dies and afterwards John his Son and Heir dies without Issue the reversion by this descends to the said Christopher who dies leaving Issue And upon this Case made in the Court of Wards the two chief Iustices Popham and Anderson agreed first That upon the devise and death of the Father the said Christopher and William were Joynt-tenants of the Land and not Tenants in Common notwithstanding the word severally because it is coupled with the said word joyntly But yet they agreed also that by the descent from John to Christopher the Fee-simple was executed in the said Christopher for the Moyety in the same Mannor as if he had purchased the Reversion of the whole or of this Moyety and that it is not like to the Case where Land is given and to the Heirs of one of them in which case for the benefit of the Survivorship it is not executed to divide the Ioynture because the Estates are made at one and the same time together and therfore not like to the case where the Inheritance cometh to the particular Estate by severall and divided means And a Decree was made accordingly Trin. 36. Eliz. In the Kings Bench. 1. IT was agreed by all the Iustices and Barons of the Exchequer upon an Assembly made at Serjeants-Inn after search made for the ancient Presidents and upon good deliberation taken If a man have two houses and inhabit somtimes in one and somtimes in the other if that House in which he doth not then inhabity be broken in the night to the intent to steal the Goods then being in his house that this is Burglary although no person bee then in the House and that now by the new Statute made such an Offender shall not have his Clergy for before the Statutes were made which take away Clergy in case of Burglary where any person was put in fear no mention was made in the Inditements of Burglary that any person was in the House But it was generall that the house of such a one Noctanter fregit and such Goods then there Felonice cepit And the breaking of a Church in the night to steal the Goods there is Burglary although no person be in it because this is the place to keep the Goods of the Parish And in the same manner the house of every one is the proper place to preserve his Goods although no person be there And that the Law was alwaies so it is to be collected by the course of the Statutes therof made for first the Statute of 23 H. 8. doth not take Clergy from any in case of Burglary unlesse some of the same Family be in the house and put in fear And in 5 Eliz. 6. The Offendor shall be ousted of his Clergy if any of the Family be in the house be they sleeping or waking And these Statutes were the cause that it was used of late time to put in the Inditements of Burglary that some person of the Family was then in the house to put them from their Clergy But this doth not prove that it shall not be Burglary but where some person was in the house and by 18 Eliz. Clergy is taken away in all cases of Burglary generally without making mention of any person to be there which enforce the resolution aforesaid and according to it they all agreed hereafter to put it in Execution Finch versus Riseley 2. IN this Term the case betweeen Finch and Riseley was in question before all the Iustices and Barons for this assembled at Serjeants-Inn in Fleetstreet where after Arguments heard by the Councell of the parties upon this point only If the Queen make a Lease for years rendring Rent with a Proviso that the Rent be not paid at the day limited that the Lease shall cease without making mention that it was to be paid at the receit whether the Lease shall cease upon the default of payment before Office found therof And by Periam and some of the Iustices the Lease stall not cease untill an Office be found of the default because it is a matter in Fait which determines it to wit the not-payment And by Gawdy it shall be taken as if it had been for the not-payment that the Proviso had been that the Lease shall be forfeited In which case it is not detennined untill Re-entry made for the forfeiture which in the Queens case ought alwaies to be by Office which countervails the re-entry of a common person As where the Queen makes a Lease rendring Rent and for default of payment a Re-entry albeit the Rent be not paid yet untill Office found therof the Rent continues Popham Anderson and the greater part of the Iustices and Barons resolved that it was cleer in this case that Ipso facto upon the default of payment the Lease was determined according to the very purport of the contract beyond which it cannot have any beeing and therfore there needs no Office in the case But where it is that it shall be forfeited or that he shall re-enter there untill advantage taken of the forfeiture in the one case or untill re-entry made in the other case the Term alwaies continues by the contract And where in the case of a common person there is need of a re-entry to undo the Estate there in the case of the King there needs an Office to determine the Estate for an Office in the Kings case countervails an entry for the King in person cannot make the entry And upon this resolution of the greater part of the Iustices in Mich. Term 31 32 Eliz. the same case was in question in the Office of Pleas in the Exchequer between the said Moil Finch Plaintiff and Thomas Throgmorton and others Defendants and there adjudged by Manwood late chief Baron and all the other Barons unanimously after long argument at the Bar and Bench that the Lease was void upon default of payment of the Rent according to the Proviso of the Lease and this immediatly without Office for the reasens before remembred upon which Iudgment was given a Writ of Error was brought before the Lord Keeper of the great Seal and the Lord Treasurer of England where it long depended and after many arguments the Iudgment given in the Exchequer by the advice of Popham and Anderson was affirmed and that upon this reason for the Proviso shall be taken to be a limitation to determine the Estate and not a Condition to undo the Estate which cannot be defeated in case of a Condition but by entry in case of a common person and but by Office which countervails an entry in the case of the Queen And this Iudgment was so affirmed in Mich. Term 36 37 Eliz. Smiths Case 3 IT was found by Diem clausit extremum after the death of Richard Smith that in consideration of a marriage to be had between Margaret Smith and William Littleton a younger Son to Sir John Littleton Knight and of 1300. marks paid by the said Sir John to the said
to attend and be assistant to the Iustices Sheriffs or other Ministers of the King in the doing of it 3. AT the same time it was also resolved by them all except Walmsley Fennor and Owen in the Case of one Richard Bradshaw and Robert Burton who with others lately by word entred themselves into an agreement one with another to rise and put themselves into Armes and so to go from one Gentlemans house to another and so from house to house to pull down Inclosures generally that this so appearing by their own confession or by two Witnesses according to the Statute is high Treason by the Statute of 13 Eliz. cap. 1. The words of which Statute are That if any intend to levy War against the Queen and this maliciously advisedly and expresly declare or utter by any words or sayings that this shall be high Treason For all agreed that Rebellion of Subjects against the Queen hath Rebellion of Subjects high Treason been alwaies high Treason at the Common Law for the Statute of 25 E. 3. cap. 1. is that levying of War within the Realm against the King is Treason and Rebellion is all the War which a Subject can make against the King But Walmsley and the others with him said that the Statute of 1 Mar cap. 12. 10. That if any to the number of twelve or more assemble themselves to the intent to pull down Inclosures Pales and the like with force and continuing together after proclamation according to the Statute to go away by the space of an hour or do any of the Offences mentioned in the Statute that this is Felony So that if these Actions had been Treason at the Common Law it had been to no purpose to have made it Felony And it seemed to them that the resistance ought to be with force to the Queen before that such Acts shall be said Treason But all the other Iustices agreed and so it was put in ure lately in the case of the Prentices of London that if any assemble themselves with force to alter the Laws or to set a price upon Victualls or to lay violent hands upon the Magistrate as upon the Major of London and the like and with force attempt to put it in action that this is Rebellion and Treason at Common Law and yet this Statute of 1 Mariae makes it in such a case but Felony And they put a diversity between the cases of pulling down Inclosures Pales c. comprised in the Statute of 1 Mar. for those are to be understood where diverse to the number of twelve or more pretending any or all of them to be injured in particular as by reason of their common or other Interest in the Land inclosed and the like and assembling to pull it down forcibly and not to the cases where they have a generall dislike to all manner of Inclosures and therfore the assembling in a forcible manner and with Armes to pull them down where they have any Interest wherby they were in any particular to be annoyed or grieved is not Treason but the case here tending to a generality makes the act if it had been executed to be high Treason by the câ—uâ—se of the Common Law And therfore the intention appearing as the case is here it is Treason by the Stâ—tute of 13. aforesaid Periam in some manner doubted of the principall case but to intend to rise with force to alter the Laws to set price upon any Victuals or to use force against a Magistrate for executing his Office of Iustice and the like he said that they were cleerly Treason by the Statute of 13. aforesaid if it may appear by expresse words or otherwise as the said Statute mentions for all these tend against the Queen her Crown and Dignity and therfore shall be as against the Queen her self And if it had been put in practice it had been Treason at the Common Law Here ends the LORD POPHAM'S REPORTS An addition of certain Select CASES in the time of KING JAMES and KING CHARLES Trin. 15. Jac. In the Kings Bench entred Hill Jac. Rot. 194. Brooks Case IN an Ejectione firmae brough by one Brook against Brook the Case was thus Iohn Wright a Copyholder in Fee 10 Eliz. surrendred his Land into the hands of the Lord by the hands of Tenants according to the Custom c. without saying to whose use the Surrender should be And at the next Court the said Iohn Wright was admitted Habendum to him and his Wife in Tail the remainder to the right Heirs of Iohn Wright and the Wife of Iohn Wright now Defendant was seised from the time of Where upon surrender of Copyhold land no use is limited to whole use iâ— shall be the admittance untill this day And it was objected by the Counsell of the Plaintiff that the surrender was void because no use was limitted and therfore by constitution of Law ought to be to the use of the Surrender as if a Feoffment be made and no Use limited it shall be to the Use of the Feoffor or as it is in Sir Edward Cleers Case Coke lib. 6. 18. If a Feoffment be made by one to the use of his last Will he hath the use in the mean time 2. That the admittance was not available to passe an Estate to the Wife for she was not named in the Premisses but only in the Habendum and the Office of an Habendum is to limit the Estate and not the person and therfore it is said in Throgmorten and Tracies Case in Plowd com That if one be named to take an Estate in the Habendum where he was not named at all in the Premisses this is not good But it was resolved by the whole Court for the first point that the subsequent Act shâ—ll explain the Surrender for Quando abest Provisio partis adest provisio legis And when the Copyholder accepts a new admittance the Law intends that the Surrender generally made was to such an Vse as is specified in the admittance and the Lord is only as an Instrument to convey the Estate and as it were put in trust to make such an admittance â—s he who surrenders would hâ—ve him to make And Crook Iustice said Fides adhibita fidem obligat For the second point it was also agreed by the Court that the Wife shall take by this admittance albeit she were not named in the Premisses but only in the Habendum and they agreed that in Feoffments and Grants the party that is not named in the Premisses shall not take by the Habendum and therfore Throgmorton and Tracies Case as to this point is good Law But this case of a Copyhold is like to the case of a Will or to the case of Frank-marriage in which it is sufficient to passe an Estate albeit the party be only named in the Habendum and if it should be otherwise the Estates of many Copyholders would be subverted And so they resolved that Iudg-should be
Terme in the same Court WEld of the Inner Temple moved for a Prohibition to the Ecclesiasticall Court at Worcester and shewed for cause 1. That the suit there was for money which by the assent of the greater part of the Parishioners of D. was assessed upon the Plaintiffe for the reparations of the Church to wit for the recasting of their Bels the truth is that the charge was for the making of new Bels where there were four before whereby it appears that it is meerly matter of curiosity and not of necessity for which Parishioners shall not he liable to such taxations and he relied upon 44. E. 3. 19. by Finchden 2 The party there is overcharged of which the Common Law shall Judge 3 The Party hath alledged a Custome that he and all those who hath an estate in such a Tenement have used to pay but 11 s. for any reparation of the Church But the Prohibition was denied and by Doderidge in the Book of 44 E. 3. there was a By-law in the case to distrain which is a thing meerly temporal for which the Prohibition was granted per Curiam in this case the assessment by the major part of the Parishioners binds the party albeit he assented not to it and the Court seemed to be of Opinion that the Custome was not reasonable because iâ—â—aid a burthen upon the rest of the Parish Littleton of Counsell of the other side suppose the Church falls shall he pay but 11 s. Whitlock If the Church falls the Parishioners are not bound to build it up again which was not denied by Justice Jones The same Term in the same Court A Prohibition was prayed because a person had libelled in the Ecclesiasticall Court for the tenth part of a bargain of Sheep which had depastured in the Parish from Michaelmas to Lady day and the party surmised that he would pay the tenth of the Wooll of them according to the custome of the Parish But the Prohibition was denyed for as Doderidge Iustice sayd by this way the person shall bee defrauded of all if he shall not have his recompence for now the Sheepe are gone to another Parish and he cannot have any Wooll at this time because it was not the time of sheering Nota per Whitlock de animalibus inutilibus the Person shall have the tenth part of the bargain for depasturing as Horses Oxen c. but de Animalibus Utilibus he shall have the Tith in specie as Cowes Sheep c. The same Term in the same Court UPon an Issue joyned in an Ejectione firmae it was found for the Plaintiff and Lewkoor moved in arrest c. because the Ejectione firmae was de Messuagio â—ive Tenemento which is not good for the incertainty and so it was resolved 12. Jac. in this Court and Ejectione firmae lies not De Tenemento Co. lib. 11. 54. Savils case And it was resolved in the Exchequor-chamber that it lies not de pecia terrae and in this Court in Rhetorick and Chappels Case it was resolved that it lyes not De Mess Tenemento The same Term in the same Court Sir Robert Browne against Sir Robert Stroud IN debt upon an Obligation for performance of certain Covenants contained in certain Indentures made between the Parties aforesaid and the Covenant upon which the question did arise was this R. B. being seised of the Mannor of Dale S. R. S. of the Mannor of Sale they exchanged the one for the other and the Mannor of R. B. being more worth then the Mannor of R. S. R. S. covenanted to pay for the said Mannor 1200 l. and no time was limited when the money should be payd and the money not being payd within a year after R. B. bargained and sold the said Mannor by Deed indented and inrolled to J. S. and his Heirs and afterwards brought an Action of Debt against the said R. S. for the said 1200 l. who pleaded this mater in Bar and Jermy argued for the Plaintiff that this Plea shall not discharge the Defendant of the said Covenant for it is a reciprocall covenant and he ought to sue the other Party for the breach of the covenant and it is a perfect bargain Dyer 30. 14. H. 8. 9. and here the Agreement is in writing and it is good albeit there be no limitation when the money shall be payd 37. H. 6. 9. Calthrop for the Defendant that the Action could not lyâ— for the contract is Executory and therefore is not to pay the money till he hath the Mannor for the Covenant is that pro Maner c. he should pay him 1200 l. and the word pro implies a condition and consideration and being excecutory on the one part shall be also executory on the other part 9. E. 4. 20. 21. Abridg. in Plowden 134. in Browning and Bestons case 15. E. 4. 4. If A. grant to B. all the ancient Pale and for them B. grants that he will make new Pale for A. if B. cannot have the old Pale he shall be excused from making the new Pale for he cannot have the one without doing the other 6. E. 6. Dyer 75. The contract was pro 20. which makes a condition 15. H. 7. 10. by Fineaux If a man covenant with me to serve me for a yeare and I covenant to give him 10 l. he shall have an Action for the 10 l. although hee do not serve me otherwise if I covenant to give him 10 l. for his service Also there is no time limited when the payment shall be made true it is that in Co. lib. 6. 30. when the act to be done is a transitory act and no time is limited there it ought to be done in convenient time but the Law shall judge of the conveniency of this time and the Law will never judge the time of payment to be before he hath the Mannor pro quo c. In many cases when no time is limited the Law will appoint a time as appeareth in 33. H. 6. 48. and Perkins 799. But now in our case the Law will never appoint that this money shall be payd because the other party hath disabled himselfe to perform his part like to Sir Anthony Maines case Co. lib. 5. 21. Doderidge The bargain is not perfect because no day of payment is limited and the other shall have no Action of Debt for the money before he hath the Mannor Jones If I covenant to make a Feoffment to J. S. and he covenant in consideration of that Covenant to pay me 10 l. he shall have an Action of Debt against me before he hath made the Feoffment And at another day in Trinity Term. 3. Car. Noy argued for the Plaintiff and opened the case thus Amongst other Covenants in certain Indentures between them it was agreed that wheras Sir R. Brown the Father was sâ—ized of the MaÌ„nor of Gadmaston with the Advowson appendent Sir R. Stroud of the MaÌ„nor of D. within the same CouÌ„ty that there
there which to their Office of Sheriff appertaineth or any waies to intermeddle with it except only for the Sheriff of the County of Glocester to hold their County-Courts as is aforesaid And that the Major Aldermen of the said Town for the time being their Successors having power and authority to enquire here determine all things which Iustices of P. or Iustices assigned to hear determine Trespasses and Misdemeanors within the County of Glocest before this time have made or exercised And that the Iustices of Peace of him his Heirs or Successors within the said County of Glocester should not intermeddle with the things or causes which belong to the Iustices of Peace within the said Town c. And upon this Charter divers things were moved by Sir William Periam Knight now chief Baron of the Exchequer before his going into the Circuit 1. Whether by the saving of the Charter they have sufficient power reserved to them to fit within the Town being now exempted from the said Town of Glocester to enquire there of the Felonies done in the said County of Glocester And so for the Assises and Nisi prius taken there of things made in the County of Glocester Then if the the Sheriffs may execute their Warrants made there at the time of the Assises or Goal-delivery notwithstanding the exemption given to them by the Patent And it was agreed by all the Justices that the saving in the Patent is sufficient for the Iustices of Assise and Goal-delivery to sit there for the things which happen within the County of Glocester for as the King may by his Letters Patents make a County and exempt this from any other County so may he in the making of it save and except to him and his Successors such part of the Iurisdiction or priviledge which the other County from which it is exempted had in it before As in divers places of the Realm the Goal of a Town which is a County of it self or which is a place priviledged from the County is the Goal of the County and the place where the Assises or Goal-delivery is holden is within the County of the Town and yet serve also for the County at large as in the Sessions Hall at Newgate which serves as well for the County of Middlesex as for London and yet it stands in London but by usage it hath alwaies been so and nothing can be well prescribed unto by usage which cannot have a lawfull beginning by Award or Grant and this by the division of London from Middlesex at the beginning might be so And so the Goal of Bury c. And although that the words are saving to him and his Heirs yet by the word Heirs it shall be taken for a perpetual saving which shall go to his Successors which is the Queen and the rather because it is a saving for Iustice to be done to the Subjects which shall be taken as largely as it can be And albeit the expresse saving for the Sheriff is but for to hold his turn yet in as much as the authority of the Iustices of Assise and Goal-delivery in holding their Sessions as before was accustomed is saved it is Included in it that all which appertain to the execution of this Service is also saved or otherwise the saving shall be to little purpose And therfore that the Sheriff or other Minister made by the authority of these Courts is well made there and warranted by the Charter And wee ought the rather to make such exposition of the Charter because it hath been alwaies after the Charter so put in execution by all the Iustices of Assise But it seems that by this Commision for the County a thing which happens in the Town cannot be determined albeit it be Felony commited in the Hall during the Sessions but by a Commission for the Towne it may 7. SIr Francis Englefield Knight being seised in his Demesne as of Fee of Vide this case reported in Coke lib. 7. 12 13. the Mannor of Englefield in the County of Berks and of divers other Lands in the first year of Queen Eliz. departed out of the Realm by licence of the Queen for a time and remained out of the Realm in the parts beyond the Seas above the time of his licence wherby the Queen by her Warrant under her privy Seal required him to return upon which he was warned but did not come wherupon the Queen seised his Land for his contempt After vvhich the Statute of Fugatives was made 13. year of the Queen upon which by Commissions found upon this Statute all his Lands were newly seised and afterwards 17 Eliz. by Indenture made between him and Francis Englefield his Nephew and sealed by the said Sir Francis at Rome the said Sir Francis covenanted with his said Nephew upon consideration of advancement of his Nephew and other good considerations to raise an use that he and his Heirs and all others seised of the said Mannor c. shall hereafter stand seised of them to the use of himself for term of his life without impeachment of Wast and afterwards to the use of his Nephew and of the Heirs Males of his body and for default of such Issue to the use of the right Heirs and Assigns of the said Francis the Nephew for ever with a Proviso that if the said Sir Francis shall have any Issue Male of his body that then all the said Vses and Limitations shall be void and with a Proviso further that if the said Sir Francis by himself or any other shall at any time during his life deliver or tender to his said Nephew a King of Gold to the intent to make the said Vses and Limitations void that then the said Vses and Limitations shall be void and that therafter the said Mannors c. shall be as before Afterwards the said Francis was attainted of Treason supposed to be committed by him 18 Eliz. A Le umures in partibus transmarinis le attainder fuit primerment utlagary apres per act de Par. 28 Eliz. by which the forfeiture of the Condition was given to the Queen and at the same Parliament it was also enacted that all and every person or persons which had or claimed to have any Estate of Inheritance Lease or Rent then not entred of Record or certified into the Court of Exchequer of in to or out of any Mannors Lands c. by or under any Grant Assurance or Conveyance whatsoever had or made at any time after the beginning of the Raign of her Majesty by any persons attainted of any Treasons mentioned in the said Act after the 8. day of February 18 Eliz. within two years next ensuing the last day of the Session of the said Parliament shall openly shew in the said Court of Exchequer or cause to be openly shewn there the same his or their Grant Conveyance or Assusance and there in the Term time in open Court the same shall offer
shall so descend or come to John without any act or thing done or to be done by him to the contrary wherby also it fully appeareth that the assurance of the said John shall stand for all this Land upon the Covenant and not upon any use which was to be altered or changed by it But if an Vse may change by the Mannor upon the consideration yet it shall not change to the said John or his Issues untill the death of the said Sir Francis without Issue Male because that untill that happen if the said John had been living he had not had any Vse because it is that he shall have the Land then if he be then living and if it shall not be in him untill this time it shall not be in his Son untill Sir Francis be dead without Issue for it is if the said John or any Issue Male of his body c. be then living then it shall descend come or remain c. so that it doth not come to them untill it may appear whether the said John or any Issue Male of his body upon the body of the said Margaret be in rerum natura when Sir Francis shall be dead without Issue Male and therfore it yet remains upon a contingent whether the use shall be to the Heirs Males of the body of the said John if it shall be said that it is an Vse and therfore in the mean time the entire Fee-simple remains in Sir Francis not yet changed but for the Estate tail it self in himself if any change shall be as appeareth before that it shall not be and therfore by the attainder of the said Sir Francis the whole Fee-simple is now all forfeited to the Queen before that the use may be to the Heirs Males of the body of the said John And the Queen shall not come to this Land in any privity by the said Sir Francis but in the Post by the Escheat and therfore the possession of the Queen now or of her Patentee shall never be changed with this Vse which shall never be carried out of any other possession but such which remaineth in privity untill the use is to come in Esse no more now then as it might at common Law before the Statute of Vses 27 H. 8. And this as to the future Vse was the opinion of Popham and some other of the Iustices And nota 21 H. 7. plito 30. If a man covenant in consideration of the Marriage of his Son that immediatly after his death his Land shall evert remain or descend to his Son to him and the Heirs of his body or to him and his Heirs for ever that this is but a bare Covenant and doth not change any Vse And what diversity then is there in the case of Sir Francis Englefield who covenants that it shall descend or remain in possession or revert And as it seems the great difficulty which was in the case of Sir Robert Constable which was put by Gerard Attorney-generall 6 Eliz. and it appeareth in Dyer 1. Mar. was because that the Covenant was that it shall be to the Son in possession or use which for the incertainty in as much as it was in them to leave the one or the other or perhaps the Estate of their Land was such that part was in possession and part in use and therfore according to the intent taken rather for a Covenant then for matter sufficient to change the use But it was so that it was never helped by any right which he had but by the grace of the Queen he enjoyed it Easter Term 35 Eliz. Crocker and York versus Dormer 1. UPon a Recovery had by John Crocker and George York against Geffrey Dormer in a Writ of Entry in the Post of the Mannor of Farningho with the Appurtenances and of 6 Messuages 6 Cottages c. in Farningho and of a yearly Rent or pension of 4 Marks issuing out of the Church or Rectory of Farningho and of the Advowson of the Church of Farningho in the County of Northampton William Dormer Son and Heir of the said Geffrey brought a Writ of Error and assigned diverse Errors 1. Because that â—uch a form of Writ doth not lye of an Advowson but only a Right of Advowson Darrein presentment and Quare impedit 2. Because he demands the Advowson of the Rectory and also a Rent issuing out of the same Rectory 3. Because the Demand for the Rent is in the Disjunctive to wit a Rent or a Pension 4. Because it is a pension wheras a Pension is not sutable in our Law but in the Spirituall Court To which Gawdy said that there is a great diversity between a common Recovery which is an assurance between parties and a Recovery which is upon Title for a common Recovery is to an Vse to wit to the use of him against whom it is had if no other use can be averred and therfore as to the Vse it is to be guided according to the intent of the parties and by a common Recovery had against Tenant for life he in the Reversion if he be not party or privy to it may enter for a forfeiture as it was adjudged very lately in the Exchequer by the advice of all the Iustices in the case of a Recovery had against Sir William Petham Knight and in all these things it is otherwise in case of a Recovery upon Title and therfore in as much as this common Recovery is but a common Assurance between parties and is alwaies by assent between parties to the end that they may make assurance from one to another there shall be and alwaies hath been a contrary exposition to a Recovery which is by pretence of Title and it hath been common to put in such Recoveries Advowsons Commons Warrens and the like and yet alwaies allowed And if this shall be now drawn in question infinite Assurances shall by this be indangered which the Law will not suffer and therfore the demand of an Advowson and Pension in the Writ of Entry makes not the Writ vitious as it shall do in another Writ of Entry founded upon a Title and not upon an Assurance And as to that that the Rent and the Advowson also is demanded this is good because the Advowson is another thing then the Rectory it self out of which the Rent is demanded to be issuing And for the disjunctive demand of the Rent or Pension it makes no matter in this case because it is a common Recovery in which such a precise form is not necessary to be used as in other Writs and also a Pension issuing out of a Rectory is the same with the rent To which Clench and Fennor agreed in all but Popham moved that the greatest difficulty in this case is the demand made to the disjunctive to wit of the annuall Rent or Pension for if a Pension issuing out of a Rectory shall be said to be a thing meerly spirituall and not to be demanded by our
disguised For the wholness and closness of your Garments they do signifie integrity to be used in your advices and secrecy in your councels And in that the Garments being single and unlined it betokeneth that you should be sincere and plain in your advises and not double carrying your opinion to your self one way and you advise it your Client clean another way The two Tongues do signifie that as you should have one Tongue for the Rich for your Fee as a reward for your long studies and labours so should you also have another Tongue as ready without reward to defend the Poor and Oppressed And therin to shew your seves thankfull to God for all that which he hath bestowed upon you And for the Rings you give as Gold is amongst all Mettals the purest so should you be of all others of your Profession the perfectest both in knowledge and in the other Virtues before remembred And in that it is a Ring and round without end it betokeneth that you have made a perpetuall Vow to this your Profession and Calling and are as it were wedded unto it And therfore I heartily wish you may alwaies walk therin according as appertaineth to your Calling And this done the ancienst Serjeant beginneth to recite his pleading and so each after other in order And that done the ancientest kneeleth down before the chief Justice of England and so the rest before the Justices and Barons as they are in ancienty and had severally by the said chief Justice their Coifs put upon their heads and then their red Hoods upon their shoulders and then the Serjeants return to their Chambers and put on their party colourd Garments and so walk on to Westminster the one after the other as they be in ancienty bare-headed with all their Coifs on and so are in their turn presented the one after the other by two of the ancientest Serjeants And after their pleadings recited they give their Rings in the Court by some friends and so are therupon set in their place at the Bar according to their ancienty And all this done they return to their Chambers and there put on their black Gowns and red Hoods and come into the Hall each standing at his Table according to his ancienty bare-headed with his Coif on and after setteth himself upon the Bench having a whole mess of meat with two courses of many Dishes served unto him And in the afternoon they put on their Purple Gowns and then go in order to Pauls where it hath been accustomed that they heard Service and had a Sermon Edwards versus Halinder 4. IN an Action upon the Case by Rice Edwards against Edward Halinder The Plaintiff declared by his Bill that one Edward Banister was seised in his Demesne as of Fee of a Messuage in such a Parish and Ward in London and being so seised did let to him the Cellar of the same house the 23. day of April 32 Eliz. for a week from the same day and so from week to week so long as the parties should please at such a Rent by the week wherby he was possessed And further that the said Edward Banister being seised of the said house as is aforesaid afterwards to wit 29. July in the 32. year aforesaid gave to the said Defendant Officium Anglice the Warehouse of the said Messuage being right over the said Cellar for a week from thenceforth and so from week to week so long as the parties should please paying such a Rent wherby the Defendant was therof possessed accordingly And the Plaintiff being possessed of the said Cellar and the Defendant of the Warehouse as aforesaid and the Plaintiff then having in the said Cellar three Butts of Sack to the value of 40 l. c. The Defendant the 30 day of July in the 32. year aforesaid put such a quantity of weight and burthen of Merchandize into the said Warehouse and therby did so overburthen the floor of the said Warehouse so that by the force and weight of the said burthen the said floor the said 30. day of July was broken and by force therof did fall and that therby the Merchandize that were in the said Warehouse did fall out of the said Warehouse into the said Cellar upon the said Vessels of Wine and by force therof brake the said Vessels of Wine wherby the said Wine did flye out of the said Vessels and became of no value to the Plaintiffs damage of a hundred pound c. To which the Defendant saith That within a small time before the Trespasse committed the floor of the said Warehouse sustained as great a burthen of Merchandize as this was And that the Warehouse was demised to him as the Plaintiff hath alledged to lay in it 30. Tun weight wherby he was possessed and so possessed the said 30. day of July did put into the said Warehouse but 14. Tun weight of Merchandize and that the damages which the Plaintiff had by the breaking of the floor was because the floor at the time of the laying of the merchandise upon it also before the lease made to him therof was so rotten and a great part of the Wall upon which the said floor lyes so much decayed that for default of Reparations and supporting therof by those to whom the reparations did belong before the Lease therof made it suddainly brake which matter he is ready to aver Wherupon the Plaintiff demurred and Iudgment was given for the Plaintiff in the Exchequer upon which a Writ of Error was brought in the Exchequer Chamber and the Error assigned was that the Iudgment ought to have been given for the Defendant because that now it appeareth that there was not any default in the Defendant for he was not to repair that which was so ruinous at the time of his Lease and therfore if it did bear so much lately before it cannot fall by the default of the Defendant in the weight put upon it but by the ruinousnes of the thing demised And yet by the advice of the Iustices the Iudgment was this Term affirmed for the Plaintiff hath alledged expresly that the floor brake by the weight of the Merchandize put upon it which ought to be confessed and avoided or traversed wheras here he answers but argumentatively to wit that it did bear more before therfore that he did not break it by this weight or that it was so ruinous that it brake Ergo not by the weight wheras here it is expresly alledged that it brake by the weight put upon it and if lesser weight had been put it would not have broken And he who takes such a ruinous house ought to mind well what weight he put into it at his perill so that it be not so much that another shall take any damage by it But if it had fallen of it self without any weight put upon it or that it had fallen by the default only of the posts in the Cellar which support the floor with which the
first Attainder by way of Plea but acknowledged the Deed in which case the Accessary may well be Arraigned But if the principall had pleaded his former Attainder whether now he shall be put to answer for the benefit of the Queen having regard to this Accessary who otherwise shall go quit because there was not any principall but he who was formerly attainted And it seemed to Popham and some others that it shall be in the same manner as if the same person so formerly attainted should be tried now for Treason made before his Attainder as appeareth by 1 H. 6. 5. because it is for the advantage of the King in his Escheat of the Land and notwithstanding that it is moved by Stamford in his Pleas of the Crown it seemed to Popham that there was no diversity where the Treason was made before the Felony of which he is attainted and where after and before the Attainder And by the same reason that he shall be again tried for the benefit of the King in this case because of the Escheat by the same reason in this case here because of the forfeiture which accrueth to the Queen by the Attainder of the accessary and for the Iustice which is to be done to a third person who otherwise by this means shall escape unpunished But he agreed that the party Attaint shall not be again Arraigned for any other Felony done before the Attainder in case where no Accessary was touched before the Statute of 8 Eliz. cap. 4. he who is convict of Felony and hath his Clergy after his purgation made shall be Arraigned for another Felony done before the conviction if it be such for which he cannot have his Clergy and was not convicted or acquitted of the same Felony before the Attainder But upon this Statute it appeareth that he who shall have his Clergy in such manner shall not be drawn in question for any other Felony done before his Attainder for which he might have his Clergy And of this opinion as Clark and others of the Iustices said were all the Iustices in the time of Wray And as to the Statute of 18 Eliz. cap 7. It is not to be understood but that he who hath his Clergy and delivered according to this Statute shall be yet arraigned for any other Felony done before his former Conviction or Attainder if it be such for which he cannot have his Clergy for the words are That he shall be put now to answer c. in the same manner as if he had been delivered to the Ordinary and had made his Purgation any thing in this act to the contrary notwithstanding Pollard versus Luttrell 2. IN an Ejectione firmae between Pollard and Luttrell for Lands in Hubury and Listock upon the Title between the Lord Audeley and Richard Audeley it was agreed by the chief Iustices that if the Disseisor levy a Fine with Proclamations according to the Statute of 4 H. 7. and a stranger within five years after the Proclamations enter in the right of the Disseisee without the privity or consent of the Disseisee that this shall not avoid the Bar of the Fine unlesse that he assent to it within the five years for the words of the Statute are so that they pursue their Title Claim or Interest by way of Action or lawfull Entry within five years c. and that which is done by another without their assent is not a pursuing by them according to the intent of the Statute for otherwise by such means against the will of the Disseisee every stranger may avoid such a Fine which was not the intent of the Statute Mountague versus Jeoffreys and others 3. IN Trespasse by Edward Mountague Plaintiff against Richard Jeoffreys and others Defendants for a Trespasse done in certain Lands called Graveland in Hailsham in the County of Sussex the Case upon a special Verdict was thus Sir John Jeoffreys late chief Baron bing seised in his Demesn as of Fee amongst others of the said Land called Graveland having Issue but one only Daughter by his Will in writing devised all his Land of which he was seised in fee except the said Graveland to his said Daughter for 21. years c. and the said Land called Graveland which was then in Lease for divers years to one Nicholas Cobb which years at the time of the death of the said Sir John Geoffreys continued he devised to the said Richard Jeoffreys his Brother and his Heirs and by the same Will he disposed divers Legacies of his Chattels and the Remainder he gave to his said Daughter and made her Executrix of his said Will after which the first Wife of the said Sir John Jeoffreys being dead he covenanted with Mr. George Goring to take the Daughter of the said George to Wife and covenanted with the said George amongst other Lands to assure the said Land called Graveland to the said George Goring and Richard Jeoffreys and their Heirs to the use of the said Sir John Jeoffreys and Mary Goring Daughter of the said George and the Heirs of the said Sir John Jeoffreys by a certain day before which day the marriage being had the said Sir Io Ieoffreys made a Deed and sealed it and delivered it containing a Feoffment of the said Land called Graveland amongst others to the said George Goring and Richard Ieoffreys and their Heirs to the Uses aforesaid in performance of the said Covenants with a Warrant of Attorney to make Livery accordingly and the Attorney made Livery in other parts of the Land and not in Graveland and this was in the name of all the Lands compriâ—â—d in the Deed and the said Nicholas Cobb never attorned to this Deed After which Sir Iohn Ieoffreys interlined in the said Will that the said Mary then his Wife should be joynt Executrix with his Daughter And in the Legacy of the rest of his Goods c. he interlin'd the said Mary his Wife to be Joynt-tenant with his said Daughter without other publication therof and afterward the saâ—d Sir Iohn died the said Daughter being his Heir who took to Husband the said Edward Mountague 4. IN Trespasse the Plaintiff supposeth the Trespasse to be done in the breaking of his House and Close in such a Town the Defendant justifies in a House and Close in the same Town and shews which to put the Plaintiff to his new Assignment to which the Plaintiff replied that the House and Close of which he complains is such a House and gives it a speciall name upon which the Defendant demurs and adjudged that the Plaintiff take nothing by his Writ for albeit a House may have a Curtilage which passeth by the name of a Messuage with the Appurtenances yet this shall not be in this case for by the Bar the Plaintiff is bound to make a speciall demonstration in what Messuage and what Close he supposeth the Trespasse to be done as to say that the House hath a Curtilage the which he broke and
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
Co. lib. 8. Baspoles case and 7 H. 6. 40. accordingly The same Term in the same Court Vaughans Case THomas Dedham had to Apprentice one Holland who got his Main with Child and afterwards departed from his Masters Service and staid a whole night with Vaughan his Kinsman and Dedham procured a Warrant from S. Stephen Soame a Iustice of Peace that the Constable should bring the said Apprentice to order according to Law and because that Vaughan perswaded him to withdraw himself so that he should not be taken by virtue of the Warrant he was indited And it was agreed that it was lawfull for Vaughan to lodge and relieve him albeit he knew his misdeeds they being no Treason or Felony But Haughton Iustice took exception to the Inditement because no place appeared where he perswaded him to withdraw himself from the Warrant or in truth that he did hide himself from the Warrant for if he did not so the perswasion was nothing And Doderidge took another exception to the Warrant because the Statute saith that two Iustices of which one of them shall be of the Quorum shall proceed in such cases against the Malefactor and that they shall compell the party to allow means for the education of the Infant or otherwise the Offendor shall suffer corporall punishment and so this Warrant not being speciall according Pasch 16. Jac. In the Star Chamber Wrennums Case SIr Henry Yelverton Attorney-generall exhibited an Information in the Star Chamber against one Wrennum Ore tenus because he had divers times petitioned the King against Sir Francis Bacon Lord Chancellor pretending that the said Lord Bacon had done great Injustice to him in granting an Injunction and awarding Possession of Land against him for which he had two decrees in the time of the former Chancellor And also he made a Book of all the proceedings in the said cause between him and one Fisher and dedicated and delivered it to the King in which he notoriously traduced and scandalised the said Chancellor saying that for this unjust decree he his Wife and Children were murthered and by the worst kind of death by starving And that now he having done unjustly he must maintain it by speaking untruths and that he must use his authority Wit Art and Eloquence for the better maintenance therof with other such like scandalous words And the Attorney cited a president 2 Jac. Where one Ford for an offence in the like manner against the late Chancellor was censured in this Court that he should be perpetnally imprisoned and pay the fine of 1000 l. and that he should ride upon a Horse with his face to the tail from the Fleet to Westminster with his fault written upon his head and that he should acknowledge his offence in all the Courts at Westminster and that he should stand there a reasonable time upon the Pillory and that one of his ears shall be cut off and from thence shall be carried to Prison again and in the like manner should go to Cheapside and should have his other ear cut off c. And because they conceived that the said Wrennum had wronged the said Lord Chancellor in the said suggestion they all agreed in his censure according to the said President See for such matter 19. Ass 5. 9 H. 8. Sir Rowland Heywards case and 21 H. 8. Cardinall Wolseys case The same Term in the Kings Bench. Mingies Case AWrit of Annuity was brought by Mingy which was granted Pro Consilio impenso impendendo the Defendant pleaded in Bar that he carried a Bill to the Plaintiff to have him set his hand to it and because he refused Annuity pro Consil impenso c. he detained the said Annuity And per Curiam this is no plea for he is bound to give advice but not to set his hand to every Bill for this may be inconventent to him The same Term in the same Court THe Case was this A Lessee for years was bound in a Bond to give up the possession of the Land demised to the Lessor or his Assigns at the end of the Term the Lessor assigns over his Interest and the Assignee requires the Lessee to perform the Condition who answers that he knew not Notice where requisite whether he were the Assignee and therupon refuseth And the question was whether he had broken the Condition and it was adjudged that he had for he hath taken upon him so to do and it is not like a Condition annexed to an Estate as Co. lib. 5. Mallories case or Co. lib. 6. Greens case where the Patron presented his Clark to a deprivation yet the Ordinary ought to give the Patron notice of the deprivation for it is a thing Spirituall of which a Lay-man shall not be bound to take notice It was moved that a man riding upon a Horse through the water was Dead and. drowned and by the Coroners Inquest it was found that his death was caused Per cursum aquae and the Horse was not found a Deodand and per Curiam they did well for the water and not the Horse was the cause of his death The same Terme in the same Court. Wooton versus Bye THe case was this A man made a Lease for years rendring Rent and upon payment of the Rent the Lessor made an Acquittance by a release of all Actions Duties and Demands from the beginning of the World to Release of all Demands bars a future Rent the day of the date And whether the Rent to come were released by it was the question And it was moved by Crook at the Bar that it was not for a Covenant in future shall not be released by such words yet a release of all Covenants will be good in such a case as the Book is in Dyer 57. so Hoes case Co. lib. 5. 70. b. such a release will not discharge a Bail before Iudgment But it was answered and resolved by the Court that such a Release will discharge the Rent to come for this word Demand is the most large and ample word in a Release that may be as Littleton saith and in Co. lib. 8. Althams case and in Hoes case Co. lib. 5. one was Bail for the Defendant the words wherof are conditionable Scil. Si contigerit predict defendent debit damna illa prefat Quer. minime solvere c. So that before Iudment it is altogether incertain and therfore cannot be released but in the case at the Bar he hath Jus ad rem though not in re as Crook Iustice said The same Term in the same Court. Bret versus Cumberland IN a Writ of Covenant the case was thus Queen Elizabeth by her Letters Patents made a Lease of certain Mills rendring Rent in which Lease were these words to wit That the said Lessee his Executors Administrators and Assigns should from time to time repair the Mills and so leave them at the end of the Term the Lessee assigns over his Term the Queen also
Doctor and Student 137. in what case the Master shall answer for his Servant Coventry Solicitor to the contrary for it was lawful for the Plaintiff to command his Servant to sell them for it was found by the Verdict that the Iewels were of some worth and value and he did not command him to sell them for more then they were worth and 9 H. 6. 53. b. If the Master send his Servant into a Fair or Market to Merchandize for him the Master shall not be punished for his fault And in this case the command was not to deal with the Plaintiff or to sell to any one in particular and for it see 9 H. 6. aforesaid And if the Servant will exceed the lawfull command of his Master the Master shall not be punished therfore but if the command be unlawfull it is otherwise 11 E. 4. 6. A man sells cloath of such a length which proves to be short of the length an action lies not without a Warranty so Fitz. N. B. 64. c. For Wine if it be warranted to be good an action lies if it be corrupt If my Beasts go into another mans Soil an action lies against me but if my Servant drive my Beast into another mans Soil I shall not be punished for he doth this of his own wrong without any such warrant from me 13 H. 7. b. And if when a man sell a thing for more then it is worth an action would lye for it we should never have an end of actions And the action doth not lye for another reason because it doth not appear that the King of Barbary did lawfully imprison the Plaintiff 26 H. 8. 3. If a man makes a Lease and covenants that he shall not be disturbed if a stranger disturb him an action lieth not against the Covenantor so here c. for it seems it was Ex regali potestate and not in a lawfull manner and so he concluded that the action will not lye and so it was resolved by the whole Court Mountague chief Iustice the Plaintiff is no party who shall have the action but the King of Barbary 2. The Verdictis contrary to the Declaration and Iewels are in value according to the estimation and therfore 38 Eliz. between Simson and Sanders in the Star Chamber it was resolved that a man shall not be punished for Perjury upon the valuation of Iewels Doderidge said that 22 Eliz. an action upon the case was brought in the Common Pleas by a Clothier that wheras he had gained great reputation for his making of his Cloath by reason wherof he had great utterance to his great benefit and profit and that he used to set his mark to his Cloath wherby it should be known to be his Cloath And another Clothier perceiving it used the same mark to his ill-made Cloath on purpose to deceive him and it was resolved that the Action did well lye The same Term in the same Court VPon an Indictment of Barretry before the Iustices of Wales a Certiorari was moved for to remove it into this Court And it was said at the Bar that it had not been seen from the time of E. I. that such a Writ A Certiorarâ— granted into Wales had been granted in the like case and therfore he collected that it ought not to be granted But it was resolved by the Court that a Certiorari should be granted in regard it is in the Kings case and by Haughton Iustice notwithstanding the Statute Quod communia placita non sequantur Curiam meam yet it is plain that the King may sue in what Court he will And albeit this Writ in such a case ought not to be granted in case of a common person yet that is no reason but that it may be granted in the case of the King The same Term in the same Court Sir Henry Glemhams Case IN a Quo warranto against Sir Henry Glemham for using certain Liberties to which Sir Henry pleaded in Bar and the Kings Attorney replyed and so this matter rested three years and then the Kings Attorney put in a new Replication and joyned Issue upon other points And it was moved for the Defendant that he might put in a new Bar in regard the Replication A Plea not to be amended in another Term without assent of parties is altered and nothing was entred but all remained in paper And it was agreed by the Court that the King shall not be concluded but that he might put in his Replication at any time And that the King cannot make a double Plea for the other party shall answer first to one and then to the other And the Court would not allow Sir Henry to make a new Bar in this case without the assent of the Attorney who would by no means agree to it And in case of a common person this shall not be allowed without the assent of parties The same Term in the same Court IN an Action of Trover and Conversion between one Nicholas and William Ward it was agreed that tithe Lamb and Wooll was included within small Tithes And Mountague said that a Vicaridge endowed Lamb aâ—d Wooll included in small Tithes might be appropriated but not to the parson to which Haughton and Doderidge agreed 31 H. 6. Fitz. tit Indicavit is that such a Vicaridge may be dissolved An appropriation may be by the King sole where he is Patron but there is no Book that it might be by the Patron sole Grindons case in Plowden and 17 E. 3. 39. An Appropriation cannot be without the Kings licence The same Term in the same Court. Blaxton versus Heath IN an Action of Debt by Blaxton against Heath the case was this A man possessed of a term for twenty years in right of his Wife made a Lease for ten years rendring rent to him his Executors and Assigns and died And the question was whether the Wife shall have the rent after his death or his Executors and it was argued that the wife should nâ—t have it because she was in by a Title Paramount as if there be two Joynt-tenants for life the one makes a Lease for years rendring rent and dies the other shall not have the Rent Dyer 167. and so of Joynt-tenants in fee Co. lib. 1. 96. and Perkins accordingly To which Mountague chief Iustice agreed for he said it was but an extract of ten out of twenty the remainder continuing as before And Redditus is Reventus a turning again but it is otherwise of a Condition which is a new Creature of which the wife shall take no advantage Crook Iustice This is a speciall reservation and therfore the Executor shall have it and not the wife for she comes in Paramount as in the case of Ioyn-tenants Haughton agreed therunto and said that the Rent shall be incident to him who hath the Reversion under the Lessor who is the Executor And Mountague demanded of Hobert chief Iustice of the Common Pleas his opinion in this
levied yet the Vse shall be directed by the originall Indenture and therfore 6 Rich. 2. A Feoffment is made to two and their Heirs and afterwards a Fine is levied upon it for further assurance to the use of them and the Heirs of one of them yet it shall go to the use of both for it shall be respected according to the original agreement where there are divers assurances for the perfecting of one and the same thing 16 E. 3. tit Age. A Daughter had a Seigniory by descent a Tenancy Escheats a Son is born he shall have the Land see Sharoes case in 4 Mar. Dyer and in Chadleighs case all looks to the originall agreement and therfore variance of time shall not hinder the originall agreement as 33. Ass the Servant inâ—ends to kill his Master and afterwards the Master puts him out of his Service and then he kills him this shall be petty Treason in the Servant 28 H. 6. Two are bound in a Bond at severall times and yet he shall declare against both as upon the first delivery 11 H. 7. it is adjudged that if a Deed be delivered by an Infant and afterwards it is again delivered when he comes of full age And see Mallories case Finches case and Borastons case Nunc tunc quando are a demonstration of the time and not of the matter and so they concluded that the Vse shall rise upon the first Indenture and not upon the Fine or Replevin brought but Doderidge and Haughton Iustices contra Trin. 17. Jac. In the Kings Bench. Silvesters Case JOhn Silvester promised to John B. that if he would marry his Daughter that he would give with her a Childs part and that at the time of his death he would give to her as much as to any of his Children excepting his eldest Son and afterwards he made his Executors and died I. B. brought an action upon the case against the Executors upon this Promise and shewed that the Executor had not given him a Childs part and that such a younger Son of the Testators had a 100 l. given him And it was resolved by the Court that the promise of a Childs part is altogether incertain but being so much as any of his Children had and then shewing that the younger Son had a 100 l. this was certain enough and therupon Iudgment was given for the Plaintiff The same Term in the same Court. Godfrey and Owen COrnelius Godfrey was Plaintiff in an action upon the case for Words He is a very Varlet and seeks to supâ—res his brothers Will c. words against Owen Defendant and the words were these to wit He is a very Varlet and seeks to suppresse his Broâ—hers Will he makes shew of Religion but he is a very Hypocrite And the words were spâ—ken of a Merchant to one who gave him much credite in his Trade Mountague chief Iustice said that the words which are actionable in such a case ought to touch the Plaintiff in his Profession which these do not do Et relata ad personam intelligi debent secundum conditionem personae for in the suppressing of his Brothers Will the case might be such that he might well do it for perhaps there may be an after Will made And for calling him Hypocrite lies not in the conusance of the Common Law for GOD only can judge of the heart of man and therfore these words do not touch the Plaintiff as he is a Merchant Doderidge Iustice Words ought to tend some way to the ruine of the party or otherwise they are not actionable and Iudgment was given Quod quere nil capiat per billam Mich. 17. Jac. In the Star Chamber Sis John Bingleys Case IN Sir John Bingleys case in the Star Chamber it was resolved by the two chief Iustices Mountague and Hobart and agreed by the Lord Verulam Lord Chancellor and Sir Edward Coke that if an Information be exhibited there which begins with divers particular misdemeanours and conclude in the generall that 1. The matter included in the generall charge ought to be Ejusdem generis 2. They ought to exceed the particulars expressed in number 3. They ought not to be greater or more capitall wherupon Mountague cited the Statute which speaks of Deans and other Spirituall persons upon which it hath been resolved that Bishops are not within it for they are of a higher degree and the principall reason of these rules was because that a man cannot possibly make a defence because he knews not what will be objected against him and upon this Sir John Bingley was discharged at this time for the most transcendent Offence that was objected against him to wit concerning Captain Baugh and other Pirates to whom the King of his grace and bounty had given 200 l. to make them Loyall Subjects But Sir John Bingley Colore officii had defrauded them of almost An Officer â— his own wrong all of it for the want wherof some of them died miserably and the rest became Pirates again But Sir John Bingley made many protestations of his innocence in this mâ—tter And it was holden also that one might be an Officer of his own wrong as their might be an Executor of his own wrong And this was Sir John Bingleys case for somthing in the information for he committed Extortion Colore officii The same Term in the Star Chamber THe Attorney-generall put in an Information against divers Dutch Merchants for buying and transporting of many great summs of Gold and Silver Bullion And it was said by the Court that divers Statutes had been made for redresse of this mischief as the Statute of 5 R. 2. the Offenders wherof ought to forfeit all they may and by another Statute in 17 E. 4. this Offence was made Felony to continue for seven years But the Court would not now punish them upon any Statute for it was an offence at common To carry Gold and Silver out of the Realm punishable at Common Law Law and therfore punishable in this Court And Sir Edward Coke said that if any be to be punisht upon a penal Statute it ought to be within two or three years at least after the offence committed for the Informer hath but a year to sue and the King two years for the most part The Statutes of 37 E. 3. and 5 E. 6. Prohibite the buying of Coin and that it is so at the Common Law see 21 E. 3. 60. and Plow 215. and not only he that buyes but he that sels also offends in it for it is a Prerogative only belonging to the King and it is his Coin and none can put a value upon it but himself which is a Flower of his Crown Hobart chief Iustice of the Common Pleas as one shall be punished for ingrossing any Commodity a Fortiori one shall be punished for ingrossing and buying of a great quantity of money all other Commodities being thereby ingrossed for money is the Mistresse of commerce Pecunia
my Furze And after Verdict for the Plaintiff it was moved in Arrest of Iudgment thâ—t these words were not actionable But it wâ—s said on the other side that to say thou art a Theef is actionable and the subsequent words are in the Copulative and enure as a confirmation of the precedent words But if it had been for Thou hast stoln my Furze this had been â—n explanation of the precedent words and therfore in that case the action would not have been And it was answered and resolved by the Court that the word and in some cases shall be taken as the word for and so it shall be in this case and therfore adjudged that the action lies Mich. 22. Jac. In the Star Chamber TWo men came Ore tenus into the Star Chamber for stealing of the Kings Deer and were fined a 100 l. a peece and three years Imprisonment unlesse it would please he King to release them sooner and before Fines in the Star Chamber for killing the Kings Deer they should be released of their Imprisonment to be bound to their good behaviour And it was observed by the Attorney-generall that the offence was the greater in regard that the King had but one darling pleasure and yet they would offend him in that And it was said by some of the Court that it was a great folly and madnesse in the Defendants to hazard themselves in such a manner for a thing of so small value as a Deer was The Lord President said that Mr. Attorney was the best Keeper the King had of his Parks in regard he brings the Offenders into this Court to be punished The Lord Keeper said that the Defendants in such a case being brought Ore tenus â—re not allowed to speak by their Counsell and yet these men have had their Counsell but it was Peters Counsellors meaning their sorrow and contrition at the Bar which much moved him so that if his vete might prevail he would set but 20 l. fine upon them In the same Term in the same Court THe Lord Morley and Sir Richard Mollineax being beyond Sea their Sollicitor in their names exhibited a scandalous Bill in the Star Chamber against the Bishop of Chichister and after their return this continued so for three years without any disclaiming therof by them and now the matter being questioned they said that it was not done with their privity But because they had not disclaimed the Fact before they were fined a 100 l. to the King and a 100 l. to the Bishop for Damages and the Bill was to be taken of the File The same Term in the same Court. Lewes Plaintiff versus Jeoffreys and others Defendants THe Plaintiffs Brother had been a Suitor to a woman which matter proceeded to a Contract and afterwards the Defendant Jeoffreys hapned to be a Suitor to her also wherupon being Rivalls they fell out and the Plaintiffs Brother called the Defendant Jackanapes which was taken very ill by the Defendant being a Iustice of Peace in the County of Worcester and the other being but a mean man in respect of him so that he told him that if he would meet him on Horse-back he would fight with him afterwards one of the Sons of the Defendant went to the said Brother being upon his own Land and gave him a mortall wound wherupon a friend on the behalf of the party wounded came to the Defendant being a Iustice of Peace and brought him a peece of his Skull to the end that his Son should be forth coming at the next Assises declaring to him the danger of death the man was in wherupon the Defendant took a Recognisance of 10 l. of his Son and of his sureties of 5 l. a peece to answer this at the next Assise And in the mean time the party died of the said wound and the Son did not appear at the Assises and the Iudges of Assise fined the Defendant 100 l. for taking such slender security for the appearance of his Son which was paid and yet notwithstanding the Defendant was fined 200 l. more for this offence and also 200 l. for his misdemeanor in his challenge albeit the Defendant A Challenge fined in the Star Chamber was of the age of 63 years and so it seems that he intended to fight with him But he being a Iustice of Peace who is Conservator pacis he did against his oath to do any thing which may tend to the breach of the Peace And for the other matter it was said by the Court that the Defendant being Father to the offendor it had been better for him to have referred this matter to another Iustice of Peace or at least to have had the assistance of another And the party being in such great danger of death his son was not bailable Hillary 1. Car. In the Kings Bench. Bowyer versus Rivet THe case was thus Sir William Bowyer 12. Jac. recovered against Sir Thomas Rivet in an Action of debt Sir William made his wife his Exceutrix and died the wife made Bowyer her Executor and died then Sir Thomas Rivet died Bowyer brought a Scire facias to have execution upon the Iugment against Sir Thomas Rivet the younger as Heir apparant to the Land to him descended from Sir Thomas Rivet who pleaded Riens per descent from Sir Thomas Rivet and it was found that he had two acres and a half of Land by discent and it was prayed by Goldsmith that Iudgment might be given against Sir Thomas Rivet generally for he said that this false Plea shall charge him and his own Lands and cited Plowden 440. where in debt against an Heir upon his false Plea his own Lands shall become liable to the debt and Co. lib. 3. 11. b. Sir William Herberts case where the case was upon a Scire facias against the Heir as it is in this case But on the other part it was argued by Richardson the Kings Serjeant Banks and all the Iustices that Execution shall be awarded in no other manner against the Heir then it should be against his Ancestor or other Purchasor to wit of a Moyety of that which he had by discent for as much as in this case he cannot be to this purpose charged as Heir but he ought to be charged as Ter-tenant and as a Purchasor and a Purchasor shall never hurt himself but his false Plea And Banks argued that the Heir in this case is charged as a Purchasor and the false Plea of a Purchasor shall never charge himself 33 E. 3. Fitz. Execution 162. and 6 E 3. 15. and that in this case he is charged as Ter-tenant appears by three reasons 1. Debt will not lye against an Heir but where he is bound as Heir but in this case Execution is to be sued against him as another Ter-tenant Dyer 271. 11 E. 3. 15. and in 27 H. 6. Execution 135. and Co. lib. 3. 12. b. That in Iudgment upon Debt or Recognisance the Heir is charged and
covenant to pay joyntly and severally according to the quantity of the Wares there an action of Covenant may be brought against one alone for the Deed is severall And by Crew chief Iustice it cannot be a good Traverse for a circumstance cannot be traversed for wind is alterable and a thing materiall is only traversable and here the Covenant is severall for their severall Fraughts and it may be that others have paid him Jones Iustice the traverse is not good and for the other matter he cited Mattheusens case Co. lib. 5. 22. Where upon a Charter party if one seal be broken all is gone If three are bound ioyntly and an action is brought against one and it appeareth that others have sealed the Writ shall abate But in this case an action lies against him alone although the other be named in the Indenture The same Term in the same Court intr Hill 22. Jac. Rot. 1019. Millen versus Fandrye AN action of trespasse was brought for chasing of Sheep the Defendant pleaded that they were trespassing upon certain land and he with a little Dog chased them out and as soon as the Sheep were cut of the land he called in his Dog and upon this the Plaintiff demurred The point singly was but thus J chase the Sheep of another out of my ground and the Dog pursues them into another mans land next adjoyning and J chide my Dog Iustification in trâ—spase and the Owner of the Sheep brings trespasse for chasing of them And it was argued by Whistler of Grays-Inne that the justification was not good and he cited Co. lib. 4. 38. b. that a man may hunt Cattell out of his ground with a Dog but cannot exceed his authority and by him an authority in Law which is abused is void in all and to hunt them into the next ground is not justifiable The Books differ if Cattell stray out of the high way involuntarily whether Trespasse lies 7 H. 7. 2. and H. 7. 20. but all agree that they ought to be chased out as hastily as may be Littleton argued for the Defendant that Cattell may be chased out into another mans ground and he said that a man cannot have such a power upon his Dog as to recall him when he pleaseth and a Dog is ignorant of the bounds of Land and he resembled this case to other cases of the Law first to 21 E. 4. 64. In Trespasse of Cattell taken in A. in D. the Defendant saith that he was seised of four acres called C. in D. and found the Cattell there Damage feasant and chased them towards the Pound and they escaped from him and went into A. and he presently retook them which is the same Trespasse and admitted for a good plea and 22 E. 4. 8. In trespasse the Defendant justifies by reason of a custom that they which plow may turn their Plow upon the Land of another and that for necessity and it was allowed for a good justification and he hath more government of his Oxen then in our case he can have of his Dog If a man be making of a lawfull Chase and cannot do it without damage to another this is Damnum absque injuria 21 H. 7. 28. And he cited a case which was in Mich. 18 Jac. between Jenning and Maystore where a man of necessity chased Sheep for taking one of his own in trespasse he may justifie it And also if a Dog goes into the Land of another as in this case trespasse does not lye but otherwise it is of Cattell Crew chief Iustice it seems to me that he might drive the Sheep out with the Dog and he cold not withdraw his Dog when he would in an instant and therfore it is not like to the case of 38 E. 3. Where trespasse was brought for entring into a Warren and there it was pleaded that there was a Pheasant in his Land and his Hawk flew and followed it into the Plaintiffs ground and there it seems that it is not a good justification for he may pursue the Hawk but cannot take the Pheasant 6 E. 4. a man cuts Thorns and they fell into another mans Land and in tresgasse he justified for it and the opinion was that notwithstanding this justification trespasse lies because he did not plead that he did his best endeavour to hinder their falling there yet this was a hard case But this case is not like to these cases for here it was lawfull to chase them out of his own Land and he did his best endeavour to recall the Dog and therfore trespasse does not lye Doderidge Iustice agreed for here was no hedge and when he saw them out of his own ground he rated the Dog 12 H. 8. this difference is taken if I see Sheep in my Land I may chase them out but if another sees them and chase them out I may have trespasse against him because he hath taken away For an involuntary trespasse action doth not lye my advantage and the nature of a Dog is such that he cannot be ruled suddenly and here it appeareth to be an involuntary Trespasse 8 E. 4. A man is driving Goods through a Town and one of them goes into another mans house and he follows him trespasse doth not lye for this because it was involuntary and a trespasse ought to be done voluntarily and so it is Injuria and a hurt to another and so it is Damnum If Deer be out of a Forest the Owner of the Land where they are may hunt them and if the Deer flye to the Forest and the Hounds pursue him then he ought to call in the Dogs and so I may justifie and trespasse lies not In the time of chief Iustice Popham this case was adjudged in this Court Trespasse was brought for hunting and breaking of hedges and the case was that a man started a Fox in his own land and his Hounds pursued him into another mans Lands and it was holden that he may hunt and pursue him into any mans land because a Fox is a noysom creature to the Common-wealth Bracton saith that when a man is outlawed he hath Caput lupinum and he may be hunted through all the County And he agreed the case of 8 E. 4. If a Tree grow in a hedge and the Fruit fall into another mans land the Owner may fetch it in the other mans land and he also agreed the case of 22 E. 48. of the Plew and so concluded that the trespasse doth not lye Jones Iustice that the trespasse doth not lye vide Co. lib. 8. 67. Crogates case and lib. 4. Terringhams case and he cannot recall his Dog in an instant And the same day Iudgment was given for the Defendant Quod quaerens nil capiat per billam The same Term in the same Court. Marsh versus Newman IN a Replevin the Defendant pleaded that was seised In jure Collegii and doth not say that he was in Dominico suo ut de foedo and the Plaintiff
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
will remember but one book upon which I will rely 27. H. 8. 24. Jordons Case in an Action upon the Case the Defendant assumed to the Plaintiffe that if the Plaintiffe would discharge I. T. of such an Execution in which he is bound at the suit of the Plaintiffe then if I. T. did not satisfie the Plaintiffe by such a day the Defendant would do it and they were at Issue upon an Assumpsit and there the Count is admitted good and he need not plead it was by writing because the Discharge is good without writing but it hath been resolved that if a man be in execution at my suit and I go to the Sheriffe and command him to discharge the Party this is a good Discharge although it be by Peroll Jones If I say to the Sheriff suffer the party to go at large this is a good release both to the party and to the Sheriffe and by him relaxavit implies a sufficient release and therefore the Plaintiffe in the Writ of Errour shall be barred And if a man be bound to save one harmlesse in an Action brought upon this obligation he pleads that he hath saved him harmlesse and shews not how the Plaintiffe demurres generally he shall not now take advantage of it Doderidge The Cases put by Bolstred are not to this purpose for all those cases are of things in certaine and he agreed that a release by perol was sufficient and the case of 22. H. 8. is a stronger case then this is Whitlock agreed also and therefore Doderidge advised the Plaintiff to be satisfied or otherwise they would affirm the first Judgement Trin 2. Car. in the Kings Bench. Caryes Case IN Caryes case of Grayes Inne where these words were adjudged actionable You a Councellor a Foole an Asse a Hangman a Councellor of Law a Foole in the Profession it was said by Jones Instice it was not sufficient to say that he was eruditus in Lege but he ought to say that he was Homo Conciliarius and he said that in maintainance against Boughton it came in question upon evidence to a Iury whether one who is a Barrister may give advice and it was ruled that he could not albeit he had Letters Patents to inable him as fully as if he had been called to the Bar and in Fleetwoods case adjudged that these words You the Kings Receiver you are his Deceiver are you not were actionable The same Term in the same Court SIr Tho. Savill was indited for breach of the peace within the Pallace to wit for assaulting Sir Fran Wortley and he pleaded his pardon and Doderidge said that to strike in the place was the losse of the right hand by the Law and in this poynt our Law agrees with the Lawes of France and Spain and all other Nations for as the person of the King so his Palace and courts of Iustice are so sacred that such contempts and affronts are judged worthy of such punishments and said that the Book of 24. E. 3. 33. Fitzherbert Forfeiture 22. of which he would have Students to take notice is that where one came into the Palace armed and being brought to the Barre in his compleat armor the cause was demanded and he said that it was in his own defence being in fear of a great man then in Court and he was committed to Prison by the Court during the Kings pleasure and his Lands forfeited during his life Vide for the like matter 41. E. 3. Fitzh Coron 280. Dyer 188. 22. E. 3. 13. Hillar 2. Car. in the Kings Bench. ONe Mathias Wheelhorse was indited at the Sessions of the Peace holden in the Town of Northampton quia Noctivagus and because he divers dayes and nights did frequent the house of c. which was within the liberties of Southampton and was a suspected Bawdy-house and Crawley Sergeant moved that this Inditement was insufficient for three reasons 1. Because it does not appeare in the Inditement that the party knew this to be a Bawdy-house 2. Because it is not said that it was a Bawdy-house but that it was susspected to be a Bawdy-house 3. Because the Inditement is before Iustices of Peace Villae de Northampt and the house is infra libertates Villae de Northampt. and it shall not be intended that the power of the Iustices of Peace extend thither and for it see Co. lib 5. 120. Longs case 13. H. 7. 33. 34. 22. H. 7. Kelleway 89. Co. lib. 9. Mackaleys case And the Court gave no opinion concerning the exceptions But another thing was moved to wit that one could not be indited before Iustices of peace for being Noctivagus but this is to be inquired of in the Leet and in this the whole Court was against him for it is a misdemeanor and it is contrary to the Statute of Winchester and every one may arrest him And at another day he moved this last exception again and sayd that the Iustices of Peace have no power to fine men that are noctivagant yet true it is that a Court-Leet hath such a power Rastol Leet 2. and true it is also as it is in 4. H. 7. 1. 2. that every one may arrest a Night-walker but there it is said that if he appeareth to be a man of good fame the party who arrests him ought to let him go at large and the Inditement here is only that he was Noctivagus it appears not that he is a suspicious Night-walker by Doderidge Whitlock Iustices only present by the Common Law every man may arrest him who is Noctivagus and the word Noctivagus implies that he was a common Night-walker and they sayd that Iustices of peace by their Commission have power to take such Inditements for it is of ill behaviour and albeit the Inditement were nought for the other exceptions yet being good in this it shall not be quasht and therefore Iudgement was given upon it and the party fined 40 s. The same Term in the same Court. Sparrow versus Sherwood IN Trover and Conversion of two loads of Fitches of certain Land c. The Defendant justifie by the command of Hare to whom part of the Land belongs and to one Pots to whom another part in right of the Lady his Wife belongs and shews that part of the Fitches did grow upon the Land of one and part upon the Land of the other and upon this the Plaintiff demurs 1. Because he justifies by the command of two generally and he cannot justifie upon the Land of the one by the command of the other and therefore he ought to have alledged severall commands 2. Because he does not shew particularly upon whose Land the Fitches grew but that part grew upon the Land of one and part upon the Land of the other which is incertain 3. Because the Wife of Pots is called by the name of Lady and the Wife of an Esquire cannot be a Lady Doderidge and Whitlock onely present for the first were of opinion
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