was adjudged against the Plaintiffe as in a Valore Maritagii if the Defendant will shew that hee tendered a mariage whereas it is not needfull for him so to do yet if the same be not true and issue be taken upon it Judgement shall be given against him wherefore hee concluded for the Plaintiffe The principall Case was adjourned Trinit 10 Jacobi in the Common Pleas. 270 GOODMAN and GORE 's Case GOodman brought an Assize against Gore and others for erecting of two houses at the West end of bis Wind-Mill per quod ventus impeditur c. And it was given in Evidence That the said houses were situate about eighty feet from the said Mill and that in height it did extend above the top of the Mill and in length it was twelve yards from the Mill and notwithstanding this neernesse the Court directed the Jury to find for the Defendant And in that Evidence it appeared by a Deed procured by the Plaintiff himself That his Wife was Joint-tenant with him and therefore it was holden by the Court That the Assize brought in his own name alone was not well brought And Cook Chief Justice also said That the Count was not good by reason of these words viz. Per quod ventus impeditur for he said That these were the words of an Action upon the Case and not of an Assize But the Clarks said That such was the usuall forme ad quod non fuit responsum and in that Case it was said obiter by Cook Chief Justice That if the Husband and Wife be Joint-tenants and the Husband sowes the Land and dieth and the Wife doth survive that she shall have the embleements Trinit 10. Jacobi in the Common Pleas. 271 HARDINGHAM's Case IN an Action of Trespass Quare clausum fregit the Defendant did justifie That he did enter and distrain for an Amercement in the Sheriffs Torne which was imposed upon the Plaintiffe for enchroaching upon the Kings High-way without shewing that the same was presented before the Justices of Peace at their Sessions as the Statute of 1. E. 4. cap. 2. requireth Haughton Serjeant for stay of Judgement in this Case said That the Statute is That the Justices of Peace shall award Process against the person who is so indicted before the Sheriffe which was not done in this Case And he said That the Statute did not extend to Amercements only in Trespasses Quare vi armis but to every other Trespass for the Statute speaks of Trespasses and other things which shall be extended to all Trespasses Cook Chief Justice said That the Statute of 1. E. 4. cap. 2. did not extend to Trespasses which were not contra pacem as the encroachment in this Case is for otherwise the Lord of a Leet could not distrain for an amercement without such presentmennt before Justices of the Peace And although the Statute speaks of Felony Trespass c. the same is to be meant of other things of the same nature which is proved by the clause in the Statute viz. That they shall be imprisoned which cannot be in the principall Case at Bar. Warburton and Winch Justices agreed in opinion with Cook Chief Justice Trinit 10. Iacobi in the Common Pleas. 272 FRAUNCES and POWELL's Case IT was moved for a Prohibition to the Spirituall Court for citing the Plaintiffe out of his Diocess upon the Statute of 23. H. 8. and by the Libel it appeared That Powell the Defendant had complained against the Plaintiffe in the Court of Arches for scandalous words spoken in the Parish of Saint Sepulchers London Cook Chief Justice held That a Prohibition would lie unlesse the Bishop of London had given liberty to the Arch-Bishop of Canterbury to entermeddle with matters within London for he said that in the Statute of 23. H. 8. there is a clause of exception in case where such liberty is given by the inferior Diocesan and therefore a day was given by the Court to procure a certificate of the opinion of the Civilians whether such authority given by the Inferiour Ordinary to the Arch-Bishop were Warranted by there Law or not for the Statute of 23. H. 8. is so and then if the authority be lawfully granted no prohibition will lye And Cook said that the Statute of 23. H. 8. was made but in affirmance of the common Law as appears by the books of 8. H. 6. and 2. H. 4. For there it is said that if one be excomenge in a forrain Dioces that the same is void coram non judice and he said that the principal cause of making of the said Statute was to maintain the Jurisdiction of Inferiour Diocesses But it was holden that if the Plaintiff had defamed the Defendant within the Peculiar of the Arch-Bishop that in such case he might be punished there although that he did inhabit within any remote place out of the Peculiar of the Arch-Bishop and in this Case it was said that the Arch-Bishop had in thirteen Parishes in London Peculiar Jurisdiction It was adjorned Trinit 10. Jacobi in the Court of Wards 273 COTTONS Case SIR John Tirrel Tenant in Capite made a Lease unto Carrel for 1000. years and further covenanted with Carrel and his Heirs that upon payment of five Shillings that he and his heirs would stand seised of the same Lands unto the use of Carrel and his Heirs And in the Deed there were all the ordinary clauses of a conveyance bona fide viz. That the Lessee should enjoy the Lands discharged of all Incumbrances and that he would make further assurance c. Carrel assigned this Lease to Cotton who died in possession his Heir within age and in two Offices the Jury would not find a Tenure because it was but a Lease for years And in a que plura the matter came in question in the Court of Wards And Cook Chief Justice of the Common Pleas and Tanfeild Chief Baron of the Exchequer were called for Assistants to the Court of Wards and they were of opinion that because it was found by the Offices that Cotton died in possession that the same was sufficient to entitle the King to Wardship of the Lands But before the Judges delivered there opinions the Lessee was compelled to prove the Sealing of the Lease by witnesses which was dated 12. years before For if they have no sufficient witnesses to prove the Sealing of the Lease without all doubt there was sufficient matter found to entitle the King viz. that the party died in possession which shall be intended of an estate in Fee simple till the contrarie be proved But the two Justices moved the Attorney That he would not trouble himself with the proof of a matter in fact For they said It was confessed on all sides that there was such a Lease and that the Assignee of it died in possession of the Land and therefore they said that they were cleer of opinion that the Heir of such a Lessee who died in possession should be
parcel of it for in the one Case the Visne shall be of the Manor in the other not Vide 9. Eliz. Dyer ar But it was said That in this Case the Modus did extend only to things in Stangrave and therefore the Visne should be of Stangrave only Nichols Justice said That although the Parish be a Town and of one name yet the Visne shall be from the Parish to which the Court agreed And in the principall Case the Pleading was That the Manor was in Parochia and the Modus alledged to be in Parochia and the Prohibition de Parochia and therefore the Venire facias ought to be de Parochia and not de Manerio or de Villâ—â— Cook cited 4. E. 4. and 23. E. 4. that in Trespass de Parochia is a good addition for it shall not be intended that there are two Towns in one Parish And it was said by the Court in this Case That before the Statute of 2. E. 6. all Prohibitions to the Spirituall Court were quia secutus est de Laico feodo for when a man had a Modus dicimandi the Corn and other things were lay things Then it was moved by a Serjeant at Bar That at the Assizes where the tryall of the Modus decimandi was one of the principal Panel did appear only upon the Venire facias and the question was If in such Case a tales might be awarded de circumstantibus And it was holden by the Court that such tales might be well awarded and 10. Eliz. Dyer vouched to prove the same It was also said by the Court That at the common Law if not in appeal the tales might be of odd number as quinque tales or novem tales but now since the Statute of 35. H. 8. the tales may be even or odd as pleaseth the party But it was adjudged in this Case That in no Case where a triall is at the Bar shall any Tales de circumstantibus be awarded And so are all the Presidents Mich. 11. Jacobi in the Common Pleas. 292 LEIGHTON against GREEN and GARRET THomas Leighton an Administrator durante minori 〈◊〉 of J. S. did libell in the Court of Admiralty against the Defendants and shewed in the Libel That there were Covenants made betwixt them by a Charter party they being Owners of the Ship called the Mary and John of Lynn that the Defendants should victuall the said Ship for a Voyage into Denmark and that the Ship should be staunch and without leak And shewed in his Libel that the Ship being upon the Seas did spring a leak by reason of which the Plaintiff did lose a great part of the Freight of the said Ship consisting in divers Commodities viz. Coney skins The Defendant pleaded That the Covenants were made infra Portum de Lynn And further pleaded That the Plaintiffe had before that time brought an Action of Covenants against the same Defendant upon the same Deed in which Action the Plaintiffe was Non-suit and it was adjudged That it was a good Plea in Bar and thereupon a Prohibition was awarded to the Court of Admiralty Cook Chief Justice in this Case said That charter party est charta partita and is all one in the Civil Law as an Indenture is in the Common Law And in this Case it was adjudged That the Triall should be there where the contract was made and so was it adjudged in Constantine and Gynns Case Where the Originall Act was in England and the subsequent matter upon the Sea the Tryall shall be where the Originall Act is done And so it was agreed in this Case that the Tryal should be Mich. 11. Jacobi in the Star-Chamber 293 MILLER against REIGNOLDS and BASSET SIr Henry Mountagu the Kings Serjeant did informe the Lords in the Star-Chamber How that the Defendants had conspired and practised Malitiosè to draw the Plaintiffs life in question being a man of One thousand Pounds per annum and otherwise very rich The Case was shortly thus Basset the Defendant was Tenant unto the Plaintiffe of a house in R. in Kent rendring a Rent the rent was behind and the Plaintiff demanded his Rent of him the Defendant told him That he was not able to satisfie him the Rent but he promised to give unto the Plaintiffe all his Goods in satisfaction of the Rent or so many of them as should countervaile the Rent and it was agreed betwixt the Plaintiff and the Defendant Basset that the Goods should be apprised by two men which was done accordingly and the Plaintiff came to the Defendants house at the time the said Goods were apprised but it was deposed and proved did not go out of the room where the apprisement was made at the time he was in the said house which was the 10 of May 7. Jacobi ar Afterwards the Defendants Reignolds being an Atturny at Law and Basset did conspire to accuse the Plaintiffe because that when he came to the Defendant Bassets house at the time of the apprising of the said Goods that the Plaintiffe went up into an upper Chamber in the said house and broke up a Chest and out of the same took a Gold Ring 10. s. in Money and the Defendant Bassets Lease of his house and thereupon brought the Plaintiff before divers Justices of the Peace who upon Examination of the matter found no ground of suspicion against the Plaintiff and therefore they did not bind him over to the Sessions to answer the same Accusation After this the Defendants made severall motions to the Plaintiff that he would give unto them 300l. and so he should be acquitted and there should be no proceeding against him and because the Plaintiffe refused so to do they told him that divers Courtiers had begged his Estate of the King and that the same was granted unto them when as in truth there was not any thing moved to any Courtier of any such matter but all this was said in a shew only to the end they might get great sums ef mony from him And in that matter they layed the scandall upon S. Rob. Car then Viscount Rochester that he was made privy to it who then was the Kings Maj. great Favorite And when all this could not prevail to gain any Composition from the Plaintiff the Defendants did prefer a Bill of Indictment at the Assizes in Kent against the Plaintiff and there upon Evidence given unto the Grand Jury they found an Ignoramus upon the Bill and divers other plots and divises were contrived by the Defendants all to the end the Plaintiff might lose his life his estate And this matter came to Sentence before the Lords and the Bill proved in every point and circumstance as well by the confession of the Defendants themselves as by divers writings depositions of witnesses and letters read and shewed in open Court and it was said by the whole Court of Lords in this case that this was a very great offence and an offence in Capite and that if such
house and then by his Will deviseth his houses called the Swan The rooms of the Lyon which A. occupied with the Swan shall pass by the Devise although of right those rooms do belong to the Lyon-house Pasc 36 Eliz. Ewer and Heydon's Case A man hath a house and divers lands in W. and also a house and lands in D. And by his Will he deviseth his house and all his lands in W. D. there the house which is in D. doth not pass for his intent and meaning plainly appears that his house in D. doth not pass But if he had devised all his lands in W. and had not spoken of the house the house had passed A Case was in the Common-Pleas betwixt Hyam and Baker The Devisor had two Farms and occupied parcel of one of the Farms with the other Farm and devised the Farm which he had in his possession The part of the other Farm which he occupied with it did pass with the Farm devised Dodderidge Justice The Devise is in the Case at Bar All his Farm called Locks to his eldest Son and all his Farm called Brocks to his younger Son And the Land in question was purchased long after that the Devisor purchased Brocks but that Land newly purchased was not expresly named in the Will and therefore it shall discend to the heir viz. the eldest Son Land is not parcel of a house and in strictness of Law cannot appertain to a house Yet Land is appertaining to the Office of the Fleet and the Rolls but that is to the Office which is in another nature then the Land is For the Land newly purchased the Jury did not find the same to be usually occupied with Brocks it shall not pass with Brocks although it be occupied together with Brocks I do occupie several Farms together and then I devise one of the Farms called D. and all the lands to the same belonging the other Farms shall not pass with it although they be occupied all together Haughton Justice What time will make lands to belong unto a house All the profits of the lands used with the house for a small time will serve the turn Ley Chief Justice There are two manner of belongings One belonging in course of Right and another belonging in case of Occupation To the first belonging there ought to be Prescription viz. time out of mind But in our Case Belonging doth borrow some sense from occupying for a year or a time And then another year to occupie it will not make it belonging in the later sense In strictness of Law Land cannot be said to belong to a house or land but in vulgar reputation it may be said belonging And in such case in case of grant the Land will not pass as appertaining to Land C. 4. part Terringham's Case But in our Case it is in case of a Will Usually occupied is not to be meant time out of mind Here other lands were belonging to Brocks and so the words of the Will are satisfied But it might have been a Question if there had been no other lands belonging to it Dodderidge Justice If the Devisor had turned all the profits thereof to Brocks then it had passed by the Will Ley Chief Justice This occupying of it promiscuously doth make it belong to neither At another day Ley Chief Justice said Here is nothing which makes it appear to us that this Land doth belong to Brocks For the Jury find not that it was occupied either with Brocks or Locks and so this Land belongs to neither of them Dodderidge There is not any Question in the Case It is not found that it doth belong And then we must not judge it belonging The ground of this question ariseth out of the matter of fact and it ought to be found at the least that it is appertaining in Reputation Haughton The Jury find that Knight was seised of Brocks and of lands belonging to it And that he was seised of Locks and of lands belonging to that And lastly they find that he was seised of this Land in question but they do not find that it was any wayes belonging to Brocks or Locks It was adjudged for the Plaintiff and that the Land did not pass by the Devise but that it did discend to the heir Trin. 21 Jacobi in the Kings Bench. 448. SELY against FLAYLE and FARTHING IN an Ejection Firme the Verdict was found for the Defendant Three of the Jurors had Sweet-meats in their pockets and those three were for the Plaintiffe untill they were searched and the Sweet-meats found with them and then they did agree with the other nine and gave their Verdict for the Defendant Haughton Justice It doth not appear that these Sweet-meats were provided for them by the Plaintiffe or Defendant and it doth not appear that the said three Jurors did eat of the Sweet-meats before the Verdict given And so I conceive there is not any cause to make void the Verdict given but the said three Jurors are fineable Dodderidge Justice Whether they eat or not they are fineable for the having of the Sweet-meats with them for it is a very great misdemeanour And now we cannot tell which of the Jurors the three were and because it was not moved before the Jurors departed from the Bar it is now too late to examine the Jurors for we do not know for which three to send for The nine drew the three which had the Sweet-meats to their opinions and therefore there is no cause to stay Judgment But if the three Jurors had drawn the nine other to them then there had been sufficient cause to have stayed the Judgment but as this case is there is no cause And therefore per Curiam Judgment was given for the Defendant according to the Verdict Trin. 21 Iacobi in the Kings Bench 449. NOte It was vouched by George Crook and so was also the opinion of the whole Court That by way of Agreement Tythes may pass for years without Deed but not by way of Lease without a Deed. But a Lease for one year may be of Tythes without Deed. Trin. 21 Iacobi in the Kings Bench. 450. THe Plaintiffe recovered in Debt in the Kings Bench and a Capias ad Satisfaciendum was awarded and immediately upon the awarding of the Capias the Defendant dyed Quaere if in such case an Action of Debt lieth against the special Bail The Executors having nothing a Scire-facias doth not lie against the Bail And in the Common-Pleas in that case the Court was divided two Judges being against the other two Judges Ideo quare Trin. 21 Jacobi in the Kings Bench. 451. LEONARD's Case IN a Scire facias to have Execution of a Recognizance the Case was That a special Supplicavit for the Peace was directed out of the Chancery to A. and B. Justices of the Peace and to the Sheriffe of the County of c. to take a Recognizance of L. M. N. for the Peace and good behaviour and the
make a mingling of their Offices Vi. 13 E. 4 10 E. 3. By Hill and Herle For Trials out of the Chancery the Chancery and Kings Bench are but as one Court and if the Record come not in duely as it should the Court was never well seised of the Record Ley Chief Justice The coming of the Writ to the hands of one or two of the Commissioners shall not stay the Commission but the receipt of the one of them is the receit of them all having notice of it and the others may joyn with him to whom the Commission is delivered So it is in all cases every one of the Commissioners are interessed therein upon notice and not he only to whom the Commission is delivered If one Justice of peace taketh a Recognizance and dieth before it be certified the Certiorari shall be directed to the other Justice to certifie it if it come to his hands and he may retorn the Recognizance and it shall not be directed to the Executors of the Iustice who have not the Recognizance for the Certiorari is but the hand for the Court to receive it for otherwise the King might lose the benefit of the Recognizance And in our Case the Sheriff by a special Commission hath Authority to take the Recognizance and to retorn it upon Record One may do part of the Office as to make and take the Recognizance and the other may retorn it but one cannot execute a thing in part and another in another part the taking of the Recognizance by the two Justices doth exclude the Sheriff from medling with the taking or making of it but it doth not hinder him but that he may retorn it well enough and the Writ or Commission is general Vicecomiti which may extend as well to the new Sheriff as to the old Sheriff The Case was adjourned for by two Iudges the Supplicavit and Recognizance were not well retorned by the new Sheriff but Ley Chief Justice was against them Quaere Trin. 21 Iacobi in the Kings Bench. 452. RANDAL and HARVEY's Case THe Case was Harvey in consideration that Brown might go at large who was arrested at the suit of Randal gave his word that Brown should pay the money at such a day certain and for non-payment of the money Randal brought his Action against Harvey and being at issue upon the promise it was found for the Plaintiff Yelverton moved in arrest of Iudgment that the arrest of Brown was not warrantable by Law and that being the consideration the Promise was void and he said A man cannot make another his Attorney to arrest another man without Deed neither can the Sheriff give Warrant to his Baylie to arrest another without a Deed sealed And in the principal case Randal gave one a VVarrant to T. being an Attorney to demand receive and recover money from Brown but it did not appear by the Declaration that the VVarrant was by Deed in writing George Crook said that it was no Exception For be the Arrest lawfull or unlawfull yet he said the consideration was good Randal gave to his Attornie Authority to receive demand and recover thereby he gave him Authority to arrest Brown because the arrest is incident to the Recoverie 2 R. 2. Grants One grants to another all the Fish in his Pond he may fish with Nets For when he giveth the principal the incidents do follow VVhen Brown had yieldded himself to be lawfully arrested and then Harvey in consideration that Brown might go at liberty made the promise the same was good The Declaration was That Randal gave Authority to T. being an Attorney to receive deliver and recover the Debt by force of which Letter of Attorney T. did arrest Brown and so in the Declaration it is shewed that the Warrant was a Letter of Attorney Yelverton 34 H. 6. In Debt upon a Recoverie in the 5 Ports If a man will declare and set forth a thing in particular if he faileth in any thing it overthroweth his Action But if a man alledge generally a Recoverie in the 5 Ports then the same is good enough I agree the Case of 9 E. 4. Where a man gives leave to another to lay Pipes of Lead through his Lands that he may dig the ground to lay them there because it is incident to it And I agree the Case of 2 R. 2. for there the one thing cannot be done without the other viz. the Fish cannot be taken without Nets but in this Case the partie might have come by his money by Outlawrie and so there needed no arresting of the partie Ley Chief Justice If he had declared debito modo arrestatus it had been generally good and it must be intended that the Arrest was by vertue of a Letter of Attorney For he alledges that he gave him Authority to recover and then he shall have and use the means to recover as to arrest the partie or to outlaw him Haughton Justice Things incident and accessary may be comprehended in the principal as to dig for to mend the Pipe 9 E. 4. Because he grants him leave to lay them in the ground and so he may dig and justifie the same for the amending of the pipes If A. Licence B. to hunt in his Park and to kill a Deer yet B. cannot carry away the Deer for that is not incident to the thing granted In this case the Declaration is not good for he ought to set forth that the VVarrant was by Deed in writing and yet one may plead a Judgment generally quod debito modo he recovered and the same is good but here in this case he ought to set forth and shew the VVarrant and Authority by which he was arrested but not so in the case of pleading of a Judgment because there it doth refer to matter of Record Dodderidge Justice The promise was to free him from the arrest and if the arrest was unlawfull then there was no consideration and so by consequent the promise was void It ought to be shewed that Brown was lawfully arrest and if the arrest had been only matter of inducement and no cause of the Action then it had been sufficient to have said debito modo arrestatus but in this case the arrest it self is material and the Plaintiff hath shewed that the arrest was per debitum legis Cursum by vertue of a VVarrant of Attorney and it doth not appear but that it was a Letter of Attorney to deliver Seisin and so because the Plaintiff hath not shewed the arrest to be lawfull there was no good consideration whereupon to ground the promise and so no cause of Action Yelverton took another Exception viz. That the Plaintiff doth not shew that the arrest was per breve Regis or how it was Chamberlain Justice If the partie had brought an Action of false Imprisonment this Plea had not been good and in this case there appeareth to be no good consideration for it doth not appear that it was a
of the Justices was That the Fee was executed for a moitie Manwood If the Land be to one for life the Remainder for yeers the Remainder to the first Tenant for life in Fee there the Fee is executed so as if he lose by default he shall have a Writ of Right and not Quod ei deforceat for the term shall be no impediment that the Fee shall not be executed As a man may make a lease to begin after his death it is good and the Lessor hath Fee in possession and his wife shall be endowed after the Lease And I conceive in the principall case That the term shall not be extinct for that it is not a term but interesse termini which cannot be granted nor surrendred Mounson If he had had the term in his own right then by the purchase of the Fee the Term should be extinct But here he hath it in the right of another as Administrator Dyer If an Executor hath a term and purchaseth the Fee the term is determined So if a woman hath a term and takes an husband who purchaseth the Fee the term is extinct Manwood The Law may be so in such case because the Husband hath done an act which destroyes the term viz. the purchase But if the woman had entermarried with him in the Reversion there the term should not be extinguished for the Husband hath not done any act to destroy the term But the marriage is the act of Law Dyer That difference hath some colour But I conceive in the first case That they are Tenants in common of the Fee Manwood The Case is a good point in law But I conceive the opinion of Manwood was That if a Lease for yeares were to begin after the death surrender forfeiture or determination of the first lease for yeares that it shall not begin in that part for then perhaps the term in that part shall be ended before the other should begin Pasc 20. Eliz. in the Common Pleas. 3. A Man seised of Copyhold land descendable to the youngest Son by Custome and of other Lands descendable to the eldest Son by the common Law leaseth both for yeers The Lessee covenanteth That if the Lessor his wife and his heirs will have back the land That then upon a yeers warning given by the Lessor his wife or his heirs that the Lease shall be void The Lessor dieth the Reversion of the customary Land descends to the younger son and the other to the eldest who granteth it to the younger and he gives a yeers warning according to the Covenant Fenner The interest of the term is not determined because a speciall heir as the youngest son is is not comprehended under the word Heir but the heir at common Law is the person who is to give the warning to avoid the estate by the meaning of the Covenant But Manwood and Mounson Justices were cleer of opinion That the interest of the term for a moity is avoyded for the Condition although it be an entire thing by the Descent which is the act of Law is divided and apportioned and the warning of any of them shall defeat the estate for a moity because to him the moity of the Condition doth belong But for the other moity he shall not take advantage by the warning because that the warning is by the words of the Condition appointed to be done by the Lessor his wife or his heirs And in that clause of the Deed the Assignee is not contained And they agreed That if a Feoffment of lands in Borough-English be made upon condition That the heir at common Law shall take advantage of it And Manwood said that hee would put another question Whether the younger son should enter upon him or not But all Actions in right of the Land the younger son should have as a Writ of Error to reverse a Judgment Attaint and the like quod nota Pasc 22. Eliz. in the Common Pleas. 4 IT was holden by Meade and Windham Justices of the Common Pleas That a Parsonage may be a Mannor As if before the Statute of Quia emptores terrarum the Parson with the Patron and Ordinary grant parcel of the Glebe to divers persons to hold of the Parson by divers Services the same makes the Parsonage a Manor Also they held That a Rent-Charge by prescription might be parcel of a Manor and shall passe without the words cum pertinentiis As if two Coparceners be of a Manor and other Lands and they make partition by which the eldest sister hath the Manor and the other hath the other Lands and she who hath the Lands grants a Rent-charge to her sister who hath the Manor for equality of partition Anderson and Fenner Srjeants were against it Hill 23 Eliz. In the Common Pleas. 5. THis Case was moved by Serjeant Periam That if a Parson hath Common appendant to his Parsonage out of the lands of an Abby and afterwards the Abbot hath the Parsonage appropriated to him and his Successors Whether the Common be extinct Dyer That it is Because he hath as high an estate in the Common as he hath in the Land As in the case of 2 H. 4. 19. where it is holden That if a Prior hath an Annuity out of a Parsonage and afterwards purchaseth the Advowson and then obtains an Appropriation thereof that the Annuity is extinct But Windham and Meade Justices conceived That the Abbot hath not as perdurable estate in the one as in the other for the Parsonage may be disappropriated and then the Parson shall have the Common again As if a man hath a Seignorie in fee and afterwards Lands descend to him on the part of the Mother in that case the Seignory is not extinguished but suspended For if the Lord to whom the Land descends dies without issue the Seignorie shall go to the heir on the part of the Father and the Tenancy to the heir on the part of the Mother And yet the Father had as high an estate in the Tenancy as in the Seignory And in 21 E. 3. 2. Where an Assize of Nusance was brought for straightning of a way which the plaintif ought to have to his Mill The defendant did alledg unity of possession of the Land and of the Mill in W. and demanded Judgment if c. The plaintif said that after that W. had two daughters and died seised and the Mill was allotted to one of them in partition and the Land to the other and the way was reserved to her who had the Mill And the Assize was awarded And so by the partition the way was revived and appendant as it was before and yet W. the Father had as high an estate in the Land as he had in the Way Hill 23 Eliz. In the Common Pleas. 6. A Man makes a Feoffment in Fee of a Manor to the use of himself and his Wife and his heirs In which Manor there are Underwoods usually to be cut every one and twenty yeers and
Lord Dyer said So in the principall Case and therefore the later Use was utterly void and shall not be raised by intendment But otherwise it had been if it had been by devise Pasch 23. Eliz. in the Common Pleas. 10. IT was holden by all the Justices of the Common Pleas That the Queen might be put out of her Possession of an Advowson by two Usurpations And she shall be put to her Writ of Right of Advowson as a common person shall be because it is a transitory thing and that the Grant of that Advowson made by the Queen after the two Usurpations should be void and that was so adjudged upon a demurrer in the point And so it is holden in 47 E. 3. 4. b. Psch 23. Eliz. in the Common Pleas. 11. AN Indenture of Covenant was made betwixt I. S. and I. D. in which I. S. did Covenant to Enfeoffe I. D. of his Manor of D. In consideration of which I. D. by the same Indenture did Covenant with the said I. S. to pay him 100 li. The Question is If I. S. will not make the Feoffment whether I. D. be bound to pay the money It was holden by the Lord Dyer Chief Justice and Justice Mead That he is not because the money is Covenanted to be paid Executory to have the Feoffment made and therefore if he will not make the Feoffment he shall not have the money As if I Covenant with one That I will marry his Daughter and he Covenants with me That for the same cause he will make an Estate to me and his Daughter and to the Heirs of our two bodies begotten of his Manor of D he shall not make it untill we are married But if I Covenant with a man That I will marry his Daughter and he Covenants with me To make an Estate to me and his Daughter if I marry another woman or if the Daughter marryeth another man yet I shall have an Action of Covenant to compell him to make the Estate because in this later Case the Covenant was made for another Cause And this difference was so taken by the whole Court 15 H. 7. 10. So if A. grant to B. all the ancient Pale and for that B. grants That he will make a new Pale it is holden in 15. E. 4. 4. by Catesby and affirmed by Littleton That if B. cannot have the ancient Pale that he shall be excused from making the new Pale But if two things are given by two Persons one for the other there if one of them detain the one the other cannot detain the other as is 9 E. 4. 20. and 15 E. 4. 2. It is holden That if one grant Tithes in Fee by one Deed and by the same Deed for the same Grant the Grantee grant to the same Person an Annuity of 20 li That if the Grantor of the Tithes enter into the Tithes yet the Grantee cannot detaine the Annuity because the grant of the Tithes is executed in him and he may have an Action for them if the other enter upon them But in the principall Case The Covenant was but Executory for the other and then if one be not performed the other shall never be performed Windham and Periam Justices conceived the contrary and therefore the case was adjourned and a demurrer in law upon it Pasch 23 Eliz. in the Common Pleas. 12. TEnant in taile the Remainder in Fee the Tenant in taile makes a Lease for life according to the Statute of 32 H. 8. and afterwards dieth without issue and before any entrie he in the remainder grants his Remainder by Fine Whether the Conusee of the Fine may enter upon the Tenant for life and avoid his Lease was the question Fenner Serjeant Hee cannot because when a Free-hold is given by Livery it cannot be defeated without Entrie As If a Parson make a Lease for life rendring rent and dieth and his successor accept the rent the lease is affirmed as it is holden in 11. E. 3. and 18. E. 4. The Case was That a man made a Lease for life the remainder in Fee Tenant for life granted over his estate and then a Formedon was brought against the Grantee and then the first Tenant for life died And by all the Justices except Littleton and divers Serjeants the Writ shall not abate if he in the Remainder hath not entred So in the principall case When he had made a Lease for life and afterwards died without issue living the Tenant for life his estate is not defeated before entrie of him in the Remainder And then when before entrie he in the Remainder grants his Remainder the Grantee shall have it but as a Remainder for so is his grant and so the estate of Tenant for life which was but voidable is made good And so was it holden by Windham and Periam Justices but Meade and Dyer Chief Justice did conceive that by the death of Tenant in taile without issue his Lease made to him for life was void and not voidable because by the death of Tenant in tail his estate out of which the estate of the Tenant for life was derived is determined and therefore the estate for life is determined also Et cessante causâ cessat effectus And Meade compared it to the Case of 21. H. 7. 12 where it was holden That if a man do make a Lease for life upon condition that if he pay unto the Lessee ten pounds at such a day that his estate shall cease Now by the performance of the Condition the estate is determined without entrie Mich. 24. Eliz. In the Common Pleas. 13. POLES Case THomas Pole one of the Clerks of the Chancery married a woman who was Executrix to her Husband and in an Action of Debt brought against them in the Common Pleas the said Pole brought a writ of Priviledg to have removed the said Action into the Chancery And by all the Justices the Writ was disallowed and the defendants ruled to answer there because the Wife was joyned in the Action with the Husband and she could not have the priviledg and therefore not the Husband And so it is adjudged by the whole Court 34. H. 6. 29. and 35. H. 6. 3. But see 27. H. 8. 20. where the case was That a man brought an Action in the Common Pleas against Husband and at the pluries returned he and his Wife were arrested into an inferiour Court veniendo to Westminster and because the Husband hath priviledg therefore his Wife shall be in the same condition But Dyer said That the reason there was because the Wife came in aid of her Husband to follow his suit And therefore it is not like the principall Case at the Bar. Mich. 24. Eliz. in the Common Pleas. 14. IN Debt upon a Bond of Forty pound for the Payment of Twenty pound at a Day and Place certain The Defendant pleaded That he had paid the said Twenty pound according to the Condition upon which they are at Issue and at
24. Eliz. in the Kings Bench. 19. IN an Action upon the Case upon a Promise The consideration was Where I. S. had granted a Term to I. D. That afterwards upon the request of I. S. I. D. did make to W. an Estate for four years upon which W. brought his Action And after Verdict it was moved in stay of Judgement that there was no good consideration and a difference taken where the Promise was upon the Grant and where afterwards If it were before then the Condition was good but if it were afterwards it was not good And it was adjudged That the Plaintiffe Nihil capiat per billam Pasch 24. Eliz. in the Kings Bench. 20. AN Action upon the Case upon a Promise was The Consideration was That in consideration that the Plaintiffe Daret diâ—m solutionis the Defendant Super se assumpsit and because he doth not say in facto that he had given day It was adjudged that no sufficient Consideration was alledged But if the Consideration were Quod cum indebitatus c. the same had been a good Consideration without any more for that implies a Consideration in it self Pasch 24. Eliz. in the Kings Bench. 21. IT was said by Cooke That the Chancellor or any Judge of any of the Courts of Record at Westminster may bring a Record one to another without a Writ of Certiorare because one Judge is sufficiently known one to the other as 5. H. 7. 31. where a Certificate was by the Chancellor alone and to this purpose is 11. H. 4. But that other Judges of base Courts cannot do nor Justices of the Peace as 3. H. 6. where the certificate by Suitors was held void Pasch 25. Eliz. In the Common Pleas. 22. SKIPWITH'S Case IT was found upon a speciall verdict in an Action of Trespass that the place where c. was Copy-hold land And that the Custome is That quaelibet foemina viro cooperta poterit devise lands whereof she is seised in Fee according to the custome of the Manor to her Husband and surrender it in the presence of the Reeve and six other persons And that I. S. was seised of the land where c. and had issue two Daughters and died and that they married husbands and that one of them devised her part to her husband by Will in writing in the presence of the Reeve and six other persons and afterwards at another day shee surrendred to the Husband and he was admitted and she died and her Husband continued the possession And the Husband of the other Daughter brought an Action of Trespasse Rodes Serjeant The Custome is not good neither for the Surrender nor for the Will for two causes One for the uncertainty of what estate shee might make a Devise and because it is against reason that the Wife should surrender to the Husband Where the Custome shall not be good if it be uncertain he vouched 13. E. 3. Fitz. Dum fuit infra aetatem 3. The Tenant saith that the lands are in Dorset where the Custome is that an Enfant may make a Grant or Feoffment when he can number twelve pence And it was holden that because it is uncertain when he can so do the Custome is not good 19. E. 2. in a Ravishment of Ward the defendant pleaded that the custome is that when the Enfant can measure an ell of cloth or tell twelve pence as before that he should be out of Ward and it is holden no good custom for the cause aforesaid 22. H. 6. 51. a. there a man prescribed That the Lord of D. had used to have Common for him and all his Tenants And because it is not shewed what Lord whether the Lord mediate or immediate it is adjudged no good custome And as to the Surrender it is against reason that the Wife should give to the Husband for a Wife hath not any Will but the Will of her Husband For if the Husband seised in the right of his Wife make a Feoffment in Fee and the Wife being upon the land doth disagree unto it saying that shee will never depart with it during her life yet the Feoffment is good and shall binde during the life of the Husband as it is holden in 21. E. 3. And therefore it is holden in 3. E. 3. Tit. Devise Br. 43. That a Feme covert cannot devise to her Husband for that should be the Act of the Husband to convey the land to himself And in the old Natura Brevium in the Additions of Ex gravi quaerela it is holden so accordingly And the Case in 29. E. 3. differs much from this Case For there a woman seised of lands devisable took an Husband and had issue and devised the lands to the Husband for his life and died and a Writ of Waste was brought against him as Tenant by the Courtesie and it was holden that it did lie and that he is not in by the Devise for the reason there is because he was in before by the Courtesie But as I conceive that Case will disprove the Surrender for in as much as he had it in the Right of his wife he could not take it in his own Right Also he took another Exception in the principal Case because that the wife was not examined upon the Surrender but none of the Justices spake to that Exception but when the Record was viewed it appeared that it was so pleaded Further He said That the devise was void by the Statute of 34. H. 8. Cap. 5. where it is said It is enacted That Wills and Testaments made of any Lands Tenements c. by women Coverts or c. shall not be taken to be good or effectual in Law And he said That this Statute doth extend to customary Lands And as to that all the Justices did agree That it is not within the Statute And as to the Statute of Limitations Andâ—rson chief Justice said That if a Lease for years which perhaps will not indure sixty years shall be taken strong this shall Anderson moved That if the Lord Lease Copyhold land by Word Whether the Lessee might maintain an Ejectione firme and he conceived not for in an Ejectione firmâ— there ought to be a Right in Fact And although it be by conclusion it is not sufficient for that the Jury or Judge are not estopped or concluded And he conceived That if Tenant at Will make a Lease for years that it is no good lease betwixt him and the Lessor but that he may well plead that he had nothing in the land Meade contrary but they both agreed That the Book of 14. E. 4. which saith That if Tenant at Will make a lease for years that he shall be a Disseisor is not Law Anderson said That the prescription in the principal Case was not good for it is Quod quaelibet foemina viro cooperta poterit c. and it ought to be that feme Coverts possunt and by the Custome have used to devise to the
husband and therefore the prescription is not good that Potest ponere retes upon the land of another upon the Custome of the Sea for prescription must be in a thing done also by him the devise is not good according to the Custome for that is that she may devise and surrender and that ought to be all at one time and that in the presence of the Reeve and six other persons as well as the Surrenderer and the words of a Custome shall be so far performed as they may be Meade contrary And that these Witnesses shall be referred to the surrender onely for a devise may be without Witnesses And he said that sometimes the latter clause shall not refer to all the precedent matter but unto the latter onely as 7. H. 7. is Where a Praecipe was brought of lands in A. B. and C. in Insula de Ely the Clause in Insula de Ely is referred onely to C. And it was said That if in the principal Case the Will were good that then the husbands are Tenants in common and then the Action of Trespass is not maintainable Pasch 25. Eliz. in the Common Pleas. 23. THis Case was moved by Serjant Gawdy Thomas Heigham had an hundred Acres of lands called Jacks usually occupied with a house and he leased the house and forty Acres parcel of the said hundred Acres to I. S. for life and reserved the other to himself and made his Will by which he doth devise the house and all his lands called Jacks now in the occupation of I. S. to his wife for life and that after her decease the remainder of that and all his other lands pertaining to Jacks to R. who was his second son Whether the wife shall have that of which her husband died seised for her life or whether the eldest son should have it and what estate he shall have in it Meade The wife shall not have it for because that he hath expressed his Will that the wife shall have part it shall not be taken by implication that she shall have the whole or the other part for then he would have devised the same to her And therefore it hath been adjudged in this Court betwixt Glover and Tracy That if Lands be devised to one and his heirs males and if he die without heirs of his body that then the land shall remain over that he had no greater estate then to him and his special heirs viz. heirs Males and the reason was because the Will took effect by the first words Anderson Chief Justice It was holden in the time of Brown That if lands were devised to one after the death of his wife that the wife should have for life but if a man seised of two Acres deviseth one unto his wife and that I. S. shall have the other after the death of the wife she takes nothing in that Acre for the Cause aforesaid For the second matter If the Reversion shall pass after the death of the wife to the second son we are to consider what shall be said land usually occupied with the other and that is the land leased with it But this land is not now leased with it and therefore it cannot pass Windham The second son shall have the Reversion for although it doth not pass by these words Usualy Occupied as Anderson held yet because the devise cannot take other effect and it appeareth that his intent was to pass the land the yonger son shall have it Anderson Jacks is the intire name of the house and lands And that word when it hath reference unto an intire thing called Jacks and is known by the name of Jacks shall pass to the second son for words are as we shall construe them And therefore If a man hath land called Mannor of Dale and he deviseth his Mannor of Dale to one the land shall pass although it be not a Mannor And if I be known by the name of Edward Williamson where my name is Edward Anderson and lands are given unto me by the name of Edward Williamson the same is a good name of purchase And the opinion of the Court was that the Reversion of the land should pass to the second son Pasc 25. Eliz. in the Common Pleas. 24. The Lord MOUNTJOY and the Earle of HUNTINGTON'S Case NOte by Anderson Chief Justice and Periam Justice If a man seised of any entrie Franchises as to have goods of Felons within such a Hundred or Mannor or goods of Outlaws Waifes Strares c. which are causual There are not Inheritances deviseable by the Statute of 32. H. 8. for they are not of any yearly value and peradventure no profit shall be to the Lord for three or four years or perhaps for a longer time And such a thing which is deviseable ought to be of annual value as appeareth by the words of the Statute And also they agreed that the said Franchises could not be divided and therefore if they descend to two coparceners no partition can be made of them And the words of the Statute of 32. H. 8. are That it shall be lawful c. to divise two parts c. and then a thing which canot be divided is not diviseable And they said That if a man had three Manors and in each of the three such Liberties and every Manor is of equal value that yet he cannot devise one Mannor and the Liberties which he hath to it Causá quâ supra but by them an Advowson is deviseable because it may be of annual value But the Lord Chancellor smiling said That the Case of the three Manors may be doubted And there also it was agreed by the said two Justices upon Conference had with the other Justices That where the Lord Mountjoy by deed Indented and Inrolled did bargaine and sell the Manor of â—amford to Brown in Fee and in the Indenture this Clause is contained Provided alwayes And the said Brown Covenants and Grants to and with the Lord Mountjoy his Heirs and Assigns that the Lord Mountjoy his Heirs and Assigns may digg for Ore within the land in Camford which was a great Waste and also to digg Turffe there to make Allome and Coperess without any contradiction of the said Brown his Heirs and Assigns They agreed That the Lord Mountjoy could not devide the said Interest viz. to grant to one to digg within a parcel of the said Waste And they also agreed That notwithstanding that Grant That Brown his Heirs and Assigns owners of the Soile might digg there also like to the Case of Common Sans number The Case went further That the Lord Mountjoy had devised this Interest to one Laicott for one and twenty years and that Laicott assigned the same over to two other men And whether this Assignment were good or not was the Question forasmuch that if the Assignement might be good to them it might be to twenty and that might be a surcharge to the Tenant of the soile And as to that
the Justices did agree that the assignement was good but that the two assignees could not work severally but together with one stock or such workmen as belonged to them both And Cook who reported the opinions of the Justices was of Counsel with the Lord Mountjoy And note in that case it was said That Proviso being coupled with other words of covenant and grant doth not create a Condition but shall be of the same nature as the other words with which it is coupled Pasch 25. Eliz. In the Common Pleas. 25. WEBBE and POTTER'S Case In an Ejectione firme the Case was this JOhn Harris gave Land in Frankmarriage to one White And the words of the Deed were Dedi concessi I. W. in liberum maritagium Joannae filiae suae Habendum eidem J. W. haeredibus suis in perpetuum tenendum de Capitalibus Dominis fâ—odi c. with warranty to the Husband and his heirs Periam Justice although the usuall words of gift in Frankmarriage are not observed yet the Frankmarriage shall not be destroyed for the usuall words are In liberum maritagium cum Joanna filia mea in the ablative case And it was holden by all the Justices that notwithstanding that the Frankmarriage was good Also a gift in Frankmarriage after the espousals is good as it was holden by all the Justices And see Fitz. Tit. Taile 4. E. 3. and 2. H. 3. Dower 199. And he said That a gift in Frankmarriage before the Stat. of Donis c. was a Feesimple but now it is but a special tail and if it should not be in law a gift in Frankmarriage then the Husband and Wife have an estate but for their lives for they cannot have an estate taile for that there are not words of limitation of such estate in the gift And hee cited 4. E. 3. and 45. E. 3. 20. to prove his opinion and hee much relyed upon the intent of the Donor which ought to be observed in construction of such Gifts according to the Statute And because the Habendum is repugnant to the premisses and would destroy the Frank-marriage it is void and the premisses shall stand good and to prove that he cited 9. E. 3. 13. E. 1. 32. E. 1. Tit. Taile 25. 3. H. 4. by Hill And he took this difference Where a Remainder is limited upon a Gift in Frankmarriage to a stranger and where it is limited to one of the Donees for in the first case the Remainder is good for the benefit of the stranger but in the second case it is void And he said that if a Rent be reserved upon such a Gift that it should be void during the four degrees but afterwards the Reservation should be good And if the Donor grant the Reversion over and the Donee in Frank-marriage attourn now he shall pay rent to the Grantee for by Littleton he hath lost the Priviledg of Frankmarriage viz. the Aquitall and no privitie is betwixt the Grantee and the Donees 10. Ass 26. 4. H. 6. That it is not any taile if it be not Frankmarriage Windham Justice Although it be no estate in Frankmarriage yet is it an estate taile and he cited 8. E. 3. although there want the word Heirs Also if a man give lands to another semini suo it is good 45. E. 3 Statham taile If it be not Frankmarriage yet it is a good estate in taile 19. Ass Land was given to Husband and Wife in Frank-marriage infra annos nubiles and afterwards they are divorced the Wife hath an estate in taile Meade Justice did agree with Windham and said That although there be not any Tenure nor any Aquitall yet it may be a good Frankmarriage as if a Rent Common or Reversion be given in Frankmarriage it is good and yet there is not any Tenure nor aquitall Dyer Chief Justice conceived That it is not Frankmarriage because that the usuall words in such Gifts are not observed for he said that the gift ought to be in liberum Maritagium and not Joannae filiae suae for that is not the usuall form of the words And he said That if the word Liberum be omitted that it is not Frankmarriage for that he said is as it were a Maxime and therefore the usuall words ought to be observed And by the same reason such a Gift cannot be with a man but ought to be with a woman also such a Gift ought to be with one of the blood of the Donor who by possibilitie might be his Heir Also there ought to be a Tenure betwixt the Donor and Donee and also an Aquitall And if these grounds and ceremonies be not observed it is not Frankmarriage Also if it once take effect as a Frankmarriage and afterwards the Donor granteth the Reversion over or if the Reversion doth descend to the Donees yet it shall not be utterly destroyed but shall remaine as an estate taile and not as an estate for life because it once took effect in the Donees and their issues as a Frankmarriage 31. E. 1. taile 116. If a man give lands in Frankmarriage the remainder to the Donees and the heirs of their bodies yet it is a good Frankmarriage And if a man give Lands in Frankmarriage the Remainder to another in taile it shall not destroy the Frankmarriage because that the Donor hath the Reversion in Fee in himself and the Donees shall hold of him and not of him in the Remainder in taile but if the Remainder had been limited to another in Fee simple then it had been otherwise Also if the Donor grant the Services of the Donees in Frankmarriage reserving the Reversion to himself it is no good Grant although that the Donees attourne for that the Services are incident to the Reversion but if he grant the Reversion then they do passe And he concluded That the Husband had the whole and that the Wife had nothing for she was no purchaser of the premisses because that the Gift did not take effect as a gift in Frankmariage And he said that he doth not construe it so by the intent of the Gift for here is an expresse limitation of the Fee to the Husband and his heirs which shall not be contradicted by any intendment for an Intendment ought to give way to an expresse Limitation as a consideration implyed ought to give place to a consideration expressed And afterwards this yeer it was adjudged that it was not a Frankmarriage nor a Gift in taile but that it was a Fee simple And the Justices said that although the old books are That where it takes not effect as a Frankmarriage that yet it shall take effect as an estate taile those Books are against Law But they agreed That where once the Gift doth take effect as a Frankmarriage that by matter ex post facto it might be turned to an estate in taile Pasch 26. Eliz. In the Common Pleas. 26. MEade and Windham the other Justices being absent were of opinion That a
of the Term with the Remainder over And the Devisee of the Occupation of a Term hath one speciall Property and the Remainder another Property As if a Lease be extended upon a Statute the Conusee during the Extent hath one Property and he who is to have it afterwards another Property and the reason of the difference is apparent when the Occupation is devised and when the terme is devised for in the first Case he puts but only a confidence in the Devisee as it appears in Welkdens Case But in the other Case all the Property goes and there is no confidence reposed in the Devisee And there is a Case in the very Point with which I was of Councell and was decreed in the Court of Chancery it was one Edolf's Case Where the Devise was of a terme the Remainder to another and he made the Devisee his Executor and he entred Virtute donationis as in this Case and it was decreed That the Executor might alien the Terme and that the Remainder could not be good And to this purpose Vid. 33. H. 8. 2 E. 6. 37 H. 6. 30. But if there might be a Remainder yet Incertae Personae nulla donation for if all the Children be preferred then the Remainder is void and then the Property of the Lease is in the Wife and she might preferre her at any time during her life and the generall property cannot be in another but in the Executor for the Legatee cannot enter although that 27 H. 6. seemeth to be contrary And if the whole Property be in the Wife her Husband might alien it and therefore it may be extended for his Debt as 7. H. 6. 1. is But it may bee objected That the Cases before put are of a devise of a Term and this is of a Lease That makes no difference for in Wroâ—â—slâ—y's Case Lease there is said to contain not only a terme but also the years to come in the terme Then the Question is If by the sale of the Sheriff upon the Fieri facias if the term be so gone that the Wife shall not have it by the Reversall of the Judgment by Error for the Judgement is that the Party shall be restored to all that which he hath lost It is very cleer that it shall never return for if it should be so then no sale made by the Sheriffe might be good unlesse the Judgement be without Error which would be a very great damage to the Common Wealth And also by reason and by the Judgment in the Writ of Error it should not be so restored for the Judgment is That he shall be restored to all that which he hath lost ratione judicii and here the Defendant hath not lost any thing by force of the Judgment but by force of the Execution For the Judgment was to have Execution of 200 li and of the 200 li. he shall be restored again and not of the Lease And therefore in 7. H. 7. If a Manor be recovered and the Villains of the Manor purchase Lands and afterwards the Judgment is reversed by Error the Recover or shall have the Perquisite and the other shall not be restored to it And 7. H 7. A Statute was delivered in Owell maine and a recovery was by the Conusee upon Garnishment of the Conusor and the Conusee had Execution and afterwards the Judgement is reversed by Error yet the Conusor shall not be restored to the Land taken in Execution but only the Statute shall be redelivered back where it was before And in this Case if the party should be restored to the term it should be great inconvenience Also if I give one an Authority upon Condition and the Party doth execute the Authority and after the Condition is broken the Act is lawfull by him who had Authority upon Condition And so was the Lord of Arundels Case where the Feoffee upon Condition of a Manor granted Coppies it was holden That the Grants made by him were good notwithstanding the Condition was afterwards broken And in 13 E. 3. Barr 253. That a Recovery was Erroneous and the Party being in Execution the Gaoler suffered him to escape and after the Recovery was reversed for Error yet the Action lay against the Gaoler Also by him the Jury have given an imperfect Verdict so as we cannot tell whether the Party were preferred or not for the Will was unpreferred generally and the Jury find that she viz. A. the daughter was not preferred by her father in his life time so as the Preferment by the taile is limited generally so as if any other prefer her she shall not have the Remainder And the Jury have found that she was not preferred by one certain viz. by her Father nor in a certain time in his life time which is as much as to say That she was preferred by the Uncle Aunt or Mother and if it were so then the Remainder is not good to her Also they find no preferment in the life of the father and it may be that the Father hath given her preferment by Will and that was no preferment in his life but is consummate only by his death and so she might be preferred by him by Implication by his Will So as upon the whole Matter I conceive That the Judgement ought to be reversed Note that this Case was afterwards adjudged at Hertford Terme and the Judgement was That the Issue of the Wife had Judgement for her Terme and that the Judgement upon which the Execution was was Erroneous and reversed by the Writ of Error and that the opinion of the Justices was That the Term was not to be restored but so much for which it was sold upon the Execution And the Daughter of Perepoynt brought an Action for it and had Judgement 27 Eliz. in the Common Pleas. 37. ONE had certain Minerall Lands Leased to him for years with liberty to dig and make his Profit of the Mine The Lessee afterwards digged for Mine and sold the Gravell which came of it And by the Opinion of the whole Court This sale was no Waste for no Sale is Waste if the first act be not Waste As the Sale of Trees by Tenant for life or Years is not waste if the Cutting and Felling down of them was not Waste before for the Vendition is but a secondary Act and but subsequent to the Act precedent which Act if it were lawfull the Sale also is lawfull for the Sale alone is not waste But they said That if the Lessee fell or cut Timber Trees and sell them it is waste Non quia vendebat sed quia scindebat For if he suffer them to be upon the ground without doing any thing with them yet it is waste but he may use them for the Reparation of his house and then it is no waste And yet when he fels them with an intent for Reparations and afterwards sells them it is waste Non propter Venditionem only but for the felling
contract was determined and not in esse at the time of promise But he said it was otherwise upon a consideration of Marriage for that is alwayes a present consideration and alwayes a consideration because the party is alwayes married Windham to the same intent and compared it to the Case of 5. H. 7. If one sell an horse to another and after at another day will warâ—ant him to be good and sound of limb and member it is void warranty for it ought to have been at the same time that the horse was â—old Periâ—m Justice contrary for he said This case is not like to any of the cases which have been put because there is a great difference betwixt Contracts and this Action For in Contracts the consideration and promise and sale ought to concur because a Contract is derived of con trahere which is a drawing together so as in Contracts every thing requisite ought to concur as the consideration of the one side and the promise or sale of the other side But to maintain an Assumpsit it is not requisite for it is sufficient if there be any moving cause or consideration precedent for which cause or consideration the promise was made and that is the common practice at this day For in Assumpsit the Declaration is That the Defendant for and in consideration of ten pounds to him paid postâ—a silicet a day or two after super se assumpsit c. and that is good and yet there the consideration is executed And he said that Hunt and Baker's case which see 10. Eliz. Dyer 272. would prove it The case was this The Apprentice of Hunt was arrested when Hunt was in the Country and Baker one of Hunts neighbours to keep the Apprentice out of the Counter became his Baile and paid the debt Afterwards Hunt returning out of the Country thanked Baker for his neighbourly part and promised him to repay him the said summ Upon which Baker brought an Action upon the Case upon the promise And it was adjudged that the Action would not lie not because the consideration was precedent to the promise but because it was executed and determined long before But there the Justices held That if Hunt had requested Baker to have been surety or to pay the debt and upon that request Baker paid the debt and afterwards Hunt promiseth for that consideration the same is good for the consideration precedes and was at the instance and request of the Defendant So here Sydenham became bail at the request of the Defendant and therefore it is reason that if he be at losse by his request that he ought to satitfie him And he conceived the Law to be cleer that it was a good consideration and that the request is a great help in the Case Rodes Justice agreed with Periam for the same reasons and denyed the Case put by Anderson And he said That if one serve me for a year and hath nothing for his service and afterwards at the end of the year I promise him ten pounds for his good and faithfull service ended he may maintain an Assumpsit for it is a good consideration But if the servant hath wages given him and the Master ex abundantia as he said promiseth him ten pounds after his service ended the same promise shall not maintain an Assumpsit for there is not any new cause or consideration preceding the Assumpsit And Periam agreed to that difference and it was not denyed by the other Justices but they said that the principall Case was a good case to be advised upon and at length after good advice and deliberation had of the cause they gave Judgment for the Plaintiff that the Action would lie And note That they very much relyed upon Hunt and Bakers Case before cited See Hunt and Baker's Case in 10. Eliz. Dyer 272. Pasc 27. Eliz. in the Common Pleas. 41 CARTER and CROST's Case CArter brought an Action of Detinue of a chaine against Crosts and declared That Thomas Carter his brother was thereof possessed and died Intestate for which cause the Bishop of Cork granted him Letters of Administration and that the Chain came to the Defendants hands by Trover c. And declared also That he was as Administrator thereof possessed in London To which the Defendant Crosts pleaded the Generall Issue and the Jury gave a speciall Verdict and found that the Administration was committed to Carter in London by the Bishop of Cork in Ireland here and did not find that Carter was possessed of the chain in London And upon this special Verdict first it was moved That the Bishop of Cork in Ireland being in England might commit administration of things in Ireland And it was held cleerly by the Court That he might of things within his Diocesse in Ireland because it is an Authority Power or Matter that followes his Person and wheresoever his Person is there is his Authority As the Bishop of London may commit Administration being at York but it ought to be alwaies of things within his Diocesse and therefore they held That the Declaration was good in that point That the Bishop of Cork did commit Administration in London although there be no such Bishop of England The second point was If an Aministrator made by a Bishop of Ireland might bring an Action here as Administrator and it was holden That he could not because of the Letters of the Administration granted in Ireland there could be no triall here in England although that Rodes Justice said That Acts done in Spirituall Courts in Forrain places as at Rome or elsewhere the Law saith That a Jury may take notice of them because such Courts and the Spirituall Courts here make but one Court and he proved it by the Case of the Miscreancy in 5. R. 2. Tryall 54. where a Quare Impedit was brought by the King against the Clerk of a Church within the Bishopprick of Durham and counted that the Bishop who is dead presented his Clerk and that the Clerk died and the Chapter collated a Cardinall who for Miscreancy and Schisme was deprived the Temporalties being in the Kings hands Burgh He hath counted of an Avoidance for Miscreancy at the Court of Rome which thing is not tryable here Belknap Chief Justice I say for certain That this Court shall have Conusans of the Plea and that I will prove by Reason for all Spirituall Courts are but one Court and if a man in the Arches be deprived for a Crime and appeal to Rome and is also there deprived that Deprivavation is triable in the Kings Court in the Arches And if a man be adhering unto the Kings enemies in France his Lands are forfeitable and his adherence shall be tryed where his Land is as oftentimes it hath been for adherence to the Kings enemies in Scotland And so by my faith if one be Miscreant his Land is forfeitable and the Lord thereof shall have the Escheat and that is good reason For if a man
same to Cropp the Lessor And the same Margery at one or two dayes before the payment of the said Rent had received the Rent in the like manner and had paid it to Cropp and he had accepted of it But now he refused to receive it of her but at the last day of the Month he went to the Land and there demanded the Rent and because it was not paid he entred Laiton argued for the Lessor That his entry was lawfull for he said That the Tender made by Margery Briggs to the Lessor was not sufficient 1. Because the Servant of the Lessee had Authority to deliver it to the Lessor therefore when he delivers it to another he hath not pursued his Authority 19. H. 8. 27. H. 8. Letter of Atturney made to diverse to give livery of Seisin If one make Livery alone it is void 34. H. 6. If a Capias be to many Coroners and one execute it it is void 18. E. 4. If one hath a Letter of Atturney to make Livery he cannot transfer this Authority to another to make Livery for him Also if in this Case a Stranger had tendered the Rent the Lessor was not bound to receive it as upon a Mortgage if a Stranger tender the Money the Mortgagee is not bound to accept of it 21. E. 4. In case of Corporall Service as Homage or Fealty the demand is to be made of the person but of Rent the demand is to be made upon the Land because the Land is the Debtor Clenche Justice conceived That if the Lessee himselfe had delivered the Rent to Margery Briggs that it had been good but it is a doubt if good made by the servant for he could not transfer his Authority to another Wray Chief Justice If it were upon a Bond the Obligee was not bound to accept of it before the day so if it were payable at Mich. only there the Lessor is not bound to accept of it before the day but in as much as 't is after the day the Month is a Liberty and Benefit for the Lessee and it was due at Mich. therefore I conceive That being tendred to him within any part of the Month that he is bound to accept of it And as to that That his servant cannot transfer his Authority over and therefore Margery Briggs is but a stranger in that act that is not so for now she is a servant in that to the Lessor himself and therefore there is privity enough also she hath received the Rent for him before What then said Laiton We can prove a speciall commandment for the time before that she received it At another day the Case was moved again and it was ruled against Cropp the Lessor because the rent was due at Mich. and the month after was given because of the penalty of Re-entry and the Tender and Refusall after the Rent was due and within the month saves the penalty and also Lawes ought to be expounded Secundùm â—quum bonum and good conscience and the Lessor was at no prejudice if he had accepted of it when his Daughter in Law tendred it unto him and therefore it was conceived That he had an intent to defraud the Lessee of his Lease and the Law doth not favour Frauds and therefore it was adjudged against Cropp the Lessor Hill 28 Eliz. In the King 's Bench. 44 PRIDEAUX's Case IN this Case it was moved Where a man marrieth a woman who is an Administratrix so as the Suit is to be in both their names Whether they shall be named in the Writ Administrators or not Wray Chief Justice They shall be for by the Entermarriage the Husband hath Authority to entermeddle with the Goods as well as the Wife but in the Declaration all the speciall matter ought to be set forth and so some said is the Book of Entries That both of them shall be named Administrators Hill 28. Eliz. in the King 's Bench. 45. AN Action upon the Case was brought for these words viz. Thou art a Cozener and a Bankrupt and hast an Occupation to deceive men by the words were spoken of a Gentleman who had One hundred Pound land per annum to live upon and therefore although he used to buy and sell Iron yet because he was not a Merchant nor did not live by his Trade the better Opinion of the Court was That the words were not actionable and so adjudged Hill 28. Eliz in the King 's Bench. 46 HARWOOD and HIGHAM's Case ONE had Houses and Lands which had been in the tenures of those which had the Houses and he devised his Houses with the Appurtenances and it was holden and so adjudged by the whole Court That the Lands did passe by the words With the Appurtenances For it was in a Will in which the intent of the Devisor shall be observed Trinit 28. Eliz. Rot. 1130. in the Common Pleas. 47 The QUEEN and SAVACRE's Case IN a Quare Impedit by the Queen against Savacre Clerk the Case was this The Queen presented to a Parsonage which was void by the taking of another Benefice by the said Savacre and the said Savacre for to enable him to have two Benefices pleaded That he was the Chaplain of Sir James a Crosts Controller of the Queens House who by the Statute of 21. H. 8. cap. 13. might have two Chaplains and might qualifie them to take two Benefices to which it was replied That the said Sir James a Crost had two other Chaplains which are qualified to have two Benefices and have also two Benefices by reason of that qualification and also are alive so as he is a third Chaplain who could not be qualified by that Statute To which it was answered That one of those two Chaplains is removed and discharged by the said Sir James a Crost to be his Domesticall Chaplain scil Capellanum familiarem as it was pleaded and so he hath now but two Chaplains of which the Defendant was one upon which there was demurrer joyned Three Points were in the Case 1. If the qualification Sub sigillo be sufficient within the Statute without the Signature or name of Sir James a Crost 2. When two Chaplains are qualified and one is removed out of service if he might qualifie another by the Statute the party being alive who was qualified 3. Whether he remain his Chaplain notwithstanding such removall during his life Upon which Points after perusall of the Statute it was agreed by the whole Court That the Queen ought to have Judgement and so they gave Judgement presently And the reasons of their Judgement were for the first Point Because that the Defendant Sâ—vâ—cre was not qualified Sub Signo Sigillo praedict Jacobi a Crost but only Sub Sigillo and the words of the Statute are viz. Under the Sign and Seal of the King or other their Lord or Master c. Which words Or other their Lord or Master shall be referred to Sign and Seal which is limited to the
King And as to the second Point they held the Law to be cleer That after that he hath retained as many as by the Law he may retaine and they are sub Signo and Sigillo testified to bee his Chaplains and by reason thereof have qualification to have two Benefices and have two Benefices by vertue thereof although that afterwards they are removed for displeasure or otherwise out of service yet during their lives their Master cannot take other Chaplains which may by this Statute be qualified for so every Baron might have infinite of Chaplains which might be qualified which was not the meaning of the Statute and of that opinion is the Lord Dyer in his Reports And as to the third Point they held That although he were removed from the Domesticall Service of the Family yet hee did remaine Chaplain at large and so a Chaplain within the Statute And further the Opinion of the Court was in this Case That if the party qualified to die the Queen or other Master mentioned in the Statute might qualifie another againe Quod nota The Case was entred Pasch 28. Eliz. Rot. 1130. Scot. Mich. 28 29. Eliz. in the King 's Bench. 48. ONE made a Deed in this forme Noverinit c. that I have demised and to Farme letten all my Lands in D. to I. S. and his Wife and to the Heirs of their two Bodies for thirteen years And it was moved That it was an Estate in taile and 5. E. 3. and 4. H. 4. were vouched But Clenche Justice who was only present in Court was of Opinion That it is but a Lease for years although it was put that Livery was made secundùm formam chartae and his said That if one make a Lease for forty years to another and his Heirs and makes Livery that it is but a Lease for years and he said It is no Livery but rather a giving of Possession But he would have it moved again when the other Justices came Mich. 28 29. Eliz. in the King 's Bench. 49 AN Action upon the Case was brought against an Inn-keeper upon the Custome of England for the safe keeping of the things and Goods of their Guests and he brought his Action in another County then where the Inn was and it was said by Clench Justice That if it be an Action upon the Case upon a Contract or for words and the like transitory things that it may be brought in any County but in this Case he said It ought to be brought where the Inn is Mich. 28 29. Eliz. in the King 's Bench. 50. ONE charged two men as Receivers The Question was Whether one of them might plead Ne unque son Receiver and it was moved That he could not but ought to say Nâ— unque son Receiver absque hoc that he and his Companion were Receivers Clenchè and Suit Justices held That it was well without Traverse and Vide 10. E. 4. 8. Where an Account was brought against one supposing the receipt of Two hundred Marks by the hands of I. P. and R. C. The Defendant as to One hundred Marks pleaded That he received it by the hands of I. P. tantùm without that that he received it by the hands of I. P. and R. C. And as to the other One hundred Marks he received them from the hands of R. C. only without that that he received I. P. and R. C. And there it was doubted Whether it be good or not But in the end of the Case by Fitz. Accompt 14. If an Account be brought against two and one saith He was sole his Receiver and hath accounted before such an Auditor if the Plaintiffe answer unto his Bar he shall abate his Writ because the Receipt is supposed to be a joint Receipt And it is not like unto a Praecipe quod reddat against two Mich. 28 29. Eliz. in the King 's Bench. 51. AN Action upon the Case was brought against one for that he said to another I will give thee Ten Pound to kill such a one and the Question was Whether the Action would lie It was said by Sir Thomas Coâ—kaine that such a Lady had given poyson to such a one to kill her Child within her that the words were not Actionable Also one said That another had put Gun-Powder in the Window of a house to fire such a house and the house was not fired adjudged that the words were not Actionable The Case was betwixt Ramsey of Buckinghamshire and another who said That he lay in wait to have killed him it was found for the Plaintiffe and he had Forty Pound Damages given him But of the Principall Case the Court would advise Mich. 28 29. Eliz. in the Kings Bench. 52 IT was holden by the Court That the Habeas corpus shall be alwayes directed to him who hath the custody of the Body Therefore whereas in the case of one Wickham it was directed to the Maior Bailiffs and Burgesses Exception was taken unto it because the pleas were holden before the Maior Bailiff and Steward but the Exception was dissallowed But otherwise it is in a Writ of Error for that shall be directed to those before whom the Judgment was given In London the Habeas corpus shall be directed Majori Vicecomit London because they have the custodie and not to the whole Corporation But I conceive that the course is that the Writ is directed Majori Aldermannis Vicecomitibus c. Mich. 28 29 Eliz. In the Common Pleas. 53 MARSH and PALFORD's Case OWen moved this Case That one had an upper chamber in Fee and another had the neather or lower part of the same house in Fee and he who had the upper chamber pulled it down and he which had the lower room would not suffer him to build it up again But the opinion of the Justices was that he might build it up again if he did it within convenient time And there it was said that it had been a Question Whether a man might have a Free-hold in an upper chamber Mich. 28 29 Eliz. in the Kings Bench. 54. A Question was moved to the Court Whether Tithe should be paid of Heath Turf and Broom And the opinion of Suit Justice was That if they have paid tithe Wool Milk Calves c. for their cattell which have gone upon the Land that they should not pay tithe of them But some doubted of it and conceived That they ought to say that they have used to pay those Tithes for all other Tithes otherwise they should pay tithe for Heath Turf Broom c. Mich. 28 29. Eliz. in the Kings Bench. 55. TWo Parsons were of two severall Parishes and the one claimed certain Tithes within the Parish of the other and said That he and all his Predecessors Parsons of such a Church scil of D. had used to have the Tithes of such Lands within the Parish of S. and that was pleaded in the Spiritual Court and the Court was moved for to grant
Assize brought against him the same shall be recowped in damages because that which was done was for his Commodity also it is incident to one who hath a way for to mend it All Prescriptions at the first did begin by Grants And if one grant to me his trees the Law saith That I may come upon the Land to fell them and carry them away off from the Land and I shall not be a Trespassor And by 9. E. 4. and Perkins If one grant to me liberty to lay a Conduit Pipe in his Land I may afterwards mend it toties quoties it shall want mending 32. E. 3. If one grant to me a way if he will interrupt me in it I may resist him and if he dig Trenches in the way to my hinderance in my way I may fill them up again The books of 12 13. H. 8. are not adjudged If Lessee for years be of a Meadow he may dig to avoid the water and may justifie so doing in Waste brought against him But it was said That in that Case the Lessee hath an interest in the soil so hath not he who claims the way in this Case Clenche Justice held That he could not dig the Soile Then the Defendant demanded What remedy he should have Suit Justice If he went that way before in his shooes let him now pluck on his boots Gawdy The pleading is not good for he saith That he could not use his way so well as before which is not good but he ought to plead that he could not use the way at all Mich. 28 29. Eliz. in the Kings Bench. 58 IN an Ejectione firme The party ought to set forth the number of the Acres for although he give a name to the Close as Green Close or the like it is not sufficient because an habere facias seisinam shall be awarded But in Trespasse the same may be Quare clausum suum fregit c. without naming the number of the Acres And so it was said it was adjudged in a Shropshire Case Mich. 28 29. Eliz. In the Kings Bench. 67. IN an Action upon the Case because that the Defendant had made a Gate in one Towne for which he could not go to his Close in another Town Cook took Exception that the Writ was Vi armis and it was agreed per curiam that for that cause it was not good Also the Visne was of one Towne only whereas it should have been of both for he said That in Hankford and Russels Case The Nusance was laid in one Town per quod his Mill in another Town could not grinde and upon Not guilty pleaded the Visne came from one Town only and it was adjudged that it was not good Mich. 28 29. Eliz. in the King Bench. 68 JOHN JOYCE'S Case AN Action upon the Case was brought against John Joyce Inn-keeper of the Bell at Maidstone in Kent for not scowring of a Ditch which ran betwixt the house of the said John Joyce and of another man and Judgement was given for the Plaintiffe against the Defendant Joyce and a Writ of Error was brought to reverse the Judgement and divers Errors were assigned The first Error which was assigned was That the Plaintiffe doth prescribe That all the Inhabitants of the Bell c. had used to scowre the Gutter c. And it was said That that was no good forme of prescription as in 12. H. 4. 7. Br. Presâ—ription 16. Where the Plaintiffe said That the Defendant omnes alii tenuram illam priushabentes mundare debuere consuevere talem fossatam and therefore the Writ was abated for it ought to have been quod ipsi praedecessores sui de tempere cujus contrarium c. Or that such a one and his Ancestors or Predecessors whose Estate the Defendant hath c. Also if a Copy-holder prescribe That he and all his Tenants tenementi praedict ' have used to have estovers in such a Wood c. it is not good but he ought to prescribe in the Manor The second Error was That the Prescription was uncertain for it is That all Tenants c. which extendeth to Tenants in Fee in Taile for Life or years and the Prescription is the foundation and ground of the Action and therefore it ought to be certain As if one make Title for entry for Mortmaine he ought to shew that he hath entred within the year and day 7. E. 6. Br. Prescription 69. It is holden That Tenant for years or at will cannot prescribe for common for the prescription ought to be alledged in the Tenant of the Free hold or to alledge a Corporation or the like In reason Tenant for years cannot prescribe for his Estate hath a certain beginning and a certain end therefore it is not of long continuance The third Error was That the Plaintiffe hath not alledged That the Defendant was Tenant at the time of the Action brought as in the Case of Clerkenwell and Black-Friâ—rs where the Plaintiffe brought his Action upon the Case for that the Defendant had turned the course of the water of a Conduit Pipe and the Declaration was Quod cum querens seisâ—â—us existat and doth not say existitit and so the Plaintiffe was not supposed Owner of the Scite and Messuage of Black-Friers but only at the time of the Action brought and not at the time of the diversion of the Water But Judgement was given and Error brought upon it The fourth Error was Because it was for scowring a Gutter betwixt the houses c. and doth not say That the house was contigue adjacens to his house 22. H. 6. Where Cattell escape into the Plaintiffs Close and thereupon Trespasse brought the Defendant said That it was for want of Fence of the Plaintiffs Close and it was holden no Plea if he do not say that the Plaintiffes Close was adjacens Clench Justice The Prescription ought to be That such a one and all those whose Estate he hath c. have used for them and their Farmors to repair the Gutter Cowper When the Prescription runs with the Land then he may prescribe in the Land as all those who have holden such Lands have used to scowre such a ditch and the same is good Gawdy Justice If he had said All those who had occupied such a house had used to scowre it had been good Godfrey If a man will alledge a Prescription or Custome he ought to set forth That it was put in use within time of memory In the Prescription of Gavelkind the party ought to shew that the Land is partable and so hath been parted Also he prescribed That omnâ—â— illi qui tenuerunt and doth not alledge a Seisin but by way of Argument Suit Justice held the pleading not good because the words were not contigue adjacens And for these causes the first Judgment was reversed Mich. 28 29. Eliz. in the Kings Bench. 69 GOMERSALL and GOMERSALLS Case IN an Action of Account the Plaintiffe charged
Bench. 70 GILE'S Case A Writ of Error was brought to reverse a Judgement given in an Action upon the Case The Action upon the Case was brought against one Quare exaltavit stagnum per quod suum pratum fuit inundatum and he pleaded Not guilty and the Jury found Quod erexit stagnum and if Errectio be Exaltatio then the Jury find that the Defendant is guilty and thereupon Judgement was given for the Plaintiffe Glanvile alledged the generall Error That Judgement was given for the Plaintiffe where it ought to have been given for the Defendant And he said That erigere stagnum est de novo facere Exaltare est erectum majoris altitudinis facere Deexaltare is ad pristinam altitudinem adducere prosternere stagnum est penitus tollere And the precise and apt word according to his Case in an Action upon the Case ought to be observed that he may have Judgement according to his damage and his complaint viz. either Deexaltare or Posternere c. 7. E. 3. 56. An Assize of Nusans Quare exaltavit stagnum ad nocumentum liberi tenementi sui The Defendant pleaded That he had not inhaunced it after it was first levyed And by Trew There is not any other Writ in the Chancery but Quare exaltavit stagnum Herle said That he might have a Writ Quare levavit stagnum and there by that book Levare stagnum exaltare stagnum do differ And therefore he conceived That the Writ should abate for using one word for another 8. E. 3. 21. Nusans 5. by Chauntrell In a Writ of Nusans Quare levavit if it be found that it was tortiously levied the whole shall be destroyed But in a Writ Quare exaltavit nothing shall be pulled down if it be found for the Plaintiffe but the inhauncing shall be abated only So 8. Ass 9. Br. Nusans 17. the same Case and difference is put and 16. E. 3. Fitz. Nusans 11. If the Nusans be found in any other forme then the Plaintiffe hath supposed he shall not recover And in 48. E. 3. 27. Br. Nusans 9. The Writ was Quare divertit cursum aquae c. and shewed that he had put Piles and such things in the water by which the course of the water was streitned wherefore because he might have had a Writ Quare coarctavit cursum qquae the Writ was holden not to be good Cook took another Exception viz. That the Assize of Nusans ought to be against the Tenant of the Free-hold and therefore it cannot be as it was here brought against the Workmen and it is not shewed here that the Defendant was Tenant of the Soil for 33. H. 6. 26. by Moile If a way be streitned and impaired an Action upon the Case lieth but if it be altogether stop'd an Assize of Nusans lieth But Prisoit said If the stopping be by the Terr-Tenant an Assize of Nusans lieth but if it be by a Stranger then an Action upon the Case but for common Nusanses no Action lieth but they ought to be presented in the Leet or Turne Drew We have shewed That he who brought the Assize of Nusans hath a Free-hold in the Land and if the Tenant be named it is sufficient although it be not shewed that he is Tenant of the Free-hold And to that all the Justices seemed to incline But then it was shewed to the Court that one of the Plaintiffes in the Writ of Error had released And if that should bar his Companions was another question And it was holden That the Writ of Error shall follow the nature of the first Action and that Summons and Severance lieth in an Assize of Nusans and therefore it was holden that it did the like in this Action therefore the Release of the one was the Release of the other But then it was asked by Glanvile What should become of the Damages which were entire Note Pasch 29. Eliz. the Case was moved again and Drew held exaltare and erigere all one and that erigere is not de novo facere for that is Levare But the Justices were against him who all held That erigere is de novo facere and exaltare is in majorem altitudinem attollere and at length the Judgment was affirmed That Erectio and Exaltatio were all one For the Chief Justice had turned all his Companions when he came to be of Opinion that it was all one And so the Case passed against Glanviles Client Mich. 28 29. Eliz. in the Kings Bench. 71 THE Lady Gresham was indicted for stopping the High-way and the Indictment was not laid to be contra pacem And Cook said That for a mis-feasance it ought to be contra pacem but for a non-feasance of a thing it was otherwise and the Indictment was for setting up a gate in Osterly Park And Exception also was taken to the Indictment for want of Addition for Vidus was no Addition of the Lady Gresham and also Vi armis was left out of the Indictment And for these causes she was discharged and the Indictment quashed Mich. 28 29. Eliz. in the King 's Bench. 72. IN an Ejectione firme Exception was taken because the Plaintiffe in his Declaration did not say Extratenet For in every Case where a man is to recover a possession he ought to say extra tenet And in Debt he ought to say Debet dâ—tinet And in a Replevin Averia cepit injustè detinet But all the Justices agreed That in an Ejectione firme those words were not materiall For if the Defendant do put out the Plaintiff it is sufficient to maintain this Action And Kempe Secondary said that so were all the ancient Presidents although of late times it hath been used to say in the Declaration Extra tenet and the Declaration was holden to be good without those words Mich. 28 29. Eliz. in the King 's Bench. 73 IN a Case for Tithes the Defendant did prescribe to pay but ob q for the Tithes of all Willows cut down by him in such a Parish Cooke It is no good prescription for thereby if he cut down all the Willows of other men also but ob q. should be paid for them all But he ought to have prescribed for all Willows cut down upon his own land and then it had been good But as the prescription is it is unreasonable and of that opinion was the whole Court Mich. 28 29. Eliz. in the King 's Bench. 74 DEIGHTON and CLARK'S Case IN an Action of Debt upon a Bond the Condition of the Bond was That whereas the Plaintiff was in possession of such Lands If I. S. nor I. D. nor I. G. did disturb him by any indirect means but by due course of Law that then c. The Defendant pleaded That nec I S. nec I. D. nec I. G. did disturb him by any indirect means but by due course of Law Godfrey The plea in Bar is not good for it is a Negative pregnans viz. such a Negative
allowed in the Ecclesiasticall Court which tends in discharge of Tithes And to prove that he cited 8. E. 4. 14. Br. Tithes 11. And a Case in 6. 7. E. 6. Dier 79. d. But admit the Plea should be allowed in the Ecclesiasticall Court as many of the Doctors have certified the Justices yet because the Modus decimandi is a thing pertaining to the common Law the Prohibition will lie By Fitz. Herb. and the Register If a Parson grant to one of his Parishoners That he shall be discharged of Tithes he may peradventure plead the same in the Spirituall Court yet there is good cause that a Prohibition do lie So 22. E. 4. 20. Br. Prohibition 14. The Abbot of Saint Albans kept the wife of I. S. in his house two houres against her will to have made her his Harlot and the Husband spake of it for which cause the Abbot sued him for slander in the Spirituall Court and because the husband for that act might have a false imprisonment therefore a Prohibition was granted So if I swear to pay I. S. 10â— and he sues for it in the Spirituall Court a Prohibition lieth for hee may have an Action of Debt in the common Law for it for where the common Law may have Jurisdiction there the Spirituall Court shall not intermeddle with the matter So if an Abbot rob I. S. and he speaks of it and the Abbot sues him in the Spirituall Court a Prohibtion will lie He said further That the Case was betwixt the Vicar and a Parishoner and therefore one of them a Temporall person If the Suit be betwixt the Farmer of the Parson and another a Prohibition shall be granted Also he said The right of the Tithes doth not come in question but only the Modus dicimandi Câ—â—k The Modus decimandi doth not come in question there therfore it cannot be traversed for if it be due to the Parson that is the question as in 40. E. 3 4. In a Replevin the Defendant saith That the place where c. is Ancient Demesne and pleads to the Jurisdiction Char l' that is a Trespasse and Personall Action and therefore it is no plea and yet it was agreed by the Court to be a good plea for by the Avowry the realty might come in debate in the Replevin Atkins If there be contention de Jure Decimarum Originum habens de jurâ— Patronatus tunc spectat ac Legem Civilem And in this case it was said That de mero jure The Parson is to have all the tythes if there be not any Endowment of the Vicarage Mich. 28 29. Eliz. in the Kings Bench. 77. MEGOD'S Case THe Case was That a Feoffment was made unto another man ad eam intentionem that he should convey the same to such a one to whom he sold it and he sold the same to another and did refuse to convey it and therefore the other brought an Action upon the Case And Gaudy Justice held that the Action would lie But Suit Justice held the contrary Wray Chiefe Justice did agree with Gaudy for he said It was a Trust that he should assure it to another And it is a good consideration in the Chancery the conveyance of a Trust and thereupon an Action upon the Case will lie Mich. 28 29 Eliz. In the Kings Bench. 78. ALtham of Grays-Inne took many Exceptions to an Indictment of Murder The first was because the Indictment said Quod capta fuit inquisitio coram Coronatore in Comitatu c. and doth not say de Comitatu And a Crowner in a County is a Crowner in every County in England as it is holden 9. H. 5. 24. b. Also de and in do much differ as in 15. E. 4. 15. Where a Scire facias was brought against the Master and Scholers Beatae Mariae Sancti Nicholai in Cantabrigia where the foundation was de Cantabrigia and not in Cantabriâ—gia And the Writ was abated For there is a difference betwixt in and de For a thing may be in and not of as Saint Sepulchres is in London but not of London A second Exception was because it said Inquisitio capta per Sacramentum c. and did not say Jurati and therefore the partie is not charged upon it and by 13. E. 4. If Jury be charged upon one and they find another felon it is void because they were not charged upon him And 1. R. 3. 4. by Hassey If in Assize the Record be such viz. Quod jurati exacti comperuerunt quorum 12. supra Sacramentum suum dicunt And give their verdict If it doth not say Quorum 12. Electi jurati it is errour For it doth not say in facto that they were sworn and yet it is implyed by the words Sacramentum suum that they were sworn The third Exception was That it doth not say That he was in pace Dei dict' Dominae Reginae for it might be that the partie was a Traitour and that he was flying and in such case he might justifie the killing of him and perhaps also it was se defendendo therefore those words are very necessary An other Exception was because the Indictment is percussiâ— and it is not said ex malitia praecogitata for so an Indictment of Murder ought to be as in 2. E. 4. The Indictment was quod Cepit abduxit felâ—nicè where it ought to have said Felonicè cepit abduxit and therefore it did abate A fifth Exception was because it saith â—t dedit ei plagam mortalem and doth not say cum gladio pâ—aedicto And in the Statute de Coronatore there is a charge given him That hee finde what weapon it was which gave the stroke See the Statute of 4. E. 1. Rastall Coroners 2. The sixth Exception was That the Indictment was That the pan of the knee was cut out and it doth not shew the length depth and breadth of the wound he granted that if one single member be cut off it is not necessary to shew the breadth c. but here was no amputation of any member nor a cutting off but the cutting of the pan of the knee Saâ—g to the same purpose and he finds there is a great difference betwixt cut off and cut out And he said That as to that which the Solicitour hath answered unto to the difference of in and de viz. that it is all one as if I grant a thing percipiena ' de Manâ—rio or in Maneriâ— that is all one To that he answered that that cannot be and in Wâ—mbishâ—s case in Plo. Coâ— 75. the same Exception was taken in a Writ But in our Case he said It is an Indictment which is favoured because the life is in question And he took another Exception because that the Indictment saies Tempore feloniae murdredi praedict ' and there is no such word murdredum To that the Sollicitour said That it was in equall degree murdum and murdredum for none of them are
found amongst the Latinists Snag said What then yet one is a word which is received in the Law and is vox artis but the other not and therefore it is not in the same degree Also he said That when the Indictment comes to the Accessories It said Felonicè praesentes abbâ—ttentes assistentes and felonicè cannot be applied to praesenteâ— Also when it comes to the Accessories it doth not say Ex malitia praecogitata abbetâ—entes assistentes c. Cook contrary and he said That if Indictments have sufficient substance they are not to be overthrown for trifles As to the first he said If you will have it to be coram Coronatore de Comitatu perhaps it was a Liberty and then coram Coronatore of the Liberty cannot be coram Coronatore of the County Gaudy Justice said that was no answer But as to this point the Justices desired that Presidents might be searched and said that they would follow the greater number of them Clenche If one say that such a one is a Justice of Peace in Hertfordshire it is all one as if he had said a Justice of Peace of Hertfordshire As to the 2d. Jurati that is no Exception for it is true that it must be so in an Assize but not in an Indictment also no President can be shewed where ex malitia propensa sua shall be applied to every word when it runs in sense to all by Conjunctions copulative As to the Exception that there ought to be the length breadth c. Kempe the Secondary said That it was not worth the standing upon and as to the word Murdredi if it had been left out the Indictment had been sufficient and that shall not make the Indictment void for if it be left out it doth no hurt to it For if many come together to make an Assault ex malitia praecogitata and one of them onely strikes the partie mortally and he dieth it is murder in them all And that was Doctor Ellis case in the Commentaries and the Indictment needs not say that they were praesentes abbettantes auxiliantes and as to the word felonicè it goes to all the words although not particularly applied Note all the Justices did incline that the Indictment was good notwithstanding the Exceptions but yet they said they would advise of it and look upon Presidents Mich. 28 29. Eliz. in the King 's Bench. 79. A Writ of Error was brought against two upon a Recovery in a Precipe quod reddat c. and one of them died The question was Whether the Writ should abate Cook moved that it might not abate for he said That the Writ of Error is but a Commission for to examine the Record and the partie shall recover nothing therby but shall be onely discharged from the first Recovery and he said It is not like unto a Precipe Then the Justices demanded of him if the Recovery were in a reall Action and he said that it was Then they said that 3. H. 7. 1. is That if Error be brought upon a Recovery in a personall Action that death shall not abate the Writ but otherwise if it were upon a reall Action for there the Judgement shall be that he shall be restored to the Land Quere Mich. 28 29. Eliz. in the King 's Bench. 80 AN Appeal of Mayheme was that Percussit super manum dextram viz. inter manum dextram brachium dextrum And Exception was taken to it that it was repugnant for if it was inter brachium manum dextram therefore it could not be super manum dextram for the word inter excludes both Cook It is certain enough because it saith Super manum dextram And an Indictment shall not abate for forme if it be sufficient in substance of matter and also being upon the Wrist it was upon the rising of the hand Mich. 28 29 Eliz. in the Kings Bench. 81 A Man made a Lease for years rendring rent at the Feast of Saint Michael th'Arch-Angel and if it were behind by ten days after being in the mean time lawfully demanded and no sufficient distresse to be found upon the Land that then it might be lawfull for the Lessor to re-enter The last of the ten dayes at the hour of two afternoon the Rent was demanded and there was a sufficient distresse upon the Land before the Demand but not after and whether the Lessor might enter or not was the question Daniel These words Sufficient distresse ought to be referred to the time of the Demand viz. to the last instant at which time the Demand is only materiall Upon a Cessavit if there be a sufficient distresse the last instant of the two years it is sufficient Clenche Justice held That there ought to be a sufficient distresse upon the Land for all the ten dayes But Suit Justice held That it was sufficient if there were a distresse for a reasonable time so as it might be presumed that the Lessor might have knowledge of it But if a distresse be put upon the Land only for an hour or by nights he held it was not a sufficient distresse Mich. 28 29. Eliz. in the Kings Bench. 82 Sir EDWARD HOBBYE'S Case IN this Case the question was Whether the Death of one of the Defendants should abate the whole Writ of Error Cook The Writ shall not abate for no Defendant is to be named in the Writ which see in the forme of the Writ of Error and 2 R. 3. 1. it is holden That the Writ shall not abate for it is in its nature but a Certiorari and Judgement only is to be reversed Atkins Although that the Defendants have not day in Court by the Writ of Error yet by the Scire facias which is sued upon it as in our Case it is they have day and see 3. H. 7. and 14. H. 7. a difference where it is a Writ of Error upon a reall Action and where upon a personall Cook That holds Where the first Writ is abated and so is 3. H. 7. See the Case a little before Gaudy and Clench Justices bring a new Writ of Error for that is the surest way Mich. 28 29. Eliz. in the King 's Bench. 83 LOVELL and GOLSTON'S Case IN a Writ of Error brought upon a Record removed out of the Court of Kingston where the first Judgement was given in an Action of Debt for an Amercement in a Court Baron The first Error which was assigned was That he in the Action of Debt did declare That whereas at a Court holden before William Fleetwood Steward c. whereas it ought to have been holden before the Suitors for they are the Judges The second Error was That the Presentment upon which the Amercement is grounded saith That Golston the Defendant had cut down more Trees quam debuit extra boscum Domini 1. That it is repugnant for he could not cut wood extra boscum but in bâ—sco 2. When it saith many and doth
not shew what trees nor how many he might cut and that he hath cut down more then he ought and also he doth not shew when the cutting of them was Vide 6. E. 4. By prescription they may prescribe to hold a Court before the Steward but if there be no custome or Prescription to warrant it then as 4. H. 6. is it is coram Senescalio Sectatoribus Gaudy Every Court Baron is to be holden before the Suitors if there be no Prescription to the contrary But a Leet alwayes before the Steward The Action of Debt was upon the Presentment and the Error is brought upon the defects in the Presentment for if that be not good all is naught Notwithstanding it was said by one at the Bar That the forme of pleading in the book of Entries is That the Court was holden before the Steward if the Action be for debt or Trespass for Amercements or such personall things But if the Action be brought for reall things then it is before the Suitors But notwithstanding that the Judgement for the Causes aforesaid was reversed Mich. 28 29. Eliz. in the Kings Bench. 84 BARKER and FLETWEL'S Case BArker of Ipswich brought an Action of Covenant against the Assignee of his Lessee for years one Fletwell And set forth That whereas he had made a Lease for years reserving Rent with re-entry for non-payment of the Rent and that the Lessee did covenant to build a house upon the Land within the first ten years and that he assigned over his terme And he brought the Action against the Assignee who pleaded That the Lessor did enter and had the Possession for part of the ninth year and if thereby the Covenant were discharged was the demurrer in Law Godfrey Who argued for the Lessor said That by this entrie of the Lessor the Covenant was not suspended As 20. E. 4. 12 BY. Extinguishment 34. The Abbot of D. did grant to W. S. a Corrodie viz. so much bread c. for the term of his life faciend ' talia servitia prout J. N. alii usi sunt focere The Grantee leased back again the Corrodie unto the Abbot for 10. years rendring 3â— rent per annum and he brought Debt for the rent and the Abbot said That he did not the Services and the Grantee said That he was not bound to do them for that by the Lease the Corrodie was suspended And it was holden that it was not suspended Godfâ—â—y held the reason to be because that the service is a Collaterall thing And therefore he said He ought to do it notwithstanding that the Abbot had the Corrodie So in 8. H. 7. 7. Br. Conditions 134. Where Tenant in taile makes a Feoffment in Fee and takes back an estate in Fee and afterwards was bounden in a statute Merchant and then made a Feoffment in Fee upon Condition and died his Issue within age who enters for the Condition broken he was remitted notwithstanding that execution upon the statute was sued against the Father in his life So if Lease be made of a Manor except Herriots Fines and Amercements and that the Lessee shall collect them during the Term although that the Lessor entreth yet the Lessee ought to collect them during the term Also he pleades here That Barker did enter and that generall pleading is doubtfull and the Plea shall be taken strictly against him that pleadeth it and it may be that he entred by wrong and so it may be that he entred by right viz. for not payment of the Rent as in truth his entry was And if Barker did enter lawfully then it was no suspension or extinguishment of the Covenant As 19. R. 2. If Lessee for life commit waste and afterwards alieneth and the Lessor entreth for the Alienation yet after his entry he shall have an Action of Waste against the Lessee So 8. H. 6. 10. Waste 8. but with this difference If the Lessor enter wrongfully there although Waste be done before he shall not have Waste to punish it but otherwise if he enter for the Forfeiture done by the Tenant Also if the Covenant was suspended it was only for the time that the Lessor had the Possession and the Party hath not answered for the time before or after As 16. H. 7. If one be bound to find a Chaplain to say Divine Service within such a Chappel and the Chappel fall down it is a good excuse for the time but if it be built again he must find a Chaplain there Clarke contrary If Lessee for years covenanteth to repair the houses I grant that the same shall charge his Assignee But a Collateral thing as if the Lessee covenant to pay such a sum in gross or to enfeoffe him of the Manor of D the same shall not charge the Assignee no more shall a Covenant to build a new house But here it was said That he had time to build it both before and after the entry of the Lessor Barker To that he answered Not so for if he once disturbed the Covenant is destroyed Godfrey This Case was this Terme in the Common Pleas. Lessee for five years covenanted to build a Mill within the terme and because he had not done it the Lessor brought an Action of Covenant and the Defendant pleaded That within the last three years the Lessor forcibly held him out c. so as he could not build it and by the Opinion of all the Justices he ought to plead That the Lessor with force held him out otherwise it would be no Plea Cook As amicus curiae vouched 35. H. 6. Tit. Barr. If one be bounden to enfeoffe me of such land before Michaelmas there the Obliger in Debt brought upon the Bond pleaded That the Obligee before the day had entred with force into the land so as he could not enfeoffe him and there it was holden That he ought to prove that he was holden out by force Gaudy In the principall Case he ought to have shewed That he would not suffer him to build And the other Justices seemed to be of the same Opinion but yet they said That they would advise upon the Case Mich. 28 29. Eliz. in the Kings Bench. 85 OWen took Exception to a Declaration in an Ejectione firme because it was à Possessione sua ejecit where it ought to be according to the supposal of the Writ Quod à firma sua ejecit Also it was of three closes naming them with a Videlicet containing by estimation 30. Acres and that he said did contain no certainty where he ought to have alledged in Fact that they did contain so many Acres But it was holden by all the Justices That although he doth not put in the Declaration the certainty of the Acres if he give a certain name to them as Green-Close c. that it is good And as to the other Exception viz. Ejecit à Possessione inde that the word inde had relation to the Farme and shall be as much as
if he had said à Possessione firmae and the Declaration was ruled to be good notwithstanding the Exceptions Mich. 28 29. Eliz. in the Kings Bench. 86 A Man was indicted upon the Statute of 5. Elizab. of Perjury in a Court Leet and the Indictment was That hee at the Court Leet of the Earle oâ— Bathe Super Sacramentum suum coram Senescallo c. And Exception was taken because it said At the Leet of the Earle of Bathe Whereas every Leet is the King's Court although that another hath the profit and commodity of it And it was said That the Steward of a Leet was an Officer of Record And also his Oath was if he had made any Rescous or not with which he was charged Drew It is not within the Statute of 5. Eliz. for then it ought to be before a Jury in giving of Evidence or upon some Articles But the Court was clear of Opinion against him Mich. 28 29. Eliz. in the Kings Bench. 87 The Earle of KENT's Case THE Case was this Three severall persons did occupie three severall houses in Brackley to which another man had right and he who had right went to one of the houses and entred and afterwards went away leaving him who occupied the said house upon the land and then he entred into another of the houses and then went from that leaving him who occupied the same before upon the land and then he entred into the third house and there sealed a Lease for years unto another man of that house and naming the two other houses and the Lessee brought an Ejectione firme for the two houses in which the Lease was not delivered and the Opinion of the Court was against him that he was barred in the Action for the entrie or continuance of him who occupied the same before did defeat the entrie of the Plaintiffe or Lessor and the Plaintiffe was forced to be Non-suit Mich. 28 29. Eliz. in the Kings Bench. 88 SMITH and SMITH's Case ONE I. S. did assume and promise That whereas I. N. was indebted to J. D in Forty Pounds by Bond That if J. D. ne implacitaret the said J. N. that if the money be not paid such a day that J. S would pay it to J. D. The money was not paid and after the day J. D. brought an Action upon the Case upon the promise and shewed Quod ipse non implecitavit c. Kingsmill He cannot have his Action upon the Case till J. N. be dead for during his life there is a time in which he might implead him As if I promise unto another That if he will be Nonsuit in his Action which he hath against a third person that if he doth not pay the money before such a day that then he will pay the money there if the day of payment be before the time that he can be Non-suit as before the Terme beginneth yet he cannot presently have his Action before that he is Non-suit And therefore in the principall Case he ought to shew That he hath discharged the other of the Bond and then the Action lieth for then he cannot implead him but as this Case is pleaded though he hath not yet impleaded pleaded him yet in posterum he may implead him Clench Justice That is implied that he will never implead him and then he ought to shew the Bond discharged Suit That is not so for if hereafter he sue him against his promise then the other to whom the promise was made shall have his Action upon the Case and shall recover to the value of the sum in the Bond. Mich. 28 29. Eliz. in the King 's Bench. 89 BILFORD and DODDINGTON's Case A Writ of Error was brought by Richard Bilford against Robert Doddington to reverse a common recovery in the City of Worcester upon a Writ of Right Patent And for Error it was assigned 1. That no Warrant of Atturney was entred but that such a one posuit loco suo W. H. and did not write the name at length but in the Plea Roll it was at length The second Error was That the Writ was De tribus messuagiis sive tenementis and that doth containe no certainty for sive is a word uncertaine The third Error It was in the time Philippi Mariae and petit processum Domini Regis Reginae and it was â—orundum Regis and that was in the default of Voucher that the Recovery was had but if it were in the Recovery in which he did appear and plead it was otherwise The Counsell of the other side as to the first said That all the Records of the City are of the same form viz. That such a one Poâ—uit loco suo W. H. c. and if it were not good they should be all overthrown and avoided and if it should be otherwise it should be contrary to the ancient custome of the City As to the second Quod petit processum corundum Regis the same is the misrecitall of the Clark for the Writ upon which it is grounded is well and as to the Process the party did appear gratis As to the word sive the same is good for tenementum is but Surplusage As in an Action of Waste if the party do expresse some things which are not waste and some things which are those which are not waste are but Surplusage Also he said That the Writ of Error by which the Record is removed is insufficient for the Writ is That there is Error manefestus and doth not say ut dicitur and therefore it is not good for otherwise the King should forejudge us And also in the Writ it doth not say Errorem siquis fuerit and it ought not precisely to say That there is Error Also the Writ of Error is to certifie a Record de tribus messuagiis tenementis and the Record is De tribus messuagiis sive tenementis and therefore the Record is not well removed for it is not such Record As 12. Ass 2. in Attaint Exception was taken that the Writ of Attaint did not agree with the first originall but because it did agree with the Record it was good although it did not agree with the first Originall for the first Originall was of the Manor of Ansti and the Attaint was of Anesti and so was the whole Record But if the Attaint had disagreed with the Record it had been Error Also the Writ was good although tenementis were out of the Writ for it is but surplusage And also Tenementum is not a thing demandable as 11. H. 7. 25. it is said That Tenementum is not a name to demand a Messuage by but in Trespass of Nusance to it there Tenementum is sufficient Suit Justice The Record is now before us and therefore the Writ of Error is not materiall For if my Lord Anderson bring before us a Record although no Writ of Error be awarded yet wee may proceed to examine Whether there be Error in it or not
not recited in the Statute So here our Case is within the Mischiefe of the Statute of 21. H. 8. Cap. 4. although it be not within the Example So the Statute of West 1. is That if the Gardien or Lessee for years maketh a Feoffment in Fee Tam Feofator quam feofatus habeantur pro disseisoribus yet 22. Ass is That if Tenant by Elegit make a Feoffment it is within the Statute Also it may be a doubt Whether Land devisable onely by custome bee intended in the Statute of 21. H. 8. Cap. 4. And whether Land devisable by the Statute of 32. H. 8. be within it or not viz. If a Statute of a puâ—sne time shall be taken by Equity within a more Ancient Statute and I conceive it may as 12. H. 7. the Statue of 4. H. 7. which sayes that the heire of Cestuy que use shall be in Ward shall extend to the Statute of Praerogativa Regis for if he be in Ward to the King he shall have Prerogative in the Lands to have other Lands by reason thereof Gaudy Justice did rely very much upon the word Devisees viz. that they have an Interest and that the Sale was not good Suit Justice They are both Executors and Devisees of the Lands Devisees of the Lands and Executors to performe the Will Cook he who refused to sell cannot waive the Freehold which is in him by a refusall in pars as 7. H. 2. and 7. E. 4. but ought to waive it in a Court of Record therefore he hath an Interest remaining in him Clenche Justice What if he had devised the Lands to four and made one of them his Executors and willed that he should sell could not he sell All the Court agreed that he might Cook When a man deviseth that his Executors shall sell the Fee descends to the heir yet they may sell that which is in another but the same is not like to our Case It was adjourned Mich. 28 29. Eliz. in the King 's Bench. 93. A Judgement was given upon a Bond for four thousand pound And the Scire facias was sued for three thousand pound and he did not acknowledge satisfaction of the other thousand pound Haughton moved That the Scire facias should abate As if a man brings Debt upon a Bond of twenty pound and shews a Bond for forty pound and doth not acknowledge satisfaction for 20l l it is not good The Justices would advise of it And at another day it was moved againe Whether the Scire facias was good because it doth recite Quod cum nuper such a one recuperasset four thousand pound and doth not shew in what Action or at what day the Judgment was given or the Recovery had Piggot That is not material for such is the Form in an Audita querela or Redisseisin As to the other That he doth not acknowledge satisfaction as in the Case before cited by Haughton which Case is in 1. H. 5. That is not like to an Execution for an Execution is joint or severall at the will of him who sues it forth as in 19. R. 2. Execution 163. hee may have part of his Execution against one in his life time and if he dieth other part against his Heir or Executor Note the Execution was of the whole but because the Defendant had not so much he had but part against him who had no more and therefore of the residue he had Execution against the Heir Gawdy Justice I conceive that he cannot have an Execution unlesse he acknowledge Satisfaction There is no difference as to that betwixt the Action of Debt upon a Bond and a Scire facias and the intendment viz. that it shall be intended that he was paid because he sued but for Three thousand Pound will not help him Piggot as to that vouched a Case out of 4 5. Mary in Dyer which I cannot find Suit Justice said That if the Defendant in the Scire facias say nothing by such a day that Judgement should be entred for the Plaintiffe Quod executio fiet Mich. 28 29. Eliz. in the Kings Bench. 94 JUdgement was given against an Infant by default in a reall Action of Land And a Writ of Error was thereupon brought and it was argued That it is not error for in many cases an Infant shall be bound by a Judicious act as 3. E. 3. Infant 14. Where an Infant and a Feme Covert bring a Formedon and the woman was summoned and severed And it was pleaded That where the Writ doth suppose the woman was Sole she was Covert and Judgment was demanded of the Writ and that the Infant could not gainsay it but confessed it this Confession of the Plea which abated his Writ was taken And 3. H. 6. 10. Br. Saver Default 51. An Infant shall not save his default for he shall not wage his Law See there that the Default shall not be taken against him therefore that book seems rather against it then for it Vide 6. H. 8. Br. Saver Default 50. That Error lieth upon a Recovery by default against an Infant otherwise if it be upon an Action tried so is 2 Mar. Br. Judgment 147. It was said That a generall Act of Parliament shall bind an Infant if he be not excepted The Justices did seem to incline That if Judgement be given by default that it shall bind an Infant but there was no rule given in the Case Mich. 28 29. Eliz. in the Kings Bench. 95 A Clark of the King's Bench sued an Officer of the Common Pleas and he of the Common Pleas claimed his Priviledge and could not have it granted to him for it is a generall rule That where each of the persons is a person able to have Priviledge he who first claimes it viz. the Plaintiffe shall have it and not the Defendant As if an Atturney of the Common Pleas sueth one of the Clarks of the Kings Bench yet he of the Kings Bench shall not have Priviledge although the Kings Bench be a more high Court because the other is Plaintiffe and first claimeth it Mich. 28 29. Eliz. in the Kings Bench. 96 AM Action upon the Case upon a Promise was brought but the Case was so long that I could not take it But in that Case Tanfield who argued for the Defendant said That it is not lawfull for any man to meddle in the cause of another if he have not an Interest in the thing for otherwise it will be Maintenance But if a Custome be in question betwixt the Lord of the Manor and Copy-holder all the other Copy-holders of the Manor may expend their money in maintenance of the other and the Custome and the Master may expend the money of the servant in maintenance of the servant So he in the Remainder may maintain him who hath the particular Estate Maintenance is an odious thing in the Law for it doth encrease troubles and Suites He argued also How that Bonds Obligations and Specialties might be
For there the Jury found a dying seised after Judgement in a Recovery whereas a dying seised was alledged and did not say after a Recovery Mich. 28 29. Eliz. in the Kings Bench. 99 EGLINTON and AUNSELL'S Case IN an Action upon the Case for Words the words were these Thou art a Cosening Knave Crowner and hast cosened many of thy Kindred of their Lands Cook It is adjudged That Cosener will bear no Action for the words are too generall And the word Cosener doth not go to the Office in the Principall Case also the word Cosening is a word abused 30. H. 8. Br. Action upon the Case 104. False perjured man bears an Action but false man without Perjured will bear no Action and is nothing else but false and fraudulent There was a Case as Cook said betwixt Osborne and Frittell You did robb me and took away my Evidences and a Sub pena And it was ruled That no Action did lie for them And there it was holden That the word And was a Copulative Kirâ—yâ—'s Case Thou art a crafty cosening Knave and hast cosened many of thy Kindred Adjudged not Actionable Snagg Serjeant contrary That the Action lieth for he said That a Crowner is sworn to do his Office and if he be false and deceitfull in his Office then he is forsworn and the word And here begins a new sentence and doth not expound the precedent words as the words because or in that c. Clench Justice If the word Cosener had been left out it had been a cleer Case that the words would not have born an Action And if one do call him cosening Crowner it is cleer the words are Actionable Gaudy Justice We are to go strongly against these kind of Actions If the words Cosening shall go and extend to the word Crowner then cleerly an Action doth lie in respect of the Office And then if And and all the subsequent words had been left out yet the Action would lie Suit Justice If there were words sufficient before the word And to maintain an Action the subsequent words shall not overthrow those that went before But if the words had been Thou art a Cosening Knave Crowner in cosening of thy Kindred the Action had not been maintainable but the word And is not a word explantory as the word in is The better Opinion of the Court was That the words were not Actionable Mich. 28 29 Eliz. in the Kings Bench. 100 A Man brought an Action upon the Case for speaking these words of him viz. He hath aided Pirats contrary to the Lawes of the Realme and against a Proclamation in that behalfe Snag said That the words are not Actionable because there wants the word Scienter for an honest man may unwittingly do so And if a man chargeth one in an Action upon the Statute of 5. Elizabeth and declare that he said That he was perjured contrary to the forme of the Statute hee also ought to say That hee did it willingly and corruptly Cook True if a man bring an Action upon the Statute of 5. Elizabeth But if he saith Such a one is a perjured man generally an Action upon the Case will lie without saying willingly and corruptly Also those words viz. Contrary to the Lawes of the Realm do imply Scienter for if it were not Scienter it could not be contrary to the Lawes of the Realme Clenche Justice I conceive that the word Scienter is a materiall word in this Case and vouched the Lord Shandoes Case where one said That he was a maintainer of Theeves and it was adjudged that the Action would lie It was one Sidenhams Case Where one said That a Robbery was done and that such a one smelt of it and an Action was brought for the words and adjudged That an Action would lie And the words here are as forcible as if he had said Scienter and the Case was adjourned for the search of presidents untill the next Terme Mich. 28 29. Eliz. in the Kings Bench. 101 IF two men be partners of Merchandizes in one Ship and one of them appoints and makes a Factor of all the Merchandizes It was moved by Godfrey and not denyed by the Justices That both of them may have severall Writs of Account against him or they may joine in one Writ of Account if they please Quaere of that Mich. 28 29. Eliz. in the Kings Bench 102 A Man made a Contract with another man when he dwelt in the City of London and afterwards he who made the Contract went from the City and dwelt within the cinque Ports and he being afterward impleaded in the Kings Bench upon the Contract claimed the priviledg of the cinque Ports which according to 12. E. 4. is That those of the cinque Ports shall not be sued elswhere then within the cinque Ports Suit Justice said That that was true for any matter or cause arising within the cinque Ports But otherwise if a man do enter upon a Bond of One hundred or One thousand Pound and then go and dwell in the cinque Ports perhaps so the Obligee might lose his Debt And it was adjudged That the Defendant should not have Priviledge Mich. 28 29. Eliz. in the Kings Bench. 103. Sir JERVIS CLIFTON's Case IN a Quo Warranto The Information was That where the Defendant was seised of a Mannor and of a House within it That he claimed to have a Court or View of Frankpledge infra messuagium praedictum and further it was that Sine aliqua Concessione sive authoritate usurpavit Libertates praedictas The Defendant pleaded That Non usurpavit Libertates praedict ' infra Messuagium praedictum modo forma Piggot The Plea is not good for the naturall Answer to a Quo Warranto is either to claime or disclaime and he doth do neither of them And if a man will tender a generall issue he ought so to tender it as the Nature of the Action doth require That he was never seised after time of memory is no plea in Rescous In Debt rein arere is no plea but he ought to answer to the Debet The speciall matter alledged in the Action ought to be answered and the generall not to be pleaded as it is pleaded here Non usurpavit c. as in 21. E. 3. Detinue of Charters was pleaded in a Writ of Dower and she said That such a one was seised and did enfeoffe her and her Husband and so the Deeds did belong unto her The Partie shall not traverse that they did not belong unto her but must answer unto the especiall matter viz. the Feoffment Also he said Quod non usurpavit c. infra Messuagium praedictum where he ought to have said Infra Manerium praedictum An Account was brought upon a Receipt for seven years and the Defendant pleaded to two of the years and issue was joyned upon it And it was adjudged error Godfrey He ought to say Non usurpavit Libertates praedictas nec earum
licence be to A. and B. or C. some conceived that A. or B. might alien but not C. Et èâ—converso Mich. 28 29. Eliz. in the Common Pleas. 105 IT was agreed by the whole Court That a Partition made by word betwixt Joyntenants is not good See Dyer 29. Pl. 134. and 350. Pl 20. doth agree and see there the reason of it Mich. 28 29. Eliz. in the Common Pleas. 105 IT was holden by the whole Court That if the Father do devise Lands unto his Son and Heir apparant and to a stranger that it is a good Devise and that they are Joyntenants for the benefit of the Stranger Mich. 28 29. Eliz. in the Common Pleas. 106 FULLER'S Case A. Promises unto the eldest son that if he will give his consent that his Father shall make an Assurance unto him of his Lands that he will give him ten pounds If he give his assent although no assurance be made yet he shall maintain an Action upon the promise But at another day Periam Justice said that in that case the son ought to promise to give his assent or otherwise A. had nothing if his son would not give his consent And so where each hath remedy against the other it is a good Consideration In Hillary Term after Fenner spake in arrest of Judgment upon the speciall Verdict That because that the Assumpsit is but of one part and the other is at liberty whether he will give his consent or not that therefore although that hee do consent that hee shall not recover the ten pounds Also he said That the promise was that if hee would give consent that his Father should make assurance to him and here the assurance is made to A. to the use of the Defendant and his Wife in taile so as it varies from the first Communication and also it is in tail Shuttleworth contrary in as much as he hath performed it by the giving of consent then when he hath performed It is not to the purpose that he was not tyed by a crosse Assumpsit to do it but if he had not given his consent he should have nothing At length Judgment was given for the Plaintiff And Periam Justice said in this Case That if a covenant be to make an Estate to A. and it is made to B. to the use of A. that he doubted whether that were good or not Mich. 28 29 Eliz. In the Common Pleas. Intratur Hill 28. Eliz. Rot. 1742. 107 WISEMAN and WALLINGER'S Case A Man seised of two Closes called Bl. Acre makes a Lease of them rendring Ten Shillings rent The Lessee grants all his Estate in one of them to A. and in the other to B. The Lessor doth devise all his Land called Bl. Acre in the tenure of A. and dieth The Devisee brings an Action of Debt for the whole Rent against the first Lessee And the Opinion of the whole Court was That the Action would not lie because they conceived That but the Reversion of one Close passed and also that the rent should not be apportioned in that Case because a terme is out of the Statute and a Rent reserved upon a Lease for years shall not be apportioned by the act of the Lessor as where he takes a Surrender of part of it But otherwise by Act in Law as where the Tenant maketh a Feoffment in Fee of part of the Land and the Lessor entreth And at another day Anderson Chief Justice said That if the Lessor of two Acres granteth the Reversion of one Acre that the whole Rent is extinct Mich. 28 29. Eliz. in the Common Pleas 108 A Lease for years is made of Land by Deed rendring Rent the Lessee binds himselfe in a Bond of Ten Pound to perform all Covenants and Agreements contained in the Deed the Rent is behind and the Lessor brings an Action of Debt upon the Bond for not payment of the Rent the Obligor pleads performance of all Covenants and Agreements the Lessor saie That the Rent is behind it was holden That it is no Plea for the Obligor to say That the Rent was never demanded But in this Bar he ought to have pleaded That he had performed all Covenants and Agreements except the payment of the Rents And as to that That he was alwayes ready to have paid it if any had come to demand it but as the first Plea is it was held not to be good And as to the demand of the Rent the Court was of opinion That it was to be demanded for the payment of the Rent is contained in the word Agreements and not in the word Covenants and then if he be not to performe the Agreements in other manner then is contained in the Deed of that agreement the Law saith That there shall be a demand of the Rent But if the Lessee be particularly expressed by covenant to pay the Rent there he is bound to do it without any Demand Mich. 28 29. Eliz. in the Common Pleas. 109 HOLLENSHEAD against KING THomas Hollenshead brought Debt against Ralph King upon a Recovery in a Scire fâ—cias in London upon a Recognizance taken in the Inner or Ouster Chamber of London and doth not shew That it is a Court of Record and that they have used to take Recognisances and Exception was taken unto the Declaration and a Demurrer upon it and divers Cases put That although that the Judgement be void that yet the Execution shall be awarded by Scire facias and the party shall not plead the same in a Writ of Error But Periam Justice took this difference Where Execution is sued upon such a Judgement and where Debt is brought upon it for in Debt it behoves the Party that he have a good Warrant and ground for his Action otherwise he shall not recover but upon a voidable Judgement he shall recover before it be reversed Mich. 28 29 Eliz. In the Common Pleas. Intratur Trinit 28. Eliz. Rot. 507. 110 COSTARD and WINGFIELD'S Case IN a Replevin the Defendant did avow for Damage Feasans by the commandment of his Master the Lord Cromwell The Plaintiffe by way of Replication did justifie the putting in of his Cattell into the Land in which c. by reason that the Towne of N. is an ancient Town and that there hath been a usage time out of mind That every Inhabitant of the same Towne had had common for all his cattel Levant and Couchant in the same Town and so justified the putting in of his cattell The Defendant said That the house in which the Plaintiffe did inhabite in the same Towne and by reason of Residency in which house he claimed common was a new house built within 30 years and within that time there had not been any house there and upon that Plea the Plaintiffe did demurr in Law Shuttleworth Serdeant for the Plaintiffe That he shall have common for cause of Resiance in that new house and the Resiancy is the cause and not the Land nor
the Person and to that purpose he cited 15 E. 4. 29. And he agreed the Case That if the Lord improve part of the Common that he shall not have common for the Residue because of the same Land newly improved for he cannot prescribe for that which is improved by 5. Ass 2. But here he doth prescribe not in the person or in or for a new thing but that the usage of the Towne hath been That the Inhabitants shall have common and that common is not appendent nor appertinent nor in grosse by Needham 37 H. 6. 34. b. Besides he said That if the house of a Freeholder who hath used to have such common fall down and he build it up again in another place of the Land that he shall have common as before And he put a difference betwixt the case of Estovers and this Case where a new Chimney is set up for that makes a new matter of charge and he much stood upon the manner of the Prescription Gaudy Serjeant contrary and he took Exception to the Prescription for he saith that it is antiqua villa and doth not say time out of mind and such is the Prescription in 15. E. 4. 29. a. and if it be not a Town time out of mind c. he cannot prescribe that he hath used time out of mind c. And he said That if it should be Law that every one who builds a new house should have common it should be prejudiciall to the Ancient Tenants or impaire the common And so one who hath but a little land might build 20 houses and so an infinite number and every house should have common which were not reason Anderson chief Justice He who builds a new house cannot prescribe in common for then a prescription might begin at this day which cannot be and he insisted upon the generall loss to the ancient Tenants Pâ—riam Justice If it should be Law that he should have common then the benefit of improvement which the Statute giveth to the Lord shall be taken away by this means by such new buildings which is not reason So as all the Justices were of opinion That he should not have common but Judgement was respited untill they had copies of the Record And Hillary Term following the Case was moved again and Anderson and Periam were of Opinion as they were before and for the same reasons But Windham Justice did incline to the contrary But they did all allow That he who new bulids an old Chimney shall have Estovers so a house common So if a house fall down and the Tenant build it up again in another place Periam If a man hath a Mill and a Watercourse time out of mind which he hath used to cleanse if the Mill fall down and he set up a new Mill he shall have the liberty to cleanse the Watercourse as he had before And that Terme Judgement was given for the Defendant to which Windham agreed Mich. 28 29. Eliz. in the Common Pleas. 111 IN a Replevin the parties were at Issue upon the Property and it was found for the Plaintiff and Damages intire were assessed and not for the taking by it self and for the value of the Cattell by themselves for the Judgement upon that is absolute and not conditionall and also if the Plaintiffe had the Cattell the Defendant might have given the same in Evidence to the Jury and then they would have assessed Damages accordingly viz. but for the taking Mich. 28 29. Eliz. in the Common Pleas. 112 A. bargaines with B. for twenty Loads of Wood and B. promises to deliver them at D. if he fail an Action upon the Case lieth But Periam Justice said That upon a simple contract for wood upon an implicative promise an Action upon the Case doth not lie Rodes Justice If by failer of performance the Plaintiff be damnified to such a sum this Action lieth Mich. 28 29 Eliz. in the Common Pleas. 113 A Lease of Lands is made excepting Timber-Woods and Under-woods And the question was Whether Trees Sparsim growing in Hedge rowes and Pastures did passe And difference was taken betwixt Timber-wood being one Wood and Timber Woods being severall Words although it bee Arbor dum crescit lignum dum crescere nescit yet in common speech that is said Timber which is fit to make Timber Then it was moved Who should have the Lops and Fruits of them and the Soile after the cutting of them downe and also the Soile after the Under Woods and as to that a difference was taken where the words are generally All woods and where they are his woods growing And in speaking of that case another case was moved viz. If a stranger cut down woods in a Forrest and there is no fraud or collusion betwixt him and the owner of the Land Whether the King should have them or the owner of the Soile And it was holden That the owner of the Soile should have them and yet the owner could not cut them downe but is to take them by the Livery of one appointed by the Statute Mich. 28 29. Eliz. in the Common Pleas. 114. A. makes a Lease of Lands to B. for ten years rendring rent And B. covenants to repaire c. Afterwards A. by his Will deviseth that B. shall have the Lands for thirty years after the ten years under the like Covenants as are comprised in the Lease Fenner moved it as a question If by the Devise those which were Covenants in the first Lease should be Conditions in the second for they cannot bee Covenants for want of a Deed And if they should not be Conditions the heir of the Lessor were without remedie if they were not performed A Devise for years paying ten pounds to a stranger is a Condition because the stranger hath no other remedy Gaudy Justice By the Devise to him to do such things as he was to do by the Lease makes it to be a Condition which was in a manner agreed by all the other Justices Yet Periam and Rodes Justices said That the first Lease was not defeisable for not performance of the Covenants nor was it the intent of the Devisor that the second should be so notwithstanding that his meaning was that he should do the same things Periam The Covenant is in the third person viz. Conventum Aggreatum est And see 28. H. 8. Dyer where the words Non licet to the Lessee to assigne make a Condition Mich. 28 29. Eliz. in the Common Pleas. 115. BARBER and TOPESFEILD'S Case A. being Tenant in taile of certain Lands exchanged the same with B. B. entred and being seised in Fee of other Lands devised severall parcels thereof to others and amongst the rest a particular estate unto his heir Proviso That he do not re-enter nor claim any of his other Lands in the destruction of his Will And if he do that then the estate in the Lands devised to him to cease A. dieth his issue entreth into the Lands in
taile and waives the Lands taken in Exchange and before any other entry the heir of B. enters upon the Land which was given in Exchange and the opinion of the whole Court was That it was no breach of the Condition because that was not the Land of the Devifor at the time of the devise therefore it was out of the Condition Mich. 28 29. Eliz. In the Common Pleas. 116. PLYMPTON'S Case AN Action of Debt was brought by one Plympton and his wife Executors of one Dorrington upon a Bond with Condition to perform Covenants of an Indenture of Lease whereof one Covenant was That he should pay forty shillings yearly at the Feast of the Annunciation or within fourteen days after And the breach assigned was for not payment at such a Feast in such a year The Defendant said That hee paid it at the Feast upon which they were at issue And upon evidence given to the Jury it appeared That the same was not paid at the Feast but in eight dayes after it was paid And the opinion of the Court was That by his pleading that hee had paid it at such a day certain and tendring that for a speciall issue That hee had made the day part of the issue and then the Defendant ought to have proved the payment upon the very day But if the Defendant had pleaded That hee paid it within the fourteen dayes viz. the eighth day c. that had not made the day parcell of the issue but then hee might have given evidence that he paid it at another day within the fourteene dayes Then for the Defendant it was moved That the Plaintiffe had not well assigned the breach in saying that he had not paid it at the Feast without saying Nor within the fourteen dayes But the Court said That the Jury was sworn at the Barre and bid the Councell proceed and give in their evidence for the time to take exception was past Mich. 28 29. Eliz. in the Common Pleas. 117. IT was the opinion of Anderson Chiefe Justice and so entred by the Court That if a Copie-holder doth surrender to him who hath a Lease for years of the Mannor to the use of the same Lessee That the Copie-hold estate is extinct For the estate in the Copie-hold is not of right but an estate at will although that custome and prescription had fortified it And Wray said That it had been resolved by good opinion That if a Copie-holder accept a Lease for years of the Mannor that the Copie-hold estate is extinct for ever Mich. 28 29. Eliz. in the Common Pleas. 118. Anderson Chiefe Justice and Periam Justice being absent in a Commission upon the Queen of Scots Shuttleworth moved this case to the Court. If the Queen give Lands in taile to hold in Capite And afterwards granteth the Reversion how the Donee shall hold Windham Justice and Fenner Serjant The tenure in this case is not incident to the Reversion and the Donee shall hold of the Queen as in grosse and so two Tenures in Capite for one and the same Land And thereupon Windham Justice cited 30. H. 8. Dyer 45 46. That the Queen by no way can sever the tenure in chiefe from the Crown And therefore if the Queen do release to her Tenant in Capite to hold by a penny and not in Capite it is a void Release for the same is meerly incident to the Person and Crown of the Queen But Rodes Justice held the contrary viz. That the Tenure in Capite doth not remain But it was said by Windham That if the Queen had reserved a Rent upon the gift in tail the Grantee of the Reversion should have it Also he said That the Queen might have made the Tenure in such manner viz. to hold of the Mannor or of the Honor of D. Shuttleworth If Lands holden of the Mannor of D. come to the King may he give them to be holden of the Mannor of S that should be hard Windham I did not say That Lands holden of one Mannor may be given to be holden of another Mannor perhaps that may not bee but Lands which is parcell of any Mannor may be given Vt supra Mich. 28 29 Eliz. in the Common Pleas. 119 SErjeant Fenner moved Case If Lands be given to the Husband and Wife and to the heirs of their two bodies and the Husband dieth leaving Issue by his Wife and the Wife makes a Lease of the lands according to the Statute of 32. H. 8. If the Lease be good by the Statute Windham and Rodes Justices conceived that it is a good Lease Fenner The Statute saith that such Lease shall be good against the Lessor and his Heirs and the Issue doth not claim as Heir to the Wife onely but it ought to be Heir to them both and he cited the case That the Statute of R. 3. makes Feoffments good against no heirs but those which claim onely as Heirs to the same Feoffors c. So here Rodes Justice There the word only is a word efficacy And Windham agreed cleerly That the Lease should binde the issue by the said Statute of 32. H. 8. Mich. 28 29. Eliz. In the Common Pleas. 120 WAlmesley Serjeant moved this Case If a man deviseth Lands in taile with divers Remainders over upon condition that if any of them alien or c. that then he who is next heir to him to whom the land ought to come after his decease if the said alienation had not been made might enter and enjoy the land as if he had been dead But Ady of the Temple said That the words of the Devise are viz. That if any of them alien or c. that then his estate to cease and hee in the next Remainder to enter and retain the land untill the aliener were dead Rodes Justice The Devise is good and an estate may cease in such manner so as it shall not be determined for ever but that his Heir after him shall have it And he put the case of Scholastica Plow Com. 408. where Weston fo 4. 14. was in some doubt that if the Tenant in talle had had Issue if the Issue should be excluded from the land or whether hee should have the land by the intent of the Devisor And therefore if it were necessary to shew that the Tenant in taile had not Tssue But Dyer said that the words of the Will were that such person and his Heirs who alien or c. should be excluded presently so as the estate by expresse words is to be determined for ever But it is otherwise in this Case Windham doubted of the Devise Fenner cited the Case 22. E. 3. 19. Where a Rent was granted and that it should ceâ—se during the Nonage of the Heir of the Grantee and it was good Windham When a thing is newly created he who creates it may limit it in such manner as he pleaseth Fenner 30. E. 3. 7. Det. 10. A Feoffment was made rendring Rent upon
Condition that if the Rent be behinde the Feoffor might enter and retain quousque there the estate shall be determined pro tempore and afterwards revived again Windham There the Feoffor shall have the land as a distress and the Free-hold is not out of the Feoffee Fenner The Book proves the contrary for the Feoffor had an Action of Debt for the Rent Mich. 28 29. Eliz. in the Common Pleas. 121 IN a Formedon the Tenant pleaded a Fine with proclamations The Plaintiff replyed No such Record It was moved that the Record of the Fine which remained with the Chyrographer did warrant the Plea and the Record which did remain with the Custos Brevium did not warrant the Plea and both the Records were shewed in Court and to which the Court should hold was the question Shuttleworth To that which was shewed by the Custos Brevium and he cited the Case of Fish and Brocket where the Proclamations were reversed because that it appeared by the Record which was shewed by the Custos Brevium that the third proclamation was alledged to be made the seventh day of June which seventh day of June was the Sunday and yet hee said It appeared by the Record certified by the Chyrographer that it was well done and yet the Judgment reversed Rodes Justice There is no such matter in the same case And 26. El. by all the Justices and Barons of the Exchequer in such case the Record which remains with the Custos Brevium shall be amended and made according as it is in the Record of the Office of Chyrographer Windham agreed And afterwards the said President was shewed in which all the matter and order of proceedings was shewed and contained and all the names of the Justices who made the Order And by the command of the Justices it was appointed that the said President should be written out and should remain in perpetuam rei memoriam And the reason of the said Order is there given because the Note which remains with the Chyrographer is principale Recordum Mich. 28 29. Eliz. in the Common Pleas. 122. AN Infant was made Executor and Administration was committed unto another durante minore aetate of the Executor and that Administrator brought an Action of Debt for money due to the Testator and recovered and had the Defendant in Execution and now the Executour is come of full age Fenner moved that the Defendant might be discharged out of Execution because the Authority of the Administrator is now determined and he cannot acknowledge satisfaction nor make Acquittances c. Windham Justice Although the Authority of the Plaintiffe bee determined yet the Recovery and the Judgement do remaine in force But perhaps you may have an Audita querela But I conceive That such an Administrator cannot have an Action for he is rather as a Bayliff to the Infant Executor then an Administrator Rodes agreed with him and he said I have seen such a Case before this time viz. Where one was bound to such a one to pay a certaine sum of money to him his Heirs Executors or Assignes And the Obligee made an Infant his Executor and administration was committed during his minority and the Obligor paid the money to that Administrator And it was a doubt whether the same was sufficient and should excuse him or not And whether he ought not to have tendred the money to them both Fenner That is a stronger Case then our Case One who is Executor of his own wrong may pay Legacies and receive Debts but he cannot bring an Action Windham Doth it appear by the Record when the Infant was made Executor and that Administration was committed as before Fenner No truely Windham Then you may have an Audita querela upon it Fenner said So we will Note Hil. 33. Eliz. in the Exchequer Miller and Gores Case An Infant pleaded in a Scire facias upon an Assignement of Bonds to the Queen That Saint-Johns and Eley were Administrators during his minority And it was holden by the Court to be no plea. But he ruled to answer as Executor Mich. 28 29. Eliz. in the Common Pleas. 123 SUggestion was made that a Coroner had not sufficient Lands within the Hundred for which a Writ issued forth to choose another and one was chosen It was moved by Serjeant Snag If theâ—eby the first Coroner did cease to be Coroner presently untill he be discharged by Writ Rodes and Windham Justices He ceases presently for otherwise there should be two Officers of one Coronership which cannot be Also the Writ is Quod loco I. S. eligi facias c. unum Coronatorem and he cannot be in place of the first if the first do not cease to be Coroner So if any be made Commissioners and afterwards others are made Commissioners in the same cause the first Commission is determined Snagg said That in the Chancery they are of the same Opinion but Fitz. Nat. Brevium 163. N. is That hee ought to be discharged by Writ Mich. 28 29 Eliz in the Common Pleas. 124 IN an Action of Debt brought against Lessee for years for rent he pleaded That the Plaintiff had granted to him the reversion in Fee which was found against him Walmesley Serjeant moved Whether by that Plea he had forfeited his terme or not Rodes and Windham Justices He shall not forfeit his Term and Rodes cited 33. E. 3. Judgement 255. Where in a Writ of Waste the Tenant claimed Fee and it was found against him that he had but an Estate for life and yet it was no Forfeiture Fenner and Windham It is a strong Case for there the Land it selfe is in demand but not so in our Case Rodes The Tenant shall not forfeit his Estate in any Action by claiming of the Fee-Simple but in a Quid juris clamat Walmesley and Fennèr Where he claimes in Fee generally and it is found against him there perhaps hee shall forfeit his Estate but where he shewes a speciall conveyance which rests doubtfull in Law it is no reason that his Estate thereby should bee forfeited although it be found against him Rodes 6. R. 2. Quid juris clamat 20. The Tenant claimed by speciall conveyance and yet it was a forfeiture But in the principall Case at Bar he and Windham did agree cleerly That it was no forfeiture Mich. 28 29 Eliz. In the Common Pleas. 125 AN Action upon the Case was brought because that the Defendant had spoken these words viz. That the Plaintiffe hath said many a Masse to J. S. c. Anderson Chief Justice Primâ facie did seem to incline That no Action would lie for the words although that a Penalty is given by the Statute against such Masse-Mongers For he said That no Action lieth for saying That one hath transgressed against a Penall Law Periam Justice contrary Anderson If I say to one That he is a disobedient Subject no Action lieth for the words Windham Justice That is by reason of the generality Puckering
No Action lieth for the slandering of one in a thing which is but malum prohibitum Periam The saying of Masse is Malum in se Puckering If I say to one That he hath eaten flesh on Fridayes an Action doth not lie for that Periam Is that like this Case Note the Declaration was uncertaine viz. The places where the Masses were said c. were not alledged nor the day when they were said c. And therefore Periam said that the Action did not lie for it might be that the Masses were celebrated in France or some other place out of the Kingdom And the Statute doth not appoint any penalty If they be not indicted thereof within the year and a day c. Mich. 28 29. Eliz. in the Common Pleas. 126 An Act of Common Councell according to the Custome of the City of London was By which it was Decreed That none should bring any Sand nor sell nor use any within the City or Suburbs of London but that only which was taken out of the River of Thames c. And that if any did the contrary that he should forfeit for the first fault five Pound and for the second fault Ten Pound to be recovered in an Action of Debt wherein no Essoine Protection or Wager of Law should be allowed And such a Plaint for the forfeiture of One hundred and twenty Pound was removed out of London into the Common Pleas by a Writ of Priviledge and it was debated amongst the Justices and Serjeants Whether the Plaint should be remanded or not Anderson Chief Justice Windham and Periam Justices did greatly speak against the said Act not only for the matter and substance of the Act but also for the forme of it 1. They were informed by Snagg Serjeant That the said Thames Sand was a great deal worse then the Land Sand and yet the price of the same was greater and the measure of it lesse For of the Thames Sand there were but eleven Bushels to make a Load and of the other Sand there were eighteen Bushels which he said was a very great Deceit and Mischief And 2. they said That is against reason that any Freeman should be so restrained from Merchandizing and selling And also it might concerne the Inheritances of some who might have Sand in their Lands Also the said Justices said That they were very presumptuous in making Acts so Parliament-like viz. That no Essoine Protection or Wager of Law should be allowed c. and that they did arrogate to themselves too high Authority And they stirred up the Plaintiffe at the next Parliament to exhibite a Bill against them for it and to sue them in the King's Bench for their presumption and insolency in that their dealing and said That it would shake their Liberties and grow to a greater matter then they thought or were aware of And thereupon Anderson cited the Case 22. H. 8. Where Sir Edward Knightly Executor of Sir William Spencer made certain Proclamations in certain Townes That Creditors coming in and proving their Debts that they should be paid and for that Presumption hee was committed to the Fleet and was fined Five hundred Marks And hee said That such were the Misdemeanors of Empson and Dudlâ—y Mich. 28 29. Eliz. in the Common Pleas. 127 BOXE and MOUNSLOWE'S Case THomas Boxe brought an Action upon the Case against John Mounslowe That the Defendant had slandred him in saying That the said Thomas Boxe is a Perjured Knave and that he would prove That he the said Thomas Boxe had forsworne himselfe in the Exchequer c. and supposed the said words to be spoken in London 4. Feb. 28. El. Et praedict ' John Mounslowe per Johannem Lutrich atturnat ' suum venit defendit vim injuriam quando c. Et dicit quod praedict ' Thomas Boxe actionem suam versus cum habere non debet quia dicit quod praedict ' Thomas Boxe being one of the Collectors of the Subsidies before the speaking of the said words viz. M. 27. and 28. Eliz. in Curia Scaccarii apud Westminst ' did exhibit a Bill against the said John Mounslow containing That the said John being assessed in ten pounds in goods The said Thomas Boxe came to him and demanded sixteen shillings eight pence which the said John Monuslow did refuse to pay c. And that demand and refusall was supposed to be in London in Breadstreet Et pro verificatione praemissorum ad tunc ibidem Sacrament ' corporale per Barones praefat ' Thomas Boxe praestito The said Thomas Boxe swore the said Bill in substance was true ubi revera the said John Mounslow did not refuse c. per quod the said John Mounslow postea viz. praedicto tempore quo c. dixit de praefato Thoma Boxe praedicta verba c. prout ei bene licuit The Plaintiffe replied that the Defendant spake the words de injuria sua propria absque Causa per praefat ' Johannem Mounslow superius allegata c. Et hoc petit quod inquiratur per Curiam praedict ' defendens similiter And a Venire facias was awarded to the Sheriffe of London and it was found for the Plaintiffe and damages four hundred pound And now it was moved in arrest of judgement that there was no good triall nor the issue well joyned for the issue doth consist upon two points tryable in severall Counties viz. the Oath which was in the Exchequer and that ought to have been tried in Middlesex and the matter which he affirmed by his oath to be viz. the demand and refusall to pay the Subsidie c. and that was alledged to be in London and therefore is there is to be tried And the issue viz. de injuria sua propria absque tali causa goeth to both for the ubi revera will not mend the case as Periam Justice said and both are materiall for the Defendant ought to prove that the Plaintiffe made such oath and also that the substance and matter of the oath was not true for otherwise the Plaintiffe cannot be proved perjured And therefore the Counties here if they might should have joyned in the triall And the opinion of the Court was against the Plaintiffe for Anderson and Windham said That if this issue could have been tried by any one of the Counties without the other It should be most properly and naturally tried in Middlesex where the oath was made for the perjury if any were was in the Exchequer But they said that the issue here was ill joyned because it did arise upon two points triable in severall Countries which could not joyne whereas the Plaintiffe might have taken issue upon one of them well enough for each of them did go to the whole and if any of them were found for the Plaintiffe that he had sufficient cause to recover Gaudy moved that it should be helped by the Statute of Jeofailes which speakes of mis-joyning of issues Anderson the issue
here is not mis-joyned for if the Counties could joyne the issue were good but because that the Counties cannot joyne it cannot be well tried But the issue it selfe is well enough Windham and Rodes were of the same opinion that it was not helped by the Statute but Periam doubted it Anderson said That if an issue triable in one Countie be tried in another and judgement given upon it it is errour And afterwards Lutrich the Atturney said That it was awarded that they should re-plead Nota quia mirum for 1. The Statute of 32. H. 8. Cap. 30. speaks of mis-joyning of processe and mis-joyning of issues and admit that this case is not within any of those clauses each of them being considered by it selfe yet I conceive it is contained within the substance and effect of them being considered together Also I conceive That it is within the meaning of both Statutes viz. 32. H. 8. Cap. 30. and 18. Eliz. Cap. 14. for I conceive the meaning of both the Statutes was to oust delayes circuits of actions and molestations and that the partie might have his judgement notwithstanding any defect if it were so that notwithstanding that defect sufficient title and cause did appeare to the Court. And here the Plaintiffe hath sufficient cause to recover If any of the points of the issue be found for him For if it bee found that the matter and substance of the oath be found true which might be tried well enough by those in London the Plaintiffe hath cause to recover Wherefore I conceive that the verdict in London is good enough and effectuall And note That Rodes said that hee was of Councell in suh a case in the Kings Bench betwixt Nevell and Dent. Mich. 28 29. Eliz. in the Common Pleas. 128 IN an Action of Trespasse the Defendant pleaded that at another time before the Trespasse he did recover against the same Plaintiffe in an Ejectione firme and demanded judgement And the opinion of the whole Court was That it is a good plea primâ faciâ— and that the possession is bound by it for otherwise the recovery should be in vaine and uneffectuall And Anderson chiefe justice said That if two claime one and the same Land by severall Leases and the one recovereth in an Ejectione firme against the other that if afterwards the other bring an Ejectione firme of the same Land the first recovery shall be a barre against him Rodes said That hee can shew authority that a recovery in an Ad terminum quem praeteriit shall bind the possession Mich. 28 29. Eliz. in the Common Pleas. 129 IN Trespasse the Defendant did justifie as Bailiffe unto another The Plaintiffe replied that he took his cattell of his own wrong without that that he was his Bailiffe Anderson chiefe Justice If one have cause to distreine my goods and a stranger of his own wrong without any warrant or authority given him by the other take my goods not as Bailiff or servant to the other And I bring an Action of trespasse against him can he excuse himself by saying that he did it as my Bailiffe or Servant Can he so father his mis-demeanours upon another He cannot for once he was a trespasser and his intent was manifest But if one distrein as Bailiffe although in truth he is not Bailiffe if after he in whose right he doth it doth assent to it he shall not be punished as a trespassour for that assent shall have relation unto the time of the distresse taken and so is the book of 7. H. 4. And all that was agreed by Periam Shuttleworth What if hee distraine generally not shewing his intent nor the cause wherefore he distrained c. ad hoc non fuit responsum Rodes came to Anderson and said unto him If I having cause to distrain come to the Land and distraine and another ask the cause why I do so if I assigne a cause not true or insufficient yet when an Action is brought against me I may avow or justifie and assigne any other cause Anderson That is another case but in the principall case clearly the taking is not good to which Rodes agreed Mich. 28 29. Eliz. in the Common Pleas. 130 HOODIE and WINSCOMB'S Case IN an Attaint brought by Hoodie against Winscombe c. One of the Grand Jury was challenged because he was a Captain and one of the Petie Jury was his Lieutenant And it was holden by the whole Court that that was no principall challenge Windham It hath been holden no principall challenge notwithstanding that one of the Jurours was Master of the Game and one of the Petit Jury was Keeper of his Park And in that case it was holden by all the Justices That if a man make a Lease rendring rent upon condition that if the rent be behind and no sufficient distresse upon the Land that then the Lessor may re-enter If the Rent be behind and there be a piece of lead or other thing hidden in the Land and no other thing there to be distrained the Lessor may re-enter for the distresse ought to be open and to be come by for if it should be otherwise said a sufficient distresse one might inclose money or other things within a wall and thereby the Lessor should be excluded of his re-entry Mich. 28 29. Eliz. in the Common Pleas. 131 IN a Quare Impedit the Plaintiffe counted That the Defendant being Parson of the Church in question was presented to another Benefice and inducted 15 Aprilis and that the other Church became void c. The Defendant said That he was qualified at such a day which was after 15 Aprilis without that that he was inducted 15 Aprilis And the Court was of opinion Anderson being absent that it was no good Traverse for he ought to have said generally without that that he was inducted before the day in which he is alledged to be qualified As if one declare in Trespasse done 1 Aprilis and the Defendant plead a Release 1. Feb. he ought to traverse without that that the Trespasse was done before the Release by Periam Justice Mich. 28 29. Eliz. in the Common Pleas. 132 HALES and HOME'S Case IN an Avowry for Damage feasance one pleaded a Lease made unto him by I. S. the other said that before the Lease â— S. did enfeoff him the other replied and maintained the said Lease absque hoc quod J. S. seiâ—itus feoffavit Gawdy The Traverse is not formall for the word seisitus is idle and ought to be left out for he cannot enfeoff if that he were not seised and it hath never been seen that the seisin in such Case hath been traversed but generally in Pleading the Traverse hath been absque hoc that Feoffavit without speaking of seisin which is superfluous And so was the opinion of the whole Court Mich. 28 29. Eliz. in the Common Pleas. 133 THE Queen granted Lands unto the Earle of Leicester by her Letters Patents the Patentee made a Lease of
the Land unto another Shuttleworth moved it to the Court Whether the Patentee ought to shew the Letters Patents and he conceived He need not because he hath not any interest in them but the same do belong only to the Earle As if a Rent be granted to one in Fee and he taketh a wife and dieth and the Wife bringeth a Writ of Dower she is not bound to shew the first Deed by which the Rent was granted to her Husband because the Deed doth not belong unto her So hee who sues for a Legacie is not tied to shew the Will because the same belongs to the Executor and not him Periam Justice The Cases are not alike for they are Strangers and not Privies but the Lessee in the principall Case deriveth his interest from the Letters Patents and therefore he ought to shew them Rodes Justice remembred Throgmorton's Case Com. 148. a. where a Lease was made by an Abbot to J. S. and afterwards the same Abbot made a Lease unto another to begin after the determination of the first Lease made to J. S. and exception was taken That he ought to have shewed the Deed of the first Lease and the Exception was disallowed by the Court Periam That case is not like this case and he said That as he conceived the Lessee in this case ought to shew forth the letters Patents and if any Books were against his Opinion it was marvellous Mich. 28 29 Eliz. in the Common Pleas. 134 ONE intruded after the death of Tenant for life and died seised and the land descended to his Heire and a Writ of Intrusion was brought in the Per against the Heir and Gawdy Serjeant prayed a Writ of Estrepment against the Tenant And first the Court was in doubt what to do but afterwards when they had considered of the Statute of Gloucester Cap. 1. in the end of it Anderson said If the Writ be in the Per take the Writ of Estrepment but if the Writ be not in the Per we doubt whether a Writ of Estrepment will lie or not Mich. 28 29 Eliz. In the Common Pleas. 135 WOOD against ASH and FOSTER CErtain Lands with a Stock of Sheep was leased by Indenture and the Lessee did covenant by the same Indenture to restore unto the Lessor at the end of the Terme so many Sheep in number as he took in Lease and that they should be betwixt the age of two and four years Afterwards the Lessee granted the same Stock unto a Stranger viz. to Elizabeth Winsor who was the wife of Ashe whereas in truth all the ancient Stock was spent And it was holden by all the Justices upon an Evidence given unto a Jury at the Bar That when such a Stock of Sheep is leased for years the principall Property doth remain in the Lessor as long as those Sheep which were in esse at the time of the Lease should live but if any of them do die and other come in their roomes then the property of those new Sheep doth belong to the Lessee and therefore they held that the second Lessee should have so many of the Sheep as were left and did remaine at the end of the Lease and no other And yet it was objected by Walmesley That the Stock was entire and that as soon as any other came in the room of the ancient Sheep which were dead that they were accounted part of the same stock and although they be all dead and so changed successively two or three times yet he said it shall be said the same stock And he resembled the same to the case of a Corporation which although all the Corporation die and other new men come in their places it shall be said the same Corporation But notwithstanding his Opinion all the Justices were of opinion as before Walmesley said That agreeing with his opinion was the opinion of all the civill Lawyers but the Court was angry and rebuked him that he did in such manner crosse their opinions and that he cited the opinion of Civilians in our Law and they resolved the contrary and they said there is a difference betwixt the Lease of other Goods and a lease of live Cattel for in the first Case if any thing be added for mending repairing or otherwise by the Lessee at the end the Lessor shall have the additions for of them he hath alwayes the property and they are annexed to the principall but Lambs Calves c. are severed from the principall and are the Profits arising of the Principall which the Lessee ought to have else he should pay his Rent for nothing And as to the issue upon the Cepit by Foster it was shewed That he did but stay the Sheep in his Manor where he had Fellons Goods Waifes and Strayes and that the Sheep were stayed upon a Huy and Cry and that he had taken Bond of one to whom he had delivered the Sheep to render them to him who had the right of them And that stay was holden by the Court to be out of the point of the Issue For that he who doth stay doth not take Mich. 28 29. Eliz. in the Common Pleas. 136. The Heirs of Sir ROGER LEWKNOR and FORD's Case Intratur Pasch 28. El. Rot. 826. SIR Roger Lewknor seised of Wallingford Park made a lease thereof unto Ford for years and died the Lessee granted over his term to another excepting the Wood the term expired and now an action of Waste was brought against the second lessee by the two Coparceners and the Heir of the third Coparcener her Husband being tenant by the courtesie And Shuttleworth and Snag Serjeants did argue that the action would not lie in the form as it was brought And the first Exception which was taken by them was because the action was generall viz. Quod fecit Vastum in terris quas Sir Roger Lewknor pater praedict ' the plaintiffs cujus haeredes ipsae sunt praefat ' defend ' demisit c. and the Count was that the Reversion was entailed by Parliament unto the Heirs of the body of Sir Roger Lewknor and so they conceived that the Writ ought to have been speciall viz. cujus haeredes de corpore ipsae sunt For they said that although there is not any such form in the Register yet in novo casu novum remedium est apponendum And therefore they compared this case to the case in Fitz. Nat. Brevium 57. c. viz. If land be given to Husband and Wife and to the Heirs of the body of the Wife and the Wife hath issue and dieth and the Husband committeth Waste the Writ in that case and the like shall be speciall and shall make speciall recitall of the estate And so is the case 26. H. 8. 6. where Cestuy que use makes a lease and the lessee commits Waste the action was brought by the Feoffees containing the speciall matter and it was good although there were not any such Writ in the Register cujus
it is not shewed that he used any other rite or Ceremony c. for there ought to be some Positive thing 3. He doth not shew the Place or Parish where he persisted in it and that is materiall and issuable The fourth Exception was Because it was Inquisitio câ—pta coram Johanne Peter Waltero Mildmay and so named four of them by vertue of a Commission directed to them and to others and doth not shew what others nec quod illi fuerunt praesentes and then if the Commission were to them all jointly and two only were present then it was coram non judice and so void 5. The Statute saies That if any Parson or Vicar but doth not say being Minister Dei. The sixth was That it was at another Church c. Wray Chief Justice If this Evasion should be allowed the Statute were not to the purpose The seventh was That it doth not shew where the persisting was for that is a speciall thing and materiall and issuable Wray Chief Justice conceived That that only was a materiall Exception and that the other Exceptions were but frivolous and were not good Hill 29. Eliz. In the Kings Bench. 138 WARREN's Case ONE Warren demanded by a Writ of Debt in the Common Pleas Forty Pound and upon his Declaration did confess himselfe satisfied of Twenty Pound and thereupon Error was brought in the King's Bench And the Judgement reversed because by his Declaration he had abated his Writ and he ought to have Judgement according to his Writ and not according to his Declaration The Error assigned was in the Outlawry and it was holden by all the Justices That if the principall Record be reversed for Error that the Outlawry which is grounded upon it shall be reversed also Hill 29. Eliz. in the Kings Bench. 139 ROOTE 's Case THE Case was in a Prohibition touching Tithes and the libell in the Spirituall Court was for Corn and Hay and other things and the Tenant of the land did prescribe to pay in one part of the land the third part of the tenth and in another part the moity of the tenth of Corn for all manner of Tithes And the Court did incline that the same was a good prescription And a Prohibition was granted to the Ecclesiasticall Court Hill 29. Eliz. in the King 's Bench. 140 A Man was possessed for the terme of six years of a Tavern in London and leased the same unto another for three years and it was convenanted betwixt them that during the three years quolibet mense monthly the lessee should give an Account to the lessor of the Wine which he sold and should pay unto him for every Tun sold so much money And afterwards the lessor granted the three years which were remaining of the six years to another and he did request the lessee to account and he would not whereupon he brought an Action of Covenant and the Defendant pleaded That he had accounted to the Assignee of the three years and upon that there was a Demurrer joyned And the better opinion of the Court was that it was no Plea because it was not a Covenant which did go with the land or the Reversion but was a collaterall thing and did not pass by the assignment of the three years Hill 29. Eliz. in the King 's Bench. 141 IT was adjudged That the bringing of a Writ of Error to reverse a Fine by an Infant during his nonage is not sufficient but the Fine by Judgement in the Writ of Error must be reversed during his Nonage Hill 29. Eliz. in the Common Pleas. 142 WIDALL and Sr. JOHN ASHTON's Case A Writ of Error was brought by Widall against Sr. John Ashston because in the other action being an action of Wast The Plaintiff there did declare that he was seised and so seised demisit pro termino annorum c. and did not shew of what estate he was seised And yet he did suppose that it was ad exhaeredationem ejus c. And the same by Beamount was taken for an exception as 7. H. 6. A man pleaded a Feoffment to two haeredibus and doth not say suis it is uncertain And in the principal Case it shall be supposed that he hath but an estate for life for it shall not be intended that he hath an estate of Inheritance without expressing of words to carry an Inheritance As 7. Ass If I grant a Rent to I. S. and do not name what estate he shall have in it he shall have but an estate for life But he said that the Presidents are that if the word seised had been left out it had been good enough For by the Book of Entries a man may say demisit without saying that he was seised demisit But if a man will plead a thing which is not necessary to be pleaded and mistake it it shall make his Plea naught as in Patridges Case Where a suite was upon the Statute of Maintenance It is sufficent to say contra formam Statuti But if he will plead specially the day and place of the Statute and mis-plead it it makes all naught Suit Justice I conceive that that is a fault incurable But upon the other side it was argued that in 21. H. 7. It is holden that he might plead quod demisit without that that he was seised and demisit as there in an Action of Debt And therefore it is but surplusage in the principal Case Vide 15. E. 4. A good Case where surplusage shall not hurt because it is not traversable And he urged that by the Statute of 18. El. the Declaration doth not abate for matter of form And he said that Counts and Declarations shall be taken by Intendment and it shall be intended that if bringeth Wast that he hath such an estate that he may maintain such Action In Adams Case in the Commentaries One shewed that such an Abbot was seised and that the Land came unto the King by Dissolution and that the King being seised did grant the same and did not shew of what estate the King was seised and yet it was holden good See a good Case to this purpose 18. E. 3. Formedon 58. And he said that the Defendant had pleaded Nul wast fait and therefore he had by his Plea affirmed the Declaration to be good Beamount He ought to have said reversione inde sibi haeredibus c. Clenche Justice I conceive that the Statute of 18. El. helps that Suit Justice No truly It was adjourned Hill 29. Eliz. in the Common Pleas. 143 AN Action of Covenant was brought by a Man against another who had been his Apprentize The Defendant pleaded that he was within age The plaintiff did maintain his Action by the Custome of London Where one by Covenant may binde himself within age And Exception was taken to it That that was a Departure Daniel It is no Departure for by 18. R. 2. an Infant brought an Action against Gardian in Socage and the
should not kill the Coneys He cannot take them damage feasants for he cannot impound them Nor doth a Replevin lye of them 19. E. 3. and F. N. B. If the Lord surcharge the Common the Commoner may have an Action against him but in this Case he can have no Action Gaudy Chief Justice He cannot kill the Coneys because he may have other remedie Suit Justice A Commoner cannot take or distrain the Cattel of a Freeholder damage feasants And therefore he cannot kill or destroy the Coneys and he hath a remedy for he may have an Action upon the Case or an Assize against him for putting in of the Coneys if he do not leave sufficient Common for the Commoner Judgment was afterwards given for the Plaintiff Hill 29. Eliz. in the King 's Bench. 145 YARRAM and BRADSHAWE's Case YArram and Wilkenson Sheriffs of the City of Norwich brought an Action upon the Case against Bradshawe because that they being Sheriffs of N. A Capias ad satisfaciendum and shewed at whose Suit and in what action was awarded unto them And they 20. Feb. Anno 25. El. directed their Warrant in writing to three Sergeants of the same City to arrest him by force of which the Sergeants the 26. of Feb. in the same year did Arrest him in Execution and that he was rescued and escaped And that they had spent divers summs of Money in enquiring after him ad grave damnum eorum c. The Defendant pleaded Not Guilty And upon Tryal of the issue a special Verdict was found that about 20. Feb. Anno 25. such a Warrant was made by them unto the Sergeants but not 20. Feb. and that the Sergeans by force thereof about 26. Feb. did Arrest him but not the 26. of Feb. and upon the whole matter there was a demurrer in Law Tanfield for the Defendant and he said It was no Lawfull Arrest For by 8. E. 4. A Bailiff without a Warrant in writing may take goods in Execution and it is good if it be by commandment by word onely of the Sheriff but he cannot Arrest the body of a man without a Warrant in writing sigillo signatum which is not shewed here in the plaintiffs Declaration If one in debt declare per factum suum obligatorium and doth not say sigillo suo sigillatum it is not good Quaere of that for the Book of Entries is not so Secondly he said it must be a present loss or damage to the plaintiffs or else they cannot maintain the action They are chargeable but not charged for if the Sheriffs dye before he begin any Suit against them their Executors shall not be charged But if the plaintiffs have been Arrested then they are endamaged Thirdly as to the Verdict the foot and foundation of the action is the wrong and the wrong here is not found certain for it is supposed to be 26. Feb. And also that the Warrant was Circa 26. Feb. but not 26. Feb. and if it were any day before then the action is maintainable but not if it were any day after A man brings an action of Trespass supposing by his writ the same to be done 1. May If in truth the Trespass was before then it is good but if it were 2. May or at any time after 1. May then it is not good It was a great Case betwixt Vernon and Gray in an Ejectione firme The Ejectment was supposed 1. May and the Jury did finde the Ejectment to be Circa first May and adjudged not good If an Ejectione firme be brought upon a lease made 1. May and the Jury finde the Ejectment to be circa 1. May it is not good Also here they could not take him in Execution again although they had found him For if a man be once out of Execution by 14 H. 7. He shall not be taken again in Execution for the same cause The Court held it not material whether he shewed or not that the Warrant was sub sigillo sigillat ' and therefore thy did not speak to it Godfrey for the plaintiff What if they be not charged but chargeable yet they shall have their action upon the Case for the wrong done viz. The Rescous and the Escape because the Defendant shall not take advantage of his own wrong and so is the opinion of Frowick 13. H. 7. 1. Reporter Quaere For Frowick saith He shall have an action upon the Case or Trespas for breaking of prison against him and shall recover in damage as much as he lost by the escape and so he shall be helped and not by taking of him again And Fitzherbert in his Natura Brevium in the Writ of Ex parte talis holds that upon an Escape the Gaoler shall have a special Writ upon the Case against the Prisoner to answer for the Escape and the damages which the Gaoler shall sustain thereby and it was holden in a great Case viz. One Holts Case That it is not necessary to shew that there was a recovery against them Tanfeild but there it was after a Suit begun although before recovery Godfrey they have also put it in their Declaration that they have expended great sums of Money in looking for him therefore they have shewed that they were damnified Tanfeild it was foolish for them to spend their Money for they could not have taken him again although they had found him Godfrey A man shall have an action for fear of vexation or trouble or charge as one shall have a Warrantia Charta before he be impleaded A man shall have a Curia Claudenda before any breach of the enclosure As to the Verdict It is certain enough for it saith Quod tunc ibidem seipsum recussit and that cannot but be referred to a time certain before viz. 26. Feb. Tanfeild It shall be referred to circa and therefore ad tunc ibidem do remain uncertain Suit Justice Presently by the escape there was a wrong done therefore for that he may have an action Clenche Justice said That he had experience in a Case of Trespas And it was the opinion of almost all the Judges of England That if the Trespass should be done after the day wherein it is supposed to be done by the Writ Yet the Writ shall not abate and therefore he said That the difference of the Trespas done before and after the day supposed by the Writ is to no purpose Further he said that it standeth them upon to have their action before they be sued by the party at whose Suit he was in Execution for perhaps he who was in Execution might dye and other changes might happen so as they might lose all Tanfeild What damages shall the Sheriffs have here if they shall recover before any action be brought against them when as it is uncerrain whether ever they shall be sued or not and so uncertain how much they shall be damnified But notwithstanding all which was said by Tanfeild Judgment was given for the Plaintiffs Hill 29.
yet in the interim during the life of Brenne and his wife it is one entire Manor For if Blackborow had levied a Fine thereof before entry his Interest in the Land had not passed And if a Fine be levied of the Manor and the Conusee render back part to one for life and another part to another for life the remainder of the whole to a third until the Two enter it is one entire Manor in the hands of the Conusee If I devise that my Executors shall sell such Lands which are parcell of a Manor and dye untill they sell it remains parcell of the Manor So if the heir selleth the Manor that Land shall passe for it is but executory and remains parcell untill it be executed Wherefore in the principall Case here the Copy-hold is good The reason of the Case 33. H. 8. Dyer 48. is because before the grant the advowson was not appendant to that acre onely but to the whole Manor and to that acre as parcell of it Also he said that the Copy-hold shall be good against the Lessee being granted before execution of his term when as the Manor was entire For he who hath a Manor but for one year may grant Copies and the grant shall be good to bind him in the Reversion And if one recovereth an acre parcell of a Manor before execution it is parcell of the Manor and by grant of the Manor shall passe Periam Justice But yet now being executed by the death of the Lessor and his wife it is no part of the Manor if they be severall Leases Walmesley But the Defendant is in by Custome by one who is Dominus pro tempore Anderson Chief Justice The Case of 48. E. 3. is like our Case And I conceive clearly here is no severance but if there had been any severance it had been otherwise but I doubt of the other point Periam Justice In 13. H. 4. the difference is taken betwixt a grant of a Manor una cum advocatione and a grant of a Manor et ulterius a grant of the Advowson In 14. Eliz. Dyer 311. in the Case of the Lord Cromwell and Andrews it is moved If a man bargain and sell give and grant a Manor and Advowson to one and afterwards levieth a Fine or inrolleth the Deed Dyer held that the Advowson shall passe by the Bargain and Sale as in gross before that the Deed be enrolled But I conceive that it cannot pass if the Deed be not enrolled and then it shall pass as appendant by reason of the intent of the parties and so in this Case And for the last matter I conceive very strongly that when the Lease which is executory takes effect that it shall avoid the Copy-hold for although at once viz. during the expectancy of the said Lease to begin at a day to come the Copy-hold be not extinct yet now he may say That all times as in respect to him the Copy-hold Custome was broken I hold That a Tenant in Dower shall not avoid a Copy-hold made during the Coverture and so it hath been adjudged in the Kings Bench. But I conceive there is a difference betwixt that Case and the Case in question for in that Case the title of the wife to have Dower is not consummate till the death of the Husband Anderson Chief Justice I can shew you an Authority That if I grant unto you such Land and the Manor of D. there the Land shall pass as parcell of the Manor Periam True there for it doth enforce the first grant But here the intent of the parties doth appear and the same is to be respected Anderson But their intent ought to be according to the Law as in 19. H. 8. it is holden it shall be in a Devise Anderson upon the Argument of this Case said That if a Warranty be to a whole Manor and also to an Advowson the party cannot have Two Warrantia Chartae Periam If he had further said in the Deed That his intent was that it should be severall the same had altered the Case Anderson No truely because his intent did not stand with the rule of Law As if a man devise that his Lands shall be sold and doth not say by whom it is void and yet the intent is expressed If the Lease had been by severall Deeds Periam said The Copy-hold had beene severed Windham denied that If both the Deeds bee delivered at one time It was adjourned Hill 29. Eliz. In the Common Pleas. 148 AN Information was upon the Statute of 5. 6. E. 6. for buying of seed Corn having sufficient of his own and not bringing so much unto the Market of his own corn and a generall issue was found upon it And it was delivered for Law to the Jury by the Justices That a Contract in Market for corn not in the Market or which was not there that day is not within the Branch of the Statute But if corn or graine be in the Market although that the Contract be made in a house out of the Market and delivered to the Vendee out of the Market yet it is within the Statute And in the Argument of that Case Anderson said That the Market shall be said The place in the Town where it hath used to be kept and not every place of the Town And a Sale in Market overt in London ought to be in a Shop which is open to the street and not in Chambers or inward rooms otherwise the property is not altered And so it is of all Statutes in open Markets And the Recorder of London said That such was their Custome in London Hill 29. Eliz. in the Common Pleas. 149 It was holden by Anderson chiefe Justice That if one deviseth Lands to the heirs of I. S. and the Clerk writes it to I. S. and his heirs that the same may be holpen by averrment because the intent of the Devisor is written and more And it shall be naught for that which is against his intent and against his will and good for the residue But if a Devise be to I. S. and his heirs and it is written but to the heirs of I. S. there an averrment shall not make it good to I. S. because it is not in writing which the Statute requires anâ— so an averrment to take away surplusage is good but not to encrease that which is defective in the Will of the Testator Mich. 29. Eliz. in the Common Pleas. 150 A Feoffment was made unto A. unto the use of him and his wife dis-punishable of Wast during their lives one died and the Survivor committed Wast It was the opinion of the whole Court that an Action of Wast would not lie by him in the Reversion for it is a Priviledge which is annexed to the Estate which shall continue as long as the Estate doth continue Mich. 29 Eliz. in the Common Pleas. 151 A. grants annualem redditum out of Lands in which he hath nothing The opinion of
the Court was That it is a good grant of an Annuity by these words annualem redditum But whether the Husband shall have a Writ of Annuity after the death of the wife for an Annuity during the Coverture they were in some doubt because it is but a thing in Action as is an Obligation Otherwise were it of a Rent which she had for life Note in pleading for a Rent he shall plead That he was seised c. Mich. 29. Eliz. in the Common Pleas. 152 WINKFEILD'S Case Winkfeild devised Land in Norfolk to one Winkfeild of London Goldsmith and to his heirs in Fee And afterwards he made a Deed of Feoffment thereof to divers persons unto the use of himselfe for life without impeachment of waste the Remainder unto the Devisee in fee. But before he sealed the Deed of Feoffment he asked one if it would be any prejudice to his Will who answered No. And the Devisor asked again if it would be any prejudice because he conceived that he should not live untill Livery was made And it was answered No. Then he said that he would seale it for his intent was that his Will should stand And afterwards Livery was executed upon part of the Land and the Devisor died Rodes and Periam Justices The Feoffment is no Countermand of the Will because it was to one person but perhaps it had been otherwise if it had been to the use of a stranger although it were not executed Anderson Chiefe Justice and others the Will is revoked in that part where the Livery is executed And he said It would have been a question if he had said nothing And all the Justices agreed That a man may revoke his Will in part and in other part not And he may revoke it by word and that a Will in writing may he revoked by word Periam said It is no revocation by the party himselfe but the Law doth revoke it to which Windham agreed But he said That if the party had said nothing when he sealed the Feoffment it had been a revocation of the party and not of the Law Periam If the Witnesses dye so as he cannot prove the words spoken at the sealing of the Feoffment the Feoffment will destroy the Will and so he spake to Anderson who did not deny it All this was delivered by the Justices upon an Evidence given to a Jury at the Barre Mich. 29. Eliz. in the Common Pleas. 153 NOte That it was said by Anderson Chiefe Justice That if one intrude upon the possession of the King and another man entreth upon him that he shall not have an Action of Trespasse for he who is to have trespasse ought to have a possession and in this case he had not for that every Intruder shall answer the King for his time and therefore he shal not answer to the other party To which Walmesley and Fenner Serjeants agreed Periam doubted of it for he conceived That he had a possession against every stranger Snagg Serjeant conceived That he might maintain an Action of Trespasse but Windham and Rodes Justices were of opinion that he could not maintain Trespass Walmesley he cannot say in the Writ Quare clausam frâ—git c. Rodes vouched 19. E. 4. to maintain his opinion Mich. 29. Eliz. in the Common Pleas. 154 NORRIS and SALISBURIE'S Case IN an Action of Debt upon a Bond the Case was this Norris was possessed of wools for which there was a contention betwixt the Defendant and one A. And Norris promised A. in consideration that the goods were his and also that he should serve processe upon Salisbury out of the Admiral Court that he would deliver the goods to A. And afterwards he delivered the goods to Salisbury the Defendant who gave him Bond with Condition to keep him harmlesse from all losses charges and hinderances concerning and touching the said wools Afterwards A. served processe upon him and he did not deliver to him the goods for which A. brought his Action upon the Case against Norris who pleaded That he made no such promise which was found against him And afterwards Norris brought an Action of Debt upon the Bond against Salisbury because he did not save him harmlesse in that Action upon the Case And the opinion of the whole Court was That the Action of Debt would not lie because that the Action upon the Case did not concern the wools directly for the Action is not brought but for breach of the promise And that is a thing of which the Defendant had not notice and it was a secret thing not concerning the wools but by circumstances and so out of the Condition Anderson Chiefe Justice said That if A. promise B. in Consideration that B. is owner of goods and hath them to deliver them to C. the same may be a good consideration yet he somewhat doubted of it But Walmesley did affirme it to be a good Consideration Mich. 29 Eliz in the Common Pleas. 155 IT was holden by the whole Court That in an Action of Trespasse It is a good plea in barre That the Plaintiffe was barred in an Assize brought by him against the Defendant and issue joyned upon the Title But otherwise if it were upon the generall issue viz. Nul tort nul disseisin For then it might be that the Plaintiffe was never ousted nor disseised and so no cause to recover In which case it was no reason to put him from his Writ of Right Mich. 29. Eliz. in the Common Pleas. Intratur Mich. 27. Rot. 1627. 156 BRAGG'S Case A Woman having cause to be endowed of a Manor in which are Copy-holders doth demand her Dower by the name of certain Messuages certain Acres of land and certain Rents and not by the name of the third part of the Manor and she doth recover and keeps Courts and grants Copy-holds It was holden by the whole Court that in such Case that the Grants were void for she hath not a Manor because she hath made her demand as of a thing in grosse Otherwise if the demand had been of the third part of the Manor for then she had a Manor and might have kept Courts and granted Copies And the pleading in that Case was That she did recover the third part of the Manor per nomen of certain Messuages and Acres and Rents which was holden to be no recovery of the third part of the Manor Hill 29. Eliz. in the Common Pleas. 157 NOte it was holden for Law That the Justices may increase but not decrease damages because the party may have an Attaint and so is not without remedy But note contrary by Anderson and Periam Justices Hill 39. Eliz. in the Common Pleas. 158 SErjeant Fenner moved this Case That the Lord of a Manor doth prescribe That if the Tenant do a Rescous or drive his Cattel off from the Land when the Lord comes to distrain that the Tenant shall be amerced by the Homage and that the Lord may distrain for the same Anderson
Chief Justice did conceive it might be a good custome and so also was the opinion of Rodes Justice and he vouched 11 H. 7. where the Lord had Three Pound for Pound-breach Fenner It is extortion if the amercement be not for a thing which is a common Nusans and cited 11 H. 4. to prove it Periam Justice said That hee said well Pasch 28 Eliz. In the Common Pleas. Rot. 1962. 159 GILE'S and NEWTON'S Case THE Case was That the Queen seised of the Manor of Gascoigne and of the Graunge called Gascoigne Graunge in D. did grant all her Lands Tenements and Hereditaments in D. and it was adjudged by the whole Court that the Manor did not pass And so Anderson Chief Justice said it is if it were in the Case of a common person but an Advowson shall passe by the Feoffment of the Manor without Deed without the words cum pertinentiis for that is parcell of the Manor which the whole Court granted Pasch 23. Eliz. in the Common Pleas. 160 J. S. was arrested by force of a Latitat out of the King's Bench at the Suit of J. D. and the Sheriffe took an Obligation of him with two Sureties upon condition that he appear such a day in the King's Bench and also that ad tunc ibidem he answer the said J. D. in a Plea of Trespass It was moved by Rodes Serjeant That the Obligation was void by the Statute of 23. H. 6. by which Statute no Obligation shall be said to be good if not for appearance only and this Obligation is for appearance and also that he shall answer to J. D. which is another thing then is contained in the Statute and therefore it is void But all the Justices were of opinion That the Obligation was good notwithstanding that because that the words of the Writ directed to the Sheriffe are Quod capias such a man It a quod habeas corpus ejus hîc such a day ad respondendum tali in a Plea of Trespasse and so nothing is contained in the Bond which is not comprised within the Writ directed unto him but if any other collaterall thing be put into the Obligation then the Bond shall be void for the whole 31. Eliz. in the Common Pleas. 161 BUCKHURST'S Case LEssee for ten years granted a rent charge unto his Lessor for the years Afterwards the Lessor granted the Remainder in Fee to the Lessee It was the opinion of the whole Court that the rent was gone and extinct because the Lessor who had the rent is a party to the Destruction of the Lease which is the ground of the Rent 29. Eliz. In the King 's Bench. 162 ALLEN and PATSHALL'S Case A Copy-holder doth surrender unto the use of a Stranger for ever and the Lord admits the Surrendree to have and to hold to him and his Heirs It was adjudged in this Case That if it were upon a devise that such a one should have the Copyhold in Fee and afterwards a surrender is made unto the Lord to grant the Copy-hold according to the Will and he grants it in Fee to him and his Heirs that the Grant is good But quaere in the first Case for it was there but a bare Surrender only Mich. 27 28. Eliz. in the King 's Bench. 163 STRANGDEN and BARNELL'S Case AN Action of Trover and Conversion was brought of Goods in Ipswich the Defendant pleaded That the Goods came to his hand in Dunwich in the same County and that the Plaintiffe gave unto him the goods which came to his hands in Dunwich absque hoc that he is guilty of any Trover and Conversion of Goods in Ipswich And by the opinion of the Court the same is a good manner of Pleading by reason of the speciall Justification Vide 27. H. 6. But when the Justification is generall the County is not traversable at this day Vide 19. H. 6. 6 7. Mich. 27. Eliz. in the Kings Bench. 164 BARTON and EDMOND'S Case AN Infant and another were bounden in a Bond for the Debt of the Infant The Infant at his full age did assume to save the other man harmelesse against the said Bond afterwards the Infant died It was resolved by the whole Court that upon this Assumpsit an Action upon the Case would lie against the Executors of the Infant But if a Feme Covert and another at her request had been bounden in such a Bond and after the death of her Husband she had assumed to have saved the other harmelesse against such Bond such Assumpsit should not have bound the Wife Trinit 29. Eliz. in the Common Pleas. 165 ZOUCH and BAMPORT'S Case THis Case was moved When the Defendant pleads in Bar to the Action and the Plaintiffe replies and the Defendant doth demur specially upon the Replication and the Bar is insufficient Whether the Justices shall give Judgment upon the Replication or shall resort unto the insufficient Bar the Replication being also insufficient And the opinion of the Court was That when the Action is of such a nature that the Writ and the Count doth comprehend the Title as in a Formedon and the like then because there is a sufficient title for the demandant by the Writ and the Count so as the Judges may safely proceed to Judgement for the Plaintiffe there they shall resort to the Barr. Contrary in Cases where the Title doth commence only by the Replication as in Assize Trespass and the like 40. Eliz. in the Exchequer 166 NOte it was said by Sir Francis Bacon the King's Solicitor That it was adjudged 40. Eliz. in the Exchequer That where the King had made a Lease for life who was ousted by a Stranger that the same should be said a Disseisin of the particular estate against the common ground which is That a man cannot be disseised of lesse estate then of a Fee-Simple 40. Eliz. in the Kings Bench. 167 IT was holden and adjudged by Popham Chief Justice of the Kings Bench That where a Lease was made unto the Husband and Wife for their lives the remainder to the Heirs of the Survivor that the same was a good remainder notwithstanding the uncertainty and that in that Case the Husband after the death of the Wife should have Judgement to recover the Land 33. Eliz. in the Common Pleas. 168 PROCTER'S Case IT was adjudged in this Case That the Lachess of the Clark in not entring of the Kings Silver shall not prejudice the King or the Crowne 30 Eliz. In the Kings Bench. 169 HARDING'S Case IT was holden by the whole Court of Kings Bench as it was reported by Sir Robert Hitcham Knight That if a man make a Lease of Copy-hold land and of Free-hold land rendring Rent and the Copy-hold descends to one and the Free-hold to another that the rent shall be apportioned Trinit 25. Eliz. in the Common Pleas. Rot. 1702. 170 LEONARD and STEPHEN'S Case IN Trespass the issue joyned was Whether it were a Feoffment or not and
upon Evidence to the Jury the Case appeared to be viz. That there was Lessee for years and afterwards the Lessor made a Deed of Feoffment in which were words of Confirmation and in the end of the Deed there was a special Letter of Atturney to make Livery to the Lessee for years and his heirs And it was agreed by all the Justices That the Lessee for years had Election to take the same by way of confirmation or by Feoffment and that the Law doth suspend and expect untill he hath declared his pleasure And it was further adjudged That when he hath made his Election to take it by Livery that it shall be a Feoffment ab initio and by the delivery of the Deed in the mean time nihil operatur Mich. 31. Eliz. in the Common Pleas. 171 A Copy-holder did alledge the custome to be That the Lord of the Manor might grant Copies in Remainder with the assent of the Tenants and not otherwise and that Copies in remainder otherwise granted should be meerly void The question was Whether it were a good custome The Justices did not deliver any opinion in the point But Walmesley Serjeant said That it was a void custome for a Copy-hold Estate is an estate of which the Law doth not take notice and Copy-holders are meer Tenants at will by the common Law and therefore to say That he who hath not an interest should have me at his pleasure aswell as I who am interessed should have him at my pleasure is preposterous and repugnant to reason as 2. H. 4. 27. A custome that the Commoner shall not use his Common before that the Lord hath put in his Cattel is not good for the Commoner hath an interest in the Common which is not reasonable to be restrained at the pleasure of another and 19. Eliz Dyâ—r 257. A custome that a man shall not demise or lease but for six years is a void custome Shuttleworth Serjeant contrary and he said That the reason that this Copy-hold is not within Littletons Estates by Copy is no reason for by the same reason you may overthrow all Copy-hold Estates And he said That this custome might have a lawfull beginning and it seems to bee grounded upon the reason of the common Law that a remainder should not be without the assent of the particular Tenant and therefore it is a good custome And so is the custome that a Woman shall not have Dower if she do not claim it within a year and a day And a custome that a free Tenant shall not alien without a surrender in the Court of the Lord is a good custome It was adjourned 31. Eliz. in the King 's Bench. 172 Sir RALPH EGERTON'S Case UPon a speciall Verdict the Case was this A man being Tenant for life in the right of his Wife he made a Deed of Feoffment Habendum to the Feoffee and his Heirs ad solum opus usum of the Feoffee and his Heirs for the life of the Wife and the Court was cleer of opinion that it was a forfeiture because the Habendum is absolute and the use is another clause and although he doth not limit the use but for life yet the Law limits the remainder of the use to the party who maketh the Feoffment Trinit 29. Eliz. in the King 's Bench. 173 MAYE'S Case IF a man sendeth a Letter by a Carrier to a Merchant for certain Merchandizes to send them to him by the Carrier receiving certain monies and the Merchant sendeth the Goods by the Carrier without the receipt of the Money the same shall not bind the Buyer as it was holden by the Court because it was but a conditionall Bargain and it was the folly of the Merchant to trust the Carrier and therefore in that Case the Vendee was admitted to wage his Law And so if one writeth for Wares and the party sends them by the same Carrier yet if the Carrier doth not deliver them the other may wage his Law in such Case Mich. 30. Eliz. in the Common Pleas. 174 HALTON'S Case THE case was That a Recognizance was acknowleged before Sir N. Read one of the Masters of the Chancery The Recognizee died before the same was enrolled And whether it might be enrolled at the Petition of the Executors of the Recognizee was the question And it was agreed by all the Justices That the same might be enrolled for it was like unto the Conusans of a Fine before a Judge which might be removed out of the hands of the Judge by a Certiorari and yet it is no record untill it be perfected And at that time it was doubted whether the Chancery might help a man who was a purchaser for valuable consideration where there wanteth the word heirs in the Deed of purchase But it was agreed by all the Justices That after a Fine is levied of Land That the Chancery may compell the Tenant to attorne Trinit 31. Eliz. in the Common Pleas. Rot. 1704. 175 BLAGROVE and WOOD'S Case IN Trespass the Question was If a Copy-hold was surrendred or not And the custome was alledged to be That a Copy-holder might surrender out of the Court to the Steward out of the Manor And the Steward was retained onely by word but had no Patent Walmesley He may be Steward by word well enough But Windham and Anderson held That he might be Steward by word onely in possession that is when he holds a Court in possession But he cannot be Steward out of Court without a Patent because he is then out of possession And therefore it was the opinion of the whole Court That the surrender out of Court to the Steward by word was not good Hill 36. Eliz. in the Common Pleas. 176 THe Summons of a Copy-holder to appear at the Lords Court was at the Church and thereupon the Copy-holder did not appear And it was the opinion of the whole Court that the same was no cause of forfeiture of the Copy-hold because it was not especially shewed to be the Custome And it shall be hard to make it a Forfeiture for perhaps the Copy-holder had not notice of it And to that purpose was vouched the Lord Dacres and Harlestoâ—s case And they held that notice ought to be given to the person and the Refusall must be willfull for if a Copy-holder be demanded his rent and he saith that he hath it not the same is no forfeiture but the deniall ought to be a wilfull deniall and so it was said to have been adjudged in one Winters Case Trinit 1. Jacobi in the Common Pleas. Rot. 854. 177 SAPLAND and RIDLER'S Case AFter long Arguments on both sides It was adjudged by all the Justices in this case That where the Custome of a Copy-hold Manor was to admit for life and in remainder for life at any time when there was but one Copy-holder for life in possession and during the minority of the Heir within fourteen years the Gardian in Socage in his own name
did admit a Copy-holder in Remainder for life That the same was a good admittance according to the Custome And that he was a sufficient Dominus pro tempore as to this purpose Although it was objected by Walmesley That the Gardian is but Servus and not Dominus But because it was agreed that he had a lawfull Interest the admittance was good and so it was adjudged 33. Eliz. In the Common Pleas. 178 SHIPWITH and SHEFFIELD'S Case THe Custome of a Copy-hold Manor was That a feme Covert might give Lands to her Husband And if it were a good Custome or not was the Question Fleetwood The Custom is good and vouched 12. E 3. That in York there is such a custome That the Husband might give the Land of his own purchase to his wife during the Coverture and it is a good Custome That an Infant at the age of fifteen years may make a Feoffment 29. E. 3. and the same is good at the Common Law and yet the same all began by custome But the Court was of opinion That the Custome is unreasonable because it cannot have a lawfull Commencement And Anderson Chiefe Justice said That a Custome that an Infant at the age of seven years might make a Feoffment is no good custome because he is not of age of discretion And in this case at Barre It shall be intended that the wife being sub potestate viri did it by the Coherison of her Husband The same Law is of a Custome That the wife may lease to her Husband Fleetwood urged That the custome might be good because the wife was to be examined by the Steward of the Court as the manner is upon a Fine to be examined by a Judge To which the Court said nothing 31. Eliz. in the King's Bench 179 AN Action upon the Case upon an Assumpsit was brought And the Plaintiff layed his Action That such a one did promise him in respect of his labour in another Realme c. to pay him his contentment And he said That Twenty five Pound is his contentment and that he had required the same of the Defendant Cook moved in arrest of Judgement it being found for the Plaintiffe upon Non Assumpsit pleaded that no place was alledged where the contentment was shewed And the opinion of the Court was against him for Gawdy and Wray were of opinion that he might shew his contentment in any Action and so it is where it is to have so much as he can prove he might prove it in the same Action Cook said That it had been moved in stay of Judgement in this Court upon an Assumpsit because the request was not certain And that case was agreed by the Justices because the request is parcell of the Assumpsit and the entire Assumpsit together in such case is the cause of the Action but in this case that he should content him is not the cause of the Assumpsit but only a circumstance of the matter and it was resembled to the Case of 39. H. 6. where a Writ of Annuity was brought for Arrerages against an Abbot pro consilio c. And the Plaintiffe declared that the Councel was ad proficuum Domus and was not alledged in certain and it was holden that the same was not materiall although it were uncertain because it was but an induction and necessary circumstance to the Action And so the Plaintiffe recovered and had Judgement Mich. 29 Eliz. in the King 's Bench. 180 THE Statute of 23. Eliz. cap. 25. is Quod non licuit alicui to engrosse Barley c. and in the Statute there is a Proviso That he may so do so as he convert it into Malt. The question was If in an Information upon that Statute That the Defendant had converted it to Malt he might plead the generall Issue Not guilty and give in Evidence the speciall matter or whether he ought to plead the speciall matter Clench Justice He may plead Not guilty c. for the Proviso is parcel and within the body of the Statute as 27. H. 8. 2. where upon an Information upon the Statute of Farmors it is holden by Fitzherbert That the Vicar may plead Non habuit seu tenuit ad firmam contra formam Statuti c. and yet the Statute in the premises of it restrains every Spirituall Person to take in Farme any Lands c. and afterwards by a Proviso gives him liberty to take Lands for the maintenance of his house c. As upon the Statute of R. 2. If he do plead That he did not enter contra formam Statuti he may give in Evidence that he entred by Title as that his father was seised and died and the same is not like unto the condition of a Bond for that is a severall thing But the Proviso and the Statute is but one Act. Mich. 29. Eliz. in the King 's Bench. 181 NOte It was said by Master Kemp Secondary of the King's Bench That there is a Court within the Tower of London but he said That it was but a Court Baron and said That he can shew a Judgement That no Writ of Error lieth of a Judgement given there And it was a question Whether Process might be awarded to the Lieutenant of the Tower for Execution upon a Judgment given in the Kings Bench because the Defendant was removed and dwelt within the Liberty of the Tower And it was said It could not but the Writ ought to be awarded to the Sheriffs of London and if they returne the Liberties of the Tower then a Non omittas shall be awarded But some Counsellors said That although a Non omittas be awarded yet the Sheriffs durst not go unto the Liberties of the Tower to serve the Process 2 Jacobi in the Common Pleas. 182 The Lady STOWELL'S Case IT was adjudged in this Case That the wife who is divorced causa adulterii shall have her Dower 3. Jacobi in the Common Pleas. 183 WARNER'S Cafe LEssee for twenty years doth surrender rendring rent during the term It was adjudged a good rent for so many years as the term might have continued 3. Jacobi in the King 's Bench. 184 WHITLOCK and HARTWELL'S Case TWO Joint-Tenants for life the one demised and granted the moyty unto his companion for certain years to begin after his death Adjudged void because it is but a possibility And so is it of a Covenant to stand seised to the use c. as it was adjudged in Barton and Harvey's Case 37. Eliz. 3. Jacobi In the Kings Bench. 185 PINDER'S Case A. devised lands in Fee to his son and many other lands in tail And afterwards he said I will that if my son die without issue within age that the lands in Fee shall go to such a one Item I will that the other lands in tail shall go to others and doth not say in the second Item if the son dieth without issue within age It was adjudged That the second Item should be without
plain Case for the Plaintiff the reason of Estrayes was because when there is none that can make title to the thing the Law gives it to the King if the Owner doth not claim it within a year and a day and also because the Cattel might not perish which are called Animalia vagantia c. But the Defendants plea is not good because the Defendant is to keep them until proof be made unto him and the Law doth not take notice of any proof but by twelve Men which the Defendant cannot take 7. H. 2. Barre 241. But if the Owner can make any reasonable proof as if he shew the Markes c. it is sufficient and the party suo periculo ought to deliver to him the Estray Secondly It is not sufficient to keep the Estray within the Manor but it ought to be kept in a place parcel of the Manor Thirdly It ought to be in Land in the possession of Sir John Spencer and not of any other and it doth not appear that that Land was in his possession Fourthly If they do go in the Land of Sir John Spencer Yet it is absurd to maintain that the Bailff might delegate his power to another to keep them until he be satisfied Walmesley Justice agreeeth for when it is spoken generally of proof it shall be taken for judicial proof which needeth not in his Case for these Vagrant Beasts and the party shall not be his own Judge but as it hath been remembred upon the Statute of Wrecke si docere poterit if he can instruct him and give him any reason wherefore the Estray doth appertain unto him he ought to deliver it suo periculo Also it is cleer that agreement ought to be made with the party for the victual and the quantity thereof shall be tryed in this Court if it come in question as the quantity of Amends in a Replevin Warbarton agreed and said That an Estray ought not to be wrought but the party must agree for his meate also the Lord cannot put the Owner to his Oath but if the party doth tell the Marks it is sufficient and he ought to deliver it at his peril and if he require more then belongs to him for the Meate it is at his peril for this Court shall jugde of that Daniel agreed and said That the Lord ought to proclaim them and in his Proclamation ought to shew of what kinde the Estray is whether sheep Oxe Horse c. and ought to tell his name who seised them so as the Owner might know whither he might resort for his Cattel and then it ought to be kept within the Lordship and Manor which may extend into several Counties Cook said that the Owner ought not to be pressed to his Oath Pr. Cases 217. Pasch 5. Jacobi in the Common Pleas. 196 LANGLEY and COLSON'S Case AN Action upon the Case was brought by Langley against Colson for these words viz. Richard Langley is a Bankrupt Rogue I may well say it for I have payed for it and it was adjudged for the Plaintiff for by all the Justices the first words are Actionable although the word Bankrupt be spoken adjectivè because they scandalize the Plaintiff in his Trade At the same time another Action was brought by another Man for speaking these words viz. Thou art a Bankruptly Knave and canst not be trusted in London for a Groat and it was adjudged that the words were not Actionable because the words were spoken adjectivè and adverbialitèr and are not so much as if he had called him Bankrupt Knave but Bankruptly viz. like a Bankrupt Pasch 5. Jacobi in the Common Pleas. 197 BALLET and BALLE'TS Case AWarrantia Charta was brought by Thomas Ballet the younger against Thomas Ballet the elder and the Writ was of two Messuages and the moytie of an Acre of Land unde Chartam habet c. and declared whereas himself and the Defendant and one Francis Ballet were seised in the new Buildings and of one piece of Land adjoyning c. in the Tenure c. containing from the East to the West twenty foot by assize and from the North part to the South thirty foot and the said Thomas the elder and Francis did release unto him all their Right in c. the said Thomas the elder for him and his heirs did Warrant tenementa praedict ' to the said Thomas the younger and his heirs The Defendant did demand Oyer of the deed and thereby it appeared that the said Thomas and Francis and one R. did release to him all their Right in c. And that Thomas the elder for him and his heirs did Warrant tenementa praedict ' to Thomas the younger his heirs and that Francis by another clause for him and his heirs did Warrant tenementa praedict ' to Thomas the younger and his heirs upon which it was Demurred in Law and after Argument by the Serjeants some matters were unanimously agreed by all the Justices First that upon such a release with Warranty contra omnes gentes a Writ of Warrantia Charta lyeth Secondly although that every one passeth his part onely viz. a third part yet every one of them doth Warrant the whole and because they may so do and the words are general without restraint by themselves the Law will not restrain them The words are that they do Warrant tenementa praedict ' which is all the premisses Thirdly For the reason aforesaid It needs not to be shewed how they hold in jointure Fourthly that the Writ is well brought against one onely because the Warranties are several But if they had been joint Warranties then it ought to have been brought against them both so against the Survivor the heir of one of them and if they had both dyed against both their heirs so as it differs from an Obligation personal which onely binds the Survivor Fifthly that the Writ was well brought for the things as they are in truth without naming of them according to the Deed. Sixthly that if there be new Buildings of which the Warranty is demanded which were not at the time of the Warranty made and after the Deed is shewed the Defendant shall not have any benefit by Demurring upon it But if he will be aided he ought for to shew the special matter and enter into the Warranty for so much as was at the time of the making of the Deed and not for the residue Vide Fitz. Warrantia Charta 31. Seventhly that a Warrantia Charta doth not lye of a piece of Land no more then a Praecipe quod reddat nor of a Selion of Land Mich. 5. Jacobi in the Kings Bench. 198 AN Action upon the Case was brought for these words viz. Thou hast spoken words that are treason and I will hang thee for them It was adjudged by the whole Court that the words were actionable Mich. 5. Jacobi in the Kings Bench. 199 A Man was bound to pay twenty pound to another when he should
grant of the Reversion was not within the Statute for the Statute is that the grantee shall have such remedy as the said Lessors or Grantors themselves or their heirs or successors should have had so as the Statute shall be intended of a Reversion in Fee for the Statute doth not provide but in case where heirs or successors shall have Action and not in case where the Action doth belong to Executors For the second point he relyed upon Mallories Case where it is said that the Tenant is to have notice of the Assignement of the Reversion Cook Chief Justice I hold that the Assignee of the Reversion for years in this Case shall have an Action of Covenant by the Statute It was Leonards Case in the time of the Lord Dyer when I was a Reporter in this Court In Leonards Case Lessee for years leased over part of the Term upon condition which is so much as a Covenant and afterwards granted the Reversion and it was ruled that the grantee might enter for the condition broken and the reason as I remember was because that Executors are named in the Statute but I will not charge my memory with the reason but I am well assured that the Case was ruled as I have said Dodderidge It is so that within the Statute Executors are named but not the Executors of him who hath the Reversion but onely the Executors of the Lessee and therefore the naming of Executors in the Statute doth not make against us But the Lord Cook said What answer you to Leonards Case For the third point Cook Chief Justice and Foster Justice held that there needed not any notice in this Case because there is not any Penalty in the case as was in Mallories case For there was a condition Warbarton Justice I doubt the first point for he who bringeth the Action upon the Statute ought to have the whole Reversion and so is Winters case in Dyer 309. Cook and Foster said It needs not that he who is to take advantage by this Statute should have the whole Reversion for it hath been adjudged That if the Reversion be granted in tail that the grantee shall take advantage of this Statute and shall enter for the condition broken Pasch 8. Iacobi in the Common Pleas. 228 CANDICT and PLOMER's Case THe Parishoners had used time out of memory of man c. to chuse the Parish Clark of the Church of St. Austins in Canterbury and the old Clark being dead they chose a new Clark and the Parson by force of a new Canon chose another man for the Clark upon which the Clark chosen by the Parishoners was sued in the Spiritual Court and he had a Prohibition And afterwards he was sued again in the Spiritual Court for setting of the Bread upon the Communion Table and for singing in another Tune then the Parishoners and the other Clark did and was deprived by Sentence there Haughton Serjeant moved for a Prohibition and said that although the last Suit in the Spiritual Court was not directly for the using of the Office of Clark yet by the matters contained in the Libell it is drawn in question whether he were lawfull Clark or not and therefore prayed a Prohibition Cook You shall have a Prohibition for the Canon is against the common Law For particular customs are part of the common Law and said that the Canon Law would not endure Gun-shot And he said that by the Suit in the Spiritual Court they would examine whether he were a Lawfull Clark or not For if he be a Lawfull Clark then he hath good authority to set the Bread upon the Communion Table Haughton But what shall we do for we are deprived by Sentence given there Cook There is no question but that the Prohibition lyeth notwithstanding the Sentence there and for the Deprivation it is meerly void For the Clarkship is a Lay Office and may be executed by a Lay Man and therefore the Ordinary hath no power to deprive him But he may have an Action as Clark notwithstanding the Deprivation for so is the Book in 8. Ass 29. for an Hospital And I wish that an Information be drawn against them for holding plea of a thing which is a meer Lay thing as it was in temps H. 8. Br. Cases Walmesley Justice The Office is Lay and the Deprivation by the Ordinary is void For he cannot deprive him because he hath nothing to do in the Election and a Prohibition was granted At another day the Case was moved again and the Court was of the same opinion that the Clark could not be deprived because the Clarkship was a Lay Office And 3. E. tit Annuity 40. was cited and 18. F. 3. Where a Formedon was brought of the Office of Serjeancy of the Church of L. But Cook said the same day in another case which was moved in Court and gave it for a rule that after Sentence given in the Spiritual Court he would not grant a prohibition if there were not matter apparent within the proceedings For I will not allow that the party shall to have a Prohibition shew any thing not grounded on the Sentence to have a Prohibition because he hath admitted of the Jurisdiction and there is no reason for him to try if the spirituall Court will help him and afterwards at the common Law to sue forth a Prohibition All which was agreed by the whole Court Pasch 8. Jacobi in the Common Pleas. 229 A Writ of Estrepment was granted in Waste because that for Waste done pendant the Writ the Plaintiffe cannot recover damages Per totam Curiam Pasch 8. Jacobi In the Common Pleas. 230 PITS and WARDAL's Case PIts the Butler of Lincolnes-Inne brought an Action of Debt against Wardall and declared upon a Bond with Condition indorsed for the performance of an Arbitrement The Defendant pleads in barre That the Arbitrators nullum fecerunt arbitramentum the Plaintiffe replied That they did make an Arbitrement viz. That the Defendant and one of the Arbitrators should enter into a Bond of eight pound to the Plaintiffe And that after the Bond entred into that the Plaintiffe and Defendant should release all Actions each to other and said That the Defendant and the Arbitrator did not enter the Bond to the Plaintiffe The Defendant did maintain his barre viz. quod nullum fecerunt arbitramentum upon which issue was joyned and it was found for the Plaintiffe Dodderidge for stay of judgement said That upon the Plaintiffes own shewing it appeareth That the Arbitrament is void for the Arbitrament is that a stranger viz. one of the Arbitrators should enter Bond and also that after the Bond entred into That the Plaintiffe should release all actions whereby the Bond should be released and therefore it was void and a void arbitrament is no arbitrament It was admitted by the Court that the arbitrament was void as to the Bond to be entred into by the Arbitrator and also that it was void as
to the extinguishment of the Bond by the release of all Actions But the Court conceived That the Arbibitrament did consist of two matters which were distinct and might be severed For although that the Arbitrament be void as to one matter yet it shall stand good and shall be a good Arbitrament for the other matter And Foster Justice said That in that case the Award to make the Release might be severed viz. That it should be good for all Actions except the Bond. Cook contrary And said That it is so entire that it cannot be divided But the Court conceived That the Arbitrament was good as to the Bond to be made by the Defendant although it were void as to the Arbitrator At another day Dodderidge said That the Plaintiffe had not alledged any Breach of the Arbitrament for he hath put it That the Defendant and the Arbitrator had not entred into the Bond and although they two joyntly had not entred into the Bond yet it might be that the Defendant alone had entred into the Bond and it needed not that the Arbitrator enter the Bond for as to him the Arbitrament was void And that Exception was allowed as a good Exception by the whole Court. For they said That the Plaintiffe ought for to shew and alledge a breach according to the Book of L. 5. E. 4. 108. And they said That although it be after verdict yet it is not remedied by the Statute Pasch 8. Jacobi in the Common Pleas. 231 FOLIAMBES Case IN a Writ of Dower brought by the Lady Foliambe It was agreed by the whole Court That if the Husband maketh a Lease for years rendring rent and dieth the wife shall recover her Dower and shall have present Execution of the Land and thereby she shall have the third part of the Reversion and of the Rent and execution shall not cease And all the Justices said That the Sheriffe should serve execution of the Land as if there were not any Lease for years for it may be that the Lease for years is void And although it be shewed in pleading that there is a Lease for years the wife cannot answer to it and it may be there is not any Lease and therefore the Execution shall be generall And he who claimes the Lease for years may re-enter into the Land notwithstanding the Recovery and the Execution of the Dower And if he be ousted he shall have his Action Nichols Serjeant who was of Councell against the Demandant said That he would agree that the Case in Perkins 67. was not Law But the Justices said That there is a difference betwixt the Case of Perkins and this Case for in the Case in Perkins the Husband had but an estate in Remainder so as no rent or attendancy was due so as the wife during that Term could not have any benefit Also in this case it was agreed by the Court That after judgement for part the Demandant might be Non-suit for the residue and yet have execution of that part for which he had judgment Pasch 8. Jacobi in the Common Pleas. 232 RAPLEY and CHAPLEIN's Case IT was ruled by the whole Court That if a Custome be alledged That the eldest daughter shall solely inherit that the eldest sister shall not inherit by force of that Custome So if the Custome be That the eldest daughter and the eldest sister shall inherit the eldest Aunt shall not inherit by that Custome And so if the Custome be that the youngest son shall inherit the youngest brother shall not inherit by the Custome And Foster Justice said That so it was adjudged in one Denton's Case Pasch 8. Jacobi in the Common Pleas. 233 SEAMAN's Case BArker Serjeant prayed the opinion of the Court in this Case Lessee for an hundred years made a Lease for forty years to Thomas Seaman if he should live so long and afterwards he leased the same to John his son Habendum after the Term of Thomas for 23. years to be accounted from the date of these presents The Question is If the Lease to John shall be said to begin presently or after the Term of Thomas And the Justices were cleer of opinion That the Lease to John shall not be accounted from the time of the date but from the end of the Term of Thomas because that when by the first words of the Limitation it is a good Lease to begin after the Term of Thomas it shall not be made void by any subsequent words And Cook Chiefe Justice said That this is no new reason for there is the same reason given in 2. E. 2. Grants And he put the Case in Dyer 9. Eliz. 261. and said That if the Limitation be not certain when the Term shall begin it shall be taken most beneficiall for the Lessee Pasch 8. Jacobi in the Common Pleas. 234 WARD and POOL's Case AN Action upon the Case was brought for speaking these words Thou mayest well be richer then I am for thou hast coined thirty Shillings in a day thou art a Coiner of money c. I will justifie it It was moved in arrest of Judgment That the words were not Actionable because he might have a good Authority to coine Money for men who work in the Mint are said to coine Money and are called Coiners of Money And so it was adjudged Quod Querens nihil capiat per Billam Pasch 8. Jacobi in the Common Pleas. 235 CHALK and PETER's Case CHalk brought a Replevin against Peter the Defendant did avow the taking as Bailiff of Sir Francis Barrington in sixteen Acres of wood in Hatfield Chase and shewed that an Arbitrament was made by the Lord Burghley late Lord Treasurer betwixt the Lord Rich and the Ancestors of Sir Francis by which it was awarded That the said Ancestors of the said Sir Francis Barrington and his Heirs should have the herbage of a certain number of Acres within the said Chase and also that he should have to him and his Heirs the Trees and Bushes of the said number of Acres within the said Chase and that he might fell and cut sixteen Acres every year of the said Acres and that he should enclose them according to the Laws and Statutes of the Realm and that Assurance was made by the Lord Rich accordingly and that the same was confirmed by a speciall Act of Parliament with a saving of the right and interest of all strangers and said That Sir Francis Barrington did inclose and cut down sixteen Acres and did enclose the same and there took the Defendants cattel Damage feasants upon which the Defendant did demurr in Law The Question in the case was If by the Statute of 22. E. 4. cap. 7. or the Statute of 35. H. 8. câ—p 17. which give Authority to make inclosures of Woods the Commoner shall be excluded Harris Serjeant I conceive That the Commoner shall be excluded by the Statute of 22. E. 4. cap. 7. which gives Authority to inclose and exclude all Beasts and
Statute to enclose For the Statute is When any man fels trees in his proper soile so that he not being owner of the ground he is not within the Statute and that was the effect of his argument And as to the other point he did not speak at all Cook chief Justice I hold that the plaintiffe ought to have judgment all the matter doth consist upon the Statute of 22. E. 4. which is to be considered And first is to be considered what was the common Law before that Statute and that was That one who had a Wood within a Forrest might fell it as it appeareth by the Statute de Forresta and the Statnte of 1 E. 3. 2. by licence and also he might enclose it for three yeers as it appeareth by the Statute of 22. E. 4. but the enclosure was to be cum parvo fossato haia bassa as it appeareth by the Register in the Writ of Ad quod damnum so as before that Statute there was an enclosure But the Law is cleer That before that Statute by the enclosure the Commoner shall not be excluded Then wee are to consider of the Statute And first Of the persons to whom the Statute doth extend and that appeareth by the preamble to be betwixt the King and other owners of Forrests and Chases and the owners of the Soil so as a Commoner is not any person within the meaning of the Statute And for the body of the Statute you ought to intend that the sentence is continued and not perfected untill the end of the Statute and the words Without licence c. prove That no persons were meant to be bounden by the statute but the Owners of the Forrests and Chases and not the Commoners Like the case in Dyer And although you will expound the words of the bodie of the Statute generally yet they shall be taken according to the intent of the preamble and therefore the Case of 21. H. 7. 1. of the Prior of Castleacre although it be not adjudged in the Book yet Judgment is entred upon the Roll which Case is Pasch 18. H. 7. Rot. 460. By which case it appeareth that although that a Statute be made which giveth Lands to the King yet by that statute the Annuity of a stranger shall not be extinguished And the Case which hath been put by Justice Foster upon the Statute of 18. Eliz. was the case of Boswel for the Parsonage of Bridgwater That although that one who hath a lease for years of the King which was void for misrecitall might by the said Statute hold it against the King yet the Patentee in Fee shall not be prejudiced by the said Statute So I conclude That the Commoner is not a person within this Statute of 22. E. 4 Secondly It is to be considered if a Wood in which any one hath Common be within the Statute and I hold it is not but onely severall Woods For as I have said the Wood which before the Statute might be enclosed for three years was onely a severall Wood and not such a Wood in which any one had common And the statute of 22. E. 4. doth extend onely to such Woods which might be felled and enclosed for three yeers and I conceive contrary to my Brother Warburton That the Deer of the Forrest shall well enough be said to be beasts and cattell And whereas by the common Law before this statute the enclosure was onely to be as I have said cum parvo fossato haia bassa by which the Deer were not excluded now by this statute I hold that they may make great hedges to exclude aswell the Deer as other beasts And I agree with Justice Foster that if he will take advantage of the Statute that hee ought to have pleaded that first hee felled and afterwards enclosed and è contrà upon the Statute of 35. H. 8. scil that hee ought first to divide and afterwards to fell c. And also I agree with him that in that point the Statute of 35. H. 8. being contrary doth repeal the Statute of 22. E. 4. if by that Statute the Commoner shall be excluded But I am of opinion with my Brother Warburton cleerly That hee is a Vendee of the Trees and so within the Statute for it is not neeessary that in the Grant there be the word Sell or that money by given nor that it be a contract for a time onely and not to have cantinuance as it is in our case But he who hath the Trees to him and his heirs shall be said to be a Vendee well enough As to the other matter which hath been moved Whether the Statute of 22. E. 4 be a generall law or not I hold cleerly that we are to take knowledg of it although it be not pleaded because it concerneth the King for it is made for the Kings Forrests and of all the Acts made between the King and his subjects wee ought to take knowledg for so was Stowel's Case And also it was adjudged that wee ought to take knowledg of the act concerning the Creation of the Prince because it concerneth the King And Cook in his argument said That if there had not been a speciall proviosin for the Commoner in the Statute of 35. H. 8. the Commoner had not been excluded by that Statute And afterwards Judgment was entred for the plaintiffe Pasch 8. Jacobi in the Common Pleas. 236 NOte That it was holden by three of the Justices viz. Walmâ—sley Warburton and Foster Cook and Daniel being abâ—ent for law cleerly That a Tenant at will cannot by any custome make a Lease for life by licence of the Lord and that there cannot be any such custome for a lease for life as there is for a lease for years Pasch 8. Jacobi In the Common Pleas. 237 BERRY's Case NOte That upon an Evidence given to a Jury in a Case betwixt Berry and New Colledg in Oxford it was ruled by Walmesley Warburton Foster Justices in an Action of Trespass If it appear upon the Evidence that the plaintiff hath nothing in the land but in common with a stranger yet the Jury ought to finde with the Plaintiff and if the Defendant will have advantage of the Tenancy in common in the plaintiff he ought to have pleaded it Nichols Serjeant was very earnest to the contrary and took a difference where the Plaintiffe and Defendant are Tenants in common and where the Plaintiff is tenant in common with a stranger But he was over-ruled the action was an action of Trespass Quare clausum fregit c. Cook and Daniel were absent Pasch 8. Jacobi in the Common Pleas. 238 IT was holden by Walmesley Warburton and Foster Justices That if a Rent be granted to one and his heirs for the life of another man and the grantee dieth that his heir shall not be an occupant of the Rent And Foster said that the reason was because he cannot plead a Que estate of a Rent
And Warburton held that the heir should have the Rent as a Freehold descended and for that he cited 26. H. 6. Statham Recognizance But Foster said that he should not have the Rent at all Warburton and Walmesley doubted whether the Rent were devisable by the Statute and they said that although the heir should have it by descent yet it should not be in the nature of a descent of Inheritance for he should not have his Age. Cook and Daniel were absent Pasch 8. Iacobi in the Common Pleas. 239 HEYDON and SMITH's Case IN an Action of Trespass the Plaintiff declared of breaking of his Close and cutting down of a Tree viz. an Oak The Defendant pleaded that it was his Free-hold The plaintiff in his Replication shewed that he held of the Defendant by Coppy of Court Roll a Tenement whereof the place in question is parcell And that the Custome of the Manor is That all the Copy-holders within the Manor have used to take wood for house-bote hay-bote c. et pro ligno combustibili in dicto tenemento And said that he had alwayes preserved the wood and trees growing upon the said Tenement And that he had nourished and fostered the said Oake And that sufficient wood was not left upon the said Tenement for house-bote c. upon which the Defendant did demurre in Law Foster Justice Judgment ought to bee given for the plaintiff I hold that a Copy-holder of common right without any Custome shall have wood for Reparations and for fire-bote and so is 9. H. 4. Fitz. Wast 59. the opinion of Hall And I hold that the plaintiff hath an Interest in the Trees according to Palmers Case C. 5. part And 2. H. 4. 12. is That a Coppy-holder may bring An Action of Trespass for the Trees And I hold That without a Custome the Lord cannot fell the trees growing upon the Copy-hold no more then upon a Lease for years But in this Case by Implication of Custome the Lord may take the Trees if he leave sufficient for Reparations c. For the Custome is That a Copy-holder shall have sufficient for Reparations by which is implyed that he shall not have more and then the Rest the Lord shall have And I am of opinion that in this Case and in case where the trees are excepted upon a Lease that the Lord and the Lessor may enter and take the Trees although there be not any clause of ingresse or regresse But in the principall Case because there are not more Trees then are sufficient for Reparation the Lord cannot take them but Trespasse lieth against him Warburton Justice The matter of prescription is not materiall in this case for of common right a Copyholder ought to have Trees for Reparations and to that purpose he hath a speciall propertie But the onely question in this Case as I conceive is If one who hath a speciall property may bring an Action of Trespasse against him who hath the generall propertie And I conceive that he may well enough As if I lend my horse for a week and within the week I take him again Trespasse lieth Walmesley Justice For the substance I am of opinion for the Plaintiff but I doubt For I would not that Copyholders have so great libertie and he hath prescribed to take all trees and to take them ad libitum is too great a liberty And I hold that a Copyholder hath no greater property then one who ought to have Estovers And in this case hee ought to have said quando opus fuerit and he ought to have shewed that the houses were in decay for want of Reparations for which cause opus fuerat c. And so for the pleading I hold that it is not sufficient Cook chief Justice The Plaintiff ought to have Judgment For I hold cleerly That the Lord cannot take trees without leaving sufficient for Reparations no more then he can pull down or overthrow the house of the Copyholder For of common right without Custome or prescription the Trees do belong unto the Copyholder for Reparations and for that purpose hee may take them without any Custome and the Lord cannot take the Trees without leaving sufficient for the Copyholder if there be not a speciall Custome so to do But I hold that without any custome the Lord may take the Trees if he leave sufficient to the Copyholder for the Reparations Mich. 25. 26. Eliz Doylies Case A Copyholder who hath used to take Timber for Reparations brought an action of Trespasse Trinit 26. Eliz. An action of Trespasse was brought by a Copyholder against the Lord. Pasch 37. Eliz. the Case of Mutford Wood. Trinit 40. Eliz. Stebbings Case but there the action was an action upon the Case To the Exceptions taken by Justice Walmesley that the Plaintiff ought to have shewed that the houses wanted Reparations I hold as hee said That if the action had been brought against him and hee justifie the cutting hee ought to have shewed that the houses wanted Reparations But in our Case he brings the Action against another which lyeth although that the houses were not then in decay And for the signification of the word House-boot c. Bote is an ancient Saxon word which signifies in some case Recompence and in some case Reparatio For the manner of prescription That all the Tenants may take wood pro ligno combustibili in dicto Tenemento the same is no good prescription That all shall take to burn in that Tenement But for the reasons beforesaid Judgment was given for the Plaintiffe Pasch 8. Jacobi in the Common Pleas. 240 NEWTON and RICHARD's Case IT was ruled by the whole Court in an Action of Trespasse Quare clausum fregit cuniculos suos vel ipsius A. c. cepit c. was good Pasch 8. Jacobi In the Common Pleas. 241 MEERES and KIDOUT's Case UPon an Evidence to a Jury in this Case it was Ruled by the whole Court That if there be Copyholder for life and the Lord leaseth for years and the Copy-holder commit a forfeiture that the Lessee may enter for the forfeiture And Cooke Cheife Justice said That if there be Tenant for life the Remainder for life If the Tenant for life committeth a forfeiture he in the Remainder for life may enter and that the Case 29. Ass 64. is not Law For the particular estate in possession is determined by the forfeiture And if hee in the Remainder could not enter then it should be at the will of the Lessor whether hee should ever have it The same Law is if the Remainder be for yeers Foster Justice The reason that is given for an Entrie for a forfeiture is because that the Reversion or Remainder is devested by the Feoffment But in this Case because it is but interesse termini nothing is devested For notwithstanding the Feoffment the Interesse termini may be granted to which Cook agreed But Foster said that hee did agree in opinion with Cook
because that the particular estate was determined The cause of forfeiture was because that the Copiholder had made a lease for life Pasch 8. Iacobi in the Common Pleas. 242 Dr. NEWMAN's Case IN this Case it was said by Cook Chief Justice That it had of late time been twice adjudged that if Timber trees be oftentimes topped and lopped for fuell yet the tops and lops are not Tithable for the body of the trees being by law discharged of Tithes so shall be the branches and therefore he that cutteth them may convert them to his own use if he please Pasch 8. Jacobi In the Exchequer Chamber 243 KERCHER's Case AN Action upon the Case was brought in the Common Pleas upon a simple contract made by the Testator which afterwards came into the Exchequer Chamber before all the Judges Cook in the Common Pleas was of opinion that the Action would lie Tanfield Chief Baron said That in these cases of Equitie it were most reason to enlarge and affirme the Authoritie of the Common law then to abridge it and the rather because the like Case had been oftentimes adjudged in the Kings Bench and there was no reason as he said that there should be a difference betwixt the Courts and that it would be a Scandall to the Common Law that they differed in opinion Afterwards at another day the Case was moved in this Court And Walmesley Justice doubted if as before But Foster held that the Action was maintainable And Cooke desired that Presidents might be searched And he said That he could not be perswaded but if the Executor be adverred to have Assetts in his hands sufficient to pay the specialties but that he should answer the debt Note the money demanded was for a Marriage portion promised by the Testator Pasch 8. Jacobi in the Common Pleas. 244 ADAMS and WILSONS Case Note It was said That when a false Judgement passeth against the Defendant he may pray the Court that it be entred at a day peremtory so as he may have Attaint or a Writ of Error And Cook Chief Justice said That if Judgment in the principall Action be reversed the Judgment given upon the Scire facias shall also be reversed because the one doth depend upon the other Walmesley in this Case said That it had been the usual course of this Court That if one deliver a plea unto An Aturney of the Court as the Last Terme and it is not entred that now at another Terme the Defendant might give in a new plea if he would because the first is not upon Record Pasch 8. Iacobi in the Common Pleas. 245 CULLINGWORTH's Case IF one be bounden in an Obligation That he will give to J. S. all the Goods which were devised to him by his father in Debt brought upon such an Obligation the Defendant cannot plead that he had not any Goods devised unto him for the Bond shall conclude him to say the contrary Vide 3. Eliz. Dyer 196 Rainsford Case Pasch 8. Iacobi in the Common Pleas. 246 QUOD's Case QVod had Judgement in an Action upon the case at the Assizes and damages were given him to Thirty Pound Hutton Serjeant moved in Arrest of Judgement That the Venire facias was de duodecim and that one of them did not appear so as there was one taken de circumstantibus and the entry in the Roll was That the said Jurour exactos venit but the word Juratus was omitted And for that cause the Judgement was stayed Mich. 8. Jacobi in the Common Pleas. 247 STONE 's Case STone an Atturney of the Court was in Execution in Norfolk for One thousand Pound and by practice procured himself to be removed by Habeas corpus before Cook Chief Justice at the Assizes in Lent and escaped to London and in Easter Terme the Bailiffe took him again and he brought an Action of false Imprisonment against the Bailiffe and it was holden by the Court That the fresh Suit had been good although he had not taken him in the end of the year if enquiry were made after him and so by consequence the Action was not maintainable Mich. 8. Jacobi in the Star-Chamber 248 MARRIOT's Case NOte It was agreed in this Case for Law That the Sheriffe cannot collect Fines or issues after a generall pardon by Parliament and therefore one Thorald the under Sheriffe of N. who did so was questioned and punished in the Star-Chamber Mich. 8 Jacobi in the Common Pleas. 249 JOLLY WOOLSEY's Case JOlly Woolsey of Norfolk brought an Action of Trespass against a Constable of Assault and Battery and Imprisonment the Defendant as to the Assault and Battery pleaded Not guilty and justified the imprisonment by reason of a Warrant directed unto him by a Justice of Peace for the taking and to imprison the Plaintiffe for the keeping of an Ale-house contrary to the Statute 12 Feb. 5. El. whereas the Statute was 12 Feb. 5. Ed. 6. and the matter was found by speciall Verdict And it was holden by all the Justices That the misrecitall of the Act was not materiall for it being a generall Act the Justices ought to take knowledge of it And Cook Chief Justice said That a man cannot plead Nul tiel Record against an Act of Parliament although that in truth the Record be imbezelled if the Act be generall because every man is privy to it Mich. 8. Iacobi In the Common Pleas. 250 NEWMAN and BABBINGTON's Case IT was resolved in this Case That if Debt be brought against an Executor who pleads that he hath fully administred and it is found that he hath Assets to 40l. whereas the Debt is 60l l that a Judgement shall be given for the 60l. against the Defendant and upon that Judgment if more Assets come after to the Executors hand the Plaintiffe may have a Scire facias Mich. 8. Jacobi in the Common Pleas. 251 WALLER's Case NOte It was said by Cook Chief Justice That if the King present one to a Benefice and afterwards presenteth another who is admitted instituted and inducted the same is a good repeal of the first presentation And he said That if the Lord doth present his Villain to the Church the same is no enfranchisement of him for that presentation is but his commendation And if the King will present a French man or a Spaniard they shall not hold the Benefice within this Realm for that the same is contrary to a special Act of Parliament Mich. 9. Jacobi in the Common Pleas. 252 NOte It was holden by all the Justices That Perjury cannot be commited in the Court of the Lord of Copy-holds or in any Court which is holden by Usurpation otherwise is it in a Court Leet or Court Baron which is holden by Title Trinit 8. Jacobi in the Common Pleas. 253 BURY and TAYLOR's Case IN an Ejectione firme brought upon Not guilty pleaded by the Defendant it was given in Evidence to the Jury to this effect viz. That one J. S. who did
that a Man was seised of the Manor of D. and of a house called W. in D. and also of a Lease for years in D. and he did bargain and sell unto another his Manor of D. and all other his Lands and Tenements in Dale and in the indenture did covenant that he was seised of the premisses in Fee which was left out of the Verdict and if the Lease for years should pass by the general words was the question Quaere of the case because Trinit 10. Jacobi the Court was divided in opinion in this Case Mich. 9. Iacobi In the King 's Bench. 262 HUGHES and KEENE's Case THe Plaintiff declared that whereas he was possessed of a Messuage for years which had ancient lights and the Defendant possessed of another House adjoyning and a Yard that the Defendant upon the said Yard had built a House and stopped his lights The Defendant pleaded that the custom of London was that every man might build upon his old Foundation and if there be not any agreement might stop up the Windows of his Neighbour upon which the Plaintiff did demurre in Law and it was adjudged for the Plaintiff because that the Defendant did not answer the Plaintiffs charge that he had built upon the new and not upon the old Foundation And it was holden by the whole Court in this Case that a man may build upon an old Foundation by such a custom and stop up the lights of his Neighbour which are adjoyning unto him and if he make new Windows higher the other may build up his house higher to destroy those new Windows But a man cannot build a House upon a place where there was none before as in a Yard and so stop his Neighbours lights And so it was adjudged in the time of Queen Elizabeth in Althans Case upon such a custom in the City of York And it was said by Cook Chief Justice That one prescription may be pleaded against another where the one may stand with the other as it was adjudged in Wright and Wrights Case That a Copy-holder of a Bishop did prescribe that all Copy-holders within the Manor have been discharged of Tithes But not where one prescription is contrary to the other whereas one prescribes to have lights and the other prescribes to stop the same lights Quaere Hill 9. Iacobi in the King 's Bench. 263 SAMFORD and HAVEL's Case IN an Action of Trespass for 30. Hares and 300. Coneys hunted in his Warren taken and carried away which Trespass was layd with a continuando from such a time till such a time the Defendant justified because he had common in the place where c. to a Messuage six Yard Lands for 240. Sheep and that he and all those whose estate he hath time out of mind have used at such time as the Common was surcharged with Coneys to hunt them kill and carry them as to his Messuage appertaining upon which the Plaintiff did demurre in Law because a man cannot make such a prescription in the Free-Warren and Free-hold of another Man And secondly because a man cannot so prescribe to hunt kill and carry away his Coneys as pertaining to his Messuage But a Man may prescribe to have so many Coneys to spend in his House and for these causes in the principal case the prescription was holden for a void prescription and Judgment was given for the Plaintiff Hill 9. Jacobi in the Common Pleas. 264 COX and GRAY's Case IT was adjudged upon a Writ of Error brought upon a Judgment given in the Marshalsey in an Action of trover and conversion of goods That if none of the parties be of the Kings houshold and judgment be given there that the same is Error and for that cause the Judgment was reversed Hill 9. Iacobi in the Common Pleas. 265 MORRIS's Case IN an Action upon the case for putting of cattel upon the common it was adjudged that if the cattel of a Stranger escape into the common the Commoner may distrain them damage feasance as wel as where the cattel are put into the common by the stranger Pasch 10. Jacobi in the Common Pleas. 266 The Lord MOUNTEAGLE and PENRUDDOCK's Case IT was holden by the whole Court in this case and agreed by all the Serjeants at the Barre That if two men submit themselves to the arbitrament of I. S. And the Arbitrator doth award that one of them shall pay ten pound and that the other shall make a release unto him that the same is a void Award if the submission be not by Deed and hee to whom the Release is to be made by the Award may have remedy for it for otherwise the one should have the ten pound and the other without remedy for the Release And it was resolved That upon submission and arbitrament that the party may have an Action upon the Case for not making of the Release And Cook chief Justice said That it was wisely done by Manwood chiefe Baron when he made such award That a Lease or such like Collaterall thing should be done To make his Award that he should make the Release or pay such a sum of money for which the party might have a remedy I conceive that the reason is That no Action upon the case upon an Arbitrament lieth because it is in the Nature of a Judgement At another day the opinion of the Court was with Cook and 20. H. 6. and 8. E. 4 5. cited to the purpose that there ought to be reciprocall remedy It was also said in this Case That by the Statute of 5. H. 5. A man cannot be Nonsuit after verdict Pasch 10. Jacobi In the Common Pleas. 267 COOK and FISHER's Case IN a Replevin the Defendant did avow for rent granted to him by a private Act of Parliament The Plaintiffe did demand Oyer of the Act and the opinion of the Court was that he ought to have Oyer for they held that the Oyer of no Record shall be denied to any person in case he will demurre And the Record of the Act shall be entred in haec verba Pasch 10. Jacobi in the Common Pleas. 268 The Bakers Case of Gray's-Inne against Occould AN Action of Debt was brought in London against Occould late Steward of Gray's-Inne upon a generall indebitatas assumpsit without shewing the particulars which plea was removed into the Common Pleas. And it was holden by the Court That the Action as it was brought would not lie for the inconvenience which might follow For the Defendant should be driven to be ready to give an answer to the Plaintiffe to the generality And therefore the Plaintiffe ought to bring a speciall Action for the particular things The like Case was in the Marshalsey and because they did not declare in a speciall manner Exception was taken to it and adjudged the Action upon a generall Indebitatas assumpsit did not lie Quaere Trinit 10. Jacobi in the Common Pleas. 269 READ and HAWE's Case IN a Replevin Trinit
in Ward For Cook Chief Justice said that all Offices which are found to deceive the Crown of such an ancient flower of the Crown as Wardship should be void as to that purpose and most beneficial for the King And he cited the Case in 36. H. 8. Where the Kings Tenant made a Feoffment and took back an estate unto himself for life the Remainder to his Grand-child for 80. years and died that in that Case the Heir was in Ward and they said that in the case at Barre the Heir had power of the Inheritance upon payment of five Shillings and if the Lease for years be found and proved by witnesses yet it carrieth with it the badges of fraud And Tanfeild Chief Baron said that if a Lease for 100. years shall be accounted Mortmain à fortiori this Lease for 1000. years shall be taken to be made by fraud and collusion And Cook said that the Lord Chancellour of England would not relieve such a Lessee in Court of Equity because the begining and ground of it is apparant fraud Note the lands did lye in Springfield in Essex Trinit 10. Jacobi in the Common Pleas. 274 MEADES Case AN Action of Debt was brought upon a Bond against Meade who pleaded that the Bond was upon condition that if he paid ten pound to him whom the Obligee should name by his last will that then c. and said that the Obligee made his Will and made Executors thereof but did not thereby name any person certain to take the ten pound Sherley Serjeant moved that the Executors should have the ten pound because they are Assignees in Law as it is holden in 27. H. 8. 2. But the whole Court was of opinion that the Executors were not named in the Will for such a purpose viz. to take the ten pound For they said It is requisite that there be an express naming who shall take the ten pound otherwise the Bond is saved and not forfeited And Cook put this Case If I be bounden to pay ten pound to the Assignee of the Obligee and his Assignee makes an Executor and dieth the Executor shall not have the ten pound But if I be bounden to pay ten pound to the Obligee or his Assignees there the Executor shall have it because it was a duty in the Obligee himself the same Law if I be bound to enfeoffe your Assignees c. Wherefore it it was adjudged for the Defendant Trinit 10. Jacobi in the Common Pleas. 275 GREENWAY and BAKER's Case IT was moved and afterwards resolved in the Case of a Prohibition prayed to the Court of Admiralty That if a Pirat taketh goods upon the Sea and selleth them that the property of them is changed no more then if a theife upon the Land steales them and selleth them And in this Case it appeared by the Libell That bona piratica fuerint infra Portam Argier super altum mare And for that cause a Prohibition was denied because Argier being a forrain Port the Court could not take notice whether there were such a place of the Sea called the Port or whether it were within the Land or not Afterwards upon the mediation of the Justices the parties agreed to try the cause in the Guild-hall in London before the Lord Chiefe Justice Cook Trinit 10. Jacobi in the Common Pleas. 276. Sir FRANCIS FORTESCUE and COAKE's Case UPon an Evidence in an Ejectione firme betwixt the Plaintiffe and Defendant The Court would not suffer Depositions of witnesses taken in the Court of Chancery or Exchequer to be given in Evidence unlesse affidavit be made that the witnesses who deposed were dead And Cook Chiefe Justice said nullo contradicente That it is a principall Challenge to a Jurour That he was an Arbitrator before in the same case because it is intended that he will incline to that partie to which he inclined before but contrary is it of a Commissioner because he is elected indifferent And it was also said in this Case That one who had been Solicitor in the Cause is not a fit person to be a Commissioner in the same Cause Trinit 10. Jacobi in the Common Pleas. 277 BArker Serjeant in Arrest of Judgement moved That the Venire facias did vary from the Roll in the Plaintiffs name for the Roll was Peter Percy and the Venire facias John Percy and the postea was according to the Roll which was his true name The Court doubted whether it might be amended or whether it should be accounted as if no Venire facias had issued because it is betwixt other parties But it was holden That in case no Venire facias issueth the same is holpen by the Statute of Jeofailes and in this case it is in effect as if no Venire facias had issued forth and so it was adjudged And Cook Chiefe Justice said that if there be no Venire facias nor habeas Corpora yet if the Sheriffe do return a Jury the same is helped by the Statute of Jeofailes Warburton Justice contrary vide C. 5. part Bishops case And Harris Serjeant vouched Trinit 7. Jacobi Rot. 787. in the Exchequer Herenden and Taylors case to be adjudged as this Case is Trinit 10. Jacobi in the Common Pleas. 278 BROWN's Case IT was holden by the whole Court in this case That if a man hath a Modus Decimandi for Hay in Black-acre and he soweth the said acre seven years together with corn that the same doth not destroy the Modus Decimandi but the same shall continue when it is again made into hay And when it is sowed with corn the Parson shall have tithe in kind and when the same is hay the Vicar shall have the tithe hay if he be endowed of hay Trinit 10. Jacobi in the Common Pleas. 279 JAMES and RATCLIFF's Case IN Debt upon a Bond to perform such an agreement The Defendant pleaded Quod nulla fuit conclusio-sive agreeamentum The Plaintiff said Quod fuit talis conclusio agreeamentum de hoc ponit se super patriam The Court held the same was no good issue because a Negative and an Affirmative Trinit 10. Jacobi in the Common Pleas. 280 WETHERELL and GREEN's Case IT was said by the Pronothories That if a Nihil dicit be entred in Trinity Term and a Writ of Enquiry of Damages issueth the same Term that there needs not any continuance but if it be in another Term it is otherwise The Court said If it were not the course of the Court they would not allow of it but they would not alter the course of the Court the words of continuance were Quia vicecomos non misit brev Trinit 10. Jacobi in the Common Pleas. 281 PARROT and KEBLE's Case A Man levied a Fine unto the use of himself for life the remainder in tail c. with power reserved to the Conusor to make Leases for eighty years in Possession or Reversion if A. B. and C. did so long live reserving the ancient rent
afterwards he granted the Reversion for eighty years reserving the ancient rent The question was Whether he had pursued his Authority because by the meaning of the Proviso a Power was That the Conusor should have the rent presently or when the Term did begin But the opinion of the Court was That he had done lesse then by the Proviso he might have done for this Grant of the Reversion doth expire with the particular estates for life But if he had made a Lease to begin after the death of the Tenants for life the same had been more then this grant of the Reversion And Cook chief Justice said That the Grantor may presently have an Action of debt against the Grantee of the Reversion for the rent But because it was not averred that any of the Cestuy que viei were alive at the time when the Grantor did distrain for the rent Judgement in the principall case was respited Trinit 10. Jacobi in the Common Pleas. 282 UPon the Statute of Bankrupts this Case was moved to the Court If a Bankrupt be endebted unto one in Twenty Pounds and to another in Ten Pounds and he hath a Debt due to him by Bond of Twenty Pounds Whether the Commissioners may assigne this Bond to the two Creditors jointly or whether they must divide it and assigne Twenty Marks to the one and Twenty Marks to the other And the Court was of opinion That it was so to be divided as the words of the Statute are viz to every Creditor a portion rate and rate like c. And then it was moved How they might sue the Bond whether they might joine in the Suit or not ad quod non fuit responsum by Cook Warburton Justice said That when part of the Bond is assigned to one and part to another that now the Act of Parliament doth operate upon it and therefore they shall sue severally for he said That by the custome of London part of a debt might be attached And therefore he conceived part might be sued for Trinit 10. Jacobi In the Common Pleas. 283 SPRAT and NICHOLSON's Case SPrat Sub-Deacon of Exeter did libel in the Spiritual Court against Nicholson Parson of A. pro annuali pensione of Thirty Pound issuing out of the Parsonage of A. and in his Libel shewed How that tam per realem compositionem quam per antiquam laudabilem consuetudinem ipse predecessores sui habuerunt habere consueverunt praedictam annualem penfionem out of his Parsonage of A. Dodderidge Serjeant moved for a Prohibition in this Case because he demands the said Pension upon Temporall grounds viz. prescription and reall composition But Cook Chief Justice and the other Justices were of opinion That in this Case no Prohibition should be granted for they said That the party had Election to sue for the same in the Spirituall Court or at the common Law because both the parties were Spirituall persons but if the Parson had been made a party to the Suit then a Prohibition should have been granted Vide Fitz. Nat. Brev. 51. b. acc And they further said That if the party sueth once at the common Law for the said Pension that if he afterwards sue in the Spirituall Court for the same that a Prohibition will lie because by the first Suit he hath determined his Election And Cook cited 22. E. 4. 24. where the Parson brought an Action of Trespass against the Vicar for taking of Under-Woods and each of them claimed the Tithes of the Under-Woods by prescription to belong unto him and in that Case because the right of the Tithes came in question and the persons were both of them Spirituall persons and capable to sue in the Spirituall Court the Temporal Court was ousted of Jurisdiction But he said That if an issue be joined whether a Chappel be Donative or Presentative the same shall be tryed by a Jury at the common Law And in this case it was said by the Justices That the Statute of 34. H. 8. doth authorize Spiritual persons to sue Lay-men for Pensions in the Spiritual Courts but yet they said That it was resolved by all the Judges in Sir Anthony Ropers case That such Spiritual persons could not sue before the High Commissioners for such Pensions for that Suits there must be for enormious Offences only And in the principall case the Prohibition was denyed Trinit 10. Jacobi in the Common Pleas. 284 Sir BAPTIST HIX and FLEETWOOD and GOT's Case FLeetwood and Gots by Deed indented did bargain and sell Weston Park being three hundred Acres of Lands unto Sir Baptist Hix at Eleven Pound for every Acre which did amount in the whole to Two thousand five hundred and thirty Pounds and in the beginning of the Indenture of Bargain and Sale it was agreed betwixt the parties That the said Park being much of it Wood-land should be measured by a Pole of eighteen foot and a halfe And further it was covenanted That Fleetwood and Gots should appoint one Measurer and Sir Baptist Hixe another who should measure the said Park and if upon the measuring it did exceed the number of Acres mentioned in the Indenture of Sale that then S. Baptist Hixe should pay to them acording to the proportion of 11l. for every Acre and if it wanted of the Acres in the deed that then Fleet ' and Gots should pay back to S. Baptist the surplusage of the mony according to the proportion of 11. l. for every Acre And upon this Indenture Sir Baptist Hixe brought an Action of Covenant against Fleetwood and Gots and assigned a Breach that upon the measuring of it it wanted of the Acres mentioned in the Deed 70 Acres And upon the Declaration the Defendants did demurre in Law and the cause of the Demurrer was because the Plaintiff did not shew by what measure it was measured And therefore Sherley Serjeant who was of Councel with the Defendants said that although it was agreed in the beginning of the Deed that the measure should be made by a Pole of 18 feet and a half Yet when they come to the covenants there it is not spoken of any measure at all and therefore he said it shall be taken to be such a measure which the Statute concerning the measuring of Lands speaks of viz. a measure of sixteen foot and a half to the Pole and he said that by such measure there did not want any of the said three hundred Acres mentioned in the Deed. Dodderidge Serjeant contrary for the Plaintiff and he layed this for a ground That if a certainty doth once appeare in a Deed afterwards in the same Deed it is spoken indefinitely the same shall be referred to the first certainty and to that purpose he vouched the case in Dyer Lands were given by a Deed to a man haeredibus masculis and afterwards in the same Indenture it appeared that it was haeredibus masculis de Corpore and therefore it was holden but an estate in
tail because the first words were indefinite and the later words were certain by which his intent did appeare to pass but an estate in tail He also cited 4. E. 4. 29. B. The words of an Obligation were Noverint universi per praesentes me I. S. teneri c. W. B. in ten pound solvendum eidem I. And it was holden by the whole Court that the same did not make the Bond to be void because it appeared by the promises of the Bond to whom the mony was in Law to be paid and the intent so appearing the Plaintiff might declare of a solvendum to himself and the word I should be surplusage And 22. E. 4. 9. A. B. The Abbot of Selbyes case Where the Abbot of Selby did grant annualem pensionem to B. ad rogatum I. E. illam scilicet quam I. E. habuit ad terminum vitae suae solvendum quousque sibi c. de beneficio provisum fuerit and it was holden by the whole Court in a Writ of annuity brought that sibi did referre to B. the grantee and not to I. E. And Cook Chief Justice said that the original Contract doth leade the measure in this Case and to that purpose he cited Kiddwellies case in the Commentaries where a Lease was made rendring Rent at Mich. at D. and if it were behind by a month after demand that the Lessor might reenter the demand must be at the first place which is in that case alledged to be certain viz. at D. The case was adjorned Trinit 10. Jacobi in the Common Pleas. 285 Sir Henry Lea and Henry Leas Case SIR Henry Lea was committed to the Fleet for the disobeying of a Decree made in the Court of Requests and having Suits depending in the Court of Common Pleas he prayed a Writ of habâ—as Corpus which was granted and upon the return of the Writ the cause of his Commitment appeared to be for a contempt for not performing of the said Decree and no other cause appeared in the return and the Court were of opinion that they could not deliver him because that no cause appeared in the return to warrant their delivery of him And the Court said that if the return be false yet they cannot deliver the party But the party may have his Action of false Imprisonment if the Imprisonment be not Lawfull But then it was shewed by Mountague Serjeant to the Court that the Decree was made in the Court of Requests upon a Bill containing this matter viz. That Henry Lea pretending Title unto Lands which Sir Henry Lea held by descent from his Unkle Sir Henry Lea shewed his Title to the Kings Majestie and thereupon the King upon the Petition of Henry Lea sends for Sir Henry Lea and had speech with him that he would give unto the said Henry Lea some recompence for his Title which he pretended to have to the said Lands And that thereupon the said Sir Henry Lea at the instance of the Kings Majestie did promise the King that if the said Henry Lea would not molest him for any of the said Lands which he had by descent from his said Unkle that then he the said Sir Henry Lea would give unto the said Henry Lea two hundred pound per Annum And for not performance of this promise made to the King Henry Lea Exhibited his Bill in the Court of Requests upon which the said Decree was grounded The said Sir Henry Lea answered that he did not know of any such promise he made to the Kings Majestie and pleaded to the Jurisdiction of the Court But upon a Certificate made by the Kings Majestie that he made such a promise unto him the Court of Requests made the said Decree which Certificate was mentioned in the body of the said Decree And Mountegue prayed that because it appeared that the said Henry Lea had remedy by way of Action upon the case at the common Law upon the said promise That this Court would grant a Prohibition in this case unto the Court of Requests and deliver the party from his Imprisonment But the Court said that they would advise of the Case because they never had heard of the like case But Cook Chief Justice advised Sir Henry Lea to agree the matter betwixt Him and his Kinsman Henry Lea For he said that he had learned a Rule in his youth which was this viz. Cum pare luctare dubium cum Principe stultum est Cum puero poena cum Muliere pudor Trinit 10. Jacobi in the Common Pleas. 286 GARVEN and PYM's Case GArven libelled against Pym for a Seat in the Church before the Bishop of Exeter in the spiritual Court there which by Appeal was removed into the Court of Arches And the Defendant did surmise in the Court of Common Pleas That he and his Ancestors have used time out of mind c. to have an Isle with a seat in the said Church for himself and his family and thereupon prayed a Prohibition But because it did appear upon Examination of the party himself That the Parish have alwayes used to repair the said Isle and seat the Court would not grant a Prohibition in this case for that proves that his Ancestors were not the Founders of the said Isle and Seat Also another man hath alwayes used to sit with him in the same seat which also proves that it doth not belong to him alone Cook chief Justice said That if a Gentleman with the assent of the Ordinary hath built an Isle juxta Ecclesiam for to set convenient Seats for him and his family and hath alwayes repaired the same at his own costs and charges In such case if the Ordinary place another man with the Founder without his consent in the same Seat that he may have his Action upon the Case against the Ordinary And if he be impleaded in the spirituall Court for such Seat that a Prohibition will lie And he said That the Heydons in Norfolk have built such an Isle next to the Church and placed convenient Seats there for them and their family But he said That if a man with the assent of the Ordinary set up a Seat in navi Ecclesiae for himselfe and another man doth pull up the same or defaceth it Trespas vi armis will not lie against him because the Freehold is in the Parson and he hath no remedy for the same but to sue the party in the Ecclesiastical Court And 9. E. 4. 14. the Dame Wiches Case was vouched where she brought an Action of Trespasse against the Parson for taking away her Husbands Coat-armour which was fixed to the Church at his Funerall and it was adjudged that the Action would lie and so will an Action in such case brought by the heir And Cook said That the Ordinary hath the onely disposing of Seats in the Body of the Church with which agrees the opinion of Hassey in 8. H. 7. And if the Ordinary long time past hath granted to a
man and his heirs such Seat and he and his heirs have used to repair the said Seat If another will libell against him in the Spirituall Court for the same Seat he shall have a Prohibition And he said That he had seen a Judgement in 6. E. 6. That if Executors lay a Grave Stone upon the Testator in the Church or set up his Coat-armour in the Church If the Parson or Vicar doth remove them or carry them away that they or the heir may have their Action upon the Case against the Parson or Vicar Note in the principall no Prohibition for the reasons before Trinit 10. Jacobi in the Common Pleas. 287 The Archbishop of York Sedgwick's Case THe Archbishop of York and Doctor Ingram brought and exhibited a Bill in the Exchequer at York upon an Obligation of seven hundred pound and declared in their Bill in the nature of an Action of Debt brought at the common Law which matter being shewed unto the Court of Common Pleas by Sedgwick the Defendant there A Prohibition was awarded to the Archbishop and to the said Court at York And Cook chief Justice gave the reasons wherefore the Court granted the Prohibition 1. He said because the matter was meerly determinable at the common Law and therefore ought to be proceeded in according to the course of the common Law 2. Although the King hath granted to the Lord President and the Councel of York to hold pleas of all personall Actions yet he said they cannot alter the form of the proceedings For as 6. H. 7. 5. is The King by his Grant cannot make that inquirable in a Leet which was not inquirable there by the Law nor a Leet to be of other nature then it was at the common Law And in 11. H. 4. it is holden That the Pope nor any other person can change the common Law without a Parliament And Cook vouched a Record in 8. H. 4. That the King granted to both the Universities that they should hold plea of all Causes arising within the Universities according to the course of the Civil Law and all the Judges of England were then of opinion That that grant was not good because the King could not by his Grant alter the Law of the Land with which case agrees 37. H. 6. 26. 2. E. 4. 16. and 7. H. 7. But at this day by a speciall Act of Parliament made 13. Eliz. not printed The Universities have now power to proceed and judge according to the Civil Law 3. He said That the Oath of Judges is viz. You shall do and procure the profit of the King and his Crown in all things wherein you may reasonably effect and do the same And he said That upon every Judgement upon debt of forty pound the King was to have ten shillings paid to the Hamper and if the debt were more then more But he said by this manner of proceeding by English Bill the King should lose his Fine 4. He said That if it was against the Statute of Magna Charta viz. Nec super eum ibimus nec super eum mittemus nisi per legale judicium parium suorum vel per legem terrae And the Law of the Land is That matters of fact shall be tried by verdict of twelve men but by their proceedings by English Bill the partie should be examined upon his oath And it is a Rule in Law That Nemo tenetur seipsum prodere And also he said That upon their Judgement there no Writ of Error lyeth so as the Subject should by such means be deprived of his Birth-right 5. It was said by all the Justices with which the Justices of the King's Bench did agree That such proceedings were illegall And the Lord Chancellor of England would have cast such a Bill out of the Court of Chancery And they advised the Court of York so to do and a Prohibition was awarded accordingly Trinit 10. Jacobi in the Common Pleas. 288 Doctor HUTCHINSON's Case DOctor Hutchinson libelled in the Spirituall Court against one of his Parishioners for Tithes The Defendant there shewed that the Doctor came to the Parsonage by Symony and Corruption And upon suggestion thereof made in the Common Pleas prayed a Prohibition Doctor Hutchinson alledged that he had his pardon and pleaded the same in the Spirituall Court And notwithstanding that the Court granted a Prohibition because the Pardon doth not make the Church to be plena but maketh the offence onely dispunishable But in such case If the King doth present his presentee shall have the Tithes Trinit 10. Jacobi in the Common Pleas. 289 NOte by Cook Chief Justice that these words viz. Thou wouldest have taken my purse from me on the high way are not actionable But Thou hast taken my money and I will carry thee before a Justice lay felony to thy charge are actionable Mich. 11. Jacobi in the Common Pleas. 290 HATCH and CAPEL's Case IN an Action upon the Case upon an Assumpsit brought against the Defendant The Plaintiffe declared How that one Hallingworth who was the Defendants Husband was indebted unto the Plaintiffe eight pound ten shillings for beer and that he died and that after his death the Plaintiff demanded the said mony of the Defendant his wife and she in consideration that he would serve her withbeer promised that she would pay unto the said Plaintiff eight pound ten shillings and for the rest of the beer at such a day certain And the Plaintiffe did averr That he did sell and deliver to her Beer and gave her day for the payment of the other money as also for the Beer delivered unto her and that at the day she did not pay the Money Cook and all the other Justices agreed That the Action would well lie and that it was a good Assumpsit and a good consideration for they said That the forbearance of the money is a good consideration of it selfe and they said That in every Assumpsit he who makes the promise ought to have benefit thereby and the other is to sustain some losse And judgement was given for the Plaintiff Mich. 11. Jacobi in the Common Pleas. 291 NORTON and LYSTERS Case IN the Case of a Prohibition the Case was this Queen Elizabeth was seised of the Manor of Nammington which did extend into four Parishes viz. Stangrave and three other And the Plaintiff shewed That he was seised of three Closes in Stangrave and prescribed That the said Queen and all those whose Estate he hath in the said Closes had a Modus decimandi for the said three Closes and for all the Demeanes of the said Manor in Stangrave And whether the Venire facias should be de parochia de Stangrave or of the Manor was the question And it was resolved by the whole Court That the Visne should be of the Parish of Stangrave and not of the Manor And the Difference was taken when one claimes any thing which goes unto the whole Manor and when only to
practices should be suffered and go unpunished that no mans life was in safety but in continual jeopardy And therefore in this case it was said that pregnant presumption had been sufficient to have acquited the Plaintiff but here the case was very cleer because the matter was confessed by the parties Defendants themselves And in this case Cook Chief Justice and the Lord Chancellour said that a conspiracy ought not to be onely false but malitiose contrived otherwise it will not be a conspiracy and such malice ought to be proved For if a poor Man travelling upon the High-way be robbed by another Man and he knows not the party if afterwards he do accuse such a one of the Robbery and the party accused be found not Guilty he shall not have an Action of conspiracy against the accuser for although he was falsly accused yet he was not malitiously accused and it might be that he took him to be the Offender because he was like unto him who robbed him Secondly It was said by them that by the Law no Man may Begg the Lands or Goods of another man upon such an accusation until the party be convict of the fact and that for divers causes 1. Because before conviction the King hath not an Interest in them for the goods are not forfeit And 2. Because the party till his conviction ought to have his goods to maintain himself with them And 3. Because the goods cannot be seised upon for the Kings use before conviction although they may be put in salva custodia and therefore they said that this was a very great slander which the Defendants layed upon the Lord Viscount Rochester viz. that he had begged the Plaintiffs goods of the King before he was convicted and it was said that if such goods should be begged before conviction of the party that the same would be a main cause that the Jury will not find the Indictment against the party when they are sure his Lands goods and other estate shall be in anothers person and so by consequence should be a great cause that the King might be defrauded of the forfeiture of the goods of Fellons and further it would be a great cause of Rebellion if such Lands and goods should be seised upon and given away before conviction of the party accused And as the Lord Chancellour said the same was the cause of the great Rebellion in the time of King Henry the sixth because the goods of divers were given away to other men before the parties were convicted And Cook said that it appeareth that this was not onely a scandal of divers Gentlemen of Worship whom the Defendants had abused in this thing But even of the King himself And it was not onely scandalum Magnatum But scandalum Magistr Magnatum And he said that it appears in Britton that if a Rebel or base fellow do strike a Man of Dignity that he shall lose his right hand à fortiori in such case when they defame and scandalize them by such impudent practices that they be grievously punished And it should be a very unhappy estate to be a Rich-Man if such Offences should not severely be punished multi delicti propter inopiam The Sentence against the said Defendants was this Reignolds being an Attorney to be degraded cast over the Common Pleas Barre and both the Defendants to lose their Eares to be marked in the Face with a C. for Conspirators to stand upon the Pillory with Papers of there Offences to be Whipped and each of them fined to the King in 500. pound and according to this Sentence Reignolds the same Mich. Term was cast over the Common Pleas Barre by the Cryers of the Court and the other part of the Sentence executed on them both Mich. 11. Jacobi in the Common Pleas. 294 COOKES Case IN a Writ Quare intrusit maritagio non satisfacto It was found for the Plaintiff but no damages were assessed by the Jury and the value of the Marriage was found to be 500. pound And now the question was whether the same might be supplied by a Writ of Enquire of Damages and the Court primâ facie seemed to doubt of the case For where the party may have an attaintment there no damages shall be assessed by the Court if the same be not found by the Jury and therefore the Court would be advised of it but afterwards in the same Term it was adjudged that no Writ of Enquire of damages should Issue But a venire facias de novo was granted to try the Issue again Vide 44. E. 3. the opinion of Thorpe acc Note this was the last Case that Cook Chief Justice did speak to in the Common Pleas for this day he was removed from that Court and made Chief Justice of the Kings Bench. Mich. 11. Jacobi in the Common Pleas. 295 WEDLOCK and HARDING's Case THE Case was this a Man seised of a Messuage holden in Socage in Fee by his will in Writing devised the same to his Cosen by these words viz. I devise my Messuage where I dwell to my Cosen Harding and her Assignes for eight years And also my Cosen Harding shall have all my Inheritances if the Law will And it was adjudged by the whole Court without argument That this was a devise of the Messuage in Fee by these words and that all his other Inheritances passed by the said Will by those generall words Mich. 11. Jacobi in the Common Pleas. 296 ROSSER against WELCH and KEMMIS IN an Action of Debt brought against the Defendants upon severall Praecipes one Judgement is given and the Plaintiffe takes forth a Capias against one of them and arrests his body and afterwards hee takes a Fieri facias against the others And the question was Whether the severall Executions should be allowed and the Court was of opinion they should not for that a man shall have but one satisfaction And therefore in the principall Case because that upon the Fieri facias twenty five pounds was levied if the other who is in prison upon the Execution will pay the other twenty five pound the whole Judgment being but fifty pound the Court awarded that the prisoner should be discharged and the Court was clear of opinion that the partie cannot have a Fieri facias against one and a Capias ad satisfaciendum against the other But it was agreed That he might have a Capias against them both As if a man hath one Judgement against seven persons he may take all their bodies in execution because the body is no satisfaction but onely a gage for the Debt and therewith agreeth 4. H. 7. 8. 5 E. 4. 4. and C. 5. part Bamfeild's Case Mich. 11. Jacobi in the Common Pleas. 297 JENOAR and ALEXANDER's Case IT was moved for a Prohibition to the Court of Requests because that the Court held plea of an Attornment for the complaint there was to compel a man to attorn upon a Covenant to stand seised to uses
And per Curiam a Prohibition shal be awarded And Cook chief Justice said That there were three Causes in the Bill for which a Prohibition should be granted which he reduced to three Questions 1. If a Copy-holder payeth his rent and the Lord maketh a Feoffment of the Manor Whether the Copy-holder shall be compelled to attorn 2. If a man be seised of Freehold Land and Covenants to stand seised to an use Whether in such case an Attornment be needfull 3. If a Feoffment be made of a Manor by Deed Whether the Feoffee shall compell the Tenants to attorn in a Court of Equity And for all these Questions It was said That the Tenants shall not be compelled to attorn for upon a Bargain and Sale and a Covenant to stand seised there needs no attronement And Cook in this case said That in 21. E. 4. the Justices said That all Causes may be so contrived that there needed to be no Suit in Courts of Equity and it appears by our books That a Prohibition lies to a Court of Equity when the matter hath been once determined by Law And 13. E. 3. Tit. Prohibition and the Book called the Diversity of Courts which was written in the time of King Henry the eighth was vouched to that purpose And the Case was That a man did recover in a Quare Impediâ— by default and the Patron sued in a Court of Equity viz. in the Chancery and a Prohibition was awarded to the Court of Chancery Mich. 11 Jacobi in the Common Pleas. 298 Sir JOHN GAGE and SMITH's Case AN Action of Waste was brought and the Plaintiffe did declare that contrary to the Statute the Lessee had committed Waste and Destruction in uncovering of a Barn by which the timber thereof was become rotten and decayed and in the destroying of the stocks of Elmes Ashes Whitethorn and Blackthorn to his damage of three hundred pound And for title shewed That his Father was seised of the Land where c. in Fee and leased the same to the Defendant for one and twenty years and died and that the Land descended to him as his son and heir and shewed that the Waste was done in his time and that the Lease is now expired The Defendant pleaded the generall issue and it was found for the Plaintiffe and damages were assessed by the Jury to fifty pound And in this case it was agreed by the whole Court 1. That if six of the Jury are examined upon a Voyer dire if they have seen the place wasted that it is sufficient and the rest of the Jury need not be examined upon a Voyer dire but onely to the principall 2. It was agreed if the Jury be sworn that they know the place it is sufficient although they be not sworn that they saw it and although that the place wasted be shewed to the Jury by the Plaintiff's servants yet if it be by the commandment of the Sheriffe it is as sufficient as if the same had been shewed unto them by the Sheriff himselfe 4. It was resolved That the eradicating of Whitethorn is waste but not of the Blackthorn according to the Books in 46. E. 3. and 9. H. 6. but if the blackthorn grow in a hedg and the whole hedg be destroyed the same is Waste by Cook chief Justice It was holden also so that it is not Wast to cut Quick-set hedges but it shall be accounted rather good husbandry because they will grow the better 5. It was agreed That if a man hath under-woods of Hasell Willowes Thornes if he useth to cut them and sell them every ten years If the Lessee fell them the same is no wast but if he dig them up by the roots or suffereth the Germinds to be bitten with cattel after they are felled so as they will not grow again the same is a destruction of the Inheritance and an Action of wast will lie for it But if he mow the Stocks with a wood-sythe as he did in the principall Case the same is a malicious Wast and continuall mowing and biting is destruction 6. It was said That in an Action of Wast a man shall not have costs of Suit because the Law doth give the party treble damages And when the generall issue Nul Wast is pleaded and the Plaintiff counted to his damages 100l. the Court doubted whether they could mitigate the damage But 7. It was agreed That in the principal Case although the issue were found for the Plaintiff that he could not have judgment because he declared of Wast done in 8. several closes to his damage of 300l. generally and did not sever the damages And the Jury found That in some of the said Closes there was no Wast committed Wherefore the Court said he could not have judgement through his own default But afterwards at another day Hobart then chief Justice and Warburton Justice said That the verdict was sufficient and good enough and so was also the declaration and that the Plaintiffe might have judgment thereupon But yet the same was adjourned by the Court untill the next Term. Mich. 11. Jacobi in the Common Pleas. 299 CLARK's Case NOte It was said by Cook chief Justice and agreed by the whole Court and 41. and 43. E. 3. c That if a man deliver money unto I. S. to my use That I may have an Action of Debt or account against him for the same at my election And it was agreed also That an Action of Trover lieth for money although it be not in bags but not an Action of Detinue Mich. 11. Jacobi in the Common Pleas. 300 IRELAND and BARKER's Case IN an Action of Wast brought the Writ was That the Abbot and Covent had made a Lease for years c. And it was holden by the Court that it was good although it had been better if the Writ had been That the Abbot with the assent of the Covent made the Lease for that is the usuall form but in substance the Writ is good because the Covent being dead Sons in Law by no intendment can be said to make a Lease But the Dean and Chapter ought of necessity to joyne in making of a Lease because they are all persons able and if the Dean make a Lease without the Chapter the same is not good per curiam if it be of the Chapter Lands And in Adams and Wâ—oâ—â—stey's Case Harris Serjeant observed That the Lease is said to be made by the Abbot and Covent and it is not pleaded to be made by the Abbot with the assent of the Covent Mich. 11 Iacobi In the Common Pleas. 301 The Dean and Canons of Winsor and WEBB's Case IN this Case it was holden by the Court That if a man give Lands unto Dean and Canons and to their Successors and they be dissolved or unto any other Corporations that the Donor shall have back the Lands again for the same is a condition in Law annexed to the Gift and in such Case no Writ of
Escheat lieth yet the Land is in him in the nature of an Escheat And the principall Case was That a prescription was shewed of a discharge of Tithes in an Abbot Prior and Covent and that the Corporation was afterwards dissolved because all the Monks died and the Abbot also And it was holden by the Court That he who is now Owner of it and holdeth the Lands shall pay Tithes for a Lay man cannot prescribe in Non decimando and the Prescription continues no longer then the Lands continued in the Abbot and Covents hands And in this Case it was said by Cook That there are only three manner of Escheats 1. Abjurat Regnum 2. Quia suspensus per collum 3. Quia utlagatus But because they sued for the treble value in the Spiritual Court a Prohibition was awarded but the Parson may sue for the double value in the Spirituall Court and no Prohibition will lie for that is given by the expresse words of the Statute of 2. E. 6. and so it was adjudged in Manwoods Case in the Exchequer And the word Forfeiture in the Statute doth not give the treble value to the King but to the Parson himself Also it was holden by Cook and Warburton Justices That if a Rent be granted to one and his Successors and the Corporation be dissolved that the Rent shall revert to the Donor and there is no difference as to the matter betwixt things which lie in Prender and things which lie in render Nichols Justice contrary That the Rent extinguishes in the Land it selâ— And in the principall Case because they sued in the Spirituall Coâ—â— for the treble value a Prohibition was granted 〈…〉 Mich. 11. Jacobi in the Common Pleas. 302 PORTER's Case IN a Writ of Dower brought the Defendant was essoygned and had the view and afterwards pleads tout temps prist to render Dower and they were at issue which was found for the Plaintiff and Judgment was given for the Plaintiff It was holden by the whole Court That before Execution be awarded the Plaintiff in Dower may aver That her husband was seised to have Damages and therewith agrees the books 14. H. 8. 25. 22. H. 6. 44. b. Mich. 11. Jacobi In the Common Pleas. 303 Sir DANIEL NORTON and SYMM's Case AN Action of Debt was brought upon a Bond which was conditioned to performe Covenants in an Indenture and it was shewed there were divers Covenants in the Deed some of which were Covenants against the Law and some not and for breach the Plaintiff alledged That it was covenanted by the Indenture that Chamberlain for whom the Defendant was a Surety being under Sheriff to the Plaintiffe should save the Plaintiffe harmelesse and should discharge all manner of escapes and should also save him harmeless from all Fines and Amercements to which he should be liable by reason of any escape And shewed â—ow that one was arrested in execution by the said Chamberlain evasit And another Covenant was That hee should not serve any Execution above Twenty Pounds without Warrant from the Plaintiffe and also that he should not return any Juries without his Privity Hutton Serjeant argued for the Defendant and said That this Indenture of Covenants was against the Law for it is as much as if he had said That he should not he under Sheriff And by the Statute of 27. El. under Sheriffs are â—â—orn to return Juries and process of Courts and therefore these Covenants are both against the common Law and Statute Law also the Covenants are in delay of Justice for Non constat when the Sheriffe will give him warrant to return Juries or to execute the Kings Writs Also the Covenant is too generall viz. That he shall save him harmelesse from all Escapes and of any other matters whatsoever and there the Bond taken to performe such Covenants is void Vide 7. H. 7. and 8. â— 4. 13. where a Bond taken to save â—â—man harmelesse against all men is voâ—id but contrary if it be to save â—â—rmelesse against one particular person so here to save harmeless from all matters whatsoever is void but if it had been only from Escapes then it had been good Vide 2. H. 4. 9. If a man be bound to save another harmlesse against all the world the Bond is void Vide 4. H. 4. 2. Will. Rices case And he compared these Covenants against the Law to Perpetuities which kill themselves Then he argued That although some of the Covenants were lawfull yet the Bond was void in all and that he said is the better opinion of the book in 14. H. 8. 25. And if A. be bounden to enfeoff J. S. of the Manor of D. and to disease J. N. of another Manor the Bond is void for the whole 3. He said That there was not a sufficient breach laid by the plaintiffe for it is only layed That such a one in Execution evasit and it is not said That the under Sheriff did suffer him to escape 4. It is not layed That the plaintiff did request the under Sheriffe to pay the Money upon the escape but he went and paid the Money voluntarily of himself and request and notice are needfull 46. E. 3. 27. 22. E. 4. 14. 40. E. 3. 20 Non damnificatus is a good plea generally and the other side ought to come and shew specially how he is damnified 5. It is not layed That he gave him warning to arrest the party in Execution for Fifty pounds and therefore as to that he was not under Sheriff because as Sheriff without warning by his former Covenants hee was not to serve any Executions but such as were under Twenty pounds and therefore he ought to have layed it That he gave him a Warrant to arrest the party upon this Execution otherwise there is no breach Harris Serjeant contrary and he said The Covenants are sufficient in part and ought to be performed and so the Bond good And as Kâ—ble said in 13. H. 7. 23. so he said That there are three conditions which are not allowable but the Case at Bar is not within the compasse of any of them and the words here Discharge and save harmelesse shall be meant from all escapes suffered by the under Sheriff himself and the words from all Amercements whatsoever shall be intended by reason of his Office And he said That when an Indenture of Covenants is good in part and void in part those Covenants which are good shall stand and ought to be performed and the book of 14. H. 8 by four Justices is that all legal and lawful Covenants ought to be performed and he vouched Lee and Golshills Case 39. Eliz. which Vide c. 5. part 82. to that purpose and he said that this Case is not like the case in 9. Eliz. Dyer of Raiâ—ure Also he said that the Defendant hath pleaded That he hath performed all the Covenants and if these Covenants be void and no Covenants then the Defendants plea is not good Also
there are divers Covenants in the Negative and to those he ought in pleading to shew in certain that he hath not broken them The Court said nothing at all to the case but yet Cook chief Justice seemed to be cleer or opinion That the Bond was void and so he said he conceived it had been adjudged before in this Court in the same Sir Daniel Nortons case against Chamberlain 〈◊〉 9. Jacob◠〈◊〉 And it was adjourned Mich. 11. Jacobi in the Common Pleas. 304 AN Action upon the Case was brought by an Attorney of the Court against another Man for speaking these words of him viz. Thou art an Ambodexter and the words were adjudged actionable because the same slandred him in his Profession for it is as much in effect as if he had said that he was corrupt in his Office Mich. 11. Jacobi in the Common Pleas. 305 IT was Ruled by the whole Court that a Fieri facias or Capias ad satisfaciendum or other Judicial Process did not run into Wales But it was agreed that a Capias utlagatum did run into Wales And Brownloe one of the Pronothories said that an Extent hath gon into Wales Mich. 11. Jacobi in the Common Pleas. 306 HUGHE's Case A Man who dwelt in Somersetshire made his Will and by his said Will did bequeath to each of his children being Enfants a Legacy of 20. pound a piece the Procurators of the Enfants did Libel in the Court of Arches against the Executors of the Testator for the said Legacies being out of the Diocess and a Prohibition was awarded and in this Case it was said by Justice Warburton to have been agreed by all the Justices that the exception in the Statute of 23. H. 8 cap. 9. doth extend onely to probate of Wills It was also holden in this case That an Averrment might be that the parties were sued out of there proper Deocess if the same doth not appeare in the Libel as it may be in like case where one sueth in the Court of Admiralty for a thing done upon the land and Averrment may be that the contract was made infra Corpus Comitatus And in this case it was also agreed by the Court that if an Infant bringeth an action against his Gardian for mony and recovereth and he bringeth the mony into Court and there deposite it that the same is a good discharge against the Enfant and he shall not answer the Suit again in an account Mich. 11. Jacobi in the Common Pleas. 307 Sir THOMAS SEYMORE's Case MOuntague Serjeant shewed to the Court that the Wife of Sir Thomas Seymore did Libel against her Husband in the Spiritual Court for that he did threaten her and beat her and in the end of the Libel she prayed allowance of Allimony and a Prohibition was prayed by him because the Suit in that Court was for a force which was not triable in that Court and to that purpose he remembred the case of 11 H. 4. 88. Where a Clark sued in the Spiritual Court for a battery and laying of violent hands upon him and because in such case an action of Trespas of assault and battery did lye at the Common Law a Prohibition was awarded Vide. 22. E. 4. 29. pl. 9. the Abbot of St. Albans case and 12. H. 7. 23. Cook Chief Justice agreed all those Cases And said that if a Clark sueth in the Spiritual Court for damages a Prohibition shall be awarded and no damages are given in the Spiritual Court if not for repairing of the Church as appeareth by the Statute of Articuli Cleri Quaere Vide. 20. E. 4. 10. professione Fidei c. And Linwood saith that if a Clark walketh in his doublet and hose non habet habitam Clericalem but goeth in colours if another man doth beat him he shall not sue for the same in the Spiritual Court But in the principal Case it was agreed by the whole Court that no prohibition should be awarded because the Wife cannot have remedy against the Husband at the Common Law for the beating of her because she is sub virga viri and also because the Suit there is but by way of inducement to have a Divorce causâ metus And Warburton said that she should recover there expensas litis against her Husband Cook held that the Husband could not give correction to his Wife But Nicols and Warburton Justices held the contrary and that the Wife may have a Writ de securitate Pacis against the Husband as appeareth by F. N. B. 80. f. quod benè honestè tractabit gubernabit nec malum aliquod ei aliter quà m ad virum suum causa regiminis castigationis vxoris suae licitè rationabiliter pertinet non faciet c. And F. N. B. 238. s acc Cook vouched 31. E. 3. Fitz. Tit. Attachment for Prohibition 8. where the Wife Libelled against her Husband in the Spiritual Court for beating and imprisoning of her and no Prohibition was granted and the Suit in the Spiritual Court was there as an Inducement to have a Divorce Mich 11. Jacobi in the Common Pleas. 308 PAYNE's Case IT was moved by Hutton Serjeant for a Prohibition to the Court of Requests The Case was this A man in consideration That Alice S. would obtain the good will of his Master that hee the Defendant might have a shop in his Masters house did promise her that when she was married that he would give unto her ten pound And the Plaintiff shewed That she did get the good will of her Master and that the Defendant had a shop in his Masters house and that she the said Alice was afterwards married to the Plaintiff Payn. And the opinion of the whole Court was That a good Action upon the Case would lie upon such promise And a Prohibition was awarded unto the Court of Requests a Suit being there brought for the same matter which matter being a thing meerly triable at Law and not in a Court of Equity that Court had no Jurisdiction of it Mich. 11. Jacobi in the Common Pleas. 309 MOuntague Serjeant demanded the opinion of the Justices in a Case upon the Statute of 3. Jacobi of Recusants in the behalfe of the University of Oxford viz. That if a Recusant convict do avoid the said Statute doth grant his Patronage for years to one of his friends in trust Whether the same were void or not within the said Statute The Justices did deny to deliver any opinion in the case for they said perhaps it might be that that point and case might come judicially before them and such they said was the answer of Hussey in 1. H. 7. in Humfrey Staffords case which was King Henry the seventh came in Bance and demanded a queston of the Justices But yet the Court tacitè seemed to agree That such a Lease of the Patronage was void by the said Statute of 3. Jacobi And they said That they would not have the University discouraged in
the case which implyed their opinions to be for the Universitie And 21. H. 7. was vouched That the Patronage was only matter of favour and was not a thing valuable And in this case Cook chief Justice said That Apertus haereticus melius est quam fictus Catholicus Mich. 11. Jacobi in the Common Pleas. 310 BOND and GREEN's Case AN Action of Debt was brought against an Administrator the Defendant shewed how that there were divers Judgments had against him in 〈◊〉 Aâ—d â—â—so that there was another Debt due by the Testator which was assigned over unto the Kings Majesty and so pleaded That he had fully Administred Barker Serjeant took Exception to the pleading because it was not therein shewed that the King did assent to the Assignment and also because it was not shewed that the Assignment was enrolled The Court said nothing to the Exceptions But whereas he Defendant as Administrator did alledge a Retayner in his own hands for a debt due to himselfe The opinion of the whole Court was that the same was good and that an Administrator might retayne to satisfie a debt due to himselfe But it was agreed by the Court That an Excecutor of his own wrong should not Retayne to satisfie his own debt See to this purpose C. 5. part Coulters Case Mich. 11. Jacobi in the Common Pleas. 311 STROWBRIDG and ARCHERS Case IN An Action of debt upon a Bond the Defendant was Outlawed And the Writ of Exigent was viz. Ita quod habeas corpus ejus hîc c. whereas it ought to be coram Justiciariis nostris apud Westminster And for that defect the utlagary was reversed and it was said that it was as much as if no Exigent had been awarded at all And upon the Reversall of the utlagary a Supersedeas was awarded and the party restored to his goods which were taken in Execution upon the Capias utlagatum It was also resolved in this Case That if the Sheriffe upon a Writ of Execution served doth deliver the mony or goods which are taken in Execution to the Plaintiffs Atturney it is as well as if he had delivered the same to the Plaintiff himself for the Receipt by his Atturney is in Law his own Receipt But if the Sheriff taketh goods in Execution if he keep them and do not deliver them to the paâ—â— at whose suit they are taken in Execution the party may have a new Execution as it was in the principal Case because the other was not an Execution with Satisfaction Mich. 11. Jacobi in the Common Pleas. 312 CHAVVNER and BOVVES Case BOwes sold three Licences to sell Wine unto Chawner who Covenanted to give him ten pounds for them and Bowes Covenanted that the other should enjoy the Licences It was moved in this Case whether the one might have an Action of Covenant against the other in such Case And the opinion of Warburton and Nichols Justices was That if a Man Covenant to pay ten pound at a day certain That an action of Debt lyeth for the money and not an action of Covenant Barker Serjeant said he might have the one or the other But in the principall Case the said Justices delivered no opinion 313 Note That this Day Cooke Chief Justice of the Common Pleas was removed to the Kings Bench and made Lord Chief Justice of England And Sir Henry Hobart who was the Kings Aturney generall was the day following made Lord Chief Justice of the Court of Common Pleas. Sir Francis Bakon Knight who before was the Kings Solicitor was made Atturney Generall And Mr Henry Yelverton of Grays-Inn was made the Kings Solicitor and this was in October Term. Mich. 11 Jacobi 1613. Mich. 11. Jacobi In the Common Pleas. 314 THis Case was put by Mountague the Kings Serjeant unto the Lord Chief Justice Hobart when he took his place of Lord Chief Justice in the Common Pleas viz. Tenant in tail the Remainder in taile the Remainder in Fee Tenant in tail is attainted of Treason Offence is found The King by his Letters Patents granteth the lands to A who bargaineth and selleth the land by Deed unto B. B. suffers a common Recovery in which the Tenant in tail is vouched and afterwards thâ— Deed is enrolled And the question was Whether it was a good Bar of the Remainder And the Lord Chief Justice Hobart was of opinion That it was no barre of the Remainder because before enrollment nothing passed but only by way of conclusion And the Bargainee was no Lawfull Tenant to the Precipe Mich. 11. Jacobi in the Common Pleas. 315 WHEELER's Case IT was moved for a Prohibition upon the Statute of 5. E. 6. for working upon Holy days and the Case was That a man was presented in the spirituall Court for working viz. carriage of Hay upon the feast day of Saint John the Baptist when the Minister preached and read divine service and it was holden by the whole Court of Common Pleas That the same was out of the Statute by the words of the Act it self because it was for necessity And the Book of 19 H. 6. was vouched That the Church hath authority to appoint Holy days and therefore if such days be broken in not keeping of them Holy that the Church may punish the breakers therof But yet the Court said That this day viz. the Feast day of Sr John the Baptist was a Holy day by Act of Parliament and therefore it doth belong unto the Judges of the Law whether the same be broken by doing of such work upon that day or not And a Prohibition was awarded Mich. 11 Jacobi in the Common Pleas. 316 REARSBY and CUFFER's Case IT was moved for a Prohibition to the Court of Requests because that a man sued there by English Bill for money which he had layd out for an Enfant within age for his Meat drink necessary apparel and set forth by his Bill that the Enfant being within age did promise him to pay the same And a Prohibition was awarded because as it was said he might have an action of Debt at the common Law upon the contract for the same because they were things for his necessary livelihood and maintenance And it was agreed by the Court That if an Infant be bounden in an Obligation for things necessary within age the same is not good but voidable Quaere for a difference is commonly taken When the Assumpsit is made within age and when he comes to full age For if he make a promise when he cometh of full age or enters into an Obligation for necessaries which he had when he was within age the Law is now taken to be that the same shall binde him But see 44. Eliz. Randals Case adjudged That an Obligation with a penaltie for money borrowed within age is absolutely void Mich. 11. Jacobi in the Common Pleas. 317 SMITH's Case SMith one of the Officers of the Court of Admiralty was committed by the Court of Common Pleas to the prison of
Tenures of such men viz. A. B. C. 3. All his lands which he had by Purchase c. And the words All my Lands are to be intended all those my Lands which are within the restrictions And he said that the word Et being in the copulative was not material for all was but one sentence and it did not make several sentences and the word Et is but the conclusion of the sentence 3. They resolved That general words in a Grant may be overthrown by words restrictive as is 2 E. 4. and Plow Com. Hill Granges Case And therefore if a man giveth all his lands in D. which he hath by Discent from his Father if he have no lands by Discent from his Father nothing passeth 4. They agreed That a Restriction may be in a special Grant as in C. 4. par Ognels Case but they said that if the Restriction doth not concur and meet with the Grant that then the Restriction is void Note the principal Case was adjudged according to these Resolutions Mich. 11. Iacobi in the Common-Pleas 293. COOPER and ANDREWS Case TO have a Prohibition to the Spiritual Court suggestion was made That the Lord De la Ware was seised of 140 Acres of lands in the County of Sussex which were parcel of a Park And a Modus Decimandi by Prescription was said to be That the Tenants of the said 140 Acres for the time being had used to pay for the tythes of the said 140 Acres two shillings in mony and a shoulder of every third Deer which was killed in the same Park in consideration of all tythes of the said Park And it was shewed how that the Lord De la Ware had enfeoffed one Cumber of the said 140 acres of land who bargained and sold the said 140 acres of land to the Plaintiffe who prayed the Prohibition The Defendant said that the said Park is disparked and that the same is now converted into arable lands and pasture-grounds and so demanded tythes in kind upon which the Plaintiffe in the Prohibition did demur Hutton Serjeant By the disparking of the Park the Prescription is not gone nor extinct because the Prescription is said to be to 140 acres of lands and not to the Park and although the shoulder of the Deer being but casual and at the pleasure of the party be gone yet the same shall not make void the Prescription 2. He said that the act of the party shall not destroy the Prescription and although it be not a Park now in form and reputation yet in Law the same still remains a Park And he compared the Case unto Lutterels Case C. 4. par 48. where a Prescription was to Fulling-Mils and afterwards the Mils were converted to Corn-Mils yet the Prescription remained 3. He said Admit it is not now a Park yet there is a possibility that it may be a Park again and that Deer may be killed there again For the Disparking in the principal Case is only alleadged to be that the Pale is thrown down which may be amended For although that all the Park-pale or parcel of it be cast down yet the same doth still remain in Law a Park and a Park is but a Liberty and the not using of a Liberty doth not determine it nor any Prescription which goes with it And if a man have Estovers in a Wood by Prescription if the Lord felleth down all the Wood yet the right of Estovers doth remain and the Owner shall have an Assise for the Estovers or an Action upon the Case Vid. C. 5. par 78. in Grayes Case the Case vouched by Popham Further he said That in the beginning a Modus Decimandi did commence by Temporal act and Spiritual and the mony is now the tythe for which the Parson may sue in the Spiritual Court And a Case Mich. 5. Jacobi was vouched where a Prescription to pay a Buck or a Doe in consideration of all Tythes was adjudged to be a good Prescription And the Case Mich. 6. Jacobi of Skipton-Park was remembred where the difference was taken when the Prescription runs to Land and when to a Park In the one case although the Park be disparked the Prescription doth remain in the other not And 6 E. 6. Dyer 71. was vouched That although the Park be disparked yet the Fee doth remain And so in the Case at Bar although the casual profit be gone yet the certain profit which is the two shillings doth remain Harris Serjeant contrary And he said that the Conveyance was executory and the Agreement executory and not like unto a Conveyance or Agreement executed And said that Tythes are due jure divino and that the party should not take advantage of his own wrong but that now the Parson should have the tythes in kind And upon the difference of Executory and Executed he vouched many Authorities viz. 16 Eliz. Dyer 335. Calthrops Case 15 E. 4. 3. 5 E. 4. 7. 32 E. 3. Anuitie 245. And in this case he said that the Parson hath no remedy for the shoulder of the Deer and therefore he prayed a Consultation Hobart Chief Justice said That the Pleading was too short and it was not sufficiently pleaded For it is not pleaded That the Park is so disparked that all the benefit thereof is lost But he agreed it That if a man doth pull down his Park-pale that the same is a disparking without any seisure of the Liberty into the Kings hands by a Quo Warranto But yet all the Court agreed That it doth yet remain a Park in habit And they were all also of opinion That the disparking the Park of the Deer was not any disparking of the Park as to take away the Prescription The Case was adjourned till another day Mich. 11. Iacobi in the Common-Pleas 330. PIGGOT and PIGGOT's Case IN a Writ of Right the Donee in tail did joyn the Mise upon the meer Right and final Judgment was given against the Donee in which case the Gift in tail was given in Evidence Afterwards the Donee in tail brought a Formedon in the Discender and it was adjudged by the whole Court that the Writ would not lie For when final Judgment is given against the Donee in tail upon issue joyned upon the meer Right it is as strong against him as a Fine with Proclamations and the Court did agree That after a year and day where final Judgment is given the party is barred and also that such final Judgment should bar the Issue in tail Mich. 11 Iacobi in the Exchequer-Chamber 331 AN action upon the Case was brought for speaking these words Thou doest lead a life in manner of a Rogue I doubt not but to see thee hanged for striking Mr. Sydenhams man who was murdered And it was resolved by all the Justices in the Exchequer-Chamber That the words were not actionable At the same day in the same Court a Judgment was reversed in the Exchequer-Chamber because the words were not actionable The words
should be made of words as to make them actionable and words shall be taken in mitiori sensu if there be no particular description and declaration that the words were spoken maliciously And therefore general words which of themselves are actionable by construction shall be taken to bear no action as C. 4. par Stanhops case And so if a man saith of another that he hath the Pox they shall be taken in mitiori sensu because they are not described by any subsequent words which declares malice in the party And Nichols vouched a Case which was in this Court this Term where an action was brought for these words Thou usest me now as thy Wife did when she stole my Cushions that the words were not actionable Warburton Justice When words are spoken which scandal a man in his trade or profession they are actionable as if one say of an Attorney Thou cosenest Mr. Winsor of his Fees and so if words are spoken maliciously And therefore an action was brought by one who was a Jury-man for these words viz. Thou hast deceived me any my children of eight hundred pounds they were adjudged actionable And so Hill 6. Jacobi rot 1159. Thou art a Jury-man and hast been the death of a hundred men by thy false means Being maliciously spoken although in themselves they are not actionable yet they will bear an action But it was adjudged in the principal Case for the reasons given by the two other Justices that the words would bear no action to which Warburton Justice in the end did seem to agree Hill 11. Iacobi in the Common-Pleas 337. AYLIFFE and BROWNS Case A Woman who was possessed of a Term for divers years had issue two Daughters the one married to Ayliffe and the other to Brown Ayliffe had issue four Daughters and Brown had also issue and the Woman did demise Legacies to the children of Ayliffe out of the Rent reserved upon the Lease and made Brown her Executor and dyed Ayliffe required Brown in the behalf of his children to pay the money to him that he might imploy the same for the benefit of the children which he refused to do and thereupon he sued him in the Spiritual Court and there Sentence was given for the Plaintiffe Brown the Executor moved for a Prohibition and alleadged for ground of it that he was Executor and chargeable in an accompt for the money But because he came after sentence and also after he had appealed to the Court of Delegates and after a sentence given there also against him the Court refused to grant a Prohibition in the Cause and also because he did refuse to give security for the payment of the Legacies to the children Hill 11. Iacobi in the Common-Pleas 338. WORMLEIGHTON and HUNTERS Case TWo men are bounden with J. S. as Sureties in an Obligation One of the Sureties viz. Wormleighton was sued upon the Bond and the whole penalty recovered against him He exhibited an English Bill into the Court of Requests against the Defendant being the other Surety to have contribution and it was moved to the Court for a Prohibition to the Court of Request and the same was granted because by entring into the Obligation it became the debt of each of them jointly and severally and the Obligee had his election to sue which of them he pleased and take forth Execution against him and the Court said That if one Surety should have contribution against the other it would be a great cause of suits and therefore the Prohibition was awarded and so it was said it was lately adjudged and granted in the like case in Sir William Whâ—rwoods case Hill 11. Iacobi in the Common-Pleas 339. LAMBERTS Case TWo men were Partners in goods the one of the Partners sold unto J. S. at several times goods to the value of 100 l. and for the goods at one time bought he paid the money according to the time afterwards an action was brought by one of the Partners for the rest of the money and the Plaintiff declared upon one contract for the whole goods whereas in truth they were sold upon several contracts made and the Defendant in that case would have waged his Law But the Court advised the Plaintiff to be Non-suit and to bring a new action because that action was not well brought for it ought to have been a several action upon the several contract And in this case it was agreed by the Court that the sale of one Partner is the sale of them both and therefore although that one of them selleth the goods or merchandizeth with them yet the action must be brought in both their names and in such case the Defendant shall not be received to wage his Law that the other Partner did not sell the goods unto him as is supposed in the Declaration Hill 11. Jacobi in the Common-Pleas 340. WHITE and MOORS Case A Man did recover in an action of Debt brought in the Common-Pleas and had Judgment and afterwards before Execution was taken forth the Defendant in the Debt exhibited an English Bill into the Court of Requests to overthrow the Judgment and to stay Execution pretending in his Bill that there was a parol agreement betwixt him and the other that he should not be charged with that Judgment nor the payment of the money It was moved for a Prohibition in this case which was granted by the Court because the Plaintiffe there by practice did endeavour to subvert a Judgment given at the Common-Law And in speaking of this Case the Court did very much condemn the course used in the Court of Requests in taking Bonds of the parties to perform their Decrees made there for it was said that such Bonds were against Law and so it had been oftentimes adjudged Hill 11 Jacobi in the Common-Pleas 341. BALDWYN and GIRRIES Case A Parson did Libel in the Spiritual Court for Tythes and the substraction of them and grounded his Libel upon the Statute of 2 E. 6. The Defendant alleaged that he was to be discharged from the payment of tythes by reason of priviledge within the Statute of 31 H. 8. of Dissolutions and the Plaintiffe here had a Prohibition And afterwards they were at issue here Whether he ought to be discharged hy Priviledge or not and after issue joyned the Plaintiffe in the Prohibition was Non-suit And thereupon the Parson had a Consultation and proceeded in the Spiritual Court and there obtained a sentence and the sentence there was That he should recover the single damages and the same was set in certain and ulterius that recuperet duplicem valorem which was also by the said sentence set in certain And it was resolved in that Case by the whole Court That a Prohibition should be granted grounded upon the sentence because the Spiritual Court in their sentence did exceed the damages which was to be given by the Statute in that Court and it was said That although the sentence there given be not
expressly that he recover treble damages yet because it did amount to so much if the words of the sentence be joyned together It was directed that a special Prohibition in which the Statute and the whole matter is to be mentioned be awarded And in this case it was agreed by the whole Court That the Statute of 2 â— 6. for substraction of Tythes meerly doth not give any damages but if the Tythe be first set forth and then they are substracted there because the Parson had once an interest in them he shall recover treble damages And the principal Case was resembled by Warburton Justice to the case of Waste that if the Jury give damages 20l l there the Court shall treble the damages and make the same 60l and so it was done in the principal case Hill 11 Iacobi in the Common-Pleas 342. GIPPE's Case A Man Libelled for Tythes in the Spiritual Court the Defendant alleadged a Modus Decimandi and thereupon had a Prohibition and afterwards the Plaintiffe in the Prohibition did not prove his suggestion within six months and therefore the Court granted a Consultation because the Law hath appointed a certain time within which time the suggestion is to be proved Otherwise the Parson should be delayed and prejudiced in his Tythes and so it was adjudged in Parson Bugs case Mich. 8. Jacobi in this Court Hill 11 Jacobi in the Kings Bench. 343. CROSSE and STANHOP's Case AN action of false Imprisonment was brought against the Defendant and two other Justices of Peace of the County of York The Defendants justified the Imprisonment by reason of the Statute of 1 M. cap. That it should not be lawful for any maliciously and contumeliously to molest or disquiet any person or persons which are Preachers or after should be Preachers And the Plaintiffe demurred upon the Plea in Bar generally and two Exceptions were taken to the Pleading 1. Because the words of the Statute were misrecited for the words of the Statute are in the disjunctive maliciously or contumeliously And the opinion of the Court was that when the precedent subsequent words disjunctive are all of one sense that the word Or is all one with the copulative but where they are of divers natures as by word or deed it is otherwise The second Exception was That where the words were by the greater part of the Justices the Recital was by the better part of the Justices But notwithstanding these Exceptions it was adjudged against the Plaintiffe Pasch 12 Iacobi in the Kings Bench. 344. CARTWRIGHT's Case CArtwright prayed a Prohibition and the Case was this A. lying sick upon his bed made his Will and afterwards said unto his Executors named in the Will I will that B shall have twenty pounds more if you can spare it And the Executor answered and said Yes forsooth but no Codicil was made of the same Legacie And a Bill was preferred in the Spiritual Court for the Legacie whereupon the Executor prayed a Prohibition And it was holden by this Court that although this Court hath not power to hold plea of the thing Libelled for there in the Spiritual Court yet it hath power to limit the Jurisdictions of other Courts and if they abuse their authority to grant a Prohibition Vid. 2 H. 4. 10. But it was doubted whether the Spiritual Court as this case is might give remedy to the person for the Legacie For the same not being annexed to the Will by a Codicil it was but fidei commissum and so the doubt was Whether the Spiritual Court might hold plea of it For if they cannot hold plea of it then in this case a Prohibition may be lawfully granted although that this Court have not power nor jurisdiction of the thing it self The Court would be advised of it and therefore it was adjourned Pasch 12 Iacobi in the Kings Bench. 345. Sir CHRISTOPHER HEYDON's Case GOdsall Shepard Smith brought an Assise of Novel disseisin against Sir Christopher Heydon which was tryed at the Assises in Norfolk before Sir Tho. Fleming Lord Chief Justice of England and Justice Dodderidge which was found for the Plaintiffs and Judgment was given for them in the Court of Common-Pleas And thereupon Sir Christopher Heydon brought a Writ of Error in the Kings Bench and assigned for Error That whereas the Judgment was given upon his own Confession the Judgment was entred That the Plaintiffs did recover per visum Recognitorum Assise predict And after argument in the Kings-Bench it was adjudged by the whole Court that the Judgment given in the Common-Pleas should be affirmed notwithstanding the Error assigned And now to reverse the Judgment given in the Kings Bench he brought another Writ of Error in Parliament Cook Chief Justice said That the Clarks of the Chancery ought not to make a Writ of Error to the Parliament unlesse they have the Kings licence so to do And it was agreed by the whole Court that a Writ of Error lieth in Parliament upon the Transcript of the Record without bringing of the Record it self in Parliament For the Parliament is holden at the Kings pleasure and may be dissolved before the Errors be discussed and so the Record it self cannot be brought here again because the Parliament which is a higher Court was once possessed of it 8 H. 5. Error 88. The same Law in Error upon a Judgment given in Ireland 5 E. 2. Error 89. where only the Transcript of the Judgment is removed For if the Record it self should be brought into England it might be that before it came hither it shall be drowned in the sea and it is dangerous to commit a Record to the mercy of the winds and sea And Error lieth to reverse a Fine upon the Tenor of the Record and it is not necessary to bring the Fine it self because there is not any Chirographer in this Court to examine it At another day the same Term George Crook and Noy took five Exceptions to the said Writ of Error the first was Because the Writ doth recite the Judgment to be in Assis capt coram Tho. Fleming Capital Justiciar ad Placita Johannem Dodderidge milit unum Justic ad Placit coram nobis tent And the Exception was because that this latter addition was not to them both Dodderidge Justice held that the same was no good Exception to abate the Writ of Error because the omission is only in the addition of Honour which is surplusage and the Person is certain and his power appears to take the Assise and that Exception is not in point of jurisdiction but of denoting of the person and therefore is like the Case in 19 Eliz. Dyer 356. which is a stronger Case and 6 E. 6. Dyer 77. Haughton and Cook contr But Crook Justice did agree with Dodderidge that the addition of the same was but surplusage and that the Writ had been well enough without it Cook Chief Justice held the contrary For then he varieth from their
Commission which is their authority but if it had been left out in their Commission then the Writ had been good enough And he said that when a man meddles with a thing which is but surplusage which he needed not to do he must recite the same substantially otherwise his plea will be vitious C. 4 par Palmers case And when he maketh Tho. Fleming Capit. Justic ad Placita indefinitely he varieth from the truth for the stile is Tho. Fleming Capit. Justic ad Placita coram Rege tent Haughton Justice acc ' and he said that in every Writ of Error which is to remove a Record three things ought to be expressed 1. Mention is to be made before what person it was taken as the book is in 28 H. 6. 11. 2. It is to mention betwixt whom it was 9 H. 6. 4. 3. The manner of the caption is to be mentioned whether by Writ or without Writ 2 R. 3. 2 3. and this Writ faileth in the first of them therefore he concluded that the VVrit should abate Cook Chief Justice was of the same opinion and agreed that Misnosmer and variance are not to be favoured if they be not substantial and essential quae dant esse rebus and he said that the variance in this case is of such nature For in many Records yet extant and in the time of King H. 3. it is to be found that the Chief Justice of England did sit and give Judgment in the Common-Pleas and in the Exchequer and so then Capital Justic ad Placita is too general because he might sit and give Judgment in any of the said Courts The second Exception was because that the VVrit saith Assisa capta c. and doth not say per breve nor sine breve nor doth say secundum legem consuetudinem c. For in 43 Eliz. in the Case betwixt Cromwell and Andrews it was adjudged not good to say That such an Action came into the Common-Pleas out of the Country and doth not shew that it came by adjournment or by Certlorari or Mittimus To which it was answered by Damport Councellor for the Plaintiff that it is a strong intendment that the Assise was taken per breve and therefore it needed not to be expressed because it is a general and not a special Assise Crook Justice The Exception is good for it is so general that it cannot be intended which Assise it was For put case there were two Assises betwixt the same parties it cannot be known which Assise is intended And of the same opinion was Haughton Justice Dodderidge contrary and he said Notwithstanding the Exception the Record ought to be removed by the Writ For the Judges Conscience may be well satisfied which Record is to be removed And here the Record which is to be removed is so precisely shewed that no body can doubt of it which ought to be certified And there are Records removed by Writs of Error which are more dubious then this is v. 19 Eliz. Dyer 356. 20 E. 3. But in this case the Writ is much enforced by the words Sommon Capt. For in every Assise there are four Commands to the Sheriffe 1. Facere tenementum esse in pace to quiet the possession 2. Facere recognitionem or Recognit videre tentam 3. Summoneas 4. Ponas eos per vadios c. For which cause of necessity it must be meant an Assise per Breve The third Exception was because in the Writ it was not shewed who was Plaintiffe and who Defendant Dodderidge It is generally to be agreed That the Writ of Error ought to agree with the Record which Rule is taken in 3 H. 6. 26. C. 3. par the Marquess of Wincbesters Case But yet every Variance doth not abate this VVrit For if the variance be only in matter of circumstance as it is in this Case the VVrit shall not abate vid. 9 H. 6. 4. 4 5 Phil. Ma. Dyer 164. 2 Eliz. Dyer 173. 180. 28 H. 6. 11. 12. The fourth Exception was because it doth not shew the place of the Caption of this Assise but sayes generall in Com. Norfolk Haughton held that rather to be examinable in the Parliament then here The last Exception was because the VVrit is directed to Cook Chief Justice that he certifie the Record sub sigillo suo whereas it was said the Record it self was to come in Parliament and there a Transcript thereof is to be made and the Record to be remanded V. 22 E. 3. 23 Eliz. Dyer 357. 1 H. 7. 29. against the Book of Entries 302. To which it was answered That it is at the pleasure of the Parliament to have either the one or the other 22 E. 3. 3. 8 H. 5. Error 88. To which Cook agreed And note that upon this VVrit of Error a Supersedeas was fraudulently procured and a VVrit of Attachment issued forth against Bacon who procured it And the Supersedeas was disallowed because that another Supersedeas was granted in the first VVrit of Error And a man can have but one Supersedeas But the Question in this Case was Admitting that the VVrit of Error be good and not abateable If the same be a Supersedeas in it self And the Court doubted of that point For Cook Chief Justice said That he had viewed 26 or 27 VVrits of Error which were brought in Parliament where the first Judgment was disaffirmed and but one where the Judgment was affirmed and that is in 23 Eliz. Dyer 357. the Record of which cannot be found Et quod in praxi est inusitatum in jure est suspectum The Books where Error was brought in Parliament are 2 E. 3. 34 40 in the old print 22 E. 3. 3. 42 Ass pl. 22. 9 H. 5. 23. 1 H. 7. 29. 23 Eliz. Dyer 375. And it should be mischievous for delay for a Parliament is only to be summoned at the Kings pleasure Haughton Dodderidge and Crook held cleerly That this VVrit of Error was a Supersedeas in it self and that upon the Book of 8 E. 2. Error 88. 1 H. 7. 19. where it is said That the Justices did proceed to Execution after the Judgment affirmed in Parliament and therefore ex consequente sequitur not before And therefore the VVrit of Error is a Supersedeas that they cannot proceed But there is no President of it in the Register but a Scire facias fo 70. And the Court held That if a Supersedeas be once granted and determined in default of the party himself that he shall never have another Supersedeas but otherwise if it fail by not coming of the Justices Also Cook Chief Justice held That by this VVrit of Error in Parliament Sir Christopher Heydon could not have the effect of his suit because it is to reverse a Judgment coram Rege and so the Judgment given in the Common-Pleas stands firm and Sir Christopher Heydon is put to a new VVrit of Error in this Court for the Judgment
in the Kings Bench is Judicium affirmetur stet in pleno robore effectu And it is not as the Judgment is in 20 E. 4 44. Judicium stet in aeternum And so that not being the fundamental Judgment the Reversal thereof is but the beginning of another suit 38 H. 6. 3. And admit that the VVrit of Error be a Supersedeas for the second Judgment yet it is a Question whether it shall be for the first which is not touched by the VVrit And whether they may grant Execution upon it or not Vide 13 E. 4. 4 43 E. 3. 3. 8 H. 7. 20. And therefore the Court advised Sir Christopher Heydon to sue unto the Kings Majesty by Petition to have a new Writ of Error for without Petition he cannot have the Writ 32 E. 3 1. 8 E 2. Error 88. And the Justices gave him warning to do it in time convenient otherwise they would award Execution if they did perceive the same to be meerly for delay according to the Cases in 6 H 7. 8 â— 7. And afterwards the Parliament being upon a sudden dissolved without any thing done therein Execution was awarded Pasch 12 Iacobi in the Kings Bench. 346. BLITHMAN and MARTIN's Case IOhn Blithman brought an Action upon the Case against Martin upon an Assumpsit and recovered And it was moved That because the Consideration which was the Cause of the Action was against Law that the Judgment might be stayed For the Plaintiffe did alleadge the same to be in consideration That if the Plaintiff being Goaler of such a Prison in Devâ—nshire would deliver one who was in Execution for Debt he promised to give him Twenty pounds And he alleadged in facto that he did deliver him the Debt not being satisfied And because the Consideration was to do a thing which was against the Law the opinion of the Court was that it was void and that the Plaintiffe should not have Judgment Pasch 12 Iacobi in the Kings Bench. 347. SHERLOE's Case SHerloe brought an Action of Assault and Battery and declared Quod eum the Defendant verberavit And did not shew certain nor alleadge precisely in his Declaration That the Defendant did beat him Exception was taken unto it For there is a difference betwixt a Declaration in an Ejectione Firme Debt and this Action for in those Actions such Declaration is good but not in this Action And to prove the same one Sheriffe and Bridges Case in 39 Eliz. was cited where such Declaration was adjudged void But yet the opinion of the Justices was That the Declaration was good enough notwithstanding the said Judgment in 39 Eliz. Pasch 12 Iacobi in the Kings Bench. 348. GRUBE's Case IT was moved in Arrest of Judgment upon issue joyned inter Mathiam Grub and in the Venire facias he was called Matheum Grub. And Cook Chief Justice said That the Venire facias was vitious but because that the Jury did appear upon the Habeas Corpora the Trial was well enough Pasch 12 Iacobi in the Kings Bench. 349. CROOK and AVERIN's Case CRook Merchant brought an Action upon the Case against Averine for speaking these words viz. Mr. Crook came into Cornwal with a blue Coat but now he hath gotten much wealth by trading with Pirats and by cosening by tale of Pilchers and by Extortion And Cook Chief Justice said That the Law giveth no favour to those verbal Actions and we see there is not any such Action brought in our old Law-books And therefore he said Words ought to be certain And he examined the words in this Case by themselves and said That the first words are not actionable because they are not material And the other words by trading with Pyrats are too general for an honest man might trade with a Pyrate not knowing him to be a Pyrate and so no damage might come to him But as to the other words he gave no opinion Pasch 12 Jacobi in the Kings Bench. 350. CLAYDON Sir JEROM HORSEY's Case CLaydon brought an Action upon the Case against Sir Jerom Horsey for erecting of a house in a certain place called Risborough Common and alleadged in certain That every one who had Common in Risborough pred c. and did not alleadge That the Common is in the Mannor of Risborough But he declared That there is such a Custome within the Mannor of Risborough And the opinion of the Court was That the Declaration was good because there is but one Risborough alleadged and therefore of necessity it must be meant de Manerio Pasch 12 Iacobi in the Kings Bench. 351. The CLOTHWORKERS of IPSWICH Case THe Masters and Wardens of the Clothworkers of Ipswich in the County of Suffolk brought an Action of Debt for 3l. 13s. 4d. against D. and declared That the King who now is had incorporated them by the same name c. And had granted unto them by Charter Quod nullus exerceat artem sive occupationem in aliqua shoppa domo sive camera infra villam predict of a Clothworker or Tailor nisi ante eos vel duos eorum probationem faceret quod Apprentic fuit per spacium 7 annorum per eos sive duos eorum sit approbat sub paena 3l. 13s. 4d. pro qualibet septimana qua exerceat predict artem contra hanc constitutionem And layed in facto That the Defendant had used the Trade of a Tailor for the space c. against c. The Defendant pleaded That he was retained in service with one Mr. Pennel Gen of Ipswich and had been an Apprentice for the space of seven years in tali loco c. And that he made garments for his said Master and his wife and their children infra c. quae quidem exercitio est eadem exercitio artis which is supposed by the Plaintiffs in their Declaration Upon which the Plaintiffs did demur in Law Goldsmith for the Plaintiffs That the Plea in Bar is void For every Plea in Bar ought to confesse and avoid traverse or deny that which is alleadged in the Plaintiffs Declaration But this Plea in Bar had not done any of them and therefore was void For the exercising of the Trade which he hath confessed in his Bar cannot be intended the same matter with which the Plaintiffs have charged him in their Declaration and therefore it is no good bar at all And to prove the same vide 14 H. 6. 2. 35 H. 6. 53. 12 H. 7. 24. 27 H. 8. 2. Sir Robert Hitcham for the Defendant And he held that the matter is well confessed and avoided because that usage which he hath confessed in the Bar is colourable the same usage with which the Plaintiffs have charged him in their Declaration As in a Writ of Maintenance the Defendant saith That he was of Councel with the party being a Serjeant at Law c. which is the same Maintenance which is supposed by the Plaintiffe vide 28 H. 6. 7. 12. 19 H.
Contracts made upon the Sea by them or their Factors And for the Antiquity of the Court v. t' E. 1. sitz t' Annuity 7 R. 2. t' trespas in Statham And so long as there hath been any Commerce and Traffique by this Kingdom so long there hath been a Court of Admiralty 3. He said The Court of Admiralty is no Court of Record in which a Writ of Error lieth 37 H. 6. acc ' 4. He considered the place And that he said was of things super altum mare only as appeareth by the Stat. of 13 R. 2. And he said That all the Ports and Havens within England are infra corpus Comitatus and vouched 23 H. 6. 30 H. 6. Hollands Case who was Earl of Exeter and Admiral of England who because he held plea in the Court of Admiralty of a thing done infra Portam de Hull damages were recovered against him of 2000l And he said That if the Court and Civil Law be allowed then he said the Customs of that Court ought to be allowed and he said That the Custome of the Civil Law is That in no case the Surety is chargeable when the Principal is sufficient And he agreed with the Doctors That the word Haeredes ought to be in the Stipulation because those beyond the Seas did not take any cognisance of the word Executors Also he said That they may take the body in Execution which are for the most part the Masters of the ships and Merchants who are transeuntes and therefore if they could not arrest their bodies they might perhaps many times lose the benefit of their suits But he said that in no case they might take forth Execution upon Lands And he said That if a Contract be made in Paris in France it shall be tryed either by the Common Law or by the Law of France and if it be tryed here then those of France shall write to the Justices of England and shall certifie the same unto them And he said That in Sir Robert Dudley's Case it was allowed for good Law where a Fine was levied and acknowledged in Orleance in France which was certified and allowed for good by the Common Law here in England But he said That the Civil Law could not determine of the Fine And to conclude he said That no Custome can be good which is against an Act of Parliament The principal Case was adjourned Mich. 13 Jacobi in the Kings Bench. 360. The MAIOR of YORK'S Case IN an Action of False Imprisonment brought It was holden by the whole Court 1. That no man can claim to hold a Court of Equity viz of Chancery by Prescription because every Prescription is against Common Right and a Chancery-Court is founded upon Common Right and is by the Common Law 2. It was holden per Curiam That the King by his Charter cannot grant to another any of the Customs of London But the like Liberties Franchises and Customs as London holdeth or useth the King by his Letters Patents may grant Quaere because the Customs in London are confirmed by Act of Parliament Mich. 13 Jacobi in the Kings Bench. 361. LAMBERT and SLINGBY'S Case A Man brought an Action of Debt as Administrator and took the Defendants body in Execution The Sheriffe suffered him to escape And afterwards a Will was found by which Will the said Administrator is nominated Executor The Question now was Whether he might maintain an Action against the Sheriffe for the Escape as Executor when he was but Administrator at the time and it was the opinion of the Court that the action of Debt against the Sheriff upon the Escape would lie and that the same Debt should be assets in the Executors hands And it was holden cleer That the Executor of an Executor might have Debt upon the Escape for that he is Executor to the first Testator and therefore à fortiori the Action in the principal Case would lie Mich. 13 Iacobi in the Common-Pleas 362. IT was holden by the Court That if a man present by Usurpation to my Advowson within six moneths I may have a Quare Impedit But after the six moneths past if the Church become void I cannot present but am put to my Writ of Right of Advowson And that if a man usurpeth upon the King he is put to his Quare Impedit within the six moneths And it was holden That a double Usurpation upon the King doth put him to his Writ of Right v. 22 24 E. 3 acâ— Pasch 13 Iacobi in the Kings Bench. 363. OWEN alias COLLIN'S Case JOhn Owen alias Collins of Godstow in the County of Oxford was indicted and arraigned of High-Treason for speaking these traiterous English words at Sandwich in the County of Kent viz. If the King be excommunicate by the Pope it is lawfull for every man to kill him and it is no murder For as it is lawfull to put to death a man that is condemned by a Temporal Judge so it is lawfull to kill the King if he be excommunicate by the Pope For that is the execution of the Law and this of the Popes supreme sentence The Pope being the greater includes the King being the lesser To which words he pleaded Not guilty And the Evidence to the Jury was the Major of Sandwich a Parson of the same Town and the Servant of the Town-Clark And this was the sum of the Evidence That the said Owen coming from S. Lucar in Spain spake the said words to divers persons who told them to the Major whereupon the said Major had conference with Owen and then he spake the like words unto the Major and thereupon the Major tendred unto him the Oath of Allegiance which he refused to take and he put his hand to awriting containing the said words as his opinion and further said That if he had twenty hands he would put them all to it The Exception which Owen took unto the Evidence given against him was That he did not speak of the King of England But the same was said to be a simple Exception For before he spake the words to the Major the Major asked him if he were an Englishman or not To which he answered that he was and then after he spake the said words to the Major which must necessarily have reference to the speeches which were before betwixt him and the Major And Cook Chief Justice said That if he had not spoken of the King of England but of the King generally yet it had included the King of England The matter of his Indictment of Treason was not grounded upon the Statute of Supremacie but upon the Common-Law of which the Statute of 25 â— 3. is but an Explâ—nation which was his intent to compass the death of the King And he said That notwithstanding that the words as to this purpose were but conditional viz. If he were Excommunicate yet he said it was High-Treason For proof of which two Cases were cited The Duke of Buckingham in
the time of King Henry the 8. said That if the King should arrest him of High-Treason that he would stab him with his dagger and it was adjudged a present Treason So was it also adjudged in the Lord Stanley's Case in the time of King Henry the 7. who seeing a Young-man said That if he knew him to be one of the Sons of E. 4. that he would aid him against the King In the like manner a woman in the time of Hen. 8. said That if Henry the 8. would not take again his wife Queen Katherine that he should not live a year but should die like a dog So if discontented persons with Inclosures say That they will petition unto the King about them and if he will not redress the same that then they will assemble together in such a place and rebell In these Cases it is a present Treason and he said That in point of Allegiance none must serve the King with Ifs and Ands. Further Cook Chief Justice said That Faux the Gunpowder Traitor being brought before King James the King said to him Wherefore would you have killed me Faux answered him viz. Because you are excommunicated by the Pope How said the King He answered Every Maunday-Thursday the Pope doth excommunicate all Herâ—tiques who are not of the Faith of the Church of Rome and you are within the same Excommunication And afterwards Owen was found guilty and Judgment of Treason was given against him Mich. 13 Jacobi in the Kings Bench. 364. SIMPSON'S Case RIchard Simpson a Copy-holder in Fee jacens in extremis made a Surrender of his Copyhold habendum to an Enfant in ventrefamier and his heirs and if such Enfant die before his full age or marriage then to John Simpson his brother and his heirs The Enfant is born and dieth within two moneths Upon which John was admitted and a Woman as Heir-general to the Devisor and to the Enfant is also admitted and entreth into the Land against whom John Simpson brought an Action of Trespasse and it was adjudged against the Plaintiffe And two points were resolved in this Case 1. That a Surrender cannot begin at a day to come no more then a Livery as it was adjudged 23 Eliz in this Court in Clarks Case 2. That the Remaindor to John Simpson cannot be good because it was to commence upon a Condition precedent which was never performed And therefore the Surrender into the hands of the Lord was void for the Lord doth not take but as an Instrument to convey the same to another And it was therefore said That if a Copy-holder in Fee doth surrender unto the use of himself and his heirs because that the Limitation of the use is void to him who had it before the Surrender to the Lord is void Trin. 13 Jacobi in the Chancery 365. The Lord GERARD'S Case IT was holden in the Chancery in the Lord Gerards Case against his Copyholds of Aâ—dley in the County of Stafford That where by antient Rolls of Court it appeareth that the Fines of the Copyholds had been uncertain from the time of King Hen. the 3 to the 19 of H. the 6. and from thence to this day had been certain Except twenty or thirty That these few antient Rolls did destroy the Custome for certainty of Fine But if from 19 H. 6. all are certain except a few and so incertain Rolls before the few shall be intended to have escaped and should not destroy the Custome for certain Fines Hill 13 Jacobi in the Common-Pleas 366. BAGNAL and HARVEY'S Case IN a Writ of Partition it was found for the Plaintiffe And a Writ was awarded to the Sheriffe that he should make the partition And the Sheriffe did thereupon allot part of the Lands in severalty and for other part of the Lands the Jurors would not assist him to make the partition All which appeared upon the Retorn of the Sheriffe And an Attachment was prayed against the Jurors who refused to make the Partition and a new Writ was prayed unto the Sheriffe And the Court doubted what to do in the Case whether to grant an Attachment or not and whether a new Writ to the Sheriffe might be awarded And took time to advise upon it and to see Presidents in the Case Hill 13 Iacobi in the Kings Bench. 367. BLANFORD'S Case A Man seised of Lands in Fee devised them unto his Wife for life and afterwards to his two Sons if they had not issue males for their lives and if they had issue males then to their issue males and if they had not issue males then if any of them had issue male to the said issue male The wife died the sons entred into the lands and then the eldest son had issue male who afterwards entred and the younger son entred upon the issue and did trespasse and the issue brought an Action of Trespasse And it was adjudged by the whole Court that the Action was maintainable because by the birth of the issue male the lands were devised out of the two sons and vested in the issue male of the eldest Crook Justice was against the three other Justices Hill 13 Iacobi in the Kings Bench. 368. BROOK and GREGORY'S Case IN a Replevin the Defendant did avow the taking of the Cattle damage feasants And upon issue joyned it was found for the Plaintiffe in the Court at Winsor being a Three-weeks Court And the Defendant brought a Writ of Error and assigned for Error That the Entry of the Plaint in the said Court was the 7. day of May and the Plaintiffe afterwards did Declare there of a taking of the Cattel the 25. day of May. And whether the same was Error being in a Three-weeks Court was the Question and 21 E. 4. 66. was alleadged by Harris that it was no Error But the Court held the same to be Error because no Plaint can be entred but at a Court and this Entry of the Plaint was mesne betwixt the Court dayes and so the Declaration is not warranted no â—ustome being alleadged to maintain such an Entry 2. It was holden by the Court in this Case That 〈…〉 est erratum is pleaded the Defendant cannot alleadge Dimâ—â—â—tion because there is a perfect issue before 3. It was holden That a 〈◊〉 cannot alleadge Diminution of any thing which appeareth in the Râ—â—â—d to be 〈◊〉 And because the Defendant â—id alleadge Diminution 〈◊〉 Case of the Record and by the Record it was certified that the 〈◊〉 was entred the 25 day of May the same was not good after issue joyned and after Judgment is given upon the â—â—â— Record upon the first Dâ—â—â—aration and Pleading in the said Court of Winsor And therefore the Judgment was reversed by the opinion of all the Justices Hill 13 Iacobi in the Kings Bench. 369. BISSE and TYLER'S Case IN an Action of Trover and Conversion of goods the Defendant said That J. S. was possessed of the said goods and sold them unto him in open market
duty did survive with the wife or were extinguished by the entermarriage was the Question And Hâ—bart Chief Justice and Warburton were against Winch and Hutton Justices That the marriage was a Release or discharge of the 100â— Quaere Hill 15 Jacobi in the Kings Bench 380. PLOT' 's Case AN Enâ—ant brought an Assise in the Kings Bench for Lands in Mich depending which The Tenant in the same Assise brought an Assise for the same Lands in the Common-Pleas which last Writ bore date and was recornable after the first Writ And the Demandant in the second Writ did recover against the Enfant by default by the Aâ—â—â—se who found the Seisin and Disseisin And upon a Plea in 〈◊〉 of the first Assise of that Recovery the Enfant by way of Replication set forth all the special matter And that the Deâ—andant at the time of the second Writ brought was Tenant of the Land And prayed that he might 〈◊〉 the Recovery And it was adjudged That he might falsifie the Recovery For in all Cases where a man shall not have Error noâ—â—â—taint he may Falsifie But in this case he could not have Error nor Attaint because the Judgment in the Common-Pleas was not given only upon the Default but also upon the Verdict And it should be in vain for him to bring an Attaint because he shall not be 〈◊〉 to give other Evidence then what was given at the first Trial. Also he shall falsifie the Recovery because it was a practise to defeat and take away the Right of the Enfant and to leave him without any remedy whatsoever Pasch 16 Iacobi in the Kings Bench. 381 INGIN and PAYN'S Case LEssee for years was bounden in a Bond to deliver the possession of a house unto the Lessor his heirs and assignes upon demand at the end of the term The Lessor did bargain and sell the Rendition by Deed enrolled to two One of the Bargainees at the end of the term demanded the Delivery of the Possession The Lessee refused pretending that he had no notice of the bargain and sale It was adjudged that the Bond was forfeited Pasch 16 Iacobi in the Common-Pleas 382. JERMYN and COOPER'S Case A Man by Deed gave Lands to A. and to a Feme sole and to their heirs and assigns for ever Habendum to them and to the heirs of their bodies the Remainder to them and the survivor of them for ever And it was adjudged by the Court That they had an Estate in tail with the Fee-simple Expectant Pasch 16 Jacobi in the Kings Bench. 383. A Man was Indicted De verberationem vulnerationem of J. S. and the words vi armis were left out of the Indictment And the same was adjudged to be helped by the Statute and that the Indictment was good Mich. 16 Jacobi in the Kings Bench. 384. BARNWEL and PELSIE'S Case A Parson did Covenant and grant by Deed with one of his Parishioners That in consideration of Six pounds thirteen shillings and four pence per annum be paid unto him that the said Parishioner should be discharged of all Tythes upon condition to be voyd upon default of payment Afterwards the Parson against his grant did sue the Parishioner in the Spirituall Court for Tythes in kind and it was moved for a Prohibition But the Court would not grant it because that the Originall viz. the Tythes do belong to spirituall jurisdiction But it was said that the Parishioner might have an Action of Covenant against the Parson upon the Deed in the Temporall Court 385. Posch 16 Jacobi in the Kings Bench. AN Action upon the Case was brought for speaking of these words viz. J. S. 34 years since had two Bastards and hath paid for the nursing of them And the Plaintiff shewed that by reason of these words contention grew betwixt him and his wife almost to a Divorce And it was adjudged That an Action would not lye for the words And the Chief Justice said That an Action upon the Case doth not lye for every ill word but for words by speaking of which the Plaintiff is damnified and that cannot be in this Case the time being so long past And the causes wherefore a man shall be punished for saying that a man hath a Bastard are twoâ— the one because by the Statute of 14 Eliz. the offender is to be punished for the same And secondly because the party by such means is discredited or hindered in his preferment Hill 16 Iacobi in the Kings Bench. 386 HURLSTON and WODROFS Case HEnry Hurlston was Plaintiff against Robert Wodroffe in an Action of Debt upon a Demise of a Messuage with a Sheep-walk the Latin word being Ovile And it was moved in arrest of Judgement after a verdict found for the Plaintiff That the sheepwalk was not alledged to be appurtenant nor pleaded to be by Grant by Deed. But notwithstanding that it vvas ruled by the vvhole Court because it rested indifferent whether there was a grant by Deed or not That when the Jury find that the Sheep-walk did passe it shall be intended that there was a Deed. Dodderidge Justice in the Argument of this Case did hold That by the word Ovile although it be translated in English a Sheep-walk yet a Sheep-walk did not passe by it but a Sheep-Cote and by that the Land it self did passe Hill 16 Iacobi in the Kings Bench. 387. HILL and WADE'S Case HIll brought an Action upon the Case against Wade and declared upon an Assumpsit to pay mony upon request and did not alleadge the Request certain but issue was joyned upon another point and found for the Plaintiffe That the failing of certain alleadging of the Request in the Declaration made the same insufficient And so it was adjudged by the Court with this difference where it was a duty in the Plaintiffe before and where the Request makes it a duty For in the first case the Plaintiffe need not alleadge the Request precisely but otherwise in the later Dodderidge Justice put this Case If I promise J. S. in consideration that he will marry my daughter to give him 20â— upon request there the day and place of the request ought to be alleadged in the Declaration Montagu Chief Justice cited 18 E. 4. and 5 H. 7. to be contrary viz. That the finding of the Jury made the Declaration which was vitious to be good As if Executors plead That they have nothing in their hands the day of the Action brought it is insufficient But if the Jury find Assets it is good and so by consequence the Verdict shall supply the defect of Pleading But the Court held these books to be good Law and not to be contrary and well reconciled with this difference For there the Plea was naught only in matter of circumstance but otherwise it is where it is vitious in substance as in this case it is And a difference also was taken where the Verdict doth perfect all which is material and ought to be expressed
and where not For in the principal Case notwithstanding that the Jury find the Assumpsit yet the same doth not reach to the Request and without that the Assumpsit is void Dodderidge Justice cited 5 E. 4. That if the Declaration be vitious in a point material and issue is taken upon another point there the finding of it by the Jury doth not make the Declaration to be good And so in the principal Case Judgment was given for the Defendant In this Case it was agreed That if a man bring an Action of Trover and Conversion and not alleadge a place where the Conversion was Although the issue for the Trover be found for the Plaintiff yet he shall not have Judgment Hill 16 Iacobi in the Kings Bench. 388. GODFREY and DIXON'S Case COrnelius Godfrey brought an Action of Debt upon a Lease against Dixon and declared That Cornelius Godfrey his Father being an Alien had issue Daniel Godfrey born in Flanders the Father is made a Denizen and hath issue the Plaintiffe his second son born in England The Father dieth Daniel is Naturalized by Act of Parliament and made the Lease to Dixon for years rendring Rent and dyed without issue And the Plaintiffe his brother brought an Action of Debt for the Arrearages as heire and upon that it was demurred in Law And George Crook in his Argument said That Inheritance is by the Common-Law or by Act of Parliament And that three persons cannot have heirs in travnsersali linea but in recta linea viz. 1. A Bastard 2. A person Attainted 3. An Alien see for that 39 E. 39. Plow Dom. 445. 17. E. 4. 1. 22 H. 6. 38. 3 E. 1. sitz t' Cousinage 5. Dr. Student And he said That Denization by the Kings Charter doth not make the heir inheritable 36 H. 8. Br. to Denizen and C. 7. part 77. And he said That he who inheriteth ought to be 1. Next of blood 2. Of the whole blood and 3. He ought to derive his Pedigree and discent from the stock and root Bracton lib. 2. fol. 51. And he said That if a man doth covenant to stand seised to the use of his brother being an Alien that the same is not good and the use will not rise But that was denyed by the Court. And he said That an Alien should not have an Appeal of the death of his brother And he took a difference betwixt an Alien and a person Attainted and said that the one was of corrupt blood the other of no blood and cited 9 E. 4. 7. 36 Eliz. Hobby's Case Dodderidge upon the argument of this Case said That if a man claim as Cousin and Heir he must shew how he is Cousin and Heir but not when he claims as Brother or Son and Heir The Case was adjourned Hill 16 Iacobi in the Kings Bench 389 GRAY'S Case AN Action of Debt was brought upon a Bond with Condition to stand to an Arbitrement and also that he should not begin proceed in or prosecute any suit against the Obliger before such a Feast The Obliger did continue a Suit formerly brought George Crook said That the Bond was forfeited because it is the act of the Obliger to continue or discontinue a suit and profit accrues to him therefore it shall be adjudged his act But it is otherwise of an Essoin because that that may be cast by a stranger And he cited the books of 36 H. 6. 2. 5 H. 7. 22 14 E. 41. 18 H. 6. 9. And he held That it was a good Award to continue or discontinue a suit because it is in the power of the party to do it or not Hill 16 Jacobi in the Kings Bench. 390 SLYE'S Case IN a Scire facias to have Execution the Sheriffe retorned That by vertue of a Writ of Fieri facias he took the goods in Execution ad valentiam of 11l. which remained in his custody for want of buyers and that they were rescued out of his possession Mountagu Chief Justice and Dodderidge Justice The Plaintiffe shall have an Execution against the Sheriff relyed upon the book of 9 E. 4. 50. 16 E. 4. Faulconbridge Case 7 Eliz. Dyer 241. 5 E. 3. t' Execution C. 5. par Pettifers Case And Dodderidge said That by this Retorn he had concluded himself and was liable to the value of 11l. And he took this difference where the Sheriffe by vertue of the Writ Venditioni exponas sels the thing under the value there he shall be discharged but otherwise where he sels the goods ex officio Crook and Haughton Justices The Plaintiffe shall not have a Scire facias against the Sheriffe but where he hath the money in his purse And they said That the Plaintiffe must have a Distringas directed to the new Sheriffe or a Venditioni exponas Note the Court was divided in opinion But the Law seems to be with Crook and Haughton and the books before cited prove their difference and warrant it Hill 16 Iacobi in the Kings Bench. 391 Sir JOHN BRET and CUMBERLAND'S Case IN an Action of Covenant brought by Sir John Bret against Cumberland Executor of I. C. the Case was this Q. Eliz. by her Letters Patents did demise a Mill unto the Testator for 30 years reserving Rent and these words were in the Letters-Patents viz. That the Lessee his Executors and Assignes should repair the Mill during the Term. The Lessee assigned over all his interest unto Fish who attorned Tenant and paid the Rent to the Queen and afterwards the Queen granted the Reversion to Sir John Bret and Margaret his wife The Assignee is accepted Tenant the Mill came to decay for want of Reparations and Sir John Bret brought an Action of Covenant against the Executor of the first Lessee And it was adjudged for the Plaintiffe And Dodderidge Justice gave the reasons of the Judgment 1. Because that by the Statute of 32 H. 8. all the benefit which the Queen had was transferred to the Grantee of the Reversion 2. It might be parcel of the Consideration to have the Covenant against the Lessee For a Mill is a thing which without continual Reparations will be ruinous and perish and decay And he said That the Assignee had his election to bring his Action against the Lessee or against the Assignee because it was a Covenant which did run with the Land Mountagu Chief Justice said That the reason of the three Cases put in Walkers Case is in respect of the Interest And took a difference where there is privity of Contract and where not It was adjourned Hill 16 Jacobi in the Kings Bench. 392. WEBB and TUCK'S Case IN an Action of False Imprisonment it was agreed That a Fine may be assessed for Vert and Venison And it was said in this Case by the Justices That a Regarder is an Officer of whom the Law takes knowledge and so are Justices in Eyre 2. It was agreed That such things of which the Law takes notice
ought to be pleaded 3. That if a man in his pleading is to set forth the jurisdiction of the Court of Justices in Eyre if he say Curia tent c. he need not set forth all the Formalities of it And Mountagu Chief Justice in this Case said That if a man do justifie for divers causes and some of the causes are not good the same doth not make the whole Justification to be void but it is void for that only and good for the residue Hill 16 Iacobi in the Kings Bench. 393 CULLIFORDS Case CVlliford and his Wife brought an Action upon the Case against Knight for words And declared upon these words viz. Thou art Luscombs Hackney a pockey Whore and a theevish Whore and I will prove thee to be so which was found for the Plaintiffe And in arrest of Judgment it was moved that the words were not Actionable which was agreed by the whole Court quia verba accipienda sunt in mitiori sensâ—â—â— And Judgment was staied accordingly Hill 16. Jacobi in the Kings Bench. 371. IN an Action upon the Case for Words The Plaintiffe did relate that he was brought up in the Studie of a Mathematition and a Measurer of Land And that he was a Surveyor and that the Defendant spake these words of him viz. Thou art a Cosener and a cheating Knave and that I can prove And the opinion of the Court was That the words were actionable And Montague Chief Justice said that it was ruled accordingly in 36 Eliz. Rot. 249. betwixt Kirby and Walter And a Surveyor is an Officer of whom the Statute of 5. E. 6. takes notice And he said that Verba de persona intelligenda sunt de Conditione personae And he said that the words are Actionable in regard it is a faculty to be a Measuror of Lands But Dodderidg Justice put it with a difference viz. Betwixt a Measurer of Land by the Pole and one who useth the Art of Geometrie or any of the Mathematicks for he said that in the first Case it is no scandal for that his Credit is not impeached thereby but it is contrary in the other Case because to be a Geometritian or Mathematitian is an Art or faculty which every man doth not attain unto And he put this Case If a man be Bailiffe of my Mannor there no such words can discredit him and by consequence he shall not have an Action for the words because the words do not found in discredit of his Office because the same is not an Office of Skill but an Office of Labour quod nota Hill 16 Jacobi in the Kings Bench. 395. BISHOP and TURNERS Case IN a Prohibition it was holden by the whole Court That for such things as a Church-Warden doth ratione officii no Action will lie by his successor against him in the Spiritual Court and a Churchwarden is not an Officer but a Minister to the Spiritual Court But it was holden that a Churchwarden by the Common Law may maintain an Action upon the Case for defacing of a Monument in the Church Trin. 16 Jacobi in the Kings Bench. 396. BLACKSTON and HEAP'S Case IN an Action of Debt for Rent the Case was this A man possessed of a Tearm for 20 years in the right of his Wife made a Lease for 10 years rendring Rent to him his Executors and assignes and died The Question was whether the Executors or the Wife should have the Rent Haughton and Crook Justices against Montague Chief Justice Doddridg being absent that the Rent was gon But it was agreed by them all that the Executors of the Husband should not have it But Montague held that the Wife should have it But it was agreed that if Lessee for 20 years maketh a Lease for 10 years and afterwards surrendreth his Tearm that the Rent is gon And yet the Tearm for 10 years continues And in the principal Case If the Husband after the Lease made had granted over the Reversion his grantee should not have the Rent But Montague said that in that Case the Wife in Chancery might be Releived for the Rent Mich. 16 Iacobi in the Kings Bench. 397. WAIT and the Inhabitants of STOKE'S Case WAyte a Clothier of Nubery was robbed in the Hundred of Stoke of 50l upon the Saboth day in the time of Divine Service The Question was whether the Hundred were chargeable or not for not making out Hue and Cry And 3 of the Justices were against Montague Chief Justice that they were chargeable For they said that the apprehending of Theeves was a good work and fit for the Saboth day and also fit for the Commonwealth Montague Chief Justice agreed that it was bonum opus and that it might be lawfully done But he said that no man might be compelled upon any penalty to do it upon that day For he said That if he hath a Judgment against I. S. and he comes to the Parish-Church where I. S. is with the Sheriffe and shews unto the Sheriffe I. S. upon the Saboth day and commandeth the Sheriffe to do his Office If the Sheriffe do arrest I. S. in Execution upon that day it is good but if he doth not arrest him it is no escape in the Sheriffe And he took a difference betwixt Ministerial Acts and Judicial Acts for the first might be done upon the Saboth day but Judicial Acts might not But the case was adjudged according to the opinion of the three other Justices Pasch 17 Iacobi in the Kings Bench. 398. SPICER and SPICE'S Case UPon a special Verdict the Case was this A man seised of Gavil-kind Land devised the same to his Wife for life paying out of it 3l per annum to his eldest son and also devised the Land to his second Son paying 3l per annum to his third Son and 20s to such a one his Daughter and whether the second Son had the Land for his life or in Fee was the Question And it was adjudged that he had a Fee-simple in it by reason of the payment of the Collateral Sums of 3l and 20s to his brother and sister which charge to the brother might continue af-after the death of the Devisee and if he should have but an estate for life his charge should continue longer then his own estate And so it was adjudged Mich. 17 Iacobi in the Kings Bench. 399. IN a Habeas Corpora which was to remove two men who were imprisoned in Norwich The Case was this That within Norwich there was a Custom that two men of the said place should be chosen yearly to make a Feast for the Bailiffs and upon refusal for to do it that they should be Fined and imprisoned which two men brought to the Barr by the Habeas Corpra were imprisoned for the same cause It was urged and much stood upon That the Custom was no good Custom for the causes and reasons which are delivered in Baggs Case in C. 11. part But yet at the last the Court did remand
Execution the Defendant A secretè fraudulenter vendidit amovit disposuit of all the Testators goods For which cause the Sheriffe was constrained to retorn Nulla bona c. Ley Chief Justice said That the Action would well lie because the Sheriffe could not retorn a Devastavit because the goods were secretly conveyed away so as the Sheriffe could not tell whether he had sold or otherwise disposed of the said goods and also because the Plaintiffe is destitute of all remedy by any other Action To which Dodderidge Justice did agree But Haughton Justice was against it For he said That if one be to bring an action of Debt against the Heir if the Heir selleth the Land which he hath by discent from his ancestors before the action brought an action upon the Case will not lie against him for so doing Dodderidge said That the Case which was put by Haughton was not like to this Case For in this Case if the Sheriffe had or could have retorned a Devastavit the action upon the Case would not have lien But here the Sheriffe hath not retorned any Devastavit And the sale being secretly made the Sheriffe could not safely retorn a Devastavit for so perhaps he might be in danger of an action upon the Case to be brought against him for making of such a Retorn The Case was adjourned till another day Pasch 21 Jacobi in the Kings Bench. 409. WILLIAMS and GIBB's Case NOte in this Case it was said by Ley Chief Justice That whatsoever is allowed for Divine service or whatsoever cometh in lieu of Tythes and Offerings the same is now become a thing Ecclesiastical And Dodderidge Justice also said That no Law doth appoint that the Vicar or Parson should read Divine Service in two several Parish-Churches but only the Ecclesiastical Law Pasch 21 Iacobi in the Kings Bench. 410. STEWRY and STEWRY'S Case A Bill was exhibited into the Court of Chancery for the traversing of an Office who found one to be in Ward to the King and the parties were at issue super seperales exitus And a Venire facias was awarded out of the Chancery retornable in the Kings Bench directed to the Sheriffe Quod venire faciat 12 homines triare placita traversiae super seperales exitus And it was moved That the several Issues ought to be expressed in the Venire facias Dodderidge Justice It ought not to be Placita traversiae For it shall never be called Placitum but when it is at 〈◊〉 Kings suit And the opinion of the Court was That the Venire facias should be amended and that the several Issues should be expressed therein and Young's Case 20 Jacobi was cited for a President in the very point Pasch 21 Jacobi in the Kings Bench. 411. ASTLEY and WEBB'S Case IN an Ejectione Firme the words vi armis were omitted out of the Plaintiffs Declaration And although this was the default of the Clark yet the same could not be amended but it made the Declaration not to be good Pasch 21 Jacobi in the Kings Bench. 412. WHITE and EDWARD'S Case IN Trespasse Edwards the Defendant being a Clark of the Chancery after an Imparlance could not be suffered to plead his Priviledge It was moved in this Case That the Declaration was viginti opali vocatè Wythies And it was said it should have been anglicè and not vocatè But the opinion of the Court was that vocatè was as good as anglicè Then it was moved that the Declaration was That the Defendant had felled twenty Pearches of Hedging whereas it ought to have been that the Defendant had felled a Hedge containing twenty Pearches for a man cannot cut a Mathematical Pole But the Court said That the Declaration was good notwithstanding that and cited 17 E. 4. 1. where a man sells twenty Acres of Corn and there Exception was taken to it as it is here viz. That it ought to have been twenty Acres sowed with Corn but it was no good Exception there No more was it as the Court said in this Case for it is the common speech to say Twenty perches of hedging A pint of wine An acre of corn c. And therefore the Declaration was ruled to be good notwithstanding these Exceptions which were taken to it by Serjeant Headley Pasch 21 Jacobi in the Kings Bench. 413. BRIDGES and MILL's Case AN action upon the Case was brought for speaking of these words viz. Thou inuendo the Plaintiffe hast ravished a woman twice And I will make thee stand in a white sheet for it Henden Serjeant moved in arrest of Judgment That the action would not lie for the words For he said That by the Common-Law Rape was not Felony but Trespass v. Stamford 23. 6. But now by the Statute of West 2. cap. 34. it is made Felony And he said That the later words viz. stand in a white sheet doth mitigate the former words by reason that in the former words the word Felonice was omitted as the Case is in C. 4. par 20. Barhams Case where the words Thou didst burn my Barn and did not say My Barn full of Corn nor that it was parcel of his Mansion-house and therefore the action would not lie For unlesse the Barn were full with corn or part of a dwelling-house it is not Felony Like unto Humfries Case adjudged in the Common-Pleas where an action upon the Case was brought for these words Thou hast pick'd my Pocket and taken away ten shillings And it was adjudged that the action would not lie For he did not say that he had stollen ten shillings But if he had said nothing but Thou hast pick'd my pocket then the action would have been maintainable Ley and Dodderidge Justices By the Common-Law Rape was Felony and in the said Statute the word Felony is not although it be used in the Indictment It was adjourned But the opinion of the Court seemed to be That the action would lie for the words Pasch 21 Iacobi in the Star-Chamber 414. Sir HENRY FINES Case IN the Case of Sir Henry Fines in the Star-Chamber Exception was taken to one of the Witnesses viz. to Dr. Spicer because that he stole Plate and had been pardoned for it But notwithstanding the Exception the Court did allow of the Testimony of the said Dr. Spicer And then Hobart Chief Justice of the Common-Pleas cited Cuddingtons Case Hill 13 Jacobi to be adjudged Cuddington brought an action upon the Case for calling him Thief The Defendant justified that such a day and year he stole a Horse The Plaintiffe replied That the King had given him a Pardon for all Felonies And it was adjudged that the Action did lie Afterwards at another day Jones and Dodderidge Justices put the Case more largely viz. Cuddington committed Felony 44 Eliz. and 1 Jacobi by the General Pardon he was pardoned And they said That he who procures a Pardon confesseth himself to be guilty of the offence But by the general Pardon
it is not known whether he be guilty or not and in Cuddingtons Case it was a general Pardon and that was the cause that the Action did lie for that it is not known whether he committed the Felony or not But they conceived that if it had been a particular Pardon that then in that case the Action would not have been maintainable For the procuring of a special Pardon doth presuppose and it is a strong presumption that the party is guilty of the offence Note it did not appear in the Case of Fines the principal Case whether the Pardon by which Dr. Spicer was pardoned were a general Pardon or whether it were a particular and special Pardon Pasch 21 Iacobi in the Kings Bench. 415. DAVER's Case IN Davers Case who was arraigned for the death of William Dutton Ley Chief Justice delivered it for Law That if two men voluntarily fight together and the one killeth the other if it be upon a sudden quarrel that the same is but Man-slaughter And if two men fight together and the one flieth as far as he can and he which flieth killeth him who doth pursue him the same is Se defendendo Also if one man assaulteth another upon the High-way and he who is assaulted killeth the other he shall forfeit neither life nor lands nor goods if he that killed the other fled so far as he could Quod nota Pasch 21 Jacobi â—n the Court of Wards 416. Sir EDWARD COKE's Case THis Case being of great consequence and concernment The Master of the Court of Wards was assisted by four of the Judges in the hearing and debating of it and after many Arguments at the Barr the said four Judges argued the same in Court viz. Dodderidge one of the Justices of the Kings Bench Tanfield Lord chief Baron of the Exchequer Hobart Lord Chief Justice of the Court of Common Pleas and Ley Lord Chief Justice of his Majesties Court of Kings Bench The Case in effect was this Queen Elizabeth by her Letters Patents did grant to Sir Christopher Hatton the Office of Remembrancer and Collector of the first Fruits for his life Habendum to him after the death or surrender of one Godfrey who held the said Office then in possession Sir Christopher Hatton being thus estated in the said Office in Reversion and being seised in Fee-simple of diverse Mannors Lands and Tenements did Covenant to stand seised of his said lands c. unto the use of himself for life and afterwards to the use of J. Hatton his son in tail and so to his other sons intail with the Remainder to the right heirs of J. Hatton in Fee with Proviso of Revocation at his pleasure during his life Godfrey the Officer in possession died and Sir Christopher Hatton became Officer and was possessed of the Office and afterwards he became indebted to the Queen by reason of his said Office And the Question in this great Case was Whether the Mannors and Lands which were so conveyed and setled by Sir Christopher Hatton might be extended for the said Debt due to the Queen by reason of the Proviso and Revocation in the said Conveyance of Assurance of the said Mannors and Lands the debt due to the Queen was assign'd over and the Lands extended and the Extent came to Sir Edward Coke and the heir of John Hatton sued in the Court of Wards to make void the Extent And it was agreed by the said four Justices and so it was afterwards decreed by Cranfield Master of the Court of Wards and the whole Court That the said Mannors and Lands were liable to the said Extent And Dodderidge Justice who argued first said that the Kings Majestie had sundry prerogatives for the Recovery of Debts and other Duties owing unto him First he had this prerogative ab origine legis That he might have the Lands the Goods and the Body of the Person his Debtor in Execution for his Debt But at the Common Law a common person a common person could not have taken the body of his debtor in execution for his debt but the same priviledg was given unto him by the Statute of 25. E. 3. cap. 17. At the Common Law he said that a common person Debtee might have had a Levari facias for the Recovery of his Debt by which Writ the Sheriffe was commanded Quod de terris Catallis ipsius the Debtor c. Levari faciat c. but in such Case the Debtee did not meddle with the Land but the Sheriffe did collect the Debt and pay the same over to the Debtor But by the Statute of West 2. cap 20. The Debtee might have an Elegit and so have the moyetie of the Lands of his Debtor in Execution for his Debt as it appeareth in C. 3. part 12. in Sir William Harberts Case Secondly He said That the King had another prerogative and that was to have his Debt paid before the Debt of any Subject as it appeareth 41. E. 3. Execution 38. and Pasc 3. Elizabeth Dyer 197. in the Lord Dacres and Lassels Case and in M. 3. E. 6. Dyer 67 Stringfellows Case For there the Sheriffe was amerced because the King ought to have his Debt first paid and ought to be preferred before a Subject vid. 328 Dyer There the words of the Writ of Priviledg shew that the King is to be preferred before other Creditors By the Statute of 33. H. 8. cap. 39. The Execution of the Subject shall be first served if his Judgment be before any Processe be awarded for the Kings debt In the Statute of 25. E. 3. Cap. 19. I find that by the Common Law the King might grant a Protection to his Debtor that no other might sue him before that the King was satisfied his debt See the Writ of Protection Register â— 81. B. the words of which are Et quia nolumus solutionem debitorum nostrorum caeteris omnibus prout ratione Perogativae nostrae totis temporibus retroactis usitatae c. But that grew such a Grievance to the Subject that the Statute of 25. E. 3. Cap. 19. was made And now by that Statute a common person may lawfully sue to Judgment but he cannot proceed to Execution and so the Kings Prerogative is saved unless the Plaintiffe who sueth will give security to pay first the Kings Debt For otherwise if the Paty doth take forth Execution upon his Judgment and doth levy the money the same money may be seized upon to satisfie the Kings Debt as appeareth in 45. E. 3. title Decies tantum 13. The third Prerogative which the King hath is That the King shall have the Debt of the Debtor to the Kings Debtor paid unto him v. 21 H. 7. 12. The Abbot of Ramseys Case The Prior of Ramsey was indebted to the King and another Prior was indebted to the Prior of Ramsey and then it was pleaded in Barr that he had paid the same Debt to the King and the Plea holden for a good Plea
puisne or the lesser Debt and although the Debtor be able and sufficient to pay both Debts viz. the Kings Debt and the Debt owing to the Subject yet the Kings Debt is to be first paid Now to apply these cases to the Case in question Here is a Subject who is indebted to the King And I say That the Lands which such a Debtor hath in his power and dispose although he hath not any Estate in the Lands shall be liable to pay the Debt to the King And I say That Sir Christopher Hatton had a Fee in the Mannors and Lands in this case And although he did convey them bona fide yet untill his death by reason of the Proviso of Revocation they were extendable Trin. 24. E. 3. Rot. 4. Walter de Chirton Customer who was indebted to the King for the Customs purchased Lands with the Kings monies and caused the Feoffor of the Lands to enfeoffe certain of his friends with an intent to defraud and deceive the King and notwithstanding he himself took the profits of the Lands to his own use And those Lands upon an Inquisition were found and the values of them and retorned into the Exchequer and there by Judgment given by the Court the Lands were seized into the Kings hands to remain there untill he was satisfied the Debt due unto him And yet the Estate of the Lands was never in him But because he had a power viz. by Subpena in Chancery to compell his Friends to settle the Estate of the Lands upon him therefore they were chargeable to the Debt You will say perhaps there was Covin in that Case But I say that neither Fraud Covin nor Collusion is mentioned in the Report in Dyer 160. C. 11. par 92. And that Case was a harder Case then our Case is For Walter de Chirton in that Case was never seised of the said lands But in our Case Sir Christopher Hatton himself had the lands And when he had the lands he was assured of the Office although he had not the possession of it For he was sure that no other could have it from him and no other could have it but himself And for another cause our Case is a stronger Case then the Case of Walter de Chirton For Chirton had no remedy in Law to have the lands but his remedy was only in a Court of Equity and a remedy in Consc ' onely But in our Case Sir Christopher Hatton had a time in which he might let the land to passe and yet he had a power to pull it back again at his pleasure So as he had the disposition of it but before the alteration of the uses he dyed And if he had been living being indebted to the King the King might have extended the lands because that then he had the possession of them There were two Considerations which moved Sir Christopher Hatton to Convey the Lands the first was honorable viz. For the payment of his Debts the second was natural viz. For the preferment of his Children Although the Conveyance of the Lands for payment of his Debts was but for years yet the same was too short like unto a Plaister which is too short for the sore For the Covenanters were not his Executors and so they were not liable to Debts And although he be now dead and cannot revoke the former uses yet he had the power to revoke the uses during his life And so he was chargeable for the Debt due to the King Tanfield Chief Baron agreed with Justice Dodderidge in all as before And he said That all powerful and speedy courses are given unto the King for the getting in of his Revenues and therefore he said he had the said Prerogatives as have been recited And in 25 E. 3. in libro rubro in the Exchequer there the Foundations of the said Prerogatives do appear If a common person arrest the body in Execution he shall not resort to the lands contr to Blumfields Case C. 5. par The course of the Exchequer makes a Law every where for the King If any Officer be indebted unto the King and dyeth the course of the Exchequer is For to call in his Executors or the Heir or the Terre-Tenants to answer the Debt and if he hath no lands then a Writ issueth out of the Exchequer to know what goods he had and to whose hands they be come All Inquisitions concerning Lands in the like Cases are Habuit vel seisitus and not that he was seised onely The word Habuit is a large word and in it is contained a disposing power But in this Case Sir Christopher Hatton had a power every day to revoke the uses And when he had once revoked them then was he again as before seisitus 7 H. 6. in the Exchequer the Kings Farmor had Feoffees to his use and dyed indebted to the King And upon an Inquisition it was found that Habuit for he had them in his power by compelling his Feoffees by Equity in Chancery and therefore it was adjudged that the King should have the Lands in the Feoffees hands in extent But in this case Sir Christopher Hatton might have had the Lands in him again without compulsion by a Court of Equity for that he had power to revoke the uses in the Conveyance at his pleasure Mich. 30. H. 6. rot in the Exchequer A Clark of the Court was assigned to receive monies for the King who had Feoffees of lands to his use And the lands were found and seised for the Kings monies by force of the word Habuit 32 H. 6. Philip Butler's Case who was Sheriffe of a County being indebted to the King his Feoffees were chargeable to the Kings debt by force of the word Habuit For habuit the lands in his power 6 E. 4. Bowes Case acc ' 34 H. 6. A widow being indebted to the King her Feoffees were chargeable to pay the Kings debt because she had power of the lands It being found by Inquisition that habuit 1 R. 3. the like Case And 24 Eliz. in Morgan's Case it was adjudged That lands purchased in the names of his Friends for his use were extended for a debt due by him to the King Hobart Lord Chief Justice of the Common Pleas argued to the same purpose and agreed with the other Justices and he said in this case it was not material whether the Inquisition find the Deed to be with power of Revocation For he said that the Land is extended and that the extent remains good untill it be avoided And he said that a revocable Conveyance is sufficient to bind the Parties themselves but not to bind the King but the Lands are lyable into whose hands soever they come When a man is said to forfeit his body it is not to be intended his life but the freedom of his body Imprisonment At the Common Law a Common person could neither take the bodie nor the Lands in Execution But yet at the Common Law
the possession is bound by the Judgment of Attaindor and the Act of Parliament 5 H. 7. 31. 7 H. 7. 15. 16 H. 7. 8. A discent of land shall not make a title against the King or any other who hath the land by an Act of Parliament But then in our Case If there should be a Remitter yet the same is overreached by the Office 〈◊〉 part 10. before the Statute of 33 H. 8. cap. 20. there ought to have been an Office found in the Case of Attaindor of Treason Br. Cases 103. Brook Office Devant c. 17. I do not mean an Office of intitling but an Office declaratory of a conspicuous title C. 5. part 52. There are two manner of Offices One which vesteth the estate and possession of the land c. in the King Another which is an Office of Instruction and that is when the estate of the land is lawfully in the King but the particularity thereof doth not appear upon record And the Office of Instruction shall relate to the time of the Attaindor not to make Queen Elizabeth in our Case in by discent but to avoid all meâ—ne Incombrances And is not this Remitter an Incombrance And for that purpose the Office shall relate For in things of Continuance Nullum tempus occurrit Regi C. 7. part 28. For so the rule of Nullum tempus c. is to be understood of a thing of Continuance and not a thing unica vice v. Fitz. Entre Congeable 53. Trav. 40. where it is said Where the King hath cause to seise for the forfeiture of Tenant for life if the Tenant for life dyeth the Reversion may enter for in that case Tempus occurrit Regi and the King cannot seize after the death of the Tenant for life 35 H. 6. 57. There is no discent against the King and if there be no discent then there is no Remitter The consequence of all this is That the Office doth relate to the Right And that the Monstrans de Droit doth not lie And the want of Office found for all this time was the fault of the Kings Officers and shall not prejudice the King But if the Office should not relate then the Monstrans de Droit would lie because then the King was in but by one single matter of Record We shew in the Office 33 Eliz. That there issued forth a Commission directed to certain of the Privy-Councel to enquire of the Treason and if Francis Bigot upon the Treason were Indicted And in our Case we shew immediately another Commission was directed to the Lord Chancellor and the two Chief Justices c. to arraign Francis Bigot And all that is confessed by Ratcliffe himself viz. modo forma And therefore the Objection which Glanvile made was frivolous viz. That it did not appear that Francis Bigot was attainted by Verdict by Confession or by Outlawry And so he concluded That for these causes the Judgment given in the Court of Common-Pleas ought to be reversed George Crook argued for Ratcliffe and he prayed that the Judgment might be affirmed I will argue only these points following 1. That Francis Bigot had not so much as a right of Action at the time of his Attaindor for he had not any right at all 2. Admit that he had a right of Action If this right of Action be given to the King by the said Statutes of 26 31 H. 8. It was objected That the right being clothed with a possession that the same is given to the King But I will prove the contrary 3. When Francis Bigot being Tenant in tail and being attainted and executed for Treason and then Katherine his wife dyeth being one of the Donees in tail 21 H. 8. and the lands discend to Ratcliff If the Office afterwards found shall relate to take away the Remitter I say it doth not but that his Remitter doth remain to maintain his Monstrans de Droit and he is not put to his Petition The chief point is What right Francis Bigot had at the time of his Attaindor 1. When Ralph Bigot being Tenant in tail 6 H. 8. made a Feoffment in Fee what right remained in Francis his Son The right is in abeyance viz. in nubibus that is in custodia Legis And then Francis Bigot had no right of that entail 21 H. 8. when he made the Feoffment Com. 487. There Jus is divided viz. Jus recuperandi Jus in randi Jus habendi Jus retinendi Jus percipiendi Jus possedendi but here Francis Bigot had not any of these rights Com. 374. if the Discontinuee of Tenant in tail levieth a Fine with proclamations and five years passe and Tenant in tail dyeth the issue in tail shall have other five years because he is the first to the right 19 H. 8. 7. C. 7. part 81. If Donee in tail maketh a Feoffment in Fee in rei veritate the Donee hath not jus in re neque ad rem C. 3. part 29. Litt. 649. There it appeareth that the right to an estate tail may be in abeyance Com. 552. Walsinghams Case There the King gave land in tail to Wyat who made a Feoffment unto Walsingham Afterwards Wyat was attainted of Treason and there the estate tail of Wyat was forfeited but the cause there was because that the reversion was in the Crown and so no discontinuance by his Feoffment because that the reversion was in the Crown In our Case no right of the estate tail was in Francis Bigot after the Feoffment unto his own use but the right is in abeyance It was objected That the Writ of Formedon is Discendit jus and the Monstrans de Droit was so I answer It is so in point of form in the Writ but not in substance C. 7. part 14. Tenant in tail makes a Lease for life and Tenant for life dyeth Now he hath an ancient right and the Donor may avow upon the Tenant in tail notwithstanding his Feoffment but that is by reason of privity and not by reason of any right he hath Jus recuperandi did discend to the issue in tail viz. Francis Bigot 21 H. 8. He who hath a right of Action giveth the same away by his Livery and Feoffment as appeareth by the Cases put in C. 1. part 111. It was objected That Cestuy que use was an Attorney or Servant therefore he doth not passe his own right for he cannot make an Attorney to make Livery and 9 H. 7. 26. was cited to be adjudged so But it is adjudged to the contrary M. 25 H. 8. in the Kings Bench rot 71. betwixt the Bishop of London and Kellet as it appeareth in Dyer 283. and Bendloe's Reports and C. 9. part 75. For there it is expresse that Cestuy que use may make a Letter of Attorney to make Livery which proves that he makes not the Feoffment as a Servant but as Owner of the Land It was objected That Cuesty que use was as an Executor but that I deny 49
is in the wife but the cause thereof is because it was once coupled with a possession C. 7. part Nevils Case There was a question whether an Earldom might be entailed and forfeited for Treason which is a thing which he hath not in possession nor use but is inherent in the blood And there resolved that the same cannot be forfeited as to be transferred to the King but it is forfeited by way of discharge and exoneration 12 Eliz. Dyer the Bishop of Durhams Case There if it had not been for the saving the Regal Jurisdiction of the Bishop had been given to the King by the Statute of 26 H. 8. This Statute of 26 H. 8. was made for the dread of the Traitor For the times past saw how dangerous Traitors were who did not regard their lives so as their lands might discend to their issue It was then desperate for the King Prince and Subject For the time to come it was worse The Law doth not presume that a man would commit so horrid an act as Treason so it was cited by Mr. Crook who cited the case That the King cannot grant the goods and lands of one when he shall be attainted of Treason because the Law doth not presume that he will commit Treason If the Law will not presume it wherefore then were the Statutes made against it If the Land be forfeited by the Statute of 26 H. 8. much stronger is it by the Statute of 31 H. 8. But then admit there were a Remitter in the Case yet by the Office found the same is defeated Without Office the Right is in the King Com. 486. c. 5. part 52 where it is said There are two manner of Offices the one which vests the estate and possession of the Land c. in the King where he had but a Right as in the case of Attaindor the Right is in the King by the Act of Parliament and relates by the Office Com. 488. That an Office doth relate 38 E. 3. 31. The King shall have the mean profits The Office found was found in 33 Eliz. and the same is to put the King in by the force of the Attaindor which was 29 H. 8. and so the same devests the Remitter Tenant in tail levieth a Fine and disseiseth the Conusee and dyeth the issue is remitted then proclamations pass now the Fine doth devest the Remitter C. 1. part 47 Tenant in tail suffereth a common Recovery and dyeth before Execution the issue entreth and then Execution is sued the Estate tail is devested by the Execution and so here in our Case it is by the Office C. 7. part 8. Tenant in tail maketh a Lease and dyeth his wife priviment ensient without issue the Donor entreth the Lease is avoided afterwards a Son is born the Lease is revived Com. 488. Tenant in capite makes a Lease for life rendring rent and for non-payment a re-entry and dyeth the rent is behind the heir entreth for non-payment of the rent and afterwards Office is found of the dying seised and that the land is hoâ—den in capite and that the heir was within age In the case the Entry for the Condition broken was revived and the Estate for life revived 3 E. 4. 25. A Disseisor is attainted of Felony the Land is holden of the Crown the Disseisee entreth into the Land and afterwards Office is found that the Disseisor was seised the Remitter is taken out of the Disseisee which is a stronger case then our Case for there was a right of Entire and in our Case it is but a right of Action which is not so strong against the King And for these Causes he concluded That the Judgment given in the Court of Pleas ought to be reversed And so prayed Judgment for the Lord of Sheffield Plaintiffe in the Writ of Error This great Case came afterwards to be argued by all the Judges of England And upon the Argument of the Case the Court was divided in opinions as many having argued for the Defendant Ratcliffe as for the Plaintiffe But then one new Judge being made viz. Sir Henry Yelverton who was before the Kings Sollicitor his opinion and argument swayed the even ballance before and made the opinion the greater for his side which he argued for which was for the Plaintiffe the Lord Sheffield And thereupon Judgment was afterwards given That the Judgment given in the Court of Pleas should be reversed and was reversed accordingly And the Earl Lord Sheffield now Earl of Mulgrave holdeth the said Castle and Mannor of Mulgrave at this day according to the said Judgment Note I have not set here the Arguments of the Judges because they contained nothing almost but what was before in this Case said by the Councel who argued the Case at the Bar. Pasch 21 Jacobi in the Kings Bench. 418. IT was the opinion of Ley Chief Justice Chamberlain and Dodderidge Justices That a Defendants Answer in an English Court is a good Evidence to be given to a Jury against the defendant himself but it is no good Evidence against other parties If an Action be brought against two and at the Assises the Plaintiffe proceeds only against one of them in that case he against whom the Plaintiffe did surcease his suit may be allowed a Witnesse in the Cause And the Judges said That if the Defendants Answer be read to the Jury it is not binding to the Jury and it may be read to them by assent of the parties And it was further said by the Court That if the party cannot find a Witnesse then he is as it were dead unto him And his Deposition in an English Court in a Cause betwixt the same parties Plaintiffe and Defendant may be allowed to be read to the Jury so as the party make oath that he did his endeavour to find his Witnesse but that he could not see him nor hear of him Pasch 21 Iacobi in the Kings Bench. 419. THe Husband a wife seised of Lands in the right of the wife levied a Fine unto the use of themselves for their lives and afterwards to the use of the heirs of the wife Proviso that it shall and may be lawfull to and for the husband and wife at any time during their lives to make Leases for 21 years or 3 lives The wife being Covert made a Lease for 21 years And it was adjudged a good Lease against the husband although it was made when she was a Feme Covert and although it was made by her alone by reason of the Proviso Pasch 21 Jacobi in the Common-Pleas 420. NOte that Hobart Chief Justice said That it was adjudged Mich. 15 Jacobi in the Common-Pleas That in an Action of Debt brought upon a Contract the Defendant cannot wage his Law for part and confesse the Action for the other part And it was also said That so it was adjudged in Tart's Case upon a Shop-book And vide 24 H. 8. Br. Contract 35. A Contract cannot be divided
38 H. 6. 14. If the Law doth not lie for parcel then it is suspended for the whole where the debt is an entire debt And so it was adjudged in this Case Pasch 21 Jacobi in the Kings Bench. 421. NOte it was cited by Chamberlain Justice 15 Jacobi to be adjudged That where a man brought an Action upon the Case against another man for calling of him Bastard that the Action was maintainable The Defendant brought a Writ of Error and shewed for Error That the Plaintiffe did not claim any Inheritance or to be heir to any person certain But notwithstanding that Error assigned the Judgment was affirmed And he said That if one saith of J. S. that his Father is an Alien that an Action upon the Case will lie because it is a disability to the Son Quaere Trin. 21 Jacobi in the Kings Bench. 422. YOUNG and ENGLEFIELD'S Case Intratur Pasch 21 Jac. Rot. 102. YOung brought an Action of Trespass for entring his Close c. abutted upon one side with Pancras and butted on the other side with Grayes-Inne-Lane Upon Not guilty pleaded the parties were at issue Aud the Record of Nisi prius was Graves-Inne-Lane And thereupon the party was Nonsuit And now it was moved to have a Venire facias de novo And a Case was cited expresse in the point betwixt Farthing and Dupper 9 Jacobi Rot. 1349. Where in an Action upon the Case upon Assumpsit the Plea-Roll was Six weeks and the Record of Nisi prius Six moneths And the Jury being sworn the Plaintiffe was Nonsuit and a Venire facias de novo was awarded and the Nonsuit was recorded Ley Chief Justice You cannot have a new Venire facias if the Nonsuit be recorded And if the Record of Nisi prius varieth from the Record then it can be no Nonsuit because there is no Record upon which the Nonsuit can be and the Nisi prius was prosecuted without warrant Judicial Procss are of Record because they are by the Award of the Court But if the Transcript of a Record be mistaken by a Clark it issueth out by the Award of the Court and if it vary then it is no Record The president cited is direct in the point There was a Venire facias de novo But I conceive there is a difference where the Jury is sworn as it is in the President and then the Plaintiffe is Non-suit but in our Case the Plaintiffe was Nonsuit before the Jury was sworn But per Curiam the Case is the stronger to have a new trial Trin. 21 Iacobi in the Kings Bench. 423. PRITCHARD and WILLIAMS Case IN an Ejectione Firme the Jury found for the Defendant Now it was moved for the Plaintiffe That the Defendant might not have Costs because the Venire facias is mistaken And the Defendants Councel cited a President in the Case viz. Mich 18 Jacobi betwixt Done and Knot where the Defendant had Judgment for his Costs notwithstanding that the Plaintiffe mistooke his Venire facias in an Ejectione Firme where the Jury found for the Defendant Trin. 21 Iacobi in the Kings Bench. 424. WISEMAN and DENHAM'S Case Wiseman brought an Action upon the Case against Denham Parson and declared that there is a Custom within the Town and Parish of Landone of which the Defendant is the Parson That every Parishoner who keeps so many Kyne within the said Parish should give and pay to the Parson for his Tythe-Milk so many Cheeses at Michaelmas and shewed how that he kept so many Kyne viz. 20 c. within the said Parish and that he did tender apud Landone so many Cheeses at Michaelmas to Denham the Defendant being Parson who refused them and to take them away but suffered them to be and continue in the Plaintiffs house for which cause he brought the Action The Defendant did demur upon the Declaration George Crook the Action will lie for the Plaintiffe hath a damage by reason that the Parson doth not take away his Tythe-Cheese And it is like unto the Case in 13 H. 4. Action sur le Case 48. Where a man sold unto another Hay and because that the Vendee took not away his Hay an Action upon the Case did lie for it was a damage to the Plaintiffe to let it stand upon his ground for he durst not put his Cattel into his ground to feed lest they should eat the Hay and spoil it and so he should be lyable to an Action to be brought by the Vendee So if Tythe be lawfully seâ—forth and the Parson refuseth the Tythe but will sue in the Spiritual Court for the Tythe an Action upon the Case will lie à fortiori in this Case for the Cheeses may be cumbersome and troublesome to the Partie so as he cannot make the best use or benefit of his house Paul Crook contrarie and he took exception because the tender is alledged to be apud Landone and it is not shewed that it was at his house at Landone or in any place certain and he said that the Action will not lie because here is no damage to the Plaintiffe and it is like the Case when a man makes a Lease rendring Rent Cheese or Corn and the Tenant tendreth it and the Lessor refuseth it the Lessee cannot have an Action upon the Case against his Lessor but he may plead the matter in barr in an Action brought by the Lessor And the Case of 13 H. 4. before put is not to the purpose for there it was part of the Bargain to take it away by such a time And in our Case the Plaintiffe may plead the matter in barr to the Plaint ' 43 Eliz. betwixt Crispe and Jackson an Action upon the Case was brought for suing in the Ecclesiatical Court for Tythes which were due and he recovered damages Secondly Admit that the Action doth lie then it is because it is a damage unto him that they remain in his house but it doth not appear that the tender was made at his house but apud Landone which might be a mile from the house and so because it was his own fault the Action will not lie as this Case is by reason of the tender George Crook It was adjudged in a Cornish Case that an Action upon the Case lieth against a Parson which doth not take away his Tythe corn or hay because it spoyles the ground upon which it stands and because the partie cannot have the free use of his Land So in our Case he cannot have the free aâ—e of his house the cheeses cumbring his house and offending him with their smell Haughton Justice If the Action were well laid it would lie for the Cause but in this Case it is not well laid If any thing makes the Action to lie it is the damage which the Plaintiffe doth sustain by the cheeses being in his house but here it is laid to be tendred apud Landone and it is not said at his house and non constat how the
cheeses came to his house for if they were brought back by the Plaintiffe or by his commandment then the Action will not lie but if he had laid his Action that he gave notice to the Parson that he had so many cheeses ready for him for his Tythe and had required him to send for them then if the Parson had not carried them away the Action would have lien but for the reason before the Action as it is laid is not maintainable Dodderidge Justice There are two matters in this case First If the Action will lie for the matter Secondly If the Action will lie by reason of the Tender as to the first I put this difference That in some case it will lie and in some case it will not lie in this case the Action is not maintainable Where a tender is of a thing which the Partie ought to have by the tender the property is changed and there a damage may arise by reason that he will not take it away as in the case of 13 H. 4. put before there the Plaintiffe had damage by the standing of the hay upon the ground for he could not put in his cattel for then he might be in danger of an Action because the cattel might eat the hay If one setteth forth his Tythe and the Parson having notice thereof will not take it away an Action lyeth because it as a damage to the Land But in our Case admit the tender were at his house yet this tender doth not alter the Property in the person and they being his own cheeses he hath no loss so the difference is where the partie hath damage and loss and where he hath none as here in our Case he hath no damage the tender of the Rent saves from the penaltie but doth not discharge the dutie but admit that the Action will lie yet in this Case the Declaration is insufficient For the tender is not alledged to be at any place certain in the Village for it may be that he tendred them to the Parson in the Church-yard of Landone and then by the carrying of them home to his house again he hath lost the Action which he might have had if he had tendred them at his house Ley Chief Justice There is a difference in the case of Tenders If I tender such a thing which is due and the other refuseth it and I must pay the same thing in kinde if by the keeping of it I be endamaged I may have an Action upon the Case and that is our Case If a man setteth out his Tythe hay or Corn the tender in our Case is a setting forth of the Tythe Cheese and the Parson refuseth to take it away and it perish in keeping I am excused for the perishing of it but I may have an Action against the Parson for letting it stay upon my Land to my anoyance So if A. commit goods to me to keep in my house and I require him to take them away and he refuseth to do it I may have an Action upon the Case against him for it is a trouble to me to remove them for him and so in our Case but it is otherwise where I pay Rent-Corn and the Lessor doth refuse it I may pay him in other corn If one be to pay so much corn and the other will not receive it being tendred unto him untill it be dearer an â—ction upon the Case will lie for he is thereby endamaged In our Case the partie is damnified for his house is anoyed by the smell and also encombred therewith and the rooms of his house are valuable and he cannot make use of them at his pleasure the Tender ought to be where by the ordinary course the thing hath its beeing As at the place of the shearing of the Sheep the Parson is to demand his Tythe wool and there it is to be paid if there be be a person who hath power to deliver it the things which are ordinarily in the house as butter cheese c. are to be tendred there and there they are to be demanded and thereof notice is to be given to the Parson and the partie is not bound to carry them to the Parsons house The cheeses which are to be paid by this Custom are to be paid of cheeses made upon that Land and not of cheeses which the Parishoner shall buy elsewhere The tender is alledged to be in the Town of Landone and the Law intends the cheeses to be in the Parishoners house and this general tender is to be understood at the place where the cheeses by intendment of Law are to be and on the other side it ought to be alledged that the tender was not at the house so as I conceive that the tender is good Dodderidge The intendment is not good in this case for in every Declaration there ought to be certainty and verity but in a plea in bar there if it be a common intendment it is sufficient If a man speak generally of a Town it is to be meant at the Hamlet where the Church stands Ley when a tender is pleaded it is supposed to be at the place where the tender ought to be by the Law As a man is bound to pay money if he plead that he tendred it at D. it shall be intended that D. is the place where it ought to be paid If the partie goeth to the Parsons house and tells the Parson that he hath at his house such Tythe cheeses for him and requires the Parson to send for them here the notification is at the Parsons house but the real tender is at the parties own house And the partie plaintiffe in our Case cannot plead it otherwise then at Landone Haughton In this case the Law requires a special place of tender expressed or else he shews no cause of Action For if it were at any place out of his house the Action will not lie and the cheeses ought to be personally tendred Ley Chief Justice That would be inconvenient for then he must carry them to him and so he should be forced to wait upon the Parson Dodderidge 40 E. 3. If I tender to one a marriage or a Ward the woman or Ward ought to be present at the time of the tender Tender of money in a bag as to say I have money for you is no good tender and so it is of cheeses to say I have cheeses for you is but a verbal tender and it is not good but it ought to be tendred personally and in kinde You will intend that the Parson was at the plaintiffs house at the time of this tender and here is nothing in the case to direct you so to think Ley The place is but circumstance for the Parson is tyed to demand them at the house being the proper place of tender by reason of their being there Dodderidge The cheese must be shewed the Parson and that proves that he must be present Ley If he were present
then the tender is good But if he be not there but at another place the notice is sufficient Dodderidge The Law requires certainty in a Declaration and the matter cannot be taken by intendment so we ought to have a certainty set forth otherwise no certain Judgment can be given It was adjourned for Dodderidge and Haughton Justices were against Ley Chief Justice But as I have heard the Case was afterwards adjudged for the Plaintiffe There quaere the Record of the Judgment Trin. 21 Iacobi in the Kings Bench. 425. A Man made a Lease for life and covenanted for him and his heirs That he would save the Lessee harmless from any claiming by from or under him The Lessor dyed and his wife brought a Writ of Dower against the Lessee and recovered and the Lessee brought an Action of Covenant against the heir And it was adjudged against the heir because the wife claimed under her husband who was the Lessor But if the woman had been mother of the Lessor who demanded Dower the Action would not have layen against the heir because she did not claim by from or under the Lessor And so it was adjudged v. 11. H. 7. 7. b. Trin. 21 Iacobi in the Kings Bench. 426. SNELL And BENNET'S Case A Parson did contract with A. his Executors and Assigns That for ten shillings paid to him every year by A. his Executors and Assigns that he his Executors or Assigns should be quit from the payment of Tythes for such Lands during his life viz. the life of the Parson A. paid unto the Parson ten shillings which the Parson accepted of And made B. an Enfant his Executor and dyed The mother of the Enfant took Letters of Administration durante minori aetate of the Enfant and made a Lease at Will of the Lands The Parson libelled in the Ecclesiastical Court for Tythes of the same Lands against the Tenant at Will who thereupon moved for a Prohibition Dodderidge During the life of the Parson the Contract is a foot but the Assignee cannot sue the Parson upon this Contract yet he may have a Prohibition to stay the suit in the Ecclesiastical Court and put the Parson to his right remedy and that is to sue here This agreement is not by Deed and so no Lease of the Tythes The Parson shall have his remedy against the Executor for the ten shillings but not against the Tenant at Will and the Executor hath his remedy against the Tenant at Will Crook 21 H. 6. A Lease of Tythes without Deed is good for one but not for more years v. 16 H. 7. And afterwards a Prohibition was granted Trin. 16 Jacobi in the Kings Bench. 427. PHILPOT and FEILDER'S Case THe Parties are at issue in the Chancery and a Venire facias is awarded out of the Chancery to try the issue and the Venire facias was Quod venire facias coram c. duodecim liberos legales homines de vicineto de c. quorum quilibet habeat quatuor lib. terrae tenementorum vel reddituum per annum ad minus per quos rei veritas melius sciri poterit c. And it was moved in arrest of Judgment That the Venire facias is not well awarded for it ought to be Quorum quilibet habeat quadraginta solidos terrae tentorum vel reddit per an ad minus according to the Statute of 35 H. 8. cap. 6. which appoints that every one of the Jurors ought by Law to expend forty shillings per annum of Freehold and it ought not to be quatuor libras terrae c. according to the Statute of 27 Eliz cap. 6. which Statute of Elizabeth doth not speak of the Chancery but only of the Kings Bench Common-Pleas and the Exchequer or before Justices of Assise Before the Statute of 35 H. 8. no certain Land of Jurors was named in the Venire facias but since the Statute of 35 H. 8. it was quadragint solidos untill the said Statute of 27 Eliz. and now it is quatuor libras in the Kings Bench Common-Pleas and Exchequer It was adjourned At another day the Case was moved again That the Venire facias ought to be 40 solidos c. according to the Statute of 35 H. 8. cap. 6. And 10 H. 7. 9. 15 were vouched That if a Statute appoint that the King shall do an act in this form the King ought to do it in the same form and manner So if a Letter of Attorney be to make a Bill in English and the same is made in Latine it is not good although it be the same in form and matter Cook lib Entries 578. Waldrons Case is That in the Chancery the Venire facias was but 40 but that Case was between 35 H. 8. and 27 Eliz. cap 6. Dodderidge and Haughton Justices It is a plain case For the Venire facias ought to be according to 35 H. 8. cap. 6. because the Statute of 27 Eliz. cap. 6. speaks nothing of the Chancery Quod nota Trin. 21 Iacobi in the Kings Bench. 428. HEWET and BYE'S Case IN an Ejectione Firme of a house in Winchester the Ejectment was laid to be of a house which was in australi parte vici Anglice the High-street Ley Chief Justice If it had been ex australi parte vici then the South part had been but a Boundary but here it is well laid Then it was moved That the Venire facias is Duodecim liberos legales homines de Winton and doth not say of any Parish in Winton But notwithstanding it was holden good For Dodderidge Justice said That it is not like unto Arundels Case C. 6. part 14. For there the Offence was laid to be done in paroechiae Sanctae Margaret de Westminster therefore the visne ought to be of the Parish but in this case it being laid generally in Winton it is sufficient that the visne come out of Winton Judgment was given for the Plaintiffe Trin. 21 Iacobi in the Kings Bench. 429 WATERER and MOUNTAGUE'S Case A Man made a Lease for six years and the Lessor covenanted That if he were disposed to lease the said lands after the expiration of the said term of six years that the Lessee should have the refusal of it The Lessee within the six years made a Lease thereof to J. S. for 21 years Dodderidge Haughton and Ley Chief Justice The Covenant is not broken because it is out of the words of the Covenant But Dodderidge said Temp. E. 1. Covenant 29. The Lessee covenanted to leave the houses trees and woods at the end of the term in as good plight as he found them and afterwards the Lessee cut down a tree that in that case the Covenant was broken and the Lessor shall not stay untill the end of the term to bring his action of Covenant because it is apparant that the tree cannot grow again and be in as good plight as it was when he took the Lease Trin. 21
by prescription have used to have and dig clay there The first point is found for the Defendant and the last issue is found against the Defendant and damages are given generally All the question is upon the Declaration Coepit asportavit the clay which implies a propertie and interest in the clay to be to the Plaintiffe It is not said that the clay was carried over the land I conceive that the property of the clay is in issue and the Commoner hath nothing to do with that So damages being given to him for that which doth not belong unto him I hold the Judgment to be Erroneous and that it ought to be reversed Dodderidge The Declaration is well enough and of necessity it cannot be otherwise Here the Plaintiffe challengeth nothing but Common In an Action upon the Case there ought to be injurie and damage which is the consequent upon injurie For an Action upon the Case will not lie for an injurie without damage Here Bullen doth not complain for any thing but the loss of his Common which is the first wrong The second wrong is the digging of the pit in the which his cattel may fall and perish The third wrong is for carrying away of six loads of clay over the Common which is a great detriment to the Common to carrie it either by Carts or otherwise and for these three wrongs he concludes his damages ratione cujus he could not have his Common in as ample manner as before he was used to have it and he doth not conclude any damage for the clay Every one of these injuries doth increase the damages and so it would have been if he had left the clay to lie upon the land by the pit for thereby so much Common would have been lost Here he makes himself title only to the Common and these Acts do increase the damages only 2. E. 4. 7 E. 4. Where one was unlawfully and falsly imprisoned and being imprisoned compelled to levie a Fine or make a Feoffment or other Deed. In an Action of false Imprisonment the Jurie gave damages by reason of his restraint of his Liberty and increased them by reason of the levying of the Fine or making the Feoffment or other Deed which he then made The Jurie found that he is not to have any clay and coepit asportavit doth not alter the Case for that is a special Action of trespass And by three of the Justices against Haughton the Judgment given in the Court of Common Pleas was affirmed Trin. 21 Iacobi in the Kings Bench. 438. CAlthrope Councellor cited this Case to have been adjudged 25 Eliz. The husband seised in the right of his wife of Copyhold Land made a Lease for years and it was holden by the Court then That by the death of the husband the forfeiture of the Copyhold was purged and that the wife should have the land again notwithstanding this forfeiture by the husband by making a Lease for years without Licence And the Court seemed to allow of the said Case to be Law And afterwards this very Term the like Case came in question in this Court betwixt Severn and Smith where in an Ejectione firme a special Verdict found That a Copyholder seised in the right of his wife made a Lease for years and it was a question whether it were a forfeiture of the inheritance of the wife Hitcham Serjeant said it was no forfeiture Dodderidg Justice took this difference Where a Feme Sole is a Copyholder and she takes a husband who makes a lease for years without licence the same is a forfeiture because it is her folly to take such a husband as will forfeit her Land But where a Copyhold is granted to a Feme Covert and the husband maketh a Lease without Licence in such case it is no forfeiture and so in the Case of a Feme Lessee for life at the Common Law against Whitinghams Case C. 8. part 44. It was adjourned Trin. 21 Iacobi in the Kings Bench. 439. NOte It was the opinion of all the Justices and so declared That if the Plaintiffe in an Ejectione firme doth mistake his Declaration That the Defendant in such Case shall have his Costs of the Plaintiffe by reason of his unjust vexation Trin. 21 Iacobi in the Kings Bench. 440. FOur several men were joyntly Indicted for erecting and keeping of four several Inns in Bathe It was moved that the Indictment was insufficient because the offence of the one is not the offence of the other like unto the Case in Dyer 19. Where two joyn in an Action upon the Case for words 't is not good but they ought for to sever in their Actions because the wrong to the one is no wrong to the other Dodderidge Iustice One Indictment may comprehend several offences if they be particularly laid and then it is in Law several Indictments It may be intended that the Inns were lawfull Inns for it is not laid to be ad nocumentum and therefore not punishable but if they be an anoyance and inconvenient for the Inhabitants then the same ought particularly to appear otherwise it is a thing lawfull to erect an Inn. An Action upon the Case lyeth against an Inn-keeper who denies lodging to a Travailer for his money if he hath spare lodging because he hath subjected himself to keep a common Inn. And in an Action upon the Case against an Inn-keeper he needeth not to shew that he hath a Licence to keep the Inn. If an Inn-keeper taketh down his Signe and yet keepeth an Hosterie an Action upon the Case will lie against him if he do deny lodging unto a Travailer for his money but if he taketh down his Signe and giveth over the keeping of an Inn then he is discharged from giving lodging The Indictment in the principal case is not good for want of the words ad Nocumentum Haughton and Ley Iustices argreed Ley If an Indictment be for an Offence which the Court ex Officio ought to take notice to be ad Nocumentum there the Indictment being general ad Nocumentum contra Coronam dignitatem is sufficient without shewing in what it is ad Nocumentum But for Inns it is lawfull for to erect them if it be not ad Nocumentum c. and therefore in such Indictments it ought to be expressed that the erecting of them is ad Nocumentum c. and because in this Case there wants the words ad Nocumentum the Indictment was quashed Vi. The Lord North and Prat's Case before to this purpose Trin. 21 Iacobi in the Kings Bench. 441. BRIDGES and NICHOLS's Case THey were Indicted for the not repairing of such a Bridg and the Indictment was debent solent reparare pontem c. It was moved that the Indictment was insufficient because it is not alledged in the Indictment that the the Bridg was over a Water and no needfull that it be amended Secondly It did not appear in the Indictment that
at the time of the Indictment the said Bridg was ruinous and decayed Thirdly The Indictment is that Bridges and Nichols debent solent reparare poâ—tem and it is not shewed that their charge of repairing of the same is ratione tenare 21 E. 4. 38. Where it is said That a prescription cannot be that a common person ought to repair a Bridg unless it be said to be by reason of his Tenure but it is otherwise in case of a Corporation For these Errors the Indictment was quashed by Iudgment of the Court. Trin 21 Jacobi in the Kings Bench. Intratur Trin. 20. Rot. 1609. 442. Sir THOMAS LEE and GRISSEL's Case GRissel brought an Action upon the Case against Lee in the Common Pleas and shewed that diu fuit adhuc seisitus existens of a house c. and he did prescribe that he and all those whose Estate he hath in the said house c. had used to have Common in the waste of L. and that Lee in Jacobi made Coniburies in the waste quorum quidem premissorum he lost his Common The Action was brought 18 Jacobi and Iudgment given in the Common Pleas for the Plaintiffe there and thereupon a Writ of Error was brought in the Kings Bench and it was assigned for Error First That diu seisitus is not good because it hath not any limitation of time for it may contain as well forty years as one year He laid the wrong to be 15 Jacobi and doth not shew that at that time he was seised for diu doth not express any certain time and then it is like unto the case of Waste where the Grantee of a Reversion brings an Action of waste and doth not shew that he committed waste to his disâ—heresin but doth not shew when the waste was done for it might be that it was done betwixt the Grant and the Attornment and then he had no cause to have waste or otherwise it might be that the waste was done in the time of the Grantor and then the Grantee had no cause of Action But in such case he ought to have shewed that he was seised of the Reversion at the time of the waste done 4 E. 4. 18. There Trespass was brought upon the Statute of R. 2. and the Writ was That he did enter in diversa terras tenementa There it was holden that the Writ being insufficient the Court should not make it good because it is too general In our Case it ought to have been that he was diu adhuc est seisitus Et seisitus that the Defendant did do the wrong Another Error was assigned because he doth not conclude quorum quidem premissorum praetextu he lost his Common But he saies quorum quidem premissorum he lost his Common and leaves out the word prâ—textu which word ought to have been in the Declaration The Action is brought three years after the wrong done and he ought to have shewed that he 15 Jacobi which was the time of the wrong done fuit seisitus diu ante fuit seisitus in dominico ut de feodo All before the clause quorum quidem c. is but collection and he ought to have concluded with a cause of grievance viz. quorum quidem premissorum praetextu he lost his Common 7 H. 7. 3. There it is said that this word praetextu is a conclusion that the particular wrong doth contain and doth affirm that which went before but in this case the word praetextu is wanting and a Seisin first ought to be laid and then praetextu quorum is good Vi. Bullen and Sheenes case before where the Plaintiffe first made him title to the Common viz. that he was such a time seised in Fee adhuc seisitus existens that the Defendant did dig clay Vi. Brown and Greens Case in the Common Pleas. 40 Eliz. Where a man pleaded a Feoffment and Livery Virtute cujus he was seised in fee and did not shew that he entred and yet the same was good because the Virtute cujus was a good conclusion Ley Chief Justice diu doth not denote any time certain If in a Case it had been postea or sic inde seisitus the Defendant did the wrong then the Declaration had been good but here is nothing to which diu may have reference If he had said that he being diu seisitus that the Defendant had such a day done the wrong it had been good Secondly Here ought to have been either quorum quidem premissorum ratione or praetextu he lost his Common here the Latine is good viz. quorum quidem premissorum Commoniam perdidit but it is not good in Law Dodderidge Justice You ought to have coupled the damage and the wrong and in this case there wants the coupling for want of the word praetextu for the word praetextu is the application of the precedent matter The matter of wrong is the making of the conyburies by reason of which he lost his Common and the quorum quidem here hath not any sense The Declaration wants matter of form also diu fuit seisitus adhuc seisitus existens Might you not have purchased this Common after the wrong done by the making of the conyburies for it doth not appear otherwise by the Declaration for as well as diu may comprehend forty years so it may but one moneth If it had been diu seisitus sic seisitus that he made the conyburies then the Declaration had been well but as this case is it is not good Haughton Justice Your Action ought to have contained your matter of time as well as your matter of wrong Diu includes no certainty of time and quorum quidem premissorum c. is a speech without sense If a man maketh title to have Common pro omnibus averiis and the word suis is omitted it is not good Ley Chief Justice here the wrong and damage are not knit together by these words and it might be that in this case he had lost his Common by some other means For he doth alleadge that he lost his Common but how he lost it that doth not appear to us If he had said Virtute cujus or per quod or ratione cujus he had lost his Common then the Declaration had been certain and had been well enough But here it being incertain both in the seisitus and also in the alleadging the damage The Judgment given in the Court of Common-Pleas for these Errors was reversed Trin. 21 Iacobi in the Kings Bench. 443. PYE and BONNER's Case AN Information was in the Common-Pleas by Pye against Bonner for buying of Cattel selling of them again in the same Market against the Satute Which was found against the Defendant and the Judgment was entred Quod sit in misericordia whereas it ought to have been Capiatur being upon an Information For it is a Contempt and punishable by Imprisonment And in this Case upon a Writ of Error brought in
Commission was to A. B. and the Sheriff cuilibet eorum The Supplicavit was delivered to the two Iustices who took a Recognizance from L. but M. N. could not be found The Sheriffe was afterwards out of his Office because his year of Sheriffwick expired The new Sheriffe made a Retorn That M. N. non sunt inventi in balliva mea And also Retorned That A. B. had taken a Recognizance of L. as appeareth per quandam schedulam huic annex in haec verba c. This Case was argued and 21 H. 7. 20. 21. vouched That if the Writ be first delivered to the Sheriffe then he only is for to execute the Writ and retorn the Supplicavit But if it be first delivered to the Iustices then they ought to execute it and retorn it 9 E. 4. 31. A Supplicavit is a Iudicial Writ and cannot be executed by a Deputy but a Ministerial Writ may be executed by a Deputy In this case the succeeding Sheriffe did retorn the Writ and it was not directed unto him And the same being delivered to the Chancellor whether the same should be a Record or not was the Question 4 H. 7. 17. Debt was brought upon an Obligation The Kings Serjeant prayed the Bond for the King because that the Plaintiffe was a person Outlawed Bryan Iustice You ought to bring a Writ of Detinue to recover the Bond which is a legal course for the King And so in this case here is no Record for the King because the Recognizance comes not in by a legal course viz. a lawful Retorn for it was retorned by the new Sheriffe and also by him who did not execute the Commission Heath said cleerly There was no Record for the King and vouched 21 H. 7. 20 21. Note the whole Case there 1. Where it is said In casu superiori ipse Justiciarius qui primo illud breve de Supplicavit recepit tota executione ejusdem Brevis tantummodo tenetur reliqui sociorum suorum tangent dictum Breve exonerentur Justiciarius hanc recipiens nomine suo proprio illud retornabit And in our Case it was directed to the Sheriffe and Iustices and being delivered to the Iustices the Sheriffe had not to do to make Certificate of it and in this case he is but as a private man This suit is a Scire facias to have Execution upon the said Recognizance A Dedimus potestatem is directed to two and one of them doth execute it the other cannot certifie it for the Execution of it ought to be upon his own knowledge A Record taken by one cannot be certified by another for if it be it is not any Record upon which a Scirefacias can be awarded In our Case the Justices made the Record and the Sheriffe did certifie it Ley Chief Justice When the Recognizance is put to writing or Notes of Remembrance taken of the Recognizance before the Commissioners it is immediately a Record One takes Notes of a Recognizance and dyeth He to whose hands the Notes come may certifie the same for it is a perfect Record by the taking of the Notes of Remembrance But that is to be understood when no Writ is directed to Commissioners but when a Justice takes is In our Case the Sheriffe may retorn the Writ ex officio and also retorn That executio istius brevis patet in quadam schedula annexa And it doth not appear but that the now Sheriffe was at the Execution of this Commission But admit that he was not yet now the Writ being retorned into the Chancery your pleading and taking issue upon another matter hath made it a good Record And therefore I hold that the Judgment ought to be given for the King according to the Verdict Haughton Justice Judgment cannot be for King If the Record doth not come duly into the Chancery according to course of Law it is not any Record upon which there can be any Procution If a Judge take a Fine and dyeth before it be certified a Certiorari ought to be directed to the Executors of the Judge v. 2 H. 7. 10. but the Certiorari ought not to be to a stranger If two Iustices of Peace have Commission to take a Recognizance and one of them taketh it and dyeth the Certiorari must be to his Executors and not to the other Iustice In this Case the Record came into the Chancery by undue course The Commission was several Cuilibet eorum and those who took upon them the Execution thereof are now made Officers by the express words of the Writ and it is not so here retorned and therefore Iudgment ought to be against the King A Dedimus potestatem is directed to four to take a Fine of Lands in several Counties Two of them take it in one County and they certifie it and the two other take it in another County and they certifie it None of the Certificates are good Dodderidge Iustice Iudgment ought to be against the King There are two Questions in the Case 1. Whether the Sheriffe as this Case is may onely make the Retorn 2. Admitting that he cannot but the same being retorned and the Chancery accepting of it and sending it to this Court whether we can damn the Record 1. This is a special Recognizance upon the grievance of the party and by the Kings Commission they are made especial Iudges in this case And when the party who sues delivers the same to the two Justices the Sheriff cannot entermeddle therewith for then the Justices ought to retorn the Recognizance by vertue of that Commission 21 H. 7. 20 21. there the Case is direct in the point That they to whom the Writ is first delivered they only are to execute it and retorn it for they only have power by vertue of the special Commission The Writ was against three and two of them are not to be found The Sheriff cannot retorn Non sunt inventi for the two by force of this Commission and he is not to make his Retorn as a Minister or Officer to the other because the Writ is Judicial If a Challenge be to the Sheriff and Coroners and process is directed to Esliors they are to execute the process as particular Officers by vertue of the Writ and they are to retorn the same and not the Sheriff because their authority is by vertue of a special Writ To the 2. point it hath been said That the Record is in the Chancery and the partie hath pleaded to it to issue and it is now sent into this Court and now fault is found with it but not before Though all this be so yet we cannot accept of it here if it have not due proceedings If process be directed to the Coronors for Challenge to the Sheriff and then a new Sheriff is made against whom there is no cause of challenge yet the Coronors must execute and finish the process and not the new Sheriff for the Law will not endure that Offficers do
lawfull arrest for no time is shewed nor no place nor how it was done Ley The Jury have found it to be debito modo and in this case the arrest is not in question by matter of Plea but by Declaration and the finding of the Jury hath made the same to be good Dodderidge Justice If A. be indebted to B. B may have either an Action upon the Case or an Action of Debt for the money but in an Action of Debt unless it be in London by the Custome Concessit solvere is no good Plea But in an Action upon the Case the Plaintiff may declare That whereas A. was indebted to him in a certain sum of money that Concessit solvere and there he needeth not to shew how he became indebted unto him as he ought to do in an Action of Debt Chamberlain Justice If a man be arrested upon a void arrest and another in consideration of setting him at liberty doth promise to pay the Debt there it is a thing Collateral and an Action will lie But if the arrest cometh in question then in that Case the Action will not lie but he may avoid it by special pleading for the arrest being unlawfull there is no consideration whereupon to ground the promise Yelverton If the Plaintiff had said in the Declaration That in consideration that he would forbear his Debt that he would pay c. there for not payment the Action would have been maintainable but in this case the consideration is the setting him at Liberty and so it is Collateral At another day Ley Chief Justice If I arrest a man generally and the party promise for the discharge of the arrest to give 20l. it is no good consideration if I do not shew that he had cause to arrest him For if the arrest be upon an ill ground the consideration is not good Haughton Justice To make it a lawfull arrest the partie ought to shew the Process the Letter of Attorney and the proceedings and an agreement afterwards made will not make the arrest good Legitimo debito modo arrestatus is too general for he ought to shew how he became indebted to him For if I be bounden to make unto I. S. a lawfull assurance or conveyance of such Lands it is too general for me to say that I have made him a lawfull assurance but I ought to shew what manner of assurance it is that the Court may judge whether it be a lawfull and good assurance or not In Mich. Term followinging 21 Jacobi It was adjudged That Judgment should be arrested Trin. 21 Jacobi in the Kings Bench. Intratur Mich. 19. Rot. 5â— 453 SEIGNIOR and WOLMER's Case IN an Action upon the Case upon an Assumpsit the Declaration was general that the Defendant Assumpsit to the Plaintiff and the Jury found that the promise was made to I. N. who Seignior the Plaintif sent and appointed ad componendum agreandum the Debt of Wolmer the Defendant It was argued That the promise made to the Servant was a promise to the Master Vi. â— E. 4. Where the sale of the Servant is the sale of the Master 8 H. 5. in trespas The Defendant said that the Prior of c. was seised c. and that such a one his Steward made a Demise unto him there it was ruled that he ought to have pleaded that the Prior did demise V. 27 H. 8. Jorden and Tatams Case which is express in the point Jorden brought an Action upon the Case against Tatam and declared that he did assume to him as the words of the book are The Evidence was That Tatam came in the absence of Jorden the husband and assumed to the wife of Jorden and our Case is a stronger Case then that for there the husband gave no authority to the wife to take such Assumpsit but in our Case he did authorize I. N. and it was adjudged that the agreement of the husband afterwards made the Assumpsit to be good to the husband But in our Case I. N. had authority to take the Assumpsit viz. Seignior sent I. N. ad componendum agreandum the Debt and Wolmer assumed to pay the money c. and I. N gave notice thereof to Seignior and he agreed unto Dodderidge Justice An Assumpsit to the Servant for the Master is good to the Master and an Assumpsit by the appointment of the Master of the Servant shall bind the Master and is his Assumpsit 27 Ass If my Baily of my Mannor buy cattel to stock my grounds I shall be chargeable in an Action of Debt and if my Baily sell corn or cattel I shall have an Action of Debt for the money For whatsoever comes within the compass of the servants service I shall be chargeable with and likewise shall have advantage of the same If a Servant selleth a horse with Warranty it is the sale and contract of the Master but it is the Warranty of the Servant unless the Master giveth him authority to warrant it for a Warranty is void which is not made and annexed to the contract but there it is the Warranty of the Servant and the Contract of the Master But if the Master do agree unto it after it shall be said that he did agree to it ab initio As where a Servant doth a disseisin to the use of his Master the Master not knowing of it and then the Servant makes a Lease for years and then the Master agrees the Master shall not avoid the Lease for years for now he is in by reason of his agreement ab initio When the Servant promiseth for the Master that the Master shall forbear to sue c. and shall by such a day deliver to the Defendant the Obligation c. and the Defendant promiseth to pay the money at such a day and the Master having notice thereof agreeth to it it is now the promise of the Master ab initio for it is included in his authority that he should agree compound c. and he hath power to make a promise Judgment in the principal Case was given for the Plaintiff Trin. 21 Jacobi in the Kings Bench. Intratur Pasch 18. Rot. 139. 454. GLEEDE and WALLIS Case A Writ of Error was brought to Reverse a Judgment given in the Court of Northampton in an Action upon the Case upon a Promise The Error which was assigned was because that it appeareth that the Action was brought before the Plaintiff had made request The Case was a Contract was made betwixt Gleede and Wallis and Wallis was to pay to Gleede 10l when Gleede should require him Gleede brought an Action in the said Court 1 Martii 16 Jacobi and the Request is laid to be 7 Martii 16 Jacobi following Where a Contract is made and no time is expressed for payment of the money If the partie bring his Action before he make his request he shall not have damages but if he maketh an actual request and the Defendant doth not
for years rendring Rent by an Enfant and afterwards at his full age he accepts the Rent of the particular Tenant it is a good comfirmation of the estate of him in the remainder Litt. 547. If he at full age confirm it is good which could not be if the Lease were void and yet in that Case it doth not appear that there was any Rent reserved The Enfant being a Copyholder makes no difference in the Case And in Murrels Case C. 4. part It is said That if a Copyholder make a Lease not warrantable by the Custome it is a forfeiture which proves it is a good Lease otherwise it could not be a forfeiture Hill 37 Eliz. in the Kings Bench Rot. 99. East and Hardings Case A Copyholder makes a Lease for three years by word to begin at Michaelmas next ensuing it is a forfeiture of the Copyhold and a good lease betwixt the parties Hill 18 Jacobi Haddon and Arrowsmiths Case One licensed his Copyholder for life to make a Lease for 20. if he should so long live and he made a lease for 20 years and left out the words if he should so long live yet because he was a Copyholder for life and so the lease did determine by his death and so he did no more then by Law he might do it was adjudged a good Lease and no forfeiture otherwise if he had been a Copyholder in Fee All Conditions in Fact shall bind an Enfant but not Conditions in Law C. 8. part 44. Whittinghams Case An Enfant Tenant for life or years makes a Feoffment in Fee it is no forfeture For if the Lessor entreth the Enfant may enter upon him again yet it is a good Feoffment but he shall avoid it by Enfancy but if it be by matter of Record then it is otherwise For if an Enfant be Lessee for life and levieth a Fine it is a forfeiture and in that case if the Lessor enter for the forfeiture the Enfant shall not enter again The same Law if an Enfant committeth Waste which is against a Statute it is a forfeiture and if the Lessor recovereth the place wasted the Enfant shall not enter again 9 H. 7 24. A woman an Enfant who hath right to enter into lands taketh a husband and a discent is cast yet she shall avoid the discent after the death of her husband The Court said That if in the Case at Barr the Enfant had been Tenant in Fee at the Common Law and made a lease without Deed and had accepted the Rent at his full age that the same had been good for that there he had a recompence but being a Copyholder it is a question Jones Justice It was adjudged in the Common Pleas in Peters Case That if a Copyholder without licence maketh a Lease not warranted by the Custome That such Lessee should maintain an Ejectione firme The Councel against the Enfant in the Case at Barr said That the Enfant made the Lease as Tenant by the Common-Law for that he made it by Conveyance of the Common-Law And so the Lease was voidable and not void and then the acceptance of the Rent had made the Lease to be good It was adjourned to another day Hill 2. Caroli Rot. 389 in the Kings Bench. 457. GEORGE BUSHER against MURRAY Earl TILLIBARN A Scire facias was brought dated 28 Junii retornable in Mich. Term 2 Car. Regis why Execution should not be awarded against the Defendant upon a Iudgment had against him in this Court The Defendant pleaded That King Charles 7 Octob. in the second year of his Reign did take him into his protection for a year and did grant unto him that during that time he should be free from all manner of Plaints but Dower Quare Impedit and Placit coram Justiciariis Itinerantibus It was said that this Protection was not warrantable by Law for three causes 1. Because it is after the purchase of the Scire facias and before the Retorn 10 H. 6. 3. 11 H. 4. 7. A Protection depending the Suit is not allowable although it make mention that the party is to go a voyage with the Kings Son 2. Because he doth not specifie any particular cause why the Protection was granted unto him All our books do express a cause viz. Quia moratur c. quia profecturus c. Register 22 23. there three Protections are Quia incarceratus 39 H. 6. 38 39 40. per Curiam The Protection ought to express a special cause otherwise it is not good Fitz. 28. a. b. the cause is expressed 1. R. 2. cap. 16. The particular cause ought to be in the Protection A Protection being general the party hath no remedy against him to traverse it or to procure it to be repealed 3. This Court is greater then a Iustice in Eyre and he is excepted in placitis itinerantibus That Court was of opinion that there was no colour for allowing of the Protection A Safe-conduct will only keep the party safe from harm but will not protect him from Actions Mich. 2 Caroli Intratur Pasch 18. Jur. Rot. 298. in the Common Pleas. 458. ROYDEN and MOULSTER's Case IN Trespass for entring into his Close called Dipson in Suffolk upon Not guilty pleaded the Jury gave a special verdict That the said Close was parcel of the Mannor of Movedon and demisable by Copy of Court-Roll and that the same was granted to G. Starling in Fee by Copy of Court-Roll who had issue two sons John and Henry And that 35 Eliz. George Starling did surrender the same to the use of his Will and thereby demised the same to John and the heirs males of his body with divers Remainders over and dyed seised And that the Surrender was presented according to the Custom and that John was admitted to have to him his heirs And that the said John had issue 3 sons Harry George and Nicholas And that the said John 43 Eliz. did surrender to the use of his Will and thereby devised the same to Katherine his wife and dyed and that the said Surrender 9 Martii 4t Eliz. was presented and the said Katherine was admitted Harry George and Nicholas dyed without issue They further found That the Custom of the Mannor is That the youngest brother is to have the Copyhold by discent And also That no Copyholder by the Custome could make any Estate in feodo and that the said Katherine took to her husband Francis Robinson who 1 Sept 17 Iacobi leased the same to Royden the Plaintiffe for one year who entred and was thereof possessed untill Moulster the Defendant by the commandment of c. did out him c. In which case the only Question was Whether a Copyhold be within the Statute of West 2. so as an estate thereof so limited should be a Fee tail or a Fee conditional And by the opinion of the Justices of the Common-Pleas it was adjudged That a Copyhold could not be entituled within the
Statute of West 2. First they said That Copyholds are not within the letter of the Statute which speaks onely de tenementis per chartam datis c. Secondly they are not within the meaning of it 1. Because they were not untill 7 E. 4. 19. of any accompt in Law because they were but Estates at will 2. The Statute of West 2. provides against those who might makeâ— a dissen heresin by Fine or Feoffment which Copyholders could not do 3. Because if Copyholders might give lands in tail by the Statute then the Reversion should be left in themselves which cannot be 4. The Makers of the Statute did not intend any thing to be within the Statute of Donis whereof a Fine could not be levied For the Statute provides Quod sinis ipso jure sit nullus 5. Great mischiefs would follow if Copyholds should be within the Statute of West 2. because there is no means to dock the estate and no customary conveyance can extend to a Copyhold created at this day 37 Eliz Lane and Hills case adjudged in the Common-Pleas was cited by Justice Harvey where a Surrender was unto the use of one in tail with divers remainders over in tail The first Surrenderee dyed without issue And first it was agreed and adjudged That it was no discontinuance 2. If it were a discontinuance yet a Formedon in the Remainder did not lie because there ought to be a Custom to warrant the Remainder as well as the first Estate tail For when a Copyholder in Fee maketh such a gift no Reversion is left in him but only a possibility And the Lord ought to avow upon the Donee and not upon the Donor And there is a difference when he maketh or giveth an estate of inheritance and when he maketh a Lease for life or years for in the one case he hath a Reversion in the other not 2. A Recovery shall not be without a special custom as it was agreed in the Case of the Mannor of Stepney because the Warrantie cannot be knit to such an Estate without a Custom And for express authority in the principal Case he cited Pits and Hockleâ—'s ase which was Ter Pasc 35 Eliz. rot 334. in the Common-Pleas where it was resolved That Copyholds were not within the Statute of Donis for the weakness and meanness of their estates For if they were within the Statute of West 2. the Lord could not enter for Felony but the Donor and the Services should be done to the Donor and not to the Lord of the Mannor And so and for these mischiefs he conceived That neither the meaning nor the words of the said Statute did extend to Copyholds Hill 34 Eliz. Rot. 292. in the Kings Bench Stanton and Barney's Case A Surrender was made of a Copyhold within the Mannor of Stiversden unto one and the heirs of his body and after issue he surrendred unto another And it was agreed by all the Justices That the issue was barred And Popham did not deny that Case but that it was a Fee conditional at the Common-Law and that post prolem suscitatam he might alien And so it was agreed in Decrew and Higdens case Trin. 36. Eliz. rot 54â— in the Kings Bench and in Erish and Ives case 41 42 Eliz. in the Common-Pleas in an Evidence for the Mannor of Istleworth That no Estate tail might be of Copyhold without a Custom to warrant it Mich. 36 37 Eliz. in the Kings Bench it was adjudged That a Copyholder could not suffer a common Recovery and the reason was because that the Recovery in value is by reason of the Warrantie annexed to the Estate at the Common-Law which could not be annexed to a Customary estate And another reason was given because that he who recovers in value shall be in by the Recovery and the Copy of the Court-Roll only should not be his Evidence as Littleton and other books say it ought to be And Crook said That the Statute of Donis was made in restraint of the Common-Law And it should be very disadvantagious to the Lord if Copyhold should be construed to be within that Statute And therefore he conceived that the said Statute did not extend to Copyholds by any equitable construction And such difference was taken by Popham Chief Justice 42 Eliz. in the Kings Bench rot 299. in Baspool and Long 's Case For he said That a Custom which did conduce to maintain Copyholds did extend to them But a Statute or a Custom which did deprave or destroy them did not As if one surrender to the use of one for life the Remainder in Fee where the Custom is to surrender in Fee the Custom doth not extend thereunto because a Custom which goes in destruction of a Copyhold shall be taken strictly But if a man be Copyholder in Fee he may grant a Fee conditional Harvey Justice put some Cases to prove the small account the Law had of Copyholds at the time of the making of that Statute as 40 E. 3. 28. 32 H. 6. br Copyhold 24. And he said That there is not any book in the Law but only Mancels case in Plow Comment That the Statute of West 2. doth extend to Copyholds Hill 2 Caroli rot 235 in the Kings Bench. 459. LITFIELD and his Wife against MELHERSE A Writ of Error was brought upon a Judgment given in an Action upon the Case brought by Husband and Wife in the Common-Pleas for words spoken of the Plaintiffs wife And the Judgment in the Common-Pleas was That the husband and wife should recover And that was assigned for Error in this Court because the Husband only is to have the damages and the Judgment ought to be That the Husband alone should recover But notwithstanding this Error assigned the Judgment was affirmed by the opinion of the whole Court Pasch 2 Caroli rot 362. in the Kings Bench. 460 HOLMES and WINGREEVE's Case A Writ of Error was brought to reverse a Judgment given in the Court at Lincoln in an Action of Trespass there brought for taking away a Box with Writings And four Errors were assigned 1. Because the Plaintiffe did not appear by Attorney or in person at the retorn of the Attachment against the Defendant so as there was a discontinuance for the Plaintiffe ought to appear de die in diem 2. Because in his Declaration there he saith That the Defendant took a Box with Writings and doth not make any title to the Box nor shews that the same was lockt nailed or sealed 2 H. 7. 6. a. The certainty of the writings ought to be shewed that a certain issue may be taken thereupon Com. 85. 22 H. 6. 16. 14 H. 6. 4. 21 E. 3. He ought to shew the certainty of the writings 18 H. 1. Charters in a Box sealed C. 9. part Bedingfields case C. 5. part Playters case The Declaration was insufficient because the Plaintiffe therein did not name the certain number of the Fishes 3. He pleaded That he made a
Bill Obligatory and doth not shew that it was delivered Dyer 156. Per scriptum suum gerens datum and doth not say Primò deliberatum is not good The fourth Error was That in the Replication the Plaintiffe saith dixit whereas it ought to be dicit in present tense 10 H. 7. 12. The title to the Assise took Exception to the Plaintiffs title because that he said fuit seitus of a Messuage whereas he ought to have said est seitus But yet it was there holden good because he saith that all those whose title he hath c. by which words the possession shall be intented to continue 35 H. 6. 11. 85. vi 268. A Writ a False Judgment directed to the Sheriffe Recordare loquelam que est and the form and the presidents are quae fuit 9 H. 6. 12. The Sheriff retorns Non est inveni whereas it ought to be Nom est inventus and adjudged Error And he said That Detinue is only to be brought when it self is to be recovered in as good plight and no other Action It doth appear by the Record that in this Case at Trial 18 were only retorned upon the Pannel wheras there ought to have been 24 retorned By the Statute of West 2. cap. 38. 24 ought to be retorned on the Pannel 8 H. 4. 20. More then 24. shall not be retorned 2 H. 7. 8. The Sheriffe retorned but 12. and it was ruled to be an insufficient retorn because 24 ought to have been retorned 36 H. 6. 27. Trespass is brought for a Box and Charters which concerned the Plaintiffs lands and damages were given entirely and there it was adjudged not to be good because the Plaintiffe did not make any title to the Box nor did shew that the same was locked or sealed For the Box may belong to one and the Charters to another as the Evidences to the heir and the Box to the Executors unless the Box be first locked Note The opinion of the whole Court was because that the issue was particular That he was not guilty of the Trespass and detaining untill the Plaintiff had entred into a Bond. And the Jury found him guilty of the Trespass generally That the Verdict was not good to make the Defendant guilty by implication And Justice Dodderidge said That the Plaintiff hath brought his Action of Trespass and doth not lay any possession of the Box And Trespass is a possessory Action Also he said That the Plaintiff did not set forth the Quality of the Evidences viz. Whether they were Releases Deeds of Feoffments or other particular Evidences And for these causes and for the causes before alleadged the Judgment given in the Court at Lincoln was reversed Pasch 3 Caroli in the Kings Bench. 461. Sir WILLIAM FISH and WISEMAN's Case JUdgment was given in the Common-Pleas against Sir William Fish and after the year and day Execution was awarded by Capias where it ought to have been by a Scire facias first And the Plaintiff was taken in Execution and brought a Writ of Error in this Court where the Judgment was affirmed but the Execution was reversed because the Execution was not warrantable the Process being erronious And out of the Kings Bench another Execution was awarded by Capias sicut alias within the year of the affirmance of the Judgment in the Kings Bench. And it was moved by Banks That the Execution was erronious because he ought to have a Scire facias because the year is past after the Judgment in the Common-Pleas and although that the Court be changed yet the Plaintiffe ought to have the same Process for Execution as he ought to have in the first Court 14 H. 7. 15. The first Process was reversed for Error and then he cannot have a Sicut alias but ought to have a new Original We pray a Supersedeas of the Execution for Sir William Fish the Plaintiffe and that he may be delivered out of Execution Sir William Fish had a Release and that was the cause that Wiseman would not take a Scirefacias Sir William Fish upon the Judgment in the Common-Pleas was taken in Execution and upon a Writ of Error brought Bail was put in to proceed with effect and then he was delivered out of Execution And then he cannot now be taken in Execution again upon the same Judgment 16 H. 7 2. per Curiam If one be in Execution upon Condemnation in the Common-Pleas and the Record and the body is removed into the Kings Bench by Error then the party shall find collateral Securities by their Recognisance to pay the Condemnation in case the Judgment be affirmed and further to proceed with effect In this case the body is discharged of Execution as to any Process to take the body unless he render himself to prison of his own accord to discharge his Sureties And if he will not do it he who recovereth hath no remedy but to make the Sureties to pay the Condemnation by reason of their Recognisance 2 E. 4. 8. A man is condemned in London tempore Vacationis and hath Execution in the Term and the Defendant sueth a Corpus cum causa and had his priviledge in the Common-Pleas Danby The Plantiffe shall not have Debt for at the beginning when the Defendant was in Execution the Action of Debt was gone and then he being discharged here the Action of Debt doth not lie To which Needham agreed And Choke said He did not know any remedy that the party had and conceived that he could not have a new Execution 14 H. 7. 1. If one escape out of Execution the Plaintiffe cannot take him again in Execution but his remedy is against the Gaoler The Court may supersedeat this Execution because it is erronious 34 H. 6. 45. b. An Action of Debt was brought against an Executor who pleaded that he had fully administred And it was found that he had Assets and Judgment was given against the Defendant and a Capias was awarded against him and after that an Exigent And the Court granted a Supersedeas to supersede that Erronious process For a Capias doth not lie against an Executor where he pleads c. but a Fieri facias And therefore in the principal Case Banks prayed a Supersedeas Jones Justice If Error be brought within the year of the Judgment in the Common-Pleas and the Judgment be affirmed here the party shall have a Capias although the Judgment be affirmed two years after the bringing of the Writ of Error For he shall take the same Execution in the Kings Bench as in the Common-Pleas and the altering of the Court makes no difference in it And so was Garnon's case The Writ of Error was brought within the year of the Judgment in the Common-Pleas but it was not affirmed in two years after and yet there he had the same Process in the Kings-Bench as he was to have had in the Common-Pleas Dodderidge Justice If the Execution be lawfull and upon lawfull Process
of Ely and divers Errors were assigned First that he did not shew in the stile of the Court how Ely hath power to hold plea either by Charter or by prescription Secondly because he said That at such a place in Ely he did promise but did not shew that it was within the Jurisdiction of Ely Thirdly that it was upon a Consideration to â—urâ—ease a Suit in the Chancery that the Defendant did promise but did not shew that at the time of the promise there was a Suit depending Fourthly it was said That the Defendant did promise to surrender certain Customary Lands and it is not shewn what the Lands were and so no certainty for the Jurie to give damages Jermyn argued for the Defendant in Writ of Error and said The Declaration is good in substance Diversas terras Customarias proxim adjacend lib. tenem ' of the Defendant and the Defendant pleaded that he had offered predict tenem ' Customaria and so no difference is betwixt them for that Tenement is sufficiently known and although it be not so certainly laid as it ought to be in a real Action yet it is certain enough in an Action upon the Case Dyer 355 356. Only who was Sollicitor to the Councel of D. did spend 1500l circa diversa secta negotia there the Declaration was sufficient by two Judges there the Lands are certain viz. proxim ' lib. tenem ' Secondly Ely is in the Margent which is as much as the County in the Margent and then when no County is named in the Declaration wherein the land doth lie it shall be intended to lie in the County which is in the Margent Hetley Our Case differs from Onlyes Case in Dyer 355. for there 1500l was received But if I bring an Action upon the Case pro diversis merchandisis the same is not good but if I bring the Action for 10â— pro diversis merchandisis then it is good Jones Justice Chester and Durham are generally known and therefore it is good to say Placita tent apud Chester c. and the party need not shew how Chester hath Jurisdiction but it is not so of Ely Whitlock Justice Ely hath Jura regalia and we read in our books that they have had Conusans of Pleas. Hyde Chief Justice In all particular and private Jurisdictions if they come to be certified here in a Writ of Error you must set out their power But if they have their power by a Statute as Wales then it need not be set forth A Writ of Error doth not lie upon a Judgment in London but when the Plea is before Commissioners Curia We cannot grant a new Certiorare to an inferior Court but only to the Common-Pleas or Wales The writ of Error to remove the Record out of the Court of Ely is directed Justiciario nostro which proves that this Court takes notice of him as the Kings Justice And in other Courts it is Senescallo Curiae and not Senescallo nostro Whitlock Justice It is since the Statute of 27 H. 8. that it is directed Justiciario nostro de Ely for before it was Justiciario Episc Hyde Chief Justice It is a Book-Case If Midd. be in the margent and you say apud D. and name no County D. shall be intended to be in Midd. The Judgment was reversed Pasch 3 Caroli in the Kings Bench 467. WATERMAN and CROPP's Case Intratur M. 2 Car. Rot. 419. AN Action of Trespass for Battery and Imprisonment The Defendant did justifie the Imprisonment c. If it be not a Court of Record they cannot fine and imprison but if it be a Court of Record then they may for it is Curia Domini Regis 468. IN a Writ of Error Error was assigned That an Action was laid in Lanceston and the Venire facias was awarded de vicineto de Lanceston And it was said That the neighbourhood might be of those of which the Maior and Bailiffs had no power over viz. those out of their juridiction And therefore Error was assigned in the mis-awarding of the Venire facias 10 Jacobi in the Common-Pleas Buckley's case There the Venire facias was de vicineto civitatis Eborum and well enough for vicineto shall imply those within the jurisdiction and not the neighbours 10 Jacobi Procter and Cliffords case adjudged contrary where it was That the Venire facias was de vicineto civitatis Coventry and adjudged not good for it ought to have been de civitate Coventry Dodderidge Vicineto goeth about the Precinct When I was a Councellor then I moved for Bristol and to maintain it good de vicinetâ— de Bristol but it was ruled not good but ought to be de civitate Bristol Pasch 3 Caroli in the Kings Bench. 469. TOLLYN and TAYLOR's Case AN Action upon the Case was brought in the Common-Pleas by an Enfant who declared by Attorney The Defendant brought a Writ of Error in the Kings Bench and assigned the same for Error For he ought to have declared per Prochyn amy and not by Attorney If an Action be brought and the Defendant plead that he is an Enfant the Enfancie is to be tryed where the Writ is brought Here he assigns the Error in fact that he was an Enfant and shewed no place where he was an Enfant and so no place set where to prove it To this Error the Plaintiffe pleaded That he was at full age And upon that they are at issue upon this matter in fact And it was tryed at Halsworth in Suffolk whereas it ought to have been in this Court where the Enfancie is pleaded because he names no place where he was of full age And notwithstanding that it was found that he was of full age yet the Trial was not good The first Action was brought before the Statute of 21 Jacobi cap. 13. Hitcham Serjeant Age or not age is not local and a place must be set down for formalitie sake and so it is no matter of substance And the Venire facias might be awarded from the place where the first Action was viz. at Halsworth in Suffolk For that is a matter dependant and pursuant the first Action and now since the Statute is helped Denny contrary It hath no dependance upon the first Action but is a new thing sprung up If any place had been set down and the Venire facias had been mistaken that is helped by the Statute and not where no place is set down at all Whitlock Justice Every Venire facias properly is to be from the place where the Writ is brought unless it be drawn away by Plea He ought to have alleadged a place For this is a new matter in this Court and not helped by the Statute of 21 Jacobi nor any other for the Venire facias is totally mistaken Dodderidge Justice The Statute of Jeofaites have ever been taken strictly according to the letter For if they had been taken by equity what need had there been of more Statutes to have been made
The want of a letter out of a word is out of the Statutes C. 8. part You should have alleadged some place The Statute of 21 Jacobi is not of any Venire facias which is misawarded generally but the Statute helpeth when there are two places and the visne ought to come from both places and the visne comes but from one place and when there is but one place and the visne comes from two places If Enfancie be to be tryed sc If he were at such a time within age it ought to be tryed by the Country This matter is collateral to the first Record and it is a new Record sc upon Error The whole Court was of opinion that it was out of the Statute and a Repleader was granted Whitlock Justice There is no Trial at all for there is no Venire facias at all Dodderidge Justice If the Defendant in Error plead an ill plea he shall replead But if in this Action he had alleadged a place of his Enfancie sc at Dale and the Venire facias had been of Sale there it had been good trial and there he should not replead for that he hath pleaded well but there he shall have a Venire facias de novo Pasch 3 Caroli in the Kings Bench. 470. DAY 's Case DAY was Indicted for erecting of a Cottage It was moved that the Indictment was insufficient for that the words of the Statute of 31 Eliz. cap. 7 are Shall willingly uphold maintain and continue And the Indictment is only That he continued and so wants the words voluntarily upheld according to the Statute 2. It did not appear in the Indictment that it was newly erected for it is only that he continued but not that he erected The Indictment was quashed because being a penal Law it was not pursued Pasch 3 Caroli in the Kings Bench. 471. MAN's Case MAN was Indicted That he fuit adhâ—â—c est a common Barrettor and no place is expressed where he was a Barrettor so as no trial can be Dodderidge Justice If he be a Barrettor in one place he is a Barrettor in all places The Indictment was Per quod he did stir up contentions Jurgia And no place alleadged where he did stir up Jurgia contentions And it was said that in that case the place was very material And so the Indictment was quashed for want of setting forth the place where he did stir up many Contentions Jurgia c. Pasch 3 Caroli in the Kings Bench. 472. GREEN and MOODY'S Case AN Action of Debt was brought for Rent and it was found for the Plaintiff Thyn Serjeant moved in arrest of Judgment and set forth the Case to be That a Lease was made for years to begin at Michaâ—lmaâ— after And the Plaintiff in the Action of Debt for the Rent did declare Virtuâ—e cujus the Lessee did enter and did not shew what day according to Cliffords Case 7 E. 6. Dyer 89. But the Court said It is said in this Case Virtute cujus dimissionis he did enter and was possessed and that must be intended at Michaelmas Alexander and Dyer's Case 33 Eliz. was resolved accordingly And Cliffords Case Dyer 89. is not virtute cujus dimissionis And the Court held a difference betwixt Debt and Ejectione firme Cliffords case was an Ejectione firme but here it is Debt Jones Justice If he did enter before Michaelmas yet Debt will lie for the Rent upon the privity of contract for the Lessee cannot destroy the contract unless he make a Feoffment It was adjudged for the Plaintiff Quaere If when the Lessor in the case which Jones put hath brought his action and recovered when the Lessee hath entred before the day If the Lessor shall put him out as a Disseisor by reason of the Recovery in the action of Debt in which he hath admitted him to be Lessee for years Or if the Lessor after he hath recovered in Debt dyeth whether his heir shall be estopped by the Record to say otherwise then that he is in by the Lease Or whether the Recovery in Debt hath purged the wrong Like unto the Case 14 H. 8. 12. by Carret If one entreth into my lands and claims 20 years therein and I suffer him to continue there and accept of the Rent and afterwards he committeth Waste I shall maintain an action of Waste and declare upon the special matter If one entreth into my Land claiming a Lease for years per Curiam he is a Disseisor and he cannot qualifie his own wrong Dyer 134. Traps case But Sir Henry Yelverton said That I may admit him to be Tenant for years if I accept of the Rent or bring Waste as Carret said 14 H. 4. But he hath not but for years in respect of his claim But I am concluded by acceptance of the Rent or by bringing of the action of Waste So here by the bringing of the action of Debt the Lessor is concluded But Quaere if it shall bind his heir It was conceived it shall because it is by Record the strongest conclusion that is Pasch 3 Caroli in the Kings Bench. 473. SMITH's Case A Lease for years was made of Lands in Middlesex and the Lessor brought Debt in London against the Assignee The opinion of the whole Court was that it was not well brought but the Action ought to have been brought in Midd. Jones Justice Debt for Rent upon the privity of Contract may be brought in another County but if it be brought upon the privity of Estate as by the Grantee of the Reversion or against the Assignee of the Lessee then it ought to be brought in the County where the Land is Quod nota Pasch 3 Caroli in the Kings Bench. 474. CREMER and TOOKLEY's Case AN action of Debt was brought for suing in the Court of Admiralty against the Statutes of 13 R. 2. cap. 5. 15 R. 2. cap. 3. whereby it is enacted That of manner of Contracts Pleas and Complaints arising within the body of the Counties as well by land as by water the Admiral shall in no wise have conusans And the Statute gives damages part to the party and part to the King And the Plaintiff in the action of Debt did declare That the Defendant Tookley did implead Cremer the Plaintiff in the Court of Admiralty And in his Declaration set forth That one Mullâ—beck was Master of a Ship c. and that the Contract was made in London And that Tookley the Defendant did force the Plaintiff to appear and prosecuted the suit upon the Contract in the Admiral Court And by special Verdict it was found That a Charter-party was made betwixt Mullibeck and Cremer at Dunkirk And that Tookley did prosecute Cremer in the Admiral Court by vertue of a Letter of Attorney and so that he as Attorney to Mullibeck did prosecute the suit there The Case was argued by Andrewes for the Plaintiff There are two points The first upon the Jurisdiction of the Admiralty the Contract
and for these causes he prayed Judgment for the Defendant Observe Reader the Argument of Calthrope he doth not speak to the point where part of the thing or Contract is upon the Sea and part upon the Land as it was urged by Andrews who argued on the other side The Case was adjourned Pasch 3 Caroli rot 362. in the Kings Bench. 475. IT was cited to be adjudged That if a man purchase the next Avoidance of a Church with an intent to present his son and afterwards he present him that it is Symony within the Statute Pasch 3 Caroli in the Kings Bench. 476. SUTTON the Chancellor of Gloucester's Case IN the Case of Sutton who was Chancellor of Gloucester and put out of his place for insufficiency in the Ecclesiastical court Trotman moved for a Prohibition to the Spiritual Court and said that the Bishop had power to make his Chancellor and he only hath the Examination of him and the allowance of him as it is in the Case of a Parson who is presented to the Bishop and said that if his sufficiency should be afterwards reexamined it would be very perilous Doddridg Justice If an Office of Skill be granted to one for life who hath no skill to execute the Office the grant is void and he hath no Frank-tenement in it A Prohibition is for two causes First to give to us Jurisdiction of that which doth belong unto us And secondly when a thing is done against the Law and in breach of the Law then we use to grant a Prohibition Jones Justice Brook had a grant of the Office of a Herald at Arms for life and the Earl Marshal did suspend him from the execution of his Office because he was ignorant in his profession and full of Error contrary to the Records and it was the opinion of the Justices that because he was ignorant in such his Office of Skill that he had no Freehold in the Office In the Principall Case the Prohibition was denyed And afterwards Sutton was put out of his Office by Sentence in the Spiritual Court for his insufficiency Pasch 3 Caroli in the Kings Bench. 477. SYMM'S Case TWo men having speech together of John Symms and William Symms one of them said The Symmses make Half-crown peeces and John Symms did carrie a Cloak-bag full of clippings And whether the Action would lie was the Question because it was incertain in the person For he did not say these Symmses but The Symmses Like unto the Case where one Farrer being slain and certain persons being Defendants in the Star-Chumber one having speech of them said These Defendants did murder Farrer and it was adjudged that the Action would not lie for two causes First because the words These was uncertain in the person And secondly it was incertain in the thing For it might be that they had Authority to do it as in Mills Case 13 Jac. in the Kings Bench Thou hast Coyned Gold and art a Coyner of Gold Thirdly a Cloakbag of clippings that is also uncertain for it might be clippings of Wooll or other things or it might be clippings of Silver from the Goldsmith For the Goldsmith that maketh Plate maketh clippings And fourthly It is not shewed any certain time when the words were spoken And for these causes it was adjudged that the Action would not lie Pasch 3 Caroli in the Kings Bench. 478. WHITTIE and WESTON'S Case AN Action of Debt was brought upon the Statute of 2 E. 6. and the Plaintiff declared That at the time of the Action brought he was Parson of Merrel and that Weston the Defendant did occupie such Lands and sowed them with corn Anno 21 Jac. and that he did not fet forth his Tythe-corn c. The Defendant pleaded in barr of the Action That W. W. Prior of the Hospital of St John of Jerusalem was of the Order of Hospitalers c. and that he held the said Lands free from the payment of Tythes and that the Priory came by the Statute of 32. H. 8. to the King By vertue of which Statute the King was seised thereof and that the same descended to Queen Elizabeth who granted the Lands unto Weston to hold as amply as the late Prior held and that he was seised of the Lands by vertue of that grant Et propriis manibus suis excolebat Upon this Plea the Plaintiff did demurr in Law Noy argued for the Plantiff There are three points in the Case First If these Lands the possessions of the Hospitalers of St John which they held in their own hands were discharged of Tythes Secondly If there be any thing in the Statute of 32 H. 8. by which the Purchasor of the King should be discharged Thirdly Admitting that it shall be a discharge if the Defendant hath well entitled himself to such discharge or Priviledg First it is not within the Statute of 31 H. 8 cap. 13. for that Statute did not extend to the Order of St John Secondly the Statute of 31 H. 8. cap. 13. doth not discharge any but what was then dissolved Thirdly The Statute of 32 H. 8 cap. 24. gives the possessions of the Hospitalers of St Johns to the King and not the Statute of 31 H. 8. Note that the Defendant did recite the branch of the Statute of 31 H. 8. cap 13. That as well the King his heirs and successors as all and every such person and persons their heirs and assignes which have or hereafter shall have any Monasterie c. or other Religious or Ecclesiastical houses or places shall hold c according to their Estates and Titles discharged and acquitted of the payment of Tythes as freely and in as large and ample manner as the said Abbots c. had or used Also he recited the Statute of 32 H. 8. cap. 7 which Enacts that none shall pay Tythes who by Law Statute or Priviledg ought to be discharged The Statute of 31 H. 8. recites that divers Abbies c. and other Religious and Ecclesiastical houses and places have been granted and given up to the King The Statute enaâ—ts that the King shall have in possession for ever all such late Monasteries c. and other Religious houses and places c. And also enacts that the King shal have not only the said Monasteries c. but also all other Monasteries c. and all other Religious and Ecclesiastical houses which hereafter shall happen to be dissolved suppressed renounced relinquished forfeited given up or by any other means come to the King and shall be deemed adjudged vested by Authority of this present Parliament in the very actual possession and seisin of the King for ever in the state and condition they now be Vi. The Statute And shall have all priviledges c. in as ample manner and form as the late Abbots c. had held or occupied c. The Question then is Whether the men of the Hospital of St John at Jerusalem are intended to be within the
39 H. 6. 9. is ruled in the point there the Attachment is in his own hands there the other pleaded there was no debt It is there ruled that the debt is not traversable for if there be no debt then he shall have restitution in London upon the pledges It was objected That he is to swear his debt to be a true debt I answer It ought to be so intended and then if he lay a Custom to swear the Debt and we say we have sworn our Debt then we have pursued the Custom 3. It was objected that it is not shewed where the goods were whether within the jurisdiction of the City 4 E. 4. 36. there the place came not in question But in our Case we lay That the Custom is that the goods must be in London Old Entries 155 156. there it is not alleadged that the goods were within the City of London at the time of the Attachment If a Precept be awarded to the Officer who retorns that he hath not any thing within the City and upon the allegation of the Plaintiff that such a one hath goods of the Defendant in his hands was the Objection I answer If we have not proceeded well yet the Process is well enough for here is a Judgment against him in London then so long as the Judgment is in force against him he cannot have the goods 21 E. 4 23. b. It is a Rule That a stranger unto a plaint shall not be received to alleadge discontinuance in the process So the Sheriff shall not excuse himself upon an Escape that there was Error in the Judgment nor a privy shall not take advantage of it Ognels Case Trim. 31 Eliz. there lies no process of Capias by the Law upon a Recognisance but Extent or Levari facias Yet there a Capias was awarded and if the party taken escape the Sheriff shall not take advantage of the Erronious process So I desire Judgment for the Defendant And he took an Exception to the Declaration In Detinue if the Declaration be general it is good sc Licet sepius requisitu c. But here he shews that he delivered the Cloak to be redelivered upon Request and he doth not shew any particular Request but sayes generally Licet sepius requisitus Ward There is a difference betwixt Detinue and Action upon the Case For in an Action upon the Case he ought to shew a particular Request 26 H. 6. If I bail goods to redeliver upon request yet I may seise them without request Dodderidge Justice The reseisure of the goods is a Request in Law a Request with a witness a Request with effect and untill Request he hath just cause to keep them Jones Justice In Debt and Detinue the very bringing of the Action and demand of the Writ is a demand and request And if he appear at the first Summons then he excuses himself otherwise he shall be subject to damages but the Request ought not to be so precisely alleadged But if a collateral thing be to be done upon Request there to say sepius requisitus is not sufficient So if I sell a horse for 10â— to be paid upon Request there the Request must be precisely laid for it is parcel of the Contract And in Action upon the Case and upon Debt you must lay a Request Dodderidge Justice The Request is no part of the Debt for the Debt is presently due but if I make the Request to be part of the Contract there it is otherwise As if I deliver goods to redeliver to me there needeth no precise Request but if it be to redeliver upon Request there the Request ought to be alleadged for there the Request is part of the Contract The Case was adjourned till the next Term. Pasch 3 Caroli in the Kings Bench. 484. MOLE and CARTER'S Case IN an Action upon the Case upon an Assumpsit it was moved in arrest of Judgment That the Plaintiff declares that he was possessed of certain Goods viz. such c. at London And that in consideration of two shillings That the Defendant at London did promise to carrie the said Goods aboard such a Ship if the Plaintiff would deliver the Goods to him And he shewed that he did deliver the Goods to him and that he had not carried them aboard He shewed that he was possessed of the Goods but did not shew when or where he delivered the said Goods to the Defendant but said only deliberavit c. And then the Law saith that they were not delivered Jones Justice The same is but matter of Inducement to the promise and ought not to be shewed so precisely Pasch 3 Caroli in the Kings Bench. 485. FRYER and DEW'S Case DEW being sued prayed his Priviledg because he is a Commoner in Exeter Colledg in Oxford and brought Letters under the Seal of the Chancellor of Oxford certifying their Priviledg and he certifies that Dew is a Commoner as appeareth by the Certificate of Doctor Prideaux Rector of the said Colledg Whereas he ought to certifie that he is a Commoner upon his own knowledg and not upon the Certificate of another But afterwards Certificate was made of his own knowledg and then it was allowed as good The Declaration came in Hill 2 Caroli The Certificate bore date in the Vacation and he prayed his Priviledg this Easter Term. After Imparlance he comes too late to pray his Priviledg The Certificate is not that at the time of the Action brought he was a Commoner in Exeter Colledg but that now he is a Commoner And the Certificate bears date after the Action brought He ought to have said that at the time of the Action brought and now he is a Commoner in Exeter Colledg The Priviledg was allowed per Curiam Trin. 21 Jacobi in the Kings Bench. 486. TANFIELD and HIRON'S Case THe Plaintiff brought an Action upon the Case against the Defendant for delivering of a scandalous Writing to the Prince and in his Declaration he set forth what place he held in the Commonwealth and that the Defendant seeking to extenuate and draw the love and favour of the King Prince and Subjects from him did complain that the Plaintiff did much oppress the Inhabitants of Michel Tue in the County of Oxford and that he did cause Meerstones to be digged up which might be a cause of great contention amongst the Inhabitants of Tue. The Plaintiffe denyed the oppression alledged against him and the Defendant did justifie and said that I. S. being seised of the Mannor of Tue did demise certain Lands parcel thereof unto I. F. for eighty years who made a Lease of the same at Will and afterwards I. S. did Enfeoff Tanfield the Plaintiff of the said Mannor to whom the Tenants did attorn Tenants And the Defendant shewed That time out of mind the Inhabitants of the Town of Tue had Common in the Waste of the said Mannor and that a great part of the said Mannor was inclosed and the Meerstones removed
reasonable Herbage Here the Grant is not De omnibus grossis arboribus bonis catellis Felonum and of the Goods of Felons themselves and in the former Patent these were granted and so the Grant is for the Kings benefit and to the prejudice of the Patentee Also this Patent is ad proficuum Domini Regis For here is a Rent reserved and here is a Proviso for the committing of Waste in the premisses which were not in the first Letters Patents and in these Letters Patents there are divers Covenants which were not in the former Patents and so it is in forma sequente And so the Lease of Philip and Mary is good The King seised of a Manor to which he hath a Park doth grant the Stewardship of the Manor and the Custodie of the said Park with reasonable Herbage Afterwards in the same Letters Patents hee grants the said Manor of O. and all the Lands in O. excepting grosse trees in the Park If this Grant be not good for the Manor it is not good for the Park that was the Objection It is good for the Manor and also for the Park It was objected That the King grants the custody of the Park and so not the Park it selfe for how can the King grant the custody of the Park if he grant the Park it selfe it is dangerous that upon an implication in one part of a Patent the expresse words which follow should be made void the subsequent words in this Case are The King grants the Manor and all the Lands to the same belonging now the Park doth belong to it and the King excepts only the Deer C. 10 part 64. The King at this day grants a Manor unto a man as entirely as such a one held the same before it came into his hands c. the Advowson doth passe without words of grant of the Advowson for the Kings meaning is That the Advowson shall passe The meaning of the King is manifest in our Case C. 3. Part 31 32. Carr's Case There the Rent was extinct betwixt the Parties yet for the benefit of the King for his tenure it hath continuance for a thing may be extinct as to one purpose and in esse as to another purpose 38. Ass 16. a Rent extinct yet Mortmain Dyer 58 59. The Exception ought to be of the thing demised In our Case the Park doth passe but the King shall have the liberties in it and so here the Park shall passe and the Exception is of the liberties Com. 370. the Exception ought to be of that which is contained in the former words in the former Patents the Offices were first granted and in the same Letters Patents the Manor was afterwards granted But now King James grants the Manor first and then the Offices Construction of Statutes ought to be secuncundùm intentionem of the makers of them and construction of Patents secundùm intentionem Domini Regis C. 8. part 58. You ought to make such a construction as to uphold the Letters Patents C. 8. part 56. Auditor Kings Case There the Letters Patents were construed secundùm intentionem Domini Regis and adjudged good But to make void the Patent they shall not be construed secundùm intentionem but to make a Patent good they shall be construed secundùm intentionem Domini Regis The Case was adjourned till Michaelmas Terme next Note I have heard Sir Henry Yelverton say That it was the opinion of the Judges in this Case That he had but the custody of the Park and not the interest of the Park for that by the acceptance of the custody of the Park when he had a Lease of the Park before it was a surrender of his Lease Trinit 21. Jacobi in the Kings Bench. 492 SHORTRIDGE and HILL's Case SHortridge brought an Action upon the Case against Hill for ravishing of his Ward and the Writ was contra pacem without the words Vi armis Lib. Dent. 366. where three Presidents are of Actions upon the Case without Vi armis An Action upon the case for doing of any thing against a Statute must be contra pacem Ley Chief Justice Recovery in this Action may be pleaded in Barre in a Writ of Ravishment of Ward brought Dodderidge Justice The Action of Trespasse at the common Law is only for the taking away of the Ward and here he hath elected his Action at the common Law and then he shall not have an Action upon the Statute viz. a Ravishment of Ward but here the Action upon the Case is brought for the taking and detaining of the Ward so as he cannot preferr him in marriage and upon this speciall matter the Action upon the Case lieth without the words Vi armis A Writ of Ravishment of Ward ought to be brought in the Common Pleas but yet you may bring a Writ of Ravishment of Ward in this Court if the Defendant be in the custody of the Marshal of the Marshalsey for in such special Case it shall be brought in this Court if there be an extraordinary matter besides the Trespass then an Action upon the Case lieth as when A. contracts with B. to make an estate unto B. of Bl. Acre at Michaelmas if C. enter into Bl. Acre A. may have an Action upon the Case against C. for the speciall damage which may happen to him by reason that he is not able to perform that contract by reason of the entry of C. and he shall declare contra pacem but not Vi armis Trinit 21. Jacobi in the King 's Bench. 493 BAKER and BLAKAMORE's Case IN Trespass the Defendant pleaded That J. S. being seised in Fee gave the Lands unto Baker and the Heirs of his body and conveyed the Lands by descent to four Daughters and Blakamore the Defendant as servant to one of the Daughters did justifie The Plaintiff did reply That the said J. S. was seised in Fee and gave the same to Baker and the Heirs Males of his Body and conveyed the Land by descent to himself as Heir Male absque hoc that J. S. was seised in Fee Henden Serjeant did demur in Law upon the Replication and took Exception to the Traverse for that here he traverseth the Seisin of J. S. whereas he ought to have traversed the gift in tail made by J. S. for the being seised is but an inducement not traverseable and therefore he ought to have traversed the gift in taile for then he had traversed the seisin for he could not give the Lands in tail if that he were not seised thereof in Fee L. 5. E. 4 9. there in Formedon the Tenant would have traversed the Seisin of the Donor but the book is ruled that the Traverse ought to be of the gift in tail and that includes the Seisin Bridgment for the Plaintiffe and said That the Serjeant is of opinion contrary to the Books when he saith positively that you ought to traverse the gift in tail and not the seisin of the Donor
The Case shortly is A. being seised in Fee makes a gift in tail to B. and that descends to four daughters c. And the Plaintiff replies That A. was seised in Fee and gave the Lands to B. and to his Heirs Males and the Plaintiffe claimes the entail as Heir Male and the Defendants under the generall tail absque hoc that A. was seised in Fee 27. H. 8. 4. by Englefield If in Trespass the Defendant plead the Feoffment of a stranger and the Plaintiff saith That he was seised in Fee and made a Lease for years to the said stranger who enfeoffed the Defendant he need not to traverse absque hoc that he was seised in Fee C. 6. part 24. The seisin in Fee is traversable Br. Travers 372. acc Dodderidge Justice The seisin in this Case is traverseable Ley Chief Justice Take away the Seisin and then no gift and therefore the Seisin here is Traverseable Haughton and Chamberlain Justices agreed The Court resolved That either the Seisin in Fee or the gift in tail is traverseable Dodderidge Justice If you both convey from one and the same person then you must traverse the conveyance It is a rule C. 6. part 24. there the Books are cited which warrants the traverse of either Quod nota It was adjudged for the Plaintiff Trinit 21. Jacobi In the Kings Bench. 494 Sir EDWARD FISHER and WARNER's Case THE Testator being indebted unto Fisher made Warner his Executor and Warner in consideration that Fisher would forbear suing of him upon the Assumpsit of the Testator did promise to pay him Fifty Pounds and in an Action upon the Case upon this promise Warner pleaded Non Assumpsit in the Common Pleas and it was found for the Plaintiff And a Writ of Error was brought in this Court because it was not shewed for what consideration the Testator did promise 2. Because it was not shewed That Warner the Executor had Assets in his hands It was said by the Councel of Sir Edward Fisher That they need not shew that he hath Assets because the Defendant Warner was sued upon his own promise C. 9. part 94. The Testator made a promise to pay to Fisher fifty pound and died The Executor in consideration of the forbearance of a Suit upon that promise of the Testator doth assume to pay c. The Jury find for the Plaintiff The Error is that no time is limited nor no place where the promise was made and also it is not shewed when the Testator died and so it is not shewed whether the promise were made in the life time of the Testator or not for if it were in the life time of the Testator then the promise was void Nor is the time of the forbearance shewed and so no good consideration Hill 5. Jacobi a consideration to forbear paululum tempus is no good consideration by Cook And the like case was adjudged 36. Eliz. Rot. 448. Sackbdos case We do alledge de facto that we have forborn our Suit and that the Defendant hath not paid us the money Dodderidge Justice It is alledged that the Plaintiff paid money to the Testator upon which he promised And the Action now brought is upon the promise of the Executor Part of the promise is That he paid the fifty pound to the Testator and that ought to be proved in evidence to the Jury C. 6. part Gregories case if it be not specially named how he shall prove it Haughton to forbear to sue him is for all his life time and not paululum tempus Dodderidge Justice Exception was taken that he doth not shew that the Testator was dead at the time of the promise by the Executor It was shewed That after the death of the Testator that he took upon him the Execution of the Will and then promised and that of necessity must be after the death of the Testator Trinit 21. Jacobi in the King 's Bench. 495 WILLIAM's and FLOYD's Case IN an Ejectione firme The Array was challenged because it was made at the Nomination of the Plaintiffe And by consent of the parties two Atturneys of the Court did try the Array The question was Whether the Triall of the Array was good It was said by the Councel which argued for the Defendant That it was not good If one of the four Knights be challenged the three other Knights shall try that challenge and if he be found favourable he shall be drawn and if another of the Knights be challenged hee shall be tried by the other two and if one of the two be challenged then a new Writ shall issue forth to cause three Knights to appear 9. E. 4. 46. The two which quash the Array ought to try the Array of the Tales for that they are strangers to them The assent of the parties in this case is to no purpose for the consent of the parties cannot alter the Law neither can the King alter the Law but an Act of Parliament may alter the Law 29. Ass 4 19. H. 6. 9. by Newton 27. H. 8. 13. Where a triall cannot be out of the County by the assent of the parties and if it be it is errour By the Councel of the other side contrary This triall of the Array is much in the discretion of the Judges for sometimes it is tried by the Coroners and they are strangers to the Array 21. Ass 26. 20. Ass 10. there the Judges at their discretion appointed one of the Array and the Coroners to try it 27. Ass 28. there upon such a challenge it was tried by the Coroners and Shard said That the triall by any of them was sufficient and by Forriners de Circumstantibus 31. Ass 10. so as it rests much in the discretion of the Judges 29. Ass 3. there it was denied But note That that was in Oyer and Terminer and there it did not appear that the Array was made at the Nomination of one of the parties but in other challenges it may be tried by one of the Panell But in our case they were all challenged was the objection 9. E. 4. 20. Billing For if one of the parties will nominate all of the Jurours to the Sheriffe it is presumed that they are all partiall and 〈◊〉 â—his case the whole Array is challenged but in other cases he may challenge one or two of the Array and yet the others may be indifferent But admit it had been errour yet being by the assent of the parties it is no errour Baynams case in Dyer A Venire facias by assent of the parties was awarded to one of the Coroners and good Dyer 367. 43. E. 3. Office of Court 12. One of the twelve doth depart If the Justices do appoint one of the panell to supply his place it is erroneus but yet if it be with the assent of the parties it is good So in our case 21. E. 4. 59. Brian saith That he hath not seen more then two to try the Array yet by assent of the
parties more may try it 30. E. 3. 2. or 39. E. 3. 2. In a Writ of Right processe issued to the Sheriff to return four Knights he returns two Knights and two Esquires without making any mention that there were no more Knights in the County the same is errour yet if two Knights and two Esquires had been returned by the assent of the parties it had been good 6. E. 6. Dyer A man cannot enter for Non-payment of Rent without a demand yet by assent of the parties it may be good 22. H. 6. 59. the triall in favour of Liberty ought to be in the same County where the Action is brought and not where the Manor is But 44. E. 3. 6. by the assent of the parties it is sufficient In the Abridgement of the Book of Assizes 48. the books are cited to the contrary there it is said to be no Law where the Coroners â—ry the panell I agree that where it is not against a fundamentall point of the common Law that the consent of the parties tollit errores Dodderidg Justice Two questions are in this case 1. If this tryall be good 2. Admitting it be not good whether the assent of the parties doth make it good First it is a meer matter in the discretion of the Justices which is not tied to any strict rule in Law In the Book of the Assizes it was tried by the Coroners because it was in the discretion of the Justices And the Coroners are Ministers to the Court and ought to attend at the Assizes The Book of the Assizes is the Report of the Cases which happened at the Assizes in the Circuits of the Justices and they are not Term cases For the Exception which is taken by him who made the Abridgment of the Book of Assizes is of no moment for the Authour thereof was but a Student and no Councellor at Law In these Courts the Coroners do not attend therefore sometimes two four or six of the Panell are chosen to try those who are challenged as the Court shall think fit and if the Triers cannot agree we put them together into a room and swear one to keep them as a Jury is kept so as you see it rests much in the discretion of the Justices Court And if there were a certain rule to try it then it ought to be strictly observed 31. Ass 10. there the triall was de Circumstantibus 2. The assent of the parties doth make it good It is not a triall in point of the right of the cause but only of the indifferency of the Ministers The Array was challenged because the Sheriffe made it at the request of one of the parties and the Sheriffe hath confessed it upon his Examination The principal Array shal be first tried and if that be quashed then the Tales shall not be tried but if it be affirmed then two of the Panell shall try the Panell and two of the Tales shall try the Tales This is a triall only of indifference and not of the fundamentall point of the Cause If the Plaintiffe require the Venire facias to the Coroners because that the Sheriffe is chosen the Defendant shall be examined if he will agree to it if he will not agree but the Sheriffe returneth the Jury the Defendant in that case shall not challenge the Jury or any of the Array The four Knights in the Writ of Right shall choose the other twenty of the Grand Assize who shall be joyned with them and they shall be the Judges of the twenty when they are named by them 39. E. 3. 2. Haughton Justice The appearance by Atturney by assent of the parties is not errour although by the Law the Plaintiffe ought for to appear in proper person Chamberlain Justice would be advised because he had not seen the Books Ley chief Justice When the whole Panel as in this case comes to be challenged then it is in the discretion of the Justices to choose triers and chiefly in this case because all the Array is partiall If the Coroners be absent 〈◊〉 is good to take two Atturneys of the Court who the Court know to be honest by their honest carriage and fair practice The assent of the parties strengthens this case It is a rule That the assent of the parties cannot make that good which is against any fundamentall point of the Law therefore it is best to view the Presidents and to draw a Jurour but that we cannot do of our selves by the Law yet with the assent of parties we may do it It is a contempt and a deceit to the Court if his assent be entred upon record and notwithstanding that the Defendant will question the matter by a Writ of Error or otherwise relinquish his consent and for such contempt the Court may commit him and fine him also But if the matter be not a matter of Record but be onely by a Rule of the Court then we may award an Attachment onely against the party In this case the triall of the Panell was good and so was it afterwards adjudged by the whole Court Quod nota Pasch 3. Caroli in the King 's Bench. 496 EVERS and OWEN's Case SAmson Evers the Guardian of Compton Evers did sue Owen the Executor of the Lady Anne Evers for a Legacy before the Councell of the Marches of Wales Henden Serjeant moved for a Prohibition and said That by Law no intent of a Will ought to be averred contrary to the words of the Will C. 5. part 68. Cheyneys case And so no equity shall be taken upon a forrain intent contrary to that which is in the Will 2. He said That the party might not sue in the Marches of Wales for a Legacie for that the party ought to sue for the same in the Ecclesiasticall Court Banks contrary They may proceed there in an Ecclesiasticall Cause wherein there is cause of equity The Statute of 34. H. 8. cap. 26. giveth power unto them to proceed as they proceeded heretofore by Commission And before that Statute they proceeded there in case of a Legacy and so are divers Presidents therefore no Prohibition is to issue Samson Evers is the Kings Atturney for the Marches of Wales and his personall attendance is requisite there And this Court cannot grant a Prohibition to stay a Suit when he cannot sue in this Court for the same thing Finch Recorder contrary If you shew Presidents yet they will not bind this Court and give power unto them to hold plea of that which they ought not to hold plea of It is usuall to grant a Prohibition if the Court of Requests holds plea of a Legacy if it be not by reason of some speciall circumstance and it is usuall to dismisse Legacies out of the Chancery And no Priviledges shal be granted unto an Executor Administrator or Guardian Hyde Chief Justice Two have an Obligation as Executors and the one releaseth it is good and a good cause of equity against him who
releaseth A Will is made and A. is made Executor and no trust is declared in the Will and at his death the Testator declares That his Will is for the benefit of his children May not this intent be averred there is nothing more common Dodderidg Justice For the making of an Estate you cannot averre otherwise then the Will is but as to the disposition of the estate you may averre Jones Justice There are two Executors one commits wast or releaseth c. the other hath no remedy at the common Law for that breach of Trust The reason of Chenyes case C. 5. part is Whosoever will devise Lands ought to do it by writing and if it be without the writing it is out of the Will although his intent appeareth to be otherwise Before the Statute of 34. H. 8. cap. 26. The Marches of Wales held plea of all things for things were not then setled But the said Statute gave them power and authority to hear and determine such causes and matters as are or afterwards shall be assigned to them by the King as heretofore had been used and accustomed Now if it be assigned by the King yet if it be not a thing accustomed and used to be pleaded there it is not there pleadable So if it be within the Instructions made by the King yet if it be not used and accustomed it is not pleadable there but it ought to be within the Instructions and also accustomed and usuall Adultery Symony and Incontinency are within their Instructions and are accustomed The things being accustomed to be pleaded there have the strength of an Act of Parliament but by the Instructions they have no power to proceed in case of Legacy Then let us see if the same be included within the generall words things of Equity within the Instructions And then I will be tender in delivering of my opinion If a Legacy be pleadable there or not Whitlock Justice The Clergy desired that they might forbear to intermeddle with Legacies Five Bishops one after the other were Presidents of the Marshes there and they draw into the Marches spirituall businesse but originally it was not so their power was larger then now it is for they had power in criminall causes but now they are restrained in that power There is a common Law Ecclesiasticall as well as of our common Law Jus Commune Ecclesiasticum as well as Jus Commune Laâ—cum The whole Court was of opinion That the Kings Atturney in the Marches being out we ought to have priviledge there In the Chancery there is a Latine Court for the Officers of the Court and the Clarks of the Court for to sue in But in the principal Case a Prohibition was not granted because there was much matter of Equity concerning the Legacy It was adjourned Pasch 3. Caroli in the Kings Bench. 497 HARLEY and REYNOLD's Case HArvey brought an Action of Debt upon an Escape against Reynolds Hill 1. Car. Reynolds pleaded That before the day of Escape scil the twentieth day of January 1. Car. That the Prisoner brake Prison and escaped and that he afterwards viz. before the bringing of this Action viz. 8. die Maii 2. Car. took the Prisoner again upon fresh Suit Anderws for the Plaintiff Reynolds is bound to the last day viz. 8. Maii and not the day before the bringing of the Action for the Bill bears date Hill 1. Car. and the terme is but one day in Law c. 4 part 71. and so no certain day is set for the Jury to find The day which Reynolds sets that he retook the Prisoner is the eighth day of May and he shall be bound by that Com. 24. a. 33. H. 6. 44. Where a day is uncertain a day ought to be set down for a day is material for to draw things in issue C. 4. part 70. the Plaintiff shewed That 7. Maii 30. Eliz. by Deed indented and inrolled in the Common Pleas Ter. Pasc in the said thirtieth year within six monthes according to the Statute for the consideration of One hundred Pounds did bargain and sell But he further said That after the said seventh day of May in the said thirtieth year he levied a Fine of the Lands to the now Plaintiff after which Fine viz. 29. Aprilis in the said thirtieth year the said Deed indented was enrolled in the Common Pleas. Note That another day more certain was expressed therefore the mistaking of the day shall not hurt And there it was helped by Averment 8. H. 6. 10. Repleader 7. In Waste the Defendant said That such a day before the Writ brought the Plaintiff entred upon him before which entry no Waste was done c. Strange It might be that he entred again wherefore the Court awarded that he should recover Co. Entries 178. In Dower the Tenant vouched a stranger in another County who appeared and there the Replication is viz. die Lunae c. so the day ought to be certain 19. H. 6. 15. In a Formedon If the Defendant plead a thing which by the Law he is not compelled to do and the Plaintiffe reply That she is a Feme sole and not Covert it is good but if he plead That such a day year and place there the Trial shall be at the particular place otherwise the Trial shall be at the place where the Writ bears date C. 4 part Palmers Case If the Sheriff sell a Term upon an Extent and puts a Date to it scil recites the Date and mistakes it the sale is not good for there is no such Lease Dyer 111. Then it is said 31. Octobris and there by the computation of time it was impossible and so here the time is impossible scil that 8. Maii 2. Car. should be before Hill 1. Caroli for the taking is after the Action brought and so naught to bar the Plaintiff it is the substanre of his bar upon which he relieth and so no matter of form 20. H. 6. there upon an Escape the Defendant said That such a day ante impetrationem billae in this Court scil such a day he retook him and the day after the scilicet is after the purchase of the Writ there the scilicet and the day expressed shall be void and it shall be taken according to the first day expressed if the Sheriff had retaken him before the filing of the Writ it had been a good plea in Bar otherwise not Calthrope contrary H. brought debt Hill 16. Jacobi against Cropley and 9. Junii 19. Jacobi Cropley was taken in Execution and delivered in Execution to R. by Habeas Corpus afterwards 1. Caroli Cropley escaped and H. brought debt against R. who pleaded a special Plea and shewed That 20. Januarii 1. Caroli Cropley brake prison and escaped and that he made fresh Suit untill he took him and that before the purchase of the Bill scil 8 Maii 2. Caroli he was retaken 16. E. 4. If he retake him before the Action brought it is a good bar so if the
of his eldest son in tail and afterwards he married a wife and died that the wife should not be endowed for when he had limited the use to himself for his life he could not limit arâ— Remainder over And Edwards Case adjudged in the Court of Wards which was That there was Tenant for life the Remainder in tail he in the Remainder granted his Remainder to I. S. and his heirs and afterwards Tenant for life dyed and then the grantee dyed his heirs within age it was adjudged that the heir of the garntee should not be in ward because the Tenant in tail could not by his Grant grant a greater estate then for his own life But he said That in the principall Case it appeareth That the Tenant in tail in Remainder hath particularly recited his estate And where it appeareth in the Conveyance it self that he hath but an estate in tail a greater estate shall not passe As if Tenant for life granteth a Rent to one and his heirs the same at the first sight seems to be a good Rent in Fee but when it appeareth in the Conveyance that the grantor was but Tenant for life there upon the Construction of the Deed it self it cannot be intended that he granted a Fee but that an estate for life passed only in the Rent Secondly he argued That although the estate in tail in the principall case was an abeyance Yet a Common Recovery would barr such estate tail in abeyance And therewith agreeth C. 2. part Sr Hugh Cholmleys Case 3. He said That the estate was out of the King and vested in the party without any Offence found as 49. E. 3. Isabell Goodcheaps case A man devised houses in London holden of the King in tail and if the Donee dyed without Issue that the Lands should be sold by his Executors The devisee died without Issue The bargain and sale of the Lands by the Executor doth divert the estate out of the King without Petition or Monstrans de Droit So If there be Tenant in tail the Remainder in tail and Tenant in tail â—n Remainder levieth a fine of his Remainder to the King and afterwards dyeth without Issue the Kings estate is determined and there needs no Petition or Monstrans de Droit 4. He said That in the principall case nothing was in the King because it doth not appeare that there was any seisure or Offence found to entitle the King And the Tenant in tail in the Remainder died in the life of King James and then if the Kings estate were then determined as before by the death of the Tenant in taile the King which now is never had any title And hee said that he needed not to shew a greater title then he had And hee took a difference when Tenant in taile doth onely defend or make defence and when he makes title to Lands in the one Case he ought for to shew That the Tenant in taile died without issue and in the other Case not And therefore in the principall case he demanded Judgment for the Defendant The Case was adjourned to another day Mich. 4. Caroli in the Star-Chamber 511 TAILOR and TOWLIN's Case A Bill was preferred against the Defendant for a Conspiracy to Indict the plaintiff of a Rape And the Plaintiff aleadged in his Bill That an Indictment was preferred by the Defendant against the Plaintiff before the Justices of Assise and Nisi prius in the County of Suffolk And did not lay it in his Bill that the Indictment was preferred before the Justices of Oyer and Terminer and Gaole delivery and the same was holden by the Court to be a good Exception to the Bill for that the Justices of Assise and Nisi prius have not power to take Indictments But afterwards upon veiw of the Bill because the Conspiracy was the principall thing tryable and examinable in this Court and that was well layd in the Bill the Bill was retayned and the Court proceded to Sentence And in this Case Richardson Justice said That in Conspiracy the matter must bee layed to be falsè et malitiosè and if it be layed for a Rape It must be layd that there was recens persecutio of it otherwise it will argue a Consent And therefore because the Defendant did not preferre an Indictment of Rape in convenient time after the Rape supposed to be done but concealed the same for half a years time and then would have preferred a Bill of Indictment against the plaintiff for the same Rape he held that the Indictment was false and malitious And Hyde Chief Justice said That upon probable proof a man might accuse another before any Justice of Peace of an Offence and although his accusation be false yet the Accuser shall not be punished for it But where the Accusation is malitious and false it is otherwise and for such Accusation he shall be punished in this Court Trinit 8. Caroli in the King Bench. 513 JONES and BALLARD's Case AN Action upon the Case was brought for these words viz These Jones are proper Witnesses they will sweare any thing They care not what they say They have already forsworn themselves in the Chancery and the Lord keeper Committed them for it Jermyn took Exceptions because it was not said to be in the Court of Chancery nor that it was in any Deposition there taken upon Oath But it was adjudged per Curiam That the Action would lie and Jones Justice said that the Addition in the Chauncery was as much as if he had said he was perjured there And Hâ—msies case was vouâ—hed by him Where one said of a Witness presently after a Tryall at the Guild Hall in London You have now forsworn your self That it was adjudged that the words were actionable Trinit 8. Caroli in the Kings Bench. 513. SYMME's and SMITH's Case A Woman being entituled to copyhold Lands of the Manor of D did covenant upon reasonable request to be made unto her to surrender the Copy-hold Land according to the Custome of the Manor And it was found That the Custome of the Manor is That a surrender may be made either in person or by Letter of Atturney and that the plaintiff did request the woman to make the surrender by a Letter of Atturney which shee refused to do And whether shee ought to surrender presently or might first advise with her Councell was the Question It was argued for the plaintiff that shee ought to do it presently And Munser's Case C. 2. part and 16. Eliz. Dyer 337. Sir Anthonie Cooks Case were vouched that she was to do it at her perill And the Election in this Case was given to the Covenantee and hee might require it to be done either in Court in person or by Letter of Atturney And C. 2. part Sir Rowland Heywards Case and C. 5. part Hallings Case was vouched to that purpose Rolls contrary for the Defendant And he said That the woman was to have convenient time to do it and
to Thomas Spence and his Wife and the Survivor the Rent of seventeen Pounds yearly and every year during the terme Proviso that if the Rent be arrere by forty daies that Thomas and his Wife or the Survivor of them should enter Thomas Spence died his Administrator did demand the Rent and being denied entred for the Condition broken Calthrope argued That the reservation to the Wife was void because she had not any interest in the Land and also never sealed the Indenture of Assignment but was as a stranger to the Deed and so he said that the Wife could not enter for the condition broken nor make any demand of the Rent The 2l l Point was Admitting that the wife could not enter nor demand the Rent Whether the Administrator of the Husband might demand it and enter for the condition broken because the words are Yeilding and paying to Thomas Spence and Jane his Wife and the Survivor of them during the term and no words of Executors or Assigns are in the Case and he conceived the Administrator could not and so he said it had been resolved in one Butcher and Richmonds Case about 6. Jacobi Banks contrary and he said It was a good Rent and well demanded and the reservation is good during the Term to the Husband and Wife and although the word Reddendo doth not create a rent to the Wife because the Husband cannot give to the Wife yet the Solvendo shall gain a good rent to the Wife during the life of the Wife and the reservation shall be a good reservation to him and his Administrators during the Survivor Vide C. 5. part Goodales Case 38. E. 3. 33. 46. E. 3. 18. and admitting that the rent shall be paid to the Wife yet the condition shall go to the Administrator 2. The word Solvendo makes the Rent good to the Wife and amounts to an agreement of the Lessee to pay the Rent to them and the Survivor of them and that which cannot be good by way of reservation yet is good by way of grant and agreement and many times words of reservation or preception shall enure by way of grant Vide 10 E. 3 500. 10. Ass 40. 8. H. 4. 19. Richard Colingbrooks Case 41. E. 3. 15. 13. E. 2 Feasts and Fasts 108. Richardson Justice The Reservation being during the term is good and shall go to the Administrator Jones Justice contrary It is good only during the life of the Lessor and so was it adjudged in Edwyn and Wottons Case 5. Jacobi Crook Justice accorded The Administrator hath no title and the Wife is no party to the Deed and therefore the Rent is gone by the death of the Husband If it had been durante termino generally perhaps it had been good but durante termino praedicto to him and his Wife it ceaseth by his death And the words durante termino couple it to him and his Wife and the Survivor and it cannot be good to the Wife who is no party nor sealed the Deed neither can it inure to the Wife by way of Grant And the words Reddendo and Solvendo are Synonima and the Administrator is no Assignee of the Survivor for she cannot assign because she hath no right in the Rent Barkley Justice The intention of the parties was That it should be a continuing Rent and Judges are to make such Exposition of Deeds as that the meaning of the parties may take effect I do agree That the Wife could not have the Rent neither by way of Reservation nor by way of Grant if she were not a party to the Indenture but here she is a party to the Deed for it is by Deed indented made by the husband and wife and the husband hath set his Seal to it And 2. The Solvendo doth work by way of Grant by the intent of the parties The Reddendo shall go and relate as to the husband and the Solvendo to the wife and he agreed the Case 33. H. 8. Br. Cases because there expressum facit cessare tacitum but in case of a Lease for years the words Reserving Rent to him shall go to the Executor who represents the person of the Testator and 27. El. it was adjudged in Constables Case and Littleton agrees with it That the Executor shall be possessed and is possessed in the right of his Testator And therefore if an alien be made an Executor in an Action brought by him the Tryal shall not be per medâ—â—tatem lâ—nguae And this Case is the stronger because the Reservation is during the Term. And C. 3. part in Malleries Case That the Law shall make such a construction Upon reservation of Rent upon a Lease as may stand with the intent and meaning of the parties and therefore in that where an Abbot and Covent made a Lease for years rendring Rent yearly during the Term to the Abbot and Covent or to his Successors it is all one as if it had been to him and his Successors and although the words be joint or in the Copulative yet by construction of Law the Rent shall be well reserved during the terme for if the reservation had been only Annually during the terme it had been sufficient and his Successors should have had the Rent Quaere the principall Case for the Judges differed much in their opinions Hill 8. Caroli in the Kings Bench. 517 The KING against HILL AN Information was by the Kings Atturney against Hill and others upon the Statute of 32. H. 8. of Maintenance Where the Point was A man was out of Possession and recovered in an Ejectione firme in May 2. Car. and Habere Possessionem was awarded and 29. Sept. 4. Car. he sold the Land And whether he might sell presently or not was the Question And it was determined That he being put in possession by a Writ of Habere facias possessionem that he might sell presently Vide Com. Crookers Case and C. Littl. acc and so was it holden in Sir John Offley's Case 7. Car. in this Court Barkley Justice If a Disseisor doth recover in an Ejectione firme if he afterwards sell the Land it is a pretended Title Jones Justice It was adjudged 36. El. in the Common Pleas in Pages Case in the Case of a Formedon That if a man be out of Possession for seven years and afterwards he recover that he may sell the Lands presently Crook Justice There is a difference where the recovery is in a reall Action and where it is in an Ejectione firme It was Master Browneloes Case in the Star-Chamber resolved by all the Judges of England That a Suit in Chancery cannot make a Title pretended nor Maintenance Barkley Justice put this Case If Husband and Wife bargaineth and selleth whereas the Wife hath nothing in the Land and afterwards a Fine is levied of the same Lands by the Husband and Wife it shall have a relation to conclude the Wife and to make the Wife to have a Title ab initio It was
a Capias lay upon a force although it did not lie in case of Debt Agreement c. The King is Parens Legum because the Laws flowed from him he is Maritus Legum For the Law is as it were under Covert Baron he is Tutor Legum For he is to direct the Laws and they desire aid of him And he said that all the Land of the Kings Debtor are liable to his Debt The word Debitor is nomen equivocum and he is a Debtor who is any ways chargeable for Debt Damages Dutie Rent behind c. The Law amplifies evry thing which is for the Kings benefit or made for the King If the King releaseth all his Debts he releases only debts by Recognizance Judgment Obligation Specialtie or Contract Every thing for the benefit of the King shall be taken largely as every thing against the King shall be taken strictly and the reason why they shall be taken for his benefit is because the King cannot so nearly look to his particular because he 〈◊〉 intended to consider ardua regni pro bono publico The Prerogative Laws is not the Exchequer Law but is the Law of the Realm for the King as the Common Law is the Law of the Realm for the Subject The Kings Bench is a Court for the Pleas of the Crown The Common Pleas is for Pleas betwixt Subject and Subject and the Exchequer is the proper Court for the Kings Revenues 13. E. 4. 6. If the King hath a Rent-charge he by his Prerogative may distrein in any the Lands of the Tenant besides in the Lands charged with the Rent 44. E. 3. 15. although that the partie purchaseth the Lands after the Grant made to the King but then it is not for a Rent but as for a dutie to the King And the King in such case may take the Body Lands and Goods in Execution See the Lord Norths Case Dyer 161. where a man became Debtor to the King upon a simple Contract N. When he was Chancellor of the Augmentation received a Warrant from the Privy Councel testifying the pleasure of King E. 6. That whereas he had sold to R. c. That the said Chancellor should take Order and see the delivery of c. and should take Bond and Sureties for the King for the payment of the money By force of which Warrant he sent one T. his Clark to take a Bond of W. for the payment of the money and he took Bond for the King accordingly and brought the same to the Chancellor his Master and delivered the same to him to the Kings use and presently after he deliverd the same back to T. to deliver over to the Clark of the Court who had the charge of the keeping of all the Kings Bonds and Specialties And when T. had received the same back he practised with R. and W. to deliver them the Bond to be cancelled and so it was done and cancelled And it was holden in that Case because that the said Bond was once in the power and possession of N. that he was chargeable with the Debt But the Queen required the Debt of R. and W. who were able to satisfie the Queen for the same In Mildmay's Case cited before there it was holden That the Queen might take her Remedy either against the Parties who gave the insufficient Warrant or against Mildmay himself at her Election So a man he said shall be lyable for damages to the King for that is taken to be within the word Debita In Porters Case cited before there was neither Fraud Covin nor Negligence and yet the persons who presented Porter to the King to hold the Office were chargeable for his negligence whom they preferred to be Master of the Mint But in that Case The Bodie and goods of Porter were delivered to his Sureties as in Execution to repay them the monie which the King had levied of them These Cases prove that the word Debitor is taken in a large sence That the King shall have for the Debts due to him the Bodie Goods and Lands in Execution The word Goods doth extend to whatsoever he hath 11. H. 7. 26. The King shall have the Debt which is due to his Debtor upon a simple Contract and therein the Debtor of the Debtor shall not wage his Law For after you say that you sue for the King it is the Kings Debt and the King if he please may have Evecution of it An Ejectione firme was brought in the Exchequer by Garraway against R. T. upon an Ejectment of Lands in Wales and it was maintainable in the Exchequer as well as a Suit shall be maintainable here for an Intrusion upon Lands in Wales upon the King himself and the King shall have Execution of the thing and recover Damages as he shall in a Quo minus in satisfaction of a Debt which is due by his Debtor to the King 8. H. 5. 10. There the Kings Debtor could not have Quo minus in the Exchequer The Case there was That a man Indebted to the King was made Executor and by a Quo minus sued one in the Exchequer who was indebted unto his Testator upon a simple Contract as for his proper debt and the Quo minus would not lie because the King in that Case could not sue forth Execution and every Quo minus is the Kings Suit and is in the name of the King 38. Ass 20. A Prior Alien was arrear in Rent to the King The Prior brought a Quo minus in the Exchequer against a Parson for detaining of Tythes here is a variance of the Law and the Court for the Right of Tythes ought to be determined by the Ecclesiastical Law and it was found by Verdict for the Prior. A Serjeant moved That the Court had not jurisdiction of the Cause To whom it was answered that they had and ought to have Jurisdiction of it For that when a thing may turn to the advantage of the King and hasten his business that Court had Jurisdiction of it and divers times the said Court did hold jurisdiction in the like Case and thereupon issue was joyned there and the Reporter made a mirum of it But it seems the Reporter did not understand the Kings Prerogative For it is true That such Suit for Tythes doth not fall into the Jurisdiction of the Kings Bench or Common Pleas but in the Exchequer it is otherwise And if the Suit be by Quo minus it is the Kings Suit At a common persons Suit the Officer cannot break the house and enter but at the Kings Suit he may And a common person cannot enter into a Liberty but the King may if it be a common Liberty But for the most part when the King granteth any Liberty there is a clause of Exception in the Grant That when it shall turn to the prejudice of the King as it may do in a special Case there the King may enter the Liberty and a house is a Common Liberty and the
Execution of Justice is no wrong when it is for the King The King hath the precedency for the payment of his Debts to him as it appeareth in Stringfellows Case cited before by Justice Dodderidge And when Lands are once lyable to the payment of the Kings debts let the Lands come to whom you will yet the Land is lyable â—o his debt as it appeareth in Cavendishes Case Dyer 224 225. which was entred Pasc â— Eliz. Rot. 111. in the Exchequer 50. Ass 5. A man bindeth himself and his heirs and dieth and the heir alieneth the Land the Land is discharged of the Debt as to the Debtee But in the Kings Case if at any time the Land and Debt meet together you cannot sever them without payment of the Kings debt Vid. Littleton Executors and soe Administrators are chargeable in an Account to the King and the Saying of Mr Littleton are adjudged for Law and are Judgments A sale in Market over nor a Fine and Nonclaim shall not bind the King and so it is of things bought of the Kings Villeyn because Nullum tempus occurrit Regi A common person in London by Custom may attach a Debt in anothers hands As he may come into Court and shew that his debtor hath not any thing in his hand to satisfie his debt but only that debt which is in the hands of another man and that Custom is allowable and reasonable And if it shall be reasonable for a Subject so to attach a Debt will you have it unreasonable for the King Before the Statute of 25. E. 3. cap. 19. The King might protect his Debtor as it appeareth by the Register 281. and Fitz. 28. 6. But the Statute of 25. E. 3. gave the Partie a liberty to proceed to Judgement but doth barr him from taking forth of Execution upon the Judgment untill the King be satisfied his Debt In Dyer 296 297. a man condemned in the Exchequer for a Debt due to the Queen was committed to the Fleet and being in Execution he was also condemned in the Kings Bench at the Suit of a Subject upon a Bill of Debt in Custodia Mariscalli Marisâ—alciae Afterwards upon prayer of the Partie a Habeas Corpus cum causa was awarded out of the Kings Bench to the Warden of the Fleet who retorned the Cause ut supra and he was remanded to the Fleet in Execution for the Debt Afterwards a Command was given by the Lord Treasurer upon the Queens behalf to suffer the Prisoner to go into the Countrie to collect and levie monie the sooner to pay the Queen her Debt In that Case the Subject brought an Action of Debt against the Warden of the Fleet upon the Escape who justified the Escape by the said Commandment It was holden in that case That although the Partie was in Execution for both the Debts yet before the Queen was satisfied the Execution for the Subject did not begin For the King cannot have equall to have interest in the Body of the Prisoner Simul cum illo But if the Case were as Lassels case 3. Eliz Dyer then he might be in Execution for the King and for the Subject Lassels was taken in Execution at the Suit of a Subject and before the Writ was retorned a Writ for the Queen came to the Sheriffe and Lassels was kept in Execution for the Queen In that case Lassels was in Execution for them both viz. the Queen and the Subject So there is a difference where the Partie is first taken for the King and where he is first taken for the Subject Now I will consider of the Case at Barr Whether the Land might be extended notwithstanding the Conveyance made The Kings Debt is to be taken largely and so Goods in such case are to be taken largely and so is it likewise of Lands viz. any Land be it Land in Use upon Trust by Revocation By the Law Debts are first to be paid then Legacies then childrens preferments There is a difference where the Land was never in the man and where it was once in him C. 8. Part. 163. Mights Case Might Purchased lands to him and to his heir It was resolved that this original Purchase could not be averred to be by Collusion to take away the Wardship which might accrue after the death of Might for they were Joynts and the survivor shall have the whole Note that there was no fraud for that it was never in him but if it had once been the Lands only of Might and then Might had made the conveyance to him and his heir then it would have been fraud to have deceived the King of the Wardship In the Case at Barr Hatton hath not aliened the land For an Alienation is alienum facere and here he hath not made it the land of another having a power of Revocation Sir John Packington Mortgaged his lands for 100l The Mortgagee enfeoffed W. and within the time of Redemtion Packington and he to whom the money was to be paid agreed that Packington should pay him 30l of the said 100l and no more and yet in appearance for the better performance of the Condition it was agreed that the whole 100l should be paid and that the residue above 30l should be repaid back to Packington which was done accordingly It was resolved in that Case that the same was no performance of the Condition because it was not a payment animo solvendi And so in this Case there was not any allienation animo 〈◊〉 For Sir Christopher Hatton gave the Lands but yet he kept the possession and received the profits of them And if Sir Christopher Hatton had given the land with power of Revocation or reserving as in this Case he did an Estate for his own life it had been all one If a man deviseth the profits of such lands the lands themselves do pass And a Conveyance of lands upon Condition not to take the profits is a void condition in Law Lit. 462 463. A Feoffment is made upon confidence and the Feoffor doth occupie the land at the will of the Feoffees and the Feoffees do release unto the Feoffor all their right Litt. 464. there it was said that such a Feoffor shall be sworn upon an Inquest if the lands be of the value of 40s per annum and that by the Common Law Therefore it seemeth that the Law doth intend That when a man hath Feoffees in Trust that the lands are his own and then if in such case the Commonwealth shall be served shall not the King who is Pater reipublicae be served so as he may be satisfied his debts If the Case of Walter de Chirton had never been yet I should now have the same opinion of the Law in such Case as the Judges then had The King is not bound by Estopels nor Recoveris had betwixt strangers nor by the fundamental Jurisdiction of Courts as appeareth 38. Ass 20. where a Suit was for Tythes in the Exchequer being a meer spiritual