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justice_n	chief_a	law_n	sergeant_n	2,698	5	10.7632	5	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A29389	Reports of that grave and learned judge, Sir John Bridgman, knight, serjeant at law, sometime chief justice of Chester to which are added two exact tables, the one of the cases, and the other of the principal matters therein contained.	Bridgman, John, Sir.; J. H.; England and Wales. Court of Common Pleas.	1659 (1659)	Wing B4487; ESTC R19935	180,571	158

REPORTS OF THAT GRAVE and LEARNED JUDGE Sir JOHN BRIDGMAN KNIGHT Serjeant at LAVV SOMETIME CHIEF JUSTICE OF CHESTER To which are added Two Exact Tables the one of the Cases and the other of the Principal Matters therein contained LONDON Printed by Tho. Roycroft for H. Twyford Tho. Dring and Jo. Place and are to be sold at their Shops in Vine Court Middle Temple the George in Fleetstreet and at Furnivals Inn Gate in Holborn 1659. TO THE STUDENTS OF THE COMMON LAWS OF ENGLAND Gentlemen THese Ensuing Reports being brought to me in Manuscript in the peculiar Dialect of our Common Law I discovered the same to be the Hand-writing of that late Judicious and Honorable Person Sir John Bridgman Knight deceased Serjeant at Law heretofore Chief Justice of Chester the memory of whose great Learning and profoundnesse in the Knowledge of the Laws of England still liveth although himself be dead and thereupon bestowed some pains in the perusall thereof wherein I found many things in my weak apprehension worthy of observation which induced me to encourage the Translation thereof into our Native Idiome the Language enjoyned by the present Authority onely to be Used in things of this Nature whereby the same might become of publike Use if any well acquainted with the Authors Character shall doubt the Credit of this Copy they may have the sight of the Originall the better to satisfie themselves by the help of the Stationer The Cases are not placed in time as the same were adjudged but Printed in that order as they were found under the Authors own Hand For this Defect it is hoped that the Table may make amends which you will finde to be a perfect Repertory as to each materiall thing contained in this Book What faults have escaped the Presse will lye in the power of the judicious Reader to correct Mr. Bracton in his first Book Cap. 2. saith Si aliqua nova inconsueta emerserint quae prius usitata non fuerint in Regno Si tamen similia evenerint per simile judicentur cum bona sit occasio a similibus procedere ad similia Let this serve to Apologize for such encouragement as hath been given by me for the publishing of these Reports I having no other aim herein then the Publike good Farewell J. H. Middle Temple 5 Nov. 1658. THE NAMES of the CASES A ALlens case 13 Iac. 39 Ashfields case 14 Iac. 99 Adams case 15 Jac. 107 Agards case 15 Jac. 130 B Bassets case 8 Bishop of Chichesters case 1 Car. 29 C Crockers case 27 Coopers case 60 Crawleys case 13 Jac. 64 D Dawtrees case 18 Jac. 4 Davisons case 5 E Evans case 16 Jac. 118 F Frossets case 14 Jac. 49 G Garths case 22 Gouges case 12 Jac. 52 H Harris and Lewess case 56 Hollands case 69 K The King against Sir John Byron 23 The King Allen against Newton 15 Jac. 113 The King Parker against Webb 14 Jac. 120 L Loyds case 56 Lightfoots case 14 Iac. 88 Lees case 15 Jac. 116 Lingens case 15 Jac. 128 M Moores case 6 Meskins case 16 Mills case 63 Masons case 14 Jac. 87 Mandes case 13 Jac. 92 Mittons case 123 Muschamp and Lock against Blewit Sampson and Jenny c. 132 N Norris case 13 Iac. 47 Newshams case 14 Iac. 100 P Pets case 17 Iac. fo 1 Ponesleys case 18 Iac. 12 Perimans case 14 Sir Thomas Palmers case 11 Iac. 46 Pensons case 66 Parkers case 14 Iac. 89 Perryns case 12 Iac. 90 R Robinsons case 13 Iac. 79 Robinson against Greves 12 Iac. 81 S Samborns case 19 Iac. 9 Smalmans case 13 Iac. 42 Smith for the King against Boynton 13 Iac. 48 Smiths case 13 Iac. 59 Standishes case 14 Iac. 103 Southerns case 13 Iac. 125 T Townleys case 35 U Vanlores case 14 Iac. 58 W Whittons case 32 Weals case 14 Iac. 60 Webbs case 13 Iac. 84 Webb and lucks case 14 Iac. 110 Woods case 16 Iac. 139 THE REPORTS OF Serjeant BRIDGMAN Hill 17 Jac. Rotulo 170. Petts against Browne A Man is seised of Land in Fee and having two Sons doth devise his Land to his younger Son and his Heirs and if he dye without Issue living the eldest Son then the elder shall have the Land to him and his Heirs the Devisor dies the younger Son had issue a Daughter that dyed without issue then the younger Son suffers a common recovery with Voucher to the use of him and his Heirs and after deviseth to another and his heirs and then dies without issue living the elder Son Whether the Devisee or the elder Son should have the Land was the question And the Counsell for the Devisee raised three points 1. Admitting that these words in the Devise were omitted viz. living the eldest Son whether the younger Son had an Estate-taile or not 2. Whether these words do make such alteration of the Estate as to make the Estate a Fee-simple determinable upon this contingency viz. if he die without issue living the elder Son 3. Admitting that there were such a Fee in the younger Son yet whether this Estate devised to the eldest Son be not destroied by the recovery And as to the first point it was argued that if these words of limitation living the elder Son had been omitted the younger son had had an Estate-tail by this Devise the remainder in fee to the eldest Son For although the Devise to the younger Son was to him and his heirs which in case the Devise had stayed there had made a very good Fee-simple to the younger Son yet when the Devisor goes and declares further and deviseth that if he dye without issue that the elder son shall have the Land this last limitation if he dye without issue doth restrain the generality of these words his heirs to the heirs of the body of the younger Son only so that the last Devise to the eldest Son doth declare and exemplifie wh●t kind of heirs the Devisor intended in the first Devise to the youngest Son and in the 5 H. 6. and the 5. where Land was given to R. and K. his Wife and their heirs and to the heirs of the said R. if the heirs of the said R. and K. his wife issuing should dye and this was adjudged a good Estate in tail And there it was said by Hall that if Land be given to a man and his Heirs for ever Et si contingit ipsum Obire sine haeredibus de corpore suo this is a good estate in tail and in the 19 H. 6. 74. by Vampage If I give land to another and his heirs for ever in the beginning of the Deed and then after I say Quod si contingat that if he die without heirs of his body that it shall remain to another in this case the Law intends by the Si contingat that it is but an Estate-tail And in the Book of Assises 14. Land was given to B. and his heirs to have and to hold to

any Lands Tenements or Hereditaments parcel of their Bishopricks or any charge or incumbrance out of the same or of any other thing in their disposition to binde their Successors except onely Leases for 21 years or three lives of such Lands Tenements and Hereditaments which have been usually demised or whereupon the usual Rents have been reserved according to the said Act. And although such Lease be made of such Lands usually demised reserving the usual Rent according to the said Statute yet unless all the limitations prescribed by the Statute of the 32 of Hen. 8. be not pursued as if it be not all in possession or that the old Lease be not expired or surrendred within one year which is not prohibited by the first of Eliz. as it was adjudged in Foxes Case then such Lease will not binde the Successor unless it be confirmed by the Dean and Chapter And such construction as aforesaid hath been made to disable a Bishop to make any Estate except Leases for 21 years or for three lives as is aforesaid as concerning the binding of the Successor as the Grant of the next avoydance by a Bishop to another although it be confirmed by the Dean and Chapter is restrained by the said Statute of Elizabeth to binde the Successor as it hath often been judged and the reason is because it is such an Hereditament whereon no Rent may be reserved for all in the Statute that is not permitted in the Exception is restrained as to the Successor by the general purview of the said Act but yet such Grant will binde the Bishop himself although the Statute says that it shall be voyd against all intents and purposes for the makers of the said Act did intend not onely the advancement of Religion but also increase of good Hospitality and avoyding dilapidations and ruine of the Church which the Successor if the Acts of his Predecessor should binde him were not able to remedy and therefore the makers of that Act did rather regard the Successor And these words in the Act viz. Parcel of the possessions of his Archbishoprick or Bishoprick or united belonging or appertaining to the said Archbishoprick or Bishoprick may be very aptly construed That the Gift of this Office and all other such like things that are belonging to the Archbishoprick or Bishoprick for although the Bishop cannot exercise this Office himself yet hath he an inheritance in the gift and disposing thereof and so it is adjudged in Cooks 8 Rep. Earl of Rutlands Case And these words Belonging to the Archbishoprick or Bishoprick shall be expounded for Concerning the Archbishoprick or Bishoprick And therefore if a Writ of Annuity be brought against a Bishop upon a title of prescription or otherwise and Iudgment be given against him upon Verdict or confession this is restrained by this Act because the Bishop is charged with this Annuity in respect of his Bishoprick and therefore the Successor shall be charged with the arrears incurred in the life of the Predecessor 21 H. 7. 4. 48 Ed. 3.26 33 H. 6. 44. and yet is not the Annuity issuing out of the Bishoprick as appears in the 10 H. 6. 10. and 10 Ed. 4. 10. But because this does concern the Bishoprick and does tend to the diminution of the revenues and the impoverishing of the revenues this is restrained by the said Act of the first of Eliz. And therefore to answer to the Objection Wherefore such an Office should be granted to one solely I answer and it was also agreed to by all the Court That if the Office be ancient and necessary the Grant thereof with the ancient fee is no diminution of the Revenue or dispoverishing the Successor and therefore of necessity such Grants are exempted out of the general restraint of the said Act of Elizabeth For as Bracton saith Illud quod alias licitum non est necessitas facit licitum necessitas inducit privilegium quod jure privatur And if Bishops have not power to grant such Offices of service and necessity for the life of the Grantees but that their estates shall depend on incertainties as on the death or transmutation of the Bishop then no able or sufficient persons will be willing to serve them in such Offices or at least will not discharge their Office with any cheerfulness or alacrity if they may not have such estate in certain for the term of their lives as their Predecessors had but when an ancient Office is granted to one it is not of necessity to grant the same to two and therefore such Grant is not exempted out of the general restraint of the Statute no more then if the Bishop should grant an Office with the ancient fee to one and then he grants the Reversion to another this is restrained by the Statute because it is not of necessity and if the Bishop may grant such Offices to two he may grant them without any limitation of lives and by consequence ad infinitum and so if he may grant a Reversion to one so he may to others also without any limitation and by the same reason he may grant them in Tail or in Fee which is quite contrary to the intention of the said Act. And of such opinion was Popham Chief Iustice Michaelm 44 45 Eliz. in Stumblers Case and Dyer 23 Eliz. 370. where Horn Bishop of Winchester did grant to Dr. Dale during his life a Rent out of the Mannor of Waltham pro concilio impendendo the Bishop dyed and because the Rent was arrear Dr. Dale brought an Action of Debt for the arrears incurred in his life against the Executors In which two points are to be observed 1. That the Grant was not voyd against the Bishop himself The other That although the Rent was issuing out of the possessions and not parcel this was voyd by his death And Trin. 30 Eliz. Rot. 346. in this Court The Bishop of Chester after the Statute of 1 Eliz. did grant to George Boulton an Annuity of five marks per annum pro concilio impenso impendendo which was confirmed by the Dean and Chapter and then the Bishop dyed and Boulton brought a Writ of Annuity against the Successor and in his Count did aver that the Predecessors of the said Bishop had granted reasonable Fees but did not aver that this Fee had been granted before and did aver that he was homo consiliarius in lege peritus and the Opinion of the Court was against the Plaintiff But there it was resolved that although the said Bishoprick was founded but of late times to wit in the time of Hen. the eight yet a Grant of an Office of necessity to one in possession with reasonable fees the reasonableness whereof is to be decided by the Court of Iustice wherein the same doth depend is good and is restrained out of the general words of the said Act. And in our Case the avowant hath averred this Office to be an ancient Office and which hath

portion not payd then if the Defendant shall pay to the said Susan the said 400 l. within six weeks after the said first of May to such person to whom the said Elizabeth by the said Will ought to pay the same and shall procure good and sufficient discharge to the said Elizabeth of the said sum of and from all persons to whom the same shall be due that then all the said Obligations shall be voyd and delivered up to the Defendant cancelled and made voyd And the said Elizabeth did covenant that until manifest default was made in the premisses and the said Elizabeth shall be thereof damnified and upon reasonable request no satisfaction shall be given to her she will not take any advantage by reason of the said Obligation nor will prosecute any Suit against the Defendant or any other bound in the said Obligation And the Defendants said that the Plaintiffs nor any of them was not damnified by reason of the said Obligation in the Declaration or by reason of any of the said other Obligations and did aver the said Obligation in the Declaration and the said Obligation of 120 l. in the Indenture to be all one and that the said several days of payment limited by the Indenture nor any of them at the time of the Writ purchased were incurred Vpon which Plea the Plaintiffs demurred and the Defendant did joyn And I conceive that Iudgment ought to be given for the Plaintiffs for the Plea is utterly insufficient for divers causes And yet I do agree that although the Obligation be upon a condition yet is the Indenture a Defeasance thereof so that it is sufficient to the Defendant to perform the one or the other But the Indenture is of two parts 1. That if the Defendant shall pay to Elizabeth the daughter 500 l. and shall perform the other things mentioned in the Plea that all the Obligations shall be voyd and delivered up 2. The Plaintiff Elizabeth did covenant that until the Defendant should make default in the premisses and she should be damnified and upon request no satisfaction given to her she should not take any advantage of the Obligation nor shall prosecute any Suit against the Defendant or any other bound in the said Obligation And as to the first part I do agree that this is a good defeasance of the Obligation but the last clause is onely a Covenant and cannot be pleaded in bar of this Action brought upon this Obligation as in the 21 H. 7. 30. John de Pusetoes Case The said John and others were bound to T. who by Deed did grant to the said John that he should be quite discharged of the duty and if he be vexed or sued that the Bond shall be voyd which Case is there very largely argued but I conceive the better Opinion to be that the Bond is discharged because that the words are in effect as the words in the first part of this Indenture scil That if such act be made the Obligation shall be voyd But there Fineux said That if I grant to my Tenant for life that he shall not be impeachable for waste he shall not plead this in Bar but shall have an Action of Covenant thereupon And Brudnell put this case That if I grant to one against whom I have cause of Action that I will not sue him within a year this is not any suspension of the Action Vpon which case it is to be observed that I may sue and the other is put to his Action of Covenant And the Plea is first insufficient because he pleads that the Plaintiffs nor any of them were damnified by reason of the Bond in the Declaration or by reason of any of the aforesaid Writings obligatory in the said Indenture specified but he does not answer to the damnification by reason of the 500 l. to be payd to Elizabeth the daughter which is the principal matter to be done by the Defendant for the defeasance and in truth this Portion was due and not payd before this Suit begun The Defendant did aver that the several days of payment limited by the Indenture are not incurred and there is not any day limited for the payment of 500 l. and the truth was that it is payable at the time of the marriage of Elizabeth the daughter but this is not limited by the Indenture nor any time for the payment thereof and therefore this a verment is not good The Indenture of the Defeasance is if the Defendant shall pay the 500 l. or procure to the Plaintiff Elizabeth sufficent discharge for the same and shall provide fit maintenance for Elizabeth the daughter Whereupon I conceive that the Defendant ought to pay 500 l. and provide maintenance for the daughter or otherwise that he should procure a discharge from the Plaintiff Elizabeth and shall also provide maintenance for the daughter for her maintenance is as necessary if the mony be payd as it will be if the discharge be procured And the Defendant hath made no answer to the providing of maintenance Judgment And Michaelm 15 Jacob. Iudgment by all the Court was given for the Plaintiff Rot. 590. Trinit 16 Jacob. Margaret Evans against Wilkins IN an Action on the Case for that the Plaintiff the 12 September 15 Jacob. did retain the Defendant to be her Shepherd c. and that the Defendant in consideration of 6 d. to him payd by the Plaintiff and of 33 s. 4 d. of his Sallery to be payd to him for a year and in consideration that the Plaintiff did assume to pay the 33 s. 4 d. to the Defendant and to finde him meat drink and lodging for the said year and to permit the Defendant to have Pasture for twelve Sheep with the Sheep of the Plaintiff Did assume to serve the Plaintiff as a Shepherd for one year from Michaelmas next c. and to keep her Sheep To which the Plaintiff giving credit did not retain any other Shepherd and the Plaintiff did aver that she was ready to pay the Defendant the said 33 s. 4 d. and to provide him meat c. and to permit him to have Pasture for twelve Sheep with the Sheep of the Plaintiff yet the Defendant did not feed the Sheep of the Plaintiff although required the 4 Octob. 15 Jacob. whereby many of her Sheep dyed ad damnum 40 l. The Defendant pleaded the Statute of the 5 Elizab. whereby it is enacted That the Justices of Peace of every County or the greater part of them then resident in the County and also the Sheriff if it may be and every Major Bayly or other chief Officer of any City or Town Corporate in which there shall be any Justice of Peace within the limits of the said Town before the tenth of Iune next coming and afterwards shall yearly at every general Sessions first held and to be kept after Easter or any convenient time after Easter shall meet together and after such meeting shall call

50 l. for every month after such conviction and if default shall be made in any such payment that the Queen may by Proces out of the Exchequer take seise and enjoy all the goods and two parts as well of the Lands Tenements and Hereditaments Leases and Farms of such Offendor as of all other Lands Tenements and Hereditaments liable to such seisures or penalties leaving a third part onely of the said Lands Leases and Farms for the relief of such Offendor his Wife Children and Family And for the more speedy conviction of such Offendors it was enacted That upon the Indictment of such Offendor proclamation shall be made at the Assises or Gaol-delivery where such Indictment shall be made whereby it shall be commanded that the body of such Offendor shall be rendered to the Sheriff of the same County before the next Assises and Gaol-delivery and if such Offender does not appear at the said next Assises and Gaol-delivery that then upon such default recorded the same shall be sufficient conviction of such Offendor as if a Tryal by Verdict had been had and recorded And the Defendants further said that the 19 of March the first of King James the Iustices of Assise and Gaol-delivery at the Assises and the Iustices of Peace at the Quarter Sessions have authority to enquire and determine of all Recusants as well for not receiving the Communion as for not repairing to Church according to the form of the Lawes in such manner and form as the Iustices of Assises and Gaol-delivery may do and also shall have power to make proclamation whereby a Precept shall be had for the rendring the body of the Offender to the Sheriff before the next Assises or Gaol-delivery or the next quarter Sessions c. And they said that before the Information viz. at the Assises and Gaol-delivery held at Westminster 8. August 12 Jac. before Sir Henry Hobard chief Iustice of the Bench and Sir Laurence Tanfeild chief Baron of the Exchequer Iustices of Assise and Gaol-delivery in the County of Southampton the said Katherine by the Oath of Robert Pawlet Esquire c. scil nineteen in all which were sworn and charged to enquire for the King and the body of the County was indicted for that the said Katherine the first of April 11 Jac. was of sixteen years of ago and did not repair to the Parish Church of Porthchalford nor to any other Church Chappell or usuall place of Common Prayer and was there at the Common Prayer and Divine Service at any time within one month next ensuing the said first of April 11 Jac. but did abstain from the same from the said first of April for amonth contrary to the form of divers Statutes c. upon which Indictment at the said Assises and Gaol-delivery publick Proclamation was made that the said Katherine should render her body at the next Assises and Gaol-delivery to render to the King according to the Statute c. at which next Assises and Gaol-delivery the sixth of March 12 Jac. before the said Iustices the said Katherine did not render her body according to the said Proclamation nor appear upon Record whereupon the said Katherine of the Premisses whereof she was indicted was lawfully convicted and yet stands convicted according to the Statute And the Defendants further said that they the aforesaid Term of Easter next after the conviction aforesaid the said Katherine did not pay nor any of them did pay into the Exchequer according to the rate of twenty pounds for every week contained in the said Indictment nor did after the conviction in the said Exchequer so much as then did remain not payd according to the rate of twenty pounds for every month after such conviction but thereof made default which conviction afterwards viz. in the Term of S. Michael then next after the conviction as aforesaid by the said Sir Henry Hubbert and Laurence Tanfeild Iustices c. was extreated and certified into the Exchequer and so there did remain according to the form of the Statute c. and the said conviction yet does remain in full force and this they are ready to aver with that also that the said Katherine named in the Information and the said Katherine named in the Indictment are one and the same person Vpon which Plea Mr. Attorney demurred in Law and the Defendants did joyn And I conceive that Iudgment ought to be given for the King and the Informer against the Defendants In which first it is to be considered that neither the Statute of 28 Eliz. nor the Statute 35 Eliz. which give severall remedies to the King for the monthly forfeiture of twenty pounds given by the 23 Eliz. doe not restrain the Informer but that notwithstanding those Statutes any one may inform against any Recusant for not repairing to Church against the Statute of 23 Eliz. unlesse the King hath first taken his remedie against him for the same offence for that was adjudged by all the Court in Dr. Fosters Case 11 Rep. And as I beleive this will be granted and by the Defendants Councell so I will agree with them that if the Recusant be once convicted and punisht at the suit of the King he shall not be punisht for the same offence again at the suit of the Informer or otherwise for it is unjust to punish an Offender twice for one Crime And therefore the chief matter to be considered in this Case is the nature and force of this conviction against the wife and whether it be such a conviction as will bar the Informer of his Information or not And as to that first the woman is indicted here of Recusancy and proclaimed according to the Statute of 28 Eliz. and she did not render her body whereby she is convicted by this Statute but this conviction is not any Iudgment for the true words of the Statute are That if the party indicted shall not appear but make default after such Proclamation that then upon such default recorded this shall be a sufficient conviction in Law of such Offender as if a Tryall by Verdict had been had and recorded so that such default of appearance is made equivalent to a Verdict by that Statute but not to a Iudgment so that now it is to be understood that the woman in this Case is convicted by Verdict of Recusancy but no Iudgment is given And I conceive that such conviction is no Bar to the Informer For that this is a fruitlesse conviction and such a one as the King can take no advantage of and every conviction that shall make a discharge to the person convicted ought to be a legall and absolute conviction and such a one as thereby the party convicted may suffer the penalty imposed by the Law for such offence And that the King can have no benefit of this conviction is apparent for the remedy given to him by the 28 Eliz. for the penalty is to seise all the Goods and two parts of the Lands and