shall it be in the case Doderidge Justice the Servant may have the Action also If the Servant be robbed of wares the Master or Servant may have an appeale 8. E. 2. Tit. Robbery two joynt Merchants one is Robbed both shall joyne in the Action and may also joyn in the appeal But it may be objected as Whitlock Iustice did that the Master is not Hospitans I say this is to no purpose A man put his Horse in the Stable and before he goes to bed or lodging the Horse is gone he shall have an action although he did not lodge there For the word transeuntes although he be at the end of his Iourney yet it is within the custom and he shall have action And by Crew if I send cloath to a Taylor and it is stoln from him the Taylor shall have an action of trespasse or the Owner Jones the case of Hue and Cry is a more stronger case then this is for there the Servant ought to swear that he is robbed and yet the Master shall have an action And for the word transeuntes all agreed that although he be at the end of his journey or at an Inne in London yet he is within the remedy of this Law And if a man stay in an Inne a moneth or a quarter of a year shall not he have an action if he lose his Goods Doderidge agreed that if a man be boarded in an Inne and his Goods are stoln he shall not have an action upon this Law And notwithstanding this objection judgment was given for the Plaintiff upon the Verdict Trin. Term 2 Car. In the Kings Bench. Sir William Buttons Case SIr William Button a Iustice of Peace brought an action for these words Sir William Buttons men have stoln Sheep and he spake to me that I should not prosecute them and it seems that the action did not lye because Words Sir William Buttons men have stoln Sheep and be spake to me that I should not prosecute them Sir William did not aver that he is a Iustice of Peace and it doth not appear in what County the said Felony was done 36 Eliz. One brought an action for these words A. is a cosening fellow and the greatest Pickpurse in Northamptonshire and there is not a Purse picked within 40. miles of Northampton but he hath a hand in it And the action did not lye because he did not aver that there were Purses cut Jones Iustice put this case One saith that A. is as strong a Thief as any is in Warwick Gaol he ought to aver that there is a Theef in Warwick Gaol or otherwise they are not actionable Doderidge put this case There is a nest of Theeves at Dale and Sir Iohn Bridges is the maintainer of them these are actionable because it implies maintenance Note that it appeared upon a motion which the Attorney-generall made against one Lane who is a Recusant in Northamptonshire that a Lease for years made by a Recusant of his own Lands after conviction if it be Bona fide will bind the King but if it be upon fraud and covin then it will not and Whitlock said that it is a common course for Recusants to make Leases after their Indictment and before conviction The same Term in the same Court The Case of the Major Bayliffs and Jurates of Maidstone IN a Quo warranto depending against the Mayor Bayliffs and Iurates of Maidstone in Kent Serjeant Finch of Counsell with them of Maidstone put the case briefly in effect thus In the Quo warranto against them it was ordered by the Court that they should have day to plead untill afornight after Trinity Term and the truth was that they had not pleaded accordingly wherupon Iudgment was entred in the Roll and the Writ of Seisin awarded and execution therupon and afterwards by a private order in the Vacation by the chief Iustice and Iustice Jones it was ordered that the Iudgment should be staid and the truth was that it was never entred amongst the Rules of the Court and therfore he prayed that the Iudgment might not be filed but that the last order might be observed and that they might amend their Plea Hendon Serjeant on the other side said that it could not be for by the Iudgment given the King was intitled to have the profits of Franchises which he shal not lose he cited the case which is in F. N. B. 21. Error in B. R. cannot be reversed the same Term before the same Iustices without a Writ of Error but otherwise it is in C. B. and he said that the same course was observed in Eyre there can be no pleading in Eyre after the Eyre determined and upon this he cited the case of 15 E. 4. 7. before the Iustices in Eyre if the Defendant does not come the Franchises shall be seised into the Kings hands nomine destinctionis and if the party who ought the Franchise doth not come during the Eyre in the same County he shall forfeit his Franchise for ever so here after Iudgement entred there can be no plea per que c. Finch we have order from the Court for stay of Iudgement here no perfect Iudgement was given and this is not without president and he cited one Chamberlains Case where the Iudgement was nigh to perfection c. but he did not put the Case Creve ch Justice in this case there was the assent of the Attorney generall who prosecuted the Quo Warranto and so the cases put by Hendon to no purpose Jones upon F. N. B. 21. J. took this difference true it is that the Kings Bench cannot reverse a Iudgement although it be in the same term without a Writ of Error but this is where error lies in Where the Kings Bench may reverse its owne judgmeÌ„t without Writ of Error and where not the same cause in the same Court as upon outlawry but if no error lies in this Court for the same cause but in Parliament then the Kings Bench may reverse the Iudgement without Writ of Error being the same term And the Iudgement here was ever of Record for the Roll untill it be fixed amongst other Rolls is no Record And for the Case of 15. E. 4. 7. it is not like our case in reason for when When a Roll â—s become a Record the Eyre is determined the power of the Iustices in Eyre is also determined but it is not so here for the Iustices have power from Term to Term But Noy argued further for the King that it is a Iudgement of another Term and Execution awarded upon it and said that it is without president that now it should be avoyded and upon the awarding of execution the King under his seal hath averred that judgement is given which cannot be falsified and for Chamberlains Case he said that there was an assent in it Doderidge the Question which now is moved is but this whether a Iudgement entered in a private Roll
est rerum omnium vendendarum mensura Bracton 117. 18 E. 3. Hollinghead 109. 50 E. 3. Rot. Pat. Memb. 7. And for transportation 17 E. 3. 19 E. 3. Rot. Pat. 24. De monetis non transportandis 19 R. 2. Rot. Pat. The Dutches of obtained licence to melt Coin to make Plate And divers of the Defendants were within the Kings generall pardon but in as much as they pleaded it in their Rejoynder and not in their answer as it ought to be the Court over-ruled their Plea so that they could have no advantage therby But in as much as they were strangers and not coâ—usant of our Laws and relyed only upon their Counsell the Court had consideration therof in their censure Hillary 17 Jac. In the Kings Bench. Serle versus Mander SErle brought an action upon the case against Mahder for these words to Words I arrest you upon Felony wit I arrest you upon Felony and after Verdict for the Plaintiff it was moved in Arrest of Iudgment by Richardson that the words were not actionable for he doth not say that the Plaintiff had committed Felony But it was rescived by the Court and so adjudged that the action lieth The same Term in the same Court A Iudgment was obtained against one of the Servants of the Lord Hay Iudgment against a Defendant when beyond Sea with an Ambassador reversed Viscount Doncaster when he was Ambassador in Bohemia and attending upon him there And this matter being disclosed to the Court by the Counsell of the Defendant they would not suffer the Plaintiff to have execution upon the said Iudgment but ordered the Plaintiff to declare De novo to which the Defendant should presently answer Memorand It was said to be against the course of the Court to have an Imparlance Imparlance before the Declaration entred The same Term in the same Court The King against Briggs A Quo warranto was brought by the King against Briggs for exercising A Subject cannot have a Forest of certain Priviledges who justified by virtue of a Forest granted to him And by Bridgeman this is the first Quo warranto which he knew that had been brought against any Subject for a Forest for a Subject cannot have a Forest but he may have a Chase which peradventure may passe under the name of a Forest And there are divers incidents to a Forest which a Subject cannot use nor have there ought to be a Iustice of a Forest which a Subject cannot have and such a Iustice ought to be a man of great Dignity 2. There ought to be Verderors who are Iudges also and by 34 E. 1. Ordinatio Forrestae ought to be by Wait but a Subject cannot award a Writ Also there are three Courts incident to a Forest 1. A Court of Attachments which may be without Verderors 2. The Swanimate Court 3. The Iustice seat and this appeareth in 1. E. 3. cap. 8. 21 E. 4. cap. 8 But by the Statute of 27 H. 8. cap. 7. There are some other incidents to a Forest 2. Admits that a Subject may have a Forest yet it fails in this case because he hath shown the exemplification and not the Letters Patents and see Co. lib. 5. Pains case that neither an exemplification or constat are pleadable at Common Law and Co. lib. 10. Dr. Leyfeilds case The same Term in the same Court Sir William Webb versus Paternoster THe case was this Sir William Plummer licensed Sir William Webb to lay his Hay upon the Land of the said Sir William Plummer untill he could conveniently sell it and then Sir William Plummer did make a Lease of the Land to Paternoster who put in his Cattell and they eat up the Hay And it was two years between the license and the putting in of the Cattell and yet Sir William Webb brought an action of Trespasse against Paternester for this Mountague chief Iustice 1. This is an Interest which chargeth the Land into whosoever hands it comes and Webb shall have a reasonable and convenient time to sell his Hay 2. The Lessee ought to give notice to Notice Sir William Webb of the Lease before he ought to put in his Cattell to which Haughton Iustice agreed in both points But Doderidge Iustice said that Sir William Webb had no certain time by this license yet he conceived that he ought to have notice But it was resolved that the Plaintiff had Convenient time a convenient time to wit two years for the removing of his Hay and therfore Iudgment was given against him But admit that there had not been a convenient time yet the Court was of opinion that the Plaintiff ought to have inclosed the Land at his perill for the preservation of his Hay And it was agreed that a license is countermandable although it be concerning A license whether for profit or pleasure countermandable profit or pleasure unlesse there be a certain time in the license as if I license one to dig Clay in my Land this is evocable and may be countermanded although it be in point of profit which is a stronger case then a license of pleasure see 13 H. 7. The Dutches of Suffolks case for a license The same Term in the same Court SIbill Westerman brought an action upon the case against Eversall and had Error Sibell for Isabell Iudgment and in the entry of the Iudgment she was named Isabell 1 Ass and 3. Ass A Fine was levied by Sibill when her name was Isabell and it was not good for it doth not appear to be the same party so in the case at the Bar And for this the Iudgment was reversed The same Term in the same Court JEne as Executor of brought an action upon the case against Chester An Infant chargable for necessary Apparrell because the Defendant made request to the Testator of the Plaintiff to buy for him certain silk Stuffs for Apparrel and to make him a Cloak the Defendant pleaded that he was within age and George Crook said that the Defendant should not be charged because it is not shewn that the Apparrell was for the Infant himself but he was over-ruled in this for it is sufficiently expressed to be for him And it was agreed by the Court that it ought to be shewn that it was Pro necessario vestitu and it ought to be suitable to his calling and as Doderidge said that there was a case adjudged in this Court between Stone Withipole that where Withipole had taken of Stone certain Stuffs for Apparrel being within age and afterwards he promised payment if he would forbeare him some time and the Assumpsit adjudged not good because he was not liable for the Debt at first for the reason aforesaid Trin. 17. Jac. In the Common Bench. Gilbert de Hoptons Case AN action upon the case was brought for those words viz. Thou art a Words Thou art a Theef and hast stoln my Furze Theef and hast stoln
a Lease made de Burg. sine Tent. which is not good no more then in Ejectione firmae de Mess sive Tent. 2. Because the Judgement is not quod capitur as it ought to be because it is vi armis 3. The judgement is Ideo concessum est where it ought to be consideratus est and for these Errors the Judgement was reversed And the same day another Judgement between Bell and Margery Strongury was reversed for the same causes The same Term in the same Court. Petit versus Robinson IN Error to reverse a Iudgment given in C. B. in a Replevin there Jermy for the Plaintiff assigned two Errors 1. It appears that after the Writ and before the triall it was coram Justiciar Dic. Domini Regis and there was not any speech of any King but of King James before and there is no speech of his demise and therefore this shall be intended before the Iustices of King James which cannot be 2. Because the Nisi prius is certified to be tried before Francisco Harvey Mill. uno Justiciar c. the Postea returned is before Francisco Harvey Arm. argued so there was no such Iudge of Nisi prius as Francis Harvey Banks for the Defendant I conceive the first errors to be because the adjournment was per br Dom. Reg. and King James was named before so that the objection may be that it shall be intended the Writ of Adjournment of King James which cannot be but I conceive the Writ is generall and shall not be intended â—hat it can be adjourned by the Kings Writ who was dead before and the Clerk of the Assises who certified it is bound to take notice of the Kings death 37. H. 6. 28. and also the Record is not per br Dic. Dom. Regis but per br Domini Regis generally And for the second I conceive it is no error and if it be error then if the Certificate be not according to the Copy out of which the Clerke certifies it shall be amended 22. E. 4 22. 35. H. 6. 23. b. Co. lib. 8. 136. Blackmores case which is a stronger case then this But it hath been objected that the Record is certified by the Iustices and now there can be no averment to the contrary but I conceive that this Court may send to the Clark of the Assizes to amend it and those objections were over-ruled in C. B. in the same case Doderidge Iustice I conceive that notwithstanding these exceptions the Iudgement ought to be affirmed for as to the first the Court is bound to take notice of the demise of the King and therefore it shall be intended the King that now is and so the Writ of adâ—ournment good enough in Dyer King Henry 8. made a Patent and it was Eâ—ricus Dei gratia c. where it should be Henricus and yet the Patent good so in a Writ to the Bishop the subscription is Episcop Norw this is good enough for the Bishop of Norwich is very well known And for the other I conceive it is not well alledged because it is not showne whether he were a Knight at the time of the Certificate or not and so it may well stand together that he was a Knight for he might be an Esquire at the time of the triall and before the Record certified might be made Knight Jones Iustice to the same intent and that we ought to take notice of the demise of the King therefore it shall be intended of the Writ of adjournment of the King which now is and therefore it is no error and yet if it were it were amendable Whitlock Iustice agreed and therefore the Iudgement was affirmed by the whole Court The same Term in the same Court. Crabbe and his Wife versus Tooker IN Covenant betweene Walter Crabbe and Anne his Wife against Tooker the covenant upon which the breach was layd was this Tooker the Defendant covenanted with Tooker his Son and Anne Slade one of the Plaintiffs whom he intended to marry to give them their meat and drink in his house and if any discontent should happen between the Father and Son so that he and his Wife Anne should disagree to dwell with Tooker the Father then they should have 6. Beasts gates c. Tooker the Son died Anne disagree to dwell with Tooker the Father and marries with Crabbe who with hâ—s Wife Anne brings this Action and Taylor argued for the Planitiff that the Action lies for albeit the Covenant be in the conjunctive if they disagree yet it shall have a disjunctive interpretation as where a man covenant to levy a fine to one and his heirs if he dies the Covenantor may levy a fine to his Heirs and Hill and Granges case in Plow Two Tenants in common grant a rent this shall be taken for severall Rents and Co. lib. 5. Slingesbyes case also the Wife is party to this covenant and she must either have remedy upon this covenant after the death of her Husband or not at all for she cannot disagree in the life time of her Husband per que c. And it was agreed on the other side that there ought to be a dislike between all joyntly the Father the Son and the Wife and now one of them being dead the covenant is discharged like to the case put in Brudenels case Co. lib. 5. If Administration be grant during the minority of 3 if one of them dies the administration ceaseth and 31. Eliz. in C. B. A Lease was made to three and the Lessor grants to them to be dispunishable of Wast quamdiu cohabitarent one of them dies and it was resolved that now they shall be liable to wast Also the Bar is not bone for it is pleaded that Discordia orta fuit and doth not shew what manner of discord this was and therefore not good as 3 H 6. In Annuity brought Pro concilio c. he ought to shew for what manner of Councel it was Whitlock Justice was of opinion for the Plaintiff and that this Covenant extends to the Wife and that upon equall construction because it comes in place of the first Covenant and this was intended for the benefit of the Wife as well after the death of the Husband as before Jones Justice was of the contrary opinion and that the second covenant was a severall covenant from the first and that the disagreement is to be made by all three joyntly and that when one dies the Covenant is gone 2. Eliz. Dyer A man will that A. B. and C. his Feoffees shall sell his Land B. dies now the Authority is determined The Lord Gray committed the custody of his Son to four one of them dies the authority is gone and in this case there is no matter of interest but an agreement and in such a case as this is a Feme covert hath a will albeit she hath no legall will but in this case there ought to be a disagreement of both and
to the West eighteen foot ten inches which Messuage so newly built stood the day of the Writ purchased and yet stands c. And if upon the whole matter the said Demise of the said John Bradley and Anne be and in Law ought to be adjudged the Demise of the said Messuage newly built upon the said part of land where the Messuage of the said John Bradley and Anne stood then the Iury find that the said John Bradley demised to the said Thomas and Iohn Allen the said house newly erected as aforesaid as the Plaintiff hath alledged and if not then they find that he did not demise And upon this Verdict Iudgment was given there and an especiall Writ of Habere facias seisinam awarded of the said Messuage with the Appurtenances viz. 18 foot of it from the North to the South and 12 foot and an half of it from the East to the West upon which a Writ of Error being brought in the Kings Bench it was alledged for Eror by Coke Sollicitor that upon this Verdict Iudgment ought to have been given for the Tenant and not for the Demandant for what was remaining of that which was of the house is not a house but only a peece of a house and therfore it ought to have been demanded by the name of a peece of Land containing so much one way and so much another for a house wasted and utterly drawn away cannot be demanded by a Messuage but by the name of a Curtilage or so much Land of such contents for a Praecipe lies of a peece of Land containing so many feet in length and so many in breadth And also Land built during the possession of him which hath it by Tort cannot be demanded by the name of Land by him which hath right but by the name of a house nor e contra for every demand of Land ought to be made according to the nature of which it is at the time of the Action brought be it a Messuage Land Meadow Pasture Wood c. And if the Walls of a house be made upon the Land without any covering yet it shall be demanded but by the name of Land for he said that it cannot be a house without its perfection to be habitable which he said is not here because it stands upon the Land of the said Anne which hath not the perfection of a house habitable without the remnant But this notwithstanding the first Iudgment was affirmed for it was said by Popham and other Iustices that that which is erected upon the Land of the said Anne shal be said a house as to the right of the Heir of the said Anne for a house may be such to be demanded by the name of a house albeit it hath not all the perfection of a house as if it hath no doors so if it hath part of the side wals not made drawn away or fallen yet the remainder continues to be demanded by the name of an house so if part of the covering be decayed yet it shall be demanded by the name of an house and the rather here because with that which is upon the other Land it is a perfect house And I may have a perfect house although the side Walls belong to another as in London where a man joynes his house to the side walls of his Neighbours he hath a perfect house and yet the side walls belong to another and this commonly happens in London but it is otherwise if it were never covered or if the covering be utterly fallen or drawn away for without a covering a house cannot be said to be a house for the covering to keep a man from the Storms and Tempests over head is the principall thing belonging to a house And further suppose that a man hath a Kitchin or a Hall upon Land to which another hath right he which hath right ought to demand it by the name of a house suppose then that there is adjoyning to this upon other land a Parlor a Buttery a Shop a Closet and the like with Chambers over them this doth not change the form of the Writ that he is to have which hath right although before it was built by the name of a house and yet as to the rent both the one and the other was but a house but as to the demandant it is otherwise for they are severall so here And the Demise which before was made of the house drawn away shall be now upon the matter a Demise as to this part of it a new Messuage for if a man make a Lease for years of a house and the Tetmor pull it down and erect there a new house or if land be demised and the Lessee build a house upon it in an Action of Wast for Wast done in this new house the Writ shall suppose that he did wast in the Houses c. which were demised to him and yet in the one case it is not the Messuage which was demised to him and in the other the house was not demised but the Land only But he hath no term in the house but by the Demise before made And it seems to Popham that Allen the Defendant cannot pull down this part of the house erect upon his own land to the prejudice of the house which Hayes demands if this which is erected upon the land of Allen be of such a necessity that without it the house of Hayes cannot stand for a house but if he dies after that Hayes hath built it then Hayes shall have an Action upon the case against him for the damages which he sustained by it As if a man agree with me that I shall set the outer wall of my house upon his land and I do it accordingly and afterwards the party which grants me this licence breaketh it down if the Grant were by Deed I shall have an Action of Covenant for it and if but by Paroll yet I shall have an Action upon the case against him And here this being done by him which was then Owner and Possessor of the one and the other land it shall be taken as a licence in Law to the benefit of him which hath right which he cannot pull down after it is once made but he shall be subject to Hayes his Action for it or otherwise Hayes shall be at great mischief and prejudice by the Act of him which did the wrong which the Law will not suffer but rather shall turn this to the prejudice of him which did the wrong then to the prejudice of the other which shall have wrong by the doing of it for Volenti non fit injuria As if I am to inclose between my Neighbour and my self and my Neighbour pull down this inclosure or part of it wherby my Cattell escape into the land adjoyning and depasture there I shall be excused of this Trespasse in the same manner as if he had licenced me to have occupied it and whatsoever hapneth to this Land adjoyning
resolved by all the Iustices as he said that it shall passe and he said that himself was of this opinion also And to say that by grant of Land at Common Law the use had been raised out of the possessions of the Land which the Grantor then had and by it passe to the Bargainee and that it shall not be raised and passed to another by grant of Land in consideration of marriage which is a more valuable consideration then money is absurd and against all reason And for the solemnity Vses in such cases in respect of marriage were the cause that they alwaies were left as they were at Common Law and not restrained as the case of bargain and sale is which by Common intendment may be made more easily and secretly then that which is done in consideration of marriage which is alwaies a thing publike and notorious but it is not reasonable that every slight or accidentall speech shall make an alteration of any Vse As if a man ask of any one what he will give or leave to any of his Sons or Daughters for their advancement in marriage or otherwise for their advancement this shall be but as a bare speech or communication which shall not alter or change any Vse But where there is upon the Speech a conclusion of a Marriage between the friends of the parties themselves and that in consideration therof they shall have such Lands and for such an Estate there the Vse shall be raised by it and shall passe accordingly to the parties according to the conclusion which Fennor granted But by Popham If it may be taken upon the words spoken that the purpose was to have the Estate passe by way of making of an Estate as by way of Feoffment c. then notwithstanding the consideration expressed the use shall not change nor no Estate by it but at will untill the Livery made therupon And therfore if a man make a Deed of Feoffment with expresse consideration of marriage although the Deed hath words in it of Dedi Concessi with a Letter of Attorney to make Livery therupon there untill Livery made nothing passe but at will because that by the Warrant of Attorney it appeareth the full intent of the parties was that it shall passe by way of Feoffment and not otherwise if it be of Land in possession And if it be of Land in Lease not untill Attornment of Tenants which was granted by all the Iustices But if a man in consideration of money makes a Deed of Gift Grant Bargain and Sale of his Lands to another and his Heirs by Deed indented with a Letter of Attorny to make Livery if Livery be therupon made before Inrolement there it hath been adjudged to passe by the Livery and not by the Inrolement But by Popham where Land is to passe in possession by Estate executed two things are requisite The one the grant of the said Land the other the Livery to be made therupon for by the bare Grant without Livery it doth not passe as by way of making of an Estate And this is the cause that such solemnity hath been used in Liveries to wit if it were of a Messuage to have the people out of it and then to give Seisin to the party by the Ring of the door of the House and of Land by a Turff and a Twig and the like which may be notorious Yet I agree it shall be a good Livery to say to the party Here is the Land enter into it and take it to you and your Heirs for ever or for life or in tail as the case is And albeit Livery by the View may be made in such manner yet by the sealing of the Deed of Grant upon the Land or by grant of it upon the Land without Livery nothing passe but at will But if therupon one party saith to the other after the Grant or upon it Here is the Land enter upon it and take it according to the Grant this is a good Livery But he ought to say this or somthing which amounts to so much or otherwise it shall not passe by the bare Grant of the Land although it be made upon the Land Clench said That when Thomas said to Eustace Stand forth here I do give to thee and thine Heirs these Lands this amounts to a Grant and a Livery also and by the words of the Reservation of the Estate to himself and his wife for their lives in this the Law shall make an use in the said Thomas and his wife for their lives so that by such means it shal enure as if he had reserved the use therof to him and his wife and so it shall enure to them as it may by the Law according to his intent without doing prejudice to the Estate passed to the said Eustace And afterwards Term Mich. 36 37 Eliz. the Case was again disputed amongst the Iustices and then Popham said That the Case of Baâ—gains and Sales of Lands in Cities as London c. as appeareth in Dyer 6. Eliz. are as they were at Common Law To which all the Iustices agreed and therfore shall passe by Bargain by parole without writing And by Bayntons Case in 6 7 Eliz. it is admitted of every side that an Vse was raised out of a Possession at Common Law by Bargain and Sale by parole and otherwise to what purpose was the Statute of Inrolements and by the same case it is also admitted now to passe by parole upon a full agreement by words in consideration of Marriage or the continuance of Name or Blood For it is agreed there that the consideration of nature is the most forceable consideration which can be and agreed also that a bare Covenant by writing without consideration will not change an Vse therfore the force therof is in the consideration of which the Law hath great respect And therfore the Son and Heir apparant ex assensu patris onely may at the door of the Church endow his wife of his Fathers Land which he hath in Fee and this is good by Littleton although the Son hath nothing in it wherby an Estate passe to the wife which is more then an Vse Nature is of so strong consideration in the Law And therupon after advice Iudgment was given for the Plaintiff the Roll of this appeareth in Banco Regis 1 Hill 35. Eliz. Rot. 355. And upon this Iudgment a Writ of Error was brought and the Iudgment aforesaid reversed in the point of Iudgment in the Exchequer by the Statute of 27 Eliz. Kettle versus Mason and Esterby 6. IN a second deliverance between Joh. Kettle Plaintiff and George Mason Vide this case Coke lib. 1. 146 c. and Francis Esterby Avowants the case appeared to be this Thomas May was seised of the Mannor of Sawters and Hawlin in the County of Kent in his Demesne as of Fee and being so therof seised enfeoffed Thomas Scot and John Fremling and their Heirs
by reason of the Waiver in the Devisor shall be sole seised ab initio for the said Elizabeth might have had Dower therof if she would as in the like case it is adjudged in 17 E. 3. 6. and therfore a sole Seisin in the Husband and the descent to the Heir in such a case upon the Waiver shall take away the entry of him who hath right to it And therfore the case now for the Mannor of Hinton is within the very letter of the Statute as well for the sole Seisin which was in the Devisor as for the immediate descent which was from the Devisor to his Heir and therfore remains to the Heir for a good third part of the Inheritance of the Devisor by the very letter of the Statute and if the Letter had not helped it yet it shall be helped by the purport and intent of the Statute which ought to be liberally and favourably construed for the benefit of the Subject who before the Statute of Vses might have disposed of his whole Land by reason of Vses by his Will and the Statute of 27 H. 8. excludes him therof and therfore the Statute of 32. 34 H. 8. are to be liberally expounded as to the Subject for the two parts and the rather because it appeareth by the preamble of the Statute of 32 H. 8. that it was made of the liberality of the King and because that by 34 H. 8. it appeareth that it was made to the intent that the Subject shall take the advantage and benefit purposed by the King in the former Statute by all which it appeareth as they said that the said Statutes shall be liberally expounded for the advantage of the Subject and for his benefit and not so strictly upon the letter of the Law as hath been moved and so they concluded that Iudgment ought to be given for the Plaintiff Popham and Anderson the two chief Iustices and all the other Iustices and Barons held the centrary and that Iudgment ought to be given against the Plaintiff and that by the very letter and purport of the Statutes of 32 34 H. 8. for they said they are to consider what Estate the Devisor hâ—d â—â— the Land at the time of his Devise made without regard to that which might happen by matter Ex post facto upon the Deed of another and if it had beâ—n demanded of any apprised in the Law at the time when the Will wâ—s made what Estate the Devisor then had in the Mannor of Hinton 〈◊〉 is so unlearned to say that he had other Estate in it then joyntly with his Wife And if so it follows that this Mannor was then out of the letter and intent of the Law for he was not then sole seised therof nor seised in coparcenary nor in common and by the words he should be sole seised in Fee-simple or seised in Fee-simple in coparcenary or in common It appeareth that the intent of the Statute was that he shall have full power of himself without the means or aid of another to dispose of the Land of which he is by the Statute to make disposition or to leave it to his Heir and this he hath not for the Mannor of Hinton here And further the words of 32 H. 8. are That the Devisor hath full power at his Will and pleasure to devise two parts of his Land so holden as here and this is to be intended of such Land of which he then had full power to make disposition â—nd this he could not then do for the Mannor of Hinton And further the words of 34 H. 8. are that the devision for the parts shall be made by the Devisor or Owner of the Land by his last Will in writing or otherwise in writing and in default therof by commission c. And can any say with reason that it was the intent of the Statute that he shall make the Devision of other Lands then of those of which he then had full power to devise or to leave to his heir without any future accident to help him or the mean of Anthony by matter Ex post facto It is cleer that reason cannot maintain it And the words following in the Act which are That the King shall take for his third part the Land which descended to the Heir of the â—state tail or of Fee-simple immediatly after the death of the Devisor much enforce the opinion on this side for it cannot be said upon the death before the Waiver that this Mannor of Hinton was immediatly descended ergo it ought not to be taken for the third part And further the words are If the Lands immediatly descended upon the death of the Devisor c. do not amount to a full third part that then the King make take into his hands so much of the other Lands of the Devisor as may make a full third part c. wherby it is cleer that in this case if the wife had not waived her Estate for ten years after the death of the Devisor that for all this time the Queen could not meddle with the Mannor of Hinton and therfore in the mean while she might well have so much of the Mannor of Thoby which might well have made a full third part to her and for so much which she took the Will was alwaies void which shall never be altered nor made good by any Waiver Ex post facto And although the Waiver of the Fame put the Inheritance entirely in the Devisor and in his Heir in relation to divers respects yet as to other respects he shâ—ll not be said in them with such relation and especially upon the Statute in which we now are to respect the power as it was in him at the time of his death before this future Contingent And by Popham If the exposition on the other side shall hold place upon the Statute perhaps a man shall not see by the space of six years or more after the death of a Devisor how his Devise shall work As a Feoffment in Fee is made to I. S. and a Feme Covert and their Heirs of 10 l. Land holden by Knights-service in Capite which I. S. hath 20 l. Land in fee so holden also I. S. makes a Devise of his 20 l. Land the Husband lives 60. years after none will or can deny but that for this time the Devise is not good for two parts now the Husband dies and the Wife waives the Estate made to her this puts the Inheritance therof in the Heir of I. S. with relation to divers respects but not to this respect to make the Will now good for the whole 20 l. Land which therfore was void for the third part therof for the Will which once was void by matter Ex post facto after the death of the Devisor cannot be made good And by him the descent in such a case is not such that it shall take away the entry of him who hath right because
it shall not be taken by intendment that the Messuages had such a Curtilage to it if it be not specially named Fennors Case 5. IN Trespasse brought by Fennor in the common Bench against for breaking his Close in c. the Defendant pleads a Bar at large to make the Plaintiff assign the place in certain where he supposeth the Trespasse to be done the Plaintiff therupon alledgeth that the place where he complaineth is such c. and sheweth in certain another then that in which the Defendant justifies the Defendant avers that the one and the other are all one and known by the one name and the other and therupon the Plaintiff demurs and adjudged there for the Plaintiff because that in such a case upon such a speciall assignment it shall be taken meerly another then that in which the Defendant justifies in as much as the Plaintiff in such a case cannot maintain it upon his evidence given if the Defendant had pleaded not guilty to this new Assignment that the Trespasse was done in the place in which the Defendant justifies although it be known by the one and the other name and that the Plaintiff hath good Title to it because that by his speciall Assignment saying that it is another then that in which the Defendant justifies he shall never after say that it is the same in this Plea for it is meer contrary to his speciall Assignment And upon this a Writ of Error was brought in the Kings Bench and the Iudgment was there affirmed this Term for the same reason Quod nota Scot versus Sir Anthony Mainy 6. IN Debt upon an Obligation of 200 l. brought by John Scot Gent. against Sir Anthony Mainy Knight the Condition wherof being to perform the Covenant comprised in an Indenture of Demise made by the said Sir Anthony to the said Plaintiff of his Capitall Messuage in Holden with the Lands to it belonging c. amongst which Covenants one was that wheras by the same Indenture he had demised it to him for 21. years that the said Sir Anthony covenanted with the said John Scot that the said Sir Anthony from time to time during the life of the said Sir Anthony upon the surrender of this Demise or any other Demise hereafter to be made by the said Sir Anthony of the said Messuages and Lands and to be made by the said John Scot his Executors or Administrators and upon a new Lease to be made ready ingrossed to be sealed and offered by the said John Scot his Executors or Administrators to the said Sir Anthony for the like tearm and number of years in the aforesaid Indenture comprised for the same Rent c. to seal and deliver to the said John Scot his Executors and Administrators And the said Sir Anthony as to this Covenant pleaded did not surrender nor offer to surrender to him the said Demise nor offer to him any new Demise of the Premisses ready engrossed for to seal it for the like Term c. as it is in this Covenant And for the other Covenants he pleads performance of all To which the Plaintiff replies that the said Sir Anthony after the Obligation and before the Action brought had rendred the said Messuages and Lands by Fine to one Walter Savage and William Sheldon their Executors and Assigns for eighty years from the Feast of Easter next before the Fine which was Pasch 36 Eliz. wherby he said that the said Sir Anthony had disabled himself to renew his Lease according to the Covenant upon which it was demurred in the Commen Bench and the Iudgment given for the Plaintiff as appeareth Trin. 37. Eliz. Rot. 2573. And upon this Iudgment a Writ of Error was brought in the Kings Bench and agreed this Term. And it was moved that the Iudgment given was erroneous in as much as the first act was to be done by John Scot before the new Lease was to be made to wit the surrender of the former Lease and the drawing of the new one ought to have been done by the Plaintiff which not being done on his part the said Sir Anthony is not bound to make the new Lease And also it was moved that as the case is here the said John Scot might surrender to the Defendant notwithstanding the intervening of this Lease between the Lease of the Plaintiff and the Inheritance of the Defendant as if a man make a Lease for years in possession and afterwards make another Lease to a stranger to begin after the end of the former Lease this shall not hinder but that the first Lease may be surrendred to him who was the Lessor notwithstanding the said Term intervening To which it was answered by the Court that the Plaintiff here need not to make any offer of the surrender of his Term to the said Sir Anthony in as much as the said Sir Anthony hath disabled himself to take the Surrender or to take the Lease according to the purport of the Condition and by this disabling of himself the Obligation is forfeited Come per 44 E. 3. 8. and by Littleton also If a man make a Feoffment upon condition to re-enfeoff him this is not to be done untill request therof be made by the Feoffor yet if in the mean time the Feoffee suffer a fained recovery of the Land grant a Rent charge acknowledgeth a Statute taketh a Wife or the like the Feoffor may re-enter without request made to re-enfeoff him and the reason is because that by any of these the Feoffee hath disabled himself to perform the Condition in the same plight as he might have done at the time of the Feoffment in the same manner here for by this render by the Fine the Reversion passe in right so that the Termor in possession attorning to it they shall have the Rent reserved upon the first Lease and therfore the Plaintiff cannot now surrender to the said Sir Anthony but to the Grantees of the Reversion and therfore there shall be no prejudice to the Plaintiff because the Defendant was the cause of disabling the Plaintiff to make the Surrender to him And suppose it be but a Term to begin at a day to come yet by this the Obligation is forfeited because the Obligor hath therby disabled himself to perform the Condition in such a plight as he might have done it when the Obligation was made wherby the Obligation is presently forfeited albeit the Plaintiff never surrender nor offer to do it And therfore the Iudgment there was affirmed Mounson versus West 7. IN an Assise brought in the County of Lincoln before Gawdy and Owen by Thomas Mounson Esquire Demandant against Robert West Tenant for Lands in Sturton Juxta Stu. The Defendant West pleaded Nul Tenant del Frank-tenant named in the Writ and if that be not found then Nul tort nul Disseisin And the Assise found that the said Defendant was Tenant of the Tenements now in Plaint and put in view to the Recognitors of
the Assise in manner and form as the Writ supposeth And further that the said West therof disseised the said Mounson namely of the Tenements in the will of one Mounson And did not find either the words of the Will nor the Will it self what it was c. And the Iustices of Assise upon this Verdict upon advice with the other Iustices gave Iudgment that the Plaintiff shall recover c. upon which a Writ of Error was brought in the Kings Bench where it was moved that the Iudgment was erroneous First because the Iury have not found that the Defendant was Tenant of the Free-hold agreeing with the form of the Plea for the Writ of Assise doth not suppose him to be Tenant of the Free-hold and therfore the Verdict in this point not fully found The second Error is that the Seisin of the Plaintiff is not required of according to the charge given to them as well as the Disseisen for the charge was that they should enquire of the Seisen of the Plaintiff c. But to both these the Court answered that the Verdict is well enough notwithstanding these exceptions for every Assise brought supposeth that there is a Disseisor and a Tenant named in it then this Assise being brought against a sole person supposeth him to be a Disseisor and Tenant also and therfore the Verdict saying that he was Tenant as the Writ supposeth is now as strong in this case as if they had found that he was Tenant of the Free-hold for the Tenant of the Free-hold ought to be named in the Writ But if the Assise had been brought against two or more such a Verdict had not been good for it sufficeth if any of them be Tenant of the Freehold and then the Writ doth not suppose one to be Tenant more then another but supposeth one Tenant to be named in the Writ And therfore in such a case the finding ought to be speciall to wit that such a one is Tenant of the Free-hold or that there is a Tenant of the Free-hold named in the Writ But where one only is named in the Writ to be Disseisor and Tenant it is sufficient to find as here for by this it is certainly found that he is Tenant of the Free-hold And for the other point although it be a good direction for the Iudges to the Iury wherby they may the better perceive that there ought to be a Seisin in him or otherwise there cannot be a Disseisen by the other yet in Deed he cannot be a Disseised who was not then seised But the Assise having found the Disseisen the Seisen in Law is found included in the Disseisen But for the point moved that the Verdict was not perfect in as much as they found the Disseisen with a Nisi it seemed to Gawdy that the Iudgment upon this Verdict was erronious as where a Verdict in another Action is imperfect a Venire facias de novo shall be awarded to try the Issue again And if Iudgment be given upon such a Verdict it is error so here the Verdict in this point being incertain there ought to have been a Certificate of Assise to have this better opened But the three other Iustices held as the case is that the Verdict in this point is certain enough for that which cometh before the Nisi as it is placed is meerly nugator as in the case of the Lord Stafford against Sir Rowland Heyward the Iury found Non assumpsit but if such Witnesses say true as they believe they did Assumpsit c. it was but a meer nugation But it seemed to Popham that if the Verdict had been if the words of the Will do not passe the Land then that he disseised and if they passe then that he did not disseise there if the words of the Will be not found the Verdict had been all imperfect but here the Verdict is full and perfect before the Nisi c. and therfore the Iudgment was affirmed Holme versus Gee 8. A Formedon in Descender was brought by Ralph Holme Demandant against Henry Gee and Elizabeth his Wife Tenants and the Case wâ—s thus Ralph Langley and others gave two Messuages and a Garden with the Appurtenances in Manchester to Ralph Holme the great Grandfather of the Demandant and to the Heirs of his body begotten after which the same great Grand-father by Deed indented dated 20. September 14 H. 7. enfeoffed Iohn Gee of one of the said Messuages and of the said Garden rendring yearly to the said great Grand-father and his Heirs 13 s. 4 d. a year at the Feasts of S. Michael and the Annunciation by equal portions after which the said Iohn Gee died seised of the said Messuages and Garden and it descended to Henry Gee his Son and Heir after which the said great Grand-father by his Indenture bearing date 6. Martii 12 H. 8. enfeoffed the said Henry Gee of the other Messuages rendring also to him and his Heirs yearly 13 s. 4 d. at the said Feast aforesaid by equal portions after which Holme the great Grand-father died Stephen Holme being his Son and next Heir who was seised of the Rents aforesaid and afterwards also died seised Robert Holme being his Son and Heir after which the said Henry Gee died seised of the said two Messuages and Garden and they descended to Eliz. his Daughter and Heir who took to Husband one Richard Shalcroft and had Issue the said Elizabeth wife of the said Henry Gee Tenant in the Formedon after which the said Richard Shalcroft and his wife died after which and before the marriage had between the said Henry Gee and Elizabeth now Tenants in the Formedon the said Elizabeth enfeoffed one Richard Greensearch of the said Messuages and Garden after which to wit at the Feast of the Annunciation of our Lady 3 Eliz. the said Henry Gee husband to the said Elizabeth paid 13 s. 4 d. for the said Rent reserved as is aforesaid to the said Robert Holme after which to wit on Munday next after the Assumption of our Lady at Lancaster before the Justices there a Fine was levied with Proclamations according to the Statute between Thomas Aynsworth and Thomas Holden then being seised of the Tenements aforesaid Complainants and the said Henry Gee and Eliz. his wife Deforceants of the Tenements aforesaid wherby the Conusance was made to the said Thomas and Thomas who rendred them to the said Henry Gee and Eliz. his wife and to the Heirs of their bodies the Remainder to the right Heirs of the said Henry the five years past after the Proclamations in the life of the said Robert Holme after which the said Robert died and Ralph his Son and Heir brought the Formedon upon the Gift first mentioned and the Tenants plead the said Fine with Proclamations in Bar and the Demandant replyed shewing the severall discontinuances made by the great Grand-father as aforesaid and the acceptance of the said Rent by the said Robert by the hands of
Anglice Copie des except according to any custom of the said Mannor of Yeatminster and that the Obligation was made for the payment of the same Rent reserved by the said Articles and demands Iudgment c. wherupon the Plaintiff demurred in the Common Bench and there Iudgment was given that the Plaintiff should recover his Debt and Damages as appeareth there Mich. 36 37. Eliz. Rot. 312. upon which a Writ of Error was brought in the Kings Bench and there moved that the Iudgment was erroneous in as much as upon the matter he ought to have been barred of his Action for if an Action of Debt had been brought upon the Demise by the Articles the Defendant might have pleaded as here and the Plaintiff should be cleerly barred As if a man be bound to make an Estate or to assure to another all the Lands which he hath by descent from his Father or all the Lands which he hath by purchase from such a one or the like And of this opinion Gawdy was saying in as much as the Obligation is that he shall be paid according to the true intent of the Articles the intent of them is not that the Rent shall be paid if any Land be not passed by them for it should be paid as by 22 H. 6. if a man be bound to pay a Rent which is reserved upon a Lease made to him he ought to pay it at his peril But if it be to pay it accordingly to the Lease there he said it is not payable but upon the Bond and is to be paid as a Rent And if the Land be evicted in the interim before the day of payment the Obligor shall help himself by pleading of it upon such an Obligation to discharge the Bond so here But it seemed to Popham that the Iudgment was well given and yet he agreed the Cases that were put but he said there was a diversity where the Obligation goes in the generality and where it tends to a speciality for as by 2 E. 4. If a man be bound to be Non-suit in all Actions which he hath against such a one or to assure to another all his Lands in Dale he may say that he hath not any Suit or that he hath no Land in Dale But if it be that he shall be Non-suit in a Formedon depending or to enfeoff him of White acre there it is no plea because he refers to a special point And by 18 E. 4. If a man be bound to another to pay him 10 l. for which a stranger is bound to the said Obligee it is no plea for him to say that the stranger is not bound to pay him 10 l. for when the Condition refers to such a speciall matter this cannot be denied of him who is bound And therfore in this case the Defendant cannot say that there were not any such Articles contrary to that which is specially comprised in the Condition as by 28 H. 6. A man was bound to perform the Covenants comprised in a certain Indenture of Covenants he shall not say that there was not any such Indenture because it resorts to a speciall So I think if a man be bound to pay the Rent of 10 l. a year reserved upon an Indenture of Demise made of Lands in D. payable at such a Feast he shall not say against it that there was no such Demise made nor no such Rent reserved upon the Demise but is estopped of the one and the other And in Hill 3. Eliz. A man was bound thâ—t he shall pay to A. or the Obligee all such summs of mony as T. S. deceased stands bound to pay by his Obligation to the said A. and of one R. P. to the behoof of the Children of such a one according to the Will of the said party and in Debt upon this Obligation he saith that the said T. S. was never bound by any such Writing Obligatory to the said A. and R. P c. to pay c. Pro usu filiorum c. as in the Condition and per Curiam adjudged no good Bar because he is estopped to deny the speciall matter which is matter of Writing and not a bare matter in Deed. Kirton versus Hoxton and others 10. IN an Appeal of Mayhem brought by Kirton Plaintiff against Appeal of Mayhem Rob. Hoxton Esq and divers other Defen the one of the Defen plead Nul tiel in rerum natura as another of the Appellees and if it be not found then as to the Felony and Mayhem not guilty Agreed by the whole Court that such a manner of pleading is not to be suffered in an Appeal of Mayhem because no life is put in danger by the suit And yet it was objected that there are presidents that such form of pleading hath been admitted in Appeals of Mayhem But the Court had respect to it that the reason in all the Books of Law in which it hath been admitted in an Appeal of death and the like is that it stands in Favorem vitae and therfore it is admitted to be good or otherwise by the Books it shall not be admitted to be so for the doublenesse of it But no life is to be put in â—eâ—pardy in this case and therfore such a plea shall not be admitted but the Not guilty shall stand by which the other plea is waived Hillary Term 38 Eliz. Henry Earl of Pembrook versus Sir Henry Backley IN an Action upon the Case between Henry Earl of Pembrook Plaintiff See this Case Coke lib 5. 76. a. and Sir Henry Backley Knight Defendant the case upon the pleading appeareth to be thus The said Earl was seised in his Demesn as of Fee of the Mannor of Stocktrift in the County of Somerset to which Mannor the Office of the custody of the Forest of Selwood in the same County belongeth and also that there was before time of memory an Office within the same Forest called the Lievtenant-ship or Custody of the said Forest belonging to the said Mannor of which also the said Earl was seised in his Demesn as of Fee And that there was one part of the said Forest called the West part of the said Forest in which there were two Walks or Bayliwicks the one called Staverdale walk and the other Brewick walk And that the said Lievtenant had the charge of the Deer and the disposition and appointment of the Keepers of the said Forest And that the said Earl being so seised by his Writing bearing date 5. Novemb. 12. Eliz. reciting that his Father had granted the Office of Lievtenant-ship and Deputy-ship of the said West part of the said Forest Cum vadiis c. quando acciderit and the Keeper-ship of Brewick-walk aforesaid to the said Sir Maurice Barkley Knight and the Heirs Males of his body and instituted and ordained him and the Heirs Males of his body Lievtenant and Deputy therof to the said Earl and his Heirs confirmed the Grant aforesaid And further by the
doth much concern the Infant in as much as by his false plea he shall be bound to â—nswer of his own Goods if he hath no Goods of his Testator and therfore in a 11 E. 4. 1. he hath remedy against his Guardian for pleading a false Pâ—ea And by Doderidge if he hath no Guardian the Court shâ—ll appoint him a Guardian And if an Infant bring an action as Executor by Attorney and hath Iudgment to recover this is not erronious because it is for his benefit so per Curiam the difference is where he is Plaintiff and where he is Defendant And there is another difference where he is Executor and where not for being Executor his Plea might have been more prejudiciall to him and Coke lib 5. Russels case was agreed for good Law for an Infant may be Executor and may take money for a Debt and make a Release and give an Acquittance but not without a true consideration and payment of the money The same Term in the same Court. Thomas Middletons Case THomas Middleton alias Strickland was condemned for a Robbery at the Where a Felon is condemned and elcapeth and is re-taken upon confession that he is the same party execution may be awarded The Sheriff of Middlesex fined for not attending the Court. Assises in Oxford after which he made an escape and being taken again he was brought to the Bar and upon his own confession that he was the same party who did the Robbery and that he was condemned for it the Court awarded execution And Mountague chief Iustice said thâ—t was no new case for it had been in experience in the time of E. 3. and 9 H. 4. and 5. E. 4. that the Court might so do upon his own confession And because the Sheriff of Middlesex did not give his attendance upon the Court in this case nor came when he was called the Court fined him 10 l And Mountage said that it shall be levied by proces out of the Court and also all other Fines there assessed and not estreated into the Exchequer for then the party might compound for a matter of 20 s. and so the King be deceived The same Term in the same Court. Gouldwells Case IOhn Gouldwell seised of Land in Socage Tenure devised them to his Wife for life the Remainder to John Gouldwell his Son and his Heirs upon Condition that after the death of his Wife he shall grant a Rent-charge to Steven Gouldwell and his Heirs and if John Gouldwell dye withâ—ut Heirs of his body that the Land shall remain to Steven Gouldwell in Tail the Wife dieth John Gouldwell grants the Rent accordingly Stephen Gouldwell grants the Rent over John Gouldwell dies without Heir of his body and the second Grantee distrains for the Rent arrear and Stephen Gouldwell brings a Replevin And it was urged by the Counsell for the Plaintiff that this Rent shall not have continuance longer then the particular Estate and cited 11 H. 7. 21. Edriâ—ks case that if Tenant in Tail acknowledge a Statute this shall continue but during his life and Dyer 48. 212. But it was agreed per Curiam that the Grantee was in by the Devisor and not by the Tenant in Tail and therfore the Grant may endure for ever But for the second point this being to him in Remainder the intent of the Demisor is therby explained that he shall have the Rent only untill the Remainder come in possession for now the Rent shall be drowned in the Land by unity of possession 3. It was agreed and resolved that by the granting of the Kent over this was a confirmation And Mountague said that it was a confirmation during the Estate Tail and shall enure as a new grant afterwards And Haughton and Doderidge said that they would not take benefit of the grant over by way of confirmation for as Haughton said this enures only ought of the Devisor and he hath power to charge the Land in what manner he pleaseth and it is like to an usuall case as if a man makes a Feoffment in Fee to the use of one for life the Remainder over with power to make Leases and after he makes a Lease this is good against Tenant for life and him in the Remainder also And I have considered what the intent of the Devisor should be in granting of this Rent and it seems to me that in as much as the Land is limited in Tail and the Rent in Fee that by this the Grantee shall have power to grant or dispose of the Rent in what manner he would but if the Land had been in Fee I should have construed his intent to have been that the Grantee should have the Rent only untill the Remainder fall to which Doderidge agreed who said that we are in the case of a Will and this construction stands with the intent of the Devisor and stands with the Statute which saies Quod voluntas Donatoris est observanda The same Term in the same Court. Baskervill versus Brook A Man became Bail for another upon a Latitat in the Kings Bench and before Iudgment the Bail let his Lands for valuable consideration Difference between baile in the Kings Bench and the Common Pleas. And how a bail shall relate And afterwards Iudgment was given for the Plaintiff And now it was debated whether the Land Leased shall be liable to the Bailment and it was said by Glanvill of Councell with the Lessee that it ought not to be liable and he put a difference between a Bailment in this Court and a Bailment in the Common Pleas for there the Suit cometh by originall and the certainty of the debt or demand appeareth in the declaration and therfore then it is certainly known from the begining of the Bailement for what the Bail shall be bound But in this Court upon the Latitat there is not any certainty untill Iudgment given before which the Land is not bound and now it is in another mans hands and therfore â—ot liable and he puts Hoes case Co. lib. 5. 70. where iâ— was resolved that where the Plaintiff releaseth to the Bail oâ— the Defendant upon a Suit in the Kings Bench before Iudgment all Actions Duties and Demands that this Release shall not bar the Plaintiff for there is not any ceâ—tain duty by the Bail before Iudgment and therfore it cannot be a Release and he citeâ— the case of 21 E. 3. 32. upon an account and said that it was like to a second Iudgment in that which reduceth all to a certainty and therfor c. But it was said by Mountague and Crook that the Lessee shall be bound for otherwise many Bailments and Iudgments shall be defeated which will bring a great Inconvenience And Mountague said that it was like to the case of a bargain and sale of Land which after it is Inrolled within six moneths shall relate to the beginning of the Bargain so upon the Iudgment given relation is made from the time
great deliberation viz. Mountague chief Iustice Crook Doderidge and Haughton Iustices that it was not a common Nusance either punishable or inquirable in a Leet and by Haughton a man hath Jus proprietatis privilegii in the Doves 1. Propriety in respect of the place as 22 H. 6. 39. Trespasse lies for taking a Goshawk in respect of the place as 3 H. 6. 55. For Hares and Spencers case in Dyer and so of other things which are Ferae naturae And if a Deer goes out of a Park albeit it be in the Kings case yet it is lawfull for the Owner of the Sail to take it if it be in the place where the Deer bath chase and re-chase And by the Register and Fitzherbert it appears that Trespasse lies Quaere columbare fregit Columbas cepit But 16 E. 4. 7. Trespasse doth not lye for killing of Doves but there is a Quaere of an action upon the case and because the Doves do no Trespasse neither is there any remedy for the killing of them therfore they are no common Nusance for by Brook 34 H. 6. Brooks action upon the case the common custom is the common Law and there is no authority against it but Co. lib. 5. 104. Boulstons case which is only on the byâ— and is not agreeing with the reason of the principall and this confirms my opinion Quod fiat concessum per totam Curiam for there the principall case was that a man made Cony-burrows and the Conies strayed into his Neighbors grounds and adjudged that it was not actionable but it was lawfull for any man to kill them upon his own ground so here c. Doderidge It may be a hurt to the Common-wealth but not a publike Nusance for that ought to be immediate or generall 1. Immediate it cannot be for the erecting of a Dove-coat cannot in it self be a Nusance 2. It is not generall but particular to the Neighbouring Inhabitants And it hath been allowed of all sides that a man may have a Dove-coat by prescription which could not be if it were a Nusance to which Mountague agreed And it is lawfull for any man to kill the Doves upon his own Land but they must be ware that they do it not against any Statute for Doves are preserved by many Statutes as by the Statute of Wales made in the time of E. 1. and the Statute of 18 E. 2. gives directions that the killing of Doves shall be presented at the Leet And the Statute of 18 Eliz. ordains that Doves shall not be shot 3. However the Replevin lies for a fault in the pleading for the harm and nusance which the Doves do is laid to be Per totam patriam wheras it ought to be within the Precinct of the Leet to which Mountague agreed Crook A man hath property in the Doves only by the Possession for being at large they are Nullius in bonis and when they are in his possession to wit in the Dove-coat they do no harm to any and it was lately ruled in this Câ—uâ—t that a man cannot lay Loggs in the Kings high way although there be sufficient room for Passengers because it is a wrong to have the high way strained so here a Prescription should not be good if it were a Nusance for it is all one to erect a great Dove-coat or a little one for a Nusance Non recipit magis aut minus And Bolstons case rather confirms then encreaseth my doubt and so I agree with my Brethren Mountague A man hath Jus duplex in Doves 1. Jus proprietatis 2. Jus privilegii for they fly to and again and as Bracton saith have Animum revertendi and so have not other things which are Ferox naturae And it is a good Argument that this matter was never questioned for it is without question Littleton saith in the case of Disparagement 21 E. 3. 4. They of the Leet ought to enquire of such things as have been enquirable yet the excesse therof is restrainable by the Iustices of Assise A Precipe lies of a Dove-coat as appears by the Verse Mich. Col. and Dower and Partition lies therof which shews it to be lawfull and by the Excesse of Dove-coats restrainable by the Iustices of Assise Book of 17 E. 4. 7. It seems that it is not lawfull to take Doves And as a man cannot prescribe to do a Nusance so the King cannot licence one to do it And therfore I agree that Iudgment shall be given for the Dove-coat The same Term in the same Court. Richardson versus Cabell RIchardson being a Parson libelled against Cabell in the Spirituall Court for Tithes because the said Cabell being an Inn-keeper took all the benefit of his Pasture by putting in Guest Horses into his Pasture wherupon Cabell prayed a Prohibition and it was not granted for it is Tithable in this case But if Cabell had taken a crop of Hay and afterwards he had put Guest Horses into the Pasture in that case it had not been Where tithes shall be paid for grasse of guest Horses Tithable for he had his Tithe before and therby it should seem that some Crop is not Tithable The same Term in the same Court. Southern versus How RAlph Southern Plaintiff in an Action upon the Case against Robert How shews for his case That the Defendant being a Goldsmith in London and having Counterfeit Iewels knowing them to be counterfeit sent William Saldock his Servant with them to the Plaintiff being a Merchant in Barbary to use him for the sale of the Iewels to the King of Barbary and the Plaintiff therupon sold them to the King of Barbary for 800 l. and Saldock having received the said money went from thence And the Iewels being afterwards discovered to be counterfeit the Plaintiff was taken and enforced by Imprisonment to make restitution of the money to the said King But it was said by the Court that the Verdict did not prove the case for it was found that the Defendant did not command his Servant to make use of the Plaintiff nor to sell to the King but generally to any And that the Iewels were of some worth Scil. 80 l. And it was agreed at the Bar by Davenport that in this case the action well lies for the Master shall answer for Where a Master shall be answerable for his Servant and where not his Servant Dyer 151. the Lord Norths case 5 E. 4. 1. the Sheriff shall be amerced for the ill return of his Bailiff And if I command my Servant to kill one who commands another in this case the Master shall not be punished but in Trespasse all are principals and 2 H. 4. 18. If a Servant burns his Masters house wherby another house is burnt there the Master shall answer for it for 14 H. 8. 31. b. an Action upon the case lies where there is no other action provided for such a thing so that an action well lies in this case and see
same time nothing works by the Livery for the reason before given by Jones For the matter of Law he conceived that the unity of possession doth not extinguish the Water-course and that for two reasons 1. For the necessity of the thing 2. From the nature of the thing being a Water-course which is a thing running 1 For the necessity and this is the reason that common appendant by the unity of possession shall not be extinguished for it is appendant to ancient Land-hide and gain arable Land which is necessary for the preservation of the Common-wealth and as in this case there is a necessity of bread so in our case there is a necessity of water And for the case of a way Distinguendum est for if it be a way which is only for easement it is extinguished by unity of possession but if it be a way of necessity as a way to Market or Church there it is not extinguished by unity of possession and accordingly was the opinion of Popham chief Iustice which I take for good Law and the case of 11 H. 7. 25. is a notable case and there a reason is given why a Gutter is not extinguished by unity of possession because it is matter of necessity 2. From the nature of water which naturally descends it is alwais current Et aut invenit aut facit viam and shall such a thing be extinguished which hath its being from the Creation Co. lib. 4. Luttrels case a Mill is a necessary thing and if I purchase the Land upon which the streams goes which runs to this Mill and afterwards I alien the Mill the Water-course remains So if a man hath a Dye-house and there is a water running to it and afterwards he purchase the Land upon which the water is current and sell it yet he shall have the Water-course Dyer Dame Browns case and the principall case in Luttrels case a Fulling-mill made a Water-mill this shall not alter the nature of the Mill but yet it remains a Mill so the water hath its course notwithstanding the unity and he concluded for the Plaintiff Crew chief Iustice I agree that the Declaration is good and also that the Bar is good for the manner but for the matter in Law I conceive that it is not good In our Law every case hath its stand or fall from a particular reason or circumstance For a Warren and Tithes they are not extinguished by unity because they are things collaterall to the Land And for the case of 13 Eliz. in Dyer of an Inclosure I conceive that by the unity the Inclosure is destroyed for the Prescription was interrupted and in Day and Drakes case 3 Jac. in this Court it was adjudged that in the same case the Prescription was gone It may be resembled to the case of Homage Ancestrell 57 E. 3. Fitzherbert Nusans And for our case it is not like to the cases of Common or a Way because the Water-course is a thing naturall and therfore by unity it shal not be discharged also there is a linement out of which every man shall have a benefit and therfore he concluded that Iudgment should be given for the Plaintiff And Iudgment was commanded to be entred for the Plaintiff The same Term in the same Court. Welden versus Vesey AN action of Debt was brought by Welden Sheriff of the City of Coventry against Vesey upon the Statute of 29 Eliz. cap. 4. and declares that it is provided by this Statute that no Sheriff or Minister c. shall take for an execution if the summ doth not exceed 100 l. but 12 d. for every 20 s. and being above the summ of 100 l. 6 d. for every 20 s. and shews that wheras the said Vesey had judgment against one in an action of Debt that the Plaintiff by virtue of a Capias directed to him took the body of the said person condemned and that it was delivered to the Plaintiff and that he for levying of the money had brought this action The Defendant by way of Bar saith that it is provided by this act that it shall not extend to Executions in Towns Corporate and that this was within Coventry and so demurred upon the Declaration And Whitwick argued for the Plaintiff two things are considerable in this case 1. Whether where the summ exceeds 100 l. the Sheriff shall have 12 d. for every 20 s. of the 100 l. and 6 d. for that which is over or 6 d. only for every 20 s. for all the summ 2. Whether this Statute extend to Iudgments in Towns Corporate For the first the letter of the Statute is cleer that he shall have 12 d. for the first 100 l. and 6 d. for the residue for the Statute is that if it be above 100 l. Whether a Sheriff or c. shall have 12 d. in the pound for the first 100 l. and 6 d. for the rest upon an Execution that he shall have but 6 d. therfore if it be under a 100 l. he shall have 12 d. for every 20 s. And the meaning of the Statute is plain also for otherwise the Sheriff shall have a lesser Fee where it is above a 100 l. as where it is a 199 l. then he shall have for 100 l. but this was not the intent of the Statute but the greater the Execution the greater the Fee It was adjudged in one Gores case 10 Jac. that an action of Debt lies upon this Law Pasch 14 Jac. Rot. 351. Brole and Tumblerson Sheriffs of the City of London brought Dabt against Nathanael Michell for execution of 400 l. for 12 l. 10 s. scil 5 l. for the first 100 l. and 6 d. for every 20 1. after But I confesse that the principall question there was whether an action of Debt lies for the money and it was resolved that it did and Iudgment was given for the Plaintiff 2. To the Proviso that this doth not extend to Fees in a Town Corporate whether this extend to executions which go out of Iudgments in this Court or in the Common Pleas into Towns Corporate The Statute shews that before that time the Sheriff had taken great Fees which the Parliament considering restrained them to a certainty The words of the Proviso are generall Provided that this Act shall not extend to any Fees to be taken for any Execution within any City or Town Corporate and although the words be generall yet the exposition shall be according to reason as it is said in Fulmerston and Stewards case in Plow Expesition shal be made against the words if the words be against reason 5 H. 7. 7 38 H. 3. Broo. Livery 6. The King shall have primer Seisen of all Lands of his Tenant which he holds of him in Capite but if one holds of the King in Capite in Socage he shall pay no primer Seisen to the King and this Statute shall have this intendment that this Proviso shall extend only to Executions upon Iudgments
as a memorandum and afterwards there is an order that the Iudgement shall not be filed if the Iudgement upon this shall be stayd and speaks to it and by him the Case of 15. E. 4. 7. is nothing to this purpose for Iustices in Eyre were Iustices by commission and they had not the custody of their Records and so it differs from this case And Jones Justice which was not denyed if a Iudgement be pronounced here and be not entered the Iudges may alter it the next Term. It was said by Noy in this case that all Franchises in England are against common Right and execution of Iustice and for the present purpose he cited one Sir John Wells Case where in a Quo Warranto the Defendant had day to plead or otherwise that judgement should be entered to seise and he failed to plead at the day and the Iudgement was not filed and yet he could not be relieved But it was sayd by some of the Iustices that this was a case of great extremity But by Hendon it was affirmed in the Exchequer in one Sandersons Case and in the principall case the matter was adjourned for a fortnight and ordered that the plea should be accorded Mich. Term 2. Car. in the Kings Bench. Sharp versus Rust IN an Action upon the Case upon an Assumpsit between Sharp Plaintiff and Walter Rust Defendant upon non-Assumpsit pleaded it was found for the Plaintiff and it was moved in arrest of judgement upon these words in the Declaration the Defendant being Father to the Plaintiffs Wife for whom the Apparrel was bought said to the Plaintiff deliver the Apparrel to my Daughter and I will pay for them and saith not to whom the payment shall be made And it was argued by Woobrich of Grayes-Inne that this is no sufficient cause to stay the Iudgement for by necessary implication and reference of the words precedent the certainty of the pers on appeareth to whom the payment ought to be made And he observed that in our Law the time the estate the thing and the person not being sufficiently expressed Where a thing incertain may be made certain both in time estate and person yet by necessary coherence and relation to matter precedent they are sometimes made certain enough 1. For the time Perkins P. 496. puts the Rule if a condition hath relation to an act precedent and no time is limited when it shall be done yet if ought to be done when the act precedent is done and therefore if I. S. be bound to me in 20 l. upon condition that if I enfeoff him of black acre that then he wil pay me 10 l. c. in this case presently when I have enfeoffed the obligor of black acre he ought to pay the 10 l. notwithstanding there be no time limited when it should be payd 2. For the thing being put incertainly yet the communication precedent makes this certain 30. H. 8. Dyer 42. in the Case of the Executors of Greenliffe where it is agreed that albeit it is not shown what thing is granted yet it shall be the Land of which the communication was 3. For the Estate although it be incertain yet sometimes it is made certain by the matter precedent as in the Case Co. lib. 8. A Stewardship was granted for life and afterwards an Annuity was granted for the exercise of that Office without declaring what Estate he should have in that Annuity and resolved that he should have the Annuity for life because he had the Office for life 4. For the person the consideration sometimes ascertains the person and therefore if land he given to one by Deed habendum sibi una cum filia donatoris in frankmariage this shall enure to both because the Feme is Causa donationis and by intendment of law the Land and the feme shal be given together to the man for the advancement of the Feme as it is Mich. 2. 3. Ph. Mary Dyer 126. a 4. E. 3. 4. Plow Com. 158. enfeoff him another and bind him and his heirs to warrant doth not say to whom he shall warrant yet the Feoffee and his heirs shall have advantage of this warranty for it cannot have any other intendment 6. E. 2. Voucher 258. 22. E. 4. 16. Kelleway 108. Co. lib. 8. Whitlocks Case In a Lease for years reserving rent it is the surest way to make the reservation to no person in certain but to leave it to the general intendment of the Law 15. H. 7. A man deviseth that his Land shall be sold for the payment of his debts and doth not say by whom they shall be sold by his Executors because they are lyable for the payment of his debts but if one devise that his land shall be sold saith not for the payment of his debts the devise is void because the Law doth not intend in this case to make the sale 40 E. 3. 5. 4. E. 3. Fitzherbert Obligation 16. Nota if a man be bound in debt or Covenant by writing and puts such a clause in the writing Et ad majorem hujus rei securitatem invenit fidei jussores quorum unusquisque in tot in solido se obligavit that although none speak there but the principall in the writing if the others put to their seals they accept that which the principal spake so become principal 2. E 4. 20. and here in our Case it appeareth that the Deed was so therefore it is reason that the Declaration should be so for there cannot be a material difference between the Declaration the deed especially being upon an agreement which is to be ruled according to the intention of the parties as it is in Plow Com. 140. a. In our Law if any parties be agreed upon a thing and words are expressed or written to make the agreement although they be not apt words yet if they have substance in them tending to the effect intended the Law shall take Intention of parties to be observed them of the same substance as words usuall for the Law regards the intention of the parties and here the intent appeareth that the assumption shall be mâ—de to the Plaintiff although there want expresse words and therefore he prayed Iudgement for the Plaintiff And afterwards the same Term Iudgement was given for the Plaintiff The same Term in the same Court. Beven versus Cowling IN an Action upon the Case Littleton mooved in arrest of Iudgment for the Defendant wherein the Case was this the Defendant assumed that if the Defendant would defer the payment of a bond in which one A. was bound to him and would not implead him upon it then he promised to pay it and he doth not say that he deferred the payment untill such a day and therefore this is no valuable consideration so that the action doth not lye for notwithstanding Action upon the Case upon a â—romise that if â—e would not sue such a
Iudgement for the Plaintiff The same Term in the same Court NOta by Doderidge and Jones Iustices that upon the principall Iudgement reversed the outlawry is also Ipso facto reversed Also if an Outlawry reversed upon revers all of the principall judgement outlawry be awarded if it be not per Judicium Coronator unlesse it be in London the outlawry is voyd It was demanded by the Iustices when the outlawry and Iudgement are affirmed how the entry is And it was answered by Broome Secondary that the entry is generall Quod judicium affirmetur in omnibus and this sufficeth But if the Iudgement be affirmed and the outlawry reversed then the entry is Quod judicium affirmetur Utlagario cassetur The same Term in the same Court Calfe and others versus Nevil and others AScire facias was brought by Joseph Calfe and Joshua Executors of A. against Nevil Davyes and Bingley and the Case was this they became bayle to one Hall who was condemned in an Action to the Testator of the Plaintiff that the said Hall should either render his body to Prison or that he should satisfie the Iudgement the Defendents Plead that after the Scire facias returned and presently after the Iudgement the said Hall brought a Writ of Error in the Exchequor Chamber hanging which the said Hall reddidit se prisonae in exoneratione manucaptorum suor and there dyed and the Plaintiffe demurred upon this Plea because it was double and Calthorp argued for the Plaintiff that it was double or rather treble 1. That Reddidit se prisonae 2. That he was imprisoned 3. that he dyed in Prison And to prove the Piea double in this Case he cited 13. H. 8. 15. 16. 4. E. 4. 4. 21. H. 7. 10. The second matter that he moved against the former was that pendant the Writ of Error reddidit se prisonae and doth not conclude upon the Record hoc peratus est verificare as he ought to have done and for this he cited 7. H. 8. Kelleway 118. If J. S. bee bound in a Recognizance that A. shall appeare such a day before the Kings Iustices at Westminster if his appearance be not recorded hee shall not have any averment by Bricknell and Conisby and in 30. Eliz. It was one Wicks Case which is ours in effect in case of baile Dyer 27. 6. E. 4. 1. 2. For the matter the Plea is nought 1. Because by the Writ of Error brought the Scire facias against the baile is not suspended because the Bayle is a distinct record and upon this he cited the Case of the Ambassador of Spain against Captaine Gifford which was Trin. 14. Jac. That by the Writ of Error brought the baile was not suspended and he said that it was so resolved also in Goldsmith and Goodwins Case 2. For the render of the principall to prison it is not good because it doth not appear upon Record and for this he cited one Austin and Monkes Case which was in 14. Jac. In Scire facias against the baile it is pleaded that the principall had rendered himselfe to prison and upon the matter it appeared that the render was upon Candlemas day which is not Dies juridicis and so the Court this day had no power to commit him to prison for which the Plea was adjudged voyd 3. For the death it is no Plea the baile by it is not discharged because he hath not rendered himselfe in due time and for this he cited Justice Williams and Vaughans Case which was Mich. 3. Jac. where in Scire facias against the baile they pleaded that the principall was dead and thereupon the Plaintiff demurred and in this Case two points were resolved 1. There was no Capias mentioned to have issued against the principall and yet resolved that a Scire facias would lye against the Baile 2. That the Plea in Bar is not good because it may be that the principal dyed after the Capias awarded or after the return thereof because it appeareth that there was once a default in the principal and so the baile forfeited and no Plea afterwards would discharge it and upon this he put this Case A Prisoner escape out of Prison the Goaler makes fresh suit and before he hath taken him the Prisoner dies this is the act of God and yet because it was once an escape an Action of Escape lyes against the Goaler Jermy for the Defendent and he remembred a Case which was Hil 20. Jac. Cadnor and Hildersons Case that by the Writ of Error the bayle is suspended Nota that it was agréed by the Court in this case that by the Writ of Error brought in the bayle was not discharged because it is incertain whether the Iudgement shall be reversed or not Also it was agreed that if the principal dies before a Capias awarded against him that the bayle is discharged It was also agreed by the Court that the Plea was not double for the first matters are but an inducement to the last and yet by Doderidge if severall matters are pleaded in Bar and there be not any dependency on them the Where a Plea is double and where not Plea is double although none of them be materiall but one Jones Justice cited one Hobs and Tadcasters Case which was 43. Eliz. in B. R. where after a Writ of Error brought a Scire facias issued against the Bayle and upon Nihil returned the Plaintiff in the Scire facias brought in an Audita Quaerela and there the matter came in question whether upon the Iudgement the Principall ought presently render himself to prison or that he should stay until a Capias awarded against him and there it was resolved by Popham and all his Companions that the Principal is not bound to render himselfe to Prison untill a Capias be taken out so that if he dies after the Iudgement and before the Capias awarded against him the Bayle is discharged And in the principal Case here it was resolved that a Scire facias does not lye against the Bayle until a Capias be awarded against the Principal because no Capias in this case was awarded against the Principal which could not be by reason of the Writ of Error before his death And also the Plaintiff in his Declaration ought to have averred and shewn that the Capias was awarded against the Principal for these reasons Iudgement was given quod quaerens nil capiet per Billa The same Term in the same Court. Reynor versus Hallet IN an Action upon the Case for these words viz. Reynor is a base Gentleman Words Reynor is a base Gentleman he hath foâ—â— childâ—en by his seâ—vant Agnes and he hath killed or caused them to be killed he hath four children by his Servant Agnes and he hath killed them all or caused them to be killed and after a verdict for the Plaintiff it was moved in arrest of Iudgement by Jermy that the words were not actionable For 1.
that it was good enough for although it were a joynt command yet the parties commanding having severall titles it shall be taken as severall commands reddendo singula singulis and for the third it is good enough being in a Plea otherwise if it had been in a Writ But for the second Exception the bar is not good enough because incertain so that although upon other Exceptions moved by the Defendant the Replication of the Plaintiff was not good yet the Defendants Bar being ill the Plaintiff shall have Iudgement upon tâ—e Declaration And the Plaintiff had Iudgement accordingly The same Term in the same Court Risley versus Hains IN an Action upon the Case upon an assumpsit the Plaintiffe declared upon the Sale of several parcells of Tobacco to wit for one parcell so much for another parcell so much and so forward and in the Conclusion he saith quae quidem separales summae in toto se attingunt to 55. l. which being computed is lesse then the pariculars and upon non assumpsit it was found for the Plaintiffe and now Andrewes moved in arrest of Judgement for that the particulars and the summing up of them differs and this being in a Declaration which ought to contain truth it is not good and so there appears to be no cause of action 35. H. 8. Dyer 55. And Grices Case in the very point Mich. 17. Jac. in this Court but by Jones and Whitlock Iustices onely present the Declaration is good enough for there is a particular promise for every parcell and the summing up of particulars is only surplusage and officiousness of the Clark therefore the Iudgement was affirmed And nota that Jones said obiter in this Case that upon a contract the Party to whom payment is to be made need not make request and afterwards it was agreed by the whole Court that it should be amended otherwise it had been more The same Term in the same Court A Great multitude of Welsh-men were Indited for the death of a man by an Inquisition taken before the Coroner in the County of Mountgomery in Wales and Littleton of Councel with the Welsh-men took some Exceptions to the Inquisition as 1. That the Coroner cannot take any Inquest unlesse it be super visum corporis and to this purpose he cited Britton 6. Ric. 2. Coron 107. 21. E. 4. 70. 2. Ric. 3. 2. This also is the reason that if a man drown himselfe and cannot be found the Coroner cannot enquire of the death of this man but for the King to have a forfeiture of his Goods an Inquisition ought to be taken before the Iustices of Peace as it was resolved in this Court Trin. 13. Jac. upon which the first exception was that the Inquisition was taken at D. in the time of King James super visum corporis in D. in the time of this King and for this he cited two presidents out of Cookes Booke of Eâ—tryes Another Exception was because the Inquisition was per Sacramentum probor legal hominum Com. predict whereas by the Stat. of 4. E. 1. this inquest ought to be by men of the four Towns next adjoyning and this ought to appear in the Inditement also Hill 10. Jac. Rot. 3. Co. lib. Intr. 354. And day was given to the Attorney General to maintain this Inquisition But afterwards Pasch 3. Car. the Inditement was quashed especially for the first exception The same Term in the same Court King versus Merrick In an Action upon the Case for these words I charge you King with Felony and you Constable inuendo Thomas Legat to apprehend him And a verdict for the Plaintiff It was moved in arrest of Iudgement by Bacon that the words are not actionable The first words are not because they are not an expresse affirmation and for this he cited Mich. 11. Jac. in this Court Powel and Bauds case where an action was brought for these words I have arrested Powel of Felony for stealing sheep of mine and adjudged not actionable Also the Plaintiff did not shew in his Declaration what kinde of felony this was and it may be such a felony for which an Action will not lie for there are divers kinds of felony and a Mayhem is one kind as appears in 40. Ass Pl. 4. 6. H. 7. 1 and in this case it shall be taken in mitiori sensu and it shall not be intended such a felony for which he may be hanged If one charge another with felony because he hath committed a Mayhem it is cleer that an action will not lye And the other words I charge you Constable to apprehend him are not actionable and the words are onely spoken to the Plaintiff Also the words are layd to be spoken in London and it appears that the Constable was of a Town in Norfolk who cannot apprehend any one in London Earle for the Plaintiff It hath been argued that the words are not actionable because felony is a generall word and contains in it selfe a mayhem also But I conceive that in this case felony shall be taken according to the general and common acceptation which is such a Felony for which a man may loose his life and for this he cited Co. lib. 4. 15. b. Yeomans charged Hext for my ground in Allerton Hext seeks my life and if I could find Iohn Silver I do not doubt but within two dayes to arrest him upon suspition of Felony and it was adjudged that for the last words the Action lies because he shall be imprisoned for suspition of felony and felony is there taken according to the common acceptation of the word It hath been objected that there is no expresse affirmation of the Felony but I conceive that there is 39. Eliz. Action was brought for these words I will call him in question for poysoning my Aunt and adjudged that it lyes and Mich. 37. and 38. Eliz. Woodrofe and Vaughans case for these words I did not know Mr. Woodrofe was your Brother I will prove him perjured or else I will bear his charges and adjudged actionable And Hill 44. Eliz. Rot. 351. This man inuendo Iohn Latham hath cut my Wives purse and his Father knowing of it received it of him and the Money and Rings theein and therefore I charge him of flat Felony and resolved that for these words did cut my Wife's purse no action lies for the cutting of ones purse only is not felony unlesse it be taken from the person and to receive one is not Felony but resolved that the last words were actionoble and then it was agreed that if one say that I. S. did see such a one that had committed felony and did suffer him to slip away I charge him of Felony these words are not actionable and Mich. 20. Jac. in this Court that these words beare witnesse I arrest him of felony are actionable and therefore he prayeâ— judgement for the Plaintiff Doderidge Iustice the words are not actionable And Hexts case comes not to this
case for there by the word Felony it was manifest what Felony he intended by the circumstances of the speech to wit that he ment such felony for which he might lose his life But the words here being generall of Felony it may be intended as well of a Mayhem aâ— of any other Felony for in an appeal of Mayhem he is arraigned as Felo Domici Regis 40. Ass and the other case of 44. Eliz. I do arrest him of flat Felony is not consonant with the reason of this case for there by the arrest his liberty is taken away but in this case there is no restraint and it is very hard to make these cases agree together for words are as variable as the faces of men c. Jones Justice agreed and he took it for a generall rule that where words carry a double sense and there is nothing to guide the sense more one way then another there the words are not actionable for finis est legis dirimire lites And therefore if one faith of another that he hath the Pox because the sense is ambiguous it shâ—ll be interpreted in mitiori sensu and therefore the words are not actionable to if one sayes of another that he hath stolen his Apples or his Corn because they may be Apples from the tree or Corn in the field the taking whereof is no felony but it was adjudged in the Common-Pleas when I was there that these words viz. Thou art a Thief and hast stolen my Corn are actionable by reason of the addition of the word Thiefe So that the speaking of words of a double sense are not actionable unlesse ex antecedentibus or consequentibus it can be collected that the words were spoken in pejori sensu Then the words in this case I charge you with Felony peradventure intend such a Felony for which he shall recover damages only which is Mayhem and therefore no action will lie These words Thou art forsworn are not actionable because forswearing may be in ordinary communication or in a Court of Justice and it shall be taken in mitiori sensu but if he sayes Thou art forsworn in a Court of Record it is actionable and if in this case he had charged him with Felony and sayd further that he had stolen c. they would have been actionable but here he only charges him with Felony which is an ambiguous word and also it is no direct affirmation and therefore not actionable and Iudgement was given Quod quaerens nil capiat per Billam The same Term in the same Court Goods Case GOod and his Wife brought a Writ of Error upon a Judgement given in the Court of the Castle of Windsor in an Action of Debt there which was entered Trin. Mich. 2 Car. Rot. 119. 120. and two Errors were assigned 1. Because the Judgement there is given in these words ideo consideratum ad judicatum assessum est whereas it ought to be onely by the word consideratum and the Judgement being the act of the Court the Law is precise in it and therefore it hath been resolved that a Judgement given by the word concessum is not good but it ought to be by the word consideratum 2. The costs ex incremento are not said to be given ad petitionem quaerentis aâ— it ought to be for beneficium nemini obt ruditur and therefore it hath been resolved in this Court that an alien born shall not have medietatem linguae if he does not request it and as to this it was answered of the other side that costs ought alwayes to be assâ—ssed ex petitione quaerentis and albeit here the request of the Plaintiff was not precisely put to increase of the costs yet at the beginning of the Judgement it is said Ideo ad petitionem quaerentis consâ—â—eratum c. And that costs shall be given ex in cremento so that this request goes to all the Sentence and by the unanimous opinion of all the Court the Judgement was reversed for both the Errourrs for 1. Ideo considerat adjudicat c. is not good the Judgement being the Act of the Court and the Law hath appointed in what words it shall be given and if other words should be suffered great incertainty and confusion would ensue and needâ—esse verbosity is the mother of difficulty 2. The increase of costs ought to be given ad petitionem quaerentis and the words ad petitionem quaerentis being misplaced will not supply this defect and Dammages ex incremento is alwayes given ad petitionem quaerent for as Bracton saith Omne judicium est trinus actus trium personarum judicis actoris rei and if in this case the usuall form should not be observed all would be in a confusion and in as much as the words are misplaced it is as if they had not been put in at all and therefore void like to a case put in Walsinghams case in Plowden where an averrement misplaced is as if there were none In this case the Judgement was reversed and Trin. 3 Car. in B. B. intr Hill 2 Car. Rot 849. a judgement was reversed because it was Ideo concessum consideratum est FINIS THE TABLE OF THE PRINCIPALL MATERS Contained in this BOOK A. ACceptance 113 Of a second Lease determines the first 9 Action 179 Where the Master shall be charged in an Action for the act of the Servant e contr 143 Action upon the case for words 35 36. 139. 140. 128 129. 148. 150. 177. 180. 184. 187. 207. 210. Action upon the case 116. 144. for pulling down a house 15 Against an Officer for his neglect 27 For laying too much waight wherby goods in another mans possession are lost 46 For stopping of a Water-course 166 Accessaries 107 Adjournment 33 Administration  not avoided by Averment 37. granted by a Lay-man 160 Administrators  Of the Wise shall have a Lease setled on the Wife not the Husband 106 Admittance 125 What the Heir may do before admittance 39 upon a surrender by a Disseisor 71 Addition  Of matter of Ornament shall not avoid a grant 57 Advowson 23 Agreement 134 construed according to the intention of the parties 182 Where to be joynt where severall 204 Alien  Where he may purchase where not 36 Amendment 21. 128. 203 204. Of the Postea and made according to the Pannel and the Record 102 Of a Record after the Record removed and Errour assigned 196 Annuity 87. 86 Pro consilio 135 Appropriation 144 145 Appeal  Of Mayhme 115 Plea in it 115 Assesment  by the major part of Parishoners shall bind the rest 197 Assumpsit 148. 182 183. 193. 206 against an Executor of an Assumpsit in the life of the Testator 30 31 32. generall indebitat Assumpsit 31 without consideration is nudum pactum 178 What shal be a good consideration to ground Assumpsit 183 184. Assise 111. Assets where a Lease for years to a Copyholder in the hand of
shall take effect by Livery where by Jurolist 49 Grants of the King  Where voyd 61 H HEire Where he shall be charged where not 152 153 I JMparlance  Not before a Declaration is entred 150 Imprisonment  Where justifiable 13 Indictments 107 134 210 taken before Coroners Where quashed 202 Upon the Statute of 8. H. 9. of forcible entry of copy-hold Lands 205 Inn-keepers 128 179 may detain a Horse untill he be satisfied for his meat 127 Inquisition  by the Coroner in case of death must bee Super visum corporis per sacramentum proborem legatum hominum where not hood 210 Indiciments  for stopping a Church-way where good 206 For being a Night-walker where good 208 If good in one part shall not be quashed  Joyâ—ture  where it may be waived 88 Joynt-tâ—nants â—6 Justâ—fication 13. 161 Justices of Peace of Gaol delivery and Nisiprius and their power 17 Judgmâ—nts 211. 212 by Nihil dicit 153 Where a Judgment reversed without Errour brought where noâ— 181 Entred in the Book as a Memorandum stayed by a subsequent order of Court 181 L. Lâ—ases 99. 106. 57 Void by Acceptance 9 Where in Reversion good 9 By Tenants for life or years to begin after his death 96 By a Copyholder upon a License 105 Where determined without entry 27. 53. 64. Lessce for life without impeachment â—f Wast may make a Lease excepting the Trees 193 What interest he hath in them ib. Leeâ— 141 Libels  Where a privaâ—e Letter is punishable aâ— a Libell 139 Legacies not payable but upon demand 104 Livery of Seâ—sin 103 Where words spâ—ken upon the 〈◊〉 do amount to a Livery 47 49 Liâ—â—se  〈◊〉 couâ—termandable 151 〈◊〉 a Copâ—holder to make Leaâ—es 150 〈◊〉  〈…〉 by Bargain and Sale by word 48 Lunatick  The Action must be brought in his name 141 M. MAgis dignum continet in se minus 35 Mayhem 115 Market Overt  Where the Sale shall be good where not 48 In a Scriviners Shop of Plate void 84 What kind of Sale alters the property 84 Monstrans of Deeds 113 Melius Inquirendum  Where it shall issue where not and what to be found upon it 54 55 Misnosme 151 In Grains 57 Of a Corporation 58 N. NOtice 37. 151. Of a condition of payment where to be given 12 Taken strongly against the Party 12 Of one Sheriff to another Sheriff of the persons in Execution 85. 86 Where requisite 136. 164 Nusance 166 Errecting a Dove-coat by a Freeholder no Nusance 141 O. OBligation 165. discharged by the act of God 98 not to be avoided by the act of the Obligor himself 40 To the use of a Feme Covert shall go to her Administrator not to the Husband 106 One forfeited revived and good 16 Office and Officers  Where an Office is void Ipso facto 28 Forfeited and by what act 117 Of his own wrong 149 Office Trove 25 26 Where Lands shall be in the King without Office 19 Relates 20 helps the King to the meane profits 30 Countervailes an Entry And where no entry is requisite in case of a common person There needs no Office found for the King 53 Where an Estate shall be devested out of the King without Office 63 Where not 64. without Returne or Monstrans de droit 64 Oyer  Where of a condition where not 202 P. PAtents 16 Where the Patentee shall take advantage of a condition to avoid a Lease 27 Void for the generality in the Grant 61 Void notwithstanding the words Ex certa sciaentia 61 Perjury where not punishable 144 Pleadings 28. 42. 101. 109. 152. 150. 160. 163. 206. Void because double Plea 113. 114 Nul tiel in rerum natura no Plea in appeal of Mayhem 115 Perpetuities 97. not tollerable 80 Plenarty by Induction of a Lay-man 37. Binds not the King 133 Proviso How to be construed 27 For a Limitation 53. 117. 118 119 Where repugnant and void 87 Possessio fratris 35 Principall Accessare 107 Prisoners Must be delivered over at the Gaol 85. 86 Presentation 132 Proofs What Proofs are to be allowed in the Ecclesiasticall Court 59 Priviledges  Grant by the Pope not allowable 157 Prescription 169 For Common for Vicinage good 101 Difference betwixt it and Custome and how to be taxed 201 â—roperty 38 What kind of Sale alters the property 84 â—rohibition 59. 126. 159. 197 For a Seat in the Church 140 Severall Prohibitions in one Cause 156 Prerogative 26 Q. QViâ— juris clamat 63 〈◊〉 warrantâ— 150. 180 Quare Impedit by an Executor for a disturbance in vite Testator 189. 190 191 R. RAvishment of Ward by an Executor 190. 191 Recovery 6. 5 Releaâ—es 28. 132 Exâ—cuted where avoided by Proviso 16 Of all demands will dischaâ—ge a rest in â—uturo 136 Relation 12 Of a Baâ—l 132 Of Entry of Judgement 132 Return of the Sheriff of a Capias upon a day not Dies faci good 205 Request 160. 211. 212 Upon payment upon a Contract is not necessary 211. 212 Remainder 97 in Fee not good upon a Lease for years 4. 82 Must take effect when the particular Estate determines for life wiâ—hout impeachment of Wast whether he may cut Trees duâ—ing the life of Tenant for life 196. 74 Rents  Rent and Pension all one in a Demand in a â—ecovery 23 Where the Executor shall have the rent upon a Lease of the Wâ—ves land 145 Restitution  Of an Alderman to his place 134 Of one put out of his Office 176 Reservatâ—on 145 195. how construed 17 Revivor 167 S. SAvingâ— in an Act of Paâ—liament how construed 17 Scire 〈◊〉  Lâ—es â—â—t against the Bail till a Capiaâ— be awarded of the Principall 186 Seals 161 Scandalum Magnatum 66 Sheriffs Oâ—e Sheriff must deliver over the Prisoners to the other by Indeâ—ture 85. 86 Surplusage  shall not abate a Writ 24 Surrender 9. 31. 84. 110. 125 129 Of the Husband of the land of the Wife no discontinuance 38 39 Of an Infant Copyholder void 39 Of an Alderman of his place 134 Of Tenant for life in remainder good without Deed 137 138 T. TAles  where awarded of Aliens 36 Tender  where not good to avoid a condition 20 Title  where must be made 1 2 Trusts not abridged 8 Their difference from Uses 77 Traverse 1. 101. 103. not necessary where there are two Affirmatives but where they do not agree 67 Traverse upon a Traverse 101 Circumstances not traversable 161 Treason 122 Triall  Of the same person upon another Indictment after Attainder upon a former Indictment 107 Transporting Corn 149 Trespasse 161 Where Vi armis e contr 192 Tithes 140 Where discharged by Prescription or Priviledge 156 De animalibus inutilibus animalibus utrilibus and the difference 197 Of Sheep and their pasturing wool c. 157 V. VErdict 19 void 202 Found for thâ— Deâ—endants because no 〈…〉 â—â—tred for one of them 145 Volenti non fit injuria 9 Use and Uses  What a Use is 71 How to be construed 3 Not to be abridged 8 Void upâ—n a tender 18 Raised by word upon a good consideration where good where not 47 49 Raiâ—ed upon Contracts 48 Considerations to raise Uses 48 49 A bare Covenant writing without consideration will not raise an Use 50 What persons cannot stand seised to Uses 72 Uses contingent not executed by the Statute of 27. H. 8. 72 Uâ—es contingent destroyed by a Feoffment 72 Uses grounded upon fraud 77 Use cannot râ—â—e out of a Uâ—e 81 Uses in contingency barred by a Release of the Feoffees 83 Use upon a Bargain and Sale for years passeth without inrolement of the Deed 38 Use amerced upon a Fine upon render without a Deed 105 W. WAger of Law 127 Words  Where the King shall have a third part of the Land of the Ward and of other land setled upon a marriage 54 Wast 24. 25 47 Damages in Wast 24 Warrants  When a Warrant is returned upon Record in case of the King it is as strong as an Office found 20. 28 29 Warranty  doth bind an Infant if his Entry is not lawfull 71 cannot enlarge an Estate 138 Wills 152 Words which make a condition in Wills 8 Writ  of enquiry of damages 24 Where not abated 24 Originall shall be taken as they are written 101 FINIS