriis See Co. lib. 6 41. Pasch 3. Car. Com Banc. Thomas Ux. against Thomas Newark THomas and his wife brought Trespass against Tho. Newark for beating of the wife and taking of the goods of the husband only ad damnum ipsorum and afterwards the matter was found by verdict and it was moved that the Declaration was nought for the wife cannot joyn for a Trespass done to the husband alone but in a trespass done to the wife alone the husband ought to joyn and for that the Court awarded quod quereâ—… nil capiat per bill But it was said by Crook and Yelverton if baâ—…on and feme bring trespass for the beating the wife the husband may declare for a trespass done to him ad damnum ipsius c. But it was said by Hutton if two joyn in trespass for taking goods whereof they were joyntly possest one of them in an action cannot declare for taking of the goods of him alone Which was agreed by Crook c. Blackhall against Thursby ONe Blackhall petitions in the Court of Requests to compel Thursby Lord of the Mannor to admit him to a Copyhold surrendred to his use which he refused before to doe And also forbad one to whom the Copyhold was demised by Blackhall to pay him any rent Vpon which it was decreed that Thursby should admit him to a Messuage and 17 acres whereas the Copy was of a Messuage and 3 acres and also that Thursby should set forth the bounds of the Copyhold which he had defaced and removed and that he pay the rent Hitcham moved for a prohibition for he said it was more just for a Court of Equity to compel a Lord to admit his Copyholder for before admittance he cannot have an action and he has no remedy at the Common-law And so if a Copyholder removes or defaces the bounds of the Copyhold it is proper for such a Court to design them To which the Court agréed but they would not compell him to admit him to the Messuage and 17 acres where the Copy is but of thrée acres which would be unjust unless that the 3 would comprehend the other 14. But parcel or not parcel of Copyhold belongs to the Common-law to try But the Court denied the prohibition for that cause for the Iustices said that that admittance to 14 acres does not bind the title but it sets at liberty as to that But if they had decreed that he should be admitted and also enjoy it to him and his heirs then the Decree had been unjust and a prohibition for that But for part of the Decree which touch'd the rent It was agreed by the Court if Thursby receive the rents the decree was just that he should pay it but if he did not receive the rents nor take the profits but only forbad the Tenant to pay the rent and he would save him harmless Then if it was decreed that he should pay the rent a prohibition to that part should be granted And Harvey Iustice in that case said That he knew it to be adjudg'd that a surrender with the appurtenances would pass land And of a Messuage and 3 acres would pass more acres if divers Copies successively have been so And upon questioning of Blackhall by the Chief Iustice for saying that after there was a Decree in the Court of Equity an Order of the Common-bench could not supersede the Execution of it And Iustice Yelverton declared That when he was in the circuit at York a poor man who sued before him in forma pauperis was arrested by process from the Council of York And that upon notice of it he commanded a writ of privilege to be made for him but the Officer of the Council would not obey it upon which he claps in a Habeas Corpus returnable at a certain hour and the Officer came without the body and refused to deliver the prisoner and said that he had not power to controll the process of the Council And upon that he set a fine upon him of 40 l. and his Act was approv'd on by the whole Court. For every one that sues before the Assize ought to have free egress and regress and staying while his business was ended And afterwards the Lord President said to Yelverton that he would complain to the King and Privy Council of him for that he had transgressed his authority and power And the Court said that they would justifie it c. Smith against Doctor Clay HEnden moved for Doctor Clay Viccar of Hallifax that a prohibition might be granted to the High Commissioners of York For that that these Articles by one Smith were preferred against him c. First that he read the holy Bible in an irreverent and undecent manner to the scandal of the whole Congregation Secondly that he did not doe his duty in preaching but against his Oath and the Ecclesiastical Canon had neglected for sundry mornings to preach Thirdly that he took the Cups and other Vessels of the Church consecrated to holy use and employed them in his own house and put barm in the Cups that they were so polluted that the communicants of the Parish were loath to drink out of them Fourthly that he did not observe the last fast proclaimed upon the Wednesday but on the Thursday because it was an Holyday
to make it actually void For if the words are pursued strictly then it shall be void immediately against the Bishop himself Then the Successor in lieu of a benefit shall take an advantage of the Statute For he cannot make Leases but of things usually demised 32 Eliz. Sale and Sale against the Bishop of Coventry in a Quare impedit It was adjudged That a Quare impedit well lies by an Executor for disturbance made to the Testator And also that a Lease for years is good notwithstanding the Statute The Statute does not intend the benefit of the Lessee but of the Successor himself And the Successor had his Election to accept the Rent or the Land And if it should be voyd his Election is gone Tallengers and Dentons Case 4. Jac. A Lease is made by the Bishop of Carlisle of the Tithes which is out of the Statute And there it is void against the Successor For that that he hath no remedy for the Rent reserved upon it And that point is so adjudged upon the Statute of the 13 Eliz. Walters Case before resolved that a Lease made by Dean and Chapter not warranted by the Statute is but voydable against the Successor Pas 6 Iac. rot 1041. Wheeler and Danbies Case Robert Bishop of Glocester 30 Eliz. makes a Lease to Iasper habendum a die datus to him for life the remainder to William rendring the ancient Rent The first Lessee dies the Successor having notice of it and that divers Rents were behinde commanded his Bayliff that he should receive the Rents The Bayliff enters them and receives Rent of that Lessee the Bishop having notice of it And these points were resolved First the Iury finding a Lease a die datus might be intended good for that the Entry was made after the day yet the Iury finding a thing impossible does not conclude the Iudges Secondly that a Lease in remainder is not warranted by the Statute 1 Eliz. Thirdly that the Lease was but voydable by the Successor for the Statute was made for the benefit of the Successor but the grand Question was of the manner of acceptance and resolved Fourthly that the acceptance binds the Bishop and the Authority given to the Bayliff and also his receipt For it differs where the Bayliff of his own accord receives Rent Dyer And they also say that that was to perfect an estate setled And it differs from an Attournment which is to perfect an estate setled For there notice is requisite c. Gammons Case again HEndon said that a Scire facias does not lie upon that record because an action of debt well lies For no president can be shewn that a Iudgement given in an inferiour Court may be executed so For first that Court shall not make an Instrument to execute Iudgement given in another Court It is seen that an Attaint lies of false Iudgement given in an inferiour Court Take the Case in 14 H. 4.4 And so if issue be joyned in an inferiour Court without custom It shall not be removed to be tryed so And so it is our Case c. Secondly the Statutes do not give them power viz. 26 H. 8. 34 H. 8. makes the matter clear that it cannot be Error in an Assize before the Iustices of Assize will not lye in this Court. For Iudges Itinerant are superior And those Iudges are appointed by Act of Parliament and so the Iudges also in Wales are by Act of Parliament And having power a Oyer et terminer It is not found that after Iudgement a Certiorari had been received to remove the Record out of an Inferiour Court And the mischief would be if Iudgement should be given for 20. l. it should be executory through all the Realm where they have but a special Iurisdiction And also the tenor of the Record is only removed and execution cannot be out of the tenor of the Record Dyer 369. Plow 52. Richardson The question is whether when the Record is so removed whether it shall be idle If Iudgement be given in an Inferiour Court which holds Plea by prescription or by grant and removed by Writ of Error if the Iudgement be affirmed we may award Execution 16 Iac. There is an express president of a Iudgement in an Inferiour Court and a Scire facias is granted so And also a Scire facias is granted in lieu of an action of debt For by the Common Law he might not have a Scire facias after the year but an action of debt And by the Common Law debt lies in that Case Harvey and Crook Iustices said that Court shall not be an Instrument to execute Iudgement in an inferiour Court which they cannot And also the Land of the Defendant shall be lyable to an execution in any place in England where before only the Land within the place was lyable And also the purchaser could never finde out what executions might be upon the Land Richardson said that the mischief would be great on both sides For otherwise what Iudgement was given The Defendant would remove his goods out of the Iurisdiction of the Court and then the Plaintiff had no remedy but by new original And Crook Iustice If a man brings an action in a Court he ought to examine what the end of that will be For it is a president a man ought to respect things in their end For it is his own folly to commence an action where he cannot have execution For that he may commence his action and have execution in any place in England And although that a forrain Plea in an Inferiour Court may be tryed so yet it is by Act of Parliament viz. 6 E. 1. 12. which proves by the Common Law there was no remedy Tithes of Pidgeons and Acorns A Parson Libels in the Spiritual Court for Tithes of Pidgeons and Acorns And the Defendant prayed a prohibition Because the Pidgeons were spent in his own house and the Acorns dropt from the Tree and his Hogs eat them And it was said by the Court Acorns are Tithable 11 Rep. 49. But then they ought to be gathered and also sold And a prohibition was clearly granted Thomas Wilcocks Case MOre of the Case of the Vniversity of Oxford Thomas Wilcocks Mr. of Arts in St. Mary Hall in Oxford was sued in the Chancellors Court there by Anne wife of Ralph Bradwell and Christian her daughter For calling the wife Bawd and old Bawd and the daughter Whor. and scurvey pockey-faced whore And they procured two Sentences against Wilcocks and upon them he had two prohibitions And Davenport moved for a Procedendo for that that by their Charter which was confirmed by Parliament The Chancellor or his Deputy shall have Conusans of all causes personal where one of the parties is a Scholar And the Charter was shewed in Court which was to this purpose That they shall hold Pleas c. or Secundum morem Universitatis or Secundum legem terre And the custom was to proceed according to
seisin Et si vous alleadger ceo uncore nest traversable mes avowry do et ee sur le matter Et Incroachment ne avoyer issuit lou measnalty nest conveigh forsque al surplusage seisin nest traverseable Incroachment ne noier Et pur ceo est hors de 32 H. 8. Et ceo ne scavoy Cases lou de rent seck est distrainable de commrn droit seisin Poet ee traverse si foret alleadge Et si ascun puist ee monstre jeo ne doubt mes ceo voet ee alleadge per ascuns des freres come rent sur partition attend sur le terte c. issuit cest rent seck que est sane per cest Stattute ala one le mannor et est parcel de ceo come 21 As 23. rent seck est parcell est mannor ou auterment le defendant ad Title al ceo c. Objection est que est cy veiel que le comencement de ceo ne Poet ee conus et est nul fait de cest rent Et coment ne doies alleadge seisin de ceo in Avowry uncore jeo poy monstre que navera seisin deins 40 anns c. Respons est que cest rent comence dee rent seck per primo Ed. 6. cest Stattunte avoit mesme le force a preserver cest rent hors de 32 H. 8. come un fait ou record ad e'e Et le Stattute al rent est sicome le prophette que raise de mort le fitts dl widdow done vie al lui de fitts fait in vie devant mes uncore bien Poet ee dit que le prophet done vie al lui issuit cest rent fuit occide per les premises del Stattute per 1 E. 6. le saueing sa it ceo un in vie que est le al me de cest rent Et pur ceo ceit saluo do et ee monstre in avowry pur cest donque 7 E. 4. 27 29. E. 44. St le comencement del Suory Poet ee monstre ne do et ee alleadger seisin issuit de rent et coment que jeo doye in mon Avowry monstre que la fait ou rent service devant cest Stattute uncore ceo doye rely sur le saueing de cest Stattute 35 H. 6. 3 4. 22 H. 6.3 Avowry 73. Si Suor confirme a tener per meinder services si soiet recite in Avowry est sufficient sans seisin nul inchroachment pius tiel Confirmation noyer donque est un fait original ou un confirmation sur in case dee hors de ceo Stattute de 32 H. 8 issuit voile le Stattute de primo E. 6. Crook ad agree si le saueing ad ee particular de 18 al Suor Windsor que est que cest case nest deins 32. donque averment fait ceo cy certain Et si le saueiug est ee al le Suor Windsor All rents by which the Land is held of him donque avoit est bone et hors de 32 H. 8. Objection est icy est generall que nihil certi implicat c. mes certum est quod certum reddi potest come les cases mise cite per Hutton quel jeo conceave auxi sur le matter al primes le Roy graunt easdem Libertates que S. avoit Poet ee fait certain per averment que S. ad tiels Liberties c. Objection 32 H. 8. do et ee prise liberallmentâ—… Voier que all Avowries Conusances mes le Stattute est de petit faire car si replevin soiet convert al trespasse est hors de de cest Stattute 10 H. 6. 1. Long 5 E. 4. 87. Et in trespass poier traverse le tenure non solement le seisin hors dl Avowry in que le Avowant est Actor c. Objection 32 H. 8. suit sait pur le repose quiet des homes c. Respons solement in Actions deins cest Stattute in eux le Stattute avera liberall Construction que urors ne serra inveigle quel daunger cest icy pur ceo que le Stattute fait Title ee Accounter est nul mischief car poies traverse le tenure ou seisin devant le Stattute de primo E. 6. c. Mes adee dit que Stewards books Courts Rolls ou Bailiffs accounts poieat ee monstre port eins pur Title al rents extinct per leases ou c. uncore jeo die que ceux matters doient ee laise al Iury tiels choses in eux mesmes sout bone Evidences nous veiennus 7 Rep. Farmors Case que le stattute de Fines est avoid per fraud agreement des parties ad ee confesse poiet toller Le Case hors de 32 H. 8. come release Executrix of Henry Hassel IOne Hassel makes a Lease to H. Rassel of 3 Closes for 20 years if he should so long live Henry Hassel dies and debt is brought against his Executor for rent reserved upon that Lease who pleads that before the day of payment he assigned two of the Closes to a Stranger And upon demurrer Iudgement was given for the Plaintiff For if there had been an assignment of Henry If he did not give notice to the Lessor in acceptance of the rent he shall be charged Quod nota Iudgement in Debt IF Iudgement be given in debt and a Scire facias brought against the Executor who pleads ne unque Executor ne unque Administrator c. And it was found against him yet it was agreed by the Court that the Execution shall be de bonis Testatoris tantum For that that the Execution shall have relation to the Iudgement And the Scire facias is to make known that they had not Execution upon the first Iudgment which extends to the goods only of the Testator And so it was said by Moyle Prothonotary that it was rul'd in 5 lac in this Court If a Iudgement be given in Debt and the mony is paid to the Attorney of the Plaintiff Although that the mony miscarry with the Attorny yet the payment is good But if a Scrivener is imployed generally to put mony to use for a year and the mony is paid to the Scribener who breaks or does not pay the mony The payment does not excuse the party But if he receives it by special Command c. that is a good cause of Equity In Avowry IN an Avowry for Dammages feasant the verdict is found for the Avowant And a Returno habend granted for the Cattell and a Capias ad satisfaciendum for the Costs and Dammages are payed The Sheriff cannot execute the Returno habendo But if it be executed and Costs afterwards paid upon the Returno habendo A Writ De si constare poterit shall issue to the Sheriff for delivering the Cattel upon a surmise and payment of the costs c. A Prohibition DAvenport moved for a Prohibition for that that an Executor who resided within the Tower which is a peculiar Iurisdiction as it was surmised was sued in the Prerogative Court
demanded are material Because it is demandable in a Collateral place out of the Land charged Crook Grant of a rent and that I pay it at Michaelmas allwaies if it be demanded at my House there ought to be a demand And suppose it was to be demanded in such a place upon the Land I conceive the demand ought to be made accordingly Yelverton A Lease was made rendring a rent payable at such a day upon Condition that if the rent be not paid at such a day without demand That the Lessor may reenter And adjudged that no demand is now requisite For modus et conventio vincunt legem c. Sed adjurnatur Wolfes Case before THe Plaintiff was an Attorney who sued by attachment of Privilege And now the Court would not permit the amendment Because there was a material Error for it is to the disadvantage of the King For if the party be non-sute or a verdict passes against him the King shall have a Fine for false clamour and may recover them against the pledges But now where it is the Act of the Court or of the Clark or Attorny and not the party himself there may be amendment As warrant of Attorney may be entred after the Record removed And although that pledges were entred upon the Issue roll where it ought to have been upon the Imparlance roll But not on the contrary For the Issue roll is the inferiour Harvey If a Sute be by Bill as an Attorney being Defendant there are alwaies pledges entred in the Bill But if by Attachment also as so Then the Declaration is the Original Crook 12 Eliz. Dyer There Iudgement was reversed for want of Pledges And although that Case was before the Statute of 8 Eliz. yet that Statute does not ayd substantial Errors And in one Husseys Case in the Kings Bench That was adjudged for Error Wilknsons Case CRew moved that two were bound in a Statute and one dies his Heir within age That the extent shall demur Because that usura recurrit contra haeredem infra aetatem existentem And he cited 17 Ass 24. by Mawbrey And so it was agréed by the Court. And Richardson said That in that respect the Statute is an ill assurance Quod nota Waddingtons Case AYlâ—ff moved for a Prohibition for one Waddington for that that he was executor and was sued in the Councell of York upon an Obliligation for the payment of a Legacy And he alleges that a Lease which was put in the Inventory was aliened to him by the Testator in his life time And so the Question will be whether that should be Assets which ought to be tryed at the Common law And therefore prayed a Prohibition Richardson said The Councel of York have power of all Obligations And therefore having Iurisdiction of the principal they have Iurisdiction of the accessary Davenport It is seen that they may proceed upon an Obligation of all sums If they procéed Suo genere as in the Court of Equity But if a thing tryable at Common law as Assets or not Assets come they cannot proceed c. Richardson If a Sute be there for a Legacy and payment be pleaded they may try that But if they meddle in matter of Title then a Prohibition shall be granted Hutton There hath been many motions upon these Ecclesiastical Obligations for Prohibitions and allwaies they were denied And so it was in this Case Comins Case IN one Comins Case it was agreed by the Court That a Subiect may have a Forest But cannot have a Iustice Seat But he may have a Swanmark Court and the other Courts and a Commission to execute them Then a Forest in the hands of a Subject shall pay Tithes And it was agreed that in the hands of the King it is privileged And by Henden Davenport and Atthowe Sergeants It is only his personall privilege which extends to the Lessee of the King But not to the Feoffee And it was agréed That where the right of tithes comes in Question between a Parson and the Vicar who are both Ecclesiastical persons It shall be tryed by the Ecclesiastical Court But Richardson said the Books make a doubt Where it is between the Servant of the Vicar and the Parson But it seemed to him to be all one Margery Rivets Case before RIchardson Hutton and Harvey said That the Devastavit ought to be to Margery for Necessity sake For it cannot be intended otherwise For none can satisfie the Debt but Margery And the intention of the Replication was to charge her de bonis prop. for waste and no other can be intended to waste And the Case put of I. S. so being seised feoffavit There it is good without praedict I. S. But for the thing it ought to be Feoffavit inde 21 H. 7. There if W. S. be named again It shall be intended the same W. S. if there be not quidam I. S. and then otherwise and also it is much mended by the Replication For there it is ipsa Margareta non devastavit But Crook and Yelverton on the contrary according to their reasons before that no Issue is joyned And then the Statute does not ayd it For there is not any Nominative Case to which it may referre If it had been quo die Margery habens bona devastavit had been good But being bona habuit no Grammarian can make Construction of it And the Replication or Declaration ought to be certain to all intents 27 H. 6. 3. Wrotesleys Case In an information of Tithes It was said That the Defendant cognoscens him to be in sute being ruled that Congnoscens is not positively an affirmation but it ought to be cognovit And Iudgement was had upon it and yet after for that fault reversed 1 R. 3. There the Case was After verdict was entred that the Iury appeared et electi triati dicunt super sacramentum suum There it was reversed because it was not lurati and yet that was implyed by sacramentum strongly But Implications ought not to be allowed in Replicatious then we should introduce so many incertainties But by Crook Iudgement shall be given against the Plaintiff upon his own Replication For that that the waste is supposed after the Son came at full age and then the Administration that determines And Iudgement was given for the Defendant Roberts and others ROberts and others in East Greenwich were cited in the Spiritual Court to pay mony that the Wardens had expended in reparation of the Church And the Inhabitants alleged That the tax was made by the Church-wardens themselves without calling the Free-holders and also that the monys were expended in the re-edifying of Seats which belonged to their several Houses And they never assented that they should be pulled down And now that allegation was not allowed but sentence was given against them And then they appealed to the Arches where this allegation was also rejected And for that he prayed a Prohibition And the Court agreed That the
the evidence of the party or by others by his procurement in the same manner As it was in an appeal upon a fresh sute at the Common-law It was said by all That although the custome was of Burgage lands in soccage Yet if the Lands came by gift or otherwise to tenure in Chief or service of Chivalry That that now changes not the Custome which alwaies goes with the Land and not with the tenure As the Lands in Gavelkind by the Custome are soccage tenure Yet if they are changed to service of Chivalry the Custome is not altered But that all the heirs shall inherit It was agreed by all That if sir persons compass and imagine to levy war against the King And there is an agreement betwéen them that two shall do such an act in such a Country and the other two another act in such a County And so divers acts by divers in several Counties for to assemble the people against the King And after two do the Act according to their purpose and assemble the people and the other do nothing Yet the Act done by two upon the agreement is Treason in all But otherwise it is if there had been only a compassing c. and not any agreement and afterwards one of them does the act unknowing to the others there it is not Treason but in those that doe the fact and not in the others As it happened in the Case betwéen the King and an other Wilkins against Thomas IT was adjudged upon good advise That if an Infant he impleaded by any precipe of his Lands And loses by defending Now he shall have a Writ of Error And because that he was within age at the time of the Iudgement it shall be reversed And the Infant shall be restored to all that he lost As it happened in the Case of John Ware against Anderson and others in the County of York lost while they were infra aetatem Where it appeared that they appeared by their Guardian admitted to them by the Court to the Grand cape and that they were within age But there was an inspection by Nurses and Friends and they were found not to be within age John Symons against Thomas Symons NOte it was said by all the Iustices That if the Disseisee enter upon the Feoffee or Lessee of the Disseisor That he shall not have an Action of the Trespass for the same Trespass against the Feoffee or Lessee Because that they come in by a Title And at Common law before the Statute of Gloc. No dammages for mean occupation against the Feoffee or Lessee Bromleys Case IF a man steal goods and be arraigned upon an Indictment of felony and the goods are valued to 6 s. and the Iury upon their verdict say That he is guilty of the said goods but that the value was but 6 d. That is a good verdict And the Iustices shall vanish him as for patty Larcenny In the same manner it is If a man be arraigned for willfull murther and the Iury find it but Manslaughter That is a good verdict by all the Iustices Pease against Thompson A Man seised of Lands in see makes a feoffment from that day to divers to the use of his Wife for her life and after to the use of the heirs of the body of the Feoffor The Feme dies and the Feoffor makes a Lease for years and dies Now her Issue shall not avoid that Lease because a man cannot have Heirs in his life So that at the time of the death of the Feme there was none to take by the remainder And for that the Feoffor had the fee the Lease is good and shall bind the Heir As if a Lease be made for life the Remainder to the right Heirs of I. S. and I. S. dies in the life of the Lessee then the remainder is good otherwise not but it shall revert But otherwise it shall be peradventure in such a Case in a demise Hillary 3 Car. Com. Banc. Skore against Randall SKore brought Debt against Randall and recovered and had execution by Elegit and it was found by the Inquisition that the Defendant was seised of the moyety of a Messuage and Lands for life and other Lands in right of his Wife And the Sheriff returns that virtute brevis et deliberat feci meditatem omnium praemissorum cum pertinentiis c. Nec non duo pomaria nec non unum clausum vocat c. And that he had delivered the moyety of the Lands in right of his Wife and his Chattells and recites them and that Elegit was filed And the Question was whether he might have a new Elegit Because that the Sheriff ought to have delivered to him the moyety of the moyetic of the Lands held in Ioint-tenancy So that the Tenent by Elegit might be Tenant in Common for a fourth part with the Ioynt tenants as it was agreed But also by that Delivery he had but in effect the eighth part For the other Ioynt-tenants may occupy the Land delivered with him in Common Richardson said For part of the Lands and goods in right of his Wife the return is good And being filed he cannot have a new Election For if part shall be evicted you cannot have a new Extent upon the Estate But if it had been in the Genitive Case Duorum pomorariorum c. it had been good But it was granted by the Court That the Plaintiff makes a surmise that the Sheriff male se gessit in the Execution of that Elegit and then he may have a new Elegit at his peril c. Edward Thomas against John Morgan et al. EDward Thomas brought an Ejectione firmae against Morgan Kemmis and others and upon Not guilty pleaded a speciall Verdict was given to this effect for Morgan and Kemmis for the other some were dead before issue and the other not guilty and they found a Iudgement dated 12 Sept. 23 Eliz. and deliver'd the 15 Iunii next ensuing Which was between the then Bishop of St. Davids of the one part and Richard Thomas of the other part And it was in consideration of a Marriage to be had between him and the Daughter of the Bishop That before the end of Hillary Term next ensuing he would levy a Fine of all those Lands and all the other lands in Mountmouth and that should be to Thomas Morgan and Roger Sise of Lincoln-Inne And that he suffered a recovery with double voucher to the uses in the Indenture But the words are that the Conusees should stand seised to the use And by Atthowe the Recovery is idle for the uses shall be executed and then there shall be no Tenant to the Precipe viz. That of all the Lands mentioned in the Indenture Morgain and Sise shall stand seised to the only uses hereafter c. that is to say They shall be seised of in part of the Lands and Tenements that is so much thereof as shall amount to the clear value of
30 l. by the year to the use of Richard and Anne Daughter of the Bishop after mariage for their lives Which Lands and Tenements to the value of 30 l. per annum shall be appointed and limitted out by meets and bounds and put in writing before Hillary Term next and delivered to the use of Edward Thomas and Walter Thomas for their lives which were Vncles of Richard if Richard and Anne had Issue male When the Survivor of them dyes without Issue male or if all the Issue male dye without Issue male Then the use to Edward and Thomas to cease Also there be two Conditions the one Precedent the other Subsequent And the precedent Condition makes that a contingent Remainder But Atthow would have that settled without Issue born to Richard c. But if all their Issues dye before the Survivor It can never be setled For the words scil at the death of the Survivor c And then before the contingency happen it cannot be setled If the contingency had been void at the time of the limitations I agree it should be void Now if the particular Estate be contingent all that depends upon it is contingent also And Edward and Walter took nothing but after the death of the Survivor of Richard and Anne without Issue And then it is as in the Case of Cook 10. 85. A Feoffment to the use of A. for life and after the death of B. to the use of C. and his Heirs That Remainder is contingent Because that B. ought to dye in the life of A. or the Remainder shall never vest So also to Richard and Anne for their lives and after their deaths without Issue to Edward and Walter And if they ever take an Estate it ought to be after their deaths c. Secondly For the uses of the Residue To the use of Richard for life and if he dye living A. without Issue male ingendred of the body of A. Then to A. for life that is contingent then of the residue after the death of Richard to the use of Edward Walter if Richard had not issue of Anne at the time of his death Whether it vests after his death see before c. That is contingent also And it is contingent whether he will dye without Issue male As if a Feoffement be made to the use of one for life and if he had no Heir of his body to another in fee that is contingent during the life And he had not but an Estate for life by that limitation and then that is destroyed by the Fine also And now if nothing was in Edward nothing can be setled in his Son And then those contigent Remainders being destroyed there is a good estate in the Purchasors and this special verdict was not found for any doubt but for the intricacy of the Indenture And therefore he prayed Iudgement for the Defendant Harvey against Fitton HArvy the Administrator of Edward Fitton brought an Action of debt upon an Obligation of 200 l. against Edward Fitton and declares of Letters of Administration committed to him by the Archbishop of Canterby c. The Defendant says That the Intestate became possessed of Goods in Chester within the County of York And before the purchase of the Writ and after the death of the Intestate I. S. Chancelor of Chester committed Administration to Richard Fitton of all the goods c. And that he released to him and upon that de murs Bramston He doth not shew what person that Chancellor was or how he had that Authority to grant Administration quod fuit concessum per Cur. That for that it was naught And it was agreed that the Prerogative of Canterbury does not extend to York Dame Buttons Case DAme Button was Administratrix of Goods and Chattels of her Husband And the Sisters of the Husband would compell her in the Prerogative Court to make Distribution And after sentence given prays a Prohibition and divers causes were alleged But Richardson rejected all unlesse it was upon the Statute 21 H. 8. And upon that Statute he said that upon conference with the Iudges He conceived that it was in the discretion of the Court to grant a Prohibition in such Cases or not c. Hutton said That a Prohibition in such cases ought to be granted For he said if Sisters may come in for portions by Distributions where Cousins cannot And Sisters have not any colour to have Distribution For although that the Statute of Magna Charta cap. 18. extend a pueris Yet not All Freres or Sisters And the Ordinary although heretofore would compell an Executor to make Distribution yet now they never meddle with an Executor And hath not an Administrator the same power as an Executor And in Isabel Towers Case a Prohibition was granted For when they have executed their Authority one time lawfully they cannot make a Distribution Harvy to the same intent The Ordinary had not such a power upon the Goods of any especially where Administration is granted For then they have put the Property in the Administrator to pay debts c. And there may be a sleeping debt which by that means shall never be satisfied For if the Ordinary might grant Administration and afterwards make Distribution His Authority is not warranted and he does and undoes and so mocks the Statute In Flames Case it was said that if they are not permitted to make Distribution They will compell it before Administration shall be granted But they have not any such power for he ought to commit Administration if it be demanded And it was so in one Clarks case In which the whole Court was of opinion But Yelverton would not shew his op'nion in the power of the Ordinary But he consented to a Prohibition without other cause Iohn Owens Case Mich. 3. Car. Com. Banc. IOhn Owen lived apart from his wife And upon petition of the Wife to the Iustices of Assise for maintenance they refer'd it to the Bishop of Bangor who ordered that he should pay to his Wife 10 l. per annum which was afterwards confirmed by decree in the Councel of Marches of Wales And because that Iohn Owen disobeyed that Decree and did not pay the 10 l. per annum the Councel sent a Messenger to apprehend his body and caused his Goods and the profits of his Lands to be sequestred And Henden prayed a Prohibition for that that Alimony was not within their instructions Richardson demanded of him if they could grant Prohibitions If they meddle with a thing which belongs to Ecclesiastical power where they themselves have power Harvey was of the same opinion For this Court should preserve other Courts in order Yelverton said For the sequestration of the Lands they could not do that Richardson They have not any power to sell the goods The Ecclesiasticall Court is the proper Court for Alimony And if the person will not obey they cannot but excommunicate him And by Yelverton when that comes to them
said Goe not to such a one c. it is actionable without question Slander of one in his Trade will bear an action And so all being connexed alike it ought to be intended that he killed him in respect of his skill In Cases of Defamation Sir George Hasting's Case Thou didst lye in wait to kill me with a Pistoll were actionable So if one touch another in respect of his skill in that that he professes it will maintain an action c. And Yelverton to the same purpose for there is a difference between a Profession and a particular Calling As if words are spoken of one that is a Iustice of Peace he ought to shew that he was then a Iustice of Peace for he is removable and may be changed every Quarter Sessions But as to a Calling the Calling of every man is his Free hold 43 E. 3. Grant of an Annuity to one pro consilio and he professes Divinity Physick and Law there the grant is pro consilio generally for Physick if that be his usuall Profession And it is intended that a man alwayes dyes in his Calling If he said to I. S. Thou art a murtherer it shall not be intended of Hares for the Iudges are not to search so far for construction Loquendum ut vulgus intelligendum et sapiens If one sayes of a Merchant Put not your Son to him for hee 'l starve him to death These words are actionable for that that it comes within the compasse of the disgrace of his Profession And so of a School-master Put not your Son to him for hee 'l come away as very a dunce as he went Harvey If one sayes of a Iudge He is a corrupt Iudge it cannot be meant of his body to be corrupt but it shall be intended of his Profession Peitoes Case before HEnden for the Defendant the Case is thus A Rent is granted for life out of Lands which descend to the Heir and he makes a Lease of parcell of the Land to the Grantee for years who surrenders the term Whether the Rent shall revive or suspend during the term And it was said by him it shall revive First For that that it is the act of him who is lyable to the Rent to accept the surrender And there is a difference where there is a determination barely by the act of the party there it shall not be revived For the first 21 H. 7. 9. Tenant in Tayl of a Rent is infeoffed of Land and he makes a Feoffment of Land with a warranty to B. with Voucher as of land discharged of that Rent And so it is 19 H. 6. 55. Ascue put this Case Grantee of a rent in Fee and Donee in Tayl of Land infeoffs the Grantee who grants that over and afterwards the issue in Tayl recovers in a Formedon yet the rent shall not be revived But if it had been the joynt act of the parties as so by surrender it should have been revived First It is clear that if a Chattell personall be suspended by Sute it shall be gone for ever As if a Feme marries the Obligor 11 H. 7. 25. unless suspension be in anothers right if it be by the act of the party there it shall be revived As if a Feme Executrix marry with the Obligor and he dyes the suspension is determined and they are revived against the Executors 7 H. 6. 2. In one Gascoines Case Lessee surrenders to the Lessor upon condition the rent be suspended but if the Lessor enter for conditions broken the Rent is revived Which in effect is our case A rent is granted to the Daughter and the land descends to her and her other Sister who make partition The Rent is revived for it is the joynt act of both parties Plow 15. If a man had a Rent and disseises the Tenant of the land and after the Disseisee re-enters Where there is a revivor of the land there is a revivor of the Rent for the disseisin was the cause of the suspension and that now is gone Secondly Because that when the Lessee for years surrenders the term is determined to all purposes and the Lessor is in of his Estate is Fee and there is a diversity of surrender in respect of a stranger for to a stranger it may have Essence after surrender But as to himself it is otherwise extinct And he cannot say that it had any Essence 5 H. 5. 12. But in respect of a stranger it ha's continuance as if an Executor surrenders yet it shall be assets And all acts done upon Lessee for ltfe before surrender shall have a continuance after And so he prayed Iudgement for the Avowant But more after Wakeman against Hawkins IT was said That if an Executor was sued in this Court by Originall he shall not put in Bayl. But if he be arrested in an inferiour Court and removed by Habeas corpus he ought to put in Bayl. Stamford and Coopers Case STamford and Coopers Case was thus I. S. acknowledges a Statute to Cooper the 22 January and afterwards he confesses a Iudgement to Stamford the 23 of January next ensuing the Statute And it is extended And Stamford brought a Scire fac against Cooper to wit now because he ought not to have the land by Elegit And the Question was whether the Iudgement by relation shall defeat the Statute And it was resolved That the Iudgement shall have relation to the Essoin day which is the 20 day of Ianuary for that is the first day of the term legally and the fourth day after is the first day of the Term open Dyer 361. Pla. 10. A Release was pleaded after the last continuance and it bore date the 21 of Ianuary which was after the day of Essoin de Octab. Hil. And for that nought because that it came late for it ought to have been after the last continuance and before the last day c. 33 H 6. 45. Nisi prius was taken after the day of the return and before the fourth day after and adjudged nought because that the day of the return which is the Utas is the first day of the term and the fourth day after but a day of Grace and that is the difference If a man be obliged to pay money the first day of the Term he shall not pay it but upon the fourth day after for that is the first day in all common acceptance But in all legall proceedings the first day is the Essoin day And so it was adjudged 16 Eliz. And in the Kings Bench it was in one Williams Case A Iudgement was given the 20 of Ianuary and a Release of all Errours the 21 Ianuary and adjudged that that bars the Iudgement given the 20 Ianuary although it was not entred the fourth day after A Iustice in the Kings Bench examined an Infant upon inspection the Essoin day and found him to be under age and would not permit him to confess a Iudgement although that he would
years or but for 7 years And it seemed to Hutton that the Lease was confirmed but for 7 years But Richardson was of the contrary opinion and took a difference where they confirm the Estate and where they confirm the Land for 7 years That Confirmation confirms all his Estate But where they confirm the Land for 7 years That Confirmation shall not enure but according to the Confirmation And that difference was agreed by Crook and all the Sergeants at the Bar. And afterwards Hutton said That that was a good Case to be considered and to be moved again Jacobs's Case A Man was indicted at Newgate For that he feloniously vi armis had robbed a man in a certain Kings foot-way leading to London from Highgate And upon that he was arraigned found guilty And having his judgment he prayed his Clergy for that he was a Clark And the Iustices of Gaol delivery doubted if he should have his Clergy or not Because the Statute if any man be taken upon Felony committed on the High way he shall not have his Clergy But the Indictment was in this case that the Felony was done in alta via reg pedestri So that the words are not alta via regia nec in magna via regia nec in via regia For if that word pedestri had been put out of the Indictment he should not have had his Clergy clearly Some of the Iustices were of opinion that that word added in the Indictment made that he should not have his Clergy The Lord chief Baron of the contrary opinion Perkins against Butterfield HItcham moved to the Iustices If one takes Beasts Dammage feasant and impounds them in an House and leaves the Door open So that the Owner may sée them and give them sustenance And afterwards for default of Sustenance they dye in the Pound Whether he who distreyned them shall be charged or not Hutton when one takes Beasts Dammage feasant in his Land It is at his Election if he will impound them in an open place where the Pound is or in some place in his own Land And if he impound them in the common Pound and the Beasts dye the Owner has no remedy But if they be impounded upon the Soyl where they did the Dammage or in the Houses of him who distreyned them and they dye for want of Food In this he who took them shall be charged For the Common Pound is common to all Persons so that they may come to give them food Otherwise in this case For there the Owner cannot have notice where he hath made his Pound Richardson of the same opinion And I believe that the Owner shall have an action upon his Case against the Owner for the recovery of the value of his Cattell For trespass does not lye For the taking of them and the impounding was lawfull And it is reason that he should recover the value of them by an Action For if the Owner had come to have given them food the Terre-tenant would have an action against him Hitcham The taking of them is made a Trespass ab initio when the Beasts dyed in Pound Wimberly against Taylor et alios VVImberly had entred a Plaint in a Court Baron against two jointly for taking of his Goods And the Plaintiff had removed the Plaint by a Recordare joyntly as the Plaint is And now at this time the Plaintiff counts of taking of Goods severally So that it varies from the Plaint and the Recordare also And Ward moved that the Writ might abate And so it was adjudged by Hutton and the Iustices Wilkinsons Case IT was moved at the Bar If a Man makes a Lease for years to I. S. I. N. and I. D. If the aforesaid I. S. c. should so long live And now one of the Lessées is dead If the whole Lease should be determined or not was the Question And Hutton and Harvey said That it was without doubt that the Lease was determined by the death of one of them But if the words had been generally If the Lessées should so long live and had not named them Then perchance it should have béen more doubtfull The Executors of Tomlins's Case ATthowe demanded this Question of the Iustices A Lease is made for years the Lessée grants over his Estate and reserves to him and his Heirs during the term a certain Rent If the Executors or the Heir of the heir shall have that Rent And it séems to me that it shall enure to the heir well enough As a Grant made by the Grantee of the estate of the same Rent So the Heir shall take by the Grant Harvy May the Heir take Chattel as Heir to his Father And this Rent is but a Chattel And in the Book of Assise there is a Case where Lands are given to I. S. et uni haeredi suo et uni haeredi ipsius haeredis tantum And that was taken to be no Fee-simple Nor no such Estate that the Heir might claim as Heir to his Father But I am in doubt of your Case truly For which I will advise Hitcham Vpon that I have seen a Diversity Where Lands are given to I. S. et haeredi suo et haeredi haeredis I. S. In that Case he shall have a Fée-simple Otherwise it is where Lands are given to I. S. et haeredi suo There no Fee-simple passes Richardson There no Fee-simple passes in any of the Cases And it was said in the Argument That Lessee shall not have Trespass vi et armis against his Lessor Whiddon's Case A Man devises by his Testament to his Daughrer Jane all his Land in D. habendum sibi et haered de corpore suo legitime proc And by the same Testament he devises to his Daughter Anne all his Land in the tenure of I. S. in the County of Hertford Whereas in truth D. was in the County of Hertford and parcel of the Lands were in the tenure of I. S. Whether Jane shall have the Lands in D. in the tenure of I. S. by the first words Or Anne shall have them by the last words Harvey The Testator had given them by his first words to Jane Wherefore he cannot revoke his Gift and give it afterwards to another Daughter But all the Iustices were of the contrary opinion A Case of Executors IF Executors come to the Ordinary for to prove the Will He ought to prove it ex communi jure And that he may do without great examination of the Witnesses But if other Executors come afterwards to prove a later Will Then the Ordinary ought to be circumspect in the probation of that Will and to do it by proofs For that is de mero Jure And it is the better and of more effect by Atthowe Challoner against Ware A Man makes a Lease for years reserving a certain rent payable at the Feast of St. Michael And for default of payment at the said day and by the space of 40 daies after That
arrear that the Remainder shall be to a Stranger that Remainder is not good Hutton said that in my opinion my Brother Atthow spoke well and so it was affirmed Bateman against Ford. AN action of the Case was brought against Ford who had called the Plaintiff Thief and that he had stollen from him a yard of Velvet and a yard of Damask The Defendant said that he said that the Plaintiff had taken and bribed from him as much mony as he had for a yard of Velvet and Damask and justifies Hitcham said that the Iustification is not good For the words that he justifies do not amount to so much as to affirm a Felony in the Plaintiff where the Plaintiff counts that the Defendant slandered him of a Felony Hutton said What difference is there when you say that I have bribed your Horse and when you say that I have robbed you of your Horse Henden one may take Goods and yet it is not felony Termino Pasc Anno 4. Car. Regis Com. Banc. Norris against Isham IN an Eject firm by Norris against Isham These things happened in Evidence to the Iury. First it was cited by Richardson and Hutton to be Hurtltons Case That an Eject firm cannot be of a Mannor Because that there cannot be an Ejectment of the Services But if they do express further a quantity of acres it is sufficient It was said by Crook Iustice and not denyed That if a Lease is made of 5 acres to try a Title in an â—…eject firm And of the 3 acres he will make a lease But in the other a he will not If the livery be in the 3 acres the other 2 does not pass Part of the Evidence was That the Countess of Salisbury being seised of the Lands in Question makes a Lease of them by words of Demise Bargain and Sale to Iudge Crook for a Month to begin the 29 September habendum a datu and it was deliveted the 3 of September And the same day he bargains and sells the Reversion Davenport Because that no Entry appears by the Lessees by vertue of the Demise he submitted to the Court If there was any such Reversion in the Grantor he bring in possession And this difference was a greed That if one demises Lands for years and Grants the Reversion before Entry of the Lessée The Grant is void As it is in Saffins Case Cook 5. 12. 46. But if a man bargain and sell for years and grants the Reversion before Entry of the Lessee it is good For the Statute transfers the Possession to the use As if a man bargain and sells in fee or for life and the Deed is inrolled The Bargainee is in possession of the Frank-tenement And so it is of a Lease for years which is a Chattell And by Crook In the Court of Wards that very point was resolved Davenport Also there are words of Demise and Bargain and Sale before which the Lessee had his Election to take by which he would As Sir Rowland Heyards Case is But by Hutton and it was not denyed He should be in by the Bargain and Sale before Election For that is more for his advantage Further the Evidence was That George Earl of Salisbury made a Lease of those Lands which were a Mannor And makes a Conveyance from himself for life with divers Remainders and then to the use of the Daughter or Daughters of the said George And the heirs males of thrir bodies the remainder to the heirs of the body of the said George c. and had 3 Daughters to whom the Remainder The first dyed without Issue the 2 d. dyed having Issue male the 3 d. bargains sells all her half part and pur part to Edw. Earl of Salisbury Who now being seised of a third part of the Estate of Inheritance and of the other two parts for his life and the lives of the 3 Daughters suffers a common recovery by the name of the moyety of the Mannor And the doubt was what passed Richardson By that there is not passed but the moyety of the third part Hutton Crook and Yeiverton were on the contrary opinion and said that by that All the third part passed also Yelverton If a man be seised of the mannor of Dale and buys half for life of another in fee and makes a Feoffment of the half of the Mannor The moyety which he had in Fee shall pass And there shall be a forfeiture for no part Which was agreed by the Court. If a man be seised of the third part and grants the moyety perhaps the moyety of the third part only passes But he is seised of all Richardson There are several Estates and moyety goes to that Estate which he had in the Mannor For when I grant more than I can grant that which passes passes Crook I had the third part of a Mannor and grant the moyety of the Mannor all my third part passes But in the Bargain and Sale the words were part et pur part Which as it was passed all And also the Covenant to the Lessor The Recovery was of the half part pur part And by Hutton Crook Yelverton All was intended to be recovered And then the word Moyety carries that tresbien Richardson That Indentures of Covenant much mends the Case Another Question upon the Evidence was Whether when a Bargain and sale is made of Lands And the Bargainee before inrollment makes a Lease for years and afterwards it is enrolled If the Lease now be good Richardson and Yelverton It shall be that although it be after acknowledgement and before inrollment yet it is naught And by Yelverton and Crook it was so adjudged in Bellingham and Hortons Case That if one sells in fee and before inrollment the Bargainee bargains and sells to another And afterwards comes an Inrollment That second Bargain and sale is void And an other Question was Pasc 4. Car. Com. Banc. If one makes a Lease for years by Indenture of Lands which he had not If the Iury be estopped to find that no Lease And by Richardson If the finding that no Lease be subject to an attaint But they should find the special matter And then the Iudges would judge that a good Lease And Sergeant Barkley cited Rawlins's Case Coo. 4. 43. to that purpose Crook and Hutton against him And Crook said That it was adjudged in London in Samms case That that is not an Estoppel to the Iury. Which was affirmed by Hutton And that they may find the special matter And then the Iudges ought to find that it is not a good Lease And Hutton said That there is a difference between a special Verdict and pleading in that case For in speciall pleading and Verdict is confost by all parties That he had not any thing in the Lease And then the Iudges gave Iudgment accordingly The King against Clough IN the case of a Quare impedit by the King against Clough before Richardson shewed how the Quare
impedit was brought by King Iames and Demurrer joyned then and after they demised to the King whereof the Court was not before informed Wherefore although that for the matter they then shew'd their opinions Yet they were all resolved That the Quare impedit ought to abate And that Brownlowe chief Prothonotary had shewed them a Resolution in King Iames's time in this Court by all the Iudges to this purpose and the difference of the Information For after the Demise to the King the information stood As it is so it cannot be aided by the Kings Court Nor is it within that Statute of 1 E. 6. 7. For that Statute is betwéen party and party In debt for Recusancy where another brought an action in Right of the Crown Iacob against Iacob IN Debt The Issue was Whether the mony was paid or not And the venue was laid of the Parish of Ipswich and the return of the Sheriff was of Woolbridge And Hitcham said That there is not any venue And the Defendant upon the Statute if there be any tryall if any part of the venue be laid in the Tryal is ayded But if there be not any part laid then he is not ayded Richardson said If an action of Debt be brought of Trespass done at Dale where not guilty being pleaded the visue is de vicenet de Dale and the return is de Dale That is not good Hiâ—…cham Sergeant affirmed that it was Richardson and Hutton also agreed Nomina Iurata to be good And then what Action soever the Sheriff doth is not material and the Writ is right Hitcham I confess for any man collaterally to inform that there is not any thing of Ipswich shall not be allowed But so it appears to us upon the Record Richardson it may be intended That Woolbridge is de vicenet de Ipswich And adjourned But afterwards it appeared That the Venire fac was of Woolbridge And then all agreed that it was naught And a new Venire fac ought to issue c. Swintons Case SWinton assigns Debt upon an Obligation to another who sues in his name and declares upon an Ohligation of 70 l. And the Defendant pleads non est factum And a special verdict was found That the Defendant was bound to Swinton per quoddam scriptum Obligatorium gerens dat eisdem die anno As the Obligation upon which the Declaration was cujus tenor sequitur in haec verba c. And the Obligation was in 70 l. and that that is the same Obligation which was given in evidence But whether that is the same as it should be which they declare Juratores penitus ignorant c. Davenport for the Defendant prays Iudgment alleges that the Verdict is per quoddam And therfore it cannot be intended to be the same obligation upon which he declar'd For then it ought to be praedict But Hutton and Yelverton thought the Verdict to be good For they found the same date c. But your Question to us is Whether that Variance makes pluralities of Bonds But for the matter of Variance Davenport thought that it is material In the Kings Bench it was one Parryes Case in an Obligation of 500 l. There it was quimpe pro quinque And adjudged to be naught Richardson I confess the Case in H. 6. where it is Wiginti for Viginti and yet good For there is some colour of likeness But if the word be no latine word So that nothing can be known what was intended it is otherwise So one Randalls Case One was bound by these words in quatuor centum libris Whereupon it was doubted Whether it was to be intended 400 l. or 104 l. And it was adjudged naught Vpon which it seemed to be naught here And so seemed Hutton and Yelverton being only present Gammon against Malbarn IN an Assumpsit to pay 34 l. which accrew'd upon several promises First he surmised that one was indebted to him in 12 l. And that he would trust him more The Defendant came and prayed him to trust him and if he would he would pay him the old debt And whatsoever he should be in arrear more if it did not exceed 100 l. he would pay and shews how he afterwards sold to him divers pieces of Flesh at reasonable prices And that he lent him 3 l. which he promised to pay And then he came and requested him to pay the whole 34 l. But he would not pay the 19 l. for the price of Flesh nor the 12 l. c. Henden moved in arrest of Iudgment non Assumpsit being pleaded and found for the Plaintiff because that he does not allege before That the Flesh that he sold amounted to the price of 19 l. And Secondly because that he makes but one Request for the several Debts where it ought to have been several c. Hutton and Yelverton thought all good For the first Because that he refused to pay the 19 l. pro pretio c. But it had been better if he had alleged That the Flesh amounted to such a price But for the Demand that it was sufficiently made And adjourned c. Benson against Sankeridge IN an Assumpsit upon an Insimul computaverint The Plaintiff declares That he accounted for divers sums of mony to him due And that the Defendant was found in arrear as much as he assumed to pay And does not express for what the sums were due And by Richardson therfore naught For such an account for debt upon an Obligation in specialty it is void c. Hutton If he declared That the Defendant being indebted in diversis denariorum summis assumed it is void without shewing for what But here the action is grounded upon the Account Richardson It ought to be expressed in general the debts were for Wares sold c. But otherwise if the Account was for debt upon an Obligation or specialty he recovers double For the specialty remains notwithstanding the recovery in the Assumpsit Hutton We cannot think that it is for any thing but such things which lye in account Which Harvey agreed But the Court commanded to search Presidents Holford against Gibbes HOlford brought an Action upon the Case against Gibbes and his wife who was Administratrix upon a promise of the Intestate which appears in the Declaration that it was 16 years since the promise made And Sir Thomas Crew prayed to be discharged of the Declaration upon the Statute of 21 Iac. cap. 16. But the Court would not discharge him without pleading or demurrer But it was agreed That if upon the shewing of the Plaintiff himself the Action appears to be out of the Statute of Limitations Then the Defendant ought to plead the Statute And he shall be aided by the averment Richardson If the Defendant pleads non Assumpsit and the verdict finds that the Action grew out of the time of Limitation whether it shall be ayded by a special Verdict Crook said Yea But Yelverton seemd not For it is not pertaining to
the Issue Ganfords Case ONe Ganford was bound in an Obligation of 200 l. to Char. Rogers to pay him 100 l. But that was in trust to the use of Mary Watkins during her life and after to George Powell Powell cannot release that bond neither in Law nor Equity during the life of the Wife For then it destroys the use to the Wife As it was agreed But if it was to her benefit solely The Release is good in Equity Woolmerstons Case ONe libells against Woolmerston for the herbage of young Cattel â—…cil for a penny for every one And Hitcham moved for a Prohibition And said that he ought not to have Tithes If they are young Beasts brought up for the Cart or Plough And so it hath been adjudged As if a Parson prescribe to have Tithes for hedgeing stuff he cannot Because that he preserves the Land out of which he had Tithes And then a Parson libells for Tithes of an Orchard for that that it was a young Orchard And the Custome of the place was to pay 4 d. for an Orchard Hitcham said There is not any such difference between old and new Orchards For if the Custome be that he shall pay 4 d. for every Orchard It will reach to the new Orchard And then he libells for a Harth-penny for the Wood burnt in his House Hutton said the Harth-penny c. is more doubtfull For it is a Custome in the North parts to give an Harth-penny for Estovers burnt For which he prescribes to be free of every thing which comes to the Fire And in some parts by the Custome they had pasturage for the Tenth Beast or the tenth part of the Gains which is barrain for the time But he and Yelverton who only were present That no Tithes are due for them without Custome Hitcham they also will have Tithes for a thing before it comes to perfection which would be tithable afterwards But I agrée If he sells them before they come to perfection then the Parson will have tithes But by Hutton and Yelverton There may be a Custom to have every year a penny for them Sed adjournatur c. Viner against Eaton VIner against Eaton Where a Sute was betwéen them in the Spritual Court for striking in the Church which by the second branch of the Statute of 5 E. 6. cap. 4. It is excommunication ipso facto By which he surmised him incidisse in poenam excommunicationis And being granted if c. And Ashley shew'd cause why it should not issue viz. There ought to be a Declaration in the Christian Court of the Excommunication before any may prohibit him the Church Richardson said That their procéedings are not contrary to the Statute But stood with the Statute And it was said by Yelverton It is seen that there ought to be a Declaration in the Spiritual Court But the difference is where it is officium Judicii or ad instantiam partis they will give costs which ought not to be Hutton and Richardson If the party will not follow it none will take notice of it And they proceed to give costs Then a Hrohibition may be granted And if he be a Minister he ought to be suspended for an offence against that Statute And it ought to be first declared and so to excommunication And that cannot be pleaded if it be not under Seal Dyer 275. And after all these were agreed by the Court and no Prohibition was granted Fox against Vaughan and Hall SIr Charles Fox was Plaintiff in a Replevin against Sir George Vaughan and Iacob Hall for taking of his Beasts in Rustock The Defendant was known as Bayliff of Tho. Vaughan at the day quod William Vaughan was seised of the place quo c. And being seised the 9th of Maii 10 Iac. by Indenture granted to Thomas Vaughan a Rent of twenty Nobles per annum out of the place in quo c. to commence after the death of Anne Vaugham for life payable at the Feasts of St. Michael and the Annunciation And if the Rent be in Arrear at any day of payment or fourteen daies after the demand at a place out of the Land scil his Capital Messuage in Orleton Then it should be lawfull for him to distrein And he shews that twenty Marks were in arrear And that 22 Iac. 22 Octob. He demands it at Orleton c. And the Plea in Bar was That the Grantor was not compos mentis at the time Vpon which Issue was taken But it appeared upon the evidence that at the time of the Grant Gaudebat lucido intervallo Whereupon it was found for the Defendant And Sergeant Barkley moved in arrest of Iudgement For that the Demand appears to be after the 14 daies And he took a difference where the Demand ought to be made upon the Land But there it may be demanded at any time And the Distress it self is a Demand As it was adjudged 20 Iac. in Skinners Case But otherwise it ought to be out of the Land Henden objected because the Issue was joyned That cannot be shewed Richardson Although there was Issue joyned Yet it appears that you cannot distreyn without demand if there be not actual demand of the Distress alleged It is illegal And for the matter he cited Maunds Case 7 Rep. 28. And he doubted if such a difference would hold Berkley This difference was taken by me before cited But lecto recordo the Demand is not ex tunc petito But if it be in arrear and required at the Capital Messuage upon which he demanded it does not refer to any place Richardson If there be a nomine poenae then it ought to be demanded strictly at a day And when it is to be demanded upon the Land it may be at any time For that that Littleton sayes That a Tenant is intended alwaies present upon the Land But when the Demand is to be made at an other day it is only to give notice and so it is demandable upon the Land Hutton by that exposition if he does not hit the demand upon the day he shall lose his Rent Richardson He had lost his Distress by that day only but not his Rent For if he demand it after upon the Land he may have an Assise Hutton you would make that partly a Rent-seck and partly a Rent-charge Harvey If the Rent be not gone but that he may have an assise Richardson It is a Rent-charge generally by the clause of the distress And for that he may have an Assise which is a remedy for a Rent-charge as well as a Distress Hutton If you may make it a Rent-seck you have lost the Rent-charge for ever If a Grantee of a Rent-charge or Rent-seck brought an annuity Richardson If he proceed to Declaration he had lost the Rent-charge Et adjournatur Note It was said if one comming upon an Attachment in any Court And the other does not put in Interogatories against him He shall be dimissed with costs and may
appear gratis if he will Warner against Barret ELizabeth Warner libells for a Legacy in the Spiritual Court against one Barret who moves for a Prohibition Because he had there pleaded plene administ and proved that by one Witness and they would not allow it Richardson before the Statute of E. 6. The proper Sute for Tithes was there and they allow one Witness to prove payment a Prohibition shall be granted And he put Morris Eatons Case in the Bishop of Winchesters Case Where it was ruled if the Spiritual Court will not allow that plea which is good in our Law a Prohibition shall be granted as in Case of Tithes And he said that the Case of a Legacy is all one Crook When one comes to discharge a thing by due matter of Law and proves it by one Witness If it be not allowed no Prohibition shall be granted there Richardson Our Case is proof of plene Administ pleaded which goes in discharge But if there be enough pleaded which goes in discharge and proves that by one Witness and not allowed A Prohibition shall be granted Hutton said that properly for a Legacy the sute is in the Ecclesiastical Court although they may sue in the Chancery for it yet the proper Court is the Ecclesiastical Court And they said they used to allow one Witness with other good circumstantial proofs If they be not in some criminal Causes where of necessity there must be two Witnesses In one Hawkins Case Farm or of a Propriation libells for Tithes of Lambs for seven years And there he proved payment by one Witness and a Prohibition was granted for not allowance Yelverton There may be a difference where the Sute is meerly Ecclesiasticall for a sum of mony as for a Legacy there the payment of the legacy is of the nature of the thing And the Ecclesiastical Court shall have Iurisdiction of the proof and matter But if one gives a legacy of 20 Oxen And the other pleads payment of as much mony in satisfaction there they cannot proceed but upon Common law For that that the legacy is altered And if a proof of one Witness is not accepted a Prohibition shall be granted For now it is a legal Tryall 35 H. 6 If the principal is proper for their Court the accessory is of the same nature Also the Sute is commenced for a Legacy and the other pleads plene administ There they proceed upon the Common law For they sometimes take that for Assets which our Law does not take It was adjudged in the Kings Bench that a proof by one Witness of a Release of a Legacy was disallowed a Prohibition shall be granted Crook In this Case a proof of setting out of Tithes by one Witness a Prohibition shall be granted Hawkeridge's Case IT was agréed by all in Hawkeridge's Case That in a forcible entry or Trespass brought against one If the Defendant is found guilty by verdict and before Iudgement the Plaintiff releases to him Because that by that the Plaintiff is barred The King is also barred of his Fine Falkners Case ATthow Sergeant said That if these words were wanting in a Déed In cujus rei Testimon That the Déed is not good And he said that all Covenants Grants and Agréements which came after those words in a Déed are not of force nor shall be pleaded as parcell of the Déed It was observed by the Court That the Wife of a Duke Earl or Baron in all writings they shall be named Ladies But the Wives of Knights shall be named Dames And it was likewise observed that if a Wife of a Duke Earl or Baron takes a new Husband of a more base degrée That she loses her name of Dame or Lady and shall be named in every Writ according to the degrée of her Husband As it happened in the Case of the Lady Johnsons Case IT was said if a Parson leases his Rectory for years or parcel of his Glebe reserving a Rent and dies his Successor accepts she Rent That acceptance does not make the Lease good Because by his death the Franktenement is in abeyance and in no Man And also a Parson cannot discontinue And by consequence That that he did without Livery is determined by his death And it is not like to the Case of an Abbot Prior or Tenent in tayl Joyce Norton and Thomas Ducket against Harmer IOyce Norton and Thomas Ducket Plaintiffs against George Harmer the Vicar of c. In a Prohibition the Libel was for Wood imployed in Hedging and for Fire-wood Issue was joyned that there was in the Parish a great quantity of Land inclosed And that they used to take Wood for Hedge-boot and Fire-boot and they were discharged of Tithes in consideration that he payed Tithes in kind of Hay and Corn c. And it was found for the Defendant Crowley moved That a Consultation cannot be granted for that that they ought to be acquitted of Tithes for those of Common right And for that although prescription was alleged it is nothing to the purpose Atthowe For Fire-wood it was proved that Tithes alwaies were paid Richardson There is no doubt but the discharge also ought to be by Custome and to be grounded upon modus decimandi Yelverton and Crook otherwise that it is not upon modus decimandi But by the Common law And the reason is for that that when a man is Owner of arable Land and he pay tithe-milk and Corn And for that they are discharged of things consumed in the House Which are to make Masters and Servants fit to manure the Land c. Richardson said It is seen that it shall alwaies be discharged in consideration it is alleged how a small consideration will serve Crook It is not modus decimandi but the discharge is for that that the Parson for them had a benefit for he had by them better means of Tithes Hutton If a man had an House of Husbandry and demises all the Lands but the House He shall pay tithes for them absumpt in the House Crook not No profit is made by them to the party but the Parson had a benefit by him And a day was given to search Presidents Bibble against Cunningham BIbble brought an Action upon the Case against Cunningham and declares That there was a Communication between him and the Defendant of the sale of a Banck and an acre of Land And that in consideration thereof and that the Plaintiff would assure and deliver to the Defendant possession of all the Banck assoon as he could and that at all times upon request to be made to the Plaintiff by the Defendant the Plaintiff would become bound in a Statute Merchant to make the Assurance to the Defendant The Defendant promised to pay to the Plaintiff 72 l. at the end of 3 years from Michaelmas next ensuing And that in the mean time for the forbearance he would give after 8 l. in the 100 l. and that he became bound in a Statute Merchant for the
of the Demand cannot be made parcel of the Issue 31 Eliz. rot 1137. Com. Banc. Dennis Varneys Case There the Book was agreed If it be to be demanded generally it may be at any time if it be tunc petit otherwise For otherwise it would be a Rent-charge at one time and a Rent-seck at another And the Distress it self is the Demand As it is in Lucas Case If one be obliged to pay mony upon Demand The Action brought is a sufficient demand And Barkley Sergeant He shews in the Avowry that such a one was seised of 20 acres and grants a Rent out of them and others by the name of all his Lands in Rustock and Ollerton For that he said that Ollerton is not charged Because that it is not pleaded that he was seised of that But the whole Court on the contrary And that it is an usual manner of pleading And that it shall be intended that he was seised of Ollerton First the words are per scriptum c. he granted a Rent and then he pleads that per scriptum suum he gave a power to distreyn And then it shall be taken that it was not made by any other Deed and the Distress given by the second Deed shall not make the Rent a Rent-charge And he cited Buts Case Then if it be a Rent-seck and the Distress gives a nomine paenoe There ought to be an actual Demand and that upon the day as it appears by Maunds Case And Pilkintons Case 5 Rep. 5 Eliz. Dyer If it was a Rent-charge the Distress it self serves for a Demand As it was many times adjudged Secondly The words are If the Rent be in arrear any day of payment or 14 daies after The last instant of the 14th day is the legal time for demand of it And the words existent legitime petit ought to refer to the daies expressed immediately before As 39 H. 6. A man obliges that his Feoffees shall do such an Act si quisuerunt Those words shall have reference to the Feoffées And Dockwrays Case If a Man be obliged that his Children which he now hath so also existent Being words of the Present tence refer to the days now mentioned and otherwise there would be a great inconvenience For it cannot be intended the same tenant to be alwaies upon the Land Barrows Case 20 Eliz. A Feoffment upon Condition to re-enfeoff upon demand at such a place It cannot be demanded without notice to the Feossée For that that he shall not be compelled to be there alwaies expecting And the same inconvenience alwaies would follow If the demand should not be upon the day of payment by which c. Richardson If the Rent had béen granted out of 20 acres in Rustock and then he had granted by another Déed that he should destreyn in other Lands being in the same County or not and is the same That that is but a Rent-seck 10 Assise 21 Ass And the Distress is not but a penalty And if that Rent is granted by one Deed and the distress upon the Land by another Deed If it be not delivered at the same time then there shall be a Rent-charge and there shall be also a Rent-seck And when also it is said that ulterius he grants per scriptum suum and does not say praedict It shall be intended another Deed then without averment that it was delivered at the same time It shall be intended at another time But admit that it be a Rent-charge and that it issue out of Ollerton where the demand of it was Yet he ought to maintain that actually In Maunds Case The distress is a sufficient demand For it is not but to inable him to destreyn and that is where the demand is limitted generally But if a Rent be granted and if it be demanded of the person of the Gruntor he may destreyn Then there may be an actual demand that was adjudged As in the Court 15 Jac. Com. Banc. Iackson and Langfords Case and in one Armerys Case And in another upon the same point So if you will grant a Rent-charge demandable at a special and particular place If it was at another place than the Land charged Without doubt there ought to be an actual demand So if it be upon a special place from the Land charged or demanded for the distress ought to be pursued as the Grant is And that is upon such a demand But where it is restrained by the words of the Grant And the same Law is where you will limit the time of the demand If the Rent be granted payable at such a day and grants over that ad tunc being demanded there a legal and general demand will not serve But there ought to be an actual demand And also it is as much although not in express words for the sence and meaning carries it If it be arrear at such a day existent petit The demand ought to be at the day mentioned before If I be bound in Obligation the Condition to pay mony at such a day being demanded There ought to be a demand at the day of payment or there shall not be a forfeiture And now then there is not a demand at the time so no cause of distress And although the Verdict be found if it be collateral matter yet it will not help For when it appears upon the whole matter that there is not any Title to distreyn the Tryall will not help it And so Iudgement shall be given for the Plaintiff Hutton Harvy and Yelverton agreed That if it was a Rent-seck and the distress a penalty there ought to be an actuall demand at the time limited But in case of a Rent-charge although the demand is limited to be made upon parcell Yet they all held that a generall demand will serve And that shall be at any place at any time For Harvey said There is no oddes whether it is limited to be demanded generally or to be demanded upon Dale If it be material it ought to be observed in the one Case as well as in the other Stanleys Case IN one Stanleys Case in an Action of Battery Sir Thomas Crew moved for mitigating the dammages Where the Iudgement was given upon a non sum informatus and afterwards a Writ of enquiry of dammages But the Court said That in such Cases they never will alter the dammages And Crook said that he was once of Councel in an Action of Trespass pedibus ambulando in the Kings Bench in such a Case upon a Writ of enquiry of dammages 10 l. was given That he could never have a mitigation by the Court c. Outlary NOte it was said That an Outlary in the same term for error may be reversed in the Common Bench Or in any term if it be void upon any Statute As for want of Proclamations c. And an Outlary was reversed for that the Writ was praecipimus tibi where it should have been vobis to the Sheriffs of London
that every Inhabitant should pay 6 d. and some 7 d c. And because that that was not the proof of the suggestion Atthow prayed a consultation and by the Court upon that reason it was granted But it was agreed that if the modus was alleged 20 s. and proved 40 s. it is good because it is but to intitle the Court to the jurisdiction but in the principal case no modus is proved for it is meer incertainty More afterwards Farrington against Kemarre FArrington brought an information against Kemarre upon the statute of 32 H. 8. cap. 4. for selling of Beer for more than the Iustices assest And upon the issue of not-guilty joyned he had a verdict found for him against the Defendant Atthow moved in arrest of Iudgement that the Court had not Iurisdiction for that the Statute 21 Jacob. cap. 4. It is enacted That all informations which may be before the Iustices of peace nisi prius Assize Gaol delivery Dyer and Terminer shall be before them and not elsewhere And he said that an information for this matter may be before the Iustices of Peace c. But he argued upon the statute of 33 H. 8. cap. 10. 17 H. 8. cap 11. that they may inquire of Vagabonds c. Victuals and Victuallers and Inneholders So that the point is whether it was an offence within the Statute of 33 H. 8. For if there be an Information it is given by express words But that statute does not oust the Iurisdiction of this Court but the Subject had his Election until the Statute of 21 Jac. which confirms such Informations So that the question is whether now Brewers be within the word Victuallers or Beer within the word Victuals And I conceive that béer is victuals and Brewers are Victuallers which I prove by common experience and by another Statute There is no Statute in England but make informations against Brewers before the Iustices of Peace And they are all erroneous if they be not within the word Victuallers For by 23 H. 8. A remedy is only given against them by an action of debt bill c. in which no protection Essoyn or wager of Law shall be allowed but at the Courts of Westminster Then they ought to be upon that Statute of 33 H. 8. And Lambert and Crompton are much deceived For it is an article of their Charge to enquire of Brewers But another statute viz. 2 E. 6. cap. 15. The Brewers are called Victuallers The words are If any Butchers Brewers Bakers Poulterers Cooks Coster-mongers c. conspire to sell their Victuals c. And what victuals shall be sold by a Brewer but Beer And there the whole Parliament were mistaken if Brewers were not Victuallers And for that he concludes that because that that offence at the making of 21 Iac. was punishable by Information before the Iustices of the Peace For that by this Statute this Court shall not have Iurisdiction But Hitcham on the contrary The Statute of 21 H. 8. says That for offences of Brewers they shall be inquired of by the Courts of the King That it is meant the four Courts at Westminster is clear And when one Statute is made which confirms a sute at the four Courts of Westminster yet if by a second Statute you will alter that you ought to have precise words And if you bring that within the word Victual you abrogate the Statute by general words against the wisdom of Parliament before which provided that those offences should not be inquirable in the Country and then the Statute of little force Et loquendum ut Vulgus It is improper to say that a Brewer is a Victualler for they are such who sell in specie And in the Country if it he inquired whether it be an Alehouse or a Victualling house It is said that this is he who sells victuals which is for the sustenance of a man by the Statute of 2 E. 6. you will say a Brewer there to be a Victualler for in every Statute the intention ought to be respected For if it goes to Cost ermongers it is more clear in reason that Brewers shall be within that and Corn and Beer are the chief things which conserve a Common-wealth And for that within And the Statute extends to them for conspiracy for inhauncing the prizes For they take their Courts to be within the Courts of the King For those words were not explained until Gregories Case Co. lib. 6. And being one time within their charge they observe their old tract Henden argued and divided his matter into thrée parts First He shewed how that Statute consists upon the Statute upon 23. 33. 37 H. 8. And it is clear upon 23 H. 8. what informations ought to be in those Courts 7 Eliz. Dyer 23. b. 37 H. 8. repeal 33. Only for a particular thing viz. of the time to enquire of those Offences by the Iustices and makes them inquirable at the Sessions Secondly Whether the Statute 33. took this thing from 23 H. 8. And he thought it did not Neither by the intention of the scope of the Act nor by the words First the intention of the Statute was not to inlarge the power of a Iustice of Peace but to provide that some things should be duly executed Which appears first by the Title and then the Preamble And if they have not particular Statutes they cannot meddle with that by the general words By which it follows that they had not power for Victuallers Now the 35 H. 8. cap. 3. provides that Victuals shall be sold and at what prices then when that Statute of 33 H. 8. came within 8 years certainly there was a respect to that And the Statute before concerning Victualls only is that Victuallers might contain Brewers For to say generally that Victuallers should be Brewers shall be absurd 8 Rep. Bonhams Case A Brewer is a Trade and may be intended under general words But it shall be alwaies secundum subjectam materiam As some Statutes which punish the selling of Victuals at anj unreasonable rate and Beer there is not Victual And by 2 E. 6. cap. 15. There is not an express name of a Brewer Which imports that it was not contained within the general word Victualler 2 E. 3. 6. Where there is a Common price for certain things to be sold at reasonable prices Where Brewers c. are named 28 H. 8. Hostlers Brewers and other Victuallers c. Then these Statutes prove that you ought to have Brewers expresly named If you will have them taken as Victuallers But posito that Brewers are within the general words of 33 H. 8. yet the power of this Court is not taken away by the Statute of 21 Iac. In the Kings Bench. An Information was upon the Statute of Vsury which was inquirable before the Iustices of Peace at the time of the making of 21 Iac. And the Question was Whether Informations are taken by 22 Iac. in Case of Vsury from the Courts
to be done every such assurance as the Council of the Obligee should devise when he should be thereunto required And it was shewn by Ward That the Obligee made such a request scil That the Obligor and his wife should levy a Fine If that Request were sufficient was the Question Hutton I think that the Request is not sufficient Because it is not pursuant according to the Obligation Richardson I think although the request be void for the wife and that she is not bound to make an assurance Yet the Obligor is bound to do it For against him the Request is good enough Thompson against Thompson IT was said by Hutton In debt against Executors if the Plaintiff had Iudgement against the Defendant and sued a levare fac de bonis Testatoris If the Sheriff upon that return a Devastavit the better form is upon that to award a scire fac against the Executor before that a fieri fac shall issue of their own goods For that writ of Execution is warranted by the first Iudgement which was but of the Goods of the deceased But now if there be issued a fieri fac de bonis testat si habuerint et si devastaverint de bonis propriis Then I will agree that upon that shall issue a Capias against the Executors ad satisfacieudum Dixson and his Wife against Blyth IN this Case a Question was demanded by Atthowe If a man seised in right of his wife leases for life the Remainder over in Fee And afterwards he and his wife recover the same Land in a Writ of Entry in the post against the Lessee for life If the Wife by that shall be remitted Hutton seemed that she shall be remitted As well as where a Feoffment is made to Baron and Feme For that Recovery countervails a Feoffment and no laches shall be adjudged in the Wife For the purchase of the Writ shall be adjudged the Act of the Husband only and not the Act of the Wife But it is good to be advised of that for peradventure she shall be estopped by the Record Bromefields Case IT was agreed by all the Iustices That if Tenant in tayl by Indenture upon consideration of mariage covenant with an other that certain persons should be seised to his use for term of his life and after his decease to the use of his Son and Heir apparent That by that Covenant there is not any use changed unless only during the life of Tenant in tayl Nortons Case before FInch Recorder said de comuni jure for Estovers burnt in an house tithes ought not to be paid by the Common law there was not any tithes paid for wood And although the Statute of 25 E. 3. gives a prohibition for timber yet Underwoods were discharged of tithes See Doctor and Student 171. It is express that Estovers are not tithable because they are not renewing every year and it is parcel of the Inheritance for to destroy all the underwoods is waste And there is another case put where tithes of wood had not by the custom been paid neither ought they to be paid in law or conscience But that is not to be intended the conscience of every particular man Dawleys Case was resolved for the Wilde of Sussex and Michaelmas 13 Iac. Banc. Roy. in the case of Porter and Dike for the Wilde of Kent of the same prescription resolved to he good And so is the common experience that a whole County may prescribe so And the reason is for that that by the Common Law it was not due but by the consideration of Winchelsey Linwood 104. It was ordained to be paid For then the prelates imputed a great pestilence that then was for the negligence of paying tithes and appointed tithes of wood And the Commons were desirous to have the Statute of silva c. otherwise explained than the Clergy declares it For they say that they ought not to pay tithes of any wood that is of the growth of 10 years Hutton Wood is tithable in their nature and then there may be a custom to discharge them And the case of Harthpenny cannot be answered for if he sues for the penny a prohibition shall not be granted quod concessum fuit Crook and Yelverton But of things not tithable tithes of them cannot be sued without alleging a custom Crooke It is known that Harthpenny is good by prescription This Case is when there is not land belonging to the house so that the Parson is not answered for his tithes another way But when there are ten servants kept for the maintaining it Then by the Law of the land it appears that tithe ought not to be paid although custom had been alleged it is nothing to the purpose as if a custom is alleged to pay 4 d. for every acre in discharge of tithes and the verdict finds 3 d. no consultation shall be granted And so for wood to fence the ground or dry cattel to manure the ground Although custom be alleged there in discharge of it and found against the party yet no consultation shall be granted Hutton the herbage of barren Cattel is tithable because there is a custom which discharges those which are for the Cart. And he said that the Custom only makes that legem terrae And he cited Doctor Graunts Case He libels for tithe of an house and the party brought a prohibition and alleged modus decimandi c. And it was alleged in arrest of Iudgement as houses were not tithable de communi jure and yet a consultation was granted And there Cook put this case which I do not remember in the printed book that one libelled for tithes of trees and custom alleged and there was found no such custom in discharge yet it was ruled that no custom was granted Browne against Hancocke BRowne brought an action upon the case upon an assumpsit against Hancocke and declares that whereas the 10. of May 16 Iac. there were some controversies between Charls Nichols and the Brother of the Defendant concerning arrerages of rent and it was desired that Nichols would part with his term And 19 l. and a cloak and a gelding were offered to the lessee for his term which he refused Afterwards the Defendant in consideration that the Plaintiff would labour with Charles Nichols to take the offer and make an end between them Assumed that whatsoever the Plaintiff undertook for the Defendant he would perform and also save him harmlesse for any thing that he should doe in that businesse and then he said that he procured Charles Nichols to assign his term and to accept the cloak and gelding which the Defendant did not perform and allso that the Plaintiff covenanted with Charles Nichols to perform the agreement and obliged himself to that in 50 l. And that afterwards Charles Nichols filed a bill of debt for the money whereupon he compelled him to pay it and upon non assumpsit pleaded it was found for the Plaintiff and
And for these faults and because it was Body for Body It was ruled that the Indictment was insufent Braces Case If a Feme sole Executrix of a term mary him in the Reversion and dies the term is not drowned but the Administration of it shall be committed Otherwise perhaps if she had purchased the Reversion And it was the Case of one Owen That if the Debtee mary the Debtor That the Debt is not gone but the Administrators of the Feme shall have it The Marquess of Winchesters Case THe Marquess of Winchester prayed a Prohibition and the surmise was that whereas the late Marquess his Father had made the three Lamberts his Executors which were his Bastards He also devised that they should sell as much of his Lauds as should amount to 100000 l. and does not limit any imployment of the mony inde proveniente And also that whereas by the Statute of 34 H. a man de non san memori is unable to make a Will of his Land And that the Marquess at the time of the making of the Will was not of san memori And it was held by the Court that although Land be not a testamentory thing whereof the Spiritual Court ought to intermeddle with Yet being conjoyned in the Will with the Goods they cannot do any thing with the one without the other Therefore a Prohibition shall be granted Because that for the non compos mentis it is more fit to be tryed in our Law And if cause be a Consultation shall be granted for part scil his Goods again And such a Prohibition was in Case of Lloyd against Lloyd Munday against Martin MUnday brought an Action upon the Case against Martin And declares That whereas at the request of the Defendant in November delivered to him and his Father 30 Kerseys for which the Defendant assumed to pay 40 l. to the Plaintiff The one half in hand and the other half a year after Vpon non â—…ssumpsit pleaded It was found by verdict that the delivery was made to the Defendant in August 31 next before the November mentioned in the Declaration The Question if that will maintain the count or not Ward That it will for the delivery in August is the delvery in November As upon payment of mony upon an Obligation before the day is a payment at the day And then if he does not pay it within a year after November he does not pay it with a year after August Richardson on the contrary For that cannot be intended the same promise For upon such a variance the Defendant may wage his Law And so it is if a man declares upon Debt of one day and the Déed bears date at an other day Also it is that the delivery was to the Defendant and his Father and it is found that it was to him only So that that cannot be intended to be the same Consideration Vpon another Cause upon the Declaration he cannot have Iudgement For it is in consideration quod deliberaâ—set which is in the Preter tence and therefore naught As 10 Eliz. Dyer 272. In consideration that he was bayl for his Servant the Defendant assumed Not good 37 38 Eliz. Between Gereny and Goteman in Consideration quod dedisset duas c. he promised to pay 10 l. at the day of his mariage Held no Consideration Crook To the Case of the variance of the date contained in the Deed. There it varies from that which is his warrant And the date in November cannot be the date in August Nor on the contrary The delivery raises the Consideration and the time is not material as to the Deliberaâ—set It was one Warthingtons Case That where in consideration that you will stand my bayl I will save you harmless A good Consideration Hutton For the delivery the time of the contract is not materially necessary to be shewn for certain But the day of the payment ought not to be mistaken as it is here For if the delivery was in November the payment ought to be in November too But it appears by verdict That the delivery was in August And then so the payment ought to be And then consequently the day of payment is mistaken Yelverton The Plaintiff cannot have Iudgement For then he might charge the Defendant again upon a delivery in August Atthowe If upon an Obligation the mony be paid before the day of payment It is a payment at the day if the Obligee dies not in the mean time But I do think that if he dies before that payment cannot be pleaded in an action of Debt brought by the Executors against him Sed adjournatur Sir Iohn Spencer against Scroggs SIr Iohn Spencer brought Debt against Scroggs who pleads per minas The Venire facâ—… was returned and the Iurors appear And the Array was challenged by the Defendant for Cosinage between the Sheriff and the Plaintiff Whereupon a new Venire fac was awarded to four Coroners who return the Venire fac and subscribe A. B. C. D. Coronatores And in the Habeas corpus A. B. C. D. only And Iudgement was given And upon that Error It was argued that does not lye First For that it is aided by the Statute of 18 Eliz. That no Iudgement shall be reversed after Iudgement for an insufficient return Also as it appears by 8 H. 6. Such a Return at the Common law made by the Sheriff shall be good although he was not called Sheriff But that Law was afterwards changed And only Sheriffs and Bayliffs of Franchises was provided for By which Coroners were not in Hutton The Statute of 18 Eliz. extends to insufficient matter of the Return But does not intend to toll the Statute of York He said also that he thought it was not requisite at the Common law for the Sheriff to put his name of Office upon the back of the Writ But he demanded how it might appear that they are Coroners if they are not named so Crook It hath been adjudged that Coroners ought to put their name of Office And their names are parcel of the Return So that defective insufficiency is remedied by the Statute of 18 Eliz. Richardson Without putting their names it does not appear that they are Coroners Luvered against Owen HE declares upon the Statute of E. 6. for tithes and an exception was taken For that that it was said tam pro dom rege quam pro se ipso But it was affirm'd to be good For the King is to have a Fine Hutton If an Action be brought upon the Statute de scandalis magnatum The Plaintiff may declare tam pro domino Rege quam pro se ipso And so upon the Statute of Hue and Cry It was objected that one Tomlins Case was adjudged to the contrary But that Case was Because that he demanded in this manner and the Statute when it says that he shall forfeit it shall be intended to him who had the loss So it could not be demanded for the King
And at length it was adjudged that the Declaration was good Harding against Turpin IT was agréed by Hutton If a Copyholder makes a lease for years to commence at Michaelmas it is a forfeiture presently None gainsaid it Hutchinson against Chester AN action upon the case was brought against Chester And declares how the Plaintiff was in doing of certain businesse for the Defendant The Defendant said to him Do it and I 'll repay you whatsoever you lay out And shews that he had expended 4 l. and does not shew in certain and particular circa quid And for that cause it was held naught Read against Eaglefield IN debt by Read against Eaglefield and others who were Sheriffs of Bristowe The case being that they being Sheriffs took the Plaintiff by a Capias ad satisfaciend and detained him in prison untill the party Defendant and now Plaintiff paid the money to the Sheriff It was held that that was contrary to his warranty which is ita quod habeat denarios hic in curia And for that he did not so he is chargeable to him that was in Execution Stone against Walsingham STone libels against Walsingham in the spiritual Court and he pleads an agréement that for five years he ought not to set forth his tithes but to pay for them 6 s. 8 d. upon which matter a prohibition was granted Richardson you ought not to have a prohibition A lease for tithes ought to be by deed but by way of contract it is good for a year only without deed Vpon the Book M. 26 H. 6. But for 4 or 5 years by parol Such an agreement is not good Richardson May a Parson bargain and sell his tithes happening 4 years after by parols Yelverton It had been so adjudged in many Cases in the Kings Bench and the difference is where it is by way of demise and where by discharge Hutton The reason why it is good for years is for that that the contract moves severally But by way of deuise between Parson and Parishioner it is not good And Weston and Biggs case where it was resolved If there was an agréement made between Parson and Parishioner for discharge for tithes for years it was good without deed otherwise if it be for life Davenport not Richardson Then for more than a year that contract is void And you cannot bargain and sell the profits of beasts which a man hath not in his possession now but for those which he hath in his possession he may sell any profits Quod concessum Intr. 4 Car. rot 670 or 870. Litman against West LItman brought an action upon the case against West for words And he declared he being an Attourney c. and colloquio habito between them concerning his office The Defendant spoke these words He is a Cozener and hath cozened me of 20 s. And Serjeant Henden objected that the words were not actionable For that that they are too general And although they had Communication of his Office As Attorny Yet when the words were general and might be applyed as well to other things as such as touch his place yet for that c. As if one says of an Attorney Thou art a Common Barrettor Is not actionable And it was adjudged where one said to a Wheeleright Thou art a Cousener and hast cousened me of a pair of Wheeles Is not actionable And Sir Wil. Fleetwoods Case One said of him He is a Cousener and hath consened me in entring the Kings Accounts So here he might cousen him of 20 s. twenty ways and not as Attorny Richardson said the words were actionable Some words spoken of some men would bear an Action although the same words spoken of another would not As the Case of an Attorny especially as the Case is laid here And he had spoken of him as an Attorny Then it ought to be taken that he was a Cousener in his profession If one said of an Attorny Thou art a Cousener and hast delivered cousening Bills c. If it had been laid here that he had been an Attorny for the Defendant It would be actionable And this Case is more strong than Birchleys Case in Coo. lib. 4. One said of Chomely Recorder of London That he could not hear but of one side of his head And that was adjudged actionable And that being spoken of an Attorney there it would bear an Action One said in the North Country That one was a Daffidowndilly and adjudged actionable Because that the word there used expresses an Ambidexter being a flower of party colour Hutton said That the action would lye In one Gardleys Case who was an Attorny One said of him he was his Attorny and he had cousened him So of a Goldsmith Thou hast consened me and sold me a Saphire for a Diamond These words are not actionable because that the Goldsmith himself might be deceived in the stone And here these words spoken of an Attorny cannot be otherwise but to disgrace him in his profession An action in the Kings Bench. Thou art a cousening Knave Coroner and adjudged actionable One said of a Lawyer He hath no more Law than an Horse an action lies for both are applyed to his profession Yelverton agreed that the Iury had found that the words were spoken of him as Attorny For they have found the words in the Kings Bench. The Case was An Inne-keeper and an other were in communication and he said to him No man comes to thy House but thou cousenest him And adjudged actionable And so Iudgement was given for the Plaintiff Middleton against Sir Iohn Shelly MIddleton recovers in Debt against Sir Iohn Shelly and had Execution And afterwards Sir Iohn purchases the Land of the Plaintiff And long after the Execution was sued by Elegit and that land extended But before Livery by any the Plaintiff dies Yet the Sheriff returns that he delivered the Land Hutton We will not credit that he is dead But you bring a Writ of error Yelverton agreed The return of the Sheriff Richardson the return of the Sheriff does not prejudice a third person although it concludes the parties And if the Execution was made if the party brings an Ejectione firm Whatsoever the Sheriff returnes his proceedings ought to be proved legal See if the Sheriff deliver possession where the partie is dead if any thing lies It was urged to have a writ of restitution But where the Sheriff gives possession contrary to the rule of the Court. Coventries case IN Coventries case before Ashley brought a Copy of the sentence given in the high commission Court which was that the parties shall be excommunicated and be fined 30 l. and imprisoned Whereupon he prayed a prohibition Richardson If they had gone but to excommunication they had been well Yelverton Iustice they have power by fine and imprisonment in some cases but here where the party grieved may be fined at Common law not For if the party be fined in the high Commission and be
that there was a conference of a Bill of Costs laid out by him c. and does not say laid out by him as Attorney And the whole Court seemed to be of the same opinion But it was adjourned If it had been said that habente colloquio primo die c. he spoke it should have been good But habito implies time past Hitcham against an Attorny of this Court HItchsm Chief Sergeant of the King brought an Action upon the Case against James Cason an Attorney of this Court And he declared that he was now Sergeant to the King and so was to his Father and that the King made him Iustice of Peace for his County of Suffolk and that he for many years theretofore and yet did exercise the Office of a Iustice of Peace And that the Defendant on purpose to disgrace him and to make him to be removed from being a Iustice of Peace in the Court openly spoke these scandalous words In a matter wherein I was questioned at the Quarter Sessions in Suffolk Mr. Sergeant Hitcham being there was Witness Judge and Party and did there oppresse me And moreover he said In Articles there presented against me he did me injusticâ—… and hath contrived those Articles And moreover he said Mr. Sergeant Hitcham bound my Son Finch to the Quarter Sessions and there indicted him and was Witness Judge and Party and counts to the dammage of the Plaintiff 1000 pound The Defendant to some of the words in the Declaration pleads not guilty to the residue he justifies and says that the Plaintiff was made a Iustice of Peace 1 Apr. 1 Car. And as to the words In a matter wherein I was questioned in the Quarter Sessions in Suffolk Mr. Sergeant Hitcham being there was Witness Judge and Party And all but the last words That the Plaintiff at the Sessions 8 Sept. 2 Car. at W. in Suffolk quosdam falsos Articulos scribi fecit exhibuit et produxit And recited all the Articles being in number eleaven Hil. 5 Car. Com. Banc. And that after the exhibiting the Articles in open Court The Plaintiff there said that they were true and counselled the Clark of the Peace to read them and then said he should be tryed upon them But the Plaintiff denied that and said that he would proceed now no further upon them but took the Articles and carried them with him by which the Court was dispossessed of them And would not proceed against him upon them And upon the last words scil Mr. Sergeant Hitcham bound my Son over to c. He said that his Son was bound to appear at the Quarter Sessions And caused an Indictment to be preferred against him Because he being elected Constable refused to take his oath or to execute his office And upon that Indictment the Sergeant gave evidence to the grand Iury and they found the Indictment And upon that Iudgement was given that he should be amerced that estreated And upon this bar the Plaintiff dumurred Finch for the Plaintiff And first he answers to the Exceptions which were taken before to the Declaration c. First that it did not appear by the Declaration that the Plaintiff was Iustice of Peace at the time of the speaking of the words To that he answers That is sufficient in the Declaration to shew that he was a Iustice of Peace at the time For it is per multos annos jam ultime elapsos et adhinc est and that the Declaration coming in M. 5 Car. If it was per multos annos ulterius c. It was at the time of the speaking For it was Paululum before the Action commenced And also the Defendant says in his Bar that the King made him a Iustice of Peace and that he was not a Iustice of Peace at the Sessions And although that he was not a Iustice of Peace at the Parlance Yet the words are actionable which charge him with Injustice when he was c. Secondly It was objected that part of the words were not alleged to be spoken of the Plaintiff But the Declaration is That in a matter c. Mr. Sergeant did c. which is directed to the first words But the subsequent words are induced such like afterwards Ad tunc ibidem the Defendant said And he did me injustice c. And although the first words were laid to be spoken of the Plaintiff yet the last words not But and he did me c. which ought to be taken That they were spoken of the Plaintiff For it is ad tunc ibidem upon the same Communication And also the Defendant cleared that For he justifies those words as spoken of the Plaintiff Thirdly It was objected that the words themselves are not actionable In Actions for words it is as in Wills The best argument will be from the words themselves yet we can borrow light from other words in the same Will Which I will recite The proverbial Verse Quid de quoque viro cui dicas saepe caveto Quid c. Some words declare all malice which are not actionable of some persons they may be spoken of quo some only actionable being spoken of such a man 4 H. 8. The Duke of Buckingham hath no more conscience than a Dog Those words upon the Statute of Scandala magnatum are actionable 10 Iac. the Earl of Northamptons Case It was resolved in the Starchamber that to publish false rumors of any of the Peers of the Realm was punishable at the Common law And if one heard such words and reported them again it is punishable But not in a Common persons case But this difference there was resolved That to say of Commons person generally that he heard so is not actionable if he name the person If one says of a Merchant he is a Banckrupt it is actionable not of the Defendant If one said of the Defendant he is an Ambidexter it is actionable not if of a Merchant It is a general rule that slander of every man in his profession is actionable Much more of the Plaintiff in his profession being a Iustice of peace For the words themselves if they be taken together or asunder are actionable The ground of the speaking was that there was a communication of Injuries done to him by the Plaintiff but take them asunder Trin. 7. Car. Com. Banc. and none of them but with the circumstances here will bear an action First that he was a Iudge Witness and party That is against the Law to be Iudge and party They who are Duellists are Iudges and parties and Executioners Iudge and party is as much as to say he is partial and he did oppresse me That shews that he was not Iudge and party fairly But they have objected that this word oppresse is incertain for he may be oppressed with overwait or hunger and cold But this case cannot have any such such sence But here it is intended the perverting of Iustice But this case was
offences Therefore his sentence was That his Name should be put out of the Roll and thrust over the Bar and committed to the Fleet Which was executed accordingly 20 H. 6. 37. 41. E. 3. 1. Which Cases prove the same Iames and Thoroughgood against Collins IAmes and Thoroughgood brought Trespass against Collins And the Case was this A man makes his Testament and gives to 5 men their heirs and assigns certain Houses in Fleet-street c. All of them to have part and part alike and the one to have as much as the other And whether the Defendants were Iointtenants or tenants in Common was the Question and it was adjudged and resolved that they were Tenants in Common And the same Case in 2. 3 Phil. Mary in Bendlows Reports is adjudged so And also in Lucan and Locks Case in the Kings Bench It was afterwards remembred and agreed to be good Law Ratcliff Case Advise to two and his Heirs in Ioynt-tenency by the whole Court against the opinion of Audley It was said by the Court that an Officer of the Court ought to be answered in any action de die in diem Quod nota c. Beguall against Owen BEguall brought a Writ of Partition against Owen before the Iustices of Assise at the grand Sessions in Anglesey And the Defendant pleaded the general issue The Plaintiff prefers a Bill in English and says that Owen is Tenant in Common with him and that divers of his VVitnesses which can prove his Title are so aged that they cannot come to the Sessions and desires a Commission to examine the Witnesses concerning the Title in perpetuam rei memoriam And Henden moved for a Prohibition For that that Cause would be dangerous for the Subject that such Testimonies taken in his absence should be for tryal of his Title Secondly That that examination before the Tryal is against the Statute of 26 H. 8. And although they have it in Chancery yet it is not so here But it was denied by the Court For there was never seen such a President Of a Prohibition to a grand Sessions And by Yelverton They have it in Chancery and if it be not prescribed in what manner they shall have it it should be as in the Chancery Hutton That Commission is not prejudicial to the Subject although a Prohibition be grantable For such Testimonies are not used but after the Witnesses are dead And a man cannot preserve them alive and perchance his Title rests upon their Testimonies Iane Heeles Case IAne Hee le Administratrix of her Husband brought an action of Debt upon an Obligation made to her Husband the Testator The Defendant pleads a Recovery by the Testator upon the same Obligation and that he was taken in execution and that the Sheriff suffered him voluntarily to escape The Plaintiff replies Null tiel Record of the Recovery Vpon which there is a demurrer Davenport That the Iudgement was but a conveyance to their matter in Bar and it ought not to be traversed But it was said by the whole Court That the Iudgement in it self is a good bar if it be not reversed 6 Rep. 45. Higgins case The execution upon that is not but a consequence upon the Iudgement And without the Iudgement Escape is not material for to make the traverse good And so Iudgement was given for the Plaintiff Issues If the King by his Letters Patents grant to the Corporation all Issues within any places The issue that the Corporation it self shall forfeit shall be excepted by intendment of law For otherwise it would be a defrauding of Iustice For then the Corporation would never appear Which note in the Case of Dean and Chapter of Ely Provender against Wood. PRovender brought an action upon the case against Wood For that the Defendant assumed to the Father of the Plaintiff upon a mariage to be solemnised betwéen the Plaintiff and the Daughter of the Defendant to pay him 20 l. And it was agreed by Richardson and Yelverton nullo contradicent That the action well lies for the same And the party to whom the benefit of a promise accrews may bring his action Mrs. Rowes Case MIstris Rowe was arrested by a capias corpus ad satisfaciendum by a Bayliff in Middlesex within the Bars in Holborn which is within the liberty of London And Hitcham the Kings Sergeant prayed a Supersedeas For that that the arrest was false And the Court agreed that a Supersedeas cannot be granted For a Supersedeas it cannot be alleged Executio erronice emanavit but there the Execution is well granted And if it be returned by the Sheriff generally It ought to be intended well served although that the Affidavit be made to the contrary But in this case a Corpus cum causa shall be granted Booth against Franklin BOoth Farmor of a portion of Tithes for 5 years without Deed demises a Farm which he had in the same Parish to Franklin for years and afterwards he libells against him for tithe of that Farm And Franklin said he was not Farmour And Henden prays a Prohibition for that First That the Lease for Tithes is without Deed but he may be discharged of his own Tithes without Deed As was adjudged before in this Court Secondly the Lessee is not to pay tithes for that Farm For although the Parson makes a Lease of the Glebe for years he paid tithes But if a Layman who had the impropriation leases the Glebe the Lessee does not pay tithes But the Court denied the case of the lease of the Parsonage impropriate And said that the case of Perkins and Hinde was adjudged to the contrary in that very point And also if he purchase other lands in the Parish which are discharged of tithes in his hands and he demises them yet the Lessee pays him tithes And the opinion of the Court was If one contract with the Parson for discharge of the Tithes of his lands for years and demises his lands to another yet he shall not have tithes but the discharge runs with the land But if one take a lease of his Tithes by deed and makes a demise of his land he has tithes of the Lessee And the direction was that the Lessee of the Farm ought to shew expresly in the Ecclesiastical Court that the Farmour had not a Lesse by Deed and a Prohibition was granted And it shall be admitted that the words of the libell being Firmator conductor occupator was good Ralph Andrews against Bird. ANdrews brought an action upon the Case against Bird and declares that Bird sued a Trespass in this Court against him and upon not guilty pleaded the issue betwéen the aforesaid Ralph Andrews and Robert Bird was tryed at the Assises c. And that there Andrews shew'd in evidence a Deed of feoffment concerning his Title and the verdict passed for Andrews And afterwards Bird spoke these words scilicet That Andrews procured the Deed to be forged And upon not guilty pleaded it