I do Allow of the Reprinting of These Four Parts of Leonards Reports Febr. 20. 1685 / 6. EDWARD HERBERT REPORTS AND CASES OF LAW Argued and Adjudged in the Courts at Westminster In the Times of the Late QUEEN ELIZABETH AND KING JAMES In Four Parts The Second Impression carefully Corrected with the Addition of Many Thousand of References never before Printed Collected by a Learned Professor of the LAW WILLIAM LEONARD Esquire Then of the Honourable Society of GRAYS-INN Published by William Hughes of Grays-Inn Esquire With Alphabetical TABLES of the Names of the Cases and of the Matter contained in each Part. LONDON Printed by William Rawlins Samuel Roycroft and Miles Flesher Assigns of Richard and Edward Atkins Esquires For H. Twyford H. Herringman T. Basset R. Chiswell B. Griffin C. Harper T. Sawbridge J. Place and S. Keble MDCLXXXVII Academiae Cantabrigiensis Liber TO THE READER Courteous Reader THese Cases were Collected and taken in the French Tongue by William Leonard Esquire sometimes of the Honourable Society of Grays-Inn a Learned Professor and Practiser of the Common Law in the time of the Reign of the late Queen Elizabeth One Copy of some of these Cases many years past came into the hands of Sir Robert Hitcham Knight afterwards Serjeant at Law Another Copy of other of these Cases came then into the hands of Humphry Davenport Serjeant at Law afterwards Sir Humpry Davenport Knight late Lord chief Baron of the Court of Exchequer Both which said learned persons approved of them and made use of them in the course of their several Practice Some other Copies of some of these Cases are now dispersed abroad and are in the hands of divers Practisers and Students of the Law who make the like use of them The Originals themselves of all these Cases amongst many others of the said Mr. Leonards collecting all of them under his own hand-writing are now in my hands having been delivered to me by a worthy Gent. of the said Society of Grays-Inn who had them out of the Library somtimes belonging to the said Mr. Leonard These Cases having been lately truly and carefully Translated by me out of the Original French Copy into English have since the Translation thereof been perused and approved of by many Eminent Professors of the Law. Wherefore I finding that the same do contain many excellent Matters and Points of Law which have not heretofore been Printed or published do here offer the same unto thy Judgment upon a serious consideration hoping they may be of some use and benefit to thee in the like course of thy study and practice of LAW From my Study at Grays-Inn Novemb. 20th 1658. Will. Hughes The Names of the Learned Lawyers Serjeants at Law and Judges of the several Courts at Westminster who argued the cases and were Judges of the several Courts where the Cases were argued viz. A. ANderson Lord Chief Justice of the Common Pleas. Anger Altham afterwards one of the Barons of the Exchequer Atkinson Ayliffe Justice of the Kings Bench. B. BEamount Serjeant at law afterwards Judge of the Common Pleas. Bromley Lord Chancellor of England Barkley C. COok after Lord Chief Justice of the Common Pleas. Clench one of the Judges of the Kings Bench. Cooper Serjeant at Law. Clark Baron of the Exchequer D. DAniel Serjeant at Law after Judge of the Common Pleas. Drew Serjeant at Law. Dyer Lord Chief Justice of the Common Pleas. E. EGerton Solicitor of the Queen after Lord Chancellor F. FLeetwood Serjeant at Law Recorder of London Fuller Fenner Serjeant at Law after Judge of the Kings Bench. G. GAwdy Judge of the Kings Bench. Golding Serjeant at Law. Glanvile Serjeant at Law after Judge of the Common Pleas. Gent Baron of the Exchequer Godfrey H. HAughton Serjeant at Law after Judge of the Common Pleas. Hammon Serjant at Law. Harris Serjeant at Law. Heale Serjeant at Law. Hobart K. KIngsmil Judge of the Kings Bench. L. LAiton M. MEad Serjeant at Law after Judge of the Common Pleas. Morgan Manwood Lord Chief Baron of the Exchequer Mounson Justice of the Common Pleas. O. OWen Serjeant at Law after Baron of the Exchequer P. POpham Attorney General of the Queen after Lord Chief Justice of B. R. Periam Judge of the Common Pleas. Pepper Attorney of the Court of Wards Plowden Puckering the Queens Serjeant at Law. R. RHodes Judge of the Common Pleas. S. SNag Serjeant at Law. Shuit Judge of the Kings Bench. Shuttleworth Serjeant at Law. TAnfield Serjeant at law after Lord Chief Baron of the Exchequer Topham W. WRay Lord Chief Justice of the Kings Bench. Windham Judge of the Common Pleas. Walmesley Serjeant at Law after Judge of the Common Pleas. Y. YElverton Serjeant at Law after Judge of the Kings Bench. The Names of the Cases Note 1. P. stand for Principal Case 2. B. stand for a Vouched Case A. Sect. ALlington and Bails Case 34 p Albany and Bishop of Saints Asaphs Case 39 p Ashpool and Inhabitants of Everinghams Case 72 p Arden and Gents Case 75 p Arundel and Morris case 98 p Allen and Palmers case 133 p Atkinson and Rolfs case 141 p Atkins and Hales case 192 p Askew and Earl of Lincolns Case 196 p Ashegel and Dennis case 272 p Arundel and Bishop of Gloucesters case 278 p Alexander and Greshams case 306 p Askew and Fuliambs case 310 p Austin and Smiths case 441 p Lord Abergavennies case 469 p Anonimus 2 p 8 p 15 p 17 p 38 p 40 p 45 p 61 p 73 p 75 p 81 p 83 p 86 p 94 p 104 p 108 p 109 p 116 p 132 p 145 p 150 p 157 p 173 p 220 p 221 p 222 p 224 p 226 p 266 p 285 p 290 p 296 p 308 p 335 p 349 p 350 351 252 353 354 355 356 357 358 359 360 361 365 371 386 390 392 393 396 397 400 401 408 418 443 444 451. B. Bornford and Packingtons case 1 p Benicomb and Parkers case 31 p Bedows case 32 p Braybrooks case 51 p Bullers case 64 p Bishop of York and Mortons case 69 p Bunny and Wright and Staffords case 77 p Bonefant and Sir Richard Greenfields case 78 p Beverleys and Cornwallis case 84 p Bracebridge Baskarviles case 87 p Barker and Pigets case 89 p Blaunchstower and Friars case 91 p Basset and Kerns case 92 p Bret and Auders case 95 p Brook and Kings case 99 p Baldwin and Cocks case 101 p Bret and Shepherds case 114 p Baxter and Bales case 115 p Butler and Ayres case 118 p Bushies case 122 p Birds case 125 p Branchers case 139 p Bear and Underwoods case 142 p Beverley and Bawds case 148 p Beares case 154 p Bronker and Robothams case 162 p Brook and Doughties case 173 p Bilford and Foxes case 189 p Burgesses of Southamptons case 199 p Lord Buckhurst and Bishop of Winchesters case 213 p Brookesley and Wickams case 232 p Bowâ—y and Popes case 234 p Bedel and Moors case 238 p
did not lie in the said Court. 18 Eliz. Dyer 250. F. B. 22. That upon Erronious Iudgment given in the Kings Bench in Ireland Error shall be brought in the Kings Bench in England 15 E. 3. Error 72. Fenner who was of Council with the Archbishop demanded of the Court how and in what manner the Record shall be remanded to the Iustices of Assize so as the Archbishop might have execution To which the Court said that the surest way is to have a Certiorare out of the Chancery into the Common Pleas directed to the Iudges there and then out of the Chancery by Mittimus to the Iustices of Assize But Fenner made a difficulty of it to take such course for the remanding of it for doubt they would not allow it to be a Record where it is not a Record for upon the matter the Record is not removed but remains with the Iustices of Assize Then Anderson said Sue Excution out of the said Record but because the Record came before us by Writ of Error it shall be also removed and remanded by Writ and so it was LXX Kempe and Carters Case Pasch 29 Eliz. In the Common Pleas. THomas Kempe brought Trespass Copyhold for breaking of his Close against Carter and upon pleading they were at issue if the Lord of the Manor aforesaid granted the said Lands per copiam rotulorum curiae manerii praedict secundum consuetudinem manerii praedict and it was given in Evidence that within the said Manor were divers customary Lands and that the Lord now of late at his Court of the said Manor granted the Land c. per copiam rotulorum curiae where it was never granted by copy before It was now holden by the whole Court that the Iury are bound to find Dominus non concessit for notwithstanding that de facto Dominus concessit per copiam rotulorum curiae yet non concessit secundum consuetudinem manerii praedict for the said Land was not customary nor was it demisable for the custom had not taken hold of it In the same Case it was also shewed that within the said Manor some customary Lands are demiseable for life only Evidence of customs and some in Fee and it was said by the Lord Anderson that he who will give in Evidence these several customs ought to shew the several limits in which the several customs are severally running as that the Manor extends into two Towns and that the Lands in one of the said Towns are grantable for lives only and the Lands in the other in Fee and he ought not to shew the several customs promiscuè valere through the whole Manor And he remembred a Case of his own experience scil The Manor of Wadhurst in the County of Sussex consisted of two sorts of Copy-hold scil Sook-land and Bond-land and by several customs disseverable in several manners As if a man be first admitted to Sook-land and afterwards to Bond-land and dieth seised of both his Heir shall inherit both but if he be first admitted to Bond-land and afterward to Sook-land and of them dieth seised his youngest Son shall inherit and if of both simul semel his eldest Son shall inherit But if he dieth seised of Bond-land only it shall descend to the youngest and if customary Land hath been of ancient time grantable in Fee and now of late time for the space of forty years hath granted the same for life only yet the Lord may if he please resort to his ancient custom and grant it in Fee. It was also moved in this case If customary Land within a Manor hath been grantable in Fee if now the same Escheat to the Lord and he grant the same to another for life the same was holden a good grant and warrantable by the custom and should bind the Lord for the custom which enables him to grant in Fee shall enable him to grant for life and after the death of the Tenant for life the Lord may grant the same again in Fee for the grant for life was not any interruption of the custom c. which was granted by the whole Court. LXXI Walker and Nevils Case Pasch 29. Eliz. In the Common Pleas. Dower WAlker and his Wife brought a Writ of Dower against Jervice Nevil and judgment was given upon Nihil dicit and because the first Husband of the Wife died seised a Writ of Enquiry of Damages was awarded by which it was found that the Land which she ought to have in Dower the third part was of the value of eight pound per annum and that eight years elapserunt a die mortis viri sui proximè ante inquisitionem assident damna to eight pounds and it appeared upon the Record that after Iudgment in the Writ of Dower aforesaid the Demandants had execution upon habere facias seisinam Damages so as it appeareth upon the whole Record put together that damages are assessed for eight years where the Demandants have been seised for part of the said eight years upon which the Tenant brought a Writ of Error and assigned for Error because damages are assessed untill the time of the Inquisition where they ought to be but to to the time of the Iudgment but the Exception was not allowed Another Error was assigned because that where it is found that the Land was of the value of eight pounds per annum they have assessed damages for eight years to eighty pounds beyond the Revenue for according to the rate and value found by verdict it did amount but to sixty four pounds but that Error was not also allowed for it may be that by the long detaining of the Dower the Demandants have sustained more damages than the bare Revenue c. Another Error was assigned because Damages are assessed for the whole eight years after the death of the Husband where it appeareth that for part of the said years the Demandants were seised of the Lands by force of the Iudgment and execution in the Writ of Dower and upon that matter the writ of Error was allowed LXXII Archpool against the Inhabitants of Everingham Pasch 29 Eliz. In the Common Pleas. IN an Action upon the Statute of Winchester of Huy and Cry by Archoopl against the Inhabitants of the Hundred of Everingham the Iury found that the Plaintiff was robbed 2 Januarii post occasum solis sed per lucem diurnam and that after the Robbery committed the Plaintiff went to the Town of Andover and advertised the Baylies of the said Town of the said Robbery and further found that the said Town of Andover is not within the said Hundred of Everingham and that there is another Town nearer to the place where c. the Robbery was done than the said Town of Andover within the said Hundred but the said Town of Andover was the nearest place where c. by the Kings high-way It was moved that upon this matter the Plaintiff should not have judgment
and for his Board-wages twenty six pounds CCCII Chamberlayns Case Mich. 32 33 Eliz. In the Common Bench. IN this Case it was moved whether Beasts taken in Withernam might be used and worked by the party as his proper Beasts Owen Rep. 124. 2 Cro. 148. And it was said by the Court that Beasts distrained as Cows could not be milked nor Horses wrought but they ought to be put in the Pound open and there the Owner might milk them and fodder them But if Cows be taken in Withernam because they are delivered to the party in lieu of his own Cattel Cattel taken in Withernam worked 3 Leu. 235. 236. he may milk them or if they be Oxen or Horses reasonably work them otherwise he should be at great charges of keeping and pasturing of them and no profit or consideration for it Anderson It should be a great inconvenience to the Common-wealth For if the Cows are not milked the milk is lost and also the Cows impaired thereby CCCIII. Byne and Playnes Case Mich. 32 33 Eliz. In the Common Bench. Assumpsit 1 Cro. 218. IN an action upon the case by Byne against Playne the Plaintiff declared that whereas he himself had recovered against Thomas Ward in the Court of the Queen in Southwark holden before Omesley Steward there for the Mayor of London the sum of twenty pounds and had obtained out of the said Court a Levari facias directed to the Bayliff to do execution upon the Goods of the said Thomas Ward which then were in the possession of the said Plaintiff and where the said Bayliff by vertue of the said Writ was ready to have done execution of the said Goods the Defendant came to the now Plaintiff and assumed to him that in consideration that the said Plaintiff would deliver to the Defendant the said Goods that he would in fourteen days after Michaelmas next pay to the Plaintiff twenty pounds or otherwise deliver to him the said Goods again if in the mean time no other makes Title unto them and prove them to be his own Goods And further that the Plaintiff shall have free ingress and regress to a Chamber in the house of the Defendant in the mean time And upon Non-assumpsit pleaded it was found by the Iury that such a Recovery was in the said Court and that the Defendant did assume c. But they further say that before the said Recovery the said Thomas Ward was possessed of the said Goods as of his own proper goods And by Deed indented sold them to his Brother R. W. in consideration of a certain sum of mony with a Proviso that the said Tho. Ward notwithstanding the said sale should have the possession of them for four years which are not yet expired paying to the said R. VVard twenty shillings by the year and if at the end of the said four years the said Thomas did repay the said sum of mony to the said R. VVard that then the said sale should be void And they further say that the said Robert VVard made Title to the said goods by vertue of the said sale Exception was taken to the Declaration because it was not shewed by what Authority or Title the Court was holden Also it sheweth that the Bayliff was ready to do Execution upon the said Goods but doth not shew where the said goods then were but the exceptions were not allowed for these matters are but inducement and conveyance to the action and not the matter or substance of it Another exception was taken because the request is not sufficiently alleadged Licet saepius requisitus but that exception was not allowed for here the Assumpsit is to pay at a certain day and then the request is not material but where a Request is parcel of the Assumpsit Request there an express Request ought to be taxed as if the payment should be upon Request As to the matter in Law here is not any consideration for the goods were not subject to execution for Thomas Ward had but a special property in them but the general property was in R. VVard and so no cause to deliver them back to the Plaintiff and here by the Verdict the forain title is proved for proof ought to be by Verdict which see Perk. 154. a. 7. R. 2. Tit. Bar. 241. For it appeareth before the said Recovery Thomas sold the goods with promise ut supra Owen Although it be found that R. VVard had the general property yet Thomas had the special and present property and that against R. VVard himself so that during the said four years R. VVard could not entermeddle with the goods and though that no execution can be had against him who hath such a special property yet that is not the case here for here one who hath the possession of certain goods delivers them to another and in consideration thereof he to whom the delivery is made promiseth to re-deliver them unto the Bailee or to pay so much mony this is a good consideration when a lawful property or title he hath who makes the Delivery And of that opinion were all the Iustices for it appeareth that the Plaintiff had a possession of the said goods and that the said Thomas Ward had a special property and because of such possession was chargeable to an action of the said Thomas Ward be it that the Plaintiff comes to the said goods by baylment or Trover for by Periam if goods come to another by Trover and he delivereth them over he is answerable to him who hath right unto them The Delivery of these goods to the Defendant is a good consideration and the Defendant hath benefit by the use of them and the property of the goods is not to be argued in this case but the Delivery to the Defendant is the only matter And because the Delivery of the goods to the Defendant and the Assumpsit upon it it was holden although the goods were not liable to execution yet the Assumpsit was good and afterwards Iudgment was given for the Plaintiff CCCIV. Vandrink and Archers Case Mich. 32 33 Eliz. In Communi Banco VAndrink brought an action upon the case against Archer and declared Trover and conversion that whereas he himself was possessed of twenty Ells of Linnen cloath as of his own goods the same came to the hands of the Defendant by Trover and he knowing the said goods to be the goods of the Plaintiff sold them unto persons unknown and the mony thereof proceeding did convert to his own use The Defendant pleaded that as to twenty four Ells of the said Linnen cloath long time before the losing one Copland was possessed thereof ut de bonis suis proprijs Ante. 189. and sold them to the Defendant who before any notice that they were the goods of the Plaintiff before any request sold them to persons unknown And as to the other three Ells he was always ready to deliver them
Nonage of every Heir but admitting that the Custom were void yet this Action doth not lye for the Defendant hath not entred and taken the profits as Prochein amy in which Case although he was not Prochein amy c. he is chargeable Oâ—â—â—â— Rep. 36 â—3 84. as Prochein amy according to his Claim but here he claimeth by the Custom and Grant of the Lord and not in the right of the Heir and therefore it was adjudged in this time of this Quaere that if one entreth into Lands claiming by Devise where in truth the Land devised is entailed he should not be charged in accompt c. CCCLVIII 20 Eliz. In the Common Pleas. NOte It was holden by the whole Court Exposition of the Statute of 32 and 34. Of Wills. That the Statute of 32 34 H. 8. of Wills did not extend to Lands in London but that the devise of the whole is good And if Houses in London parcel of the possessions of Abbies came to the Crown by Dissolution and he grants them over to hold in chief by Knights service these Lands are devisable But it was holden That the said Statutes as Acts executed extended to Lands in London and shall be good but for two parts And if a man hath Lands in tail and in Fee-simple which are of double the value of the Lands in tail and deviseth all his Lands all the Land in Fee-simple shall pass Dyer One seised of three Manors the one in Capite in Fee and two in Socage in tail and deviseth all his Land in Capite it is good against the King for all Capite Land and he shall be tied to have the Lands in Socage but it shall not bind the Heir And a devise of the third part where all is devised is void as well against the Heir as against the King. And he said That if a man be seised of twenty Acres in Socage and ten Acres in Capite and deviseth two parts of his Lands it is reasonable to say That all the Socage Lands shall pass but if the devise was of two parts of all his Lands it is otherwise for this word All implies that the two parts shall be per my per tout as well Capite as Socage i. e. It was argued by Fenner That the Lands in London are now devisable as they were before the Statute for if the Devisee of Lands in London be disturbed he shall have Ex gravi Querela otherwise it is of Lands at the Common Law and if an Assize of Mortdancester be brought of Lands in London it is a good Plea to say That the Lands are devisable But in an Assise of Mortdancestor of Lands at the Common Law it is not any Plea And if a man gives Lands at the Common Law i. e. not devisable by the Common Law he cannot devise the Reversion for the Statute shall not do wrong to the person i.e. to the Donee who there shall lose his Acquittal But of Lands devisable by custom it is otherwise And if Land in a Burrough was devisable for life by the Custom and afterwards came the Statute of 23 H. 8. which made all Lands devisable now that Land is devisable for life by the Custom and the Reversion by the Statute CCCLIX 20 Eliz. In the Common Pleas. IN an Action of Wast of Wast assigned in a Wood Wast the Iury viewed the Wood only without entring into it And it was holden that the same was sufficient for otherwise it should be tedious for the Iury to have had the view of every stub of a Tree which had been felled Yet Meade Iustice said That if Wast be assigned in several corners of the Wood then the Iury is to have the view of every corner but contrary where Wast is assigned in the whole Wood Vieâ— And if Wast be assigned in every Room of a House the view of the House generally is sufficient And Dyer Iustice said That if Wast be assigned in several places and of some of them the Iury had not the view of that they may find no Wast done CCCLX Sir Thomas Lees Case 20 Eliz. In the Common Pleas. IT was holden per Curiam That whereas Sir Thomae Lee was seised of a Manor Election and aliened the Manor except one Close parcel of the said Manor called Newdick and there were two Closes parcel of the said Manor called Newdick the one containing nine Acres and the other containing three Acres That the Alienee should not chuse which of the said Closes he would have but the Alienor or Feoffor should have the Election which of the said Closes should pass CCCLXI. 20 Eliz. In the Common Pleas. TEnant in tail the Remainder in tail c. Tenant in tail in possession Fines levied by Tenant in tail in Remainder 3 Cro. 211. makes a Lease for three lives according to the Statute of 32 H. 8. and afterwards dieth without issue he in the Remainder before any Entry levieth a Fine the same is good for by the death of Tenant in tail without issue the Free-hold is vested in him in the Remainder in tail And of that opinion was the whole Court. CCCLXII Ferrand and Ramseys Case 20 Eliz. In the Common Pleas. IN an Ejectione firmae brought of a House in London the Defendant pleaded That long time before the Lessor of the Plaintiff had any thing c. One Ann Ramsey was seised in Fee and died seised and that the same descended to William Ramsey as Son and Heir to the said Ann who was disseised by Israel Owen who leased to the Plaintiff upon whom the said William Ramsey did re-enter The Plaintiff Replicando That the said Ann did not die seised said That before the Ejectment one Robert Owen was seised and died seised and from him descended the said House to Israel Owen as Son and Heir of the said Robert absque hoc that the said Israel did disseise the said Ann upon which they were at issue and at Nisi prius in London it was given in Evidence of the Defendants part That Crofton and Langhton were seised in Fee of the said Messuage and by Deed indented conveyed it to one John Ramsey Robert Dakins and four others and their Heirs upon condition that the said Feoffees their Heirs or Assigns should pay to the said Ann and her Heirs six pounds thirteen shillings and four pence And also should enfeoff the said Ann if to the same they were required by the said Ann in her life or within four days next following such Request in Fee unto the use of the said Ann and her Heirs cum quando ad hoc per eandem Annam requisit fuerint and if the said Ann died before such Request that then the said Feoffees or their Heirs should enfeoff such issues of the said Ann or such other persons which the said Ann should name cum quando ad hoc per eandem Annam requisit fuerint or within four days after such
E. 4. 44. A Writ of Annuity is brought against a Prior and it appeared That the Prior and his Successors have used to pay the Annuity as Parson of D. and not as Priors which Parsonage was appointed to the said Priory time out of mind and in the Writ the Defendant was named Prior only and not Parson and therefore the Writ was abated See 14 E. 4. 4. 10 H. 7. 5. In an Action of Wast So Bracebridges Case 14 Eliz. Plowd 420. The Case put by Catiline If the Parson Patron and Ordinary make a Lease for years and afterwards the Lessee becomes there Incumbent the Term is not extinct for he hath the Term in his own Right and the inheritance in the Right of his Church which see 30 H. 8. Dyer 43. A Parson purchaseth and after leaseth his Parsonage he himself shall pay Tithes notwithstanding this Vnity and as to the reason of the other side That if such discharge of Tithes be not intended by the Statute but only a Discharge in Law the Statute should be in vain the same is not so for if the Abbot had been discharged by way of Release of Composition for the Monastery being dissolved the Appropriation had been good if it had not been supported by the Statute and then the Release and Composition of no force and the King should not take advantage of it but by this Statute and as to Whartons Case before cited the same cannot be Law for it hath been holden upon the Statute of 18 Eliz. of Confirmations That if an Infant maketh a Lease to the King the same is not made good by the Statute for the said Statute extends to imperfections in circumstances and not in substance And although the Lease be not good yet because the matter of the surmise is naught although our Bar be naught a Consultation ought to be granted also our Lease is well pleaded and if such defect be in it as hath been objected the same ought to come in by Plea on the other side and it is not like Heydons Case for there it was found by special Verdict not to Cromwells Case where such defect was in the Declaration and so no ground of Action as to the Traverse it is good enough as if special Bastardy be pleaded against one born before the marriage and so Bastard the other party shall traverse generally the Bastardy and not the special matter but for the principal matter i. this unity of possession divers rules have been 5 Eliz. in the Common Pleas the Case was An Abbot had a Manor within the Parish of D. and a Composition was made betwixt the Parson of D. and the said Abbot that the Parson should have yearly certain Loads of Wood out of thirty Acres of the said Manor for and in recompence of all the Tithes of Wood there afterwards the Parsonage was appropriated to the said Abbot and afterwards the house was dissolved and the Manor granted to one and the Rectory to another and it was holden That the portion of the Tithes was removed for he had them scil The Manor and the Tithes in several Rights And Manwood Chief Baron and Periam Iustice to whom a Case depending in the Chancery was referred concerning the discharge of Tithes by unity of possession delivered their opinions That such an Vnity is not any discharge within the said Statute It was adjorned CCCCLXVIII Hoskins and Stupers Case Mich. 32 Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared Assumpsit That whereas the Plaintiff had sold to the Defendant 1000 couple of Newland Fishes to the use of the Defendant and in consideration that he should ship and should bring and carry the adventure of them from Bristol in portum of Saint Lucar and should carry back again the value of the said Fish to London or Bristoll secundum usum Mercatorum The Defendant did promise that upon the arrival of the said Fish in portum of St. Lucar he would give to the Plaintiff 112 l. and said that he arrived with the said Fish ad portum of St. Lucar and that afterwards he arrived with goods of the value of the said Fish ad portum of London secundum usum Mercatorum It was holden by all the Iudges that in portum and ad portum is all one Exposition of words as the Statute of Wast is Quod vicecomes accedat ad locum vastatum yet he ought to enter into the Land So the Writ of accedas ad Curiam in plena Curia recordari facias c. Another Exception was because he declared That he returned with goods to the value and doth not say whose goods they were but the Exception was not allowed for these words secundum usum mercatorum imply that they were the goods of the Defendant Quod fuit concessum per Curiam and afterwards Iudgment was given for the Plaintiff CCCCLXIX Walgrave and Agurs Case Trin. 32 Eliz. In the Kings Bench. SIr William Walgrave brought an Action upon the Case against Agur upon these words spoken by the Defendant to a servant of the Plaintiff Action for scandalous words 1 Cro. 191. It is well known that I am a true subject but thou innuendo the said servant servest no true subject and thine own conscience may accuse thee thereof It was moved in arrest of Iudgment That these words are not actionable for no slander comes to the Plaintiff thereby for perhaps the Party served no man but the Queen and if the words may receive such sense Sâ—vage and Cooks Case which is no pregnant proof of infamy they are not actionable as in the Case betwixt Savage and Cook These words Thou art not the Queens friend are not actionable for it might be they were spoken in respect of some ordinary misdemeanours as in not payment of Subsidies or the like Also it is not averred that the party to whom the words were spoken was the Plaintiffs servant Coke Where a man is touched in the duty of his Office or in the course of life an Action lieth although that otherwise the words are not actionable and here is set forth in the Declaration That the Plaintiff at the time of the speaking of the said words was a Iustice of Peace and Sheriff of Suffolk and Captain of a Troop of 120 Horse to attend the Preservation of the Queens person So in respect of place and dignity in the Commonwealth as 2 H. 8. The Bishop of Winchester brought an action upon the Statute of Scandal Magnatum upon these words My Lord of Winchester sent for me and imprisoned me until I made a Release to J. S. and in respect of his Place and Dignity the words were holden actionable and 9 Eliz. Dyer In an action upon the Case by the Lord Aburgaveney against Wheeler My Lord of Aburgaveney sent for us and put some of us into the Coal-house and some into the Stocks and me into a place in his house called Little