should be punished for it he conceived that there is a difference betwixt an Officer of an inferiour Court which ousts the Common Law of Jurisdiction and one of the four Courts at Westminster for where an Officer justifies an Act done by the command of an Inferiour Court he ought to shew precisely that it was in a Case within their Jurisdiction and he cited 20 H. 7. the Abbot of St. Albâ—rs case Justice Heath contrary the party is servant to the Court and if he have done his duty it should be hard that he should be punished for it and he agreed that there is a difference betwixt the Act of a Constable and a Justice of Peace and the Act of a Servant of a Court for the Servant ought to obey his Master and although it be an inferiour Court yet it is a Court of Record and confirmed by Act of Parliament and all that is confessed by the Demurrer Bramston Chief Justice that the Plea is naught because that it is too general and incertain true it is that it is hard that the Officer should be punished in this case for his obedience to which he is bound and it is as true that the Officer for doing of an act by the command of the Court whether it be just or unjust is excused if it appear that the Court hath Jurisdiction but here it doth not appear that the Court hath Jurisdiction and if the Court had not Jurisdiction then it is clear that the Officer by obeying the Court when they have not Jurisdiction doth subject himself to an Action of false imprisonment as it is in the Case of the Marshalsy in the 10 Rep. but it was adjorned c. The Bishop of Hereford and Okeleys Case 196. THe Bishop of Hereford brought a Writ of Error against Okeley to reverse a Judgment given in the Common Pleas the point was briefly this One under the age of twenty three years is presented to a Benefice Whether the Patron in this case shall have notice or that lapse otherwise shall not incur to the Bishop which is grounded upon the Statute of 13 Eliz. cap. 12. And upon debate by the Counsel of the Plaintiff in the Writ of Error that which was said being upon the general Law of notice nothing moved the Court against the Judgment given in the Common Pleas upon solemn debate as it was said and therefore they gave day to shew better matter or else that Judgment should be affirmed The Reasons of the Judgment in the Common Pleas were two First upon the Proviso of the Statute which says That no Lapse shall incur upon any deprivation ipsâ— facto without notice Second reason was upon the body of the Act which is That admission institution and induction shall be void but speaks nothing of presentation so as the presentation remaining in force the Patron ought to have notice and that was said was the principal reason upon which the Judgment was given and upon the same reasons the Court here viz. Mallet Heath and Bramston Justices held clearly that the notice ought to be given or otherwise that Lapse shall not incur but they agreed that if the Act had avoided the presentation also that in such case the Patron ought to have taken notice at his peril being an avoydance by Statute if the Proviso help it not Mich. 17º of the King in the Common Pleas. 197. A. Said of B. that he kept false weights for which words B. brought an Action upon the case shewed how that he got his living by buying and selling but did not shew of what profession he was and by all the Court viz. Foster Reeve Crawley and Bankes in the Common Pleas the Action will not lie First because he doth not shew of what Trade or profession he was and it is too general to say that he got his living by buying and selling Secondly because although that he had shewed of what Trade he was as that he was a Mercer as in truth he was that yet the words are not actionable because there is nothing shewed to be done with them or that he used them and it can be no scandal if the words do not import an act done by the false weights for he may keep them and yet not use them and he may keep them that another do not use them and the keeping of false weights is presentable in Leet if the party use them otherwise not And where one said of another That he kept a false Bushel by which he did cheat and cousen the poor the same was adjudged actionable that is True and differs from this case for there he said he not only kept them but used them and cheated with them but it is otherwise in our case and this case was compared to Hobarts Reports where one said of another That he kept men which did rob upon the High-way and adjudged that the words were not actionable for he might keep them and not know of it Bankes the action upon the case for words is to recover damages and here it can be no damage First because he doth not shew of what profession he was and Secondly because although he had shewed it yet the words will not bear Action and Judgment was given against the Plaintiff 198. It was moved by Serjeant Wild That depositions taken in the Ecclesiastical Court might be given in evidence in a Trial in this Court and the Court was against it because they were not taken in a Court of Record and they said although the parties were dead yet they ought not to be allowed and by Bankes Chief Justice no depositions ought to be allowed which are not taken in a Court of Record and Foster and Reeve were of Opinion that although the parties would assent to it yet they ought not to be given in evidence against the constant rule in such case Crawley contrary for he said that a writing which by the Law is not Evidence might be admitted as Evidence by the consent of the parties 200. A man was bound to keep a Parish harmless from a Bastard-child and for not performance thereof the Obligee brought Debt upon the Bond the Defendant pleaded that he had saved the Parish harmless and did not shew how the Plaintiff replied and shewed how that the Parish was warned before the Justices of Peace at the Sessions of Peace and was there ordered by Record to pay so much for the keeping of the childe and because the Defendant had not saved him harmless c. The Defendant pleaded Nul tiel Record upon which the Plaintiff did demur And here two things were resolved First that the Plea Nul tiel Record upon an Order at Sessions of Peace is a good Plea because that an Order at the Sessions of Peace is a Record Secondly that notwithstanding Judgment ought to be given for the Plaintiff because the Dâ—fendants bar was not good in that he hath pleaded in the affirmative that he hath saved the Parish
23. 3 E. 3. 330 305. Besides the party is not bound to tarry till the Bailiffs come in and beat him 2 H. 4. 8. 19 H. 6. 31. 34 H. 6. 16. 43 Ass. pl 31. 3. This Authority which is given to the Kings Officer is given by the Law and if he execute it according to the Law the Law will protect him but if he exceed the priviledge given him by the Law then all he doth is illegal and he loseth its protection And he resembled it to the 6 Carpenters case C. 6. part Farther one may pretend he hath such a warrant when he hath it not of purpose to rob or do some other mischief And it was agreed by all the Justices nullo contradicente that it was not Murder but that it was Manslaughter for this reason especially because the Officer was doing an unlawful act not warranted by Law and therefore it was at his peril if he were killed And farther upon this difference there ought to be malice in fact or in Law to make Murder but in this Case there is none of them for it is apparent that there was no malice in fact and there is no malice implied for then it ought to be where a man kills another without any provocation or the Minister of Justice in the due and lawful execution of his Office which is not our Case for here he did an unlawful act at the time he was killed and therefore it was not Murder but Manslaughter There was a Case tried at the Sessions in the Old-Baily which was thus One Lovell had two Maid-servants and one of them without his knowledge had received into the house a Chare-woman who all being in their beds by her negligence let a Thief into the house and afterwards called out Thieves Thieves and afterwards Lovell came out of his Bed with a Sword in his hand and the Chare-woman calling to mind that she was there without his privity or his wifes hid her self behind the Dresser and Lovell's wife espying her there cried out Thieves Thieves for which Lovell came and ran her into the brest with his Sword And the Opinion of the Justices at the Old-Baily and also of all the Justices of the Kings Bench was That it was neither Murder nor Manslaughter Not Murder because there was no forethought malice not Manslaughter because he supposed her to be a Thief and if she had been a Thief then it was clear that it was not Manslaughter 8. It was resolved in the Chancery as the Judges of the Kings Bench said That where the Son is of full age and is ravished that the Father shall not recover Damages because the Son being of full age might marry himself without the consent of the Father and that was the reason given as I conceive and the Case was said to be Sir Francis Lees Case 9. The Book of Canons is that the Parson may Elect one Church-warden and the Parishioners another 10. There can be no Surrender without the Consent of the Reversioner 11. It was Libelled in the Ecclesiastical Court for these words Thou art a Drunkard or usest to be drunk thrice a week And thereupon Prohibition was Prayed and Granted and it was said and agreed That so it was adjudged betwixt Vinior and Vinior in this Court The Case in Dyer 254. b. where the Presentee was refused because he was a common haunter of Taverns c. was by Justice Barckley denied to be Law and so agreed by Justice Iones the Lord Chief Justice and Justice Crooke being absent But Justice Barckley was utterly against the Prohibition 1. Because the Action in the Ecclesiastical Court is only pro salute animae And 2. Because that Drunkenness is in their Articles and Presentable But Justice Iones granted a Prohibition and said that Linwood said well That if all things which are against the Law of God or words to that effect should be tried in the Ecclesiastical Court the Jurisdiction of the Temporal Court should utterly be destroyed 12. If there be an Indictment of Forcible Entry if it appear that the Plaintiff had seisin at the time of the Writ brought there can be no Writ of Restitution for the Statute â—aith If he Enter with Force or keep him out with Force but yet in that case the King shall have his Fine And there was an Indictment which was a principal Case at Bar which was That the Defendant adtunc adhuc doth keep the possession forcibly whereas the Plaintiff was in possession And thereupon a Writ of Restitution was awarded by reason of the word adhuc 3 E. 4. 19. it was adjudged That where there is Forcible Entry and Reteiner with Force that both are punishable although the Statute of 8 H. 6. 9. be in the disjunctive 13. Descent of a Copy-hold shall not take away Entry There ought to be a custome to enable the Lord of a Mannor to grant a Copy-hold in Reversion 14. In the Council of Marches of Wales they proceed according to Directions and they cannot exceed them and they 〈…〉 with Freehold for it is not within their 〈…〉 And they cannot hold Plea of Debt above fifty poundâ— 15. An Assignment of Rent to a Woman out of Land of which she is Dowable by Word is good but if she be not Dowable of the Land then the Assignment by Word is not good and void because that in the first Case it is according to common Right but in the last not 33 H. 6. 16. In a Writ of Error to Reverse a Judgment in an Action of Debt upon an Arbitrament the Error assigned was this That two did refer themselves to Arbitrament of their two several Arbitrators and there is no word of Submission that the same is Error and there was Error in the Entry of the Judgment the entry of which was in this manner Consideratum est and per Curiam is omitted and left out And for these Errors the Judgment was Reversed Smith's Case 17. ONe said of him Thou art forsworn and hast taken a false Oath at Hereford Assises against such a one naming the party And the Opinion of the Court the Chief Justice and Justice Crooke being absent was against the Action But they conceived that the Action would have lied if the Defendant had said Thou art forsworn and hast taken a false Oath at the Assises against such an one with Averment that he was sworn in the Cause 18. It was said at the Bar That it was adjudged in this Court in Appletons Case That where a man said unto another by way of Interrogatory Where is my Piece thou stolest from me that it was actionable Justice Iones remembred this case where one said J. S. told me that J. N. stole a Horse but I do not believe him This with Averment that I. S. did not say any such thing would bear an Action Justice Barkley said That an Action was brought upon these words You are no Thief and that these words with Averment which
REPORTS OR NEW CASES WITH Divers Resolutions and Judgements given upon solemn Arguments and with great deliberation AND The Reasons and Causes of the said Resolutions and Judgements COLLECTED By JOHN MARCH of Grayes Inne BARRESTER LONDON Printed by M. F. for W. Lee M. Walbanke D. Pakeman and G. Beadel M.DC.XLVIII REPORTS Easter-Term 15º CAROLI In the Kings Bench. IT was agreed by Justice Iones and Justice Barckley the Lord Chief Justice and Justice Crook being absent That if the Sheriff do arrest a man upon mesne processe and return a Cepi corpus and that the Defendant was rescued that no Action lieth against the Sheriff But if the party be taken upon an Execution an Action upon the Case lieth against him and so is the express Book of 16 E. 4. 2 3. Br. Escape 37. upon which Book Justice Iones said That it was adjudged in this Court as above is said 2. It was agreed by the Court That if a man in pleading derive an Estate from another man and doth not shew what Estate he had from whom he deriveth his Estate that is a good cause of Demurrer And Justice Iones said That if a man claim a Rent by Grant out of the Land of any other man it is not sufficient for him to say That such an one was seised and concessit but he ought to express of what Estate he was seised So is Dyer But in this Case it was agreed That the shewing of what Estate c. ought to be material to the maintenance and support of the Estate which he claimeth otherwise it is not necessary 3. An Action upon the Case for words was brought by one who was Journey-man and â—ore-man of a Shoomakers-shop which was his living and livelihood for these words viz. It is no matter who hath him for he will Cut him out of doors And farther the Plaintiff did aver that the common acceptance of these words amongst Shoomakers is That he will begger his Master and make him run away and shewed that he was particularly endamnified by speaking of those words And the Court was clear of Opinion that the Action would lie And these Rules were taken and agreed For some words an Action will lie without particular averment of any damage as to call a man Thief Traytor or the like these are malum in se And some words will not bear Action without particular averment of some damage as to say Such a one kept his wife basely and starved her these words of themselves will bear no Action but if the party of whom the words were spoken were in election to be married to any other and by speaking of these words is hindred there with such Averment they will bear an Action It was farther agreed That the words ought to be spoken to one that knows the meaning of them otherwise they are not actionable as in the principal Case they were spoken to a Shoomaker but if they had been spoken to any other who knew the meaning of them it had been all one And therefore scandalous words which are spoken to one in Welsh or any other Language which the party to whom they are spoken doth not understand are not actionable And it was agreed That some words which are spoken although of themselves they are not actionable yet being equivalent with words which are actionable they will bear an Action And therefore it was said by Justice Iones That in York-shire as I remember Straining of a Mare is as much as Buggering and because these do amount to as much with averment they will bear Action And all words which touch a man in his livelihood and profession will bear Action And the Opinion of the Court also was that the Averment ought to be That in this and shew it specially the Plaintiff was damnified and so it was agreed upon these Reasons that the Action did lie 4. The Opinion of the Court was upon a Judgment given there there ought to be two Scire facias one against the Principal the other against the Bail but one only is sufficient in the Common Pleas and that two Nichils returned do amount to Scire feci 5. There was a Contract made at Newcastle that a ship should sail from Yarmouth to Amsterdam and there was an Action of Debt brought upon the Contract at Newcastle and it was adjudged that the Action would not lie and the difference was taken betwixt a particular and limited Jurisdiction as in this case Newcastle is and a general Jurisdiction as one of the Courts at Westminster hath for in the first Case no particular Jurisdiction shall hold plea of a thing which is done in partibus transmarinis although the Original as the Contract in the principal Case be made in England but contrary in case of general Jurisdiction as any the Courts at Westminister have 6. The Custome of London is that any man in London may pass over or put over his Apprentices to any other man within the City King and Cokes Case 7. WIlliam Marshal and other Bailiffs had an Execution viz. a Capias ad satisfaciend ' against Coke and others which Bailiffs came to Coke's house and lay one night in his out-houses privily and the next morning they came to his dwelling-house and gave him notice of the Execution but Coke shut the doors of his house close so as the Bailiffs could not enter whereupon they brake the Glass-windows and the Hinge of the door endeavouring to enter whereupon Coke commanded them to be gone or he would shoot them notwithstanding which they did continue their ill-doing whereupon Coke shot Marshal one of the Bailiffs and whether this was Manslaughter or Murder was the Question And Rolls argued that it was not Murder for these causes 1. Because the act of the Bailiffs in breaking of the Glass and the Hinge of the door was an unlawful act and was at their pâ—ril Where the Kings Officer may break the house to serve any mean Process or Execution the differences are such as are in Semaynes Case C. 5. part 91 92. 1. betwixt Real and Personal Actions In Real Actions they may break the house to deliver seisin to him who recovereth contrary in Personal Actions 2. There is a difference in the case of the King and of a common person where the King is party in some cases his Officers may justifie the breaking of a house but not in the case of a common person 13 E. 4. 9. 18 E. 4. 4. 4 Rep. 4 9 Rep. 69. And therefore if they could not justifie the breaking of the house at the suit of a common person then in the principal Case they did a thing which was not warranted by Law and therefore the killing of one of them was not Murder But clearly if the Bailiffs had lawfully executed their Office then it had been Murder 2. It was not Murder because the person was in his House which is his Castle and defence which is a place priviledged by the Law 26. Ass.
imply an affirmative will bear an Action 19. It was said to a Merchant That he was a cousening Knave And the Opinion of the Court was the chief Justice and Justice Crooke being absent that the words were not actionable because he doth not touch him in his Profession for the words are too general But it was said That to call him Bankrupt was actionable And mall Cases where a man is touched in his Profession the words are actionable But to call a Lawyer a Bankrupt is not actionable Justice Iones said that Serjeant Heath brought an Action for these words One said of him That he had Vndone many and it was adjudged actionable because he touched him in his Profession 20. Kingston upon Hull is a Particular and Limited Jurisdiction and they held Plea of a Bond which was made out of their Jurisdiction and thereupon a Capias was awarded against the Obligor who was arrested upon it and suffered by the Sheriff to escape And the Opinion of the Court was clear That no escape would lie against the Sheriff upon the difference in the case of the Marshalsea That if the Court hold Plea of a thing within their Jurisdiction but proceed erroneously that it is avoidable by Error but if they have not Jurisdiction of the cause all is void and coram non Iudice 11 H. 4. and 19 E. 4. Acc. So in the principal Case for they held Plea of a thing which was out of their Jurisdiction and therefore the whole proceeding being void no Action can lie against the Sheriff for there was no Escape 21. Where a man is Outlawed and the Outlawry reversed notwithstanding the Original doth remain and the cause that the Original was determined was the Outlawry and now Cessante causa cessat effectus 22. A man made a Lease for years with exception of divers things and that the Lessee shall have conveniens lignum non sâ—â—ccidendo c. vendendo arbores c. Now the Lessee cut down Trees and the Lessor brought an Action of Covenant and the Opinion of the Court was That the Action would lie and that it is as a Covenant on the part of the Lessee because the Law gives him reasonable Estovers and by this Covenant he abridgeth his Priviledge 23. Justice Iones said and so it was agreed by the Court In what case soever there is a Contract made to the Testator or the Intestate or any thing which ariseth by Contract there an Action will lie for the Executor or Administrator but Personal Actions die with the Testator or Intestate 24. The Administrators of an Executor shall not sue a Scire facias upon a Judgment given for the Testator because the Testator now died Intestate because there is no privity And so it hath been many times adjudged 1 Rep. 96. a. 5 Rep. 9. b. The Earl of Oxford and Waterhouse Case in a Writ of Error to reverse a Fine 25. WAterhouse levied a Fine the Earl of Oxford pleaded that he was beyond Sea at the time of the Fine levied Waterhouse replied That he came here into England in August within the five years and upon that they were at issue The Jury found that he came over in Iuly And notwithstanding the Opinion of the Court was clear That the Writ of Error did not lie For although the Jury have found that he came over in Iuly yet the substance of the matter is that he was in England so as he might have made his Claim and therefore the Fine should bar him And Justice Barckley compared it to the Case of 10 Eliz. Dyer 271. b. which Case is a Quaere in Dyer but Resolved in the 6 Rep. 47. a. A man brought Debt against an Heir who pleaded that he had nothing by Descent The Plaintiff pleaded that he had Assets in London and the Jury found Assets in Cornwal and good for the substance is whether he had Assets or not 26. If a Nobleman who is not a Baron or Earl of this Realm in an Action brought against him or by him be named Knight and Earl of such a place it is good because that although he cannot be sued or sue another by the name of Earl Baron c. yet by the name of Knight he may and that is sufficient 27. Writ of Error was brought here to reverse a Judgment given in Ireland it is a Supersedeas to the Execution for although the Record it self is not sent over for fear of losing the same in the water or otherwise yet a transcript is made thereof which is all one And Justice Barckley compared it to the Case where a Writ of Error is brought in this Court to reverse a Fine in the Common Pleas there the Record it self is not sent but a Transcript thereof because we have not a Cirographer to receive it but the Transcript is all one Sir John Compton's Case upon the Statute of Winchester 13 Ed. 1. and 27 Eliz. of Robberies 28. SIr Iohn Compton Knight brought an Action against the Hundred of Olison or the like name for a Robbery done upon Red-hill in the County of Surry within the aforesaid Hundred and the Robbery was done upon his man and five hundred and ten pounds was taken from him And in this Case it was agreed by the Justices That although there be a remisness or negligence in the party who was robbed to pursue the Robbers or that he did refuse to lend his Horse to make Hue and Cry yet this doth not take away his Action nor excuse the Hundred if notice be given with as much convenient speed as may be as the Statute of 27 Eliz. speaks for them to make Hue and Cry And although the Party who was robbed doth not know the Robbers at the present time and thereof takes his Oath before a Justice of Peace as the Statute of 27 Eliz. hath provided and afterwards comes to know them and so he affirm yet this doth not take away his Action And it was resolved also that notice given in one Hundred five miles from the place where he was robbed is sufficient and the reason is because that the party who is a stranger to the Country cannot have conusance of the nearest place or Town Chief Justice That notice given at one Town and Hue and Cry levied at another is good And the Jury found for the Plaintiff And thereupon a Quaere was made by one who was of Counsel with the Hundred Whether such persons who become Inhabitants after the Robbery and before the Iudgment whether they should contribute And Justice Barckly said That all who are Inhabitants at the time of the Execution should pay it 29. A Vicar cannot have Tithes but by Gift Composition or Prescription For all Tithes de jure do appertain to the Parson 30. A man was bound to the Good Behaviour for Suborning of Witnesses Plowden against Plowden 31. PLowden the Son brought Trespass against Plowden the Father for taking the Plaintiffs Wife cum bonis viri And
the Case was That he did reject and eject his Wise without giving of her Alimony for which she had Sentence in the High Commission-Court and the Defendant took those Goods for the Alimony of the Wife And Justice Barckley said That the Defendant might plead Not guilty Lister against Hone in Trover and Conversion for a Hawk 32. JUdgment was given for the Plaintiff but it was moved in arrest of Judgment because it was not said in the Declaration that it was a tame Hawk Dyer 13 Eliz. 306. b. and 43 E. 3. Acc. And here it was said That the words of the Declaration shew that it was a wild Hawk for the words are For taking Accipitricem suum Anglicè vocat ' a Ramish Fawlcon and it was said that Ramish is as much as to say inter ramos agens but that was denied for a Ramish Hawk is a Fowl Hawk by which the contrary is implied that it was tame And here it was farther said for the Defendant that if reclamato be omitted de bonis suis propriis will not help it But it was said in affirmation of the Judgment that although reclamato be omitted yet that de bonis suis propriis will help it and Justice Barckley with all the Justices except the Chief Justice who was absent did agree very strongly That the Judgment should be stayed because that a Hawk is ferae naturae and although it be tamed yet if it fly away and hath not animam revertendi then occupanti conceditur Vide 27 Hen. 8. And for the words de bonis suis propriis they do nothing for the Party had but a Right of Possession and not of Property and if it be it is but a qualified Property as 7 Rep. 17. b. He agreed that if a man hath a wild Hawk in his possession and another man takes it out of his possession Trespass will lie but if it fly away then Capiat qui capere potest And thereupon Judgment was stayed Parkinson against Colliford and others Executors of a Sheriff 33. THe Case was That Judgment was given against another man at the Plaintiffs suit in Debt in the Common Pleas and upon that a Writ of Error was brought in the Kings Bench and the Judgment affirmed and upon that a Fieri facias directed to the Sheriff who levied the Mony and died the Writ being not returned and thereupon Debt was brought against his Executors and these exceptions were taken 1. That the Writ of Fieri facias was not returned and therefore the Sheriff should not be charged in Debt but otherwise if it had been returned 2. That no Debt lieth against the Sheriff although it had been returned 3. Admit that it would lie against himself yet it will not lie against his Executors because it is a Personal wrong and dieth cum Persona 4. That the Fieri facias was awarded out of this Court and it doth not appear whether it were awarded after the Record removed into this Court or not Justice Barckley with whom all the other Judges did agree was of Opinion That Debt would lie against the Sheriff where he sells goods upon a Fieri facias for now he is Debtor in Law and the Defendant discharged against the Plaintiff and â—â—e may plead it and therefore it is reasonable that the Defendant should be answerable to the Plaintiff and he took the difference betwixt Seisin of goods only and where the Sheriff seiseth and selleth them for till Sale no Debt will lie against him And it was said that Accompt will lie against him and if Accompt by the same reason Debt As to the return of the Writ he said that the Sheriff is not compellable to make it and therefore it 's nothing to the purpose and the difference stands where the Sheriff returns a Jury where not in case of Elegit the Writ ought to be returned but not in case of Fieri facias as is 1 H. 7. Clerk of the Hampers Case Farther I conceive that it will lie against the Executor and it is not like the Cases which are Personal where the action moritur cum Persona but here the goods came to the Executors and therefore it is reason to charge them And it is not like the Case in Dier 10 Eliz. 271. a. where it is said An Action of Debt will not lie against the Executor of a Keeper nor an Escape for there the body comes not to the Executor And this very difference may be collected out of Dier in the place aforesaid and the difference will stand where there is a personal wrong done to him and where not And for the Exception That it doth not appear whether the Fieri facias was brought after the Record removed or not To that they said una voce that it appeareth that it was upon these words of Record viz. That the Record was brought hither and here remained and it is not needful to shew that Errour was brought c. Justice Iones I conceive that Debt will lie against the Sheriff because the Sheriff had it delivered to him to deliver over And if I deliver mony to deliver over Debt will lie for him to whom it ought to be delivered So in this Case And because also the Defendant is discharged and may plead the same and therefore there is reason to charge the Sheriff Farther I conceive also that it will lie against the Executors And I shall take this difference where the wrong is ex maleficio for there it dieth with the person and where ex contractu for there it doth not die with the person If I deliver goods to a man and he diâ—th an Action of Trover will lie against his Executors And here the Sheriff could not have waged his Law for the Debt is brought upon matter of Record upon which wager of Law lieth not but upon simple contract And the Sheriff hath here made himself Debtor in Law upon Record Justice Crook It is reason to charge the Sheriff because the Defendant is discharged and may plead that his goods were taken in Execution by the Sheriff in satisfaction of the same Debt And the Executors may be charged because no wager of Law lieth because the Debt is here brought upon matter of Record And he agreed with Justice Iones in the difference betwixt maleficium and contractum And therefore they did all conceive that the Action would lie And in Spekes Case in the Common Pleas it was voted that the Action would lie against the Sheriff 34. In a Habeas Corpus the Case was thus A man would erect a Tavern in Birchin-lane and the Mayor and Communalty for his disobedience because he would not obey them but would erect a Tavern there against their wills they knowing the same to be an unfit place did imprison him And the Opinion of the Court was That he should be remanded because that the Mayor and Communalty had authority over him and they might appoint him a place in which he might
erect his Tavern For it is a disorderly Profession and not fit for every place And it was adjudged in this Court That a Brewhouse ought not to be erected in Fleet-street because it is in the heart of the City and would be annoyance to it And if one would set up a Butchers shop or a Tallow-Chandlers shop in Cheap-side it ought not to be for the great annoyance that would ensue And therefore the Mayor and Communalty may redress it And therefore the party was remanded and was advised by the Court to submit to the Government of the City Note the Recorder certified the Custom That the Mayor might appoint a place 35. Upon a Recovery in a Court-Baron against one he offered here to wage his Law And Justice Barckley doubted whether wager of Law would lie in such Case To which Justice Iones said Yes and Barckly agreed hereunto because the Recovery was in a base Court and not in a Court of Record Vide 2 E. 4. 36. No antient Mill is Tithable but Mills newly erected shall pay Tithes by the Statute of 9 E. 2. 5. Meade against Axe in a Writ of Error to reverse a Iudgment 37. THe Case was Axe brought an Action against Meade for these words spoken of the Plaintiff a Dyer by the Dâ—fendant Thou art not worth a Groat And the Plaintiff added that these words amongst Citizens of such place where they were spoken have the common acceptation and doth tant amount as the calling of him Bankrupt The Errors which were assigned by Meade Plaintiff in the Writ of Error were 1. Because it is added that the words were spoken inter diversos ligeos and doth not say Citizens of the place where they have such acceptation 2. Because that the Judgment is Consideratum est and the words per Curiam left out And the Court was clear that for these two Errors the Judgment should be reversed But the Court was clear of Opinion That the words of themselves are not actionable and that the averment in this Case was idle and to no purpose because the words of themselves imply a plain and intelligent sense and meaning to every man And it was compared to the Cases Where there is no Latine for words there where words of no signification are put to express them there they ought to be explained by an Anglicè but where the words are significant there needs not any Anglicè Now if you will explain significant words under an Anglicè contrary to the meaning and true intendment of the word it self the Anglicè is void So in our Case of Averment The reason which was conceived wherefore the words of themselves are not Actionable Because that many men in their beginnings are not worth a Groat and yet their credit is good with the world But if he had laid specially That he was damnified and haâ— lost his Credit and that none would trust him upon this special matter the words would be Actionable Bonds Case 38. IN Trespass the Plaintiff declared That the Defendant entred in his Land and did cut down and carry away two Loads of Grass in the Plaintiffs Soil in a certain piece of Ground in which the Trespass was supposed to be done to strow the floor of the Church and that he cut two Loadâ— there to estrew the floor of the Church and did not say that it is the same Trespass c. And it was adjudged Error But the Court was clear that the Prescription for cutting of grass to estrew the Church was good because it was but in the nature of an Easement And so to have a washing-place in the land of another and so the custom here in London to shoot in the land of another and so for the Inhabitants of a town to have a way over the land of another to their Church But Mr. Rolls who moved the Case at the Bar said That it was adjudged that Inhabitants of a town by custom should have an Easement over the Freehold or in the Freehold of a Stranger but not profit Apprender But as I remember the Plaintiffs Freehold lay near the Church and for that reason the Court might conceive the same to be but an Easement Vide 2 H. 3. cited by Justice Iones Vid. Gatewoods Case 6 Rep. 60. b. Conysbies Case 39. UPon the Lease of an House the Lessee Covenanted that he would Repair the House with convenient necessary and tenantable Reparations The Lessor brought Covenant and alleaged a breach of the Covenants in not repairing for want of Tiles and dawbing with Morter and did not shew that it was not Tenantable And the Opinion of the Court was that he ought to have shewed it for the house may want small Reparations as a Tile or two and a little Morter and yet have convenient necessary and tenantable Reparations 40. A Writ of Error was brought and the Error assigned was want of Pledges And the Judgment was reversed although it was after Verdict And so was it adjudged in Dr. Hussies case and Young and Youngs case in this Court and the Reason was given because that otherwise the King should lose his Amercement 41. Fish in the River are not Titheable if not by Custome 42. Two referred themselves to Arbitrement and the Arbitrators arbitrate that one of them should pay a certain sum to the other and the other in consideration thereof should acquit him of a Bond wherein they both were bounden to a third person in a 100 lib. eo circiter and it was objected That the Arbitrators had arbitrated a thing incertain by reason of these words eo circiter But the Opinion of the Court was That there was sufficient certainty because that in this Case it doth not lie in their power to know the direct sum and because a small variation is not material but if they as in Salmons case 5 Rep. will arbitrate that one shall be bound in a Bond to another and not express in what sum the same is utterly void for the incertainty Difference was taken where the Arbitrators arbitrate one party to do a thing which lieth in his power and where not without the help of a third person there the Arbitrament is void and in the principal Case the difference was taken by the Court where the Bond is forfeit and the penalty is incurred and where not or the day of payment is not incurred there payment at the day is a good discharge and acquittance but where it is incurred it is not But Justice Iones said That he might compel the Obligee upon payment although the Bond was forfeit to deliver the Bond by Subpoena in Chancery or that he suffer an Action to be brought against him and then to discharge it and pay it Goodman against VVest Debt upon the Statute of 5 Eliz. Cap. 9. 43. THere was an action brought against the Plaintiff in the Common Pleas who procured Process to issue against the Defendant for his Testimony in his Cause and a Note of
choose their Church-wardens and they chose two the Parson chose a third The Official of the Bishop gave Oath to one of them chosen by the Parish but refused to swear the other and would have sworn the party chosen by the Parson but the Parish was against it upon which the Parson Libelled in the Ecclesiastical Court And a Mandat was here praid That the Official swear the other who was chosen by the Parish and a Prohibition to stay the Suit in the Ecclesiastical Court. Upon the Mandat the Justices doubted and desired that Presidents and Records might be searched and at length upon many Motions Presidents and Records shewed a Mandat was granted But there being Suit in the Ecclesiastical Court bâ— the other whom the Parson chose a Prohibition was granted without any difficulty But at first the Counsel prayed a Prohibition for not swearing the other which the Court refused to grant because there was no proceeding in the Ecclesiastical Court and a Prohibition cannot be granted where there is no proceeding by way of Suit Vaughan against Vaughan in Action upon the Case upon Assumpsit 51. THe Defendant did promise that he would make such a Conveyance of certain Lands and pleaded That he had made it but did not shew the place where it was made And the Court was clear of Opinion that he need not for it shall be intended upon the Land And so in case of performance of Covenants it is not needful to shew the place where c. Norrice and Norrices Case 52. COpy-holder for life where the custome is That if the Tenant die seised that he shall pay a Heriot The Lord granted the Seigniory for 99 years if the Tenant should so long live And after that he made a Lease for 4000 years Tenant for Life is disseised or more properly ousted and died Here were two Questions 1. Whether there were any Heriot to be paid and admitting there were yet who should have it whether the Grantee for 99 years or he who had the 4000 years And the Court was clear of Opinion in both points without any argument 1. That a Heriot was to be paid not withstanding that the Tenant did not die seised because he had the estate in right and might have entred although he had not the possession And Justice Barckley compared it to the Case in C. 3. Rep. 35. a. in Butler and Bakers Case where a man hath one acre of Land holden in Capite and a hundred acres of Socage Land and afterwards he is disseised of the Capite Land and afterwards makes his will of all his Socage Land in that case he is a person having of Capite Land as the Statute speaks And yet that right of Capite Land shall make the devise void for the third part for notwithstanding the disseisin yet he is Tenant in Law And as to the second point the Court was clear of Opinion also That he in remainder or he that had the Estate for 4000 years for note the Action was brought by him in the Remainder for the Heriot should not have it And their reason was because the Tenant for life was not the Tenant of him who had the future interest of 4000 years but of him who had the interest for 99 years But they were not clear of opinion that the Grantee for 99 years should have the Heriot Justice Barckley was that the Grantee for 99 years should have it But Justice Iones there being then none in Court but they haesitavit And the reason of the doubt was because that eo instante that the Tenant died eodem instante the estate of the Grantee for 99 years determineth Justice Iones put this Case A Seigniory is granted for the life of the Tenant the remainder over in fee the Tenant dieth Who shall have the Ward Justice Barckley said he who is Grantee of the particular estate but Iones seemed to doubt it Vide 44 E. 3. 13. Lewes against Jones in a Writ of Error 53. JUdgment was given for Iones against Lewes in an Action brought in the Common Pleas And Lewes here brought a Writ of Error and assigned for Error That he was an infant at the time of the Action brought against him And that he appeared by Attorney whereas he ought to appear by Guardian or procheine amy The defendant pleaded in avoidance of this Writ of Error That there was no Warrant of Attorney The Plaintiff allegando shewed the Error before And the Defendant pleaded in nullo erratum est And the Judgment was reversed But the Opinion of the Court was That the better way had been for the Plaintiff to have demurred in Law for there being no warrant of Attorney there was no appearance at all and so are the Books 38 E. 3. and 14 E. 4. 54. In Vtburt and Parhams Case it was agreed That a man may be Non-suit without leave of the Court but he cannot discontinue his Suit without consent of the Court. Davis and Bellamies Case in Attaint 55. THe Defendant brought Attaint and the Verdict was affirmed and Costs prayed upon this Rule that where the Plaintiff shall have costs there the Defendant shall have costs But they were denied by the Court for that ought to be taken in the original Action and not in case of Attaint But upon the restituatur there costs shall be given but that is in the original Action 56. If two joynt-tenants be of a Rectory and one sueth for Tithes by himself only it is nâ— cause of Prohibition So if a Feme Covert sue solely upon a desamation a Prohibition shall not be granted 57. The Sheriff of a County made a Warrant Balâ—ivis suis to arrest the body of such a man and the Bayliffs of the Liberâ—y return a Rescous And Exception was taken to it because that the Warrant was Ballivis suis and the Return was made by those who were not his Bayliffs and it was adjudged for the Liberty might be within his Bayliwick and so are all the Presidents And there was another Exception because the place of the Rescous was not shewed and for that the Book of 10 E. 4. was cited for there the Rescous was adtunc ibidem and did not shew the place To that it was answered by the Court and agreed that adtunc ibidem is altogether incertain if the place be not shewed but in the principal Case the place was shewed at the first and always after that tunc ibidem only without naming of the place and adjudgâ—d good For that tunc ibidem throughout the Declaration hath reference to the place first shewed and it was adjudged good 58. Outlawry was reversed for this Error because that the Exigent was Secund exactus ad Com' meum ibidem c. 59. A Hundred may prescribe in Non decimando and it is good for it is the custome of the County which is the best Law which ever was But a Parish or a particular Town cannot prescribe in Non decimando And
thereupon a Prohibition was granted And a Prohibition was granted in this Court upon this surmise That the Custome was that Tithes should not be paid of Pheasants 60. If there be no Venire facias it is not Error but it is helped by the Statute But if there be a Venire facias and it is erroneous it is not holpen by any Statute Trinity-Term 15º CAROLI in the Kings Bench. 61. A Man indicted others at the Sessions-house in the Old-Baily who were acquitted and the Defendants Counsel did remove the Indictment into the Kings Bench and prayed a Copy thereof to the end they might bring a Conspiracie or have other remedy for the wrong done unto them And it was denied by the whole Court unless the Recorder will say That there appeared malice in the prosecution For a man shall not be punished for lawful prosecution upon just ground without malice although the parties be acquitted by Law The King against the Inhabitants of Shoreditch 62. MAster Keeling Clerk of the Crown in the Kings Bench did exhibit an Information against the Inhabitants of Shoreditch for not repairing the High-way And the Issue was Whether they ought to repair it or no And it was said by the Court That by the Common Law the Inhabitants of a Parish ought to repair all High-ways lying within the Parish If prescription did not bind some particular person thereto which was not in this Case And in this Case some of the Inhabitants would have been Witnesses to prove that some particular Inhabitants lying upon the High-way had used time out of minde to repair it but were not permitted by the Court because they were Defendants in the Information wherefore the Jury found That the Inhabitants ought to repair the way 63. Two men and their wives were Indicted upon the Statute of Forcible Entry who brought a Certiorari to remove the Indictment into the Kings Bench. Some of them did refuse to be bound to prosecute according to the Statute of 21 Iac. c. 8. and therefore notwithstanding the Certiorari the Justices of Peace did proceed to the trial of the Indictment and here it was resolved That whereas the Statute is The parties Indicted c. shall become bound c. That if one of the parties offer to find Sureties although the others will not yet that the cause shall be removed for the denying of one or any of them shall not prejudice the other of the benefit of the Certiorari which the Law gives unto them And the Woman cannot be bounden And it was farther resolved that where the Statute saith That the parties Indicted shall be bound in the sum of ten pounds with sufficient Sureties as the Justices of the Peace shall think fit that if the Sureties be worth ten pounds the Justices cannot refuse them because that the Statute prescribes in what sum they shall be bound Like to the Case of Commission of Sewers 10 Rep. 140. a. That where the Statute of 3. H. 8. cap. 5. enables them to ordain Ordinances and Laws according to their wisdoms and discretions that it ought to be interpreted according to Law and Justice And here it was farther resolved that after a Certiorari brought and tender of sufficient Sureties according to the Statute all the proceedings of the Justices of Peace are coram non Iudice The Argument of the Lord Chief Iustice in the Case between James and Tintny in a Writ of Error to reverse Iudgment given in the Common Pleas for Tintney Defendant in a Replevin brought by James the Case was thus vis 64. STowel was Lord of a Mannor and Iames one of the Tenants and there the custome was That the Steward of the Mannor might make Laws and Ordinances for the well-ordering of the Common And the custome was also to Assess a penalty or a pain upon those who brake those Laws and Ordinances And also to prescribe to distrain for the penalty The Steward made an Ordinance That he who put his Cattle beyond such a bound that he should pay 3 s. 4 d. Iames offended against this Ordinance upon which the penalty was assessed and a distress taken by Tintny Defendant in the Replevin Plaintiff and Baily of the Lord of the Mannor And Judgment was given for him in the Common Pleas and damages assessed Upon which a Writ of Error was brought In this Case it was agreed by the whole Court that the Custom was reasonable And the difference taken where the Law or Ordinance takes away the whole profit of the Commoners and where it abridgeth it only or adds limits or bounds to it as in this Case And farther it was agreed That the Commoners are bound to take notice of these Ordinances But in this Case the Erâ—or which was assigned was this That damages were given for the Defendant where no damages ought to have been given And of that Opinion was the Lord chief Justice that no damages ought to have been given and with him agreed Justice Iones but Justice Crook and Justice Barckley è contra It is clear that at the Common Law the Defendant shall not have damages although as to some intent the Avowant be as it were a Plaintiff and Actor 21. H. 6. 2. 6. H. 4. 11. 35 H. 6. 47. Then the Question ariseth only upon these two Statutes viz. 7. H. 6. cap 4. 21. H. 8. c. 19. And first whether our Case be within the Letter of these Laws Admitting that not Whether within the mischief so as that it shall have the same remedy And I conceive it is not within the Letter or Equity of these Statutes Not within the Letter for they speak Where a man distrains for Rents Customs and Services or damage â—easant And in our Case he doth not distrain for any of them for it is manifest that he doth not distrain for Rents Services or Damage feasant And it is as clear that he doth not distrain for Customs for he distrained for a penalty assessed by Custom 1. In Alcocks case it was here resolved That where a prescription was alledged to distrain for an Estray and found for the Avowant that no damages should be in that case For it was here resolved that the Customs intended in 21 H. 8. cap. 19. are Customs which are Services 2ly I hold it not within the Equity for the mischief at the Common Law was That damages were not to be recovered for such Rents Services c. And this penalty is no Service And I conceive clearly That it was not the meaning of the Makers of the Act of Parliament to extend to such penalties And here I further take the difference which is in Pilfords case in the 10 Rep. 116. In all cases where a man at the Common Law cannot recover damages If a Statute give damages there he shall recover no costs for the same is an Act of Creation which gives remedy where none was given before But where there is an Act of Addition which increaseth the damages at the
Common Law there notwithstanding he shall recover costs also So in our Case these being Acts of Creation which give remedy where there was no remedy before shall be taken strictly according to the Letter and shall not extend to such penalties as in our case And upon this difference he cited the Cases in Pilfords case and especially the Case upon the Statute of 5 E. 6. of Ingrossers the Plaintiff shall not recover costs but only the penalty given by the Statute grounded upon 37 H. 6. 10. I agree That there be many Presidents in the Common 〈◊〉 That damages have been allowed in our very Case but that is the use of the Clerks and passed sub silentio without any solemn debate or controversie Vide Greislies case and the first Case of the Book of Entries Presidents and Judgments in this Court Pasch. 33 Eliz. Rot. 292. Halesworth against Chaffely A Judgment of the Common Pleas was reversed for this very point M. 36 Eliz. Ruddal and Wilds Case M. 44 45 Eliz. Rot. 22. Shepwiths Case Avowry for relief a stronger case Judgment was reversed because damages was assessed Hill 14 Iac. Rot. 471. Leader against Standwell in a Replevin Avowry was made for an Amercement in a Leet and found â—or the Dâ—fendant and damages assessed But the Entry upon the Record was thus Super quo nullo habito respectu c. The Plaintiff was discharged of the damages because nulla damna debent esse adjudicanda per Legem terrae but he shall have his costs But it was objected by Justice Crook That by the Statute of 4 Iac. c. 3. which giveth costs and damages to the Defendant in certain Actions there specified where the Plaintiff shall recover damages and that where the Plaintiff is Non-suit or verdict pass against him That Demurrer hath been construed to be within that Statute Notwithstanding that it is an Act of Creation I agree that and answer that Demurrer is within that Statute and the mischief of it but it is not so in our Case for in our Case there is no such mischief For there is no colour to extend it beyond the words of the Statute For which cause I conclude that the Judgment in this case ought to be reversed 65. A Clerk of the Court dwelling in London was chosen Churchwarden and prayed a Writ of Priviledge which was granted And it was agreed by the whole Court That for all Offices which require his personal and continual attendance as Churchwarden Constable and the like he may have his Priviledge but for Offices which may be executed by Deputy and do not require attendance as Recorder and the like from which the Justices themselves shall not be exempt for them he shall not have his Priviledge And where he hath his Priviledge for the not obeying thereof an Attachment lieth Swift against Heirs in Debt upon the Statute of 2 E. 6. for setting out of Tythes 66. THe doubt in this Case did arise upon two several Indentures found by special verdict which were made by the Vicar and Subchauntors Corrols of Lichfield one 2 E. 6. the other 2 3 Phil. Mar. The Question upon the Indenture of 2 E. 6. was Whether the Grant upon the Habendum be a grant of a Freehold to begin at a day to come or not The chief Justice Justice Crooke and Justice Barckley were clear of Opinion That it was a grant of a Freehold to begin at a day to come And for that the Case is thus In the Indenture of 2 E. 6. there is a recital of a former Lease for years And by this Indenture in 2 E. 6. another Lease was to begin after the first Lease determined the remainder in Fee to another And upon that the three Justices before were clear in their Judgments That it was a Grant of Freehold to begin at a day to come which without doubt is void 8 H. 7. 39 H. 6. and Bucklers case 3 Rep. And in 8 H. 7. the difference is taken betwixt the grant of a Rent in esse and Rent de novo A Rent de novo may be granted in futuro but not a Rent which is in being But Justice Iones in this Case was of Opinion That here is not any grant of a Freehold to begin at a day to come because in this case the Lease doth begin presently because the Lease recited is not found by the Jury and therefore now it is all one as if there had been no Lease at all contrary in the case of the King because it passeth a good estate of Inheritance to the Grantee And therefore if I make a Lease for years unto a man after the expiration of such a Lease where in truth there is no such Lease in being the Lease shall begin presently The Question upon the Indenture of 2 3 P. Mar. was no more but this The Vicar and Subchauntors of Lichfield made a Grant of all their Tithes in Chesterton and name them in certain and in specie as Tithe-wool Tithe Geese Pigs Swans and the like and that in a distinct clause with especial Exception of four certain things After which came this clause All which were in the Tenure of Margaret Pâ—toe And the Jury sound that none of these Tithes were in hâ—r Tenure And whether that Grant were void or not was the Question And resolved by the whole Court nullo contradicente That the Grant notwithstanding this fallâ— reciâ—al was good For these reasons But first it was resolved That where they grant all their Tithes in Chesterton that it is a good grant and hath sufficient and convenient certainty 13 E. 4. and â—â—â—lands Case There are two Generalities 1. Absolute 2. Genâ—â—al in particular â—o here And in our Case it is as câ—râ—ain that demand in an Action may be for them by the name of all their Tithes in Chesterton So in the like manner an Action of Ejectione firme will lie For an Ejectione firme will 〈◊〉 for Tithes as it hath been adjudged here If the King grant all his Lands it is altogether incertain and void but if the King grant all his Lands in Dale or which came to him by the dissolution of such an Abby it is good because it is a generalâ—y in particular And it was agreed that convenient certainty is sufficient And therefore it was said by Justice Iones That if I grant all my Rents in Dale which I have of the part of my Mother that he conceives the same to be good The first reason wherefore this grant shall be good notwithstanding the false recital was this because the words here All which c. are not words of denotation or restriction but of suggestion or affirmation and therefore shall not make void the Grant And here the difference was taken between the Case of a common person and of the King Suggestion which is false in the Case of the King makes the Patent void but contrary in the case of a common person And
therefore iâ— the King be deceived either in point of profit or in point of Title his Grant is void 9 H. 6. Where he is not deceived in point of profit he shall not avoid the Grant 26 H. 8. The second reason That a Deed ought to be construed Vt res magis valeat quam pereat 34 H. 6. A man having a Reversion deviseth his land in Manibus thereby the Reversion passeth 9 E 4. 42. Release of all Actions against Prior and Covent shall be construed and intended all Actions against the Prior only for an Action cannot be brought against the Covent Farther by this construction you would avoid this deed and by the Rule of Law the deed and words of every man shall be taken very strong against himself ut res magis valeat as is said before And it is against reason to conceive that it was the meaning of the parties that nothing should pass A third reason was because the grant was a distinct clause of it self And the words which were objected at the Bar to be restrictive were in another distinct clause and therefore shall not restrain that which was before for words restrictive ought to be continued in one and the same sentence Wherefore they having granted all their Tithes in Chesterton by one clause the false recital afterwards in another clause shall not make the grant void See 3 4 Eliz. Dyer in Wast 31 Eliz. the Lord Wenworths Case in the Exchequer upon this Rule of distinct clauses And Atkins and Longs case in the Common Pleas upon which cases Justice Iones did rely The fourth reason was That construction ought to be made upon the whole Deed And it appeareth by the context of the Deed That it was the meaning of the parties to grant the Tithes by the Deed. Further the Exception of the four things sheweth That it was the meaning of the parties to grant all things not excepted as the Tithes in this Case For exceptio firmat Regulam And to what purpose should the Exception be if they did not intend to pass all other things not excepted See 4 Car. Hâ—skins and Trâ—ncars Case Sir Robert Napwiths Case 21 Iac. cited by the chief Jâ—â—tice to that purpose Wherefore it was agreed by the whole Court that Judgment should be given for the Defendant And the Opinion of the Court was clear also That although some of the Tithes had been in the Tenure of Margaret Petâ—e that yet the grant was good And that was after Argument upon the Demurrer to avoid all scruples to be after made by Counsel because it was conceived That some of the Tithes were in her Tenure Crisp against Prat in Ejectione firme 67. THe Case upon the four Statutes of Bankrupts viz. 34 H. 8. 13 Eliz. 1 Iac. and 21 Iac. was thus Ralph Brisco 9 Iac. purchased Copyhold to him and his Son for their lives the Remainder to the Wife in Fee 11 Iac. he became an Inholder and about twelve years after a Commission of Bankrupt is obtained against him And thereupon the Copyhold-land is sold by the Commissioners to the Defendant Ralph Brisco dieth and his Son Iohn Brisco entred and made the Lease to the Plaintiff The Defendant entred upon him and he brought an Ejectione firme And Judgment was given upon solemn argument by the Justices for the Plaintiff The first point was Whether an Inholder be a Bankrupt within these Statutes And it was resolved by all the Justices viz. Iones Crook Barckley and Bramstone chief Justice that an Inholder quatenus an Inholder is not within these Statutes Justice Barckley and Justice Iones one grounded upon the special Verdict the other upon the Statutes did conceive That an Inholder in some cases might be within these Statutes Justice Barckley did conceive upon this special Verdict that this Inholder was within them because it is â—ound That he got his living by buying and selling and using the Trade of an Inholder And he conceived upon these words Buying and selling in the verdict and getting his living thereby although that the Jury have also found him an Inholder that the same is within the Law And he agreed That he who liveth by buying or selling and not by both is not within the Law but in our case the Jury have found both And it hath been adjudged That he who buys and sells cattle and stocks his ground with them that he may be a Bankrupt within those Statutes I agree that a Scrivener was not within 13 Eliz. for he doth not live by buying and selling but by making use of the monies of other men but now he is within 21 Iac. But in our case the Inholder buys his grass hay and grains and provision also for his Guests and by selling of them he lives But he agreed That if the Jury had found that he was an Inholder only and not that he did get his living by buying and selling that in that case he was out of the Law And for these reasons he did conceive That this Inholder as by the special Verdict is found was within the Statutes of 13 Eliz. and 21 Iacobi Justice Iones An Inholder may be or not be within these Laws upon this difference That Inholder who gets his living meerly by buying and selling as many of the Inholders here in London do they are within these Statutes But those who have Lands of their own and have hay and grain and all their provisions of their own as many have in the Country those are not within the Statutes Farther he said That buying and selling doth not make men within these Statutes for then all men should be within the Statutes but they ought to be meant of them who gain the greatest part of their living thereby and live chiefly or absolutely thereby But Bramston chief Justice and Justice Crook were clear of Opinion that an Inholder could not be a Bankrupt neither by the Statutes nor according as it is found by the special Verdict And their reason was because that an Inholder doth not live by buying and selling for he doth not sell any thing but utter it He which sells any thing doth it by way of contract but an Inholder doth not contract with his Guests but provides for them and cannot take unreasonable rates as he who sells may and if he doth he may be Indicted of Extortion which the seller cannot Wherefore they concluded that an Inholder is not within the Statute of 13 Eliz. 1 Iac. Justice Crook remembred these Cases Webb an Inholder of Vxbridge brewed in his house and sold his Beer to his Guests And it was adjudged in the Exchequer that it was not within the Statute of Brewers And Bedells Case who being a Farmer bought and sold cattle and adjudged that he was not a Bankrupt within these Statutes And he put thâ—se cases upon this reason That where the Statutes said Get their living by buying and selling that it ought to bâ—â—or the greater part that they gain
the greater part of their living thereby And he said that if a Gentleman buy and sell Land he is not within the Statutes for it ought to be taken those who buy and sell personal things The second point It was agreed by all that Copyhold is within the Statute of 13 Eliz. 1 Iac. First because it is no prejudice to the Lord because there ought to be composition with the Lord and the Vendee And although the sale ought to be by Indenture yet the Vendee ought to be admitted by the Lord. And the difference in Heydons case in 3 Rep. was agreed Secondly It is expresly within 13 Eliz. and therefore within 1 Iac. also by way of recital although the Statute of 1 Iac. hath new provisions And by the Statute of 21 Iac. it was said That these Statutes shall be construed most beneficial for the Creditors because their ground is suum cuique tribuere 5 Eliz. Dyer Vmpton and Hides Case The Acts of Explanation shall be taken most beneficial and liberally And the Statute of 13 Eliz. says expresly That the Commissioners shall dispose of Lands as well Copy as Free But although a Copyhold be not within the later part of 13 Eliz. expresly yet by connexion it is And the Statute of 13 Eliz. guides the Statutes 1 21 Iacobi Justice Iones did agree That the Copyhold is within 13 Eliz. but not the person of the Copyholder although the person be within 1 Iac. And the chief Justice said That his Opinion was that upon the Statute of 21 Iac. which is That these Statutes shall he taken liberally that Copyholds although they had not been named had been within these Statutes It was said by Justice Barckley who argued for the Defendant That the verdict hath not found within 13 Eliz. because the verdict hath not found fraud expresly but badges only thereof See Meriel Littletons Case in the Chancellor of Oxfords Case That the Fraud ought to be expresly found but so it is not here for here it is found that the Son was an Infant at the time of the purchase and also that the purchase was with the mony oâ— the Father which are only inducements of Fraud But he argued it was within 1 Iac. because the Father hath caused oâ— procured this conveyance to his child as the Statute speaks And here is Fraud apparent Et quod constat clarè non debâ—verificari And therefore if a man enfeoff his Son it is Fraâ—â— apparent ought not to be found particularly But it was resolved by all the other Justices That here was not fraud apparent and therefore it ought to be found by the Jury The third and chief point in this Case was He being no Inholder at the time of the purchase and afterwards becoming an Inholder whether he were within the Statute of 13 Eliz. And it was resolved he was not But here Justice Barckley who argued for the Defendant was against it And he argued that if a man purchase and sell and afterwards become a Tradesman and Bankrupt that that was not within the Statute but if he keepeth the Land in his hands there he conceived him within the Statute as it was in this case And he was against the Book of the Chancellor of Oxfords Case of relation to devest the Advowson and he said It is not like to the Case in 6 7 Eliz. there cited Iâ— Eriches Case in the 5 Rep. there is a Rule taken that A verbis legis non est recedendum and in our Case it is within the express words of the Statute which are That if any person which hereafter shall become a Bankrupt c. And here he after became a Bankrupt But it was resolved by the others with whom Justice Barckley did concur after that it was not within the Statute Justice Crook argued That it is not within the words of the Statute which are If the offender purchase and that the sale shall be good against the offender and here he was not offender at the time of the purchase and using no Trade shall he be punished for that after Besides here the soâ— should be punished for the offence of the Father which the Law of God will not suffer Smith and Cullamers Case 2 Rep. he ought to be endebted at the time otherwise he is no offender And he might give away his goods before he was in Debt And the mischief here will be That Lands purchased 40 years before should thereby be defeated And I hold that it a man ba a Tradesman and afterwards leaves his Trade and thâ—n purchaseth and afterwards becomes a Tradesman again and a Bankrupt that he is not within the Statute But Justice Iones was of opinion that iâ— he be a Tradesman at the time although not an offender yet he is within the Statute But the chief Justice did argue that he ought to be an offender and the thing which makes him to be an offender is his intent to defraud his creditors Iones It shall be hard in this Case to cause the estate to be reached by this Statute for perhaps it was for the marriage of the son and perhaps the son might sell it and after the father become Bankrupt it would be hard to void the sale The Chancellor of Oxfords case was a stronger case for there the party was Indicted And if a man be Accomptant to the King and afterwards sell yet the sale shall be avoided by the King But if he be not accomptant and â—ellâ—th and afterwards becomes Accomptant the sale shall not be defeated And here he became Inholder after the purchase and being a clear man at the time of the purchase he shall not now be within the Statute Chief Justice If that should be permitted all things which the party did should be defeated and therefore he agreed That although he be a Tradesman yet if he be not in debt if he purchase for another or give unto another if no fraud be found it is not within the Statutes And Judgment accordingly was given for the Plaintiff Young against Fowler 68. YOung brought an Action upon the Case against Fowler for disturbing of him to execute the Office of Register to the Bishop of Rochester and upon Not guilty pleaded the Jury gave a special verdict They found that the Office was granted by one Bishop to one for life which was confirmed by the Dean Chapter which Bishop died and afterwards Iohn Young was created Bishop And then they found that the Office was grantable in Reversion time out of mind c. And that Iohn Young Bishop did grant the said Office of Register to Iohn Young his son now Plaintiff in Reversion And that the Office was to be executed by the said Iohn Young or his Deputy which Iohn Young the son was but of the age of 11 years at the time of the Grant but they found that he was of full age before the Tenant for life died And then they found that Iohn Young
the Bishop died and that his Successor granted the Office to the Defendant who executed many things concerning the Office And whether upon the whole matter the Defendant were a disturber or not was the Question And it was adjudged by all the Justices without any solemn and open argument that the Defendant was a disturber But the case was argued by Counsel on both sides whose arguments and reasons were briefly following Maynard for the Plaintiff There are two points 1. Whether the grant be good within the Statute of 1 Eliz. 2ly Whether the Grant to an Infant be good And he held it was because it was to be executed by his Deputy The word of the Statute of 1 Eliz. are Of any thing belonging to the Bishoprick and in our Case the Office of Registry is belonging to the Bishoprick The second doubt is Whether the Grant in Reversion be convenient and I hold it is although not absolutely yet necessarily And therefore we are to see 1. What conveniencie is requisite and 2. Whether such conveniencie be within the Law For that it ought to be enquired How this office hath used to be granted and the use ought to guide the conveniencie See the Bishop of Salisburies Case a grant of an Office to two which hath not been used to be so granted is not good Pase 1 Car. Rot. 207. the Bishop of Chichesters Case Where the Question was upon the usual Grant of Fees and there because it was found that there was a grant of greater Fees than the use and custome warranted It was adjudged good for so much as the custom did warrant and void for the residue And the Statute it self speaks of usual Rent all which proves That use ought to guide the conveniencie 2d Point That the grant to an Infant was good because it is granted to be executed by his Deputy I grant that an Infant cannot be an Attorney because an Attorney cannot make a Deputy And this Grant is not inconvenient ex natura rei neither to the Grantor nor to the Grantee 1. It is not inconvenient ex natura rei for such an Office is grantable to one and his heirs which by possibility may descend to an Infant and there he shall execute it by Deputy and the same inconvenience is in this Case if there be any And if the execution of an Office may be by Deputy where the party is not able the same reason is in this Case 2. It is not inconvenient to the Grantor because as it is presumed when a man grants an Office to one and his heirs that he sâ—â—s that the same by possibility may descend to an Infant so he says in our Case at the time of the grant he is an Infant 3. It is not inconvenient to the Grantee for it is for his benefit 27 H. 8. 28. 8 E. 4. 7. But here it may be objected That this Office doth concern the Commonwealth and if the Infant commit any offence he shall not be punished because iâ— should be inconvenient To that I answer that the Infant ought to execute it by his sufficient Deputy and he himself shall be charged for any escape and by forfeiture of his Office as any other may Besides you shall never prejudice any iâ— praesenti for the future prejudice which by possibility may happen to the Commonwealth 10 E. 6. 14. Stone and Knights Case Hill 3 Car. Rot. 119. An Infant was bound by arbitrament Trin. 3 Car. Rot. 119. An Infant was bound for hiâ— schooling But it may be farther objected That it concerns the administration of Justice which an Infant cannot do To which I answer that he may make a Deputy who ought to be adjudged sufficient by the Ordinary and he may well execute it 26 H. 6. Grants 12. An Infant elected Parson to serve a Cure who shall be examined by the Ordinary 21 E. 4. 13. An Infant may be Mayor 18 E. 3. 33. 26 E. 3. 63. An Infant who come in by purchase makes him more liable than he who comes iâ— by descent But in our Case the grant à fortiori shall be good because it is executory And he took the difference between an Executory grant as here which by possibility may be madâ— good as in out Case it was because that the Grantee was oâ— full age before the Office fell in possession and where an interest vests immediately Farther he conceived the Case the stronger because the Deputy came in by the allowance of thâ— Ordinary Ward for the Defendant There are four Questions 1. Whether a grant to an Infant in possâ—ssion be good 〈◊〉 conceive not 1. quoad naturam rei it is not good because that by that Grant the Commonwealth is prejudiced 2. Thâ— Office doth concern the administration of Justice and thereâ—fore cannot be granted in Fee and by consequence there shall be no descent of such Judicial Office as hath been objected by Mr. Maynard 1 Rep. I agree that the Grant of a Parkership to an Infant is good and where it was objected that it may be prejudicial by possibility I conceive it apparens nocumentum as 5 Rep. 101. and therefore the like Nusance as the case is there put may be destroyed 9 E. 4 5. Winters Case Clerk of the Crown 12 13 Eliz. Dyer 293. 9 Rep. 96. Mich. 40 41 Eliz. Scamblers case It was adjudged That an Infant is not capable of a Stewardship of a Mannor and the reason is because that thereby the Tenants may be prejudiced so in our Case the Commonwealth Trin. 13 Car. Rot. 493. our very case in the Common Pleas was adjudged Further an Infant is not capable of this Office because Misfeasans Nonfeasans may be and he shall not be punished for it for an Infant at the Common Law is not liable to an Action of Wast or an Action upon the case 8 Rep. 95. Doct. Stud. The 2. Question Whether the Grant to him and his Deputy make the Grant good I hold it doth not 7 Eliz. Dyer 238. b. 9 Rep. 38. 10 E. 4. 1. 39 H. 6. 54. The Officer is chargeable for his Deputy and not the Deputy himself And if it be so if this Grant should be good here should be a Misdemeanor in the Office and none should be punished for it which should be inconvenient for the Deputy cannot be charged nor the Officer in our Case because he is an Infant and therefore the Grant is not good The 3. Quest. Whether this subsequent Act of the Infant coming of full age before the falling of the Office into possession hath made the Grant good I hold that not upon the common Rule Quod initio non valet c. So is the Bishop oâ— Salisburies Case Sir George Reignalls Case and 27 H. 6. 10. The 4. Question Whether this Grant in Reversion to a man of full age be good at the Common Law and I hold it is not because it is a judicial Office which is not grantable in Reversion with
granted And here it was agreed That if a woman do convey a Lease in trust for her use and afterwards marrieth that in such case it lies not in the power of the husband to dispose of it and if the wife die the husband shall not have it but the Executor of the wife and so it was said it was resolved in Chancery 70. Barckley and Crooke there being no other Justice at that time in Court said That upon a Petition to the Archbishop or any other Ecclesiastical Court no Prohibition lieth But there ought to be a Suit in the Ecclesiastical court And by them a Libel may be in the Ecclesiastical court for not repairing a way that leadeth to Church but not for repairing of a high-way and upon suggestion that the Libel was for repairing a high-way a Prohibition was granted 71. Many Indictments were exhibited severally against several men because each by himself suffered his door to be unrepaired and it was shewed in the Indictments that every one of them ought to repair And thereupon it was moved that they might be quashed but the Court would not quash them without certificate that the parties had repaired their doors but it was granted that Process should be stayed upon motion of Counsel that reparation should be immediately done But at the same time many Indictments for not repairing of the high-way which the Parishioners ought to have repaired according as it was found by Verdict the same Term were quashed for the same defect But in truth there was another fault in the Indictment for that it was joynt one only whereas there ought to have been several Indictments but they were quashed for the first defect 72. A Replevin was brought in an Inferiour Court and no Pledges de retorno habendo were taken by the Sheriff according to the Statute of West 2. c. 2. After the Plaint was removed into this Court by a Recordari and after Verdict given it was moved in arrest of Judgment want of Pledges for thâ—se reasons because the Pledges de retorno habendo are given by that Statute as 2 H. 6. 15. and 9. H. 6. 42. b. And that Statute saith That Pledges shall be taken by the Sheriff and therefore no other can take them notwithstanding that Pledges might be found here in Court And 3 H. 6. 3. and F. N. B. 72. a. say That where Pledges are found that they shall remain notwithstanding the removal of the Plaint by Recordari and the reason is because the Sheriff is a special Officer chosen to that purpose by the Statute and therefore no other can take them Besides there would be a failer of Justice if the Court should put in Pledges for then there might be no remedy against the Sheriff for that he found no Pledges and no remedy against the Pledges because they are not found according to the Statute and so a failer of Justice and by that means the Sheriff should frustrate and avoid the Statute for no Pledges should ever be found and so he should take advantage of his own laches and wrong Farther it was objected that these proceedings are the judicial act of the Court and therefore the Court will not alter or diminish them L. Entries 1. and 3 H. 6. And farther it was said That the cases of Young and Young and Dr. Hussies case adjudged in this Court That Pledges may be found at any time before Judgment were in Action upon the Case and not in Replevine as our case is for which there is special Provision made by the Statute But it was answered and agreed by the whole Court that Pledges may be found by this Court for the Pledges given by the Statute of West 2. are only to give remedy against the Sheriff and if the Sheriff do not his duty but surceaseth we may as at the Common Law put in Pledges and yet notwithstanding remedy may be against the Sheriff upon the Statute for his neglect And farther it was agreed That Pledges may be found at any time before Judgment as in Young and Youngs Case and Dr. Hussies Case it was adjudged And Judgment was affirmed 73. There can be no second Execution granted out before that the first be returned 74. Two Joyntenants of a Rectory agree with some of their Parishioners that they shall pay so much for Tithes and notwithstanding one of thâ—m sueth for Tithes in the Ecclesiastical court and a Prohibiâ—ion was prayed because that one of them cannot sue without the other and the Court would not grant it and their reason was because although that one of them cannot sue without the other by our Law yet perhaps the spiritual Court will permit it 75. Husband and Wife brought a Writ of conspiracie and it was adjudged that it would not lie And Iones cited this case That Husband and Wife brought an Action upon the Case against another for words viz. That the Husband and Wife had bewitched another and it was not good because that the wife cannot joyn for Conspiracie made against the husband nor for trespass of Battery as the Book is 9 E. 4. But Justice Crook was of Opinion That the Conspiracie would well lie because that the Indictment was matter of Record and therefore not meerly Personal but the whole Court was against him and Justice Barckley took the difference where they sue for Perâ—onal wrong done to thâ—m there they shall not joyn but wherâ— they have a joynâ— Interest as in case of a Quare impedit there they shall joyn Thurston against Ummons in Error to Reverse a Iudgment in Bristow 76. THurston brought an Action upon the Case against Vmmons declared That the Defendant brought an Action against him at the Suit of Hull without his privity And thereupon did arrest and imprison the Plaintiff by reason whereof all his Creditors came upon him and thereby that he had lost his Credit c. And a Verdict was found for the Plaintiff and thereupon Error brought and two Errors were alledged 1. That the Action will not lie because in truth there was a just Debt due to Hull in whose name he sued 2. Because it is not shewed that the causes of Actions which the other Creditors had against him did arise within the Jurisdiction of the Court of Bristow And notwithstanding the first Error alledged Judgment was affirmed by the whole Court upon this difference where Hull himself sueth or commenceth Suit against the Plaintiff there although by that Suit he draw all the Creditors upon the back of him and so perhaps undo him yet because it was a lawful act no Action upon the Case lieth against him But where one commenceth Suit against another in the name of another and without his privity that is Maintenance which is a tortious Act and therefore an Action will lie so in the principal case As to the second Error alledged the Court differed in Opinion Barkley That the damages were ill assessed because they were given aswel for
the Actions brought by the other Creditors But Justice Bramston contrà That the damages were well assessed because that the Actions brought by the Creditors were added for aggravation only and the cause of the Action was the Arrest and Imprisonment like the case where a man speaks words which are in part actionable and others only put in for aggravation and damages is assessed for the whole it is good There was a third Error assigned That the Venire facias was de Warda omnium Sanctorum de Bristow without shewing in what Parish Childe against Greenhil 77. CHilde brought Trespass against Greenhill for Fishing in seperali piscaria of the Plaintiff and declared that the Defendant pisces ipsius cepit c. And Verdict found for the Plaintiff And it was moved by Saint-Iohn in Arrest of Judgement because the Plaintiff declared of taking of pisces suos whereas the Plaintiff they being ferae naturae hath not property in them Register 94 95. and F. N. B. and Book Entries 666. No count that the Defendant cepit pisces ipsiuâ— but ad valentiam c. without ipsius So Fines Case in Dyer 7 H. 6. 36. 10 H. 7. 6. 12 H. 8. 10. by Brudnell 13 E. 4. 24. 7 Rep. case of Swannes And the Book of 22 H. 6. 59. is over-ruled by the case of Swannes 34 H. 6. 24. And the same is matter of substance and therefore not helped after Verdict An Action of Trover and Conversion against husband and wife quia converterunt is not good and it is not helped after Verdict because it is matter of substance Rolls for the Defendant I agree that lepores suos or pisces suos without any more is not good But where he brings an Action of Trespass for taking them in his Soil there it is good because it is within his Soil So in our case for taking pisces suos in his several Piscary and with this difference agree 22 H. 6. 59. 43 E. 3. 24. so Regist. 93 102. 23 H. 6. tit Tresp 59. 14 H. 8. 1. and the Book of 43 E. 3. saith That in Trespass the Writ shall not say Damam suam if he do not say that it was taken in his Park or Warren or saith damam domitam or as the Book is in 22 H. 6. in my Soil or Land and by Newton he shall say there damas suis. And admit that it was not good yet I hold that it is helped after Verdict because it is not matter of Substance for whether they be pisces suos or not the Plaintiff shall recover damages Justice Barckly It is true that in a general sense they cannot be said pisces ipsius but in a particular sense they may and a man may have a special or qualified property in things which are ferae naturae three ways ratione infirmitatis ratione loci ratione privilegii and in our case the Plaintiff â—ath them by reason of Priviledge And it was agreed by the whole Court That Judgment should be affirmed upon the very difference taken by Rolls that where a man brings Trespass for taking pisces suos or lepores suos c. and the like that the Action will not lie But if he bring Trespass for fishing in his several Piscary as in our Case or for breaking of his Close and taking lepores suos c. there it will lie Pitfield against Pearce 78. IN an Ejectione firme the Case was thus Thomas Pearce the Father was seised of Lands in Fee and by Deed in consideration of Marriage did give and grant this Land to Iohn Pearce the now Defendant his second Son and to his Heirs after his death and no Livery was made Thomas Pearce died the Eldest Son entred and made a Lease to the Plaintiff who entred and upon Ejectment by the Defendant brought an Ejectione firme Twisden The only question is whether any estate passeth to the Son by the Deed and it was said there did and that by way of Covenant And it was agreed That in this Case if Livery had been made it had been void because that a Freehold cannot begin at a day to come But I may Covenant to stand seised to the use of my Son after my death So a man may surrender a Copyhold to take effect after a day to come Com. 301. So a man may bargain and sell at a day to come 1 Mar. Dyer 96. Chudleighs Case 129. 20 H. 6. 10. A use is but a trust betwixt the parties and 7 Rep. 400. There need not express words of Covenant to stand seised to an use 25 Eliz. Blithman and Blithmans case 8 Rep. 94. Besides these words dedi concessi are general words and therefore may comprehend Covenant and words shall be construed that the Deed may stand if it may be 8 Ass. 34. 7 E. 3. 9. But I agree that if the intent appeareth that it shall pass by transmutation of possession that there it shall be so taken but here his intent doth not appear to be so for if there should be Livery then the son should take nothing for the reason before given which is against his meaning Mich. 21 Iac. Rot. 2220. Buckler and Simons Case Dyer 202. Vinions case The cases cited before are in the future tense but the words are here I give c. 36 Eliz. Callard and Callards Case Stand forth Eustace reserving an estate to my self and my wife I do give thee my Land and the better Opinion was That in that case it did amount to a Livery being upon the Land for his intent is apparent Mich. 41 42 Eliz. Trelfe and Popwells Case adjudged in such case That an use shall be raised For which it was concluded that in this case there is a good estate raised to Iohn Pearce by way of Covenant Rolls I conceive that not estate is raised to Iohn Pearce by this conveyance It was objected That it shall inure by way of Covenant to raise an use I agree that if the meaning of the party may appear that he intended to pass his estate by way of raising of an use otherwise not And here is no such appearance Foxes Case in 8 Rep. is a stronger case and here it doth not appear that he meant to pass it by way of use But by the word give he intended transmutation of possession 8 Rep. Bedells case Mich. 18. Car. Rot. 2220. in the Common Pleas it was adjudged That a gift of a Remainder after the death of the grantor was void wherefore he concluded for the Plaintiff and so Judgment was given by the whole Court And Justice Iones said When a man makes a doubtful Conveyance it shall be intended a Conveyance at the Common Law And it shall not be intended that the Father would make him Tenant for life only punishable of wast Mich. 15º Car ' in the Kings Bench. 79. IT was moved for a Prohibition to the Counsel of the Marches and the Case was such A man seised of Lands in Fee
be at one time customary and go according to the custom and at another guildable And the whole Court Crooke only being absent were against him that the custom was good Hicks against Webbe 83. IN Trespass for a way the Defendant did justifie and said that he had a way not only ire equitare averia sua fugare but also carrucis carreragiis carriare The Plaintiff traversed it absque hoc that he had a way not only ire equitare c. in the words aforesaid and thereupon they were at issue and found for the Plaintiff Glynn moved in arrest of Judgment that the Issue was ill joyned because it was not a direct affirmative but by inducement only And the whole Court was against him And Justice Iones said That if I say that not only Mr. Glynn hath been at such a place but also Mr. Iones without doubt it is a good affirmative that both have been there But they all agreed that the pleading was more elegant than formal 84. In the Case betwixt Brooke and Boothe Justice Barckley said that it is a Rule That if there be two things alledged and one of necessity ought to be alledged and he relies on-only upon the other it is no double Plea As if a man plead a Feoffment with Warranty and relieth upon the Warranty it is not double 85. Justice Barckley said That the Court of the Exchequer they may make a Lease for three Lives by the Exchequer-Seal Clarke against Spurden 86. IN a Writ of Error to reverse a Judgment given in the Court of Common Pleas the case was shortly thus A. wife of I.S. intestate promiseth to B. to whom Adnistration was committed that if he shall relinquish the Administration at the request of C. and suffer A. to Administer that A. will discharge B. of two Bonds In Assumpsit brought by B. in the common Pleas he alledged that he did renounce Administration and suffered A. to Administer and that A. had not discharged him of the two Bonds And it was found for the Plaintiff And thereupon Error was brought because B. doth not shew that he did renounce the Administration at the request of C. And Rolls for the Plaintiff in the writ of Error did assign the same for Error Justice Barckley all the other Justices being absent held that it was Error for consideration is a thing meritorious and all ought to be performed as well the request on the part of C. as the permission of the part of B. which ought to be shewed For perhaps B. was compelled to relinquish it in the Ecclesiastical Court as it might be for of right the wife ought to Administer And therefore it ought to have been averred that it was at the request of C. And therefore if it had been that he should renounce at the charge of C. it ought to be averred that it was at the charge of C. And it was adjourned 87. A man Libelled in the Spiritual Court for Tithes for barren cattle and it was moved for a Prohibition upon this suggestion viz. That he had not other cattle than those which he bred for the Plough and Pale and thereupon Barckley being alone there granted a Prohibition And the same Parson also Libelled for Tithes of Conies and for that also he granted a Prohibition for they are not Titheable if not by custome And here Barckley said That if Land be Titheable and the Tenant doth not plough it and manure it yet the Parson may sue for Tithes in the Ecclesiastical Court North against Musgrave 88. IN Debt upon the Statute of 1 2 Phil. Mar. c. 12. the words of which Statute are That no man shall take for keeping in pound impounding or poundage of any manner of distress above the sum of four pence upon pain of forfeiture of five pounds to be paid to the party grieved And the Plaintiff shewed that his Cattle were distreyned and impounded and that the Defendant took of him ten pence for the poundage And thereupon the Plaintiff brought an Action for the penalty of five pounds and found for the Plaintiff And the Judgment was That he should recover the five pounds and damages ultra praeter the mony taken for the poundage And thereupon a Writ of Error was brought and three things assigned for Error First because the Action was brought for the penalty of five pounds only and not for the six pence which was taken above the allowance of the Statute which ought not to be divided Which was answered by Justice Barckley all the other Justices being absent That notwithstanding it is good for true it is that he cannot bring his Action for fifty shillings part of the penalty because it is entire but here are two several penalties and he may divide and disjoyn them if he will or he may wave the six pence For quilibet potest renunciare juri pro se introducto The second was That he doth not demand that which is ultra praeter the four pence given by the Statute and yet the Judgment is given for that which is not good To which Justice Barckley said That the Judgment was good For no judgment is given for that which is ultra praeter the four pence but only for the four pounds because he doth not demand it And we cannot judge the Judgment to be erroneous by Implication The third Objection was That Costs and Damages are given which ought not to be upon a penal Law For he ought not to have more than the Statute giveth and therefore upon the Statute of Perjury no Costs are given so upon the Statute of Gloucester of Wast the Plaintiff shall recover no more than the treble value But Rolls who was on the contrary said That there are many presidents in the common Pleas that Damages have been given upon this Statute But Barckley and Iones who afterwards came and seemed to agree with Justice Barckley in the whole was against it That no Damages ought to be given and desired that the Presidents might be viewed But here Rolls offered this difference Where the penalty given by the Statute is certain as here upon which he may bring Debt there he shall recover Damages but where the penalty is uncertain as upon the Statute of Gloucester for treble damages the Statute which giveth the treble value and the like there because it is incertain he shall have no more Barckley asked Mr. Hoddesdon If the Informer should recover Damages And he and Keeling Clerk of the Crown answered No but said Damages should be given against him and it was adjourned 89. Skinner Libelled in the Ecclesiastical Court for thâ— Tithes of Roots of a Coppice rooted up And Porter prayed Prohibition And it was said by Iones and Barckley Justiceâ—â— no other Justice being present That if cause were not shewed before such a day that a Prohibition should be awarded because it is ad exheredationem and utter destruction of 〈◊〉 And the Opinion was that the
Branches should be priviledged And a man shall not pay Tithes of Quarries of Stonâ— And Barckley said It had been adjudged That a man shalâ— not pay Tithes for Brick and Clay 90 A. said to B. Hast thou been at London to change 〈◊〉 Mony thou stolest from me And it was Objected That thesâ— words are not actionable because they are an Interrogatorâ— only and no direct affirmativâ— But by Barckley and Ioneâ— the other Justices being absent the words are actionablâ— For the first words Hast thou been at London are the wordâ— of Interrogation and the subsequent words viz. The 〈◊〉 thou stolest from me is a positive affirmation And Barckley said That it had been oftentimes adjudged That words 〈◊〉 Interrogation should be be taken for direct affirmation Ioneâ— also agreed to it and he said that this Case had been adjudged That where a man said to I. S. I dreamed this night that you stole an Horse That the words are actionable And if these and the like words should not be actionable a man might be abusive and by such subtile words always avoid an Action 91. A. said of B. that he took away money from him with a strong hand and alledged that he spoke those words of him innuendo feloâ—icè and for them the Plaintiff brought an Action upon the Case And by Barckley and Iones none other being present the Action doth not lie â—or he may take money from him manu forti and yet be but a Trespasser and therefore the Innuendo is void for that will not make the words actionable which are not actionable of themselves 92 Justice Iones said that it was a question Whether a Bar in one Ejectione firme were a Bar in another And Justice Barckley said that it is adjudged upon this difference That a Bar in one Ejectione firme is a Bar in another for the same Ejectment but not for another and new Ejectment to which Iones agreed Dickes against Fenne 93. IN an Action upon the Case for words the words were these the Defendant having communication with some of the Customers of the Plaintiff who was a Brewer said That he would give a peck of Malt to his Mare and she should piss as good Beer as Dickes doth Brew And that he laid ad grave damnum c. Porter for the Defendant that the words are not actionable oâ— themselves and because the Plaintiff hath alledged no special Damage as loss of his Custome c. the Action will not 〈◊〉 Rolls that the words are actionable and he said that it had been adjudged here That iâ—â—ne say of a Brewer That he brews naughty Beer wiâ—hout more saying these words are actionable without any special damage alledged But the whole Court was against him Crooke only absent That the words of themselves were not actionable without alledging special damage as the loss of his Custome c. which is not here And therefore not actionable And Barckley said That the words are only comparative and altogether impossible also And he said that it had been adjudged that where one says of a Lawyer That he had as much Law as a Monkey that the words were not actionable because he hath as much Law and more also But if he had said That he hath no more Law than a Monkey those words were actionable And it was adjorned Hodges and Simpsons Case 94. A Man brought an Action of Trover and Conversion against husband and wife of two Garbes Anglicè Sheaves of Corn and said that they did convert those sheaves ad usum ipsorum viz. of the Husband and Wife And here were two things moved by Hyde First that he shewed the Conversion to be of two Garbes Anglicè Sheaves of Corn which plea is naught and incertain And Courts ought to have certainty but here it is not shewed what Corn it was And the Anglicè is void and therefore no more than Trover and Conversion of so many Sheaves which is altogether incertain and therefore not good The other thing is That the Plaintiff sayth that the conversion was ad usum ipsorum which cannot be for the wife hath no property during the life of the husband and therefore cannot be ad usum ipsorum And he cited two Judgments in the point where it was adjudged accordingly And Justice Barckley said that it had been many times so adjudged But Justice Iones said that there may be a Conversion by the wife to her use as in this case to bake the Barley into bread and to eat it her self And Bramston Chief Justice said that a wife hath a capacity to take to her own use for there ought of necessity to be property in the wife before the husband can have by gift in Law and they desired to see Presidents And therefore it was adjourned as to this point But by the whole Court the other was not good More of the Case of North and Musgrave 95. MAynard for the Plaintiff in the Writ of Error That the Judgment was erroneous First because the damages and costs were given where none ought to be given being a penal Law and therefore no more than the penalty shall be recovered And he remembred the rule taken in Pilfords case 10 Rep. 116. a. and he cited divers Presidents also for it Cokes Book of Entries 31 41. And Presidents upon the Statute of Perjury 38 39. Secondly because he divided the Penalty given by the Statute which ought not to be for by such means the offender should be doubly vext for he might sue him after for the six pence praeter ultra that which was taken for the distress And he said it is like to the case of an Annuity which is entire and cannot be divided Thirdly he said That the Judgment it self was erroneous because that Judgment is given for more than he demands For the Judgment is quod recuperet 5. li. ultra praeter that which is above the 4 d. given by the Statute Rolls contrary that the Damages and Costs are well given and the same is out of the rule of Pilfords case because that the Action is no new action but the thing is a new thing for which the old Action is given And the Damages and Costs are here given for the Suit and Delay and not for the Offence And he cited also Presidents for him viz. The new Book of Entries 163 164. For the second point he said That they are several penalties which are given and therefore he might bring his Action severally for them if he would As to the third point That Judgment is given for more than the party declares it is not so for then the Judgment shall be made vitious by Implication which ought not to be And as to dividing of the penalty and Judgment the same was good by the whole Court for the reasons before given As to the giving of Costs Iones and Bramston Chief Justice conceived that they were well assessed upon the presidents before cited But Barckley
doubted thereof and did conceive that no costs should be given in this case and that upon Pilfords case 10 Rep. As to the Presidents he said that they did not bind him for perhaps they passed sub silentio And afterwards it was adjorned Johnson against Dyer 96. IN an Action upon the Case for words the Defendant having speech with the Father of the Plaintiff said to him I will take my Oath that your Son stole my Hens For which words the Plaintiff brought the Action But did not aver that he was his Son or that he had but one Son And it was holden by the whole Court Crooke being absent that the plea was not good Leake and Dawes Case 97. LEake brought a Scire facias in the Chancery against Dawes to avoid a Statute and the Case as it was moved by Serjeant Wilde was such Hopton acknowledged a Statute to Dawes and afterwards conveyed part of the Land liable to the Statute to I. S. who conveyed the same to Leake the plaintiff and afterwards the Conusor conveyed other part of the Land to Dawes the Defendant who was the Conusee by bargain and sale the Conusee extended the Lands of Leake the Purchaser who thereupon brought this Scire facias to avoid the Statute because that the Conusee had purchased parcel of the Land liable to the Statute and so exâ—inguished his Statute And this case came by Mittimus into the Kings Bench. And here it was moved by Serjeant Wilde for Dawes the Defendant in arrest of Judgment And taken by him for Exceâ—â—ion That the bargain and sale is alledged to be made to Dawes but it is not shewed that it was by Deed inrolled but yet it is pleaded That Virtute cujus viz. of Bargain and Sale the Conusee was seised and doth not shew that he entred And here it was said by the Court There are two points First Whether an Inrolment shall be intended without pleading of it Secondly Admitting not what Estate the Bargaineâ— hath as this Case is As to the first Justice Iones took this difference Where a man pleads a bargain and sale to a stranger and where to himself In the first case he need not plead an Inrolment but contrary in 〈…〉 Barckley agreed it and took another difference betwixt a Plea in Bar and a Count In a Count if a man pâ—â—ad a grant of a Reversion without attorâ—ment it is good contrary in Bar so in this Case The second question is admitting that the Deed shall be intended not to be inrolled without pleading What estate Dawes the Conusee hath before Entry the Deed not being inrolled For it was agreed by the whole Court That if he be a disseior or if he hath but an estate at will that the Statute is suspended And first whether he hath an estate at will at the common Law or not without Entry Barckley that he had But Iones and Bramston contrary and it seemed that he had an estate at will by the Statute And put the case of feoffment in Bucklers case 3. Rep. Where the Feoffee entreth before Livery that he hath an estate at will and Barckley agreed therein with him for the possibility of inrolment But Iones conceived that an estate at will could not be executed by the Statute And it was adjorned Curtisse against Aleway 98. THe Case was thus A woman was dowable of certain Land within the Jurisdiction of the Council of the Marches of which I. S. died seised She accepted a Rent by parol of the Heir out of the same Land in satisfaction of her Dower And afterwards there was a Composition betwixt them for defalcation of that Rent Afterwards there was an Action brought before the Council of the Marches for the Arrerages of the Rent where the question was Whether the Rent were in satisfaction of her Doweâ— or not and it was moved by Moreton for a Prohibition And it was granted by the Court because the same did concern Freehold of which they have not Jurisdiction for by the express Proviso of the Statute of 34 H. 8. of holding of plea of Lands Tenements Hereditaments or Rents But because that it appeared by the Bill that the woman was dead so as the realty was turned into the personalty viz. into Debt And therefore it was conceived by Evers Attorney of the Marches That although it was not within the Jurisdiction before yet being now turned into a personal Action that they have Jurisdiction But Iones and Barckley Justices were of a contrary Opinion and Iones said That an Action of Debt for Arrerages would not lie before them because it touched the realty which was denied by none but Evers Attorny Edwards against Omellhallum 99. IN a Writ of Error to reverse a Judgment given in Ireland in an Ejectione firme the Case was this as it was found by special verdict A Mortgager made a Lease for years by Deed indented and afterwards performed the Condition and made a Feoffment in Fee the Lessee entred upon the Feoffee who re-entred and the Lessee brought an Ejectione firme And the only question as it was moved by Glynn was Whether this Lease which did inure by way of Estople should binde the Feoffee or no and by him it did and Rawlyns case in the 4 Rep. 53. expresly and 1 2 Phil. Mar. Dyer agreeth And the whole Court Crooke only absent without any argument were clear That it should binde the Feoffee for all who claim under the Estople shall be bound thereby vid. Edriches case 13 H. 7. 100 Serjeant Iermayn came into the Court and shewed cause why a Prohibition should not be granted in the case of Skinner before who Libelled for Tythes of Coppice rooted up He agreed that for timber-trees above the growth of twenty no Tithes should be paid and so he said was the common Law before the Statute of 45 E. 3. which was but a confirmation of the Common Law And he said That as the body of the tree is priviledged so are the branches and root also which is a proof that where the body is not priviledged there neither shall be the root â—or branches And in our Case he Libels for roots of underwoods and the underwood it self being titheable therefore the roots shall be also tithable And he said that the 〈…〉 are not parcel of the Land But Justice Barckley was against it for they are not crescentia nor renovantia as Tithes ought to be and therefore no Tithes ought to be paid for them and he said that a Prohibition hath many times been granted in the like cases But Dr. Skinner did alledge a custome for the payment of Tithes of them And upon that they were to go to trial And here it was said that Dr. Skinner had used to have some special particular benefit of the Parishioners in lieu of Tithe of Roots And thereupon Barckley said That it is a Rule where the Parishioner doth any thing which he is not compellable by the Law to do
which cometh to the benefit of the Parson there if he demand Tithes of the thing in lieu whereof this is done that a Prohibition shall be granted And there is another rule That Custom may make that titheable which of it self is not titheable And here he said to Dr. Skinner being then in Court That he had two matters to help him and if any of them be found for him that a Prohibition ought not to be awarded 101. Justice Barckley said That if a man be living at the day of Nisi prius and dieth before the day in Banck the Writ shall not abate So if a man be living the first day of the â—â—rliament and dieth before the last day yet he may be Attainted and the reason is because in the eye and judgment of Law they are but one day by relation which the Law makes 102. There were three Brothers the Eldest took Administration of the goods of the Father and after Debts and Legacies paid the younger Brothers sued the eldest in the Ecclesiastical Court to compel him to distribute the Estate And thereupon a Prohibition was prayed and denied by the Court for they having Jurisdiction of the Principal may have Jurisdiction of the Accessary 103. A. Libelled against B. in the Spiritual Court for these words Thou art a Drunkard and usest to be Drunk thrice a week And upon that 150 Caroli in Easter-Term as you may see before a Prohibition was prayed and granted And now Littleton the Kings Sollicitor came in Court and moved for a Consultation and he said that the Statute of Articuli Cleri gave power unto the Ecclesiastical Court to have conusance of those and the like words Register 49 F. N. B. 51. They may hold plea for defamation as for calling Adulterer or Usurer 13 H. 7. Kellaway 27 H. 8. 14. And he cited many Judgments in the like cases where Prohibitions had not been granted and amongst others this Case Mich. 20 Iac. inter Lewis Whitton Libel in the Ecclesiastical Court for calling him Pander and no prohibition granted And the like Case was for calling another Pimp and no Prohibition granted Justice Iones That a Prohibition should be granted for they have conusance of defamation for any thing which is meerly Spiritual or which doth concern it where they have conusance of the principal else not as in Heresie Adultery and the like but in this Case they have not Conusance of the principal True it is that it is peccatum But if they should punish every thing which is Sin they would altogether derogate and destroy the Temporal Jurisdiction And therefore if I say that another is an Idle man or envious these are deadly Sins and yet they have not Conusance of them And he cited Coltrops Case adjudged in the Common pleas which was our very Case in point and there he said that upon solemn debate it was adjudged That a Prohibition should be awarded Bramston Chief Justice agreed Barckley contrary That a Consultation should be awarded and he said in many Cases although they have Jurisdiction of the principal yet they shall not have Conusance as in the Case of 22 E. 4. tit ' Consultation But he said that the Offence of Drunkenness is mixt and is an offence against the Spiritual and Common Law also and if it be mixt both may hold plea and Adultery and Murder are the common effects of Drunkenness which are offences against both Laws and therefore he shall be punished by both But yet Barckley yielded to the Judgment cited by Iones And therefore the whole Court Crooke being absent was That a prohibition should be awarded 104. Rolls moved this Case The Parishioners of a certain Parish in Devonshire did alledge a Custom to chuse the two Churchwardens of the Parish and they did so the Parson chose another and the Archdeacon swore one of the Church-wardens chosen by the Parish and refused to swear the other but would have sworn him who was chosen by the Parson And because they did refuse him they were Excommunicate Rolls prayed a Mandat to the Archdeacon to compel him to swear the other chosen by the Parish and a Prohibition also by reason of the Excommunication And he cited a preeedent for it which was the case of Sutton-Valence in Kent And the whole Court Crooke being absent inclined to grant them for they said they conceived no difference betwixt London and the Country as to that purpose for as in London they are a Corporation and may take Land for the benefit of the Church So throughout England they are a Corporation and capable to take and purchase Goods for the benefit of the Church And therefore they did conceive there was no difference See the case before the case of the Parish of Saint Ethelborough London 105. Keeling moved to quash an Indictment of Rescous because it is shewed that the Rescous was at W. and doth not shew that W. was within this County and if it was not within the County then it was an Escape and no Rescous And we cannot aver in this case that it was out of the County Farther it was not shewed where the Rescous was so that upon the matter it is no Arrest nor was the Indictment vi armis as it ought to be As to the first the Court strongly inclined that they might well intend it to be within the County because the Indictment says in Com. meo apud W. tent But for the other Exceptions the Indictment was quashed 106. In Trespass of Assault and Battery and Wounding the Defendant pleaded Not Guilty as to the Wounding and pleaded special matter of justification as to the Assault and Battery and found for the Plaintiff and it was moved in arrest of Judgment That the plea was repugnant for Assault and Battery doth imply Wounding and therefore it is repugnant for him to justifie it for it is a confession of wounding But Justice Crooke and Justice Barckley the others being absent were clear that the plea was good for so is the common form of pleading and farther he might be guilty of the Battery and not of the wounding for Crooke said Wounding implied Assault and Battery but not è contra Brookes against Baynton 107. IN a Writ of Error to reverse a Judgment given iâ— the Court of Common pleas in Trespass for assault battery and wounding it was assigned for Error by Maynard That there was variance betwixt the Original and the Declaration for the Original was only of Battery and Wounding of himself and he declared of Battery and wounding of him and his horse also for he said that quendam equum upon which the Plaintiff equitavit percussit its quod cecidit c. and that was not helped by the Statute But Rolls contrary and here is no variance for the alledging of striking of the horse was only inducement to alledge the Battery of himself for he doth not bring the Action for the beating of his horse for it was not alledged
breach in non faciendo and saith that he is ready to do the thing which he promised but that the other refused to accept of it Notwithstanding the breach is well laid and the Action well lieth for it was idle and more than the Plaintiff was compelled to do to shew that paratus est to do the thing which he promised So that if there were a breach upon the part of the Defendant it is sufficient and if there was a breach on the Plaintiffs part the Defendant ought to bring his Action for it And the difference was taken by Bramston Where the promise is conditional and where absolute as in our case And agreeing with this difference it was said at the Bar and Bench That it was adjudged 115. Hutton moved to quash certain Presentments because they were taken in a Hundred-Court which is not the Kings Court and therefore coram non Iudice It was said by Justice Iones That a Hundred may have a Leet appendant to it and then they were lawfully taken Barckley and the whole Court answered because it doth not appear to the Court whether there was so or not that the Presentments were void 116. Concerning damage clear It was agreed that it was hard that the Plaintiff should be stopt of his Judgment until he had paid his damages clear For perhaps if the Defendant be insolvant the Plaintiff should pay more for damages clear than he should ever get And therefore the Court was resolved to amend it This damage clear is twelve pence in the pound of the damages given to the party in this Court and two shillings in the Common pleas See the Register where is a Writ for damage clear Harris against Garret 117. IT was agreed by the whole Court that it is no good plea to say That such an one was bound in a Recognisance and not to say per scriptum obligat ' and to conclude that it was secundum formam Statuti doth not help it But in a Verdict it was agreed to be good And according to this difference it was said by the Court That it was adjudged in Goldsmiths case and Fulwoods case 118. It was agreed by the Court that upon a Certiorari to remove an Indictment out of an Inferiour Court that the Defendant shall be bounden in a Recognisance to prosecute with effect viz. to Traverse the Indictment or to quash it for some defect And if he doth not appear an Attachment shall issue out against him Iustice Crooks Case 119. IT was agreed by the Court That although a Bill be preferred in the Starchamber against a Judge for Corruption or any other for any great misdemeanour yet if the Plaintiff will tell the effect of his Bill in a Tavern or any other open place and by that means scandalize the Defendant that the same is punishable in another Court notwithstanding the suit dependant in the Starchamber And so Iones said that it was adjudged in a Bill in the Starchamber against Justice Crooke which was abated because it was brought against him as Sir George Crooke only without addition of his Office and Dignity of Judge Trinit 16º Car ' in the Common Pleas. 120. AN Apothecary brought an Action upon the Case upon a promise for divers Wares and Medicines of such a value and shewed them in certain The Defendant pleaded in Bar that he had paid to the Plaintiff tot tantas denarior ' summas as these Medicines were worth and doth not shew any sum certain And the plea was holden to be no good plea wherefore Judgment was given for the Plaintiff 121. A Contract was made betwixt A. and B. Mercers That A. should sell to B. all his Mercery Wares and take his Shop of him In consideration of which A. promised that he would not set up his Trade in the same Town And adjudged a good Assumpsit in the Kings Bench as Littleton Chief Justice said But if one be bound that he will not use his Trade it is no good Bond. 122. Rolls moved this Case A Writ of Error was brought upon a Judgment given in Yarmouth and the Case was thus A. and B. were bound to stand to the Arbitrament of I. S. concerning a matter which did arise on the part of the wise of B. before coverture I. S. awarded That A. should pay to B. and his wife ten pounds at a place out of the Jurisdiction And thereupon upon an Action brought upon the Bond a Breach was assigned for not payment of the mony at the place And here it was objected That it was Error because it was there assigned for Breach the not payment of the mony at a place out of Jurisdiction and for that cause the Judgment was not well given Secondly because that the Award was That payment should be made to B. and his wiâ—â— which was out of the Submission But notwithstanding Judgment was affirmed by the whole Court. For as to the 〈◊〉 issue could not be taken upon payment or not payment oâ— of the Jurisdiction because it was not Traversable As 〈◊〉 the second the Controversie did arise by reason of the wiâ—e and therefore the Award was within the Submission beiâ—â— made that the payment should be to both 123. It was said by the Court that it was one Kellway Case adjudged in this Court That a Promise made to an Atturny of this Court for Solliciting of a Cause in Chanceâ—â— was good and that it was a good consideration upon whiâ—â— the Atturny might ground his Assumpsit For it was resâ—â—ved That it was a lawful thing for an Atturny to Sollicite 124. The Court would not give way for Amendments Inferiour Courts 125. By Iones and Barckley Justices If there be an insufficient Bar and a good Replication after a Verdict theâ—â— shall be a Repleading Contrary where there is no Verdict Smithson against Simpson 126. A. And B. were bound to stand to and observe suâ—â— Article Agreement Order or Decree as thâ— Kings Council of the Court of Request should make A brought an Action upon the Bond against B. and pleaded that the Kings Councel of the Court of Request made such Order and Decree and that the Defendant did not observe it The Defendant pleaded That the King and his Council did not make the Decree and adjudged by the Court that the Plea was not good 127. Sir Matthew Minkes was Indicted of Manslaughter and found Guilty And it was moved by Holâ—orne of Counsel with Sir Matthew that the Iudictment was insufficient because there was dans c. without adtunc ibid. according to Presidents as also because it was plagam sen contusionem which is incertain as also that the party killed languebat à pred' 15 die usque decimam sextam And he said That there was no time between those two days but it ought to have been That he languished from such an hour till such an hour and that he said were the ancient Presidents And he said That an Indictment that A.
killed B. inter horam decimam undecimam was adjudged to be naught And he took many exceptions all which were disallowed by the Court. For which cause Sir Matthew prayed his Clergy and had it Pasch. 17º Car. in the Common Pleas. Weeden against Harden 128. CUstome to pay Tithes in kinde for Sheep if they continue in the Parish all the year but if they be sold before shearing-time but an half-penny for every one so sold. And custome in the same Parish also to pay no Tithes of Loppings or Wood for fire or Hedges c. The first is an unreasonable custom for by such means the Parson shall be defeated of his Tithes But the last custom is good by the whole Court Sir Edward Powells Case 119. THe Lady Powell sued Sir Edward Powell her husband in the High Commission Court for Alimony Whereupon a Prohibition was prayed in this Court and granted Serjeant Clark who argued for the Prohibition The Spiritual Court cannot meddle with any thing which is not redressable by them they may compel a man tractare uxoreâ— or Divorce them but not grant Alimony which doth appertain to the Judges of the Common Law 7 8 H. 3. there is a Writ directed to the Sheriff to set out reasonable Estoverâ— for the Alimony of the wife President since the Statute of 1 Eliz. where Prohibitions have been granted in this Case viz. Sir William Chenyes Case Mich ' 8 Iac. in Comm ' Banâ—â— who committed Adultery and was separated and the wiâ—e sued for Alimony and a Prohibition granted P. 8 Iac. A Prohibition granted And by the Statute of 1 Eliz. they have not power to hold Plea of Alimony The words of the Statute are Reform Redress c. And it is not apt to say that Alimony shall be Reformed or Redressed And besides Alimony is a Temporal thing and chargeth a mans Inheritance and therefore they shall not intermeddle with it Serjeant Rolls contrary She may sue for Alimony in the Ecclesiastical Court but if they proceed to Fine or Imprisonment then a Prohibition lieth They have power of Separation which is the principal and therefore of Alimony which is Incident And the High Commission have the same power given to them by the Statute of 1 Eliz. as the Spiritual Court hath and therefore they may meddle with Alimony And where it was before objected The great inconvenience to the party by the citing him out of his Diocess for by that he should lose the advantage of his Appeal Rolls said It was good for any within the Province and that is the Court of the Province Banks Chief Justice Although that there be Presidents that the High Commission have hoâ—den Plea of Alimony and granted the same yet it was not Law And although though that Alimony be expressed in their Commission that doth not make it Law if it be not within the Statute As to the citing out of the Diocess he conceived the Commission should be useless if they might not do it and therefore he granted a Prohibition Crawly Reeve and Foster Justices agreed But they doubted whether the citing out of the Diocess were good or not for the great prejudice which might ensue to the party in losing his Appeal And in answer to the Objection of Rolls the Chief Justice said That the Ecclesiastical Court had not Jurisdiction of Alimony but if they had yet all the Jurisdiction of the Spiritual Court is not given to the High Commission by the Statute of 1 Eliz. And they all agreed That they might as well charge my Land with a Rent-charge as grant Alimony out of it and a Prohibition was granted 130. No Sequestration can be granted by a Court of Equity until the Proces of contempt are run out And by Reeve and Foster Justices The granting of Sequestration of things â—â—llateral as of other Lands or Goods is utterly illegal 131. Whereas upon Suggestion of a Modus decimandi a Prohibition was granted now a Consultation was prayed as to Offerings and granted because the Modus c. doth not go to the personalty 132. Upon a Jury retorned a stranger who was not one of the Jury caused himself to be sworn in the name of one who was of the Jury And he against whom the Verdict passed moved the Court for a new Trial upon that matter But the Court would not give way to it because it appeareth to them that he is sworn upon Record But all the Court agreed that he might be Indicted for that Misdemeanour and by Reeve and Foster Justices the parties may have an Action upon the Case against him 133. It was taken for a Rule by the Court That no Amendment should be after a Verdict without a consent 134. Trover and Conversion against husband and wife and declared that they did convert ad usum corum The Jury found the wise not guilty And by the Court this naughty Plea is made good by the Verdict Sir Richard Greenfields Case in the Kings Bench. 135. THou innuendo Captain Greenfield hast received mony of the King to buy new Saddles and hast coâ—sened the King and bought old Saddles for the Troopers Tâ—ver It is not actionable 8 Car. The Mayor of Tivertoâ— case One said of him That the Mayer had cousened all hâ—â— Brethren c. not actionable 9 Iac. in the Kings Bench Thaâ— the Overseers of the Poor had cousened the poor of their Bread not actionable 26 Eliz. in the Kings Bench Kerby and Wallers case Thou art a false Knave and hast cousened my twâ— Kinsmen not actionable K. is a cousening Knave not actionable 18 Eliz. in the Kings Bench. Serjeant Fenner hath cousened me and all my Kindred is not actionable Words are actionable either in respect of themselves or in relation to the person of whom they are spoken where Liberty is infringed the Estate impaired or Credit defamed there they aâ— actionable Mich. 29 H. 8. Rot. 11. Villain is not actionable Morgan and Philips case That he is a Scot actionable because he is an Alien born Hill 1. Car. in Com. Ban. Siâ— Miles Fleetwoods case Mr. Receiver hath cousened the King actionable in respect of his Office of Receivership And seâ— it was afterwards adjudged upon Error brought in the Kings Bench. If these words had been spoken of the Kings Saddler they had been actionable for thereby he might lose his Office but there is no such prejudice in our case and he is of another Imployment and is but for a time only But by Heath Justice and Bramston Chief Justice the words are actionable for it is not material what imployment he hath under the King if he may lose his imployment or trust thereby And it is not material whether the imployment be for life or years c. 136. A Lawyer who was of Counsel may be examined upon Oath as a Witness to the matter of Agreement not to the validity of an assurance or to matter of Counsel And in examining of a Witness Counsel
cannot question the whole life of the Witness as that he is a Whoremaster c. But if he hath done such a notorious fact which is a just exception against him then they may except against him That was Onbies case of Grays-Inn and by all the Judges it was agreed as before And by Reeve Justice If a Counsellor say to his Client that such a Contract is Simony and he saith he will make it Simony or not Simony And thereupon the Counsellor that a Simoniacal Contract it is no offence in the Counsellor Pasch. 17º Car. in the Kings Bench. 137. PRescription to have Common for all his cattle Commonable is not good for thereby he may put in as many beasts as he will But a Prescription to have Common for his cattle commonable levant and couchant is a good Prescription And it was said that that was Sayes case of the County of Lincoln adjudged in this Court 138. In Tompson and Hollingsworths case it was agreed That a Court of Equity cannot meddle with a cause after it hath received a lawful Trial and Judgment at the Common Law although that the Judgment be surreptitious 139. The Statute of 31 Eliz. enacts That if a man be presented admitted instituted and inducted upon a Simoniacal contract that they shall be utterly void c. Whether the Church shall be void without deprivation or sentence declaratory in the Spiritual Court or not was the Question in a Quare impedit brought by Sir Iohn Rowse against Ezechiel Wright Rolls and Bacon Serjeants That it is absolutely void without sentence declaratory c. Where the Statute makes a thing void it shall be void according to the words of the Statute unless there shall be inconvenience or prejudice to him for whom the Statute was made The Statute of 8 H. 6. cap. 10. That an utlagary shall be void if process do not issue to the place where the party is dwelling yet it is not void before Errour brought The Statutes of 1 Eliz. 31 Eliz. That all Leases by a Bishop not warranted c. shall be void They are not void but voidable only which agreeth with the reason of the Rule given before The Statute of 18 H. 6. 6. That if the King grant Lands by Patent not found in the Office that the Patent shall be void it is void presently M. 30 H 6. Grants 92. and Stamford 61. although they be matter of Record The Statute of 31 Eliz. is expresly that it shall be void frustrate and of none effect therefore by the Rule before given it shall be absolutely void M. 10 Iac. Stamford and Dr. Hutchinsons case Resolved that an Incumbent presented by Simony cannot sue for Tythes against his Parishioners a villain purchaseth an Advowson the Church becomes void the Lord presents by Simony and the Clark is admitted Institute and Inducted yet it is void and doth not gain the Advowson to the Lord. Institut 120 a. If an Incumbent take a second Benefice the first is meerly void 4 Rep. Hollands Case The difference is where it is of the value of 8 l. where not And there is difference betwixt avoidance by Statute and avoidance by the Ecclesiastical Law Avoydance is a thing of which the Common Law takes notice and shall be tried by Jury if it be avoydance in fact if an avoydance in Law by the Judges If a Parson doth not read the Articles according to the Statute of 13 Eliz. it is ipso facto void without sentence 6 Rep. 29. Greens case 30 Eliz. Eatons case Instit. 120. a. express in the point And the difference is that before the Statute of 31 Eliz. it was only voidable by deprivation but now by the Statute it is absolutely void Mich. 9 Iac. Cobbert and Hitchins case Mich. 42 Eliz. Baker and Rogers case 2 Iac. Goodwins case in Com' Banc. in all which cases it was not resolved but passed tacitely and without denial That a Presentation by Simony was void without declaratory Sentence It was objected that it is clear by the Ecclesiastical Law it is not void without a Sentence declaratory It is answered Of things of which our Law and the Ecclesiastical Law take conusance we are only to relie upon our Law and not upon the Ecclesiastical Law especially when the Ecclesiastical is repugnant or contrary to our Law as in this Case it is The Judges of the Common Law shall judge the Church void or not void Fitz. Annuity 45. 12 13 Iac. in the Kings Bench Hitchin and Glovers case in an Ejectione firme In this case it was resolved That if I. S. marry two wives the Judges of the Common Law may take conusance of it yet marriage is meerly an Ecclesiastical thing It was objected That the first branch of the Statute of 31 Eliz. that it shall be void c. Secondly that it shall be void as if he were naturally dead c. So that the adding of these words as if he were naturally dead in the later clause prove that it was the meaning of this Statute that it should not be void in the first case without Sentence declaratory It is answered There is a difference in words not in substance or the intent qui haeret in litera c. Iermin and Taylor Serjeants That it is not void before Sentence c. First Admission Institution and Induction are Judicial acts and done by the Bishop and therefore shall not be void before an act done to make them void which is Sentence declaratory or deprivation Secondly the Statute of 31 Eliz. saith it shall be void not that it is c. Thirdly the Ecclesiastical Lâ—w is That no Presentation c. shall be void before Sentence c. Fourthly the Ecclesiastical Law is Judge of it c. Plenarty shall be tried by the Bishop not by Jury 6 Rep. 49. a. Refusal shall not be tried by Jury but Death shall 5 Rep. 57. 9 H. 7. Profession shall be tried by the Spiritual Court 4 Rep. 71. b 4. vid. 4. Rep. 29. a. the credit which our Law gives to the Ecclesiastical Law It is there put That one was divorced without his knowledge which was said to be a strange case Fifthly the Presentee by Simony doth remain Incumbent de facto although not de jure and that by the words of the Statute which makes the Church void as to the King only not as to the Incumbent without declaratory Sentence and the Church is no more capable to have two Incumbents than a woman to have two husbands There is a difference where the Incumbent presented by Simony is alive the same is not void in facto without sentence declaratory but if he be dead there itis And this difference stands upon the two clauses in the Statute of 31 Eliz. And the Statute of 17 Car. of Election of Burgesses taken notice of Avoidance de facto de jure Trinit 16 Car. in Com. Banc. Ogelbics case One was Presented within the age oâ— twenty
three years it did not give Lapse without notice for it was avoidance in Law not in Fact vid. Stat. 9. Eliz. for Excommunicating a striker in the Churchyard c. This Statute of 31 Eliz. differs from the Statute of 1 Eliz. for not reading of the Articles Those Statutes say that it shall be void ipso facto but not so in our Case And the Cases cited for Authority in the point are betwixt party and party and not in case of a third person as our case is 18 Eliz. Dyer A meer Lay-man is presented it is not ipso facto void without Sentence So it is of one within the age of nine years for he cannot govern others Trinit 4 Iac. in the Common Pleas Cooke and Stranges case The King Presents and before Institution Presents another it is good but in the interim the King ought to repeal his first presentment and that is a revocation vid. Dyer 292. a. where it is a Quere Whether he need not to alledge that a Repeal was brought and shewed c. The King grants and afterwards makes a second Grant of the same thing There are many Examples in Brooke and Fitzherbert that it is not good without a Repeal But this Case viz. of 6 H. 8 9. extends only to â—and and not to an Advowson c. But it was resolved by all the Judges That the Church was void by the Statute of 31 Eliz. to all purposes and to all persons as to the Pâ—râ—shioners as to a stranger who brings Trespass or Ejectione firme as to the King as to him who Presents and that without deprivation or Sentence declaratory in the Ecclesiastical Court And accordingly Judgment was given Hichcocke against Hichcocke 140. THe Case was this The Vicar did contract with a Parishioner to pay so much for encrease of Tithes and died and his Successor fued in the Ecclesiastical court for them And a Prohibition was prayed and granted by all the Justices And here it was said That a real Contract made by the Parson and confirmed by the Ordinary could not be altered in the Spiritual Court And by Serjeant Mallet a real accord though it be between Spiritual Persons and of Spiritual things yet it is only questionable at the Common Law 20 E. 3. Annuity 32. 38 E. 3. 6. 8 19. And by Serjeant Clarke Real composition by a Parson who claims not any encrease of the endowment to the Parsonage shall not binde his Successor The words of the Contract here were inter se convenerunt and that is no real Composition although that the Bishop call it so realis Compositio and his calling of it so doth not alter the nature of it but it remains a Personal agreement and so shall not bind the Successor although it be confirmed by the Bishop A Parson cannot do any thing to the damage of his Successor The Vicar took Oath That they were not for encrease of Tithes the Ordinary being a stranger to the Composition is not made a party by his Confirmation nor is the Composition altered by it Littleton Sect. 335. The Lord confirms the Land to the Tenant the same doth not alter the Tenure nor prejudice the Lord. The power of the Bishop augendi minuendi the Portion of the Vicar is by the Common Law for general Cure of Souls The Parson and Vicar have privity betwixt them 40 E. 3. 28. 31 H. 6. 14 16 Ass Annuity 32. 2 Rep. 44. Plow Com. 496. 21. E. 3. 5. 10 H. 7. 18. Dyer 43 84. 141. A Prohibition was prayed to the Court of Requests and the Case was thus A Feme sole possessed of a Term conveyed the same over in Trust for her and Covenanted with I. S. whom she did intend to marry that he should not meddle with it and for that purpose took a Bond of him They intermarried he may intermeddle with it but he shall not have it and by Equity he cannot assigne it by reason of the Covenant before marriage A Feme sole conveys a Term in Trust and then marrieth the husband assignes it the Trust not the Estate shall pass by Reeve and Foster But by all the Judges a Prohibition shall not be for it is matter only for Equity But if they direct Demisit or non demisit Assignavit or non c. then they exceed their Jurisdiction and a Prohibition heth 142. A woman brought a Writ of Dower and recovered and upon a suggestion made upon the Roll that the husband died seised a Writ of enquiry of Damages issued forth And before the Retorn thereof a Writ of Error was brought and it was by Steward against Steward and two things were moved 1. Whether Error would lie before the Retorn of the Writ of Enquiry or not 2. Whether the Writ of Error be a Supersedeas to the Writ of Enquiry And by Taylor and Rolls Serjeants That Error doth not lie before Judgment upon the Writ of Enquiry And this case they compared to Medcalfes case 11 Rep. 38. But by Serjeant Bacon it is well brought Dower is by the Common Law and damages are given by the Statute of Merton and that is the main Judgment 5. Rep. 58 59. And the very case is put in Medcalfes case 11 Rep and distinguished from other cases And it was argued by another Serjeant That the Error was well brought because that in Dower the Judgment doth determine the Original and therefore at the Common Law Error will well lie And the damages are given by the Statute of Merton but that doth not alter the Judgment or the nature of the Action It differs from the case of Judgment in an Ejectione firme and Accompt for after such Judgments Noâ—suit may be but not so in the case of Dower in which Judgment is quod recuperet c. A Precipe is brought against two one pleads to issue the other an insufficient Plea upon which Judgment is given No Error lieth before Judgment be given for the other for the whole matter is not determined But in several Precipes against two it is otherwise 34. H. 6. 18. Fitz. Scire facias 11 Rep. 39. a. b. In case of Ejectione firme it is a Quere if Error may be brought c. And Bankes Chief Justice said That it had been adjudged both ways but that differs from our case for in that damages are given by the Common Law Judgment is in a Quare impedit Error may be brought before c. which is like to our case for damages in both cases are given by Statute And where it was objected That thereby damages should be lost He answered No. For the Kings Bench may award a Writ of Enquiry of Damages And the 11 Rep. is express Authority 2. The Error is no Supersedeas c. 11 Iac. in Tincke and Brownes case it was ruled and resolved That a Writ of Error brought was not a Supersedeas to the Writ of Enquiry of damages But it was resolved by all the Judges that the Error
Statute speaks generally of Divorce and it is a penal Law and Heath said That by the Law of Holy Church the parties divorced causa adulterii might marry but parsrea not without licence and he cited the case of Anne Porter of late in the Kings Bench who was divorced causa saevitiae and afterwards married one Rootes and upon an Indictment upon this Statute it was doubted and debated whether it were within the Proviso of this Statute or not but resolved it was not because only a Divorce à cohabitatione and a temporal separation until the anger past but the divorce here is à vinculo matrimonii 174. One was chosen to be Clerk of a Parish-Church and was put in and continued Clerk three or four years but was never sworn and now a new Parson put him out and swore another in his place Keeling and Rolls Serjeant prayed a Writ of Restitution and compared the same to the Case of disfranchisement where Restitution lieth But Bramston and Heath Justices the other absent would not grant it And the Chief Justice said that the Doctor had not power to oust him for he said that it is a temporal Office with which the Parson had not to do and further they conceived that the Clerk hath remedy at Law wherefore they would not award a Writ of Restitution but they said that if the Clerk was never sworn they would award a Mandat to swear him to which the Counsel assented Trin. 17º Car. in the Common Pleas. 175. WHite exhibited a Bill in the Court of Request against Grubbe for Money due upon account upon which Mallet moved for a Prohibition because it 's no other than in the nature of a debt upon account of which a Court of Equity hath no Jurisdiction for by such means the King should lose his Fine the Defendant should be put to another Answer upon his Oath and which is above all they would refer the merits of the Cause to others and according to their Certificates make a Decree so that by this means they would create Courts of Equity without number Serjeant Clark contrary against the Prohibition for he said the Defendant had exhibited a Cross Bill and so had affirmed the Jurisdiction and he ought to have demurred to the Jurisdiction and he said that where parties assent to a Decree there the Kings Bench will not grant a Prohibition For he said that by the same reason that a man may chuse Arbitrators he may elect his Judges and further he said that the suit was for moneys due for divers things delivered by the Plaintiff being a Chandler in a Country-town which he ought to prove to be delivered and he had no proof but Crawley and Reeve Justices the others being absent granted a Prohibition because it is no other but an Action of debt upon account and Crawley said that the particulars are out of doors by the account in debt brought it is sufficient to say that the Defendant was indebted to him for divers Commodities And they accounted and upon the account the defendant was found to be in debt to him such a sum c. And note it was said in the Bill that the Plaintiff had no Witnesses to prove the delivery of the things aforesaid and notwithstanding they granted a Prohibition for they said there is no remedy in the Court of Requests if you have no proof But is was said that the Defendant in the Court of Requests had confessed the delivery of the things in his answer there For which cause the Judges said that this confession there might be given in evidence against him at Law 176. Three covenaâ—â—ed joyntly and severally with two severally and afterwards one of the Covenanters married with one of the Covenantees by Serjeant Mallet the Covenant is gone besides a man cannot covenant with two severally as a man cannot bind himself to two severally Further they joyned in in Action where the covenant is several that which they should not do Crawley and Reeve Justices did conceive that a man might covenant with two severally because that it differs from the case of a Bond for a covenant sounds only in damages but they conceived clearly that they ought not to joyn in action and it was adjourned 177. It was said in a Case at the Bar by Sergeant Godbold that it was a Rule in the Kings Bench That although an Atturney be dead yet the Warrant of Atturney might be siled which was not denied by the Court here Lawson and Cookes Case 178. IN a second deliverance which was entred Hill 16 Car. Rot. 1530 the Case was thus A man had a Rent-charge in Fee and for Arrerages thereof did distrain then granted the same over And the Question here was Whether he ought to avow or justifie and the doubt rested upon this viz. Whether the arrerages be gone by the grant of the rent notwithstanding the distress before taken or not By Serjeant Caâ—lis the arrerages are lost for without question he cannot have debt And he cannot avow for that depends upon the inheritance which is gone by the grant 4 Rep. 5. Ognels case 19 H. 6. 42. b. Acc. And here he hath avowed and not justified as â—e ought for to excuse himself of damages and therefore it is naught But he took this difference betwixt the Act of God and the Act of the party as here it is where it is by the Act of God as where there is grantee for anothers life of â—â—ent and cestuy qui vie dieth or where a man hath rent 〈◊〉 the right of his wife and she dieth in those cases the arresages shall not be lost But where a man grants over the rent as in our Case which is his own Act there the arrerages are lost Institut 285. A man intitled to waste accepts of a surrender it destroys his Action otherwise where it is by act of Law So if a man bring debt for twenty pounds and afterwards accepts ten pounds that shall abate the Writ because that it is his own Act and this difference may be collected out of the book of 19 H. 6. Besides until avowry it doth not appear upon Record for what the distress is taken whether for rent or for damage feasant Serjeant Godbold contrary that he ought to avow because the rent in this case is not gone and he said there was a difference between this Case and Ognells case for there was no distress taken before the rent granted as here is and there the privity is gone and the distress follows the rent but here we have a pledge for the rent which is the distress and return of the cattle if it be found for us 19 H. 6. 41. a. Where the distress was lawfully taken at the beginning there we may avow and it is good to intitle us to a retorn 22 E. 4. 36. Where there is a duty at the time of the distress there he shall always avow and not justifie and at least
it turns the Avowry into a Justification in our Case so as you shall not make us Trespassers but that we may well justifie to save our damages Crawley Justice that the Avowry is turned into a Justification and that there is sufficient substance in the Plea to answer the unjust taking the distress Justice Reeve that it is good by way of Avowry for the distress being lawfully taken at the time it shall not take away his avwry therefore he shall have Retorn for that was as a gage for the rent and therefore differs from the other Cases Justice Foster put this Case at the Common Law Distress was taken and before avowry Tenant for life died Whether he shall avow or justifie But all agreed that at the least the Avowry is turned into a Justification but it was adjourned 179. The Court demanded of the Protonotharies Whether a man might make a new assignment to a special Bar and they said no but to a common Bar only viz. that the Trespass if any were was in Bl. Acre there ought to be a new assignment by the Plaintiff but Reeve and Crawley Justices the other being absent held clearly that the Plaintiff might make a new assignment to a special Bar and further they said that the Plaintiff if he would might trise the Desendant upon his Plea but we will not suffer him to do so because that his Plea is meerly to make the Plaintiff to shew the place certain in his Replication in which the Trespass was done 180. The Disseisee levieth a Fine by Reeve and Crawley Justices it shall not give right to the Disseisor because that this Fine shall enure only by way of Estoppel and Estoppels bind only privies to them and not a stranger and therefore the Disseisor here shall not take benefit of it and therefore they did conceive the 2 Rep. 56. a. to be no Law Vid. 3 Rep. 90. a 6 Rep. 70. a. 181. Serjeant Callis prayed a Prohibition to the Court of Requests for cause of priority of Suit but by Foster and Crawley Justices the other being absent priority of Suit was nothing the Bill being exhibited there before Judgment given in this Court 182. The Case of White and Grubbe before being moved again it was said in this case by Reeve and Foster Justices that where a man is indebted unto another for divers wares and the debt is superannuated according to the Statute of 21 Iac. cap. 16. and afterwards they account together and the party found to be indebted unto the other party in so much mony for such wares in that Case although that the party were without remedy before yet now he may have debt upon accompt because that now he is not bound to shew the particulars but it is sufficient to say that the Defendant was indebted to the Plaintiff upon accompt pro diversis mercimoniis c. 183. A Prohibition was prayed unto the Council of the Marches of Wales and the Case was thus A man being posfessed of certain goods devised them by his will unto his wife for her life and after her decease to I. S. and died I. S. in the life of the wife did commence Suit in the Court of Equity there to secure his Interest in Remainder and thereupon this Prohibition was prayed And the Justices viz. Banks Chief Justice Crawley Foster Reeve being absent upon consideration of the point before them did grant a Prohibition and the reason was because the devise in the remainder of goods was void and therefore no remedy in equity for Aequitas sequitu◠legem And the Chief Justice took the difference as is in 37 H. 6. 30. Br. Devise 13. and Com. Welkden Elkingtons Case betwixt the devise of the use and occupation of goods and the devise of goods themselves For where the goods themselves are devised there can be no Remainder over otherwise where the use or occupation only is devised It is true that heir looms shall descend but that is by custome and continuance of them and also it is true that the devise of the use and occupation of Land is a devise of the land it self but not so in case of goods for one may have the occupation of the goods and another the Interest and so it is where a man pawns goods and the like For which cause the Court all agreed that a Prohibition should be awarded Trin. 17º Car. in the Kings Bench. 184. A Man was sued in London according to the custom there for calling a woman Whore upon which a Habeas corpus was brought in this Court and notwithstanding Oxfords case in the 4 Rep. 18. a. which is against it a Procedendo was granted and it was said by Serjeant Pheasant who was for the Procedendo and so agreed by Bramston Chief Justice and Justice Malle◠That of late times there have been many Procedendo's granted in the like case in this Court 185. An Orphan of London did exhibite a Bill in the Court of Requests against another for discovery of part of his estate And Serjeant Pheasant of Counsel with the Defendant came into this Court and Prayed a Prohibition upon the custom of London That Orphans ought to sue in the Court of Orphans in London but the whole Court which were then present viz. Chief Justice Bramston Heath and Mallet Justices were against it because that although the Orphan had the Priviledge to sue there yet if he conceive it more secure and better for him to sue in the Court of Requests then he may waive his priviledge of suing in the Court of Orphans and sue in the Court of Requests for quilibet potest renunciare juri pro se intraducto c. and Heath said that he always conceived the Law against the Case of Orphans 5 Rep. 73. b. But which is stronger in this Case the Court of Orphans did consent to the Suit in the Court of Requests and therefore there is no reason that the Defendant should compel the Infant to sue there wherefore they would not grant a Prohibition but gave day until Mich. Term to the Defendants Counsel to speak further to the matter if they could Trin. 17º Car. in the Common Pleas. Dewel against Mason 186. IN an Action upon the Case upon an Award the case was this The Award was that the Defendant should pay to the Plaintiff eight pound or three pound and Costs of suit in an Action of Trespass betwixt the Plaintiff and Defendant as appears by a note under the Plaintiffs Attorneys hand ad libitum defendentis c. And the Plaintiff doth not aver that a note was delivered by the Attorney of the Plaintiff to the Defendant and the Defendant pleaded Non assumpsit and it was found for the Plaintiff and it was moved in arrest of Judgment for the reason given before Rolls contrary that there needs no averment and he said it was Wilmots case adjudged in this Court Hill 15 Car. where the Case was that the Defendant should
pay to the Plaintiff such costs as shall be delivered by note of the Attorneys hand and it was here adjudged that there needs no averment because it was to be done by a stranger but otherwise it had been if it had been to be done by the Plaintiff himself and by the Justices the only question here is Whether the Attorney shall be taken for a stranger or not Justice Foster that the Defendant ought first to make his election which is to pay either the eight pound which is certain or the costs which shall be delivered by a note of the Attorney Besides here the Attorney is a stranger because the suit is ended and to the Defendant he is totally a stranger and therefore he ought to seek him to have the note delivered to him But notwithstanding he did conceive that as this Case is Judgment ought to be stayed because the Plaintiff hath not well entitled himself to the Action because he hath not averred that there were costs expended in such a suit and in the Case ciâ—ed by Rolls the Plaintiff did aver the costs incertain Justice Crawley it is without question the Defendant hath Election in this case but as this Case is he ought to have notice and if the Case had been such that the Plaintiff himself had been to have delivered the note then without question there ought to be notice and here the Attorney is no stranger but is a servant to the Plaintiff as every Attorney is And I conceive that if the Case had been that the Plaintiffs servant had been to deliver such a note that there notice ought to be given And for want thereof in this Case I conceive that the Judgment ought to be stayed Bankes Chief Justice I doubt upon the different Opinions of my Brethren whether Judgment ought to be stayed or not I agree that the Defendant hath Election in this Case and further I agree that where a thing is to be done by the Plaintiff or Dâ—fendant himself there notice ought to be given but otherwise in Case of a stranger and upon this difference stands our Books as 10 H. 7. and all our Books but the Question here is Whether the Attorney be a stranger or not and I conceive that it is not in the power of the Plaintiff to compel him to bring the note and is all one as a stranger and therefore the Defendant ought to seek the Attorney to deliver this unto him but the Case was adjourned because Justice Reeve was not present in Court 187. A. said to B. Thou hast killed my Brother for which B. ought an Action upon the Case and by Serjeant Whitfield it will not lie because it is not averred that the Brother of the Defendant was dead at the time and if he were not dead then it is no slander because the Plaintiff is not in danger for it 4 Rep. 16. a. Snaggs Case Aâ—â— Serjeant Evers contrary because the words imply that he is dead and besides in the Innuendo it is also shewed that he was â—ead for that is the innuendo C. c. fratrem nuper mortuum But by the whole Court the words are not actionable without averment that he was dead and the Innuendo doth not help it Hobarts Rep. p. 8. Miles and Iacobs Case acc 188. A Frenchman had his Ship taken by a Dunkirk upon the Sea and before that it was brought infra praesidia of the King of Spain it was driven by a contrary wind to Waymouth and there the Dunkirk sold the Ship and Goods to a Lord in Waymouth whereupon the Frenchman having notice of his ship and goods to be there libelled in the Admiralty pro interesse suo against the Lord the Vendee of the Ship shewing that it was taken by Piracie and not by Letters of Mart as was pretended and thereupon a Prohibition was prayed and by Foster a Prohibition ought to be granted for whether the Dunkirk took it by Letters of Mart or as a Pirate it is not material the sale being upon the Land and infra corpus comitatus and so he said it was adjudged in such a case for whether the sale were good or not Non constat Justice Crawley conceived it should be hard that the sale being void if it were taken as a Pirate or by Letters of Mart not being brought infra prâ—sidia of the King of Spain that by this means you should take away the Jurisdiction of the Admiralty but he said he did conceive it more fit for the Frenchman to have brought a Replevin which he said lieth of a Ship or Trover and Conversion and so have had the matter found specially Bankes Chief Justice conceived that there should be a Prohibition otherwise upon such pretence that it was not lawful prize and by consequence the sale void you would utterly take away the Jurisdiction of the Common Law But because there was some misdemeanor in the Vendee the Court would not award a Prohibition but awarded that the buyer should have convenient time given him by the Court of Admiralty to find out the seller to maintain his Title and in the mean time that he give good caution in the Admiralty that if it be found against him that then he restore the ship with damages But note the Court did agree Justice Reeve only absent that if a ship be taken by Piracie or if by Letters of Mart and be not brought infra praesidia of that King by whose subject it was taken that it is no lawful prize and the property not altered and therefore the sale void and that was said by the Prâ—ctoâ— of the Frenchman to be the Law of the Admiralty Rudston and Yates Case 189. RVdston brought an Action of debt upon an Obligation against Yates for not performance of an Award according to the Condition of the Bond the Defendant pleaded that the Arbitrators Non fecerunt arbitrium upon which they were at issue and found for the Plaintiff and it was now moved in arrest of Judgment by Trevor that the Defendant was an Infant and therefore that the submission was void and by consequence the Bond which did depend upon it and he conceived the submission void First because it is a Contract and an Infant cannot contract and he took a difference betwixt acts done which are ex provisione legis and acts done ex provisione of the Infant an Infant may bind himself for his diet schooling and necessary apparel for that is the provision of the Law for his maintenance but a Bond for other matters or Contracts of other nature which are of his own provision those he cannot do Secondly an Arbitrator is a Judge and if an Infant should be permitted to make an Arbitrator he should make a Judge who by the Law is not permitted to make an Attorny which were against reason Thirdly it is against the nature of a Contract which must be reciprocally binding here the Infant should not be bound and the man of full
age should be which should be a great mischief And where it is objected it may be for his benefit To that he answered that the Law will not leave that to him to judge what shall be for his benefit what not and to this purpose amongst other he cited it to be adjudged That where an Infant took a shop for his trading rendring renâ— and in debt brought for the rent the Infant pleaded his Infancie the other replied that it was for his benefit and livâ—lihood and yet it was adjudged for the Infant vid. 13 H. 4. 12. 10 H. 6. 14. Books in the point and therefore he prayed that Judgment might be stayed Bramston Heath and Mallet Justices Barckley being then impeached for High Treason by the Parliament were clear of Opinion That the submission by an Infant was void and they all agreed That if the Infant was not bound that the man of full age should not be bound so that it should be either totally good or totally void But Ward who was of Counsel with the Plaintiff said that the case was not that the infant submitted himself to the award but that a man of full age bound himself that the Infant should perform the Award which was said by the Court quite to alter the Case To that Trevor said that the case is all one for there cannot be an Award if there be not first submission and then the submission being void the Award will be void and so by consequence the Bond and to prove it he cited 10 Rep. 171. b. where it was adjudged that the non-performance of a void Award did not forfeit the Bonâ— and many other Cases to that purpose And the Court agreed That if the Condition of a Bond recite that where an Infaâ—â— hath submitted himself to an Award that the Defendant doth bind himself that the Infant shall perform it that the samâ— makes the Bond void because the submission being void allâ— void and therefore day was given to view the Record 190. A. and B. are indicted for murder B. flies and A. brings a Certiorare to remove the Indictment into the Kingâ— Bench Whether the whole Record be removed or but partâ— Keeling the younger said that all is removed and that theâ— cannot be a Transcript in this Case because he said the Writ saith Recordum processus cum omnibus ea tangentibus but the Chief Justice doubted of it and he said that the Opinion of Markham in one of our Books is against it and he said it should be a mischievous case if it should be so for so the other might be attainted here by Outlawry who knew not of it and note that Bramston Chief Justice said That the Clerk of the Assises might bring in the Indictment propriis manibus if he would without a Certiorare 190. A man was outlawed for Murder and died his Administrator brought a Writ of Error to reverse the Outlawry and it was prayed that he might appear by Atturney and by Bramston Chief Justice and Justice Mallet none other being then in Court it was granted that he might for they said that the reason wherefore the party himself was bound to appear in proper person is that he may stand rectus in Curia and that he may answer to the matter in fact which reason fails in this case and therefore the Administrator may Appear by Attorney 191. One said of Mr. Hawes these words viz. My Cozen Hawes hath spoken against the Book of Common Prayer and said it is not fit to be read in the Church upon which Hawes brought an Action upon the case and shewed how that he was cited into the Ecclesiastical Court by the Defendant and had paid several sums c. The Defendant denied the speaking of these words upon which they were at issue and it was found for the Plaintiff and now it was moved by Keeling for stay of Judgment That the words are not Actionable as to say A man hath spoken against a penal Law which doth not inflict punishment of life and member will not bear Action and the punishment which is inflicted by the Statute of 1 Eliz. cap. 2. is pecuniary only and not corporal but in default of payment of the sum that he shall be imprisoned for such a time which meerly depends upon the non-payment and is incertain And by the same reason he said to say of a man that he hath not Bowe and Arrows in his house or not a Gun or to say of a man That he hath spoken against any penal Law whatsoever would bear Action which should be unreasonable wherefore he prayed that Judgment might be stayed Brown contrary the words are actionable because that if it was true that he spoke them he subjected himself to imprisonment by the Statute of 1 Eliz. although not directly yet in default of payment so as there might be corporal damage and to prove it he cited Anne Davies Case 4 Rep. 17. a. where it is said that to say that a woman hath a Bastard will bear Action because that if it were true she was punishable by the Statute of 18 Eliz. Further he said that if the words are not Actionable yet the Action will lie for the special damage which the Plaintiff hath suffered in the Ecclesiastical Court Justice Mallet the words of themselves are not Actionable because that the corporal punishment given by the Statute doth depend upon the non-payment and is not absolute of it self but the Action will lie for the temporal damage and therefore he conceived that the Plaintiff ought to have Judgment Justice Heath that the Plaintiff ought to have Judgment for the pecuniary Mulct is a good cause of Action there being in default of payment a corporal punishment given But here is not only injuria but damnum also which are the foundations of the Action upon the Case and if the words of themselves be not Actionable yet the Action will lie for the damage that the Plaintiff here suffered by the citation in the spiritual Court Bramston Chief Justice doubted it and he conceived it hard that the words should bear Action because as he said the corporal punishment doth meerly depend upon the not payment and upon the same reason words upon every penal Law should bear Action and therefore this being a leading Case he took time to consider of it It was said To say of a man that he had received a Romish Priest was adjudged Actionable and that was agreed because it is Felony At another day the Case was moved again and Justice Mallet was of the same Opinion as before viz. That the words themselves were not actionable but for the special damage that the Action would lie and he said that one said of another That he was a Recusant for which an Action was brought in the Common Pleas and he conceived the Action would not lie Justice Heath was of the same Opinion as before that the words oâ— themselves would bear Actioâ— and
â—e conceived That if a man speak such words of another that if they were true would make him liable to a pecuniary or corporal punishment that they would bear an Action and here the Plaintiff was endamaged and therefore without question they will bear an Action Bramston Chief Justice as before also That the words are not Actionable neither of themselves nor for the damage not of themselves for no words which subject a man to a pecuniary Mulct if they were true either at the Common Law or by the Statute will bear an Action For by the same reason to say that a man hath erected a Cottage or to say that a man hath committed a Riot would bear Action 37 Eliz. in the Common Pleas. One said of another That he did assault me and took away my Purse from me and upon Not Guilty pleaded it was found for the Plaintiff and Judgment was stayed because he might take his purse from him and yet be but a Trespasser So as it appeareth that words ought to have a favourable construction to avoid multiplicity of Suits and if these words would bear an Action by the same reason words spoken against every penal Law should bear Action which against the reason given before should be a means to increase Suits And he took it for a rule If the words import scandal of themselves by which damage may accrue then the words will bear action without damage otherwise not and therefore the damage here shall not make the words Actionable which of themselves are not actionable as I conceive they are not Besides by this means the Act of a third person should prejudice me which is against reason as here the Act of the Ordinary by the Citation and damage thereupon accrued which perhaps might be ex officio only for which cause he conceived that Judgment should be stayed but because there were two Judges against one Judgment was given for the Plaintiff Mich. 17º of the King in the Common Pleas. 192. BAine brought an Action upon the Case against for these words viz. That he kept a false Bushel by which he did cheat and cosen the poor he said in his Declaration That he was a Farmor of certain lands and used to sow those lands and to sell the Corn growing on them and thereby per majorem partem used to maintain himself and his family and that those words were spoken to certain persons who used to buy of him and that by reason of those words that he had lost their custom the parties were at issue upon the words and found for the Plaintiff and it was moved by Serjeant Gotbold in arrest of Judgment that the words were not actionable because that the Plaintiff doth not alledge that he kept the false Bushel knowing the same to be a false Bushel for if he did not know it to be a false Bushel he was not punishable and by consequence no Action will lie and compared it to the case Where a man keeps a Dog that useth to worry sheep but he doth not know of it no Action lieth against him for it but yet notwithstanding Bankes chief Justice and Crawley were of Opinion that the words were Actionable for of necessity it ought to be taken that he kept the Bushel knowingly for otherwise it is no cousenage and here being special damage alledged which was the loss of his custom as he had pleaded it the maintenance of his livelihood they hold the words clearly actionable gave Judgment accordingly Note the other Judges were in Parliament 193. Doctor Brownlow brought an Action upon the case for words against 〈◊〉 spoken of him as a Physitian which words were agreed to be Actionable but yet Serjeant Gotbold conceived that although that the words were actionable that the Plaintiff had not well intitled himself to his Action because although that he said that he is in Medicinis Doctor yet because he doth not shew that he was licensâ—d by the Colledge of Physitians in London or that he was a Grâ—dâ—ate of the Universities according to the Statute of 14. H. 8. cap. 5. that therefore the action will not lie see Doctor Bâ—unchams case 8 Rep. 113. â— where he shewed the Statute aâ—orâ—said and pleaded it accordingly that he was a Graduate of the University of Cambridge wherefore he prayed that Judgment might be stayed Bankes Chief Justice and Crawley doubted whether the Act were a general Act or not for if it were a particular Act he ought to have pleaded it otherwise that they could not take notice of it but upon reading of the Statute in Court they agreed that it was a general Act wherefore they gave day to the party to maintain his Plea 194. By Bankes Chief Justice upon an Elegit there needs no Liberate otherwise upon a Statute and note the Elegit doth except Averia Corucae Dye and Olives Case 195. IN an Action of false Imprisonment the Defendant shewed that London hath a Court of Record by prescription and that the same was confirmed by Act of Parliament and that he was one of the Serjeants of the Mace of that Court and that he had a Warrant directed unto him out of that Court to arrest the Plaintiff pro quodam contemptu committed to the Court for not paying twenty shillings to K. B. and that in pursuance of the command of the Court he accordingly did arrest the Plaintiff Maynard that the justification was not good because the Defendant doth not shew what the contempt was nor in what Action so as it might appear to the Court whether they had Jurisdiction or not And if such general Plea should be tolerated every Court would usurp Jurisdiction and every Officer would justifie where the proceeding is Câ—ram non Iudice and void and thereby the Oâ—â—icer liable to false Imprisonment according to the case of the Marshalâ—ee in the 10 Rep. And here the pleading is incertain that the Jury cannot try it and he put the case of the Mayoâ— of Plymouth The Mayor hath Jurisâ—iction in Dâ—bt and Trespass is brought there which is Coram non Iudice But in this Action the parâ—y is imprisoned pro quodam contemptu shall this be a good Justification in a false imprisonment brought against the Officer certainly no. Serjeant Rolls contrary that the Plea was good because that the Defendant hath shewed that the Court was holden secundum consuetudinem and therefore it shall be intended that the contemptâ— was committed in a Case within their Jurisdiction and therefore he cited the 8 Rep. Turners Case to which Maynard replied that that doth not make it good because that issue cannot be taken upon it At another day the Judges gave their Opinions Justice Mallet That the Plea is not good because that it is too general and non constat whether within their Jurisdiction or not and where it was objected that he is a Minister of the Court and ought to obey their commands and therefore it should go hard that he
facias ought to have been of the body of the County and not of the City which was also a County of it self but it was resolved by the Judges viz. Foster Reeve and Bankes chief Justice Justice Crawley only against it that the trial was good and this resolution was grounded upon the Book of 34 H. 6. 49 50. pl. 17. there being no authority in the Law as was agreed in point to this case but the Case aforesaid And it was taken for a rule that where it doth not appear upon the Record that there is a more proper place for trial than where the trial was that there the trial is good but here is not a more proper place Further the chief Justice said that it was not possible to be tried in the body of the County because that the payment was to be in the City and he said it is true that if a man speak generally of the County of Lincoln it shall be intended of the body of the County and not the City because that the City is but derivative out of the County and further he said that the Judges are bound to take notice of a County not of a particular liberty Yet it was resolved here because the trial was in the most proper place and could not be otherwise that the Venire facias was well awarded and the trial good See the Book of 34. H. 6. Bayly against Garford 205. BAyly brought an Action of Debt upon a Bond against Garford executor of another the Defendant pleaded Non est factum of the Testator upon which a special Verdict was given viz. That the Testator was bound in that Bond with two others joyntly and severally and that afterwards the Seals of the two others were eaten with mice and râ—ts and whether now that were the Bond of the Testator or not was the Question which the Jury referred to the Court and it was now argued by Serjeant Whitfield for the Plaintiff that the Obligation stood good against the Defendant notwithstanding the eating of the Seals of the two others and his reason was Because that where three are bound joyntly and severally that is all one as if they had been several Obligations for as when three are bound joyntly and severally there may be one Precipe one Declaration and one Exâ—cution against them all together so when three are bounden joyntly and severally there may be several Precipes several Declarations and several Executions against them so it is as it were several and distinct Obligations and therefore the avoiding of part is not the avoiding of the whole Further he put cases where a Deed which is intire may be void in part and good for the residue 14 H. 8. 25 26. 9. H. 6. 15. and Piggots Case 11 Rep. 27. Where it is resolved that if some of the Covenants of an Indenture or conditions of a Bond are against the Law and some good and lawful that in that case the covenants and conditions which are against the Law are void ab initio and the others shall stand good and he cited the 5 Rep. 23. Matthewsons Case as a strong case to this purpose But the Court said that that case of the 5 Rep. differed from this case for there certain persons covenant separatim and there the breaking of the Seal of one of the parties from the deed shall not avoid the whole deed for it is as several deeds but here they are bound joyntly and severally which alterâ—th the case Besides he said the Book in 3 H. 7. 5. made not against it for there it shall be taken that they were bound joyntly and not severally as in this case and he cited a Repâ—rt in the point which was Trinit 2. Iae. in this Court betwixt Banning and Symmonds where the Case was That twenty â—â—ght Merchants were bound joyntly and severally asâ—â—ur case is and three of their seals were broken from the deâ—d but notwithstanding it was resolved that the deed did 〈◊〉 good against the others note that the Court doubted of that Report and therefore ordered that the Roll should be searched and the Objectiâ—â— here that it is joynt is worth nothing because it is several also and he said that iâ— two levy a Fine one within age and the other of full age he said it is good in part and voidable in part and if a Fine which is a matter of Record may be good in part and voidable in part à forâ—iori he conceived a matter in fait as a Bond and 〈…〉 of the Fine he said was Englishes case adjudged and he would have taken a difference betwixt Rasing Interâ—â—â—tion and Addition as is in Piggots Case that the same shall avoid the whole deed But that the breaking of the Seal of one should not avoid it but for part But the Court said That it was clearly all one wherefore he prayed Judgment for the 〈◊〉 Serjeant Pheasant contrary That the whole deed is avoidâ—d and non est factum of the Defendant it is not the same Bâ—â—d in nature and effect as it was before and as 5 Rep. 119 Wâ—elpdales Case is if the deed were altered by interâ—â—â—ation â—odition rasure and breaking of the Seal there the Dâ—â—â—ndâ—nt may plead non est factum because it is not the same deed so in this case it is not the same deed for whereas it was joynt at the first now if the deed should stand good against the Defendant only it should be his Bond only where it was his Bond and the Bond of another at the first and so not the same Bond and 3 H. 7. 5. ought to be taken of a Bond joynt and several because that most Bonds are so and then it is clear our very Case and there it is resolved That if two be bounden in a Bond and the Seal of one is dissolved and taken from the Bond that it avoids the whole deed and it is not an Obligation joynt and several but joynt or several at the Election of the Obligee for he cannot use both and when he hath by his own Act deprived himself of this Election as in our Case which goes in prejudice of the Obligor who is the Defendant the whole Bond is thereby gone for by that means the Defendant only shall be charged where both were and therefore he conceived that if I grant unto a man an Annuity or a robe if the grantee release one of them both are gone because he hath deprived himself of Election so in this case he by his default should prejudice the defendant here which ought not to be he compared this case to Laughters case C. 5. Rep. 21. Besides if the whole deed should not thereby be avoided it should be a great prejudice to the Defendant in as much as if all happen to be in execution for the debt due upon that Bond as by the Law they may and the one escape the same should give advantage to the others to have Audita querela and
by that to discharge themselves which the Defendant here should lose if the Obligation should stand in force as to him only 8 Rep. 136. Sir Iohn Needhams case If a woman Obligee taketh one of the Obligors to be her Husband the same is a discharge to the other Two commit a trespass the discharge of one is the discharge of both yet it is there joynt or several at the will of the party who releaseth But it may be objected that it is a Casual act here and therefore shall not be so prejudicial to the Plaintiff here To that he answered That that shall not help him because it is his own lachess and default and the same Objection might have been made in Piggots case where the Obligation is altered in a material place by a stranger without the privity of the Obligee and yet there it was resolved that the same shall avoid the deed Besides if the Obligee had delivered the same over to another to keep and it had been eaten with Rats and Mice yet that would not excuse him and by the same reason shall not help the Plaintiff here Matthewsons Case C. 5 Rep. differs much from this case because there the Covenants are several and not joynt as in this Case and therefore if the Covenanâ—ee doth release to one of the covenanters that shall not discharge the others For the Cases of 14 H. 8. and Piggots Case they differ much from our Case for there the covenants or conditions against the Law are void ab initio by the construction of the Law and no alteration as in our case by the Act or default of the party by matter ex post facto and therefore those Covenants or Conditions against the Law cannot vitiaâ—e those which were good and according to Law because they took not any effect at all So if a Monk and another be bound the Bond is void as to the Monk and good as to the other because there is no subsequent alteration by the party but the same is void by construction of law ab initio and upon the same reason stands the Case of the Fine put of the other side For which causes he prayed Judgment for the Defendant Note the Court viz. Foster Reeve Crawley and Bankes Chief Justice did strongly incline that Judgment ought to be given for the Defendant and their reason was That if the Obligee by his Act or own lachess discharge one of the Obligors where they are joyntly and severally bound that the same discharges them all but gave day for the further debating of the Case for that this was the first time it was argued 207. By Justice Foster and Bankes Chief Justice a Trust is not within the Statute of 21 Iac. cap. 16. of Limitations and therefore no lapse of time shall take away remedy in Equity for it but for other Actions which are within the Statute and the time elapsed by the Statute there is no remedy in Equity and that they said was always the difference taken by my Lord Keeper Coventry but Justice Crawley said that he had conferred with the Lord Keeper and that he told him that remedy in Equity was not taken away in other Actions within this Statute 208. It was said by the whole Court that they never grant an Attachment without an Affidavit in writing 209. The Case before of the warrant of Attorney was betwixt Firburne and Cruse and was entred Trinit 17 Car. And now it was resolved upon reading of Presidents in Court that no warrant of Attorney shall be made or filed because that it is an error and not helped being after judgment in Nihil dicit that none of the presidents came to our case The greatest part of presidents were these viz. the first was 1 Car. Taylor against Thellwell the same appeared to be upon demurrer and no Judgment given Another was Mich. 3 Car. Peasgrove against Brooke and in that Case it did not appear that any Writ of Error was brought Another was Paseh 5. Car. Tayler against Sands Another Hill 6. Car. Smith against Bland in that it was conceived to be amendment only and it was agreed for Law that where there was a warrant of Attorney it might be amended for any defect in it as where there is a misprision of the name or the like as it is resolved Br. amendment 85. and so is 1 and 2 Phil. and Mar. Dyer 105. pl. 6. expresly where Alicia for Elizabetha in the warrant of Attorney was amended and that after a Writ of Error brought by construction of the Statute of 8 H. 6. and so is 9 E. 4. Br. amendment 47. And Justice Reeve said it cannot appear to us by any of the said Presidents whether there was a warrant of Attorney or not and perhaps upon examination it might appear to the Judges that there was a warrant of Attorny which is helped by the Statute of 8 H. 6. and that might be the reason which caused them to order that it should be filed but that doth not appear to us and therefore the presidents were not to the purpose Besides it doth not appear by any of them whether judgment were given or not and before judgment it may be amended as the Book is 9 E. 4. 14. br amendment 47. Besides in one of them the Plaintiff did neglect to remove the Record which is the very case in Dyer and that was the reason that the warrant of Attorney was filed but in this Case there appearing to be no warrant of Attorney it is not helped by the Statute of 8 H. 6. and after a Judgment and that upon Nihil dicit which is not holpen by the Statute of 18 Eliz and there is no Lachess in removing of the Record by the Plaintiff and for these reasons the whole Court was against the Defendant in the Writ of Error that it was Error and therefore ought not to be amended Note that in this Case it was moved that the warrant of Attorney might be filed in this Court after Error brought in the Kings Bench but observe that if it had been a thing amendable that had been no impediment to it for things amendable before Error brought are amendable after and if the inferior Court do not amend them the superior may and so it is adjudged 8 Rep. 162. in Blackmâ—res case and so is the Case express in the point 1 and 2 Phil. and Mar. Dyer 105. pl. 16. Where a warrant of Attorney was amended in Banco after Error brought and the Record certified This is only my own observation upon the Cale Mich. 17º Car. in the Kings Bench. 210. AN information was brought for the King against Edgerley Carrier of Oxford because that where by the custom of England no Carrier or other person ought to carry above two thousand weight and that with a Waggon having but two wheels and but four horses that the Defendant had used for the space of a year last past to drive Quoddam gâ—statorium
Anglicè a Drag or Waggon Cum quatuor rotis cum inusitato numero equorum viz. with twelve Horses betwixt Oxford and London and he had used to carry with it five thousand weight so that he had digged and spoiled the way in a Lane called Lobbe-Lanè that the people could not pass To which the Defendant pleaded Not Guilty and was found guilty by Verdict and many excâ—ptions were taken to the Information all which were over ruled by the Courâ— viz. Mallet and Heath Justices and Bramston Chief Justice to be 〈◊〉 the first was That he drave a Waggon Cum iâ—usitato numero equorum and doth not shew the certain number of them and therefore the Information which was in the nature of a Declaration was not good for the incertainty But per Cuâ—iam the same was mistaken for it saith that he drave with eleven horses The second exception was That the usual weight which it ought to carry is not shewed but that was ruled also to be a mistake for it saith 2000 weight The third was that it is not shewed in the Information that the way did lead to other Market-Towns than from Oxford to London but it was ruled to be good notwithstanding that exception because that the place à quo and the place ad quem is set down And it is not material whether it lead to other towns or not The fourth exception was That the Nusance is said to be in a place called Lobbe-Lane and it is not shewed of what quantity or extent that Lane is viz. how many poles or the like but it was ruled to be good notwithstanding that First because that the Jury have found that the way was stopt that the people could not pass and if it was so then it 's not material how long it was Secondly Lobbe-Lane is said only for the certainty of the place that the Viâ—â—e might come from it for of necessity it will be a Nusance through the whole way betwixt Oxford and London And Lastly the Nusance is laid to be through all Lobbe Lane and therefore it is good notwithstanding that exceptson also And therefore the matter and form of the Information being admitted good then the Question was what Judgment shâ—ould be given in this Case whether that the Carrier should repair it at his own costs or should be fined for the Nusance to the Commonwealth or not Justice Mallet there are several Judgments in Cases of Nusance if it be an assise quia levavit or quia exaltavit it ought to be part of the Judgment that the Defendant demolish it at his own costs so where a Nusance is to a River 19 Ass. pl. 6. But our Case differs much from the case of the River for that is a High-way which leadeth to a Port to which all resort and therefore a stronger Case but he conceived that the Judgment should not be that he should repair it because it is said in the Information that the Township ought and therefore it differs from those Cases and he doubted whether he should be fined or no because that the information is not vi armis and not against any Staâ—ute for then it should be a contempt and so fineable but notwithstanding he agreed that he should be fined First becausâ— it is layed to be Contra pacem Domini Regis ad nocumentum of the Kings people which is a contempt and therefore fineable Secondly because that although it is not laid to be vi armis yet it is laid to be a rooting and spoiling which implieth foâ—â—e 11 Ass. 19 Ass. 6. where a Nusance was with force there the Defendant was fined Then admitting that the Defendant shall be fined the Question then is What fine shall be set upon him and he said that it shall be Secundum quantitatem delicti salvo wainagio suo according to the Statute of Magna Charta cap. 14. West 2. So that we ought not to assess a Fine upon any Freeholder to take away his contenement noâ— upon any Villain to take away his wainage and he said that he conceived that the fine set upon him ought to be the less for the great prejudice which might come to the Defendant because that the Township might have an Action upon the Case against him because they are bound to repair it and therefore he cited 27 H. 8. 27. Further he took exception to it that it is not shewed of what value or estate the Defendant is so as we might know what fine to impose for such fine ought to be imposed Salvo wâ—inagio suo as aforesaid and he compared it to the Case in 4 E 4. 36. a Juror is demanded and doth not appear he shall be fined to the value of his estate for a year but that ought to be enquired of by the Jury and not set by the Court because they do not know the value of his estate so in this Case but notwithstanding he agreed that he should be fined because it appeareth to us how great his fault was and the fine ought to be as aforesaid and therefore he set a fine upon him of four Marks Justice Heath two things are here considerable whether there shall be any Judgment as this Case is and admitting that there shall what Judgment shall be given and he agreed that Judgment should be given because that the Information is good as well for the form as for the matter of it it is good for the matter of it because Malum in se ad nocumentum publicum and therefore it is properly pâ—â—â—shable in this Court the rather now because not punishable in another Court the Star-Chamber bâ—ing now taken away and it is good for the form of it for it hath sufficient certainty as is before shewed Now for the judgmâ—nt what shall be given he agreed that he should bâ— fined and imprisoned for imprisonment is incident to a fine but he did not determine what the fine should be he agreed the Rule that the fine shall be secundum quantitatem delicti and that cannot be so â—ittle as it is made for although Lobbe-Lane be layed in which the Nusance should be that is only for necessity that there may be a certain place for the Visâ—e but of necessity the Nâ—â—ance is through the whole High-way betwixt Oxford aâ—â— London And because we will not offend as the Star-chamber did by assessing too high fines for which it was justly condemned so upon the other side we ought not to set so small fines that we injure Justice and be thereby an occasion to increase such faults where we ought to suppress them and therefore he conceived the fine set by Mallet too little but he agreed that the Judgment should be fine and imprisonment but he adjorned the setting of the fine until he had consulted with the Clerks whether it should be inquired of by Commission or other good information Bramston Chief Justice that the Information is good for
the matter and the form but he objected that where it is said that he did drive quoddam gestatorium that gestatorium is a word incertain and that therefore the Information should be insufficient but he agreed that notwithstanding that that it was good by reason of the Auglicè for that reduceth it to certainty and he cited the Case betwixt Sprigge and Rawlinson Pâ—seh 15 Car. in this Court where the Case was that a man brought an Ejectione firme de uno repositorio which word was put for a Warehouse and resolved that it was naught for the incertainty but the Chief Justice here said that it had been good if it had been explained by an Anglicè and so he said it was resolved in that Case and therefore he agreed that the Information here was good notwithstanding that exception by reason of the Anglicè this offence is an offence against the Commonwealth and such an offence for which a man may be indicted for it is â—aid in the Information to be ad nocumentum Ligeorum Domini Regis wherefore he agreed that the Judgment should be a fine with Capiatur and he said that it cannot be part of the Judgment in this Case that the Defendant should repair it because it is said in the Information expresly thaâ— the Parishioners ought to repair it and the Chief Justice said and so Justice Heath which I before omitted that the Township cannot have their Actions for so there should be multiplicity of Actions which the Law will not suffer but he conceived that if any man had a special and peculiar damage then he might have his Action otherwise not as if a man were bound by prescription or tenure to repair that place called Lobbe-Lane or any part of it then he might have his action upon the Case against the defendant otherwise not he agreed that the fine should be secundum quantitatem delicti but yet not too high because the other Parishes may have their Information in like manner against the Defendant but he agreed to adjorn the setting of the fine Southward against Millard 209. IN an Ejectione firme the Defendant pleaded Not Guilty Upon which a special Verdict was found Nicholls possessed of a Term for 1000 years devised the same to E. his daughter for life the remainder to Iohn Holloway and made Lowe the Husband of the Daughter his Executor and died Iohn Holloway devised his interest to Henry and George Holloway and made Oliver and others his Executors and died afterwards Lowe spake these words If E. my wife were dead my estate in the premisses were ended and then it remains to the Holloways E. died the Executors of Iohn Holloway made the Lease to the Plaintiff and Lowe made the Lease to the Defendant who entred upon the Plaintiff who brought Ejectione firme and whether upon the whole matter the Defendant were guilty or not of the trespass and ejectment supposed the Jury referred to the Court and the points upon the Case are two First whether the words spoken by Loâ—e the Executor be a sufficient assent to the devise or not admitting that it is then the Second Point is Whether thâ— assenâ— came in due time or not as to the interest of Iohn Holloway in the remainder because he died before the words spoken which should make the assent and as to that the pâ—int is no other but that the Legatee dieth before assent to the Legacie whether assent afterwards came too late or that the Legacie shall be thereby lost or not that is the Question and by Justice Mallet it is a good assent and that in due time And here some things ought to be cleared in the Case First that the devise to Iohn Holloway in the Remainder is good by way of executory devise Secondly that the devise by Iohn Holloway to Henry and George is a void devise because but a possibility Thirdly that the assent to the first devise is an assent also to him in the remainder And lastly that if an Executor enter generally he is in as Executor and not as devisee all which are resolved in Lampetts and in Matthew Mannings Case Now these Cases being admitted the Question is Whether that Lowe the Executor here hath made a sufficient Declaration to take the Term as Devisee in the right of his wife or not for he hath his Election to take it as executor or in the right of his wife and as I conceive he hath made a good Election to have it as Legatee in the right of his wife The last words viz. That then it remains to the Holloways which is impossible by Law to be because that the devise to them was void he did not waigh because but additional and the first words of themselves are sufficient to make an assent it is not a transferring of an Interest but an assent only to it which was given by the first Testator and after assent the devisee is in by the first Testator and that being but a perfecting Act like an Attornment and admittance of a copy-holder the Law always favours it for the Law delights in perfection and therefore an assent by one Executor shall binde all so an assent by one Infant-Executor above 14 years shall binde the other so an assent to the particular Tenant is good to him in the Remainder Admittance of a Copyholder for life is admittance of him in the remainder which Cases shew that an assent being but a perfecting act the Law shall always make a large construction of it and he said that Mannings case in the 8 Rep. is the very Case with our Case as it appeareth in the pleading of it in the new Book of Entries 149. b. and also in Mannings Case aforesaid but that Case was not resolved upon that point for the devise there was paying so much and the devisee being also executor payed the money and therefore it was ruled to be a sufficient assent to the Legacie and therefore our case may be doubted notwithstanding that case and for my part I conceive it a good assent to the Legacie in our Case And for the second point I hold that the assent comes in due time to settle the Remainder although that Iohn Holloway were dead before for otherwise by this common casualty of death which may happen so suddenly that an assent cannot be had before or by the wilful obstinacie of the Executor that he will not assent Legatees should be defeated of their Legacies which would be a great inconvenience Besides I hold that the devise by Iohn Holloway was void he having but a possibility at the time of the devise and therefore that it remain to his Executors and by consequence that the Ejectione firme brought by their Lessee will lie Justice Heath acc for the Plaintiff Three things are here considerable First whether there need any assent at all of the Executor to a Legacie Secondly whether here be an assent or not Thirdly whether this assent come in due
time or not The first hath been granted that there ought to be assent for the great inconvenience which might happen to Executors if Legatees might be their own carvers and so are all our Books except 2 H. 6. 16. and 27 H. 6 7. which seem to take a difference where the Legacie is given in certain and in specie there it may be taken without assent but where it is not given in certain there it cannot but he held clearly the Law to be otherwise that although it be given in certain yet the Legatee cannot take it without assent of the Executor for so the Executor should be subject to a Devastavit without any fault in him or any means to help himself which should be very inconvenient Then the second thing here to be considered is Whether there be an assent or not It is clear that if an Executor enter generally he shall be in as Executor and not as Legatee for that is best for him to prevent a Devastaviâ— and it is as clear that if he declare his intention to be in as Legatee that then he shall be so then the Question here is Whether the words in our Case be a sufficient declaration of the mind of the Executor to take the same as Legatee in the right of his wife or not and I hold that it is He agrees that the second words are not so weighty as the first but he held the first words are sufficient of themselves to make an assent and when he saith that then it remains to the Holloways that proves that he took notice thereof as a Legacie and that he would have it in that right although in truth the devise by Iohn Holloway was void so as it could not remain to them For the third he held that the assent came in due time otherwise it might be very prejudicial to Legatees for else by that means they may be many times defeated of their Legacies for put Case that an Executor will not assent and the Legatee dieth before he can compel him to assent or that the Legatee dieth in an instant after the devisor in the 5 Rep. Princes Case it is resolved that an Infant under 17 may not assent to a Legacie nor the administrator Durante minori aetate then put case that the Legatees die during the administration durante minori aetate in whose time there cannot be an assent It would be a vâ—ry great mischief if that in any of these Cases the Legatees should be defeated of their Legacies when by possibility they could not use any means to get them wherefore he held clearly that the assent of the Executor after the death of the Legatee came in good time and therefore he concluded for the Plaintiff Bramston Chief Justice also for the Plaintiff For the first point he held that there is a good assent and he said that Mannings Case hath the very words which our Case hath but my Lord Cooke did not speak of these words in the Report of the Case because he conceived that the payment of the money was a sufficient assent to the Legacie but further I conceive that it differs fully from Mannings Case for there it is found expresly that the Executor had not Assets and therefore it should be hard to make him assent by implication thereby to subject himself to a Devastavit for as I conceive an Executor shall never be made to assent by implication where it is found that he hath not Assets but there ought to be an express assent by reason of the great prejudice which might come unto him but in our Case it is not found that Lowe had not Assets an Infant cannot assent without Assets but if there be then it shall bind him and perhaps that was the reason that my Lord Coke did not report any thing of these words whether they were an assent or not and his passing over them without saying any thing of them seems partly to grant and agree that they did not amount to an assent A man deviseth unto his Executor paying so much and he payeth it it is a good assent to the Legacie so is Matthew Mannings case 8 Rep. and Plowden Comment Welâ—den and Elkingtons case and he said that an assent is a perfecting act which the Law favours and therefore he said that it was adjudged that where an Executor did contract with the devisee for an assignment of the Term to him devised that it was a good assent to the Legacie For the second point also he held clearly that the assent came in due time for otherwise it should be a great inconvenience for by that means it should be destructive to all Legacies for of necessity there ought to be an assent of the Executor and if he will not assent and the Legatee dieth before he can compel him to assent or if the Legatee dieth immediately after the Devisor before any assent to the Legacie in the first Case it should be in the power of the Executor who is a stranger to prejudice me and in the latter Case the Act of God should prejudice me which is against two Rules of Law that the Act of a stranger or the act of God shall not prejudice me wherefore without question the assent comes in due time Besides If a Legatee dieth before assent to a Legacie the same shall be assets in the hands of his Executors and the Legatee before assent hath an interest demandable in the Spiritual Court An Executor before probate shall not have an Action but he may release an Action because that the right of the Action is in him so in this Case although that the Legatee before assent hath not an interest grantable yet he hath an Interest releasable A man surrenders Copyhold-Land to the use of another and the surrenderee dieth before admittance yet his heir may be admitted and this Case is not like those Cases put at the Bar where there is but a meer possibility and not the least Interest as where the grantee of a reversion dieth before Attornment or the devisee before the devisor in those Cases the parties have but a meer possibility and therefore countermandable by death but it is otherwise in our Case as I have shewed before and therefore I conclude that here is a good assent and that in due time and therefore that the Ejectione firme brought by the Plaintiff well lieth Dale and Worthyes Case 212. DAle brought a Writ of Error against Worthy to reverse a Judgment given in the County-Palatine of Chester and the Writ of Error bore Teste before the Plaint there entred and whether the Record were removed by it or not was the Question and the Court viz. Mallet Heath and Bramston were clear of opinion without any solemn debate that the Record was not removed by that Writ of Error because that if there be not any plaint entred at the Teste of the Writ how can the Processus according to the Writ be removed
the Corporation spake these words of the Plaintiff to his Brethren of the Corporation He praedict the Plaintiff innuendo is an ignorant man and not fit for the place and he said that by reason of speaking of these words that they refused to elect him Steward and whether these words were actionable or no was the Question This case was argued twice in Trinity-Term by Callis and Gotbold Serjeants and the Judges seemed to incline to opinion That the words were Actionable but yet no judgment is given Selden against King in Common Pleas Trin. 17 Car. Regis 218. IN a Replevin the Case was thus A man granted a rent out of certain Lands and limited the same to be paid at a house which was another place off the Land and in the grant was this clause that if the rent were behind and lawfully demanded at the house that then it should be lawful for the grantee to distrein the Rent was afterward behind and the grantee distreined and upon traverse taken upon the demand whether this distress upon the Land which had been good in Law if there had not been a special limitation of demand at a place off the Land be a good demand as this Case is was the point Mallet Serjeant the distress is a demand in it self and there needs not any other demand although the rent be to be paid off the Land as here And it was adjudged in this Court about 3 years past that the distress was a sufficient demand but I confess that a Writ of Error is brought in the Kings Bench and they incline there to reverse it and there is no difference where the rent is payable upon the Land where not and so it was adjudged Trin. 3 Car. Rot. 1865 or 2865. betwixt Berriman and Bowden in this Court and he cited also Fox and Vaughans Case Pasch. 4 Car. in this Court and Sir Iohn Lambes case Trin. 18 Car. Rot. 333. in this Court both adjudged in the point and he cited many other Judgments Iermyn Serjeant contrary that the distress is no sufficient demand as this Case is he ought to demand it at the place appointed by the grant for it is part of the grant and the words of the grant ought to be observed 28 H. 8. Dyer 15. and in the Comment 25. a. it is said that Modus legem dat donationi and therefore by the same reason that the grantor may appoint the time and place of payment as here he hath done by the same reason he may appoint a place for the demand and that he shall make that demand before he distrein for the same is neither repugnant nor impossible nor against the Law and therefore good and by consequence ought to be observed and then he answered the Cases which were cited to be adjudged against him In Symmons Case in the Kings Bench there it was resolved that a distress was a demand in Law and a demand in Law is as strong as a demand in fact as it was said by Justice Barckley in debate of that Case But note that in that Case there was no time in certain limited and further in that Case the Rent was payable upon the land and therefore in that Case I agree that a distress will be a good demand because that the demand is to be made upon the land but it is not so in our Case In Sands and Lees case Trin. 20 Iac. in this Court there also the rent was payable upon the land Berriman and Bowdens Case Trin. 3 Car. cited before I agree was our very Case in point but there Judgment was given upon Confession and therefore doth not rule our Case and in Sir Iohn Lambes Case there was no Judgment given and therefore that doth not rule our Case but Melsam and Darbies case M. 6 Car. Rot. 389. in the Kings Bench a Case in the point where Judgment was reversed upon a Writ of Error there brought for want of demand and Selden and Sherleys case in that Court a Case also in the point was reversed Mich. 16 Car. in the Kings Bench upon a Writ of Error brought for want of demand wherefore I conclude that there ought to have been an actual demand at the house according to the grant in our Case and therefore the Traverse in this Case taken by the grantor is well taken Note that Justice Crawley said that Lambes Case was adjudged that there needed no demand and he said that there were three Judgments accordingly in this Court but Rolls Serjeant said that Darbies Case was reversed in the Kings Bench for want of a demand But note that Foster and Reeve Justices did incline that there should be a demand and so Bankes Chief Justice for he said that it is part of the contract and like a condition precedent for as in a condition precedent a man ought to perform the condition before he can take any thing by the grant so in this Case the grantee ought to make a demand to enable him to distrein for before the demand he is not by the manner of the grant which ought to be observed entitled to a distress wherefore he give direction to the Counsel that they would view the Records and shew them to the Court and further he said to them that where it appeareth that the Rent was demandable upon the land that those cases were not to the purpose and therefore wished that they would not trouble the Court with them Levet and Sir Simon Fanshawes Case in Common Pleas Trin. 17. Car. Regis 249. LEvett brought debt against Sir Simon Fanshawe and his Wife as Executrix of another and sued them to the Exigent and at the return of the Exigent the Defendant Sir Simon Fanshawe came in voluntarily in Court and prayed his Priviledge because he was an Officer of the Exchequer and whether he should have his priviledge in that case or not was the question and that rests upon two things First because he is sued as this case is meerly for conformity and necessity-sake and in the right of another viz. in the right of his wife as Executrix And secondly because he demands his priviledge at the Exigent Whitfield Serjeant that he ought to have his priviledge and he cited Presidents as he said in the point as Pasch. 44 Eliz. in the Exchequer Iames Ashtons case sâ—rvant to the Treasurer and Pasch. 23. Iac. Rot. 131. Stantons case also in the Exchequer in both which cases he said husband and wife were sued in the right of the wife and the husband had his priviledge But he cited a Case which was nearer our Case and that was Hill 8. Iac. in the Exchequer Wats and Glovers case where husband and wife were sued in the right of the wife as Executrix and he said that it was over-ruled that the husband should have his priviledge 22 H. 6. 38. and 27 H. 8. 20. in those Cases the husband and wife were sued in the right of the wife and yet the husband
was allowed his priviledge But see Reader 34 H. 6. 29. 35 H. 6. 3. against it And note that many of these cases come to the second point whether he may demand his priviledge at the Exigent or not but for that see 9 E. 4. 35. Br. Priviledge 22. 10 E. 4. 4. Br. Priviledge 40. Rolls Serjeant contrary that the Defendant ought not to have his Priviledge and he said that use practise and reason is against it and he took these differences First where the Defendants are coming to make their appearance and are arrested as in 22. H. 6. 20. and where they are sued in one Court and the husband demands his priviledge because he is an Officer in another Court as in our Case Secondly where he is Defendant and where he is Plaintiff And lastly where he is sued in his own right and where in the right of another as in our Case For in the first of these differences he shall have his priviledge in the latter not and it is to ouste this Court of Jurisdiction and therefore shall be taken strictly Besides if in this Case the Defendant should have his priviledge we should be without remedy for we cannot have a Bill against the wife and we have no remedy to make the wife to appear and therefore it should be a great prejudice to us if he should have his priviledge Wherefore he prayed that the Defendant might not have his priviledge Note that Bankes Chief Justice seemed to agree the differences put by Rolls and also he conceived that point considerable whether the Defendant had not surceased his time in this Case because he demands his priviledge at the Exigent and not before And note the whole Court viz. Foller Reeve Crawley and Bankes Chief Justice seemed to incline that the Defendant should not have his priviledge because that the Action was brought against him and his wife in auter droit viz. in the right of the wife as Executrix but no Judgment was then given Hillary 17º Car ' in the Common Pleas. Moss and Brownes Case 220. MOsse exhibited a Bill in the Court of Requests against Brown and in his Bill set forth that the Defendant was indebted unto him in the sum of 400 pounds for wares delivered to him and further he shewed how that the Defendant was decayed in his estate and was not able to pay him and therefore he was content to accept of an hundred pound for the whole and that the Defendant at the payment of the said hundred pound required the Plaintiff to give him a general release and then promised him in consideration that he would make him a general release that he would pay to him the residue of his debt whensoever God should please to make him able and the defendant divers times afterwards did renew his promise with the Plaintiff Further he shewed that now a great estate to such a value is fallen to the Defendant and that now he is able to pay him and notwithstanding refuseth so to do which is the effect of the Plaintiffs Bill To that the Defendant answered and pleaded the Statute of Limitations of Actions and the Court of Requests would not admit this Plea But note the Defendant pleaded first the general issue that he made no such promise upon which they were at issue and found against him and afterwards he pleaded the Statute of Limitation and upon the whole matter Serjeant Clarke moved for a Prohibition First because the Bill is in the nature of an Action upon the Case at the Common Law and whether he promised or not promised is triable at Law Secondly because the Court refused the â—â—ea of the Statute of Limitations which they â—â—ght not to do because there is no remedy in Equity against a Statute Serjeant Whitfield contrary that no Prohibition ought to be granted First because the Plaintiff hath no other remedy but in Equity because that the Assumpsit made before the release is discharged by the release and the Assumpsit which was after is void because there is no consideration the debt being released before Secondly our case is not within the Statute of Limitations for it is but a trust reposed in the Defendant that he would pay the residue when God should make him able and being a bare trust is not taken away by the Statute of Limitations But he agreed for any Action which is within the Statute and is superannuated that there is no remedy in Equity But in answer to that it was said by Clarke that there is no trust expressed in the Bill But notwithstanding that it was resolved by the whole Court viz. Foster Reeve Crawley Justices and Bankes Chief Justice that no Prohibition ought to be granted for the reasons given before by Whitfield and they said that although no trust be expressed yet if it appeareth upon the whole Bill that there is a trust it is enough and he needs not to express it And note there was an order of the Court of Requests produced by Clarke by which it was ordered That the parties should take issue only upon the subsequent promise and should not meddle with the first which as the Court conceived made the Case a little worse notwithstanding the Court would not award a Prohibition for they said so long as they order nothing against the Law it is good and they ought to be Expositors of their own Orders therefore if it appeareth upon the merits of the Cause and the body of the Bill that they have Jurisdiction of the Cause and proceed as they ought be their Orders what they will it is not material and therefore it was resolved by the whole Court that no Prohibition should be granted in this Case Hill 17º Car. in the Common Pleas. 221. DVdley who was a Parson did libel in the Arches against Crompton for scandalous and defamatory words which words were these Thou meaning the Plaintiff lyest thâ—u art a fool and putting his hand behind him bid him kiss there and further said to him Thou hast spent so much a year in drunkenness and Sentence was given for the Plaintiff and now four years after Sentence the Defendant prayed a Prohibition and the Court viz. Foster Reeve Crawley Justices and Bankes Chief Justice were against the Prohibition because the Defendant came too late but if he had come in due time the three Justices did incline that a Prohibition would have lien because that the words are words only of passion and anger and God forbid that all words spoken only in wrangling and anger should bear Action But the Chief Justice inclined that the Defendant was punishable in the Ecclesiastical Court for those words for he said that the suit there is pro salute animae reformatione morum and it was fit that his manners should be reformed who spake such words of a man in Orders and a reverend Minister And he said that although that he held not that where there is no remedy at Law
that there they might sue in the Ecclesiastical Court yet he said that in many cases where there is no remedy at Law yet there is remedy in the Ecclesiastical Court and so he conceived in this Case But that which made Justice Reeve to doubt whether a Prohibition should issue as this Case was or not was for the incertainty of their Sentence which was for speaking of these words contained in the Articles aut eorum aliqua which he said is therefore not good for he said that Judgments or Sentences ought to have these two things Veriâ—y and Certainty and if there want any of these two it is not good and if it should be suffered it were a mischievous case for by this â—ick they might hold Plea of words not within their Jurisdiction and we should not have power to prevent it for if some of the words should be actionable some not they might by this way hold Plea as well of words which were not actionable or punishable by them as of those which were To which Foster agreed but Justice Crawley and the Chief Justice conceived that no Prohibition would lie notwithstanding that for that might be the course amongst them and although it be incertain yet it may be allowed by them for Law and Reeve was of opinion that a man might be indicted at the Assises before the Commissioners of Oyer and Terminer for speaking of such defamatory words and that he grounded upon the Commission of Oyer and Terminer which giveth them power to hold Plea de prolationibus verborum and he conceived that a man might be fined for them But the Chief Justice contrary for the Commission giveth them power to hold Plea secundum legem consuetudinem Angliae Now if the speaking of such words be not punishable by the Law and Custome of England then we cannot hold Plea of them by way of indictment or otherwise at the Assises for them 222. It was said by the whole Court that a bare Information at the Bar is not sufficient to cause the Court to examine any man upon Interrogatories wherefore they ruled that the party should make an Affidavit 223. Judgment was given against the principal and after a Scire facias was brought against the Bail who appeared and pleaded Nul tiel Record of the Judgment given against the principal upon which day was given to bring in the Record in Court at which day the principal tendred his body in discharge of the Bail and now it was prayed by Pheasant Serjeant that it might be admitted but Reeve Foster and Bankes Chief Justice inclined against it True it is that the condition of the Bail is that they render his body indefinitely withoue limiting any time in certain when they shall do it or pay the condemnation but yet they conceived that if they appear and plead such a dilatory Plea as this is that thereby they have waived the benefit of bringing in his body and Justice Foster said that the same being general and uncertain the Law ought to determine a time certain when it shall be done for otherwise by the same reason that they may do it now they may do it twenty years after which should be inconvenient and against the meaning of the condition And Reeve said that if this trick should be suffered that the Bail might plead such a dilatory Plea and afterwards bring in the body of the Principal the Plaintiff should lose all his costs of suit which he had expended in the suit against the Bail which would be mischievous But Justice Crawley that the usage hath always been that the Bail might bring in the body of the Principal at any time before judgment given against them upon the Scire facias and there are many presidents in this Court to that purpose To that the Court seemed to agree if they plead not such a dilatory Plea as in this case Therefore the Court awarded that the Pronotharies should consider of it and should certifie the Court what the use hath been in such case 224. Serjeant Pheasant came to the Bar and said to the Court that antiently as appeareth by our old Books the usage was that the Serjeants in any difficult point of pleading did demand of the Court their advise concerning it â—nd accordingly were used to be directed by the Court wherefore he humbly prayed of the Court to be resolved of this doubt A man was imprisoned for not submitting to Patentees of a Monopoly after seven or eight years past and then he brought an Action of false Imprisonment and that is grounded upon the Statute of Monopolies 21 Iac. c. 3. whether in this case the Defendant might plead the Statute of 21 Iac. c. 16. of Limitations of Actions or not was the Question But the whole Court was against him that they cannot be Judges and Counsellors and that they ought not to advise any man for by that means they should prevent their Judgment and they confessed that that was the use when the Serjeants used to count at the Bar as appeareth in our Books But they said you shall never find the same to be used since they counted and declared before they came to the Bar and these Counts and Declarations are upon Record wherefore the Court upon these considerations would not advise him Dewel and Masons Case 225. THis Case of Dewel and Mason which see before pl. 184. came now again in debate and it was adjudged by the whole Court viz. Foster Reeve Crawley Justices and Bankes Chief Justice nullo contradicente that the Plaintiff ought to have Judgment and that upon these differences First where the Defendant is to do a single Act only and where he hath election of two things to do Secondly the second difference stood upon this that no notice is to be given or tender made of a thing which lieth not in the power or proper conusance of the Plaintiff so as the difference stands where it is a thing which lies in the conusance of the Plaintiff and where not and therefore where the award was that the Defendant should pay to the Plaintiff eight pound or three pound and costs of suit as should appear by a note under the Attorneys hand of the Plaintiff it was resolved in that Case that although the Attorney be in some respect as a servant to his Master yet to this purpose he is a meer stranger and therefore the Plaintiff was not bound to make any tender of that note but the Defendant ought to have gone to the Plaintiffs Attorney and required a note of him of the costs of suit so as he might have made his Election But they all agreed that where it is a thing which lieth in the knowledge of the Plaintiff that there he ought to have made a tender or given notice but in this Case it lieth not in the knowledge of the Plaintiff and he cannot compel the Attorney to make it wherefore it was resolved that the Plaintiff should have
a difference where the party comes in by act of Law and where by the act of the party he who comes in by act of Law shall not be put to his Scire facias for so he should be without remedy and if that should be permitted it should a be subtile way for the conusor to avoid the possession of the conusee and then he himself to take benefit of it and that should be a fine way to defeat the Statute Besides by this way if the Statute should be satisfied by casual profit or if the time should be expired and the Statute satisfied by effluxion of time if in that Case the grantee should be permitted to distrein the beasts of the conusee for a great Rent perhaps before that the Conusee by possibility might remove from the Land it would be a great disturbance to the Conusee Besides if a stranger enter upon the conusee the conusee upon his regress may hold over but not so in this Case where the grantee of the Rent distreins and that should be also a great prejudice to the conusee But it was objected that the grantee of the rent could not have a Scire facias and therefore if he might not distrain he should be without remedy To which he answered that if it should be so it is his own fault for he might have provided for himself by way of covenant But he conceived that he might have a Scire facias for he said that it is a Judicial Writ issuing out of the Rolls which might be framed and made according to the case of any man and it is not enough to say thâ—â— there was never such a Writ granted in the like case but he ought to shew where it was ever denied besides it is not always necessary that he that shall have this Writ should be party to privy to the Record as appâ—areth by these Books 46 Ass. Scire facias 134. 32 E. 3. Scire facias 101. and 38 E. 3. 12. Br. Scire facias 84. Again it is not necessary that the Scirâ— facias should be either ad computandum or ad rehabendum terram as it was objected for as I have said before it may be framed according to the case of any man and vary accordingly wherefore he prayed Judgment for the Plaintiff and note that at this time Justice Heath seemed to incline for the Plaintiff Thorne against Tyler in a Replevin 231. THe Plaintiff shewed that the Defendant took certain Beasts of the Plaintiff such a time and place and detained them against gages and pledges c. The Defendant as Baily of the Mannor of the Lord Barckley made conusance of the taking of the cattle and said that long time before the taking of them the Lord Barckley was seised in see of a Mannor in Gloucestershire within which there were Copy-hold-Tenants time out of mind demiseable for one two or three lives that there was a custom within the same Mannor that if any copyhold-tenant did suffer his messuage to be ruin'd for want of repairing or committed waste that is presented by the homage that such tenant so offending should be amerced and that the Lord had used time out of mind to distrein the beasts as well of the tenant as of the under-tenant of such customâ—ry tenements levant and couchant upon such customary tenements for such amercement and further said that one Greening was tenant for life of a customary tenement within that Mannor and made a Lease unto the Plaintiff for one year and that 15 Car. the homage did present that Greening had suffered his Barn parcel of the customary Tenements aforesaid to fall for want of repair for which he was amerced to ten shillings and that in Iuly 16 Car. the Defendant as Bayly of the Lord Barckley did distrein the Plaintiffs cattle being under-tenant for the said amercement upon the said customary tenement and so he made conusance and justified the taking of the beasts as Bayly of the Lord Barckley The Plaintiff confessed that Greening was tenant and that he made a Lease to the Plaintiff for a year and further he confessed the want of repairing and presentment and the amercement upon it but he denied that there is any such custome upon which they were at issue and the Jury found for the Defendant that there was such a custom and it was moved in arrest of Judgment that the custom was not good because it was unreasonable for here the Tenant offended and the under-tenant is punished for it which is against all reason that one should offend and another should be punished for it Besides the under-tenant here is a stranger and the custom shall never extend to a stranger and therefore the custom to punish a stranger who is not a Tenant of the Mannor is a void custom Further it was said that the amercement properly falls upon the person and therefore being personal it cannot be charged upon the under-tenant But notwithstanding all these Objections it was resolved by all the Justices upon solemn debate that the custom was good and therefore that the avowant should have Judgment Justice Mallet custom si aliqua defalta fuerit in reparatione to amerce the tenant and to distrein averia sua vel averia subtenentis levant and coucbant upon the customary tenement is a good custom I agree that a custom cannot extend to a stranger who is not within the Mannor and therewith agreeth 3 Eliz. Dyer 194. b. pl. 57. Davis Rep. 33. a. 21 H. 6. and many other Books but the matter 〈◊〉 is whether the Plaintiff be a stranger or not and I conceive that he is no stranger but a good customary tenant and he shall have any benefit or priviledge that a customary tenant shall have although he holdeth but for one year and by the same reason that he shall enjoy the priviledge of a customary tenant he shall undergo the charge for Qui sâ—ntit commoduin sentire debeâ— â—nus and by the general custom of England every Copyholder may make a Lease for one year as is resolved in the 4 Rep. 26. â— and it is good and if so then the Plaintiff here cometh in by custom and is no stranger but a good customary tenant and therefore the custom may well extend to him as there is Dominus pro tempore so there is tenens pro tempore and such is the Plaintiff here and he held that the wife that â—ath her widows estate according to the custom of the Mannor is a good customary tenant A woman Copyholder for life where the custom is that the husband shall be tenant by the curtesie dieth I hold the husband in that case a good customary tenant In Gloucester where this Land is there is a custom that Executors shall have the profits for a year and I conceive them good customary tenants Besides this under-tenant here is distrainable by the Lord for the rents and services reserved by the Lord or otherwise
by this way he might defeat the Lord of his services The custom was That a woman should have her widows estate the Copy-tenant made a Lease for one year and died and adjudged that the woman should have her widows estate as excrescent by Title Paramouns the estate made for one year see Hab. Rep. And as these the estate of the wife was derivative so here and although it be not the intire Copyhold estate yet it is part of it and a continuation of it and is liable to every charge of the Lord 6 Rep. Swaines case wherefore he concluded that the custom is good and that the avowant ought to have Judgment Justice Heath the custom is good both for the matter and form of it where it was objected that for a personal injury done by one the cattle of another cannot be disâ—teined I agree that it is unjust that where alius peccat alius plectitur but our case differs from that rule for this was by custom for Transit terra cum onere he who shall have the land ought to undergo the charge Besides wheresoever a custom may have a good beginning and ex certa rationabili causa it is a good custom Bracton lib. 1. cap. 3. But this might have a reasonable ground at the beginning for here the punishment is a qualification of the Law for where by the Law the Copyhold-tenant is to forfeit his copyhold-tenement for waste either voluntary or permissive now this penalty is abridged and made more easie and therefore is very reasonable 43 E. 3. 5. 44 E. 3. 13. custom that if a tenant be indebted to the Lord that he may distrein his other tenants for it is not good but if it were for Rent it should be good because it may be the tenants at the first granted it to the Lord 22 H. 6. 42. 12 H. 7. 15. 35 H. 6. 35. custom to sell a distress is good and yet it cannot be done but by Act of Parliament And where it was objected that the amercement is personal and therefore cannot extend to the Plaintiff to that he answered that it is not meerly personal but by custom as aforesaid is now made a charge upon the Land and therefore not meerly personal Besides if the custom in this case had been that the Plaintiff for waste should forfeit his Copyhold-tenement it had been reasonable à fortiori in this case that he shall be only amerced wherefore he concluded that the custom is good and therefore that the avowant should have judgment Bramston Chief Justice that the custom is good and that he conceived to be clear First he conceived that the custom is reasonable as to the Copy-tenant for clearly by the Common Law if he suffer or do waste he shall forfeit his Copyhold and therefore this custom is in mitigation of the penalty and therefore is reasonable and that is not denied but the only doubt here is whether the custom to distrein the under-tenant for an amercement layed upon the tenant be a good custom or not and he conceived it is for the custom which gives the distress knits it to the Land and therefore not meerly personal as it was objected And if the custom had not extended to the under-tenant he might have distreined him for otherwise the Lord by such devise as there is viz. by the making of a Lease for one year by the Tenant should be defeated of his services 3 Eliz. Dyer 199. resolved custom to seise the cattle of a stranger for a Heriot is not good because that thereby the property is altered But custom that he may distrein the cattle of a stranger for a Heriot is a good custom because the distress is only as a pledge and means to gain the Heriot and in our case the Land is charged with the distress and therefore the cattle of any one which come under the charge may be distreined for it and therefore he held clearly that the custom was good and that the avowant should have Judgment Justice Barckley at this time was impeached by the Parliament of High Treason 232. A man was indicted for murder in the County Palatine of Durham and now brought a Certiorare to remove the Indictment into this Court and it was argued by Keeling at the Bar that Br ' Domini Regis de Certiorare non currit in Com' Palatinum But the Justices there upon the Bench viz. Heath and Bramston seemed strongly to incline that it might go to the County-Palatine and they said that there were many presidents in it and Justice Heath said that although the King grant Iura Regalia yet it shall not exclude the King himself and he said their power is not independent but is corrigible by this Court if they proceed erroneously and he said that in this case the party was removed by Habeas corpus and by the same reason that a Habeas corpus might go thither a Certiorare might for which cause it was awarded that they return the Writ of Certiorare and upon the return they would debate it Hillary 17º Car ' in the Common Pleaâ— â—ayton against Grange in a second deliverance 233. JOhn Layton brought a second deliverance against Anthony Grange and declared of taking of certain Cattle in a place called Nuns-field in Swassam-Bulbeck and detainer or them against gages and pledges c. The defendant made conusance as Baylift to Thomas Marsh and said that long time before the taking alledged one Thomas Marsh the father of the Plaintiff was seised of the Mannor of Michel-Hall in Swassâ—â—-Bulbeck aforesaid of which the Land in which time 〈◊〉 of mind c. was parcel and that one Anthony Cage and Dorothy his wife and Thomas Grange and Thomasine 〈…〉 of the Land in which c as in the right of the saiâ— Dorothy and Thomasine their wives in deâ—esne as of sâ—e and that they held the Land in which c. as of his Mannor of Michel-Hall by soccage viz. fealty and certain Rent payable at certain days and that the said Thomas Marsh was sâ—iâ—ed of the said services by the hands of the said Anthony Cage and Dorothy his wife Thomas Grange and Thomasine his wife as by the hands of his very Tenants and he derived the Tenancie to one Sir Anthony Cage and the Seigniory to Thomas Marsh the son by the death of the said Thomas Marsh the Father and because that fealty was not done by Sir Anthony Cage he as Bayly of the said Thomas Marsh the son did justifie the taking of the said cattle ut insâ—a feoduâ—â— dominium sue c. The Plaintiff by Protestation said that Non 〈◊〉 the Lands aforesaid of the said Thomas Marsh as of his Mannor of Michel-Hall in Swassaâ—â—-Bulbeck aforesaid by soccage viz. fealty and rent as aforesaid and pro placito said that the Defendant took the cattle as aforesaid and detained them against gages and pledges and then traversed Absque hoc that the said Thomas Marsh
the Father was seised of the said services by the hands of the said Anthony Cage and Dorothy his wife and Thomas Grange and Thomasine his wife as by the hands of his very Tenants upon which the defendant did demur in Law and shewed for cause of demurrer that the Plaintiff had traversed a thing not traversable and if it were traversable that it wanted form and this Term this Case was debated by all the Judges and it was resolved by them all that the Traverse as it is taken is not well taken Justice Foster that the Traverse taken by the Plaintiff is not well taken at the Common Law the Lord was bound to avow upon a person certain but now by the Statute of 21 H. 8. cap. 19. he may avow upon the Land and this avowry clearly is an avowry upon the Statute for it is infra feodum dominium sua c. and so is the old Entries 565. then the Question here is whether the Plaintiff be privy or a stranger â—or iâ— he he a stranger then clearly at the Common Law he may plead no plea but out of his Fee or a Plea which doth amount to so much as appeareth by the Books 2 H. 6. 1. 17 E. 3. 14 15. 34 E. 3. Avowry 257. and many other Books as you may find them cited in the 9 Rep. 20. in the case of Avowry here it doth not appear but that the Plaintiff is a stranger and therefore whether he be inabled by the Statute of 21 H. 8. to take this traverse or not is the Question and I conceive that he is true it is as it was objected that this Statute was made for the advantage of the Lord but I conceive as it shall enable the Lord to avow upon the Land so it shall enable the Tenant to discharge his possession as if the avowry were upon the very tenant and so is the Institutes 268 b. and so is Brown and Goldsmiths case in Hobarts Rep. 129. adjudged in the point and the Plaintiff here who is a stranger is in the same condition as a stranger was at the Common Law where the Avowry was made upon the Land for a Rent-charge in such case he might have pleaded any discharge although he were a meer stranger and had nothing in the Land so may he now after the Stat. of 21 H. 8. Then admitting that the Plaintiff might take this Traverse by the Statute then the Question is whether the Plaintiff hath taken a sufficient Traverse by the Common Law or not for the Statute saith that the Plaintiff in the Replevin or second deliverance shall have the like Pleas as at Common Law and I conceive that this plea is not a good plea at the Common Law And now I will consider whether if the Plaintiff had been a very Tenant he might have pleaded this plea or not and I conceive that if this traverse had been taken by a very tenant it had not been good I agree the 9 Rep. 35 Bucknels case that Ne unque seisie of the services generally is no good plea but Ne unque scisie of part of the services is a good plea and so is 16 E. 4. 12. 22 H. 63. and the reason that the first Plea is not good is because that thereby no remedy is left to the Lord neither by avowry nor by writ of customs and services And therefore the plea here is not good because it is a traverse of the services generally Besides here the traverse is not good because that the Plaintiff hath traversed the seism and hath not admitted the tenure and it is a rule in Law that no man may traverse the seism of services without admitting a tenure and therewith agreeth 7 E. 4. 28. 20 E. 4. 17. 9 Rep. Bucknells case and then if the very tenant could not have taken this traverse much less a stranger here Further here the tenure was alledged to be by rent and fealty and the avowry was for the fealty and the Plaintiff hath traversed the seism as well of the rent which is not in demand as of the fealty and therefore the traverse is not good But it was objected that seism of rent is seism of fealty and therefore of necessity both ought to be traversed I agree that seism of rent is seism of fealty but it is no actual seism of the fealty in point of payment or to maintain an assise for it as is 44. E. 3. 11. 45 E. 3. 23. and the distress here is for actual seism of fealty Every traverse ought to be adidem as 26 H. 8. 1. 9 Rep. 35. but here the traverse is of the Rent which is not in question therefore is not good in matter of form Wherefore he gave Judgment for the avowant Justice Reeve the first thing here coâ—siderable is whether this be a conusance at the Common Law or upon the Statute and I hold clearly that it is within the Statute and for that see new Entries 597 599 27 H. 8. 20. and it is clear that the Lord hath Election either to avow upon the Statute or at the Common Law and that is warranted by Institutes 268. and 312. 9 Rep. 23. b. 36. a. 136. a. and then admitting that it be an avowry upon the Statute The second point is whether the Plaintiff be inabled by the Statute to take this traverse or not for it is clear that at the Common Law the Plaintiff could not have this Plea for a stranger could not plead any thing but hors dâ—â—son fee or a plea which did amount to as much I agree the Books of Br. Avowry 113. 61. 9 Rep. 36. 27 H. 8. 4. â—0 Br. Avowry 107. Instit. 268. which are against me yet I conceive undâ—r favour that notwithstanding any thing that hath been said that the Plaintiff is not enabled by the Statute to take this traverse and I ground my Opinion upon the Reason at Common Law as also upon the Statâ—â—e the first reason at the Common Law I ground upon the Rule in Law res inter alios actâ— alteri nocere non debet it is not reason that he who is a stranger shall take upon himself to plead to the Title of the Tenure with which he hath nothing to do in prejudice of the very Tenant and this reason is given by the Books of 22 H. 6 39 E. 3. 34. My second reason is grounded upon the maxime in Law which is That in pleading every man ought to plead that which is pertinent for him and his Case And that 's the reason that the Incumbent at the Common Law cannot plead to the right of the Patronage wherein he hath nothing but the Patrou shall plead it as appeareth by the 7 Rep. 26. and many other Books there cited and these are my reasons at the Common Law wherefore the Plaintiff being a stranger cannot plead this Plea Secondly I ground my self upon the purvieu of
not traversable because that the seism is not material 7 E. 4. 29. Com. 94. 8. Rep. 64. Fosters Case Secondly where the Seigniory is not in question there no traverse of seism so it is in Case of Writ of Escheat Cessavit Rescous c. and therewith agree the Books of 22 H. 6. 37. 37. H. 6. 25. 4. Rep. 11. a. Bevills Case Thirdly where the Lord and Tenant differ in the services there no traverse of the seism but of the tenure but where they agree in the services there the seism may be traversed and therewith agree the Books of 21 E. 4. 64. 84. 20 E. 4. 17. 22 Ass. p. 68. 9 Rep. 33. Bucknells Case and therefore the traverse here is not good First because it is a general traverse of the seism per manus the tenure not being admitted as it ought to be by the fourth rule in Bucknells Case and therewith agreeth 23 H. 6. Avowry 15. Besides it is a Rule in Law That a man shall never traverse the seism of services without admitting of a tenure and in this Case he took the tenure by protestation and therefore the traverse here is not good and therewith agreâ—â— 15 E. 2. Avowry 214. Further the traverse here is not good because he hath traversed a thing not in demand which is the rent for he ought to have traversed the seism of the fealty only for which the distress was taken and not the rent as here he hath done and therewith agreeth 9 Rep. 35. a. and 26 H. 8. 1. But as this Case is he could not traverse the fealâ—y only because that seism of rent is seism of fealty and therewith agreeth 13 E. 3. Avowry 103. 3 E. 2. Avowry 188. 4 Rep. 8. b. Bevills Case and therefore he ought to traverse the tenure True it is as it was objected by my Brother Foster that seism of Rent is not an actual seism of fealty as to have an assise but is a sufficient seism as to avow And we are here in Case of an avowry and therewith agreeth the 4 Rep. 9. a. Bevills Case wherefore I conclude that Judgment ought to be given for the avowant Here note that it was resolved by all the Judges of the Common Pleas that a traverse of seism per manus generally without admitting of a tenure is not good and therefore see 9 Rep. 34. b. 35. a. which seemeth to be contrary Hill 17º Car in the Kings Bench. Hayward against Duncombe and Foster 234. THe Case was thus The Plaintiff here being seised of a Mannor with an advowson appendant granted the next avoidance to I. S. and afterwards bargained and sold the Mannor with the advowson to the Defendants D. and F. and a third person and covenanted with them that the Land is free from all incumbrances Afterwards the third person released to the Defendants who brought a writ of Covenant in the Common Pleas and there Judgment was given that the Action would lie Whereupon Hayward brought a Writ of Error in this Court The point shortly is this Whether the Writ of covenant brought by the Defendants without the third person who released were good or not and that rests only upon this Whether this Action of covenant to which they were all intitled before the release might be transferred to the other Defendants only by the release or not And it was objected that it could not because it is a thing in Action and a thing vested which cannot be transferred over to the other two only by the release but that all ought to joyn in the Action of covenant notwithstanding Rolls contrary because that after this release it is now all one as if the bargain and sale had been made to those two only and now in an Action brought against them two they may plead a seoffment made to them only without naming of the third who released and so it is resolved in 33 H. 6. 4 5 6 Rep. fol. 79. a. Besides this covenant here is a real covenant and shall go to assignees as it is resolved in 5 Rep. Spencers Case and here is as violent relation as if the seoffment had been made to them two only It was objected by Justice Heath What if the other died It was answered perhaps it shall there survive because that it is an Act in Law and the Law may transfer that which the Act of the party cannot because that Fortior est dispositio legis quam hominis c. Booremans Case 235. BOoreman was a Barrister of one of the Temples and was expelled the house and his Chamber seised for non-payment of his Commons whereupon he by New digate prayed his writ of restitution and brought the writ in Court ready framed which was directed to the Benchers of the said Society but it was denied by the Court because there is none in the Inns of Court to whom the writ can be directed because it is no body corporate but only a voluntary Society and submission to Government and they were angry with him for it that he had waived the ancient and usual way of redress for any grievance in the Inns of Court which was by appealing to the Judges and would have him do so now Bambridge against VVhitton and his wife 236. IN an Ejâ—ctione firme upon Not Guilty pleaded a special Verdict was â—ound the case upon the special verdict this A Copyhold Tenant in fee doth surrender into the hands of two Tenants unto the use of I. W. immediately after his death and whether it be a good surrender or no was the question Harris that the surrender is void Estates of Copyholds ought to be directed by the rule of Law as is said in 4 Rep. 22. b. 9 Rep. 79. 4 Rep. 30. And as in a grant a grant to one in ventre sa mier is void so also in a will or devise and as it is resolved in Dyer 303. p. 50. so it hath been adjudged that the surrender to the use of an Infant in ventre sa mier is void and as at Common Law a Freehold cannot begin in futuro so neither a Copyhold for so the surrenderer should have a particular estate in him without a donor or lessor which by the rule of Law cannot be and he took a difference betwixt a Dâ—vise by Will a Grant executed in a devise it may be good but not in a grant executed and here he took a difference where the Grant is by one intire clause or sentence and where it is by several clauses 32 E. 1. taile 21. Dyer 272. p. 30. Com. 520. b. 3 Rep. 10. Dowties Case and 2 Rep. Doddingtons case For instance I will put only the Case in Dyer and the Comment A Termor grants his Term habendum after his death there the Habendum only is void and the grant good but if he grant his Term after his death there the whole grant is void because it is but one sentence So I say in our
Case because it is but one clause the whole grant is void Another difference is Where the distinct clause is repugnant and where not where it is repugnant there it is void and the grant good quia utile per inutile non vitiatur But in our Case as I have said before it is one intire sentence M. 13. or 23 Iac. in this Court Rot. 679. Sympson and Southwells Case the very Case with our Case There was a surrender of a Copy tenant to the use of an Infant in ventre sa mier after the death of the surrenderor and there it was resolved by all the Judges except Dodderidge that the surrender was void First because it was to the use of an Infant in ventre sa mier and Secondly because it was to begin in futuro which is contrary to the rule in Law and Copy-tenants as it was there said ought to be guided by the rules of Law but Dodderidge doubted of it and he agreed the Case at Common Law that a freehold could not commence in futuro but he doubted of a Copyhold and he put the Case of surrender to the use of a Will But he said that Judgment was afterwards given by Coke Chief Justice in the name of all the other Judges that the surrender was void and therefore Quod querens nihil capiat per billam wherefore he concluded that the surrender was void and prayed the Judgment of the Court. Langhams Case 237. LAngham a Citizen and Freeman of London was committed to Newgate by the Court of Aldermen upon which he prayed a Habeas corpus which was granted upon which return was mane First it is set forth by the return that London is an ancient City and Incorporate by the name of Mayor Comminalty and Citizens and that every Freeman of the City ought to be sworn and that a Court of Record had been held time out of mind c. before the Mayor and Aldermen And that there is a custom that if any Freeman be elected Alderman that he ought to take an Oath cujus tenor sequitur in haec verba viz. You shall well serve the King in such a Ward in the Office of Alderman of which you are elected and you shall well intreat the people to keep the Peace and the Laws and Priviledges within and without the City you shall well observe and duly you shall come to the Court of Orphans and Hustings if you be not hindred by Command of the King or any other lawful cause you shall give good counsel to the Mayor you shall not sell Bread Ale Wine or Fish by retail c. Then is set forth a custome that if any person be chosen Alderman he shall be called to the Court and the Oath tendred to him and if he refuse to take it then he shall be committed until he take the Oath Then is set forth that by the Statute of 7 R. 2. all the customs of the City of London are confirmed And lastly is set forth that the 11 of Ian. Langham being a freeman of London and having taken the Oath of a freeman was debito modo electus Alderman of Portsoken-ward and being habilis idoneus was called the first of February to the Court of Aldermen and the Oath tendred to him and that he refused to be sworn in contemptum Curiae contra confuetudines c. wherefore according to the custom aforesaid he was committed by the Court of Aldermen to Newgate until he should take the Oath haec fuit causa c. To this retorn many exceptions were taken Maynard the retorn is insufficient for matter and form for form it is insufficient for the debito modo electus without shewing by whom and how is too general then it is insufficient for the matter for he is imprisoned generally and not until he takes the Oath which utterly takes away the liberty of the subject for by this means he may be imprisoned for ever Besides here is no notice given to him that he was chosen Alderman but they elect him and then tender him the Oath without telling him that he was chosen Alderman and therefore the retorn not good for it ought to be certain to every intent Further the Oath is naught and unreasonable for he ought to forswear his Trade for if he sell Bread Ale Wine or Fish before now he must swear that he shall never sell them by retail after which is hard and unreasonable for perhaps he may be impoverished after and so necessitated to use his Trade or otherwise perish wherefore for these reasons he conceived that the Retorn was insufficient Glynn upon the same side that the Retorn is insufficient and he stood upon the same exceptions before and he conceived that notice ought to be given to him that he was chosen Alderman for this reason because of the penalty which he incurs which is imprisonment and he compared it to the Cases in the 5 Rep. 113. b. 8 Rep. 92. That the feoffâ—e of Land or a Bargain of a reversion by Deed indented and inrolled shall not take advantage of a condition for not payment of Rent reserved upon a lease upon a demand by them without notice given to the lessee for the penalty which insues of forfeiture of his Term. So in our Case he shall not incur the penalty of imprisonment for refusing to be sworn without notice given him that he 〈…〉 chosen Alderman He took another exception to the Oath because he is to swear that he shall observe all Laws and Customs of the said City generally which is not good for that which was lawful before pâ—radventure will not be lawful now for some Customs which were lawful in the time of R. 2. are now superstitious and therefore are not to be kept Further it is to keep all the customs within and without the City which is impossible to do Wherefore for these reasons he conceived the Retorn not to be good and prayed that the prisoner might be discharged Saint-Iohn Sollicitor of the same side The custom to imprison is not good Besides here the imprisonment is general so that he may be imprisoned for ever which is not good and the Statute confirms no customs but such as are good customs I agree that a custom for a Court of Record to fine and for want of payment to imprison may be good because the custom goes only to fine and not to imprisonment the Case of 1 H. 7. 6. of the custom of London for a Constable to enter a house and arrest a Priest and to imprison him for incontinencie comes not to our Case for that is for the keeping of the peace which concerns the Commonwealth as it is said in the Book and therefore may be good but it is not so in our Case A Corporation makes an ordinance and injoyns the observance of it under pain of imprisonment it hath been adjudged that the Ordinance is against the Statute of Magna Charta that Nullus
do so it is void And for that he cited Clegat and Batchellers Case before that the obligation in such Case is void and he said that the reason which was given by one why the Bond should be void was grounded upon the Statute of Magna Charta cap. 29. which wills That no freeman should be ousted of his Liberties but per legem terrae and he said that the word Liberties did extend to Trades and Reeve said that by the same reason you may restrain a man from using his Trade for a time you may restrain him for ever And he said that he was confident that you shall never find one Report against the Opinion of Hull 2 H. 5. For the other part of the difference he cited Hill 17 Iac. in this Court Rot. 1265. and 19 Iac. in the Kings Bench Braggs case in which Cases he said it was adjudged against the Action upon a Bond but with the Action of the Case upon a promise that it would lie But note that all the Judges viz. Foster Reeve and Crawley Bankes being absent held clearly that if the condition be against the Law that all is void and not the condition only as was objected by Evers and it was adjorned Apsly against Boys in the Common Pleas in a Scire facias to execute a Fine upon a Grant and Render Intrat Trin. 16 Car. Rot. 112. 239. THe Case upon the Pleading was this A fine upon a Grant and Render was levied in the time of E. 4. upon which afterwards a Scire facias was brought and Judgment given and a Writ of seisin awarded but not executed Afterwards a fine Sur coâ—usans de droit come ceo c. with Proclamations was levied and five years passed and now another Scire facias is brought to execute the first fine to which the fine Sur conusance de droit come ceo is pleaded so as the only Question is Whether the fine with Proclamations shall bar the Scire facias or not Serjeant Gotbold for the Plaintiff it shall not bar and his first reason was because not executed 1 Rep. 96 97. and 8 Rep. 100. If a disseisor at the Common Law before the Statute of Non-claim had levied a fine or suffered Judgment in a Writ of Right until Execution sued they were no bars and a fine at Common Law was of the same force as it is now and if in those Cases no bar at Common Law until Execution that proves that this interest by the fine upon grant and render is not such an interest as can bar another fine before execution Besides this Judgment by the Scire facias is a Judgment by Statute and Judgment cannot be voided but by error or attaint Further a Scire facias is not an Action within the Statute of 4 H. 7. and therefore cannot be a bar 41 E. 3. 13. 43 E. 3. 13. Execution upon Scire feci retorned without another plea and it is not like to a Judgment for there the party may enter but not here Besides it shall be no bar because it is executory only and in custodia legis and that which is committed to the custody of the Law the Law doth preserve it as it is said in the 1 Rep. 134. b. and he compared it to the Cases there put and a fine cannot fix upon a thing executory and the estate ought to be turned to a right to be bound by a fine as it is resolved in the 10 Rep. 96. a. 9 Rep. 106. a. Com. 373. And the estate of him by the first fine upon grant and render is not turned to a right by the second fine Lastly the Statute of 4 H. 7. is a general Law and in the affirmative and therefore shall not take away the Statute of West 2. which gives the Scire facias and in proof of that he cited 39 H. 6. 3. 11 Rep. 63. 68. and 33 H. 8. Dyer 15. I agree the Case which hath been adjudged that a fine will bar a Writ of Error but that is to reverse a Judgment which is executed but here the Judgment is not executed and therefore cannot be barred by the fine wherefore he prayed Judgment for the Plaintiff Note that it was said by the Judges that here is no avoiding of the finâ— but it shall stand in force but yet notwithstanding it may be barred and they all said that he who hath Judgment upon the Scire facias upon the first fine might have entred and they strongly inclined that the Scire facias is barred by the fine and doth not differ from the Case of a Writ of Error but they delivered no opinion Taylers Case 240. THe Case was thus The Issue in Tail brought a Formedon in Descend and the Defendant pleaded in Bar and confessed the Estate Tail but said that before the death of the Tenant in Tail I. S. was seised in fee of the lands in question and levied a fine to him and five years passed and then Tenant in Tail died whether this plea be a bar to the Plaintiff or not was the Question and it rested upon this Whether I. S. upon this general Plea shall be intended to be in by disseisin or by feoffment for if in by disseisin then he is barred if by feoffment not and the opinion of the whole Court was clear without any debate that he shall be intended in by disseisin and so the Plaintiff is Bar as the Books are 3 Rep. 87. a. Plow Com. Stowels Case and Bankes Chief Justice said that it shall not be intended that Tenant in Tail had made a feoffment to bar his issues unless it be shewed and it lies on the other part to shew it and a feoffment is as well an unlawful Act as a dissâ—isin for it is a discontinuance Commins against Massam in a Certiorare to remove the proceedings of the Commissioners of Sewers 241. THe Case upon the proceedings was thus Lessee for years of Lands within a level subject to be drowned by the Sea covenanted to pay all assessments charges and taxes towards or concerning the reparation of the premisses A wall which was in defence of this level and built straight by a sudden and inevitable Tempest was thrown down one within the level subject to be drowned did disburse all the mony for the building of a new wall and by the order of the Commissioners a new wall was built in the form of a Horshooe afterwards the Commissioners taxed every man within the level towards the repaying of the sum disbursed one of which was the lessee for years whom they also trusted for the collecting of all the mony and charge him totally for his land not levying any thing upon him in the reversion and also with all the damages viz. use for the mony Lessâ—e for years died the lease being within a short time of expiration his executor enters and they charge him with the whole and immediately after the years expired the executors brought this
therefore I did not stick upon the Certiorare because what was done was by consent consensus tollit errorem if any be Now for the points as they arise upon the proceedings of the Commissioners and for the first I hold that the covenant doth well extend to this new wall and the making of it in the form of a horshooe is not material so as it be adjoyning to the land as it here was for that may be ordered according to their discretions it is a rule in Law that the covenant of every man ought to be construed very strong against himself and although that in this Case the new wall be not parcel of the premisses as it was at the time of the covenant because that the wall then in esse and to which the covenant did extend was a straight wall yet according to the words of the covenant this tax is towards the reparation of the premisses and if it should not extend to this new wall the covenant should be idle and vain and clearly the meaning of the parties was that it should extend to all new walls For the second point I hold the covenant although it be a collateral thing within their Jurisdiction true it is as it is said in 28 H. 8. that contracts are as private Laws betwixt party and party but you ought to know that their Commission gives them power to charge every man according to his tenure portion and profit and he who is bound by custom or prescription to repair such walls is not within the words of their Commission yet it is resolved in the 10 Rep. 139 140. in Kighleys case that the Commissioners may take notice of it and charge him only for the reparations where there is default in him and the danger not inevitable and by the same reason you may exclude this covenant to be out of their Jurisdiction you may exclude prescription also I agree that where the covenant is meerly collateral as if a man who is a stranger covenants to pay charges for repairing of such a wall that that is not within their Jurisdiction because he is a meer stranger and cannot be within their Commission but in our Case it is otherwise for the covenantor is occupier of the land and it hath been adjudged that if lands or chattels are given for the reparation of a Sea-wall that it is within their Jurisdiction and they may meddle with it that is as collateral as the covenant in question wherefore I hold that the covenant is within their Jurisdiction For the third point I hold that they may well charge the executor for the executor here hath the lease as executor but it was objected That the term is now determined and peradventure the executor hath not assets To that I answer that it is admitted that he hath assets for the Commissioners cannot know whether he hath assets or not and therefore he ought to have alledged the same before the Commissioners and because he hath not done it he hath lost that advantage and it shall be intended that he hath assets by not gain-saying of it Fourthly for the damages I first chiefly doubted of that but now I hold that it is within their Jurisdiction Put case that one in extreme necessity as in this Case disburse all the money for the reparations or the wall or Sea-bank if the Case had gone no further clearly he shall be repaid by the tax and levy after and I conceive by the same reason they have power to allow him damages and use for his mony for if it should not be so it would be very inconvenient for who would after disburse all the money to help that imminent danger and necessity if he should not be allowed use for his money and the Lessee here is only charged with the damages for the money collected which he had in his hands and converted to his own use and therefore it is reasonable that he should be charged with all the damages Besides they having conusans of the principal have conusans of the accessory as in this Case of the damages and he urged Fitz. 113. a. to prove that before the Statute of 23 H. 8. they had a Court and were called Justices but he held as it was agreed before That no Writ of Error lieth after this Statute but yet he said that the party grieved should be at no loss thereby for he said that where the party cannot have a Writ of Error nor Audita querela there he shall be admitted to plead as in 11 H. 7. 10. a. Where a Recognisance of debt passed for the King upon issue tried and afterwards the King pardons it the party after Judgment may plead it because Audita querela doth not lie against the King and where a man is not party to a Judgment there he cannot have a Writ of Error but there he may falsifie so I conceive that he may in this Case because he cannot have a Writ of Error and I conceive as it hath been said before that after the Statute of 23 H. 8. the Commissioners of Sewers have a mixt Jurisdiction of Law and equity For the Certiorare I will advise hereafter how I grant it although I conceive as I have said before that a Certiorare lies after the Statute and is not taken away by the Statute and I conceive in some clearness that it may be granted where any fine is imposed upon any man by Commissioner which they have authority to do by their Commission as appeareth by the Statute to moderate it in Case that it be excessive But as I have said before because that the parties by agreement voluntarily bound themselves by Recognisance to stand to the judgment of this Court upon the proceedings as they are certified that made me at this time not to stand upon the Certiorare wherefore I do confirm the decree 242. Rolls moved this Case A. did suffer B. to leave a trunk in his house Whether B. might take it away without the special leave of A. was the Question Justice Mallet leave is intended but Rolls conceived that he could not take it without leave Hammon against Roll Pasch. 18. Car. in the Common Pleas. 243. IN an Action upon the Case upon Assumpsit the Case upon special verdict was this A. and B. were bound joyntly and severally in a Bond to C. who released to A. afterwards there being a communication betwixt B. and C. concerning the said debt B. in consideration that C. would forbear him the payment of the said mony due and payable upon the said Bond till such a day promised to pay it c. C. for default of payment at the said day brought this Action upon the Case B. pleaded the general issue and thereupon the whole matter before was found by the Jury Serjeant Clarke here is not any good consideration whereupon to ground an Assumpsit because by the release to one obligor the other is discharged and then there being no
debt there can be no consideration and therefore the promise void because it is but nudum pactum Rolls contrary that there is a good consideration because that although by the release to one obligor the debt of the other be discharged sub modo viz. if the other can get it in his power to plead yet it is no absolute discharge for if he cannot get it into his hand to plead it he shall never take advantage of it and then if it be no absolute discharge but only sub modo viz. if he can procure it into his hand to plead then the consideration is good for perhaps he shall never get it Justice Foster asked him if by this release the debt be not intirely discharged to which he answered No as to B. only but sub modo as I have said before but he said and with him agreed the whole Court that the Law is clearly otherwise that the debt is intirely gone and discharged and then clearly there can be no consideration in this Case Justice Reeve every promise ought to have a consideration and that ought to be either benefit to him that makes it or disadvantage to him to whom it is made and in this Case the consideration which is the ground of the Assumpsit is neither benefit to him that made it nor disadvantage to hiâ— to whom it was made because there was no debt for it was totally discharged by the release made to A. Crawley agreed to it Bankes Chief Justice was absent But because the obligation was laid to be made in London and no Ward or Parish certain put from whence the Visne should come they conceived clearly that it was not good Pasch. 18º Car. in the Kings Bench. Heamans Habeas Corpus 144. RIchard Heaman was imprisoned by the Court of Admiralty upon which he prayed a Habeas corpus and it was granted upon which was this retorn viz. First the custom of the Admiralty is set forth which is to attach goods in causa civili maritimi in the hands of a third person and that upon four defaults made the goods so attached should be delivered to the Plaintiff upon caution put to restore them if the debt or other cause of Action be disproved within the year and after four defaults made if the party in whose hands the goods were attached refused to deliver them that the custom is to imprison him until c. Then is set forth how that one Kent was indebted unto I. S. in such a sum upon agreement made Super altum mare and that Kent died and that afterwards I. S. attached certain goods of Kents in the hands of the said Heaman for the said debt and that after upon summons four defaults were made and that I. S. did tender caution for the re-delivery of the goods so attached and condemned if the debt were disproved within the year and that notwithstanding the said Heaman would not deliver the goods for which he was imprisoned by the Court of Admiralty until c. Widdrington of Counsel with the prisoner took this exception to the Retorn that it appeareth by the Retorn that Kent who was the debtor was dead before the attachment and you shall never attach the goods of any man as his goods after his death because they are not his goods but the goods of the executor in the right of the testator Besides although the attachment be upon the goods yet the Action ought to be against the person which cannot be he being dead wherefore he prayed that the prisoner might be discharged Hales that the attachment is well made notwithstanding that the party was dead at the time of attachment for it is the custom of their Court so to proceed although that the party be dead Besides he said that although that the party were dead yet the goods are bona defuncti and to prove that he cited 10 E. 4. 1. the opinion of Danby and Catesby That the grant of Omnia bona catalla sua by an executor will not pass the goods which he hath as executor because they are the goods of the dead But note that it was here said by Bramston Chief Justice that it had been adjudged divers times against the opinion aforesaid that it passeth the goods which the executor hath as executor and he said that if a man hath a judgment against an executor to recover goods the Judgment shall be that he recover bona defuncti To that the Court said that the Judgment is not quod recuperet bona defuncti but quod recuperet the goods which fuerunt bona defuncti For the objection that the plaint ought to be against the person which cannot be when he is dead to that Hales said that in the Admiralty the Action is against the goods and therefore the death of the person is not material to that Justice Heath said that it is the party who is charged the goods are only chargeable in respect of the person and you shall never charge the goods alone but there ought to be a party to answer Hales if they have Jurisdiction they may proceed according to their Law and we cannot hinder it to which Heath said take heed of that when it concerneth the liberty of the Subject as in this Case And note that Bramston Chief Justice asked the Proctor of the Admiralty then present this Question Whether by their Law the death of the party did not abate the action and he said that it did then said the Chief Justice it is clear that an attachment cannot be against the goods the party being dead wherefore by the whole Court the custom to attach goods after the death of the party is no good custom and therefore they gâ—ve Judgment that the prisoner should be discharged 245. Note that Bramston Chief Justice and Heath Justice said in evidence to a Jury that a Will without a Seal is good to pass the Land and that it is a Forgery expresly by the Statute of 5 Eliz. cap. 14. to forge a Will in writing Pasch. 18º Car ' in the Kings Bench. Fulham against Fulham in a Replevin 246. THe Case was thus Henry the 8 seised of a Mannor in which are Copyholds grants a Copy-hold for life generally and whether this be a destroying of the Copyhold or not was the Question And it was argued by Harris that the grant was utterly void because the King was deceived in his grant for he said the King had election to grant it by Copy and therefore it shall not be destroyed by a general grant without notice and cited many Cases to prove that where the King is deceived in the Law his Grant shall be void but Bramston Chief Justice and the Court said that it never recited in any of the Grants of the King what is Copyhold and they were clear of Opinion that the Grant was not void But whether it destroy the Copyhold or not so as the King hath not election to grant the
same after by Copy that they agreed might be a Question Serjeant Rolls at another day argued that the Copyhold was destroyed by the Kings grant but he agreed that it is not reason that the Patent should be utterly void for that he said would overturn all the Kings grants for there is not any Patent that ever recited Copyhold and therefore the Question is whether the Copyhold be destroyed or not and he argued that it is because there needeth not auy recital of Copy-hold Br. Pat. 93. It is agreed that where the King grants Land which is in lease for term of years of one who was attainted or of an Abby or the like that the grant is good without recital of the lease of him who was attainted c. For he shall not recite any lease but leases of Record and therewith agreeth 1 Rep. 45. a. and Dyer fol. 233. pl. 10 11. Now he said there is no Record of these Copyholds and therefore there needs not any recital of them and therefore the King is not deceived Further he said that no man is bounden to inform the King in this Case and therefore the King ought to take notice and then the reason of the Case of a common person comes to the Kings Case because the Copyhold was not demiseable for time as before according to the nature of a Copyhold and therefore of necessity is destroyed and the Court as I said before did conceive the Case questionable Burwell against Harwell in a Replevin 247. THe Case was shortly thus A man acknowledged a Statute and afterwards granted a Rent-charge the land is extended the Statute is afterwards satisfied by â—ffluxion of time and the grantee of the rent did distrain and whether he might without bringing a Scire facias was the Question And the Case was several times debated at the Bar and now upon solemn debate by the Judges at the Bench resolved But first there was an exception taken to the pleading which was that the avowant saith that the Plaintiff took the profits from such a time to such a time by which he was satisfied that was said to be a plea only by argument and not an express averment and therefore was no good matter of issue and of this opinion was Justice Heath in his argument but Bramston Chief Justice that it is a good positive plea and the Plaintiff might have â—raversâ—d without that that he was satisfied modo forma and in Plowd Comment in Buckley and Rice Thomas 〈…〉 ut cum tam quam are good issues Now for the point in Law Justice Mallet was for the Avowant that the distress was lawful the grantee of the Rent cannot have a Scire facias because he is a stranger and a stranger cannot have a Scire facias either to account or have the land back again The Cases which were objected by my Brother Rolls viz. 32 E. 3. tit Scire facias 101. Br. Scire facias 84. Fitz. Scire facias 134. That the feoffee shall have a Scire facias do not come to our Case for here the grantee of the Rent is a stranger not only to the Record but to the Land which the feoffee is not Further it was objected that the Grantee of the Rent claims under the conusor and therefore shall not be in a better condition than the Conusor there are divers Cases where grantee of a rent shall be in better condition than the Conusor the Lord Mountjoyes Case a man makes a lease for years rendring rent and afterwards acknowledgeth a Statute and afterwards grants over the rent now it is not extendable Besides it was objected that if this should be suffered it would weaken the assurance of the Statute and disturb it I agree that may be but if there be not any fraud nor collusion it is not material and then he being a stranger if he cannot have a Scire facias he may distrain it is a Rule in Law Quod remedio distituitur ipsa re valet si culpa absit 21 H. 7. 33. Where there is no Action to avoid a Record there it may be avoided by averment c. 18 E. 4. 9. 5 Rep. 110. 32 Eliz. Syers Case a man indicted of felony done the first day of May where it was not done that day he cannot have an averment against it but his feoffee may 12 H. 7. 18. The King grants my land unto another by Patent I have no remedy by Scire facias 19 E. 3. Br. Fauxifer of recovery 57. F. N. B. 211. 20 E. 3. 6. 9 E. 4. 38. a. A man grants a rent and afterwards suffers a recovery the grantee shall not falsifie the recovery because he is a stranger to the recovery but he may distrain which is the same Case in effect with our Case for which cause I conceive that the distress is good and that the Replevin doth not lie Justice Heath the distress is unlawful for he ought to have a Scire facias clearly the conusor ought to bring a Scire facias See the Statute of 13 E. 1. Fulwoods Case 4 Rep. 2 R. 3. 15 H. 7. and the reason why a Scire facias is granted is because that when a possession is setled it ought to be legally evicted Besides it doth not appear in this Case when the time expired besides costs are to be allowed in a Statute as Fulwoods Case is and â—he same ought to be judged by the Court and not by a Jury which is a reason which sticks with me see the Statute of 11 H. 6. it is objected that the Grantee of the rent cannot have a Scire facias it will be agreed that the conusor himself cannot enter without a Scire facias and I conceive à fortiori not the Grantee of the Rent I do not say here there is fraud but great inconvenience and mischief if arrerages incurred for a great time as in this Case it was shall be all levied upon the conusee for any small disagreement as for a shilling without any notice given to him by Scire facias and he should be so ousted and could not hold over I hold that of necessity there ought to be a Scire facias and he ought to provide with the Grantor to have a Scire facias in some fit time but I hold that the Grantee here may well have a Scire facias I agree the Cases where it is to avoid a Record there ought to be privity as the Books are but here hâ— doth not avoid the Record but allows it for the Scire facias ought to be only to account 38 E. 3. The second conusee of a Statute shall have a Scire facias against the first conusee and I conceive that by the same reason the Grantee of the rent here shall have it and in that Case there is no privity betwixt the first conusee and the second conusee for which cause he did conclude that the distress was unlawful and that the Repleâ—in would
was well brought for the reasons before given and that Error is a Supersedeas to the Writ of Enquiry And it was entred for a Rule That in all Writs of Enquiry of damages notice ought to be given aswel in Real as Personal Actions 143. If a Prisoner will remove himself by a Habeas Corpus he shall pay the Costs of the Removal but it the Plaintiff will remove the Prisoner he shall pay reasonable charges 144. Dickenson Libelled against Barnaby in the Spiritual Court for these words D. is a Beastly Quean Drunken Quean Copper-nose Quean and she was one cause wherefore Barnaby left his wife and hath mispended five hundred pounds and that she keeps company with Whores And a Prohibition was prayed and granted because that the words are not actionable 145. Hill 16. Car. in this Court A. a poor man sold his estate for twenty pound yearly to be paid during his life for the security of which the Vendee was bound to A. and another in a thousand pounds the other releaseth the Bond the mony not being paid A. is compelled to have Relief of the Parish for his maintenance The Churchwardens and A. exhibited a Bill in the Court of Requests and there had remedy 146. A. and B. his wife Present to a Church to which they have no Right Question Whether that doth grant any thing to the wife or no Resolved No. For the wife is at the will of her husband and Presentation is but Commendation or the Act of the husband c. And it is not like unto an Entry in Land by them Mich. 16 Car. betwixt Nesson and Hampton Otherwise it is when the wife hath Right Sir John Pits Case 147. IN the case of Sir Iohn Pits Philizor of London it was moved that his Executors might have the profits of the Writs which are to be subscribed with his name forasmuch as all Process of the same suit ought to have the same name subscribed to them for the attendance of them being necessary they ought to have the profits according to it Tooleys case Hobarts Reports The reason which was given to the contrary was because there was another Officer who is to answer any damages by reason whereof he is to have the benefit 148. Judges are the only Expositors of Acts of Parliaments although they concern Spiritual things Searles case Hobarts Rep. 437. 4. E. 4. 37 38. 149. If horses be traced together they are but one distress And note Fetters upon a horse leg may be distreined with the horse Hillary 16º Car. in the Kings Bench. 150. A Merchant goeth beyond Sea and marrieth an Alien It was resolved that the Issue is a Denizen for the husband being the Kings subject the wife is not respected because she is at the will of her husband and also because they are but one person in Law Bacon and Bacons case 151. If a Town hath a Chappel and bury at the Mother-church and therefore have time out of mind repaired part of the Wall of the Church it is good to excuse them of repairing the Church Inhabitants of such a place prescribe to repair a Chappel of Ease and in regard thereof that they have time out of mind been free from all Reparations of the Mother-church it is good But if such a Chappel hath been built within time of memory then they ought to have proof of some agreement by virtue of which they are discharged of Reparations of the Mother-church Pasch. 17 Car. in the Kings Bench. The Inhabitants within the Parish of H. having a Chappel of Ease and custom that those within such a Precinct ought to find a Rope for the third Bell and to repair part of the Mother-church in consideration of which they have been freed from payment of any Tithes to the Mother-church Whether it be a good Custome or not Quaere for it was Adjorn Hillary 16º Car in the Common Pleas. 152. WHere the Ecclesiastical Court hath conusance of the cause there proceedings although they be Erroneous are not examinable in this Court. And it was given for a Rule That it is no cause to grant a Prohibition 153. The Sheriff in the Retorn of a Rescous said that he was in Custodia Ballivi Itinerantis And that a Rescous was made to his Baily Itinerant and it was not good otherwise if he had been Baliff of a Liberty for the Law taketh notice of him And therefore the Court did award that the Rescousers should be dismissed and that the Sheriff should bring in the man by a certain day at his peril Otherwise it is in the Kings Bench. 154. One cannot be Attorney within age because he cannot be sworn 155. Commissioners have a Warrant and they execute it with another who is a stranger to the Warrant It is good and the other person is but surplusage 156. A Prohibition after Sentence shall not be granted but in some especial case 157. It was Ordered by the Lords House of Parliament That only Menial servants or one who attended upon the person of a Knight or Burgess of the Parliament should be free from Arrest 158. Administration is granted to the wife the husband having many children Whether it be in the power of the Ordinary to make distribution or not First if there be an Executor then not Secondly After distribution there may be a Debt which was not known at the time and then the Administrator should pay it of his own goods And therefore there can be no distribution On the other side it was said If the Ordinary shall not distribute then if a man dieth Intestate and hath goods of the value of an hundred pounds and Administration be committed to the wise she should have all and the children nothing which would be hard 159. A thing which may be tried by a Jury at the Common Law is not triable in Chancery for in the first Case if they give not their Verdict according to their Evidence an Attaint lieth but in the other there is no remedy 160. After a Writ of Error granted a Warrant of Atturney cannot be filed if the party be alive who made the Warrant but otherwise if he be dead 161. A Declaration cannot be amended in matter of Substance without a new Original otherwise of Amendments of matter of Form 162. The Statute of 5 6 E. 6. cap. 1. and 1 Eliz. c. p. 2. prohibite any man to be absent from Church having no â—awful or reasonable cause A man was sued in the Ecclesiâ—stical Court for being absent from Church and he pleaded â—mething by way of excuse Hyde Serjeant prayed a Prohibition because they ought not to hold Plea of the excuse but the Court did agree that they might hold Plea of the excuse otherwise upon a false suggestion you would defeat the Ecclesiastical Court of all Conusans in such cases And therefore they were all against the Prohibition and by the Court they ought to plead their excuse there and if they will not admit of
it then a Prohibition shall be granted And note that it was said by Bankes Chief Justice that before the Statute of 1 Eliz. the Ecclesiastical Court might punish any person for not coming to Church pro reformatione morum salute animae 163. Where there are several Modus alledged there several Prohibitions shall be granted but where divers are sued joyntly and they alledge one Modus only there they shall have but one Prohibition by Reeve and Foster Justices the others being absent Pasch. 15º Car in the Kings Bench. Edwards and Rogers Case 164. THe Case was thus Tenant for life the Reversion to an Ideot an Unkle heir apparent of the Ideot levied a Fine and died Tenant for life died the Ideot died the only Question was Whether the Issue of the Unkle who levied the Fine should be barred or not Iones that it should his chief reason was because the Son must make his conveyance by the Father and as to him he is barred As in a Writ of Right he ought of necessity to name his Father and that by way of Title so here But Crooke and Barckley contrary and their reason was because that here the Issue of the Unkle doth not claim in the right line but in the collateral Secondly because the naming of the father here is not by way of Title but by way of pedigree only Note that Serjeant Rolls in the Argument of the Serjeants case which was the very point said that this case was adjudged according to the Opinions of Crooke and Barckley viz. that the fine should not bar the Issue The Serjeants Case aforesaid was Trin. 17 Car. 165. Payne the elder and Payne the younger were bound joyntly and severally in an Obligation to Dennis who afterwards brought Debt upon the Bond against both And after appearance Dennis entred into a Retraxit against Payne the younger and whether this were a discharge of the elder also was the Question And this Term it was argued by Maynard for the Defendant that it was a discharge of Payne the elder also for it doth amount to a Release and it is clear that a release to one shall discharge both Rolls contrary that it goeth only by way of Estoppel and not as a release and therefore shall not bar Barckley Justice that it amounts to a Release and therefore shall discharge both 7 E. 4. Hickmots case in the 7 Rep. the Plaintiff shall not have judgment where he hath no cause of Action And here by his Retraxit he hath confessed that he hath no cause of Action and therefore he shall not have judgment Further a Retraxit is not an Estoppel but a Bar of the Action besides here he hath altered the Deed and it is not joynt as it was before like as where he interlines it or the like there the Deed is altered by his own act and therefore the other shall take advantage of it Crook Justice contrary for it is not a Release but quasi a Release and if the Obligâ—e sueth one and covenanteth with him that he will not further sue him the same is in the nature of a Release and yet the other shall not take advantage of it So in this case 21 H. 6. there ought to be an actual Release of which the other shall take advantage and therefore in this Case because it is but in the nature of an Estoppel the other shall not take advantage of it Sprigge against Rawlenson 166. IN a Writ of Error to reverse a Judgment given in the Common Pleas in an Ejectione firme the Case was R. brought an Ejectione firme against S. and declared of an Ejectment de uno mesuagio uno repositorio And the Jury found for the Plaintiff and assessâ—d damages entire upon which a Writ of Error was brought here and the Error which was largely debated was that Rep. sitâ—rium which was here put for a Ware-house is a word uncertain and of divers significations as appeareth by the Dictionary And therefore an Ejectione firme de uno repositorio is not good and by consequence the damages which are joyntly assessed are ill assessed And in an Ejectione firme seism shall be given by the Sheriff upon a Recovery as in a Precipe quod reddat and therefore the Ejectment ought to be of a thing certain of which the Sheriff may know how to deliver seifin otherwise it is not good Barckley and Crook Justices were that the Judgment should be affirmed and that it was certain enough but Iones and Bramston Chief Justice contrary that it was utterly uncertain For that is Repositorium in which a man reposeth any thing and an Ejectione firme de uno tenemento is not good because there are several â—enements So here because there are several Repositories and the Sheriff cannot tradere possessionem and afterwards Barckley released his Opinion and judgment was given that the Judgment given in the Common Pleas should be reversed Trinit 17º Car ' in the Common Pleas. 167. A Man having a Legacie devised unto him out of a Lease for years which Indenture oâ— Lease was in the hands of a Stranger The Legatee suâ—d the Executors in the Spiritual Court to assent to the Legacie And Evars Serjeant prayed a Prohibition because they order that the Lease should be brought into Court which they ought not to have done being in the hands of a stranger But the Prohibition was denied by the whole Court for they may make an executor assent to a Legacie out of a Lease and therefore may order that although that the Lease be in the hand of a third person that it shall be brought in to execute it For the Order although it be general binds only the Defendant and it was agreed by the Court that assets or not assets is triable by them Juxon against Andrewes and others 168. IN an Ejectione firme the Defendants pleaded not guilty the Jury found them not guilty for part and guilty in tanto unius messuagii in occupatione c. quantum stat super ripam and whether this Verdict were sufficiently certain so as the Court might give judgment upon it and execution thereupon might be had was the question And by Whitfield Serjeant the Verdict is certain enough it hath been adjudged that where the Jury find the defendant guilty of one Acre parcel of a Mannor that it was good so of the moiety of a Mannor which is as uncertain as in this case And it is as certain as if they had said So many feet in length and so many in breadth for if the certainty appeareth upon the view of the Sheriff who is to deliver the possession it sufficeth and Clark Serjeant who was of the same side said that it is a Rule in Law Quod certum est quod certum reddi potest and this may be reduced to certainty upon the view of the Sheriff and therefore it is certain enough Besides it is the finding of the Jury who are lay gents M. 8. Iac. in
well lie Bramston Chief Justice for the Avowant that 〈◊〉 may well distrâ—in and cannot have a Scire facias but if he may have a Scire facias yet he may distrein without it There is no authority in the Law directly in the point in this Case I agree that if there be any prejudice to the conusee there it is reason to have a Scirâ— facias It was objected that it is a constant course to have a Scire facias in this Case But I believe you will never find a Scire facias brought by the Grantee of a rent or other profit apprender Besides the best way to judge this Case is to examine what the Scire facias is which ought to be brought and what the Judgment is which is given upon it whether he may recover the thing in demand or not vid. 32 E. 3. Fitz. Scire facias 101. 47 E. 3. 11. which are brought to have account and to shew cause wherefore he should not have the land see Fitz. Scire facias 43. v. The old Entries the Judgment which is given thereupon and the demand there is quod tenement praed redeliberatur and may the grantee in this Case have the land and thing in demand certainly not and that gives sufficient answer to the Cases objected by my Brother Heath where the second conusee shall have a Scire facias against the first Besides you shall never find in all our Books that a man shall have an attaint or a writ of error but he who may be restored to the thing lost by the judgment or verdict 2 R. 3. 21 Dyer 89. 9 Rep. the Lord Sanchars Case so in debt and erroneous Judgment upon it wherewith agreeth Doctor Druries Case 8 Rep. 12. 18 E. 3. 24. the feoffee shall have a Writ of Error because he shall have the land and see 32 E. 3. Scire facias 101. And the grantee shall not have a Writ of Error in this Case upon erroneous Judgment and for the same reason he shall not have a Scire facias and the grantee cannot have a Scire facias for want of privity and therefore I conclude that he cannot have a Scire facias for if he might certainly it would have been brought before this time either for this cause or for some other profit apprender It was objected that he shall not be in better condition than the conusor that is regularly true as to the right but he may have another remedy It was objected that the reason why that a Statute without a Scire fatias shall not be defeated is because he is in by Record and therefore shall not be defeated without Record but that is not the true reason but the reason is because the conusee ought to have costs and damages besides his debt as is Fullwoods Case 4 Rep and 15 H. 7. 16. is that the Chancellor shall judge of the costs and damages But 47 E. 3. 10. 46 E 3. Scire facias 132. by all the Judges that they lie in averment But here an inconvenience was objected that great arrerages should be put upon the conusee for a little mistaking to that he said that of a small mistake the Court shall judge and it shall not hurt him but if he hold over being doubly satisfied it is reason that he pay the arâ—erages and he put this Case A man acknowledgeth a Statute and afterwards makes a lease to begin at a day to come the lâ—ssee shall have a Scire facias for where remedy doth fail the Law will help him for which cause he concluded and gave Judgment for the avowant Trin. 18 Car ' in the Kings Bench. Paulin against Forde 248. AN Action upon the Case brought for words the words were these Thou art a thievish Rogue and hast stolen my wood innuendo lignum c. Gardiner the words are not actionable because it shall be intended wood standing or growing and not wood cut down and so he said it had been adjudged so if a man says of another that he hath stollen his Corn or Apples the words are not actionable because they shall be intended growing Bramston Chief Justice that the words are actionable because that wood cannot otherwise be meant but of wood cut down because it is Arbor dum crescit lignum dum crescere nescit for which cause he conceived that the words were actionable and it was adjorned Chambers and his wife against Ryley 249. ACtion upon the Case for words the words were these Chambers his wife is a Bawd and keeps a Bawdy-house for which words the Action was brought and the conclusion of the Plea is ad damnum ipsorum Wright the words are not actionable because it is not the wife that keeps the house but the husband and therefore the speaking the words of the wife cannot be any damage to him but admit the words were actionable the husband only ought to bring the Action because the speaking of the words is only to his damage Bramston Chief Justice the wife only is to be indicted for the keeping of a Bawdy-house and therefore she only is damnified by the words and the husband ought to joyn in the Action but that is only for conformity and the conclusion of the Plea is good for the damage of the wife is the damage of the husband and therefore ad damnum ipsorum good And here it was agreed that to say that a woman is a Bawd will not bear an Action but to say she keeps a Bawdy-house will Porter who was for the Action cited a Case which was thus One said of the wife of another that she had bewitched all his beasts and she and her husband joyned in an Action and upon debate it was adjudged good and there the conclusion also of the plea was ad damnum ipsorum Rickebies Case 250. RIckebie was indicted in Durham for Murder and afterwards the Indictment was removed into the Kings Bench where he pleaded his Pardon which Pardon had these words in it viz Homicidium feloniam felonicam interfectionem necem c. seu quocunque alio modo ad mortem devenerit And note there was a Non obstante in the Pardon of any Statute made to the contrary and whether these words in the Pardon were sufficient to pardon Murder or not was the Question Hales for the Prisoner said that the Pardon was sufficient to pardon Murder and in his argument first he considered whether Murder were pardonable by the King at the Common Law or not and he argued that it was the King is interessed in the suit and by the same reason he may pardon it It is true that it is Malum in se and therefore will not admit of dispensation nor can an appeal of Murder which is the suit of the Subject be discharged by the King but the King may pardon Murder although he cannot dispense with it see Bracton lib. 3. cap. 14. And the Law of the Jâ—ws differs from our Law