Habeas Corpora returned by the Sheriff and these words omitted Videlicet Quilibet Iur. per se seperatim Attach est per Pleg I. D. R. R. exitus eor cujuslibet x. s. R. W. M. L. Vic. and it was amended by the Court. ANdrews versus Delahay an Attorney of the Common Pleas Hill 14. Jac. rotulo 3057. A Bill filed against the Defendant as an Attorney upon two Bills obligatory for payment of Money and one of the Bills was not payable and due at the time of exhibiting the Bill and the Defendant pleads to Issue and the Cause received a Triall and a Verdict for the Plaintiff and afterwards the Defendant in Arrest of Judgement moved that one of the Bills were not payable at the time of exhibiting the Bill against him and thereupon the Plaintiff remitted his Damages and had Judgement for the Bill that was due HArris versus Cotton As long as the Vicar occupies his Gleab-land in his own hands he shall pay no Tithes but if he demise it to another the Lessee shall pay Tithes to the Parson that is impropriate If the Vicar sow the Land and die and his Executor takes away the Corn and doth not set forth his Tithe and the Parson brought an Action of Debt upon the Statute of 2 Ed. 6. and the Court seemed to incline that it would lie DArrell versus Andrew Mich. 14. Iaeobi rotulo 2327. An Action of Debt was brought in London for Rent reserved upon a Demise of Lands in Cawson in the Parish of D. in the County of War and of one capital Messuage The Defendant pleads Extinguishment of Rent because the Plaintiff had entred into one House called the Wooll-house and into one Buttry at the upper end of the Hall of the said House and in one House called the C. parcell of the Premises before demised upon the Defendants motion and had expelled the Defendant out of the Possession thereof and the Venire facias was of Cawson within the Parish of Dale and Exception taken because it was Infra Parocham but my Lord Hubbard said that where Land is laid in Dale in the Parish of Dale that the Venire facias may be made of Dale or within the Parish or of the Parish and both good HAll versus Winkfield An Action of Debt brought in London for a 100. l. and the Plaintiff declared upon a Recognisance taken at Serjeants Inn in Fleetstreet London before the Cheif Justice of the Common Pleas and afterwards inrolled in the Common Pleas at Westminster in Middlesex And the Defendant demurred to the Declaration and the Question was whether the Action should be brought in London or Mid. And note the Recognisance as soon as it is acknowledged is a Record and shal relate to the time of the taking to binde Serjeant Hutton said that a Scire facias may issue upon a Recognisance taken out of Court into any County and none is bound to sue Scire facias where the Recognisance is taken but after it is inrolled in the Court an Action of Debt shall be brought in the County of Middlesex At the Common Law the Execution was by Levari facias and after the Year an Action of Debt it is not a Recognisance consummate untill it be inrolled in the Court yet it taketh its life by the first acknowledgement for if you have an Action of Debt or Trespass in a forrain Shire when you have recovered Debt or Trespass your Debt or Trespass is now altered and made new My Lord Hubbard held that if I bring Debt in Norfolk and I have Judgement and bring an Action of Debt upon that Judgement it must be brought in Middlesex and so in Trespass The Inrolment of the Recognisance is but a fortification of the Recognisance MOrtimer versus Freeman Hill 9. Iacobi rotulo 2001. An Action of Debt brought for not setting out of Tithes to which the Defendant pleads Nil debet per patriam and to prove that the Plaintiff was not Parson he shewed a Deprivation of the Plaintiff for Drunkenness by the high Commissioners and the Court held for such a common Fault after Admonition the high Commissioners might deprive a Minister but because this Crime of Drunkenness was committed before the general Pardon and that the Sentence was given after the Pardon the Sentence was void For Wooll or Lamb no Action lieth upon the Statute for they are not predial Tithes nor for small Tithes If an Action of Debt be brought upon two Contracts and both found for the Plaintiff in that Case the Jury may tax Damages intire but the safer and better way is to sever the Damages for it may come to pass that an Action will not lie for one of the two and if it will not lie then your labour and charge is lost An Action of Debt brought for 300. l. upon an Obligation The Defendant after a general Imparlance demands Oyer of the Bond and pleads specially that it was but for 30. l. and it was not allowed after a general Imparlance And the Defendant pleaded that it was not his Deed which was the proper Plea in that Case PReston versus Dawson Pasch 11. Jacobi rotulo 2310. An Action of Debt brought upon a Bond for performance of Covenants in an Indenture in which Indenture was this Covenant following that the Vendor should make further Assurance at the cost and charges in the Law of the Purchasor and for Breach it was alleadged that a Note of a Fine was devised and ingrossed in Parchment and delivered to the Vendee to acknowledge the Fine at the Assises which he refused to do and the Plaintiffs Breach was demurred upon because he did not offer Costs to the Vendee and the Court held it to be idle GLyver versus Lease Trin. 11. Jac. rotulo 734. An Action of Debt brought upon a single Bill The Defendant pleads that he did infeoff the Plaintiff of Lands in satisfaction of that Debt and the Plaintiff demurred upon it and upon reading the Record ruled to be a naughty Plea to a single Bill otherwise it had been upon a Bond with a Condition to pay Money WIlliamson versus Barnsley Trin. 12. Jac. rotulo 1291. An Action of Debt brought upon an Obligation with a Condition to perform Articles that he before Easter Terme next following at the Request of the Plaintiff should surrender and yeild up to the Plaintiff his Letters Patents of the Stewardship of Bromsgrove to the intent that he might renew the said Letters Patents in his own name and it was objected at Barr that the Office of a Steward of a Court Leet or Court Baron was within the Statute of 5 E. 6. made against buying of Offices that were for Ministration and so Winch held the Stewardship of a Leet to be within the Statute and so was adjudged in Grays Case but the Question was whether the agreement to surrender be within the Statute or no the words
Canterbury shall not be avoidance of the said Canon and he agreed that a Canon against Statute Law or Common Law or any Custome shall not bind the Subject and agreed that so it had been adjudged in this Court But he denyed that the exposition of any Statute belonged to the Ecclesiasticall Court for the Statute is meer temporall though it concern spirituall things and it shall be expounded according to the Rules of the common Law see 5. Edw. 4. Keasors Case And so concludes that this suit was against the Statute of 23. H. 8. For it ought to have its beginning in the Court of the Bishop of London And this exposition of the Statute is made for the Defendant 94. Canon which was ex presly made against the Court of Arches and inflicts suspension by the space of three moneths upon the Judges which offend against it from their Office and awarded that Prohibition shall be granted and with that agreed Warburton and Foster Justices but Walmsley Justice was of contrary opinion that is that no Prohibition shall be granted by the Court of Common Pleas but in case where the Suit is there hanging And this was objected also by the Civilians And the opinion of the Judges of the Kings Bench cited to prove it but prohibition was granted that notwithstanding And to the objection that the Arch-Bishop of Canterbury may have a consistory in the diocesse of every Bishop this was denyed but only where he was the Popes Legate and thenas Legate heshall have Jurisdiction of all the Diocesse of England it was agreed that there were three sorts of Legats First Legates a Latere and these were Cardinalls which were sent A Latere from the Pope The second A Legate born and these were the Arch-Bishops of Canterbury Yorke and Ments c. And these said Legates may cite any man out of any Diocesse within their Provinciall then there is a Legate given and these have Authority by speciall commission from the Pope Daringtons Case DAringtons Case was cited before the high Commissioners of the King for maintenance of the opinion of Brownisme and for slandering of one Mr. Eland a Minister and also of the Judges of the Common Law and was sentenced that for the first he should make his submission before the said Commissioners and also for the second that he should make submission to Mr. Eland and confesse his offence to him and pray that he will forgive him and so for the third also that he should make submission and that he shall be committed to prison untill he perform the said sentence and put in security that he will not here after make a Relaps in any of the said offences and after he made submission for the first offence according to the sentence and upon complaint to this Court Habeas Corpus was awarded to the Keeper of the Prison in which he was to bring in his Body with the cause of his taking and detaining and he certified the causes aforesaid but not the Submission and these were the causes of the taking and detaining of the said Darington and it was prayed by Serjeant Nicholls that he might be delivered and Coke cheife Justice said that the Ordinary by the common Law nor by the Statute De circumspecte aegatis cannot imprison for any offence though it be for Heresie Schisme or other erronious crime whatsoever and then by the Statute of 5. R. 2. chapter 5. 2. Statute It was awarded that Commissions should be directed to the Sheriffs and others to apprehend such which should be certified by the Prelates to be Preachers of the Heresie and the Favourers Maintainers and abettors to keep them in strong Prison untill they will justifie themselves by the Law of the holy Church But this was repealed by 5 Ed. 6. 12. And 1 Eliz. 1. And also by the Statute of 2 H. 4. 15. It was ordained that none shall preach or write any book contrary to the Catholique faith or determination of holy Church nor shall make any conventicles of such Sects and wicked Doctrines nor shall favour such preachers Every Ordinary may convent before him any person suspect of Heresie An obstinate Heretick shall be burned in an open place before the People and this Statute was also repealed by 25 H. 8. And 1 Eliz. 1. By expresse words and then by the Statute of 1. H. 7. 4. Power is given to all Arch-Bishops Bishops and other Ordinaries having Ecclesiasticall Jurisdictions to commit Clarks Preists c. To Ward and Prison for Adultery Fornication Incest or any other fleshly Incontinency there to abide for such time as shall be thought to their discretions convenient for the quality and quantity of their Trespas and these were all the Statutes which give Authority to the Ordinary to imprison any man And when the Statute of 1 Eliz. 1. Repealed the first two Statutes of 5 R. 2. 5. and 2 H. 4. 15. It was not the intent that these offences should be unpunished but the Queen would not leave and trust the Bishop which was but a man and when he is made Bishop cannot be removed with such generall and uncontroulable Power and Authority and for that this power and Authority was transferred by the said Statute of 1 Eliz. 1. To high Commissioners which the Queen might countermand at her pleasure and appoint new and so it was transferred from one to many and this Stature did not intend to give other Authority to high Commissioners to imprison any man which the Ordinary himselfe had not before the making of the Statute of 1 El. 1. And it was not the intent of the makers of the said Statute and Act of 1 Eliz. To alter any Lawes but to transfer the power of one to others and it was resolved that for working upon holy dayes the party shall not be punished before the high Commissioners in Reimores Case and it was also resolved in Symsones Case by the Lord Anderson cheife Justice of the Common place and Glanvile they then being Justices of Assise in the same place that a Pursivant came with a Warrant of the high Commissioners to attach one by his Body for Adultery in a lay mans house and was sâ—ain with great deliberation and conference had with the other Judges that that was no Murder but Man-slaughter for they could not attach the Body of any man but ought to proceed by citation and excommunication But it was agreed that they might imprison for Brownisme for that was Herezie besides he maintaind that if the King do not govern his subjects as he ought that his Subjects may and ought to depose him and other such abhominable opinions and further that he might fine for that and he said that one Elyas Brown was hanged for that in the time of the last Queen for that that it doth not appear by the return that Darington hath himself conformed they could not deliver him for they ought to give credit to the return according to 9
he be Lord or Free-holder The best badge of truth is the usage of taking the profit of the Trees 11 H. 4. rot 80. Where the Court ex officio should inquire and that omitted the Court may supply it but where an Attaint lyeth that is not to be supplied as in a Valore Maritagii the value is the point of the Writ and if that be omitted by the Jury never to be supplied by Writ Cheyneys case Valore Maritagii and intrusion were at the Common Law before the Statute and the Statute doth but inlarge the Common Law for by the Statute the Judgement is otherwise then at the Common Law It is vain to plead the Execution of a Writ of Seisin upon a Recovery but to plead that he did enter MIch 10. Jac. If I purchase Land by a name and alleadge it to be in a wrong Parish or Shire it is good notwithstanding the mistake by the Court. A stranger shall be bound by a Law made for the publique good but he must come within the place where it was made The King cannot grant precedency in publique things as to go by Water or by passage on the Land as by Coach if a Bond bear Date Super altum mare then it must-be sued onely in the Admiral Court otherwise it cannot be sued there Every Bishop hath his Cathedral and Councel and the Councel and Bishop there decide matters of Controversie the Prebends have their names from their affording of help to the Bishop and in time of the vacancy of the Bishop the Arch-bishop is Guardian of the Spiritualties and not the Dean and Chapter TRin. 14. Jac. rotulo 1810. Birtbrook versus Battersby Exception raken after Triall The Action was laid in Westmerland and the Jurata written at the end of the Record was Ebor. ss ura Inter c. and recites the Day of Triall in the County of York and the place where the Triall was at York and prayed that it might be amended and it was granted to be amended by the whole Court INt. Bullen Jarvis The Venire facias was made in this Form Videlicet Liberos legales homines de B. and it should have been De vicineto de B. and it was notwithstanding held good and amendable by the Roll for it shall be intended that the Jurors are inhabiting in the Town of B. although the Sheriff returns the Jurors of other places and none of them be named of B. and the Venire facias was returned by A. B. Ar. without naming him Vic. and it was amended by the Court. GRiffin versus Palmer Trin. 15. Jac. rotulo 924. Issue taken whether the Lands contained in the Fine were ancient Demesne or not pretending they were parcell of the Mannour of Bowden in the County of Northampton which was pretended to be ancient Demesne and the Doomesday Book was brought into the Court and by that Book it appeared that the Mannour of Bowden was in the County of Leicester and not in the County of Northampton but the Councel affirmed that the Mannour was both in the County of Leicester and Northampton but it valued not for the Doomsday Book was against the Plaintiff The Court was moved to amend a Venire facias which was Album Breve but the Court would not grant it although the Sheriffs name was put to the Pannell but if the Sheriff upon the Venire facias had returned that the Execution of that Writ did appear in a certain Pannell annexed to that Writ and had not put his name to the Writ of Venire facias but to the Pannell in such case the Court would have amended the Venire facias Lessee at will cannot grant one his Estate if one occupy with Tenant at will this is no Disseisin to the Lessor If a Tenant for seven years suffer Trees to grow above the age of 21. years they are Timber and it is waste to cut them Tenant at will shall pay his Rent when he holdeth over his terme but Tenant at sufferance shall not pay any Rent If a man holdeth over his terme and pay his old Rent he shall be accounted Tenant at will If one being sick giveth Notes to make his Will and after by infirmity of sickness he becometh so weak that his memory faileth him and these Notes are made into a Will this is a good Will otherwise it is if he become lunatique after the Notes given MIch 15. Jacobi One Warter was committed to the Fleet by the Lord Treasurer of England and the Prisoner was brought to the Common Pleas by Habeas Corpus which was returned and no cause of the Commitment expressed and for that cause the Prisoner was set at liberty and bailed TRinity Terme 15. Jacobi Hanson one of the Attorneys of the Common Pleas delivers a Note to the Sheriffs Clerk of the names of divers Jurors that were to be returned and of divers others that were not to be returned in a case concerning one Butler and for this Offence he was put out of the Roll of Attorneys In Spilmans case if I have Estovers in Land and cut down Estovers and a stranger taketh away the Estovers I shall have an Action against him that taketh them away although he have there Common of Estovers also If the Husband sow the Ground and die the Executors and not the Heir shall have the Corn but if the Father sow the Land and dieth or the Heir sow the Land and the Wife recover Seisin in Dower she shall have the Corn. The setting open a Shop on the Sabbath day is punishable by Statute Law and so is a House of Bawdry and not to be dealt with by the high Commissioners So long as the Land is occupied by him that hath the Fee-simple which did formerly belong to the Order of the Cistercians it shall pay no Tithes but if he let it for years or life the Tenant shall pay Tithes HIll 11. Jac. rotulo 90. A Recovery was had upon a Writ of Entry in le post for a common Recovery between Hartley and Towers in the County of Bucks the Attorney who prosecuted the Recovery by negligence did not file the Writ of Entry which was prosecuted orderly and all Fees paid when the Recovery was passed And in Easter Terme 14. Jac. it was moved that the Writ of Entry might be filed and it was granted although the Tenant was dead the Writ of Entry was returnable Octabis Purificationis MIch 14. Jacobi My Lord Hubbard Justice Warburton and Winch held that when there were but three Judges of the common-Common-Pleas they might argue Demurrs and if two of them were of one minde and one of the other the Judgement should be given according to their opinions My Lord Cook said that for the Body of the Church the Ordinary is to place and displace in the Chancell the Freehold is in the Parson and it is parcell of his Gleab Tpespass will
Defendant replies that the Plaintiff had entred into part of the Premises the Day before the Day of Payment and so at Issue upon that and Exception was taken because the Plaintiff had alledged no Demand to be made and the Court held that was implied by the Issue and that it was not necessary FRyer Administrator of Mary Costiden of the Goods not administred by Mary Fryer Executrix of the said M. C. versus Jacobum Gildiich Executor of N. Pope Hill 11. Jac. rotulo 1990. The case was this two were bound to one and the Obligee makes the Wife of one of the Obligers his Executrix and one of the Obligers makes the same Woman Executrix and she dies and the Plaintiff takes Administration of the Goods of the Woman not administred and Judgement was given for the Defendant by the whole Court If an Executor hath a Lease and purchaseth the Fee-simple the Lease is gone but it shall be Assets in the Executors hands if a persnal thing be once gone it is extinct for ever If the Husband had survived the Wife he should be charged HArcock Executor of Harcock versus Wrenham Administrator of Wrenham Hill 11. Jac. rotulo 1963. A Scire facias brought to revive a Judgement had against the Intestate and the Defendant pleads Plene administravit which was held a naughty Plea by the whole Court for he cannot pay so much as Funerals before he pay the Judgement and therefore that general fully administred is naught The Jury found that the Intestate in trust conveyed one Lease to Fisher and that Fisher promised upon the Payment of 300. l. to re-assure the Interest to Wrenham and after his Death the Administrator the Defendant preferred a Bill in the Chancery as Administrator against Fisher and that the Chancery ordered that Fisher should pay the Defendant for his Interest in the Lease more then the summ received the summ of 1060. l. which was paid the Defendant accordingly and whether that should be Assets was the Question and it was held to be Assets If an Executor make gain of the Testators Money that gain shall be Assets the Doubt in this case was because this was but in Use and now whether the Court shall take notice of this Use they shall being found by the Jury Judgements shall be paid before Statutes or Recognances and Judgement was given for the Plaintiff and although in this case the Barr of generally administred be naught yet an Issue taken thereupon and tried shall not arrest the Judgement for the Plaintiff PEase and Stilman Executors Hanchet against E. Meade Mich. 11. Jac. rotulo 945. An Action of Debt brought upon an Obligation with a Condition if Meade his Executors Administrators or Assignes or any of them shall pay 20. l. within the Porch of the Parish Church of R. unto such person or persons as the said Hanchet shall by her last Will and Testament in writing limit nominate or appoint the same to be made in manner c. The Defendant pleads that the said Hanchet by her last Will and Testament in writing hath not nominated limited or appointed to what person or persons the said 20. l. should be paid The Plaintiff replies and sues that the Testator made him Executor and died and that he took upon him the burden of the Will and that the Defendant did not pay the Executor the Money and a Demurrer thereupon And if it had been to pay to her Assignee that she should name the Executor should have it such things as go by way of Executorship shall be to the Executor without nomination or appointment STannard versus Baxster Trin. 9. Jac. rotulo 1123. An Action of Debt brought for Damages recovered in an Assise of Nuzans for stopping the way before special Commissioners The Defendant pleads no such Record and the Record was delivered into the Court by the special Commissioners TRin. 8. Jac. rotulo An Action of Debt brought upon a Bond with a Condition for performance of Covenants of an Indenture The Defendant confesses the Bond and that after the making the Bond and before the purchasing the Plaintiffs Writ the Indenture by the consent and assent of Plaintiff and Defendant was cancelled and the said Plaintiff cancelled the said Indenture and it was held a naughty Plea by the said Court for it did appear but that the Bond might be forfeited For he ought to have pleaded performance of Covenants untill such a Day which Day the Indenture was cancelled BRook versus Smith Hill 9. Jacobi rotulo 829. Two Tenements in Common make a Lease and reserve a Rent and Covenant that neither should release and one of them releaseth his part this is a Breach for that in Debt they both should joyn and now by the Release the Action is gone LAny versus Aldred and another Executor Trin. 10. Jac. vel Pasch 9. Jac. rotulo 504. An Action of Debt brought against them as Executors one pleads that he was Administrator and that the Administration was committed to him by the Bishop and pleads a Recovery against him as Administrator and that he had fully administred and had no Assets to satisfie the Judgement and the other Executor acknowledged the Action and the Plea was held a good Plea but it was said the Defendant might have defeated the Action which was brought against him as Executor and therefore they would infer that it was no good Plea but it was a good Plea and it was held by the chief Justice that if an Executor of his own wrong be sued with a rightfull Executor in one Writ the Executor of his own wrong shall not by his Plea prejudice the rightfull Executor MArsh versus Curtis Hill 38. Eliz. rotulo 132. An Action of Debt brought upon an Obligation for performance of Covenants in a Lease upon which Rent is reserved and the Condition was that if the Rent should be behinde then lawfull to re-enter and the Rent was behinde and before re-entry the Rent was accepted The Question was whether he may enter for the Condition broken after the acceptance of the Rent Sir Edward Cook was of opinion that by the acceptance of the Rent he did confirm the Estate but if a Bond be entred into to perform Covenants in a Lease whereupon Rent is reserved and a Fine to be paid with a Condition of re-entry for not paying the Rent or Fine and if the Rent be received and the Fine not paid the acceptance of the Rent doth not take away the Condition for not paying the Fine R. Milton versus R. Pearsey Trin. 10. Iacobi rotulo 445. An Action of Debt brought and in the Venire facias the Defendants name was mistaken for the Venire was to impannell a Jury between R. Milton Plaintiff and I. Pearsey Defendant in a Plea of Debt and the Court held the Venire as none and a new Triall awarded and the like Judgement was given Trin. 7. Iacobi rotulo 787.
that if it had been by Writ he must have shewed it but need not it being by Plaint if the truth appear in that and if a man bring his Action as Assignee he need not shew it in his Plaint if the truth appear in the Declaration but it is otherwise in an Original and a Plaintiffe in Kings Bench as an originall but not in all things and if the Plaint be incertain the Defendant in that Court shall plead in Abatement of the Plaint as to an Original in the Common Pleas and at last two Presidents were shewen one between Champion and Hill and the other between Merrick and Wright that were allowed without naming of the Plaintiff Rector in the Queritur and Judgement was given for the Plaintiff by the whole Court Note it was agreed by all the Court of Kings Bench Mich. 5. Jac. and hath many times been ruled that if a man sell his Tithes for years by word it is good but if the Parson agree that one shall have his Tithes for seven years by word it is not good by the opinion of Fleming Cheif Justice because it amounts to a Lease and he held strongly that Tithes cannot be leased for years without a Deed. COb versus Hunt Hill 5. Jac. Cob sued a Prohibition in the Common Pleas against Hunt Parson of D. in Kent and suggests a Modus demandi as to part of the Tithes demanded against him in the Spiritual Court and as to the residue suggests a Contract executed and performed between him and the Parson in satisfaction of the residue and because he proved not his Suggestion within six Moneths Hunt the Parson had a Consultation and Costs assessed by the Court to fifty shillings and Damages fifty shillings by the Statute of the 2 E. 6. they shall be doubled but in truth no Judgement was given to recover them because these words Videlicet Ideo considerat fuit qd recuperet was omitted yet Hunt thinking that all was certain and perfect brought an Action of Debt in the Common Pleas for the Costs c. and declared of all the matter above and that the Damages were assessed upon which it was adjudged that he should recover c. and that the Costs were not paid Per quod Actio c. And had a Judgement against Cob by Non sum informat and thereupon Cob brought his Writ of Error as well in the Record and Processe c. of the Prohibition as of the Record and Processe in the Action of Debt for the Costs and assigne the general Error but Yelverton assignes two Errors in special first that there was no Judgement in the Prohibition for Recovery of the Costs but onely an Assessement of Costs without any more which is not sufficient for the Assessement of Costs onely is but matter of Office in Court but no Judgement of Court to binde which was confessed by the whole Court The second Error was that no Costs ought to be assessed or adjudged in the Cause above because the Prohibition is grounded solely upon the Modus decimandi which needs proof and upon the Contract between the parties which requires no proof and the Suggestion being intire and part of it needing no proof they could not give any Costs for that is onely where the whole matter in the Suggestion needs proof and therefore the mixing the Contract with the manner of Tithing priviledges the whole as to the matter of Costs but they might grant a Consultation as to that part of the Suggestion which concerned the manner of Tithing but not for the rest which was granted by the whole Court and so both the Judgements were reversed which mark MArkham versus Mollineux Hill 1. Jac. Mollineux sued out an Original in the Common Pleas in an Action of Debt upon a Bond against Markham by the name of John Markham Alderman de D. and all the mean Processe are continued against him by the name of Alderman Markham he appeared and the Plaintiff declared against him by the name of Markham of D. Esquire and afterwards the parties were at Issue and it was found for the Plaintiff and Judgement entred and it was reversed by Writ of Error because it did not appear that that Markham was the same Markham against whom the Original was prosecuted and the Processe continued but it seemed rather that he was another person by reason of his severall Additions of Alderman and Esquire which mark OLiver versus Collins Pasch 6. Jacobi The Plaintiff brought an Action of Debt upon the Statute for not setting forth of Tithes and shews that he is Parson of the Parish Church of Little Lavar in Com. Essex and that the Defendant had so many Acres within the Parish of Little Lavor sowed with Wheat whereof the tenth severed from the ninth part came to eight and twenty pounds and shews that the Defendant at Little Lavor aforesaid took and carried away the Wheat without setting forth the Tithes contrary to the Statute by reason whereof he forfeited threescore Pounds and upon Nil debet pleaded it was found for the Plaintiff and moved in Arrest of Judgement first that the Statute was mis-recited for whereas the the Plaintiff declared that the 4. Novemb. 2 E. 6. it was inacted it was said that there was no such Statute for the Parliament commenced 1 E. 6. and continued by prorogation untill the 4. Novemb. 2 E. 6. and therefore the Plaintiff was mistaken in that but that Exception was not allowed for there were an hundred Presidents against it and in respect of the continual use in that form as the Plaintiff had declared the Court said that they would not alter it for that was to disturb all the Judgements that were ever given in that Court. And secondly it was objected that the matter was mis-tried and there ought to be a new Triall because the Venire facias was of Parva Lavar whereas by their pretence it ought to have been of the Parish of Little Lavar to which Yelverton made Answer that the Triall was well enough for by that Action no Tithe is demanded nor recovered but the Defendant is onely punished for his Contempt against the Statute in not setting forth his Tithe and the wrong done to the Plaintiff complained of is laid onely in the Village of Little Lavor and not in the Parish for all the places in the Declaration where the Parish is named are onely matter of Conveyance and inducement to the Action and not of the substance for the substance is onely that where the wrong and grievance is done to the Plaintiff and that arises onely in Parua Lavor which was granted by the whole Court upon a grand Debate at severall Dayes and Judgement was given for the Plaintiff and the like Judgement was given between Barnard and Costerdam in an Action upon the same Statute upon the last point for the Venn and this hath been twice adjudged but in Costerdams Case which concerned the Earl
who makes conisance as Bailiff of Sir Ed. Br. for a common Fine which was assessed upon the Plaintiff who was resident within the Leet of his Master The Plaintiff replies that Sir Edw. by his deed had released to him all rents services exactions and demands out of his Mannor except suit of Court the Defendant demurred And Nichols that suit of Court for which this common Fine was set is excepted and therefore the common Fine is not released by that but is excepted also a common Fine is assessed when the Jurors in the Leet do conceal that which they ought to find and with which they are charged and therefore the release being for exactions out of the Land And this is not for any thing by reason of the Land but because he doth misbehave himself and by the opinion of the whole Court a release of all demands doth not discharge a man of his suite to a Leet by reason of his residency because a Leet is the Kings Court to which every leige-Subject is to come and perform his allegiance to him And also because suit of Court is inseparably inoident to a Court leet which cannot be released PAllets Case Pasch 5. Jacob. In a replevin in which Pallet was Plaintiff the case was such where a man made a Lease of Lands of which Land he was seized by a good Title and of Land of which he was seised of a defeasible Title for years rendring rent and in the replevin the Lessor avows for the whole rent The Plaintiff in the replevin saith that after the lease made the Disseisee had entred upon part of the Land and a demurrer Sergeant Hicham moved for the Advowant that he ought to have a return for he agreed that the rent should have been apportioned but he said that if a man avows for many things and he hath right but to one he shall have a returh habend 5. H. 7. and 9. H. 7. And 4. Ass Pl. 6. where a man brings an assise for rent and hath right but to part yet he shall recover for that part and cited the opinion of Popham put in Walkers Cafe in the third Rep. 24. when rent reserved upon a Lease for years should be apportioned If a man in an action of debt demands more then hee ought yet upon a nil debet pleaded the Lessor shall recover so much as shall be apportioned and assessed by the Jury and shall be barred as to the residue But Yelverton was of another opinion for he said as this case is the Avowant shall not have a return habend But if the apporciament had been made by the Jury he should have had a return habend but in this case the apporciament must be made by the Judges to whom the quantity of the Land cannot appear and therefore they cannot make apportiament for they all agreed that the apportiament ought to be accotding to the value of the Land and not according to the quantity And to prove this he cited Hubberd and Hammonds Case 43. Eliz. co lib. 427. As where the Fines of Copyholders upon admittance are uncertain the Lord cannot exact excessive Fines and if the Copyholder deny to pay it it shall be determined by the opinion of the Judges before whom the matter depends and upon a demurrer to the evidence to a Jury upon the confession or proof of the annuall value of land the annuall value ought to appear to the Judges but in this case the value doth not appear to them and therefore they cannot make any apportiament and therefore the Avowant shall not have a return habend But Tâ—anfield held the Avowant should have a return habend for the whole rent for the Judges could not apportion this because the value did not appear and the eviction is matter of privity which ought to be discovered by the Lessee and he should give notice to the Lessor and he ought to shew the value of the Land from which he is inriched to the Judges And Popham is of the same opinion for he said the value of the Land ought to be shewed by the Lessee for every one ought to plead that which is in his knowledg and that was in the Lessee's knowledg and not the Lessor and Fenner of the same opinion but Yelverton and Williams against it for Yelverton said that it appeared that part of the Land was evicted and therefore it ought to be apportioned but because the value did not appear to the Judges it could not be apportioned Williams said that if the Lessee surrender part the Lessor need not shew the value and Popham agreed to that because the acceptions of the Lessor had made him privy to it KEnrick versus Pargiter Trin. 6. Jacobi The Defendant justifies the taking of the Cattell damage fesant upon a surmise of a custome that the Plaintiff being Lord hath the place in which c. wholly to himself untill Lammas day and after that day it is common for the Tenants and the Plaintiff is not to put in but only three horses c. And because the Plaintiff after Lammas put in more cattell then three horses the Defendant took them damage fesant as it was lawfull for him to do And issue was joyned upon the custome and found against the Plaintiff and Yelverton shewed in arrest of Judgment that the Defendant could not take the Cattell damage fesant for it appears that the Defendant is only a Commoner and it also appears that the place in which c. is the soile of the Plaintiff and the Cattell cannot be taken damage fesant upon his ground no more then the Tenant can have an Action of Trespass against his Lord guare vi armis c. in regard of his Seigniory as it is in Littleton and 5. H. 7. But the Court said that the matter of taking the Cattell did not come into question for nothing was in issue but the custome which is found against the Plaintiff for if the Plaintiff would have taken advantage of that he ought to have demurred And although by that he had confessed the custom yet whether such Commoner could have taken the Lords Cattell would then properly have come into debate And by Fenner Williams and Cook the taking the Lords Cattel damage fesant was good for by the custom the Lord is to be excluded but only for his stint and the Lord may well be stinted and the whole vestive and benefit of the soile is the Commoners and they have no other remedy to preserve the benefit they have in feeding their Cattell but by taking the Cattell of the Lord if he offends And the Custome hath made the Lord as meer a stranger as any other and without doubt the Commoner might take the Cattell of a stranger 15. H. 7. The chief Justice and Yelverton doubted of it And although the Commoners by the custome had gained the sole feeding in the land of the Lord Yet they ought to have shewed the custome and also the usage
c. and that the Plaintif was sued there by J. S. and that hee was summoned and upon a nihill returned a capias issued according to the Custome c. And that he being an Officer there did arrest and the Court ruled him to plead the Custome particularly for holding the Court and to prescribe c. And here it is shewn that the Maior is a Justice of Peace And it doth not appear whether he did it as a Justice of Peace or Maior as 14. H. 7 8. A Justice of Peace cannot command his servant to arrest one without a Warrant in writing in his absence And Popham chiefe Justice said That although the Judges knew the Authority of the Maior by which they arrested men yet because it did not appear to them judicially as Judges it must be pleaded And a Justice of Peace cannot command his servant to arrest one if not in his presence which was granted And Fennor Justice said that the servant is not an Officer to the Maior as he is a Justice of Peace but the Constable and Walker also added that the Plea was that the Maior commanded to imprison him presently without shewing any cause which was held naught for the maior ought to temper his Authority according to Law For the Judges cannot imprison without shewing cause but them and the Maior both may command an Officer to arrest a man without shewing the cause for else before he shall be examined he may invent and frame an excuse and the accessories will flye away And Williams Justice finds that it was incertain for the Plaintif by what authority he commanded it whether as Maior or Justice of Peace and his power as a Justice of Peace the Judges knew by common Law but his power as a Maior they knew not if it be not shewed by pleading and Judgement HVggins versus Butcher Trin. 4. Jac. The Plaintif declared that the Defendant such a day did assault and beat his Wife of which she dyed such a day following to his damage 100 l. And Serjeant Foster moved that the Declaration was not good because it was brought by the Plaintiff for a Battery done upon his Wife And this being a personall wrong done unto the woman is gone by her death And if the woman had been in life hee could not have brought it alone but the woman must have joyned in the Action for the damages must be given for the wrong offered to the body of the woman which was agreed And Tanfield said that if one beat the servant of J. S. so that he die of that beating the Master shall not have an Action against the other for the battery and loss of service because the servant dying of the extreamity of the beating it is now become an offence against the Crown and turned into Felony and this hath drowned the particular offence and prevails over the wrong done to the Mr. before And his action by that is gone which Fennor and Yelverton agreed to BRown versus Crowley Pasch 5. Jac. Action of Trespass brought against Croyley for wounding the Plaintif upon the hinder part of the left legge being rendred in Latin super posteriorem partem levis libaei and the Jury found for the Plaintiff And Harris moved in Arrest of Judgment for hee said that these words levis libaei made the Declaration vitious for the incertainty for he said that levis signified light and it was an improper word for left and that judgment ought to be respited for the incertainty And Yelverton argued that judgment ought to be given for the Plaintiff for he said the Declaration was not vitious for if the Plaintiff had declared generally that he had wounded broken or evill intreated him and had omitted those other words it had been sufficient and then the adding of those words which were not materiall but for damages did not make the Declaration vitious and he said that levus leva levum was Latin for left And whereas he hath said that he strook him super posteriorem partem levis libaei where it should have been levis libaei it was but false Latin and the Declaration shall not be made naught for false Latin And Popham said that hee shewing upon which part of the body the wound was were laid only to incense damages for the Declaration had been sufficient though they had been omitted And Justice Fennor agreed to Popham and he said it had been judged that where a man brought an Action against another for calling him strong Theife and the Jury only found that he called him Theife but not strong Theif yet the Plaintiff recovered for this word strong was to no other purpose then to increase dammages and Judgement was given for the Plaintif VIccars versus Wharton Pasch 5. Jac. Viccars brought an action of false imprisonment against Wharton and others and shews that he was imprisoned two dayes and two nights without meat or drink The Defendants come and shew that King Edward the 1. by his Letters Patents did incorporate one Village in Nottingham-shire with Bailiffs and Burgesses and that the King did ordain and make those Burgesses Justices of the Peace there and that the Defendant was Bailiâ—â— and a Justice of Peace there and that the Plaintiff did speak divers opprobrious and contumelious words of the Defendant by reason whereof they imprisoned him And shews further that the Bailiffs have used from the time of the making their Patent to imprison the disturbers of the Peace and it was held a naughty plea for a custome could not be shewn in such a manner And Tanfield held in this case that a man could not prescribe to be a Justice of peace but Justice Williams held he might prescribe to be a conservator of the Peace And Tanfield held that the King might grant that all the Burgesses and their Heires should be Burgesses which Justice Williams denyed HAll versus White Pasch 5. Jac. An action of Trespass brought against the Defendant for impounding the Plaintiffs Cattel the Defendant justifies for Common And upon that they were at issue in Derby-shire and the Jurors being sworn the Bailiff found one Bagshaw one of the Jurors rending of a Letter concerning the said cause and shewed it to the Judg and a verdict given by the Jury And this matter moved in the then Kings Bench to quash the verdict but denyed by the whole Court because the Letter and the Cause was not certified by the Postea and made parcell of it for otherwise the examination of that at the Barre after the verdict shall never quash it And so it was adjudged between Vicary and Farthing 39. Eliz. where a Church Book was given in Evidence of which you shall never have remedy except it be entred and made parcell of the Record BVtler versus Duckmonton Trin. 5 Jacobi In Trespasse upon a speciall Verdict the Case was that no demised Land to a woman if she should live sole and unmarried
cheife Justice and Williams Justice thought fit that he should not have a Prohibition for as well the reparations of the Church as the ornaments of that are meerely spirituall with which this Court hath nothing to do and Flemming said that such Tax is not any charge issuing out of Land as a rent but every person is taxed according to the value of the land but Yelverton and Fenner to the contrary that a Prohibition did lye for the same diversity which hath been conceived at the Barr and also they said that he which dwells in another Parish doth not intend to have benefit by the ornaments of the Church or for the Sextons wages and for that it was agreed by all by the cheif Justice Williams and the others that if Tax be made for the reparation of Seates of the Church that a forrainer shall not be taxed for that because he hath no benefit by them in particuler and the Court would advise Michaelmas 8. Jacobi in banco Regis HEnry Yelverton moved the Court for a Prohibition to the Admiralty Court and the case was there was a bargain made between two Merchants in France and for not performance of this bargain one libelled against the other in the Admiralty Court And upon the Libell it appeared that the bargain was made in Marcellis in France and so not upon the deep Sea and by consequence the Court of Admiralty had nothing to do with it and Flemming cheife Justice would not grant Prohibition for though the Admiralty Court hath nothing to doe with this matter yet insomuch as this Court cannot hold plea of that the contract being made in France no Prohibition but Yelverton and Williams Justices to the contrary for the bargain may be supposed to be made at Marcellis in Kent or Norfolke or other County within England and so tryable before us and it was said that there were many presidents to that purpose and day given to search for them Note upon a motion for a Prohibition that if a Parson contract with me by word for keeping back my owne tithes for 3. or 4. years this is a good bargain by way of Retayner and if he sue me for my Tithes in the Ecclesiasticall Court I shall have a Prohibition upon this Composition But if he grant to me the Tithes of another though it be but for a yeare this is not good unlesse it be by Deed see afterwards Westons Case A Merchant hath a Ship taken by a Spaniard being Enemy and a moneth after an English Merchant with a Ship called little Richard retakes it from the Spanyard and the owner of the Ship sueth for that in the Admiralty Court And Prohibition was granted because the Ship was gained by Battaile of an Enemy and neither the King nor the Admirall nor the parties to whom the property was before shall have that according to 7 Ed. 4. 14. See 2. and 3. Phillip and Mary Dyer 128. b. Michael 8. Jacobi 1610. in the Kings Bench. A Man sues an Executor for a Legacy in the Spirituall Court where the Executor becommeth bound by his deed obligatory to the party to pay that at a certain day befoâ—e which this suit was begun in the Spirituall Court and the Executor moved for a Prohibition and it was granted for the Legacy is extinct but by Williams if the Bond had been made to a stranger the Legacy is not extinct Fenner seemed that it was so Hillary 1610. 8. Jacobi in the Kings Bench. Robotham and Trevor THe Bishop of Landaff granted the Office of his Chancellor-ship to Doctor Trevor and one Griffin to be exercised by them either joyntly or severally and it was informed by Serjeant Nicols that Dr. Trevor for 350. l. released all his right in the said Office to Griffin so that Griffin was the sole Officer after died and that after that the Bishop granted the same Office to one Robotham being a Practitioner in the Civil Law for his life And that Doctor Trevor surmising that he himselfe was the sole Officer by survivor-ship made Doctor Lloyd his Substitute to execute the said Office for him and for that that he was disturbed by Robotham the said Doctor Trevor being Substitute to the Judge of the-Arches granted an Inhibition to inhibite the said Robotham for the executing of the said Office and the Libell contains That one Robotham hindered and disturbed Doctor Lloyd so that he could not execute the said Office And against this proceeding in the Arches a Prohibition was prayed and day was given to Doctor Trevor to shew cause for why it should not be granted And they urged that the Office was spirituall and for that the discussing of the Right of that appertaineth to the Ecclesiasticall Courts But all the Judges agreed That though the Office was Spirituall to the exercising of that yet to the Right it was Temporall and shall be tryed at the Common Law for the Party bath a Free-hold in this see 4. and 5. of Phil. and Mary Dyer 152. 9. Hunts Case for the Office of the Register in the Admiralty and an Assize brought for that and so the cheife Justice saith which was adjudged in the Kings Bench for the Office of the Register to the Bishop of Norwich between Skinner and Mynga which ought to be tryed at the Common Law And so Blackleeches Case as Warberton saith in this Court for the Office of Chancellor to the Bishop of Gloucester which was all one with the Principall case And they said that the Office of Chancellor is within the statute of Edw. 6. for buying of Offices And Warberton also cited the case of 22. H. 6. where action upon the case was maintained for not maintaining of a Chaplain of the Chamber in the private Chappel of the Plaintiff very well though it was spirituall for the Plaintiff hath inheritance in that But if it had been a parochial Church otherwise it shall be for the infiniteness of the Suits for then every Parishoner may have his action And so in manner of Tything the prescription is temporall and this is the cause which shall be tryed at the Common Law and Prohibition was granted according to the first Rule Hillary 8. Jacobi in the Common Bench. AN Attorney of the Kings Bench was sued in the Arches for a Legacy being Executor as it seems and it was urged that hee inhabited in the Diocess of Peterborough And for that that he was here remaining in London in the Tearm time he was sued here and upon that a Prohibition was prayed and it was granted accordingly For as the Lord Coke said Though that he were remaining here yet he was resident and dwelling within the Jurisdiction of the Bishop of Peterborough and he said that if one Lawyer cometh and remaineth during the Tearm in an Inne of Court or one Attorney in an Inne of Chancery but dwelleth in the Country in another Diocesse he shal not be sued in the Arches Master Brothers
be avoyded and also he seemed that they could not examine any lay man upon his Oath But in causes Matrimoniall and Testamentary and he said that so was the common Law before the making of that Statute of Articulis cleri as it appears by a Canon made by Ottamon which was a Legate A Latere from the Pope in the 22 H. 3. and Canonicall by which is recited that where such were drawn in length because that lay men were examined upon their Oathes and therfore it was provided that lay men should be examined upon their Oathes although it did not concern causes Testamentary nor Matrimoniall the custome of England to the contrary thereof notwithstanding see Fitzherberts Natura brevium 41. a. Cromptons Justice of Peace fol. 59. b. Register 36 b. and Hyndes Case 18. Eliz. or the Margin in Scrogs case Dyer 175. b. So also Lamberts Justice of Peace that those things are to be given in Charge by the Justice of Assise and Coke saith that the Writ in the Register was framed before the Statute of Articuli cleri And also he cited one Lees Case who was committed for hearing of a Masse and refused to be examined upon that upon his Oath and had a prohibition and so he agreed that a Prohibition should be granted and upon that it was awarded accordingly Note that a Prohibition was granted to the high commission Court for that that they examined the lawfullnesse of a Marryage Symonds against Greene. NOte one suit was before the high Commissioners and 16. were brought by Pursivants before them for that that they were present at a Clandestine marraige and it was urged that this was not to be punished by any inferior Ordinary in any of their consistories for the contract was made in the Diocesse of the Bishop of Worcester and the marriage in the Diocesse of Glocester and the Preist which married them inhabited in the Diocesse of Oxford And yet Prohibition was awarded and the Justices were of the opinion that every of them for which the Pursivant was sent might have an action of false imprisonment against him for they cannot use any other processe but cytation only Admirall Court NOte that it was urged by Haugton that the intent of the Statute of 13 R. 2. chapter 5. Was not to Inhibite the Admirall Court to hold Plea of any thing made beyond Sea but only of things made within the Realme which pertaines to the common Law and is not in prejudice of the King or common Law if he hold plea over the Sea and that this was the intent of the Statute appeares by the preamble But to this Coke saith that the office of the Admirall was an ancient office though it hath been otherwise conceived by some for he hath seen Records and Libells and proceedings in the time of King Iohn where he was called Marina Anglie in the time of Ed. 3. And also he said that the words of the Statute are in the negative That is that the Admirall nor his Deputy doe not meddle from henceforth of any thing done within the Realme but only or things done upon the Sea and he said that it was adjudged in one Wrights case that a thing made at Constanticople shall notbe tried in the Admiralty for itought to be made upon the deep Sea otherwise they shall hold no trial of that see 48. or 50. of Ed. 3. 2 Ed. 2 F obligation and if a man be slaine or murthered beyond Sea the offender shall not be punished in the Admiralty Walmesly and Warburton Justices agree that if a thing be done beyond the Sea and may be tried by the common law there the admirall Court shall have no Jurisdiction But if an obligation beares date beyond Sea or be so locall that it cannot be tried by the common law there if the Admirall hold Plea of that Prohibition shall not be awarded for it is not to the prejudice of the King nor of the common law But if the party can have his remedy by the common law the common law shall be preferred And if at the common law one matter comes in question upon a conveyance or other Instrument made beyond Sea according to the course of the civill law or other law of the Nations where it was made the Judges ought to consult with the Civilians or others which are expert in the same law and according to their information give Judgement though that it be made in such forme that the common law cannot make any construction of it Michaelmas 8. Jacobi 1610. in the common Bench. IF a Parson agree contract withme that I shall keep back my own tithes if that be made after that I have sown my Corn and for the same year only this shall be good and if the Parson sue in the spirituall Court for tithes I shall have a prohibition but if it be for more years then one or before the Corn be sowed this shall not be good by Coke and Foster against Warburton and Coke said it was adjudged in the Kings Bench in Parson Boothes Case that a contract made with a parishioner for keeping back of his tithes for so many years as he shall be Parson was not good and so it was Wellowes Case here also but it was agreed by them all that such a contract or agreement for the tithes of any other was void but only of the party himself which was party to agreement and that ought to be made by way of keeping them back See before Easter 8. of James See 20 H. 6. and the 21. H. 7. 21. b. Pasche 1611. 9. Jacobi in the Common Bench. THE question was upon a motion to have a Prohibition to the President and Councell of Wales if that shall be granted without action hanging And Coke cheife Justice said that the Record of the booke of 38. H. 6. agreed with the Report and is witnesse John Prisott and 2. Ed. 4. Is adjudged in the point but yet he advised that there shall be information Walmesley Justice said that this is no action But Coke Foster and Warburton said that it is an action fufficient upon which a Prohibition shall be granted and Coke said that if they hold Plea of a thing out of their Instructions he would grant Prohibition without action hanging But if they proceed in erronious manner in a thing which is within their Instructions he would not grant Prohibition without action hanging or Information Sir William Chanceys Case SIr William Chancey was cited before the Ordinary of the Diocesse of Peterbrough and sentenced to do Pennance for Adultery and this he commuted and after that he lived in Adultery with one in his house and had two Bastards by her and continued in Adultery with her for many yeares and for that he was cited before the high Commissioners and for that that he would not allow his wife competent allimony who had seperated himselfe from her company in respect that he lived in
have an Action upon the Statute of Offenders in Parkes for hunting in two Parkes 13 H. 7â—12 and 8 Ed. 4. 〈◊〉 One Action of Trespasse for Trespasses made at severall times and so one Action of Debt for diverse Contracts 11 H. 6. 24. by Martin 3 H. 6. Trespas 3 H. 4. But he argued that in reall or mixt Actions as ravishment of Ward for severall Wards or one Quare impedit for severall Churches this shall not be good Fitz. Ward 52. 3. H. 6. 52. And also he said that the Statute of 32 H. 8. chapter 34. by expresse words gives the same remedy to Grantees of Reversions that the Grantors themselves had and the Grantor without question may have an Action if he have not granted the Reversion and so he concluded and prayed Judgment for the Plaintiff and it was adjourned Hillary 8. Jacobi 1610. In the Common Bench. Sturgis against Dean see T. 65. A Man was bound to pay to the Plaintiff ten pound within ten dayes after his return from Jerusalem the Plaintiff proving that he had been there and the Plaintiff after ten dayes brought his Action upon the Obligation without making of any proofe that he had been there and if that were good or that he ought to make proofe of that before he brings his Action this was the question and also he ought to make proofe then what manner of proofe and it was moved by Haughton that when a thing is true and is not referred to any certain and particular manner of proof as before what shall be done or how the proofe shall be made the party may bring his Action and the other party may take his Issue upon the doing of the thing which ought to be proved the triall of that shall be proofe sufficient and in his count he need not to aver that he had been there see 10 Ed. 4. 11. b. c. 15 Ed. 4. 25. 7 R. 2. Barr 241. And here also the proofe if any should it ought to be made within ten dayes the which cannot be made by Jury in so short a time as it is said by Choke in 10 Ed. 4. 11. b. though that he agreed that when a man may speake of proofe generally that shall be intended proofe by Jury for that that this is the most high proofe as it is said in Gregories Case 6 Coke 20. a. and 10 Ed. 4. 11. b. But of the other part it was said by Sherley Serjeant that true it is that proofe ought to be made for the Defendant as the Case is in 10 Ed. 4. 11. That then such proofe should be sufficient for the Plaintiff may bring his Action before that the Defendant may by possibility bring his Action but where the Plaintiff ought to make the proofe there he ought to prove that before that he bring his Action and it shall be accounted his Folly that he would bring his action before he had proved that but all the Justices agreed that the Plaintiff need not to make any other proofe but only by the bringing of his Action but the Lord Coke took exception to the pleading for that that the Plaintiff hath not averred in his replication that he was at Hierusalem but generally that such a day he returned from thence and he said that a man might returne from a place when he was not at the same place as if he had been neere the place or in the skirts of Hierusalem and upon that it was adjourned see the beginning of that Trinity 8. Jacobi 462. a. Mich. 13. 200. and 204. Hillary 8. Jacobi 1610. in the Common Bench. Wickenden against Thomas THe Case was this 2. Executors were joyntly made in a Will one of them releases a Debt due to the Testator and after before the Ordinary refuses to Administer and it was agreed by all the Justices that the release was Administration and for that he hath made his Election and then the Refusall comes too late and so is void Bedell against Bedell IN wast the case was this A Man seised of Lands makes his Will and of that makes two Executors and devises his Lands to his Executors for one and twenty yeares after his Death upon trust that they should permit A. To injoy that during and to take all the profits all the Terme if he so long lived and if he â—ied within the Terme then that B. should take the profits and so with others remained in the same manner with the remainder over to a stranger in tayl one of the Executors refuseth to prove the Will or Administer and also to accept the Terme the other executor proves the Will Administers the Goods and enters into the Land according to the Lease and that assignes to A. according to the trust reposed in him and after that he in reversion in tayl brings an Action of wast against the Executors which proved the Will and he proved all the matter aforesaid and that before the assignement and that before that no wast was made and it seemes to all the Judges that this was a good Plea for the waveing of one Executor is good and though that he might after Administer as the book of 21. Ed. 4. Is for that the Interest of his Companion preserves his Authority where are 2 or more But if there be but one Executor and he refuseth and the Ordinary grants Administration to another he cannot then Administer againe and Coke cheife Justice cited that one Rowles made the Lord Chancellor which then was the cheife Justice of England and the Master of the Rolls his Executors and died and they writ their Letters to the Ordinary witnessing that they were Imployed in great businesses and could not intend the performance of the said Will and that for that they desire to be free of that and that the Ordinary would committ the Administration of the goods of the said Testator to the next of blood and this sufficient refusall And upon that the Ordinary committed the Administration accordingly And to the pleading that no wast was made before the assignement they all agreed that this was good and so it was adjourned for this time A man sould his Land upon a condition and after took a Wife and died the Heire entred for the Condition broken yet the Wife shall not be endowed so if the Condition had been broken before the Death of the Husband if he had not entred for he had but title of entery Hillary 8. Jacobi 1610. in the Common Bench. As yet Doctor Husseys Case MOore against Doctor Hussey and his Wife and many others in Ravishement of Ward The case was the Ward of Moore was placed at the University of Oxford to be instructed in the liberall Sciences and was married by the Wife of Doctor Hussey to the Daughter of the said Wife which she had by a former Husband And for that Moore brought this Writ against Doctor Hussey and his Wife and the Minister which married them and all
ancient Demesne that this shall not alter the tenure insomuch that it is meerly personall and the damages are the principall which are to be recovered and in 21 Edw. 4. 10. b. the difference is shewed between ejectione firme and quare ejecit infra terminum for one lyes against the Lessor or other Ejector immediately and the other lyes against the Feoffee of the other immediate Ejector and the first is by force of armes and the other not and it alwayes lyes against him that is in by Title and the first against him which is the wrong doer and hee intended that the agreement with one of these Defendants is good for it is satisfaction and discharges the action as release the which every one which hath it may plead and here it is pleaded with satisfaction that is obligation upon which the Plaintiff may have action and so he concluded and prayed Judgement for the Defendants Wynch Justice argued this case notwithstanding that hee had not heard any argument at the Barr this being the first case that he argued after he was made Justice of this Court and he delivered his opinion that the agreement was a good Barre and he said that the difference is where the thing to be recovered is in the Realty and where it is in the Personalty as it is agreed in Blakes Case 6 Coke 43. b. So that here the only question is if this action be in the Realty or in the Personalty and it seems to him that it is in the Personalty and that it is of the nature of Trespass and the tearm is not anciently to be recovered as it is 6. R. 2. Fitz. Na. Bre. and it is within the statute of 4 Edw. 3. Chap. 6. which gives action to Executors for goods carryed away in the life time of the Testator as it is 7 H. 4. 6. b. And to objection that ancient Demesne is a good plea and for that is in the Realty and hee said and so it is in Accompt and Accompt is not in the Realty and the reason why it shall not be a Barr in Assise is in so much that there the Free-hold shall be recovered but this fails here so in Waste also this toucheth the Inheritance but here the Inheritance doth not come in question but the tearm only and it doth not appeare to the Court that it concerns Inheritance for it may be betwixt the Lessor or another which claims under him and the Lessee And if a Husband which hath a tearm in right of his Wife submits himself to Arbitrement this shall not bind the Wife but shall bind the Husband and shall be a Barr if the Wife hath not Interest and so he concluded that Judgment shall be given for the Defendants and that the agreement is a good Barr. Foster Justice intended that the agreement is a good Barr in an Ejectione firme c. And it seems that it is no question but that the action is personall and yet hee agreed that ancient Demesne is a good plea. So in debt receipt of part hanging the Writ abates all the Writ And 21 Ed. 4. 10. b. Two Tenants in Common were of a Tearm and 7 H. 4. 6. b. Executors shall have an action upon Entry made in the time of their Testator by the statute of 4 Edw. 3. Chap. 6. and in this the Plaintiff shall recover his Tearm but he denyed that the reversion is reduced by the recovery nor revested in the Lessor till the Lessee enter And to the Objection that the Realty and Inheritance may come in question in this that is not to the purpose for so it may in an action of Trespasse And he intended there is no difference between agreement and Arbitrement and agreed that none of those is a plea where the Inheritance or Free-hold comes in question And he conceived that Arbitrement for free-hold is not good unlesse the submission be by Deed indented for by Obligation with Condition is not sufficient 11 H. 4. 44. b. and it is not in difference 14 H. 4. that in ravishment of ward submission may be without Deed insomuch as it is in the personalty and he intended that there is no difference between that and Ravishment of Ward and Ward is but Chattâ—ll so is tearm which may be sold by word as well â—s the possession may be sold by word so may the right of that be extinct by word And as if a may be bound to pay a certain summe of money at a certaine day and the Obligee accept parcell in satisfaction before the day and that is very good So in this case acceptance of a summe of lesse value may be a satisfaction of such personall thing 4 H. 8. Dyer 1. 8 Edw. 6. Dyer 19 H. 6. 9 H. 7. And so he concluded that for that nothing is to be recovered but Chattell that for that the agreement shall be good plea. Warburton Justice agreed that the agreement should be good in Ejectione Firme insomuch that this is meerely personall And he argued that it is no Plea in assise insomuch that this is reall and there the Free-hold is to be recovered and this is the reason that waging of Law lieth in Debt upon arbitrement insomuch that the seale of the Arbitrators is not annexed unto it and for that to him it is but only matter in Deed 13. Ed. 4. And he intended that agreement with satisfaction is as much as Arbitrement for a personall thing cannot be satisfaction for a reall thing and that is the cause that it cannot be a Barr in Debt upon arrerages of accompt insomuch that that is founded upon Record and is a thing certaine And in wast it is no Plea insomuch that this is a mixt Action if it be against a Lessee for life otherwise if it be against a Lessee for yeares for a Tearme is taken in 7. H. 4. 6. b. to be within the word Goods and an Executor may have an Action upon that of goods carried a way in the life of the Testator And though that the Entry abate the Writ yet this doth not prove that it is more then a Tearme and though that the Tearme determine hanging the Writ this shall not abate the Action but the Plaintiff shall recover Dammages and in Ravishment of Ward Summons and Severance lies and the Body of the Heire shall be recovered and so in Quare Impedit Summons and Severance lies and the presentment shall be recovered and Dammages and yet the principall is but presentmemt which is but a Chattell and for that agreement shall be a Barr and so he concluded that Judgement shall be given for the Defendant and that the agreement is a good Plea Coke cheife Justice agreed that the agreement is a good Plea he thought that that savered of Realty for that that the Tearme is to be recovered and of the personalty in respect of the Dammages which are to be recovered and that in all Actions where money or Dammages
to whom the private damage is done may have action And he said that the Register contains many Writs for publique wrong when that is done to private men as fol. 95. A man fixes a pale crosse a navigable River by which a Ship was cast away and the Owner maintained action of Trespasse And fol. 97. A man brought Trespasse against one which cast dung into a River by which his Medow was drowned so if the River be infected with watering Hemp or Flax he which hath fishing there may maintain action of Trespasse and 2 H. 4. 11. Action of Trespasse by one for ploughing of Land where one had a common way and so it is 13. H. 7. 17. One brings an action of Trespasse against another for erecting a Lyme Kill where many others are annoyed by that So by an assault made upon a servant the Master and servant also may have severall actions and so in the other cases many may have actions and yet this is no reason to conclude any one of them that hee shall not have his action for in truth those are rather actions upon the Case then actions of Trespass for the truth of the Case is contained in the Writ Also in this case it doth not appeare that there are any other Commoners which have Common there and for that this Objection is not to the purpose and it appears by Heisman and Crackesoods Case 4 Coke 31. That Copy-holder shall have Common by prescription in the demesnes of the Lord and so he concluded and prayed Judgment for the Plaintiff Coke cheife Justice said that it was adjudged in this Court Trinity 41 Eliz. Rot. 153. b. between Holland and Lovell where Commoner brings an action upon the Case as this Case is against a stranger which pleads not guilty and it was found by verdict for the Plaintiff and it was after adjudged for the Plaintiff for insomuch that the Plaintiff may take them damage feasant that proves that he hath wrong and this is the reason that he may distraine doing dammage And by the same reason if the Beasts are gone before his comming he may have action upon his Case for otherwise one that hath many Beasts may destroy all the Common in a night and doe great wrong and shaâ—l not be punished and it is not like to a Nusance for that is publique and may be punished in a Leet but the other is private to the Commoners and cannot be punished in another place nor course and he also cyted one Whitehands case to be adjudged where many Copy-holders prescribe to have Loppings and Toppings of Pollards and Husbands growing upon the Waste of the Lord and the Lord cuts them and one Copy-holder only brings his action upon the Case and adjudged that it was very well maintainable notwithstanding that every other Copy-holder may have the same remedy And he said also that so it was adjudged in the Kings Bench Hillary 5 Jacobi Rot. 1427. in George Englands Case And 2 Edw. 2. b. Covenant 49. If a man Covenant with 20. to make the Sea banks with A. B. and every one of them and after he doth not doe it by which the Land of two is drowned and damnified and they two may have an action of Covenant without the others Quere for it seems every one shall have an action by himselfe But Foster and Wynch Justices seemed that the Plaintiffe ought to sue in his Court that the Beasts of the stranger escaped in the Common or were put in by the Owner for it may be they were put in by the Lord which was owner of the Soile or by a stranger in which cases the Owner of the Beasts shall not be punished But Coke and Warburton seemed the contrary and that this ought to be averred and pleaded by the Defendant in excuse of the Trespasse as in action of Trespasse why he broke his Close And so it was adjourned see Gosnolds case 490. see Judgment Pasche 1612. 10. Jacobi in the Common Bench. Henry Higgins against George Biddle IN Replevin the Defendant made Conusance as Bayliff to Sir Thomas Leigh and Daine Katherine his Wife intimating that Isabel Bradburn was seised of the place where c. in their demesne as of Fee and so seised the first of June 15 H. 8. gives this to the Lord Anthony Fitzherbert and Maud his Wife and to the Heirs males of their bodies which have Issue Thomas Fitzherbert Knight John Fitzherbert and William Fitzherbert Anthony and Maud dyed and the said place where c. discended to Sir Thomas Fitzherbert as Heire to the Donees to the Intayl and the said Thomas Fitzherbert the 5. of Aprill 6 Edw. 6. of that enfeoffed Humphrey Swinnerton Ralph Cotton and Roger Baily to the use of William Fitzherbert and Elizabeth his Wife for their lives and after to the use of Sir Thomas Fitzherbert and the Heirs of his body the remainder to the use of the right Heirs of the said William Fitzherbert William Fitzherbert dyed Sir Thomas Fitzherbert disseised the said Elizabeth and the said John Fitzherbert had Issue Thomas and dyed Sir Thomas Fitzherbert dyed without Heir of his body and the said place where c. discended to the said Thomas as Cousin Heir of the said Sir Thomas and Son and Heir of the said John Fitzherbert which enters and was seised to him and to the Heirs Males of his body as in his Remitter And the said Thomas Fitzherbert 4 of Novemb. 39. Eliz. by Indenture of Bargain and Sale enrolled in the Chancery within six moneths bargained and sold the said Land to Sir William Leighton his heirs and Sir William Leighton 5 of Novemb. 43. Eliz. by Indenture enrolled within six moneths for 4000. l. bargained and sold the said land where c. to Sir Thomas Leigh and Dame Katherine as aforesaid and so avowed the taking for doing damage And the Plaintiff for Barr to the said Avowry pleads that well and true it is that the said Sir William Leighton was seised of the said place where c. in his Demesne as of Fee as it was alledged by the Defendant But further hee saith that the said Sir William Leighton so being thereof seised 1 Decemb 44 Eliz. enfeoffed the Plaintiff in fee and by force of that the Plaintiff was seised and put in his Beasts into the said place where c. without that that the said Sir William Leighton bargained and sold the said Land in which c. to the said Sir Thomas Leighton and Katherine his Wife as in the Conusance hath been alledged by the Defendant upon which the Defendants joyn Issue and it was agreed by all the Justices that notwithstanding this admission of the Parties is an Estoppell by the pleading yet as well the Plaintiffe as the Defendant were admitted to give another evidence to the Jury against their own pleading that is that Sir William Leighton was not seised and so nothing passed by the bargain and sale and also
is a stranger and doth not know if these Defendants are Executors or Administrators as it is said by Danby 9 Edw. 4. 13. And he conceived that the plea is good that the Defendants have not goods besides the goods which do not amount c. And divers presidents were cyted by him to this purpose as Trin. 18. Eliz. Rot. 1405. between Blanekson and Frye Hillary 40 Eliz. Rot. 902. Smalpeeces case and Trin. 44 Eliz. Rot. 1900. between Goodwin and Scarlet in all which the pleadings were all one with the plea in question and no exceptions taken to that and infinite other presidents may be shewed in the point for which cause he demanded Judgment for the Defendants Coke cheife Justice seemed that in an action brought against one as Executor he may plead that Administration was committed to him for such intent that the dead dyed Intestate and demands Judgment if action without traverse that he was Executor and with this agreed 1 Ed. 4. 2. a. 20 H. 6. 23. And so if the Ordinary be charged as Executor he may plead that he administred as Ordinary without traverse that he was Executor but only shewed that the party dyed Intestate and the Plaintiff ought to reply that he made a Will and the Defendant proved that and traverse that he dyed Intestate and with this agreed 9 Edw. 4. 33. and 1 Edw. 4. 11. And if an action be brought against Executor of his own wrong hee may plead that administration is granted to such an one and the Party dyed Intestate and demand Judgment if action for he shall not be charged for more goods then came to his hands But if a man administer of his own wrong and after rightfull administration is committed to him yet he may be charged as Executor of his own wrong insomuch that Right of action is attached in him But this seems for the goods that he hath administred before rightfull administration committed unto him And he cyted 14 Eliz. Dyer 305. b. where in debt brought against one as Executor which pleads never Executor nor ever administred as Executor and the Plaintiffe replies that he administred as Executor of the Will c. and so to Issue And in Evidence the Defendant shews Letter of administration to him committed of goods of the dead by which he administred them and before that he did not administer and this seems there to be good Evidence but the Book was Quere of that and for that he would rather plead that in abatement of the Writ and so the Book inclined also And he conceived here that the medling with the goods here by the Defendant as Administrator made him Executor of his own wrong insomuch that it was for Funeralls and when it is a work of Charity and the other is to preserve them And the Defendant hath not conveyed himselfe to be Executor insomuch that he said that administration was committed to him by an Arch-Deacon and he doth not say that Administration of right belonged to him to commit insomuch that hee hath but a sub-ordinate Jurisdiction And the Common Law doth not take notice that he nor no other but the Ordinary hath such power and for that the power of all which have such subordinate and peculiar Jurisdiction is pleaded that ought to be shewed as it seems by 1 Ed. 4. 2. a. b. 22 H. 6. 23. And the rather when this is pleaded by the Administrator himselfe which ought to have notice of that and make title to himselfe and if so it be then he conceived that the Recovery by Hornego was void and so all the goods confest remain as Assets Also he conceived that if the Executor allow a Writ to suffer Judgment to be had against him upon a Writ which is abateable he shall not have allowance of that but this shall be returned as Devastavit as in 10 Edw. 3. 503. a. If the Tenant vouch when he might have abated the Writ he shall lose the benefit of his Warranty So here and Com. Manwells case 12. a. 22 H. 6. 12. 〈◊〉 Also he conceived if a man be charged as Administrator where he is no Administrator he cannot plead that he never administred as Administrator but he ought to traverse the Commission of Administration as it appears by 21 H. 6. 23. And it seems also to him and by 9 Edw. 4. 33. that if a man be an Executor of his owne wrong and after administration is committed to him and he is charged as Executor after administration committed that the Writ shall abate otherwise if administration be committed hanging the Writ So if a man be made Executor and hee not knowing of that Iues letters of Administration he shall be named Administrator and if after when he hath notice of the Will he proves it then he shall be impleaded by the name of Executor for in such manner as the power is given to him by the Bishop he shall be charged and it seemes though that he plead where he is Administrator and is sued as Executor or otherwise in such manner that hee might have abated the Writ or suffer Judgment yet the Writ shall abate and he intended also that Executor of his owne wrong might pay debts due to another and shall be discharged and shall not be charged with more then he hath in his hands And if two Executors are joyntly sued and one confesse the action this shall bind him and his companion also for so much as he hath in his hands But if an Executor of his own wrong confesse the action this shall not prejudice him which is rightfull Executor and so he conceived that judgment ought to be given for the Plaintiff Warburton Justice conceived that the Barr is good notwithstanding that he did not shew that the Arch-Deacon had power to grant Administration insomuch it is no Inducement and the Defendant doth not relie upon it as Littleton saith in Trespasse where the Defendant pleades that it was made by two and the Plaintiff releases to one and if the Defendant pay due Debts it is not materiall whether he have Authority or not though that it be in another respect As if a man be Indicted of man-slaughter and aquitted and after is Indicted of Murder by the same man he may pleade another time aquitted insomuch that these are matters of substance But here it is but of forme and then if it be not shewed it is not materiall But the matter upon which he relied was insomuch that the Action was brought against two Executors and one hath confessed the Action And he intended without question that if this shall bind his companion and for that he will not dispute the other questions but declares his opinion cleerely that the Plaintiff ought to have Judgement against both these Defendants upon the confession of one and this shall bind his companion Wynch Justice conceived that the Plea is good by Administrator without traverse insomuch that it is to the Writ as it
Common Law mâ—â— be done by Custome and that an Estate may be created by such nomination it appeares by the case where a Remainder is Limited to him which the first Tenant for life shall nominate and it is very good and to prove that the Custome is good he remembred the custome of Millam in Norfolke where he was borne that is that if any Copy-holder will sell his Land and agree of the price that at the next Court when a surrender is to be made the next of his blood and if he will not any other of his blood may have the Land and so every one shall be preferred according to the neerenesse of his blood and with this also agreed the Leviticall Law as it appeares Leviticus 25. chap. verse 15. which appoints this to be at the yeare of Jubile and the Common Law within one yeare after the Alienation and upon this he infers that if Custome may appoint Heire in the life of the party then a Fortiore he may appoint Successor after his death and he conceived that at the beginning the Copy-holders might have had absolute Fee-simple of the Lord and they rather made choice to have such Estate insomuch that they did not know if their Children would be towardly or not and for that content themselves with the nomination of a Successor only and so is the Custome at Hamm also in Middlesex if any Copy-holder will sell the next Cleivener which is he that dwelleth next unto him shall have the refusall giving so much as another will and he which Inhabits one the East part first and the South and the West and last the North shall be preferred is the only way in his course and there the Successor is nominated by the Heavens and by the quarters of the Earth and so is the custome in Glocester And if any Husband hath an Estate for twelve yeares his Wife shall have it for twelve years also and so ad Infinitum and this makes nomination and so of Free-hold and so if it be good without nomination it shall be good by nomination And if the Estate determine by the Death of the Tenant without nomination when the Lord revives the Copy-hold Estates the priviledge also shall be revived But he conceived that the Tenant cannot nominate part to one and part to another nor that divided in fractions And he saith that this point hath been adjudged in the Kings Bench by foure Judges against Popham 5. Jacobi between Ball and Crabb And so he concluded this point and to the second custome he said he would speake to that Transitive but not Definitve and that it hath been adjudged 45. Eliz. between Powell and Peacock that bare Copy holder for life could not prescribe to cut and â—ell the Trees otherwise of Tenant in Fee-simple for he hath them cherished and fostered And it is against common reason incongruent and against the Common Law that a Copy-holder for life may cut and sell the Trees and custome ought to have reason and congruence for 10. Ed. 3. 5. Leete cannot be belonging to a Church insomuch that it is Incongruent and so in Writes Case 2. Coke Tythes cannot be appurtenant to a Mannor insomuch that it is incongruent and a spirituall thing shall not be pertinent to a temporall and so è Converso And so in the 5. Assis 9. and Hill and Granges Case Com. Turbary cannon be appurtenant to Land insomuch that it is incongruent but it ought to be to a house so in time of Ed. 2. Tenant of the Mannor prescribes to have free Bull and Bare and it is not good for the reason aforesaid otherwise it is of the Lord of a Mannor and 9 H. 5. 45. custome in Leete to present common and adjudged that it it is not good insouuch that it wants congruity for it is not proper to the Court and upon this he concluded that bare Tenant for life cannot prescribe to cut Trees for it is not congruent that such an Estate shall have such a priviledge and this for three reasons First insomuch that Trees growing are parcell of the Inheritance Secondly in respect of the perdurablenesse of them for it shall be intended that they will indure forever and so will not his Estate for this is as a shadow as Job said and 't is absurd that shadow should cut downe the Tree And also it is for necessity of habitation and Plow and Husbandry And it is for the Common Wealth that Copy-holder of Inheritanc might cut them by such custome for otherwise he would not be incurraged to plant and preserve them And notwithstanding that in this Case the custome be generall that the Copy-holder may cut down all yet that shall have a reasonable construction avd that this notwithstanding he leave sufficient for House-boot as if a man grants Common without number yet the Grantor shall not be excluded but shall have his Common there for excesse shall not be allowed As if a man which distraines another for Rent he shall not take excessive distress the Lessee for life excessive Tallage of villaines nor upon excessive Fines of Copy-holders and so it was adjudged in Heyden and Sir John Lenthorps Case that the Lord shall not take all but leave sufficient for reparations and so was the opinion of Wray cheife Justice in the 33 of Eliz. In evidence to a Jury but here he is in nature of Tenant in Fee-simple and it shall be intended that he hath cherished the Timber and every Copy-holders Estate granted is as a new Grant and hath affinity with Tenant in Fee-simple and he agreed that if Lessee for life the Remainder for years Remainder for life be and the first Lessee for life makes a forfeiture he in Remainder for years shall take advantage of that and that it hath been adjudged that the Lord of the Mannor shall take advantage of forfeiture made by the Copy-holder without presentment made by the Homage and in one Bacon and Flotsims Case and so Lessee for yeares of a Mannor shall take advantage of Forfeiture notwithstanding the Imbicillity of his Estate but the principall matter upon which he relyed was that the Trees were severed from the Free-hold and if the Lessee dy his Executors shall have them insomuch that they are meer Chattells and this First in respect of the Words of the Lease that is demise and to farm let the Mannor but bargain sell give and grant the Timber Trees to be felled and carried away at his Will As if a man makes a Lease for years except the Wood and after grants the Trees the Lease determines the Lessor shall not have the Trees again Secondly They are in two divided Sentences and also in respect of divided properties for the Executor of the Lessee shall have them and Quando duo Jura concurrunt in una persona equum est ac si esset in diversis also past at severall times for the Trees pass by the delivery of the Deed and the Land
Proviso that if the sayd John disturbed the Executors of taking his Goods in his House that then the sayd use and uses limited to the sayd John Francis and his Heires shall cease and after declared that his intent was that in all other points his Will should be in his force and it was pleaded that Iohn did not suffer the sayd Executors to take the sayd Goods in the sayd House and if his Estate for years or in Tayl or Fee-simple shall cease was the question and it seemed to the Judges that the Condition shall not be Idle but shall have hiâ— operation as it appears by Hill and Granges case and the Lord Barkleyes Case in the Comment and the Lord Cheneyes Case Coke And it seems also that it shall not be referred to Estate in Fee simple for then it shall be void and it shall not be referred to a Tearm for it is limited to an Estate limited to the said Iohn and his Heires but it seemeth it shall be referred to an Estate tayl only as it is 2 and 3. P. and Mary Dyer 127. 55. 11 H. 7. 6. But the case was adjudged upon one point in the Pleading for it was not pleaded that Iohn Francis had notice of the Devise nor that he had made any actuall disturbance and peradventure he entered as Heir and had no notice of the Condition and when the Executors came to demand the Goods which were belonging to the Heir and annexed to the House and he sayd that it doth not appear to them to prove that an express notice was given in this case the Books of 43 Assise where a man was attaint and after was restored by Parliament and a Writ being directed to the Esceator the Escheator returns that he was disturbed and upon Scire facias the disturber pleads that he had no notice of the sayd act of restitution and for this he was excused of Disturbance And see 35. H. 6. Barr 162. Michaelmas 7. Jacobi 1609. In the Common Bench. Waggoner against Fish WAGGONER brought a Writ of Priviledge supposing that he had a suit depending here in the Common Bench which was directed to the Maior and Sheriffs of London and upon the return it appears that 4. Iacobi an Act of Common Councell was made that none should be retayler of any Goods within the same City upon a certain pain and that the Chamberlain of the said City for the time being may sue for the said penalty to the use of the sayd City at any of the Courts within the said City and that the Defendant hath retailed Candles and held a shop within the sayd City being a stranger and against the sayd Act and for the sayd penalty the Chamberlain hath brought an Action of Debt within the sayd City according to the sayd Act of Common Councell and upon the return it appeares that by their Custome the Maior and Aldermen with the Assent of the Commoners of the said City may make By-Laws for the Government of the sayd City and that the sayd custome and all other their Customes were confirmed by Act of Parliament and upon this it seems that though there be not remedy given for this penalty in another place then in London that yet if it be against Law he shall not be remanded and if a Corporation hath power to make By-Laws that shall be intended for the Government of their ancient Customes only and not to make new Lawes see 2 Ed. 3 Iohn De Brittens Case but it seems if this By-Law be for the Benefit of the Common-Wealth that it shall be good otherwise not and it was Adjourned see Hillary next insuing for then it was adjudged that he shall not be remanded see afterward Michaelmas 7. Iacobi It was adjudged NOte that this Tearme was adjourned untill the Moneth of Michaelmas by reason of the Plague and upon the adjournment this insued and was moved by Yelverton and Crook at the Bar and the Case was this Michaelmas 7. Iacobi 1609. In the Common Bench. POynes being an Infant levies a Fine and in Trinity Tearm last past brought his writ of Errour in the Kings Bench and assigned for Errour that at the time of the Fine levied was and yet is within age and prayed that he be inspected and insomuch that he had not his proofs there he was not inspected but Dies datus est usquâ— Octabis Michaelis Proximas at which time came the said Poynes the day which was wont to be the day of the Essoyn and prayed Justice Crooke which was there to adjourn the Tearm to inspect him and to take his proofs who did inspect him accordingly De bene esse and now before the Moneth of Michaelmas the Infant came of full age and if this inspection were well taken and what authority the Judge had upon that day to adjourn was the question And Flemming cheife Justice sayd that the day of Essoyn is a day in Tearm and that the Court was full though there was but one Judge and if the inspection had been the day of the Essoyn and before the fourth of the Post he had come of full age this shall be very good but the doubt rose as the case is if upon the day of Adjournment the Judge had power to do any thing but to adjourn the Tearm and for that it was appointed to be argued and for the Argument of that Quere of my Author Lane Michaelmas 7. Iacobi 1609 In the Common Bench. Rivet Plaintiff Downe Defendant IN an action upon the case upon an Assumpsit the case appears to be this Copy-holder makes a lease for a year according to the custome of the Mannor the Lord distrains the Farmer of the Copy-holder for his Rent and the Copy-holder having notice of that comes to the Lord and assumes that in consideration that the Lord should relinquish his Suit against his Farmer touching the same distress he would pay the Rent by such a day the Lord delivers the Distress and for default of payment at the day brings an Action upon the case and upon Non Assumpsit pleaded Verdict passed for the Plaintif And Barker Serjeant came and moved in arrest of Judgment First that a man cannot distrayn a Copy-holder but he ought to seise but Williams Justice and others to the contrary and by him if a man makes a Lease at will Rendring Rent he may distrain for this Rent 9 H. 7. 3. The case of Rescous Secondly He moved that when the Lord distraines that now the Tenant hath cause of Action that is Replevin and for that it cannot be sayd Sectam suam and so the consideration failes but all the Court against that and that this was a good consideration and by Flemming cheife Justice Distress is an Action in it self because this is the cause of a Replevin and when the Tenant brings his Replevin and the Lord avowes now is the Lord an Actor and so it is secta sua and by him secta is not
agreed in the 21 H. 7 In Kellawaies Reports by Frowick that there is no difference between Harriot and Releife and Releife shall be extinct and so he concluded that the Harriot is extinct Danyell Justice accordingly and he said that this purchase shall be as strong as release And if the Lord hath released the service intire for part it shall be extinct for all and if Tenant holds by Suite to the court of the Lord and the Lord purchase parcell of the Tenancy the Suit is extinct as it appeares by 27. H. 7. and Fitz. Na. Bre. And so concluded that the Harriot service is extinct by the purchase aforesayd Warburton accordingly And saith that in Littletons Case the Homage and Fealty shall remain for they are personall services and for that shall remaine intire and of Rent shall be an apportionment by the Statute of Westminster 3. De quia emptores terrarum But for other intire services by the purchase of the Lord be they annuall or casuall and they are extinct and 21 Edward 4 was a Suite for a Hawke which was kept back twenty yeares and so for Suit if the Tenants make a feoffment to diverse they shall make but one Suit but they all shall make contribution to the Suit but if the Lord purchase parcell he cannot make contribution And though that the Homage and Fealty are personall services the Horse and Hawke are of the nature of land so the Harriot is of his goods and if the Tenant hath no goods the Lord shall loose it and for that he concluded as above Walmesley accordingly And he said if a Tenant hold by intire services of two Lords and one purchase parcell of the Tenancy all the intire services shall not be extinct but the other Lord which did not purchase shall have them for Res inter alios acta nemini nocere debeat To which Coke cheife Justice agreed and he said if Harriot custome be due peradventure it shall not be extinct by purchase of parcell of the Tenancy for that is personall and it is not Issuing out of land but for intire services which are Issuing out of land he said there is no difference betwixt annuall services and casuall services which are intire and so he concluded as above Coke cheife Justice accordingly and he said there is no difference between annuall intire services and casuall so that they are services to be paid at the death or alteration of every Tenant or otherwise but he said there is no doubt but that Rent service shall be apportioned though that the Lord purchase parcell be that in the Kings case or of a common person and this by the common Law without the aid of any Statute for there is not any Statute that shall aid that if it be not remedied by the Common Law and he said that some Intire services may multiply as if a man holds by payment of a payre of gilt Spurrs or of a Hawke or a Horse or others such like and makes a feoffment of parcell the Feoffee shall hold by the same intire services But if the Tenant hold by personall services as to cover the Table of his Lord or to be his Carver or Sewer at such a Feast or such like these personall services cannot multiply if the Tenant makes a feoffment of part for by this the Lord may be prejudiced for peradventure at his house he will not include them but he may distrain every of them to make the service And he saith the reason for which Knights service shall be apportioned is for that it is for the publick good and for the good of the Common Wealth But so are not the other personall services and in the principall case he conceives that if the Tenant had made a feoffment first to a stranger and after the stranger had infeoffed the Lord that by that all the intire service shall not be extinct for by the feoffment of the estranger was severence of the services and he holds by a Harriot as well as his Feoffor and for that nothing shall be extinct but the Harriot due by that parcell of which the estranger was infeoffed and he agreed with Walmesley that a Harriot custome shall not be extinct where the custome is that every Tenant shall pay a Harriot for there it is paid in respect that he is Tenant and custome shall not be drowned by unity of Tenancy and Signiory And for that he concluded that the Harriot for that that it was intire service though that it were casuall and not annuall that yet it shall be extinct and Judgement was given accordingly Hillary 7. Jacobi 1609. In the Common Bench. Michelborne against Michelborne UPON a motion made for consultation upon Prohibition awarded It was said by the Lord Coke that no Subject of the King may trade with any Realme of Infidells without licence of the King and the reason of that is that he may resinquish the Catholick faith and adhere to Infidelisme and he said that he hath seen a licence made in the time of Ed. 3. where the King recited that he having speciall trust and confidence that his Subject will not decline from his Faith and Religion licenced him ut supra And this did rise upon the recitall of a licence made to a Merchant to trade into the East Indies Hillary 7. Jacobi 1609. In the Common Bench. Reade against Fisher IN debt the Defendant exhibits his suit in the Court of Requests and there the Plaintiff in that Court denied that the debt was paid and the Court of Request awarded an Injunction and upon Information of that this Court awarded a Prohibition to inhibit the Suit there Hillary 7. Jacobi 1609. In the Common Bench. Mors against Webbe IN Replevin the case was this A man was seised of two Virgates of Land and prescribed that he and his Ancestors and all those whose Estates he hath in the said Virgates of Land have used to have common in the feilds c. That is when the feilds are fallow all the yeare and when they are sown with Corn or otherwise severall when the Crop is mowed and removed for two Horses four other Beastes and a hundred and twenty Sheep as appertaining to the said two Virgates of Land The Defendant traverseth the prescription and upon this they are at Issue and the Jury found that there is such prescription But further they say that the Plaintiff made a Lease of six Acres parcell of the said two Virgates of Land in one of the feilds of c. with the Common of that thereunto belonging for the Tearme of ten years and the Beastes for which the Replevin was brought were in another feild of c. And if the prescription be suspended or remaines they praied the advise of the Court and it was agreed that common appendant and appurtenant was all one to the severance for if such a Commoner grant parcell of that Land to which the Common
by Obligation and that he retained the Money in his hands to satisfie the Debt The Plaintiff replies that the Money was not due and payable to him at the time of the Intestates Death and that he took Administration after the Day of Payment and if the Administrator had pleased he might have took Administration before the Day of Payment and the Court held the Defendants Plea good but he shall not have the Forfeiture CArrell versus Paske Trin. 13. Jac. rotulo 1018. Debt brought upon an Obligation made at C. in the County of Surry The Defendant pleads the Priviledge of Cambridge granted to them by the Queen Eliz. for Scholars Bachelours Masters and their Servants upon Contract made within the University and shews the Bond was made in Cambridge and that he was a Servant of the Scholars to wit Bailiff of Kings Colledge in that University and inhabiting within the Town of Cambridge and Precincts of that University and therefore a priviledged Person of the same and upon reading the Record it seemed that the Defendant being a Bailiff of the Colledge is not capable of the said Priviledge PReist versus Cee Trin. 12. Jacobi rotulo 2197. An Action of Debt brought upon a Bill bearing Date 17 Novomber 1604. by which Bill the Defendant did acknowledge himself to owe the Plaintiff 10. l. to be paid to the Plaintiff at two Payments to wit 5. l. to be paid upon the 19. of November then next following and other 5. l. to be paid upon the 10. Day of December then next following The Defendant pleads it was not his Deed. The Jury finde it specially that the Defendant the 17. of November 1604. sealed and delivered to the Plaintiff one Bill obligatory shewed to the Jury bearing Date the Day and Year above and finde the Bill in haec verba Be it known c. to be paid at two Payments that is to say 5. l. to be paid the 19. of November which is the present of this Moneth and the other 5. l. on the 10. of December The Question was whether the Bill maintain the Count for the first Payment and adjudged it did RAwdon versus Turton Trin. 13. Jac. 1011. An Action of Debt brought upon a Bond for Payment of Money such a Day The Defendant pleads that he the same Day made an Obligation for the Payment of the said Money another Day which the Plaintiff accepted for the Money and Issue taken thereupon and tried for the Defendant and after the Verdict the Plaintiff moved the Court to have Judgement though the Verdict passed against him because the Plea was insufficient and that he confessed the Debt but the Court would not grant it The like Mich. 6. Jac. rotulo 1061. And the like Hill 12. Jac. CArter versus Freeman Mich. 13. Jac. An Action of Debt brought upon a Bond with a Condition that the Defendant should appear before the King at a certain Day Videlicet Die Jovis post Octobras Martini and upon a Nul tiel Record pleaded the Defendant brought his Record of Appearance Lunae post xvam Martini and this was held by the whole Court an Appearance at the Day in the Condition by the whole Court GRubham versus Thornborough Hill 12. Jac. rotulo 1773. An Action of Debt brought for Rent and for a Nomine penae the Rent due 14 November Anno 9. and no name alleadged for the Nomine penae therefore the Action would not lie for the Nomine penae but it would for Rent PAsch 44. Eliz. Elliot versus Golding An Action of Debt brought and Judgement given for the Plaintiff and a space was left in the Roll for the Costs of the Judgement and after the Year and a Day a Scire facias was brought to revive the Judgement and in the Scire facias the Costs are put in and so Judgement by Default and afterwards a Writ of Error brought and the Error was assigned because there were no Costs put into the principal Roll and afterwards the Record was removed the Count was moved that Costs might be put into the Roll but it was denied upon the first motion and afterwards Pasch 13. Jac. it was denied by the whole Court BOnd versus Green Administrator An Action of Debt brought against him as Administrator he pleads divers Judgements amounting to 670. l. and the Assignement of 100. l. Debt to the King by Deed inrolled and he pleaded that he retained his Debt in his hands and he might have given this in Evidence or pleaded it at the Liberty of the Defendant COoper versus Bacon Action of Debt brought upon the Statute of E. 6. for Tithes and the Plaintiff declares that one was seised of the Rectory of Elveley alias Kirkley in Kingston upon Hull in his Demesne as of Fee and being so seised such a Day and such a Day at Elveley alias Kirkley did demise to the Plaintiff the said Rectory with the Appurtenances to have and to hold c. for years and that by vertue thereof he hath been and is thereof possessed and that the Defendant such a Day and before and alwayes afterwards hitherto had held and occupied 30. Acres of Land in Swandland in Kingston in a place called T. and that the Tithes did belong to him The Defendant pleads Nil debet per patriam and after a Verdict it was alleadged in Arrest of Judgement that the Issue was mis-tried because the Venire facias was of Elveley alias Kirkley and it should have been of Swandland where the Tithes grew CHapman versus Pescod Trin. 11. Jac. rotulo 2106. An Action of Debt brought upon an Obligation with a Condition to give and grant to him his Heirs and Assignes The Defendant pleads that he hath been ready to give and grant and adjudged naught for he must plead that he did it otherwise it had been if the words had been as Councel should devise MAncester versus Draper Hill 10. Jac. rotulo 2613. An Action of Debt brought upon a Bond with a Condition to pay Money if C. R. shall be then living and shall before the same 20. Day of O. by due form and course in Law perfect levy and knowledge a Fine and a Recovery before his Majesties Justices of his Highness Court of Common Pleas of and in certain Houses and Tenements with the Appurtenances which the said Draper lately had and purchased of the said C. R. the Defendant pleads that C. R. was living and did not levy c. and a Demurrer and the Question was whether Draper or Ro. should levy the Fine and held that Draper should levy the Fine BAker versus Pain Hill 10. Jac. rotulo 3139. An Action of Debt brought upon a Bond to pay Rent and perform all the Covenants Grants Payments and Conditions contained in a pair of Indentures and the Defendant pleads the Indenture and performance thereof The Plaintiff assignes the Breach that the Defendant had not paid the Money The
whole Court for they said that the Demand must be made at the place of payment although it be of the Land FIeld versus Hunt Mich. 5. Jacobi Hunt in VVorcester Court obtained a Judgement after a Verdict in Debt upon a Contract for twenty Sheep and after it was removed by a Writ of Error into the Kings Bench and generall Errors assigned but upon opening the Errors it was shewed the Court that there was no Declaration in VVorcester Court for the Declaration was thus Raphael Hunt complains against H. Field of a Plea that he render to him twenty pounds which he owes unto him and unjustly detains and whereof the same Plaintift by M. his Attorney whereas the said Defendant c. and by Fennor VVillams and Cook it is no Declaration for Default of this word Dicit and the sense is imperfect and although Yelverton objected that a Declaration is sufficient if it be good to a common intent and Quer. being writ short it may be Queritur and then it is and whereof the same complaines but the Court held that would not help for it is not certain to whom the word Idem should refer whether to the Plaintiff or Defendant and of the two it should rather refer to the Defendant which is the next Antecedent and the Court held it matter of substance which is wanting and therefore naught but if it had been 4. and whereof the same Raphael quer being writ short it had been good for because the party Plaintiff is certainly named and then Quer. could have no other sense then Queritur and Judgement reversed which mark HArrison versus Fulstow Mich. 5. Jacobi The Plaintiff brought Action of Debt for fourscore and six pounds in the Common Pleas against T. Harrison and the Capias was continued accordingly against T. Harrison but the Plur. capias was against William Harrison which was the very name of the Defendant and that was but for fourscore and five pounds which varied from the first Entry and William Harrison appeared upon the Exigent and the Plaintiff declares against William and he pleads and they are at Issue by the name of William and a Verdict for the Plaintiff and Judgement accordingly against William and upon a Writ of Error it was assigned for Error that the Original did not maintain the Proceedings for the Original is against Tho. and the Proceedings against William and the Plaintiffs Counsel would have excused it because the Judgement being against William and the Original against Tho. as it is certified it cannot be the Original against William and so the Judgement against William being without Original it is aided by the Statute after a Verdict but the Court held it to be Error for there is great Difference between no Original and a naughty Original for the want of an Original is helped but not a vitious Original and Judgement was reversed for upon Diminution alleadged that this Original was certified as the Original in that Suit or else there was no Obtulit at all LOthbury versus Humfrey Mich. 5. Jacobi Lothbury and his Wife Administratrix of VV. R. brought an Action of Debt as Administrator upon an Obligation of forty Marks dated 4. April 38 Eliz. made by the Defendant to the Intestate 1. the Defendant pleades that Ridge the Intestate October the first Jacobi made his Will and made the Defendant his Executor and devised the Obligation and the Money therein contained to one H. Son of the Defendant and died after whose Death the Defendant takes upon him the burthen of the Executorship and administers divers Goods of Ridges and that he is ready to aver this to which Plea the Plaintiff demurrs generally and adjudged for the Plaintiff for the Defendants Plea is not good without a Traverse that Ridge died intestate For the Action is brought as Administrator and they count upon a dying intestate and that being the ground of the Action ought to be traversed as it is 9 H. 6. 7. Debt brought against one as Administrator of J. and counts that J. died intestate the Defendant pleads that J. made his Will and made him Executor and held no Plea without a Traverse and the same Law 7 H. 6. 13. Debt brought against one R. Executor of R the Defendant pleads that R. died intestate at such a place and held no Plea for if the Plaintiff maintain that R. made the Defendant Executor and the other say that R. died intestate at such a place this makes no Issue and therefore the Defendant ought to traverse that R. died intestate without that that he made him Executor and 4 H. 7. 13. the very Case in question is adjudged that such a Plea in Barr is not good without a Traverse to wit to say without that that R. died intestate according to the 3 H 7. 14. and this was agreed by the whole Court without Argument CHeyney versus Sell Mich. 5. Jac. Cheyney as Executor of Cheyny brought an Action of Debt upon an Obligation against Sell the case was that the Testator had put himself as an Apprentice to Sell for seven years and Sell bound himself to pay to his Apprentice his Executors or Assignes 10 l. at the time of the end or determination of his Apprentiship the Apprentice serves six years and then dies and it was moved by Towse that the Money was due at the time of his Death because then his Apprentiship ended for he said if a man make a Lease for one and twenty years to another and oblige himself to pay to the Lessee ten pounds at the end and expiration of his Term and within those years the Lessor infeoffes the Lessee so the term expires and the ten pounds should be paid instantly but Cook denied that Case because the Lessee hastened the end of his terme but he said that if a man lease Land to another for seven years if the Lessee should so long live and the Lessor oblige himself to pay ten pounds at the end of his terme and he die within seven years there he was of opinion the Money was presently due upon his Death but in the principal case the whole Court held the chief Justice being absent that the Obligation was discharged and that the Money should notbe paid WIllot versus Spencer Mich. 9. Jacobi The Plaintiff brought an Action of Debt for Tithes of Wood upon the Statute of 2 E. 6. and Forster argued that Judgement ought not to be given for the Plaintiff because the Plaintiff did not shew in his Plaint that he was Parson for he ought to bring his Action according to that name that he claimed the Tithes by and this ought to be expressed in the Queritur and therefore if a man bring his Action to recover any thing as Heir Executor or Sheriff he ought to name himself so in the Queritur 30 H. 6. 9 H. 4. but Towse said the same Exception was taken between Merrick and Peters and disallowed Fleming Justice said
for the intent of a Will must be certain and agreeable to Law and there must not an intent out of the words of the will be sought out and the whole Court held that the Plaintiff was barred YOung versus Radford Pasch 10 Jacobi Rotulo 1515. Action upon an Ejectment brought and the Jury found a speciall Verdict and the Case was that Elizabeth Rudford was possessed of a house full thirty years and she took a Husband the Husband and Wife morgage the Term the Wife dies and the Husband redeems the Land and marries another wife and then dies and makes his Wife Executrix and she maries the Lessor The Defendant takes Administration of the Goods of the first Woman and it was held void and Judgement for the Plaintiff PEttison versus Reel Pasch 12 Jacobi Rotulo 2350. An ejectment brought and Triall and Verdict for the Plaintiff and exception taken in arrest of Judgement to the Venire Facias because this word Juratum was omitted for the Writ was posuerunt se in illam and omitted the word Juratum and this was amended by the Court. When a Title is to be tryed upon an Ejectment and a Lease to be executed by Letter of Attorney the course is this that the Lessor do seal the Lease onely and the Letter of Attorney and deliver the Letter of Attorney but not the Lease for the Attorney must deliver that upon the Land and upon an Ejectruent brought of Lands in two villages of a house and forty Acres of Land in A. and B. and a speciall Entry in the Land adjoyning to the house to wit the putting in of a Horse which was drove out of the Land by the Defendant and this was adjudged a good Entry for the Land in both the Villages by the opinion of the whole Court ARden versus Mich. 12 Jacobi The Plaintiff delivers that whereas such a day and year at Curdworth in the said County did demise to the Plaintiff two Acres of Land with the Appurtenances in the Parish of C. and the Venire facias was of the Parish of C. and after a verdict exception was taken because it was not of Curdworth but it was adjudged good by the Court and to prove the Lease made Lanheston an Attorney swear that the Lessor sealed the Lease and subscribed it but did not deliver it and by word gave authority to one W. to enter into the Land and to deliver the Lease upon the Land to the Plaintiff as his Deed and by that authority he entred and delivered the Lease as his Deed to the Plaintiff and it was adjudged good MArsh versus Sparry Hill 14 Jacobi Rotulo 1859. An Ejectment brought ex dimissione G. W. and the Originall was made ex divisione and after a Triall Serjeant Hitchaw moved the Court that the Originall might be amended and make ex dimissione and the Court granted it and the Cursitor was ordered to amend it and also in the end of the Originall it was written Barnabiam and it should have been Barnabas and that also was ordered to be amended by the Court. CRadock versus Jones Trin. 14 Jacobi Rotulo 2284. An Ejectment brought upon a Demise made by Cotton Knight the Defendant pleads not guilty and a Challenge to the Sheriff and prayes a Venire facias to the Coroners because the Sheriff is cozen to the Plaintiff and shews how and because the Defendant did not deny it a Venire facias was awarded to the Coroners and after a verdict it was alledged in arrest of Judgement because it was not a principall Challenge and a Venire facias de novo awarded to the Sheriff PArkin versus Parkin 13 Hill Jacobi Rotulo 979. And Ejectment brought and verdict and after a Triall Exception taken to pleading of a Deed inrolled the Action was brought in the County of York and pleaded thus ut infra sex menses tunc proximos sequent coram milite uno Justic c. in West-Riding Com. Eborum ad pacem c. conservand Assign W. C. Clerico pacis ibidem debito modo de Recor. irrotulat and Exception was because the inrollment was not made according to the Form of the Statute because it did not appear that the Justice before whom the Deed was inrolled was a Justice of the Peace of the County of York but of the West-Riding and it was not alledged that the Land did ly in the West-Riding and note that the Defendants Plea in Barr was insufficient because the Defendant did not confesse nor avoid the Count and the Plaintif by his Replication doth not shew any Title to the Land because it did not passe by the inrollment and so he hath lost his Suit and although the Barr be insufficient yet notwitstanding the Plaintif shall not recover GReenely versus Passy Hill 5 Iacobi Rotulo 808. An Ejectment brought the Defendant pleads not guilty and the Jury found it Specially that one Woodhouse was seised of Land in Fee and did infeof the Husband and Wife to have and to hold to the said Husband and Wife and the Heirs of their bodies between them to be begotten by vertue of which Feofment the Husband and Wife were seised of the whole Land in Fee Tail to wit c. the Husband infeofs the youngest Sonne of the land in Fee and afterwards the Husband dies and the woman survives and afterwards she dies before any Entry by her made into the Land and further find the lessor to be the eldest son of their bodies and that the younger Son infeoffed the Defendant and afterwards the eldest Sonne entred into the Land and made the lease in the Declaration and whether the Entry of the eldest Son was lawfull or no was the question upon the Statute of 32 H. 8. that Fines or Feoffements made by the Husband c. during coverture be or make any discontinuance c. or be hurtfull to the said wife or her Heirs and Sir Edward Cook held that the Heir is not barred of his Entry by the Statute PAcy versus Knollis Trin. 6. Iacobi Rotulo 291. An Ejectment brought the Defendant pleaded not guilty and the Jury found it Specially and the question is upon the words of the Will to wit And I give to Katharine my Wife all the Profits of my Houses and Lands lying and being in the Parish of Billing and L. at a certain street there called Broke-street and the Jury found that there was not any Village or Hamlet in the said County called Billing and that the Land supposed to be devised lieth in Byrling-street no mans verbal Averment shall be taken or admitted to be contrary to the Will which is expresly set out in the Will If I have two Thomas to my Sonnes and I give it to Thomas it shall be intended my youngest Son because my eldest Son should have it by Discent the Will was held by all the Court to be good HEllam versus Ley Trin. 7. Jacobi rotulo 2718.
31 H. 8. of Monasteries which gives the Houses dissolved to the King but in the same degree and qualitie as the Abbot had them And the Abbot was charged with the power given by himself and so was the King Which mark VVAnto versus Willingsby Pasch 5. Jacobi The Bishop of Exceter in the time of H. 8. by his Deed gives Land c. to Nicho Turner and by Bill his Cousin in consideration of service done by Turner and for other considerations him moving to them and the Heirs of their bodies and dyes They have Issue Jo. and William N. T. dies and Sybill marries Clap. and they alien the Land to Iohn in Fee Sybill and Iohn leavie a Fine to Walther in Fee of the Land And afterwards Sybill infeoffes William her younger Son who infeoffes Willinghby Io enters and leaseth to Walther and Willingby for the tryall of his title seals a Lease to ward who declares of so many Acres in Sutton Cofeild And the Jury upon a not guilty pleaded foundby the Verdict that the Bishop gave the Tenements aforesaid by his Deed the tenor of which Deed follows c. And by the Deed it appeared that the Lands did lye in Little Sutton within the Lordship of Sutton Cofeild And notwithstanding the Plaintiffe shall recover For first it was held not to be any Joynture within the Statute of 11 H. 7. for it is not any such gift as is intended by the Statute for the Bishop was not any Ancestor of the Husband and the Husband took nothing by that but it was a voluntary recompence given by the Bishop in reward of the service passed And the Statute intended a valuable confideration And also the Bishop might well intend it for the Advancement of the woman who appeared to be Cozen to the Bishop And Tanfeild held if the woman were a Doneâ— within the Statute of 11 H. 7 she could be but for a moyetie for the gift was before the marriage and then they took by moyeties And the Baron dying first the woman came not to any part by the husband but by the course of Law as survivour But quaere of this conceit for the other Judges did not allow it And secondly they held that the Fine of Io. the elder Son of Sybill levied to Walther destroyed the entry of Io. and of Walther For although in truth the Fine passed nothing but by conclusion yet Io. the Son and Walther his Conusee shall be estopped to claim any thing by way of forfeiture against that Fine on the womans part then any title accruing after the Fine For they shall not have any new right but Io the Son upon whom the Land was intayled is barred by the Fine Thirdly although upon view of the Deed made by the Bishop the Land which by the Declaration is layed to be in Sutton Cofeild by the Deed appears to be in Little Sutton yet this is helped by the Verdict by which it is found expresly that the Bishop gave the Lands within written and therefore being so precisely found the Deed is not materiall Which mark KNap versus Peir Iewelch Pasc 5. Jacobi An Ejectment brought for Lands in Wiccombe which were the Deans and Chapters of Chichester And in this case it was agreed by the whole Court that if it be a Corporation by prescription it is sufficient to name them by that name they are called And the Court held that if a man demands Rent upon the Land to avoid a Lease upon a condition the Demand ought to be made in the most open place upon the Land The Dean and Chapter of Chichester made a Lease to one Raunce the Lessee of the Defendant of Lands in Wiccombe rendring Rent payable at the Cathedrall Church of Chichester upon such a condition it was agreed by the whole Court that the Demand ought to be made in the Cathedrall Church of Chichester although it was of the Land Leased And the Demand ought to be made at the setting of the Sun the last instant of that day and when he made his Demand he ought to stand still and not walk up and down for the Law did not allow of walking Demands As Pipham said and he ought to make a formall demand And because those whom the Dean and Chapter did send to make the demand of Rent said bear witnesse we are come hither to demand and receive such Rent it was held by the Court that such a demand was not good And they held the demand ought to be made at that part of the Church where the greatest and most common going in is And in this case it was said by Popham that if a man make a Lease to one for yeers to commence at a day to come and then he lease to another for yeers rendring Rent upon a condition to commence presently And he enter And the first Lease commence and he enter the Rent and Condition reserved upon the second Lease is suspended A man leases for years rendring Rent after he leaseth to another to commence at a day to come and the first Lessee attorns the second shall not have the Rent reserved upon the first Lease by Popham but he doubted of it And Popham and Tanfeild held none contradicting that the Letter of Attorney made by the Dean and Chapter to demand their Rent was not good because the Letter of Attorney was to make a general demand on any part of the Land which the Dean and Chapter had leased And that ought to have been speciall onely for that Land And secondly it was to demand Rent of any person to whom they had made a Lease And the Letter of Attorney ought to be particular and not generall of any person TOmpson versus Collier Mich. 5. Jacobi The Plaintiffe declares upon a Lease of Ejectment made by Robinson and Stone of one Messuage and fourty Acres of Land in the Parish of Stone in the Countie of Stafford The Defendant imparled tryall another Terme and then pleads that within the Parish of Stone there were three Villages A. B. and C. And because the Plaintiffe hath not shewed in which of the Villages the Land he demanded Judgement of the Bill c. And the Plaintiffe demurred upon this Plea And adjudged for the Plaintiffe For first after an Imparlance the Defendant cannot plead in abatement of the Bill for he hath admitted of it to be good by his entring into defence and by his Imparlance And secondly the matter of his Plea is not good because the Defendant hath not shewed in which of the Villages the House and fourty Acres of Land did lye And that he ought to have done For where a man pleads in abatement he alwayes ought to give to the Plaintiffe a letter writ with mark And the whole Court held that this Plea was not in barr but that he should answer over And Williams Justice took this difference that when a man demurrs upon a Plea in abatement And when he
to the estate casts the possession of his Ancestors upon him but a stranger to whom a Copy hold is surrendred hath nothing before admittance because he is a purchasor And a Copy made to him upon which he is admitted is his Evidence by the custome and before that he is not a customary Tenant and so he could not transfer any thing to another and adjudged so according to 24 Eliz Alderman Dixies Case BEdell versus Lull Pasch 7. Jacobi The Plaintiffe declares in Ejectment upon a Lease made by Eliz James of certain Lands The Defendant pleads that before Eliz had any thing one Martin James was seised in fee of it and had issue Henry James and dyed seised by reason whereof it discended to H. J. as Son and Heir and that Eliz entred and was seised by abatement and made the Lease to the Plaintiffe and that afterwards the Defendant as servant to H James and by his command c. The Plaintiffe by way of replication confesses the seisen of M. James And that he being so seised by his last Will in writing devised the said Land to Eliz in fee and afterwards dyed seised by reason whereof she entred by force of the devise and made the Lease to the Plaintiffe and traverse without that Eliz was seised by abatement in manner and form c. And the Defendant demurrs upon this replication and shewed for cause that the traverse was not good and adjudged for the Defendant for the Plaintiffe by his replication need not both confesse avoid and traverse the abatement too for the Plaintiffe made a title to his Lease by the Will of his Ancestor and that proved that he entred legally and not by abatement as the Defendant had supposed And then to take a traverse over makes the replication vitious For a traverse shall not be taken but where the thing traversed is issuable And here the devise is onely the title issuable And it was also held that the traverse was not good as to the manner of it for he should not have traversed without that that he was seised by abatement but it ought to have been without that that he did abate and also if the Plaintiffe had minded to have fully answered the Defendant he ought to have took his traverse in the very same words the Defendant had pleaded it against him to wit without that that he did enter and was seised by abatement which observe The Case concerned Sir H. James to whom the Defendant was Tenant SAunders versus Cottington Mich. 7. Jac. An Ejectment brought of two Houses but the Bill was onely for one and it was filed And the Defendant by his paper book pleaded to both Messuages And the Roll in Court and the Record of Nisi prius were two Houses And there was a verdict for the Plaintiffe and Judgement entred accordingly And a Writ of Error was brought by the Defendant and before the Record was removed the Plaintiffe moved the Court that the Bill upon the file might be amended and made two Messuages And because the Defendant had pleaded to Messuages in his Answer in paper and that the Roll and Record were according it was resolved by the whole Court that the Bill upon the File should be amended and made two Messuages for that Bill which made mention onely of one House could not be the ground of all the proceedings afterwards but it was as if no Bill had been filed and therefore it should be supplied and so had been severall times before the Record was renewed Which observe THe Plaintiffe declared in Ejectment upon a Lease of an House 10 Acres of Land 20 Acres of Meadow 20 Acres of Pasture by the name of one Messuage and ten Acres of Meadow be it more or lesse and upon not guilty pleaded the Plaintiffe had a Verdict but moved in Arrest of Judgement and Judgement was stayed For by the Plaintiffs own shewing in his Declaration he could not have Execution of the number of Acres found by the Verdict for in the Lease there is but ten Acres demised And these words more or lesse could not in judgment of Law be extended to thirty or fourty Acres for it is impossible by common intendment and the rather because the Land demanded by the Declaration is of another nature then that which is mentioned in the per nomen c. For that is only of Meadow and the Declaration is of arrable and Pasture MOore versus Hawkins Mich. 8. Jacobi In Ejectment after issue Joyned upon a not guilty pleaded the cause came to be tried before Brook and Yelverton Judges of Assize in the County of Oxford the Plaintiffe had declared of divers Messuages and divers Acres of Land lying in three Villages in the said County And at the tryall before the Jury was sworn Walter the Defendants Counsell put in a Plea that after the last continuance to wit such a day in Trinity Terme before the day of Assize to wit the 20. of July the Assizes being held at Oxford the 21 of July the Plaintiffe had entred into such a Close by name containing eight Acres parcell of the premises specified in the Declaration c. and this Plea was received by the Judges of Assize And afterward in Mich. Terme Yelverton and Walter being of Counsell with the Defendant desired that they might amend their Plea to wit to put in the very Village where the Land did lye into which the entry of the Plaintiffe was because it was but matter of form and not of substance and they were of opinion that the tryall of that new lssue ought to be of all the three Villages named in the Declaration And Yelverton Justice having asked the opinions of all the Judges in Serjeants Inne Fleetstreet related their opinions in the Court the Record of Nisi prius was returned into the Exchequer to wit that it was in the discretion of the Justices of Assize to accept such a Plea as is before and that it might be well allowed as the 10 H. 7. is and it shall stay the Verdict But otherwise it is of a protection for although they allow a protection yet the Judges may take the Verdict de bene esse yet he said that in the 7. E 3. in a Precipe quod reddat a Release was pleaded at the tryal and the Jury found the Verdict but that was the indiscretion of the Judges to allow it when it should not have been allowed And all the said Judges held as he related that the Plaintiffe could not have a replication to that Plea at the tryall for the Justices have no power either to accept a Replication upon that Plea or to try it but onely to return it as parcell of the Record of Nisi prius And they held also that the Plea being put in the Countrey could not be amended in adding the Town in certain in which the Close did lye for it was matter of substance And that the Court of
the use of her eldest Son in tayl c. With power to her self at any time to make Leases for one and twenty years and before the Lease in being expired she made another Lease to B. for one and twenty years to commence after the determination of the first Lease And as to the third part of the Land she made a Lease of that for one and twenty years after the death of one Carn who in truth never had any estate in the Land and afterwards she dyes the first Lease expires And I the Son enters and makes a Lease to the Plaintiffe And the Defendant claims under B. the Lessee And adjudged for the Plaintiffe for by such a power she could not make a Lease to comence at a day to come but it ought to be a Lease in possession and not in interest to comence in future nor in reversion after another estate ended but the Law will judge upon the generall power to make Leases without saying such ought to be Leases in Possession for if upon such power she might make Lease upon Lease she might by infinite Leases detain those in Reversion or Remainder out of the Possession for ever which is against the intent of the parties and against reason and adjudged accordingly Trin. 30 Eliz. Earle of Sussex case 6 Rep. 33. And Justice VVilliams said that when he was a Serjeant it was so adjudged in the Common Pleas in the Earle of Essex Case and Judgement by the the whole Court BRasier versus Beal Trin. 10 Jacobi Upon an especial Verdict in Ejectment the Case was that a Copy-holder in Fee of the Mannour of B. in the County of Oxford by license of the Lord lease the Land in question for sixty years to M. if he should live so long rendring Rent with a Condition of re-entry the Copy holder surrenders to the Lessor of the Plaintiff in Fee who demands the Rent upon the Land which being not paid he entred and made a Lease to the Plaintif without any Argument the Court seemed to be of opinion that the Entry of the Lessor was not congeable for Copy-hold land is not within the Statute of 32 H. 8. of Conditions nor the Lessor such an Assignee that the Statute intends for at the Common Law a Copy-holders Estate is but an Estate at will custome hath onely fixed his Estate to continue which Custome goes not to such collateral things as Entries upon Condition for such an Assignee of a Copy-holder being onely in by Custome is not privy to the Lease made by the first Copy-holder nor onely by him but may plead his Estate immediately under the Lord by the opinion of the whole Court ODingsall versus Jackson Mich. 10. Jac. In Ejectment the Declaration was that the Defendants intraverunt and that he did eject expulse and amove in the singular number and after a Verdict for the Plaintiff upon Not guilty pleaded the Defendant shewed this matter to the Court in Arrest of Judgement for the Declaration is incertain in that point because it cannot be known which of the Defendants did eject the Plaintiff for by his own shewing it appears that the Ejectment was but against one and upon that Declaration the Jury could not finde all the Defendants guilty for by the Plaintiffs supposal one onely did eject him but the Court gave Judgement for the Plaintiff that the Declaration should be amended in that point for it was but the Clerks fault and so it was and upon an Evidence in an Ejectment by the Lessees of Cresset and Smith Yelverton said that if a man comes into a Copy-hold tertiously and is admitted by the Lord and afterwards he makes a Lease for three Lives which is a Forfeiture of his Estate yet if he that hath the pure Right to the Copy-hold release to the wrong-doer that it is good for untill the Lord enter he is Tenant in fait and if the rever as Copy-holder 4 Rep. 15. But Walter seemed of another opinion and therefore quaere what benefit he shall have by the Release In an Ejectment the Plaintiff declared of an Ejectment of decem acris pisar and upon the general Issue it was found for the Plaintiff and it was moved in Arrest of Judgement because the Plaintiff had declared de decem acris pisar which is not good for Pease are not known by the Acre and therefore he should have declared de decem acris tene pisis seminaris as if a man will demand Land covered with water he must say decem acras terrae aqua co opertas but the whole Court held it good for in a common acceptance ten Acres of Pease or ten Acres sowed with Pease is all one and so is the opinion of Catesby 11 E. 4. 1. And the man the Secondary said that so it had been adjudged in the Exchequer Chamber upon a Writ of Error MEerton versus Orib Trin. 11. Jacobi Orib brought an Ejectment against Meerton in the Common Pleas 6 Jacobi of a Cole-mine in Durham in the County Palatine there the Defendant pleaded not guilty and it was found for the Plaintiff before the Justices Itinerantes there upon which Judgement the Defendant brought a Writ of Error and assigned for Errour that the Plaintif appeared by an Attourney whereas it ought to have been by Guardian being under age And upon an Issue that he was of full age was tryed at Durham and found that he was within age but the Plaintif had license to discontinue his Writ of Errour and brought a new Writ of Errour Quod coram nobis residat And declared that M. was inhabiting at Westminster in the County of Middlesex and being within age appeared by an Attorney the Defendant in the Writ of Errour confessed that he was inhabiting at Westminster but that he was at full age at the time And upon the tryall in Middlesex it was found that M. was under age And it was alleadged in Arrest of Judgement and it depended a long time that it was a mistryall and the doubt and question was onely whether the tryall at Westminster in this Case was good And Davenport and Yelverton were of opinion that it was not good for the Errour assigned was done at Durham and because they there have the best notice of it it ought to have been there tryed As if Errour be in a Record it shall be tryed where the Record is 19 H. 6. 79. Secondly This is a reall Action in which the Land shall be recovered and therefore though the Issue be upon a collaterall matter yet it shall be tryed where the Land lyes because it concernes the realty but if it had concerned the person onely it had been otherwise and this difference is taken by Montham 19 H. 6. 10. And therefore if a Feoffment be made upon payment c. If upon an Assise brought the Defendant plead payment in another place yet it shall be tryed where the Land lyes And so likewise if the Issue should be which
although another take away part of my Common yet no action lyeth As if one beat my servant lightly except the Master lose his service no action lieth And if my friend come and lye in my house and set my neighbours house on fire the action lyeth against me and Judgment for the Plaintiff HAtton versus Hun Trin. 13. Jacobi rotulo 3314. In Trespasse and Imprisonment the Defendant justifies by vertue of a Capias and the Plaintiff did afterwards escape and he being Sheriffe did follow him by vertue of the said Warrant taken upon the Capias the Plaintiff replies that he escaped by license of the Sheriffe and traverses the latter taking by vertue of the Warrant and the Court held the traverse idle because the Plaintiff had sufficiently confessed and avoided and if he escaped by the Sheriffs License that ought to be the thing put into issue and not the traverse PAtry versus Wilsh Trin. 9. Jacobi rotulo 1055. An action of Trespass brought wherefore by Force and Armes he broke the Plaintiffs Close and eat his Grasse c. The Defendant justifies for common of pasture and saith that he was seised in Fee of one Messuage with the appurtenances in G. and used to have common for all his Cattell levant and couchant upon the said Messuage And it was moved after a verdict in arrest of Judgment by Sergeant Nichols that the plea was insufficient because the certainty of the Cattell was not expressed as for 200. or the like but the Court held the contrary that levant and couchant is a certainty sufficient and all the Books prescribe for a Common by reason of a Messuage RInghall versus Wolsey Mich. 11. Jacobi rotulo 820. An action of Trespass brought wherefore by force and Armes the servant of the Plaintifs out of the service of the said Plaintiff hath taken and laid to be at H. The Defendant justifies that one was possessed of Corn at S. And that the said servant by the command of his Master had carried away the Corn and that the Owner came to the defendant being Constable and prayed him to detain the servant untill hee could procure a Warrant of a Justice of Peace and traverses that he is guilty at H. The Plaintiff demurres that it was held by the Court a naughty plea First because the Constable could not detain any man but for Felony And secondly the traverse is naught because the Trespass is in the same County and so he might have justified as well in H. as in S. DArney versus Hardington Pasch 9. Jacobi rotulo 1857. An action of Trespass brought to which the Defendant pleads a justification for an Amerciament set in the Sheriffs turn to which Justification exceptions were taken First because the Defendant justified by vertue of a precept to him lawfully granted saith not at what place Secondly he prescribes for the turn to be held and doth not any or what estate c. And Hutton said that a prescription for a turn or one hundred Court by what estate is naught because a hundred is not manurable but lies in grant but he ought to have said that the King and all they that were seised of the said Hundred have had and from the time c. And my Lord Cook said that a prescription by what estate for a thing incident to a Mannor is good for an Hundred that lies in grant it is naught And he and Warburton held that except it was shewed before whom the turn was held it was naught because where any thing is taken by common right as the Sheriffs turn it ought to be holden before the Sheriff as in the prescription it ought to be shewed before whom the turn was held or else it would be naught ROberts versus Thacher al. Hill 11. Jac. rotulo 1928. An action of Trespass brought wherefore by Force and Arms the Close and House of the Plaintif at A. did break and a certain Cow price c. took The Defendant saith that the Plaintiff ought not to have his Action against him because he saith that the Close House is one Messuage c. in A. aforesaid and that before the time in which c. such a one was possessed of the said Cow as of his own proper Cow to wit at A. aforesaid and being thereof so possessed certain Malefactors unknown to the said c. before the said time in which c. the said Cow out of the possession of the said B. did feloniously steal take and lead away whereupon he made Hue and Cry and thereupon hee had intelligence came and was in the possession and custody of the Plaintiff and B. upon notice thereof did request the Defendant to ask the Cow of the Plaintiff and to bring her c. By reason whereof the Defendant the said time in which came to the said Messuage by the usuall way by and through the said Close c. to demand c. And the Defendants then there finding the aforesaid Cow in a wall'd parcell of the Messuage they took the Cow from thence and brought her to the said B. and to him delivered her as c. which is the same Trespass to which plea the Plaintiff demurres and it was adjudged a naughty Justification for these reasons First because it doth not appear but that the Plaintiff had good right to the Cow Secondly because the Defendant took the Cow without demand And thirdly it is not pleaded that the Defendants were servants to the said B. R. and that he did it by his command and therefore Judgment given for the Plaintiff HAll versus Stanley al. Pasch 9. Jacobi rotulo 2289. An action of false imprisonment The Defendant as to the whole Trespass except the Battery and Imprisonment and keeping in prison not guilty And as to that pleads that the Marshals Court is an ancient Court c. and so justifies because the Plaintiff was the pledg of T. C. to the Defendant in an action of trespass upon the case in an indebilat assumpsit generall and thereupon a Judgment against C. and a Capias awarded and a non est invent returned and thereupon a capias awarded against Hall the pledge according to the custome by vertue whereof the said Hall was taken and detained and traverses that he was guilty c. of any imprisoning the Plaintiff before such a day and averres that they are the same persons And the Plaintiff replies that neither R. C. nor T. T. at the time of exhibiting the Bill were of the houshold c. The Defendant demurs and Judgment for the Plaintiff and the whole Court agreed that the Marshalls Court could not hold Plea Covenants and Contracts except both of them were of the houshold of the King and all the matters of which they could hold plea were Trespass Covenants and Contracts of the houshold and within the verge to wit within twelve miles of the Court and Doddridge said that before the Statute of 28
l. as it appears by Fleta and Brian the authority of the Marshall was absolute in civill and criminall causes at the Common Law and that Statute restrains them for Debts but not for Trespasse of what nature soever and therefore see the Statute of 30 l. 1. 5 E. 3. ch 2. and 10 E. 3. ch 2. Swaffe versus Solley Trin. 14 Jacobi rotulo 689. An Action of Trespass brought wherefore he took his Close the Defendant justifies for a way the Plaintiff replies that he did the Trespass of his own wrong without any cause alledged and so an Issue joyned and after a Verdict for it was moved in arrest of Judgement that the Issue was not well reined and prayed a new Triall because the Issue ought to be speciall but that exception was disallowed and adjudged that it was helped by the Statute of Jeofails by the opinion of the whole Court PLaint versus Thirley Hill 6 Jacobi rotulo 161. An Action of Trespass brought wherefore by force and Arms the Goods and chattells of the plaintif did take and impound the Defendant pleaded the common Barr and the plaintif assigns the place and are at issue upon that and after a verdict it was moved in arrest of Judgement that there was no Issue joyned because the Lands are not in question and so no assignment necessary and Judgement was stayed but afterwards upon a motion Judgement was given for the plaintif because the Issue was holpen by the Statute of Jeofails and there was the like case upon a Demurrer in the court of common pleas Trin. 4 Jacobi rotulo 1131. CHild versus Heely 13 Jacobi rotulo 3381. vel 381. An Action of Trespass brought wherefore by force and Arms the Close Hedges and Gates of the Plaintiff at W. did break and his grass with walking over it did destroy and other his Grass with Cattell did eat and consume the plaintiff assigned one Close of pasture called Drew and another close called Sutton one other close called L. and the Defendant as to the Trespass except the breaking of the close called G. and P. and the treading c. with his feet and eating with his cattell in the said close called P. and E. not guilty and as to the breaking of the close c. saith the plaintif ought not to have his Action because he saith that E. 6. was seised of the Mannour of W. of which one Messuage c. was copy-hold and shews the custome for a way and another custome for a Common and conveys the Copy-hold to himself and justifies as to the pedibus ambulandi and as to the Trespasse with the Cattell justifies for Common the Plaintif replies as to the Trespass pedibus ambulandi that it was of his own wrong without any cause alledged and traverses the way and as to Trespass with the Cattell demurres and the cause of the Demurrer was as it appeared by motion because in the justification of the Cattell the Defendant had not alledged any custome for Common and so the Plaintif could not take any Issue of that custome but had alledged a custome for the way as for the common and the court were of opinion that it was well pleaded and Judgement upon the Demurrer for the Defendant FAirchild versus Gair Pasch 3 Jac. An Action of Trespasse brought for the tiths of the Church of B. and therein a speciall verdict was as followeth the Defendant was collated to this Church of B. being a Donative by A. and B. the Patrons and that the Church was exempt from the Jurisdiction of any Ordinary the Defendant resigned to A. and C. who was a stranger and to other persons who had no Interest his Church of B. with all Rights c. and afterwards the persons passe their Rights to D. who collates and interests the Plaintiff in the Church by reason whereof he seised the Tithes in question and the Defendant took them and concludes that upon the matter c. and if the Resignation be good then they find for the Plaintiff otherwise for the Defendant and by the opinion of the whole Court Judgement was given for the Plaintiffe for the Resignation was good both in respect of the thing resigned and of the person to whom it was made for it being a Donative and exempt from ordinary Jurisdiction the Resignation must be into his hands and the Incumbent shall not be constrained to keep the Church whether he will or no if the Patron will not accept it and because there is no person to whom the Resignation can be made but onely into the hands of the Patron it is good and although the Resignation be to one Patron and to a stranger it is good to both the Patrons and void as to the stranger and the more strong it is because of the following words to wit to all persons whatsoever which words involve all that have any manner of interest and then seeing it is found that D. who collated the Plaintiff and the Estate of both the Patrons although no agreement be found of the Patrons it is not materiall and the resting of the Plaintiff in the Church is good to give him power to take the profits by reason of the primer possession and although the Defendant did resigne but the Church onely yet it is good to all that appertains to the Church and that which the Defendant may have as Rector there 6 E. 3. is that if the Patron grant Ecclesiam that will passe the Avowson but Herlethen said that was in ancient time and therefore not so then to which the court seemed to agree and the court waived the Dispute of any other thing but onely the Resignation for of that onely the Jury doubted and was onely referred to the court but Popham chief Justice said that if the Patron would not collate any man to such a Donative there was no way to compell him but he is left to his own conscience and he might in time of the vacancy take the profits and sue for the Tithes in the spirituall court for such Donatives at first grow by consent of all persons who have any manner of Right or Interest to wit the Ordinary and Parishioners but Gawdy Fenner Yelverton and Williams against him that the Ordinary might compel him to collate any clerk for the Rectory is only exempted from the power of the Ordinary and not the Patron and that is onely as to charges to be taxed upon the church for the ordinary attendance in a Visitation and such like and Popham said that although the Church in execution of the charge is spirituall yet the patron may collate and a meer lay man as the King may make a temporall man a Dean which hath often happened but all the other Judges were against him in case of the person which is meerly spritual but as to the Deanery they did agree it for the function is temporall but yet Williams said that lay men who have Deaneries ought to have and at all
time out of mind to repair the Fence and Hedges betweene Catley Close Fursey Close which Fursey Close doth next adjoyn to the Close called M. where the Cattel were chased and shews that the Plaintiff put his Cattell in Catley Close to feed the Grass there which by default of inclosure escaped into Fursey Close as above but he said that between Catley Close and Fursey Close there is a little Brook which Brook at the side of Catley close had a banck next adjoyning to it which banck the Lessor of the Plaintiff and those whose Estate they have c. have used time out of mind c. to repair And that the Brook at the side of Fursey Close had another Brook next adjoyning which the Defendant used to repair and shews because the Plaintiff had not repaired the banck on the side of Catley Close the Cattell did escape into Fursey Close and stayed in the Close called M. By reason whereof the Defendant chased them as it was lawfull for him to doe whereupon the Plaintiff demurres and adjudged for the Plaintif for the Defendant had pleaded a good Barre and the Plaintif had replyed a good replication and had removed the fault from himselfe and laid it upon the Defendant by his negligent inclosure between Catley and Fursey and the rejoynder doth not confess and avoid the replication but perplexes the matter by adding one point of prescription on the Plaintiffs part that he ought to repair one banck between Catley and Fursey upon which an issue could not be taken for then two prescriptions should be an issue together which cannot be no more then two affirmatives as the 5. H. 7. 12. And also the matter contained in the Records doth not answer the matter contained in the Replication but by way of Argument only And whether that be true is no matter in evidence against the Plaintiff who is bound to prove his Replication true For the Plaintiff saith that Catley and Fursey doe lye together that is without any space between them And the Defendant in his Rejoynder saith there is a banck between Catley and Fursey which if it be so they do not lye together but the Defendant ought to have traversed the prescription alledged by the Plaintiff which had made an end of all the matter which observe was by the opinion of the whole Court SVtcliffe against Constable Trin. 10. Jac. Ch. Constable 32. Eliz. was seised in fee of the Mannor of East-hatfield in the County of Yorke and by his Indenture infeoffes H. Remingham paying for certain Lands parcell of the Mannor 60 l. at two Feasts with a clause of Distresse if it be behind by the space of 14. days Ch. 43. Elizab. by Indenture bargains and sells the 60 l. Rent to the Plaintiff which was inrolled by reason whereof he was seised of the Rent for the life of Ch. and being so seised loses that part of the Identure sealed by Remingham which the said day to wit the 24. Novemb 44. Eliz. came to the hands of the Defendant who by Force and Armes teared the seale of the Indenture against the Peace c. to his damage of 400 l. The Defendant pleads that Ch. hath not granted the Mannor of E. to Remingham paying the rent c. in manner and form and the Plaintiff demurres upon this Plea And it was argued that the Bar was good which is a direct traverse to the title of the Plaintiff to destroy the ground of the Plaintiffs action for if no rent were granted then the Indenture concerning which the Plaintif complains did not belong to the Plaintiff for it passes not to the Plaintiff but as an incident to the second Grant of necessity to make good his title As the Lord Buckhursts Case Co. 1. 7. E. 4. 30. in assize of rent the Plaintiff made his title by deed of a rent charge it was a good plea to say that nothing passed by the grant because the issue is taken upon the speciall matter and not the generall but in an Assize brought of an Office it is no plea to say there is no such Office for that amounts to no more but that he hath not disseised him 45. E. 3. In trespass for taking away of writing it is no plea to say that he never had such a writing but must plead not guilty So in an Action of Trespass for Goods it is no Plea to say that the property of them was to an Estranger and not to the Plaintif because by that plea hee denies not but that the Plaintif was in posaession which is sufficient to maintain the Action 20. H. 8. 28. which books prove that the Plea in Bar is not good for the Defendant destroys the Plaintifs Action but by way of Argument And the rent by such Action is not demanded but damages for tearing the Indenture and so the Title of Rent is not in question and exceptions were taken to the Declaration First the Action was brought for tearing the Counter-part by which the Rent was not created And the Indenture is not expresly granted to the Plaintif but the rent of 60 l. only is bargained and sold and by that the counter-part that pertains to Remingham doth not pass to the Plaintif as an incident for it is not the Originall Deed by which at first the rent was reserved which was granted by all but the Cheife Justice for he said that the counter-part waited upon the interest and was good evidence for that Secondly the Plaintif had not averred that Ch. for whose life the Rent was granted was alive at the time of tearing the Indenture and if C. was dead the Indenture pertained to the Defendant of right as Heir of Ch. for so much appeared by the Plaintifs own shewing which was granted And thirdly the Plaintiff shewed not that ever hee was posaessed of the Deed but by way of Argument to wit that he casually lost it which is not sufficient for none shall have trespass but he who is in actuall posaession which was also granted by the Court. Fourhly the counter-part whereof the Plaintif complains by the Plaintifs own shewing contained as well a warranty as the rent reserved And therefore without a special gift made of that Deed by Ch. to the Plaintiff that Deed doth not pass by Law to the Plaintiff as it is adjudged in Lord Buckhursts Case Fifthly if Ch. the Father be dead then the writing hath lost his force as to the rent for by his death the rent is determined and therefore of necessity the Plaintiff ought to averre the life of Ch. For no Action lies for a Deed that is determined and for these reasons the Plaintiff did discontinue his Action An Action of Trespass was brought for entring into a mans House and continuing there divers dayes c. And after a Tryall and verdict for the Plaintiff Yelverton moved in Arrest of Judgment and shewed for cause that the Plaintiff had declared with a continuando for breaking
Estcourt and Harrington 272 Earl of Rutlands Case 330 F. Forde versus Pomroy 9 Fetherstones Case 168 Flemming and Jales 280 Freeman against Baspoule 309 Foster against Jackson 311 G. Glover and Wendham 10 Gaudey against Newman 38 Gargrave against Gargrave 52 Gravesend Case 177 Goodyer and Ince 208 Gittins against Cowper 217 Grimes against Peacock 222 Godsalls Case 270 H. Hurrey against Boyer 8 Huntley against Cage 14 Hurrey against Bowyer 20 Hamond against Jethro 97 Hamond Strangis Case 102 Hill againstVpchurch 121 Hall against Stanley 124 Holcraft against French 137 Higgins against Piddle 149 Hare and Savill 273 Heyden against Smith 328 I. Jones against Boyer 27 Jennings against Audley 30 James versus Reade 47 Jacob against Sowgate 12â— Ireland against Smith 166 K. Kenrick against Pargiter and Phillips 60 Kemp and Phillip his Wife James and Blanch his Wife against Lawrere and Trallop and the Wife of Gunter 144 L. Linch against Porter 1 Legates Case 41 Lampit against Margeret Starkey 17â— Lawry against Aldred and Edmonds 183 M. Master Brothers and Governours of Trinity house againsi Boreman 13 Mallet against Mallet 133 Marstons Case 167 Manley against Jennings 176 Marsam against Hunter 209 Miller and Francis 277 Michelborn against Michelborn 296 Mors against Webbe 297 P. Parkers Case 7 Penns Case ibid. Priddle against Napper 25 Powis against Bowen 29 Parkers Case 37 Petty against Evans 40 Pyat against the Lady Saint-John 56 Portington against Rogers 65 Pits against Dowse 74 Petoes Case 75 Patrick against Lowre 101 Prowse against Worthing 103 Peto against Checy and Sherman and their Wives 128 Peacock against S George Reynel 151 Proctor against Johnson 212 Payne and Mutton 276 R. Robotham and Trevor 11 Reyner against Powell 42 76 Rowles against Mason 85 192 Robinsons Case 271 Rivit against Downe 279 Read against Fisher 297 Rutlage against Clarke 308 S. Symonds against Greene 16 Sir William Chanceyes Case 18 Sir John Watts 29 Sir Edward Ashfeild 48 Styles against Baxter 49 Sturgis against Deane 57 Sir Richard Bulkley against Owen Wood 100 Sir Ed. Puncheon against Legate 137 Sir Henry Rowles against Sir Robert Osborne and Margeret his Wife 169 Strobridge against Fortescue and Barret 190 Sammer and Force 208 Styles Case 216 Stydson against Glasse 223 Simson and Waters 272 Smallman against Powes 291 T. Tey against Cox 35 Tresham against Lambe 46 Trobervill against Brent 97 Tyrer against Littleton 187 The Lord Rich against Frank 202 Trinity Colledge Case 243 The Towne of Barwick 270 The Duke of Lenox Case 301 V. Vivion against Wilde 290 W. Wagginer and Wood 9 Westons Case 11 Wallop against the Bishop of Exeter and Murrey Clark 45 Wickenden against Thomas 58 Weeks against Bathurst 102 Water against the Deane and Chapter of Norwich 158 Warbrook and Griffin 254 Waggoner against Fish 278 Waggoner against Fish Chamberlaine of London 284 Y. Yates and Rowles 207 THE SECOND PART OF BROWNLOWE'S REPORTS Containing divers excellent Cases and Resolutions in Law Lynche against Porter THE Plaintiffe in Prohibition suggests that hee inhabited in London within the Diocesse of the Bishop of London and was cyted to appeare in the Court of the Arches and was out of the Diocesse of London without license of the Bishop of London against the Statute of 23. Henry 8. And upon the first motion the Court gave rule to the Defendant to shew cause why the Prohibition should not be granted and to heare the Civilians and to conferre with them concerning the practise and expounding of the Statute of 23. H. 8. Chap. 9. And at the day appointed three severall Civilians came into the Court and were heard according to the former Order and they say that they use to cyte any Inhabitant that inhabits in London to appeare and to make answer in the Arches originally for the mischief that the Statute of 23. H. 8. intends to prevent was that those which inhabite in Dioces remote from London should not be sued here without licence from the Ordinary but this mischiefe was not in this case And Doctor Martin saith that so it was used by the space of 427. years before the making of the Statute and then was complaint made thereof to the Pope and he was answered that it was the use that any man might be cyted to the Arches out of any Diocesse in England and also that the Arch-Bishop may hold his Consistory in any Diocesse within his Jurisdiction and Province And also that the Arch-Bishop hath concurrent Jurisdiction in the Diocess of every Bishop as well as the Arch-Deacon And then if the suit be first begun in the Court of the Arch-Bishop or the Bishop or Arch-Deacon it ought to be there determined where it had its beginning and shall not be inhibited And then it was objected by Cooke chief Justice that the Statute of 23. H. 8. was affirmed by Canon 94. And this sheweth the agreement of the Civilians with the said Statute And to this Doctor Martin answered that the said Canon was made in the vacancy of the Church of Canterbury for the Sea of the Arch-Bishoprick was then void and also he said that the Arch-Bishop of Canterbury prescribes to hold plea of all things and of all persons in England And the Pope hath no power to make Canons against the Law nor against any Custome or Prescription and for this it shall be void and that shall not bind the Arch-Bishop which is against the said prescription and also it seems to the Civilians that the exposition of the said Statute being the Ecclesiasticall Statute appointed to them And also it was said by them that this detracts from the Arch-Bishops Jurisdiction against the custome of the Realm and every Subject hath interest in that And also that the Bishop takes notice that they hold plea of the said cause and took no exception and that made a sufficient assent and amounted to a license in Law and so concluded that a prohibition ought not to be granted in this Case Coke cheife Justice saith that the Mischeife which the Statute of 23. H. 8. was not only to prevent the mischeife that those which inhabited in places remote from London should not be cyted to come to the Court of the Arch-Bishop but also to give to them other priviledges which by the Law they ought to have that is the Appeale that they loose by the beginning of the Suit in the Arches for they may appeal from the Ordinary after the suit begun here to the Arch-Bishop which benefit is lost if the suit be begun before the Arch-Bishop originally and for that the Inhabitants in London are as well within the Mischeife as the body of the Act of 23. H. 8. And also that at the making of the said Canon the Arch-Bishop of Canterbury which late was had the Jurisdiction of the same then committed unto him he then being Bishop of London So that upon the matter he was Arch-Bishop of Canterbury so that the unity of the Sea of
H. 6. 46. be it true or not and if it be not true the party may have his action against the officer which doth it and it was adjudged in Fullers Case in the Kings Bench that the high Commissioners may imprison and impose a fine for Heresie and Schisme and it was also resolved that Poligamy before the Statute of the 3. of King James was punishable before the high Commissioners for this was an heynous crime otherwise the Statute would not have made it Felony and he said that it was agreed in the time of the last Queen Elizabeth that the high Commissioners should not meddle with any thing but only those five that is Heresie Schisme Poligamy Incest and Recusancy and with no others and it was moved that a Writ De causione admittenda lieth for that they would not allow of the submissions And the Justices would consider of that and the Prisoner was remanded and it was adjourned And at an other day it was moved by Nicholls Sergeant that the high Commissioners supposed for that that the Statute of 5. El. gives authority to the Queen and to her heires and successors to grant Commission to Visite Reforme Redresse Order Correct and amend all Errours Heresies Schismes Abuses Offences Contempts and Enormities whatsoever and that the Commissioners may execute all the premises according to the Tenure and effect of the said Letters Patents that by that they might fine and imprison at their pleasure But Coke chiefe Justice said that it appeares by the preamble of the said Statute that after the Statute was in the â—5 yeare of the Raigne of King Henry the 8. by which the ancient Jurisdictions Authorities superiorities and Prehemenences were united or restored to the Crown and by meanes of the said Statute his Subjects were continually kept in good order and were dâ—sburthened of divers great and intollerable charges and exactions before that time unlawfully taken and exacted untill such time as the said Statute of 25. H. 8. was repealed by the Statute of 1. and 2. of Phillip and Mary which said Statute of 1. and 2 of Phillip and Mary should be repealed and void by which it appeares that the Kings Subjects were greviously burthened with grevious and intollerable charges and exactions and yet in this time of usurped power of the Pope doth not challenge that he might Commit or Imprison or Fine in any case but in the cases especially mentioned in the last Case aforesaid and for that all the usurped power was annexed to the Imperiall Crown the which he called the clause of annexing the second was the clause of deputation and this was the clause of the Statute by which the Queen hath power to grant Commission to such persons being naturall borne Subjects as her Majesty her Heires or Successors shall thinke fit to Exercise Use and Execute under her Majesty all manner of Jurisdictons Privelidges and Preheminences in any wise touching or concerning any spirituall Jurisdiction in all her Majesties Dominions and to Visit Reforme Redresse Order Correct and amend all such Errors Heresies Schismes Abuses Offences Contemps and Enormities whatsoever which by any manner spirituall or Ecclesiasticall power authority or Jurisdictions can or may be lawfull Reformed Ordered Redressed Corrected Restrained or amended and the third he calleth the clause of execution by which power and authority is given to the Commissioners to Exercise Use and execute all the premises according to the Tenure and effect of the said Letters Patents And it seems it was not the intention of the Statute to give any power to the Commissioners which was not given to the Queen by this Statute for the clause of deputation shall not be more ample then the clause of annextion and then the clause of execution refers to the first too clauses as it appears by the words of that that is to use and execute all the premises according to the said Letters Patents and the premises are expounded by the first clauses that is Errors Heresies Schismes c. And the said Letters Patents refer all Letters Patents before mentioned where the persons are appointed to be naturall borne Subjects and the materiall manner of Jurisdictions Priviledges and Preheminences Ecclesiasticall Siprituall and to Visit Reforme Order Redresse Correct and Amend all such Errors Heresies c. Which by any manner of spirituall or Ecclesiasticall Power Authority or Jurisdiction can or may lawfully be Reformed Redressed Ordered Corrected Restrained or Amended c. So that it cannot be intended that they may proceed in any other forme but only according to the Ecclesiasticall power and Jurisdiction and no other for otherwise they may Fine Imprison and ransome any man at their pleasures which was never intended by the makers of the said Statutes But only to transfer the Power and Authority which at that time was in the Bishops which then were Papistes to the high Comissioners the which the King may alter at his pleasure and so he cannot the Bishops for they are nor displaceable after their consecration Michaelmas 8. Jacobi 1610. in the Common Place A Man was cited before the High Commissioners for Poligamy which was agreed to be a cause examinable punishable there and upon examination of the Cause the Defendant was acquit and yet he was censured to pay costs though that he was acquitted of the Crime and this Court was moved for a Prohibition and it was denyed for they may hold plea of Principall and then Prohibition shall not be granted for the accessary and the Lord Coke said that they have just cause of lawfulnesse of punishing the offence though they have not just cause of the Deed and peradventure it was very suspitious that he was guilty and for that he hath only God for his revenger Parkers Case THree were cyted to appeare in the Court at Chester for Tenths and treble damages demanded and also in the Libell it is suggested that the Land is barren and very unfruitfull and Prohibition was awarded against those joyntly and yet it was agreed that they ought to count upon the Prohibition severally Penns Case PEnn Parson of Ryton in the County of Warwicke sued for Tithes in the Ecclesiasticall Court before the Ordinary and the Defendant here pleads that the same Parson was presented upon a Symonicall contract and for that his Presentation Admission and Institution were void by the Statute of 31. Eliz. And the Symony was for that that it was agreed between the said Parson and another man that was Brother to the Bishop of Lichfield and Coventry who was Patron of the same Church That if he should procure three severall grants of three severall next avoydances to them severally granted to surrender their said severall grants and procure the said Bishop to present him when the Church became void that being then full of an old Parson being deadly sick that he would make to him a lease of parcell of the Tithes of his Rectory And the brother
and Governors of Trinity House against Boreman THe Master Brothers and Governors of Trinity House sue in the Admiralty Court one Boreman for that that where Queen Elizabeth by her Letters Patents under the great Seale of England bearing date the 36. yeare of her Reign had granted to them the ballasting of all Ships within the Bridg of London and the Sea and that no Ship shall take any ballast of any other but of them And for that that the said Boreman hath received Ballast of another within the place aforesaid hee was sued in the Admiralty Court And upon that Prohibition was prayed and day being given to hear both parties the Master of Trinity-house came into the Court and the Judges demanded of him for what end the said Suit was there begun if it were to have the Defendant in Prison or to have recompence or for other purpose But he could not give any answer to that upon that the Judges saying that the place being alleadged to be at Ratcliffe is within the body of the County without question and for that for the place shall be tryed at the common Law Secondly the Great Seale and Letters Patents of the King shall be expounded according to the course of the common Law and the Admiralty cannot punish by Imprisonment pecuniary punishment nor otherwise Thirdly the Letters Patents are void for for that one charge is raised upon the Subject for the private gain of this private house for they would not ballast any Ship under 2 d. for every tun of Ballast But if the Letters Patents have been made for publique good peradventure they had been good but a Prohibition was granted Note that the said Boreman was a Dutch-man and his two Ships were arrested and stayed by the Admiralls Warrant out of the said Court so that he was inforced to find sureties to answer to the said suit before he could have his Ships at liberty Huntley against Cage HEnry Huntly was Plaintiff in the high commission Court against Mary Clifford Widdow Defendant Huntley pretends that he was contracted to the Defendant and upon that complaines to the high Court of Commissioners and that she would marry her self to Cage and upon that the Arch-Bishop then did grant a Warrant to a Pursivant to attach Cage and the said Mary Clifford and upon that they were arrested by force of the said Warrant and upon that they were committed to Prison and being imprisoned an obligation of 2000 l. was taken by the said Commissioners of the said Mary Clifford by which she was bound to the King with condition that she should not marry her self nor contract to any other untill the same suit was determined in the same Court and also to appear before the Judge of the Arches within nine dayes after notice of that given And then being dwelling in Hâ—lborn after that Sir William Armstrodder obtained the said obligation of the King pretending that that was forfeited for that that the said Mary Clifford had married her self to Cage before that the said suite was ended and determined And upon that the said Mary Clifford was another time cited before the high Commissioners and a suit was there promoted against her Ex officio by Serle the Kings Proctor also had the 4th part of all fines and forfeitures which grew to the King by reason of the Ecclesiasticall Courts and then was articled against her first that she was marryed or contracted to Cage to that she refused to answer for that that it was the direct question upon which the forfeiture of the Bond depended and then this Article was referred to some Doctors who upon consideration seemed that the Article ought to be reformed and upon that the Article was made that she lived single and unmarried in a house with the said Cage which was as much as the first for shee could not make any direct answer to that without discovering whether the Bond were forfeited or not and upon all this matter a Prohibition was prayed to the high commission Court for the said Mary Clifford And all the Justices that is Coke cheife Justice Walmesley Warburton and Foster agreed that the Obligation was void for that it was taken by duresse of imprisonment for they can not imprison any Secondly that they ought not to examine any man upon his oath to make him to betray himself and to incur any penalty pecuâ—iary or corporall and Foster cited a Judgment in the Exchequer in Ralph Bowes Case where an English Bill was exhibited against one for bringing into England Cards without license and one which had a Monopoly upon that exhibited the said Bill and upon that the Defendant demurred in Law upon that and it was agreed that the Defendant shall not be compelled to answer to that upon his Oath for that that he had then incurred the danger of a penall Statute Thirdly that they cannot take any obligation by which a man shall be bound to appear in another Court but only in the Court where the obligation is taken no more then the Judges of this Court may take obligation of any man to appear before the Councell in the North And Walmesley also seemed that these high Commissioners ought to meddle only with things of the most high nature and not of things which concern Matrimonie and the ordinary Jurisdiction and Coke said that the high Commissioners cannot meddle with any civill causes betwixt party and party as keeping back tithes or not payment of a Legacy and lawfullnesse of Marriage but the causes with which they intermeddle ought to be criminall for otherwise they dissolve all ordinary Jurisdiction and by their sentence every man shall be concluded for he cannot appeal nor have any other remedy and also he said that in civill causes the high Commissioners cannot send a Pursivant to arrest any man by his Body for that was adjudged in Humptons Case 42. Eliz. By Anderson and his companion Judges in their circuit in the County of Northampton with conference had with all the Judges of England where the case was a Pursivant having a warrant to arrest the body of one for Incontinency and to have him before the high Commissioners and a Constable came in aid of the said Pursivant in Execution of his warrant and was slain and was adjudged as before that it was no Murder and the reason was for that that the high Commissioners cannot award any warrant or processe to arrest the Body of any man but if the warrant had been lawfully awarded it was agreed that it should be murder but as this case was it was resolved to be but Man-slaughter and also he said they cannot take in civill causes where they have no Jurisdiction but in criminall causes where they have Jurisdiction it seems they may take obligation as the case requires But he would not dispute that nor affirm nor disaffirm it but as the principall case was the obligation was made by Duresse and so it may
elect him See the Statute of 25 H. 8. That a Canon against Common Law confounds the Roiall Prerogative of the King or Law of God is void and Custome of the Realme cannot be taken away but by act of Parliament See 21 Ed. 4. 44. the Abbot of Saint Albones hath a Charter of the King to be discharged of Collection of tenthes granted by Parliament or Convocation The Clergy grants tythes in Convocation there is a clause in the grant that no one of them who shal be chosen to be collector shal be discharged of collection by colour or force of any Letters Patents and after they return the Abbot of St. Albones Collector who pleads his Letters Patents in discharge of Collector and resolved by the Court that the clause in the grant of tenthes doth not take away the exemption of discharge by the Letters Patents granted And it was resolved that if the Parish clark misdemene himselfe in his office or in the Church he may be sentenced for that in the Ecclesiasticall court to Excommunication but not to Deprivation And after Prohibition was granted by all the court and held also that a Prohibition lyeth as well after sentence as before Trinity 8. Jacobi Common Bench. ON was cited to appear in the Prerogative Court of Canterbury which was out of the Diocesse of Canterbury and upon that he praied Prohibition upon the Statute of 32. H. 8. Which willeth that none shall be cited to appeare out of his Diocesse without assent of the Bishop and Prohibition was granted And yet it was said that in the time of H. 8 and Reigne of Mary that the Arch Bishops of Canterbury had used to cite any man dwelling out of his Diocesse and within any Diocesse within his Province to appeare before him in the Prerogative Court and this without the assent of the Ordinary of the Diocesse But it was resolved by the Court that this was by force of the power Legantine of the Arch-Bishop that as Lynwood saith ought to be expressed in the Prohibition for the Arch-Bishop of Canterbury York Pisa and Reymes were Legati nati and others but Legates a Latere Hillary 1610. 8. Jacobi in the Common Bench. Beareblock against Reade IN an Action of Debt brought by Beareblocke against Reade Administratrix to her Husband upon a Judgement given in this Court The case was this the Plaintiffe had Judgment against the Husband and after sued him to an Vtlagary and upon that he brought a Writ of Errous and removed the Record into the Kings Bench and reversed the Judgement for the Vtlagary But the first Judgment was affirmed and then the Husband acknowledged a Statute and dyed And the Wife took out Letters of Administration and then the Statute is extended against the Wife and all the goods which shee had of the Intestates taken in execution After which Beareblock in the Kings Bench sueth a Scirefacias upon the said Judgment against the said Administratrix to have execution and shee pleads upon that the said Statute in Barre and the extent of that and that more then that shee hath nothing to satisfie and this was adjudged a good plea. And then the Plaintiffe being not satisfied he hrought an action of debt upon the said Judgment in this Court and in Barr of that the Wife pleaded all this matter in Barr as aforesaid upon which the Plaintiffe demurred in Law and the Judges seemed to incline that this was no Barr for though that the Wife hath not any means to aide her selfe or to prevent the extent of the Statute yet it seemed to them that this should not prevent the execution upon the Judgement and that the Wife might have Audita quaerela against the Connusee of the Statute and so to make the extent void It was not argued at this day but the point only opened see 3. Eliz. Dyer 7. H. 6. See Pasche 9. Jacobi the Residue Petty against Evans IN an Ejectione firme brought by the Lessee of a Copy-holder it is sufficient that the count be generall without any mention of the License if the Defendant plead not guilty then the Plaintiff ought to shew the Lycense in Evidence But if the Defendant plead specially then the Plaintiff ought to plead the License certainly in his replication and the time and place when it was made and in this case the Plaintiff replied that the copy-holder by License first then had of the Lord did demise and did not shew what estate the Lord had nor the place nor time when it was made and all the Justices agreed that it is not good For the License is traversable for if a copy-holder without License of the Lord make a Lease for yeares The lessee which enters by calour of that is a Disseisor and a Disseisor cannot maintain an Ejectione Firme and the Defendant cannot plead that the Plaintiff by license did not demise for this is a pregnant negative also it ought to appeare what estate the Lord had for he cannot give license to make a lease of longer time in the Tenancy then he hath in the signiory And for that if he be Lessee for life of a Mannor and he licenses a copi-holder to make a Lease for 21. yeares of a copy-hold and then the Lessee for life dies the license is for that determined though that the copy-holder be of Inheritance for the Inheritance of the Lord is bound by that And for that the Plaintiff replies that the copy-holder by license of the Lord first therefore had made the Lease that is not good by Coke and Walmesley expresly and though that the Defendant confesse the Replication by Implication by pleading Yet this shall not ayd the Plaintiff for that it is insufficiently pleaded which note Hillary 8. Jacobi 1610. in the Common Bench. IN action upon the case upon an Assumpsit the Plaintiff counts that when he such a day at the speciall instance and request of the Defendant lent to the Defendant the same day ten pound And that the Defendant the same day in consideration thereof assumed and promised to the Plaintiff to pay the same summ of ten pound at an other day to come And it was moved in arrest of Judgement that the consideration was too generall and for that the action not maintainable and all the Justices but Foster seemed the consideration was good but Foster it seems was in some doubt of that but Judgement was entred for the Plaintiff according to the verdict And Coke cheife Justice said that such a like action was maintained against Kercher his Chaplain as Executor of his Father and it seems for good Law Legates Case ONe Legate was committed to Newgate Prison for Arrianisme for denying of the Trinity by the high Commissioners and it was moved on the behalfe of Legate to have a habeas Corpus and it was granted and it was said by Coke cheife Justice that the Statute of 5. H. 4. Chapter 10. Inhibits Justices of peace to commit any man to
of his confirmation and not by the first see 11. R. 2. Grants 9. Ed. 3. 4. 12. R. 2 Feoffments 58. See Perkins fol. 8. b 9. a. Grants 10. Eliz. Dyer 279. 4. Hillary 8. Jacobi 1610 In the Common Bench. Styles against Baxter STyles brought an Action upon the case against Baxter for calling him perjured man the Defendant justified that he was perjured in such a Court in such a deposition and so pleaded that certainly and it was found for the Defendant at the Nisi prius and Judgment was given accordingly and the Defendant afterwards published the same words of the Plaintiff upon which he brought a new Action for the new publication in which the Defendant pleaded in Barr the first Judgment upon which the Plaintiff demurred and it was adjudged without any Contradiction that it was a good Barr. Hillari 8. Jacobi 1610. In the common Bench. Andrewe against Ledsam in the Star Chamber ANdrewe exhibited his bill in the Star Chamber against Ledsam the matter Andrew being a rich Usurer delivered to Ledsam being a Scriâ—ener one thousand pound to be imployed for him for Interest that is for ten pound for the use of every hundred pound for every yeare Ledsam being a Prodigall man as it seemes spent the Money and delivered to Andrewe diverse severall obligations every of them containing three severall persons well known to be sufficient being some of them Knights others Gentlemen and Esquires of great Estates and the other good Citizens without exceptions were bound to Andrewe in two hundred pound for the payment of one hundred sixty pound to Andrew at a day to come within six Moneths then next comming as Andrew had used before to lend his Money and delivered the Obligations with Seales unto them and the names of the parties mentioned to be bound by that subscribed and his own name also subscribed as witnessing the sealing and delivery of them as a publique Notary aâ— the good and lawfull obligations of the Parties which were mentioned in them where indeed the parties mentioned in them had not any notice of any of them But Ledsam had forged and counterfeited them as he hath confessed upon his Examination upon Interrogatories administred by the Plaintiff in this Court and at the hearing of the Cause and sentence of that it was moved if Ledsam shaâ—l loose both his Eares or but one for if it be but one forgery then by the Statute of 5. Eliz. Admitting that the Bill is grounded upon this Statute he shall loose an Eare and pay the double dammageâ— and cost to the party greeved And also if Andrew being but the Obligee and not any of the parties in whose names the Obligations were forged if he be such a party greived which shall have double costs and dammages and these doubts were resolved by Coke cheife Justice of the Common Bench where they were moved and Flemming cheif Justice of the Kings Bench that Ledsam should loose but one eare for that shall be taken as one forgery for that it was made at one time and also that Andrew was the party greived within the Statute but Coke said that the Bill was generall that is against the Lawes and Statutes of the Realme and not precisely upon the Statute of 5. Eliz. For he said that when a Bill is founded upon an Act of Parliament that this ought to containe all the branches which are mentioned in the Act the which wants in this Bill but insomuch that it was adjudged in Parliament what punishment such offenders shall have they inflicted the same punishment which is appointed by the Statute and added to that that he should be Imprisoned till he found good Suerties for his good behaviour and also that hee shall be brought to every one of the Kings Courts at Westminster with great Papers in his hatt containing his offence in Capitall letters but the Lord Chancellor expounded the double dammages in such manner that is that they shall not be intended double Interest but only the Principall Debt Note that if Execution be directed to a Sheriffe to Arrest any man or to make Execution within a Liberty And the Sheriffe direct his Warrant to a Bayliffe of the Liberty for to make Execution of the Processe which makes it and after is a Fugitive and not able to answer for that the Lord of the Franchise shall answer for that and shall be liable to answer for his Bayliffe by all the Justices Burdett against Pix IN Debt upon a single Bill by Burdett against John Pix as administrator of Freewen the case was this that is Freewen was bound in an Obligation of thirty four pound to Burdett the Plaintiff and was also bound to one William Pix in 80. l. Freewen dyed Intestate and the Letters of Administration of his Goods were Committed after his Death to the said John Pix the Defendant and the said William Pix also made the said John Pix the Defendant his Executor and died and the Defendant in this Action pleads that the said Freewen was indebted to the said William Pix and that he was his Executor and that he had Goods of the said Freewens sufficient to satisfie the said debt the which he retained for the satisfaction of that and that over that he hath not of his to satisfie him upon which the Plaintiff Demâ—…or that that the Defendant doth not plead that he hath â—…is election to retaine the said goods for the satisfaction of â—…own said Debt before the Action brought and by all the Justices he ought to make his election before the bringing of the Action otherwise he shall be charged with the other Debt See Woodward and Darcyes Case Commentaries 184. a. and 4. Cook 30. Coulters Case Hillary 8. Jacobi 1610. in the Common Bench. Bone against Stretton THe case was this A man seised of two Acres of Land makes a Lease for years of one Acre to one and another Lease for yeares of the other Acre to another and then he enters and makes a Feoffment and severall Liveryes upon the severall Acres and one of the Lessees being present doth not assent to the said Livery and the use of the said Feoffment was not the use of his last Will and then he declares his last Will and by that recites the said Feoffment and then declares the use of that to be to the use of himself for life the remainder over to a stranger and after the Tenant for years which did not assent to the Livery grants his Estate to the Feoffor and the Feoffor dies and Nicholls Serjeant moved first That this enures as a grant of a reversion and that the grant of the perticuler Tenant enures first as an Attornement and then as a surrender of his Estate as if it had been an expresse surrender and all the Justices agreed that this doth not enure to make Attornement and surrender as expresse surrender will for an expresse surrender admits the reversion to be in the Grantee to whom the surrender is made
or Geldings and no more and because the Beasts aforesaid in the narration aforesaid specified over and above the aforesaid other three Mares or Geldings the aforesayd time in which c. were in the aforesayd place in which c the Grasse then growing there eating and the Common of pasture of the sayd Robert Pargiter overcharging and doing damage to the sayd Robert there the sayd Robert Pargiter in his owne right doth wel avow and the aforesayd John Phillips as Bayliff of the aforesayd Pargiter doe well acknowledge the taking of the Beasts aforesayd in the aforesayd place in which c. and justly c. they then doing damage there c. And the aforesayd Robert Kenrick saith That neither the sayd Robert Pargiter for the reason before alleadged the taking of the aforesayd Beasts in the aforesayd place in which c. can justly avow nor the aforesayd John Phillips as Bayliff of the aforesayd Pargiter for the same reason the taking of the Beasts aforesayd in the aforesayd place in which c. justly can acknowledge Because by protestation that he the sayd Robert Kenrick and all those whose estate the sayd Robert Kenrick now hath and at the aforesayd time of the taking c. had in the sayd Messuage and foure Virges of Land with the appurtenances whereof c. time out of minde had not nor used to have or were accustomed every yeare at the first day of August called Lammas day and from thence to the next Feast of the Parification then next following Common of pasture in the aforesayd place in which c. onely for three Horses Mares or Geldings and not more in manner and forme as the aforesayd Robert Pargiter and John Phillips above have alleadged for Plea the sayd Robert Kenrick sayth That he long before the time of the taking of the Beasts aforesayd and also at the same time of the taking c. was seised of the Mannor of Kings Sutton with the appurtenances in Kings Sutton and Astrop in the County aforesayd whereof the aforesayd Messuage and four Virges of Land with the appurtenances whereof c. are and at the aforesayd time of the taking c. and also time out of mind c. were parcell in his Demesne as of Fee and the aforesayd House and foure Virges of Land with the appurtenances thereof c. and of the taking and likewise time out of mind were parcell of the Demesne Lands of the Mannor of Kings Sutton aforesayd And the sayd Robert Kenrick so of the Mannor aforesayd with the appurtenances in manner aforesayd appearing seised the sayd Robert before the sayd time in which c. put his Beasts aforesayd which then were the proper Beasts of the sayd Robert Kenrick upon the aforesayd House and four Virges of Land with the appurtenances lying and rising in the aforesayd place in which c. to eate the Grafs there growing in the sayd place in which c. called Great Greens parcell c. the Grass in the same then growing feeding and the aforesayd Beasts were in the place aforesayd untill the aforesayd Robert Pargiter and John Phillips the aforesayd fourth day of August the seventh yeare aforesayd at Kings Sutton aforesayd in the County aforesayd at Great Greene parcell c. took the sayd Beasts of the sayd Robert Kenrick and those unjustly detained against Sureties and Pledges untill c. as he above against those complaines and this he is ready to verifie whereof and from which the aforesayd Robert Pargiter and John Phillips the taking of the aforesayd Beasts in the aforesayd place c. further acknowledge the sayd Robert Kenrick demands Judgment and his damages by reason of the taking and unjust detaining of those beasts to be adjudged unto him c. And the aforesaid Robert Pargiter and John Phillips say that the aforesaid Plea of the said Robert Kenrick above in the Bar avowed pleaded and matter therein contained is very insufficient in Law justly to avoid the said Robert Pargiter and the said John from just acknowledging the taking of the Beasts aforesaid to have and shut up and that he to the said plea in manner and forme aforesaid pleaded hath no need not by the Law of the Land shall be held to answer and this they are ready to averr whereof for default of a sufficient plea of the aforesaid Robert Kenrick in this part the said Robert and John as before demand Judgement and Returne of the Beasts aforesaid together with their Damages c. To them to be adjudged c. And the aforesaid Robert Kenrick in respect he hath sufficient matter in Law justly to avoid the said Robert Pargiter and the aforesaid John from justly acknowledging the taking of the said Beasts to be shut out as above alledged which he is reaoy to verify which truly matter of the aforesaid Robert Pargiter and John do not answer according to their verifying they altogether refuse to admit as before and demand Judgment and their Damages occasioned by the taking and unjust detaining of the said Beasts to be adjudged to them c. And because c. Upon the pleadings the Case was thus a Freeholder prescribs to have common in parcell of the Demesnes of the Mannor for six Horses and other Cattel in certain Land from Lammas to Candlemas that the Lord of the Mannor hath used to have the said Parcell of Land in severall to his owne use from Candlemas to Lammas and in consideration of that the said Lord hath used to have Common in the said parcell of Land for Horses only and not more and the Lord unjustly puts in other Beasts then the said three Horses in the said parcel of Land and surcharged the Common and the Free-holder distrayned them doing Damage and the Lord brings a Replevin and it was argued that prescription was not good for that that Free-holder claimes that as Common without number in his severall Soyle the Grantee cannot exclude the owner of the Soile 12 H. 8. Brooke so of him which hath Common Fishing in the severall of another he cannot exclude him which hath the severall 18 H. 6. 16. And it is not like to the Case of the time of Edward the first prescription the 55. Where is Prescription that the Owner of the Soile shall be excluded from his Common for part of the yeare for there the other claimes all the Vesture of the Land and so may well exclude the Lord but not when he claimes it but as Common but it was agreed that by Lawes by the Commoners consent they may order that their great Cattell shall be put in in such Feild only untill such a Feast and after that for sheep and swine and this is good as it appears by 46 Ed. 3. 25. And Coke cheife Justice said that such prescription to have Common and to exclude the Owner of the Soyle is not good and he saith that so it hath been adjudged between Whyte of Shirland 31 Eliz. And in
condition to re-enfeoff and she with her Husband makes the re-enfeoffment it is good so a Woman being Lessee for Life and with her Husband attorn upon a Grant of Reversion is good and shall binde the Wife after the Death of the Husband 3 Ed. 3. 42. 4 Ed. 3. Attornment 12. 15 Ed. 3. Attornment also this Estate was made to the Wife when she was sole and for that it shall be accounted her folly that she would take such a Husband that would forfeit her Estate but with that agreed the reason of the Booke of 20 H. 6. 28. Where a woman Tenant was bound by the ceasing of her Husband and so he concluded and prayed Judgment for the Plaintiff and so it was adjourned see another argument of this case in Michaelmas Tearm 9. Jacobi 1611. by Haughton and Nicholls Serjeants Pasch 9. Jacobi 1611. In the Common Bench. Pitts against Dowse IN an Ejectione firme upon not guilty pleaded The Case was this A man makes his Will by these words I bequeath all my Lands to my Son Richard except my Chauntery Lands And I devise all my Chauntery Lands to be devided amongst all my Children men and women alike except my Son Richard And if Richard die without Issue the remainder to A. My second Son the remainder to B. My third Son the remainder to C. My fourth Son the remainder to my next of blood and so from Heire to Heire And so likewise I would to be done upon my Chauntery Lands and Tenements in case all my aforesaid Children die without Issue Then I would the one halfe of my Chauntery Lands to remaine to the next of kin and the other half to the Hospitall of M. And the question was what estate the Heire of the eldest Son shall have in the Chauntery Lands and it was argued by Dodridge the Kings Serjeant that the Heire of the eldest Son shall have estate tayl in the Chauntery Lands the Devisor devises no estate to Richard his eldest Son in the Chauntery Lands nor limitts any estate of that in certaine and for that he seemed that the youngest Sons and Daughters shall be Tenants in Common for life and by this manner of Interpretation every part of the Will shall be for first he excludes Richard himselfe so that he shall have nothing in that and then by the Limitation to the younger Children to be equally divided between them makes them Tenants in Common see 28. H. 8. 25. Dyer 155. And he cited Lewin and Coxes Case to be adjudged Michaelmasse 41. and 42. of Eliz. Pasche 42. Eliz. Rot. 207. Where a man devises Lands to his two Sons to be equally divided and adjudged that they are Tenants in Common so devise to two part and part like and equally divided and equally to be divided is all one and for that there is no other words to make an estate of Inheritance it shall be an estate for life and the remainder shall be directed according to the estates limited of the other Land And he seemed that the words in the last sentence all my aforesaid Children shall extend to Richard his eldest Son as well as to the others and so all the Will shall stand in his force which may be Objected that Richard the eldest Son shall be excluded out of the Possession and for that see 6. Eliz. Dyer 333. 29. Chapmans Case and also he cited one case to be adjudged Trinity 37. Eliz. Rot. 632. betweene Bedford and Vernam where a man deviseth all his lands in Alworth and afterwards purchaseth other Lands in the same Town and afterwards one comes to him to take a Lease of this Land newly purchased which the Testator refused to Let. And said that these Lands newly purchased should goe as his other Lands And upon his Death bed adds a Codycell to his Will but saith nothing of his purchased Lands and adjudged that the purchased Lands shall passe and so concluded and praied Judgement Harris Serjeant that it is a new Sentence and Richard is excluded and it shall be a good Estate tayl to the youngest Children and foresayd Children shall be intended them to which the Chauntery Lands are limited see Ratcliffes case 3. of Coke adjudged that they shall be Tenants in Common by the devise to he equally divided and thall not be surviving but every youngest Children shall have his part in tayl though that the first words do not containe words of Inheritance yet the last words in case all my Children die without Issue declares his intent that they should have an estate tayl see the 16. of Eliz. Dyer 339. 20. Claches Case that when he hath disposed of part devised to Richard then disposeth of the residue and the sentence begins with And so likewise and that shall be intended in the same manner as he had disposed of the Lands devised to Richard for he hath devised the remainder otherwise that is to an Hospitall and so concludes and praies Judgement accordingly Coke cheife Justice saith that it was adjudged between Coke and Petwiches 29. Eliz. that if a man devise a house to his eldest Son in tayl and another house to his second Son in tayl and the third house to the third Son in tayl and if any of them die without Issue the remainder to the other two equally this shall be but for life for this enures to the quantity of the Land and not to the quality of the Estate And he said that Richard is excepted without question for it is but a Will and every of the youngest Sons therein shall have the Chauntery Land one after another and Richard shall have no part and the Chauntery shall have nothing till they all are dead and he likened that to Frenchams Case where Lands were given to one and to his Heires Males and if he died without Issue the remainder over the Issues Females shall not take though that it be if they die without Issue for expresse it makes to cease only and so it was adjourned Petoes Case PEto suffers a common Recovery to the use of himselfe for life the remainder to his eldest Son in tayl with diverse remainders over to the intent that such Annuities should be paid as he by his last Will or by grant declares so that they did not exceed the summ of sixty pound and if any of the said Rents be behind then to the use of him to whom the Rent shall be behind till the Rent be satisfied with clause of distresse Rent of twenty pound was granted to his youngest Son for his life the grantee distraines for the Rent and in Replevin avowes the Plaintiffe replâ—es that by the non-paiment the use riseth to the youngest Son by which it was objected that the Rent shall be suspended Quere if without demand or if the distresse shall be demanded or that the use shall not rise till after the distresse and to the distresse well taken and agreed by all that the Plaintiff shall take nothing by
Statute and if the Words do not extend to that then the Equity of the Statute shall not extend to that and he said that Copy-hold is not within any of the Statutes which are made in the same yeare as the Statute which gives Elegit and such like and to Littleton that an Estate by copy is where Lands are given in Fee-simple Fee-taile and that Formedon lies for that with which agrees 10 Ed. 2. Formedon 55. It seems that the Estate taile here mentioned shall be intended Fee-simple conditionall at the Common Law and the Formedon in Discender which was at the Common Law for alienation before Issue And so Littleton shall be intended For the Estate is within time of memory see Heydons case that a Copy-hold Estate is an Estate in being within the Statute of 31 H. 8. And Manwood there said that insomuch the Estate of that is created by custome and the Estate taile is created by Statute yet it shall not be within the Statute and he said that the case of 15 H. 8. B. Copy of Court 24. is repugnant in it self in the words of Formedon for he saith though that Formedon was given by Statute and was no otherwise in Discender yet now this Writ lies at the Common Law and it shall be intended that this hath been a custome there time out of minde c. And so he concluded and prayed Judgment for the Plaintiff Pasche 9. Jacobi 1611. in the Common Bench. Yet Bearblock and Read SEE the beginning before Hillary 8. Jacobi this Case was argued by Hutton Serjeant that the Plaintiff in the Action of Debt ought to Recover for if Executor may pay Debt due by the Testator by Obligation before Debt due by Judgement this shall be a Devastavit as it is resolved in Trewinyards Case 6. and 7. Edward 6. Dyer 80. 53. And he shall be charged for the Iudgement with his owne goods And so it was adjudged between Bond and Hales 31. Eliz. that Judgement at the Common Law shall be first satisfied before the Statute which is but a Pockett Record and Medium redditer in invitum Also it was adjudged in Harrisons Case 5. Coke 28. b. That Debt due upon an Obligation shall be first payd before Statute with Defeasans for performing of Covenants the which Defeasens is not broken and also it is adjudged between Pemberton and Barkham here cited that Judgement shall be satisfied before Statute Merchant or Staple or Recognizance though that the Statute be acknowledged before the Judgement had by the Testator See this Case in Harrisons Case 5. Coke 28. b. and in 4. Coke 60. a. Sadlers Case upon which he infers that if an Executor first satisfie a Statute or a Recognisance before a Judgement that this shall be a Devastavit as well as if he satisfies an Obligation first as in Trewynyards Case and that when the Plaintiff which hath Judgement the Executor may aid himselfe by Audit a querela by this matter subsequent Quere of Doctor Druryes Case as in 7 H. 6. 42. in Detinue against Gamishe and Judgment had for the Plaintiff If the Judgement be reversed restitution shall be made to every one which hath losse So here by Audita Querela if the Executrix hath not more then was taken in execution by the Statute and it seemes to him that the Judgement in the Scire Facias shall not be a Barr in this Action for the Judgment remaines Executrix and the Plaintiff may have Action of Debt upon that But of the contrary if the Plaintiff had brought Action of Debt upon the Judgement and had been barred then shall be barred in Scire Facias also But the Plaintiff this notwithstanding may have Scire Facias upon surmise that there are new assets come to the hands of the Executor and so he concluded and praied Judgement for the Plaintiff Nicholls Serjeant for the Defendant relies only upon the Judgement had upon the Scire Facias and that till that he Defeated the Plaintiff cannot maintaine Action of Debt for the Action of Debt is nothing but demanding of Execution and for that till the first Judgement be Defeated the Plaintiff hath no remedy at the Common Law All things which barr the Execution of the Judgement in Scire Facias these shall be Barrs in an Action of Debt as in Baxters Case here last adjudged in an Action upon the Case for slanderous words the Defendant pleads that he had justified the speaking of these words at another time in another Action brought against him and had a verdict and Judgement upon that and so demands Judgement and adjudged a good Plea till the first Judgement is reversed for Judgement is the saying of the Law and 13. Eliz. Dyer 299. 34. in Debt for Costs recovered in a Writ of entry the Defendant pleads that the Plaintiff hath sued an Elegit which was Executed and a good Barr in an Action of Debt and so 1. and 2. P. and M. Dyer 107. 24. In Debt for Dammages recovered in Assise the Defendant pleads in Barr that after the verdict given and before Judgement the Plaintiff entred into the Land and there no Judgement is given But it seemes if the Plaintiff fayl of Course that the Common Law prescribes that then he shall not have Execution for of those things which rightly are Acted let there be Executions but if the Defendant in the first Action had pleaded a release and Judgement was given upon that against him he cannot plead that againe for it runs into the thing Judged 34. Ed. 3. in Debt against an Executor and part of the assetts found the Plaintiff cannot have new Scire Facias without Averrment that there are new assetts and 34. H. 6. Action with averment that there are assets and Judgement good both waies and presidents shewed of both Courts And he intended that the Executor could not have helped himselfe by Audita Querela unlesse he feares to be impleaded but after Execution he cannot have Restitution and so concluded and praied Judgement for the Defendant Coke cheife Justice that there cannot be a Devastavit in the Wife unlesse that it be voluntary payment by her for the Statute of 23. H. 8. gives present Execution of a Statute Staple without Scire Facias So that the Wife had no time to plead the Judgement and for that this unvoluntary Act shall not be a Devastavit for she is no agent but only a sufferer And at the Common Law if the Plaintiff hath Judgement in an Action of Debt after the yeare he hath no remedy but new Originall and this mischeife was remedied by the Statute of Magna Charta which gives Scire Facias in place of new Action But it seemes to him that the Barr in the Scire Facias shall remaine good Barr till it be reversed as in 2 Rich. 3. A man hath election to have action of Detinue or action of Trespasse and he brings his action of Detinue and the Plaintiff wages his Law and after
is no parcell of the Bill and for that it need not to be contained in the Count 9 H. 6. 15 16. A thing which doth not intitle the Plaintiff to action need not to be contained in the Count 36 H. 6. 6. If the condition be indorced or subscribed it need not to be contained in the Count but if it be contained before the in witnesse then it ought to be contained in the Count 21 Ed. 4. 36. If a man be bound to pay ten pounds when the Obligee carries two hundred load of Hay to his House there the condition is precedent and it ought to be contained in the Count 22 Ed. 4. 42. accordingly so here the matter is subsequent to the in witnesse and there is not any other matter upon which the action is founded nor contained in the body of the Bill nor to be performed by the Obligee and for that he prayed Judgment for the Plaintiff Shirley Serjeant for the Defendant that the sealing is immediately after the Proviso and is adjoyning to the Bill in writing and for that be it to be performed of the part of the Plaintiff or Defendant it ought to be mentioned in the Count for this intitles the Plaintiff to his Action of the case in 36 H. 6. 6. It is a condition subsequent and there need not to be shewed but if the condition be precedent and contained in the writing before the insealing there it ought to be mentioned in the Count and in this principall case this is either a condition Precedent or nothing for it is that he shall not be compelled to pay the sayd ten pounds untill he had recovered thirty pound and if he never recover he never shall pay the ten pound and it is a condition of the part of the Defendant and it is adjudged in Vssards case that where a condition is precedent there it ought to be contained in the Count but where it is subsequent otherwise it is So 15 H. 7. 1. Grant that when the Grantor is promoted to a Benefice that he ought to give to the Grantee ten pound this is precedent but in the principall case it is a Condition or Covenant and though that it be subsequent yet it may stay the Suit as well as an acquittance which is to be an acquittance if he be vexed otherwise not but a condition that he shall not sue the Bill is void for it is contrary to that and barrs him of all the fruit of that and precedent condition may be placed after the in Witnesse as well as before so he prayed Judgment for the Defendant Coke cheife Justice said that this which is after in witnesse is not part of the Deed but may be a Condition or Defeasance but if it be not in witnesse in the Deed then it shall be parcell of the Bill but though that this be put after the in witnesse yet it shall have his force as Defeasance but it need not to be contained in the Count for in Bonds and personall things there need not such strict words as in other Deeds and for that this shall be a good Condition or Defeasance but then the Defendant ought to have that so pleaded and not demurr for this makes the Bill conditionall VVarberton and Foster agreed VValmesley did not gainsay it and for that it was adjudged for the Plaintiff if the Defendant did not shew cause to the contrary by such a day which was not done Note It was adjudged by all the Justices that fealty gives seisin of all annuall services sufficient to make seisin in avowry but not in Assise but of accidentall services this gives seisin in Assise and a man cannot take excessiive distresse for that for this is more sacred service as Littleton saith of Homage the most honourable See 42 Ed. 3. 26. 11 H. 4. 2. Note Two retaine an Attorney both dye the Executor or Administrator of the survivor shall be onely charged and not the Executors of them both for a personall contract survives of both parties otherwise of reall contracts as warranty See 16 H. 7. 13. a. 3 Coke Sir William Harberts Case 30 Ed. 3. 40. 17 Ed. 3. 8. The Attorney brought an Action of Debt against both and the Executors of both the parties which retained him for his Fees and both pleaded joyntly that they detained nothing and it was found for the Plaintiff and upon motion in arrest of Judgement the Judgement was stayed insomuch that the Executor of the survivor was onely chargeable notwithstanding the pleading and admission of the Parties Note That it was agreed by all the Justices that by the Law of Merchants if two Merchants joyne in Trade that of the increase of that if one dye the other shall not have the benefit by survivor See Fitzherberts Natura brevium Accompt 38 Ed. 3. And so of two Joynt Shop-keepers for they are Merchants for as Coke saith there are foure sorts of Merchants that is Merchant Adventurers Merchants dormants Merchants travelling and Merchants residents and amongst them all there shall be no benefit by survivor Jus accrescendi inter Mercatores locam non habet Note That Arbitrators awarded that every of the parties should pay onely five shillings for writing the award to the Clark and agreed that the award was voyd to that part and good for the residue for they cannot award a thing to be made to a stranger Action upon the Case was brought for these words He is a Cozening Rogue and hath cozened Richard Wood of thirty pound and goeth about to doe the like by me and agreed that the action doth not lye So for Rogue or Cozener for it is without aspersion and gentle and words shall be taken in the gentlest sense Devise that Executors shall sell Land with the assent of J. S. if J. S. dyes before that he assents the Executors shall not sell notwithstanding the death of J. S. was the act of God and in the life time of J. S. they could not sell without his consent and so it was agreed in the Case concerning Salisbury Schoole where the under Schoole-Master was to be placed by the head Schoole-Master with the assent of two cheife Bailiffs and it seems the head Schoole-Master cannot place without their consents Note it was said to be adjudged that the Inhabitants of a Town cannot be incorporated without the consent of the major part of them and incorporation without their consent is void In action upon the case the case was this The Brother of the Defendant spoke these words to the Plaintiff that is Thou Theif thou Goale whelpe thou hast stolne a peice of Silver from my Master Hocken and the Defendant sayd as insued that is That which my Brother spake is true I will justifie it and spend a hundred pounds in proofe thereof and it seems to the Court that the Action doth not lye against the Defendant insomuch that it doth not appeare by the Court that
not the accidentall as here it is but it is the substantiall forme and every one knows that Meale of Wheat is the same as Pepper beaten in a Morter and Pepper and all other Spices so that it is the same in number existence substance and essence and he intended also the same in intention for Meale is Victuall and is dead Victuall be it Corne or Meale and Corn grownd and made in Meale then sold yet that remains dead Victuall and Meale is the same dead Victuall though that it be not the same Corne and to prove that Corn is Victuall he cyted the Statute of 25 Edw. 3. 5. Stat. Chap. 7. Which provides that no Forester shall make any gathering of Victuals by colour of their Office and hee intended that Corne was within this statute and so also of the statute of the 3. P. and M. Chap. 15. Rastal Universities which provides that to the Purveyor Bargainor for any Victuals within 5 miles of any of the Universities of Oxford or Cambridg where Grain and Victuall are joyned together So the Statute of 25 H. 8. Chap. 2. abridged by Rastall Victual 15. which inhibits the transportation of Victuall if it be not of Meal and Butter into Ireland by which it appears that Meale is dead Victualls And he said that Victuals is that which refresheth men and Victualls are those things which to the use of eating and drinking are necessary So that Meale is the same in number though that the Corne were turned into Meale And he cyted Peacock and Reynolds Caâ—e to be adjudged 42 Eliz. That if a man buy Corne and convert that into Meale and so sell it it is within this Statute And hee said that if a man be made a Knight hanging his action that this shall abate his action but yet he remains the same person but his name is changed which is the cause of the abatement of his action 7 H. 6. 15. Also the Defendant is concluded by his demurrer upon the Information to say that it is not the same thing for this is confessed by the Demurrer and though that the name be changed this is not materiall if the substance be the same and he agreed that a Baker which buys Wheat and makes it into Bread is not within the Statute for he furthers that to the use of man as a Curryer makes the Leather more fit and apt for use but so doth not he which makes it into starch for he furthers the abuse for it is no lawfull Occupation but idle and friâ—olous furtherance of vanity of men And in 35. H. 6. 2. If a man enter into the Land of another man and cut Trees and that square and make into Boards yet if the Owner enter hee may take them But if it be made into a House otherwise it is for there it is mingled with other things as it is 5 H. 7. 15 16. So Iron made in Anvill But of Leather made in Shooes otherwise it is insomuch that it is mingled with other things 12 H. 8. 11. a. A dead Stag is not a Stag but is a certain dead thing and flesh As a man dead is not a man but agreed the Book of H. 7. 15. and 16. That Corne converted into Meale cannot be restored nor reprized no more may that if it remains in Corne if it be not in Baggs And hee said that upon the Statute of Merton the Re-disseisin after the Recovery in Assise if the same Disseisor makes Re-disseisin the Sheriffe may examine that c. And it is agreed in 27 H. 6. That if Tenant in tayle be disseised and recover in assise and is put in possession and after his Estate is altered and he become Tenant in tayle after possibility of Issue extinct and then the Disseisor makes Re-disseisin that this is aided by the statute not that it is alteration of the Estate And also he saith it appears more fully by the Proviso by which it is provided that Barley turned into Malt and Oates turned into Oatmeale if it be by Ingrossing it is within the purview of the statute So if it be by way of Fore-stalling or if they sell them again before that they are converted shall be Regrators And to the Objection that other things that is Water and Fire are added to that he saith that none of them remains for the Fire dryes the water and the fire also goeth out and so he concluded and prayed Judgment for the King and the Informer and it was adjourned Michaelmass 1611. 9. Jacobi in the Common Bench. IN Dower against Infant which makes default upon the grand Cape returned and agreed by all the Justices that Judgment shall be given upon the Default for the Infant shall not have his age and so it was adjudge upon a Writ of Error Charnock against Currey Administrator of Allen. IN debt upon an Obligation against the Defendant as Administrator as above he pleads Judgment had against him in an action of debt and over that hath not to satisfie to which the Plaintiff replies that this Judgment was for penalty and the condition was for a lesser sum and that the Plaintiff in the first action had accepted his due debt and had promised to acknowledg satisfaction of the Judgement at the request of the Defendant and at his charges and the Administrator which was the Defendant did not make request upon fraud and Covin to avoid the Plaintiffs action Upon which the Defendant hath demurred and so confesseth the matter of the Plea But Foster seemed that the Plaintiff ought to aver that the Plaintiff in the first action hath offered to acknowledg satisfaction and that otherwise he should be put to his action upon the Case but Coke and Warberton intended that the Replication is very good without such averment for it shall be intended that the Plaintif will perform his promise But further this Demurrer which was only for part was also for another part an Issue joyned for the other part which was to be tryed by the Country and which shall be tryed of the Issue or of the Demurrer was the question and it was agreed by them all that the Issue or Demurrer shall be first at the discretion of the Court see 11 H. 4. 5. 38. Ed. 3. Commission is granted to the Councel in Wales of which the President Vice-president or Cheife Justice to be one And the question was if they might make a Deputy and it was agreed that a delegate power could not be delegated but they might make an Officer to take an accompt in any such act Note that a Caveat was entred with a Bishop that he should not admit any without giving notice that the admission this notwithstanding is good but if he admit one which hath no right he is a disturber but otherwise the Caveat doth nothing but only to make the Bishop carefull what person he admits Foster Justice seemed that if the Ordinary now after the statute of
21 H. 8. grants administration to one which is next of Blood that he cannot repeale it but Coke cheife Justice seemed the contrary and that he incurred the penalty of the statute only And if an Administration be granted to one which is next of Blood upon which the first Administrator brings an action of debt hanging that upon suggestion that the first Administration is void another Administration is granted and it seems that this second Administration granted upon this suggestion shall be repealed from the first though it be generall and without any recitall of it But if the second be declared by sentence to be void from the beginning then the first remains good Action upon the Case was brought for these words that is thou hast killed I. S. And it seems that the action doth not lye for a man may kill another in execution and as Minister of Justice or in Warr in which things killing is justifiable Michaelmasse 1611. 9. Jacobi in the Common Bench George Barney against Thomas Hardingham IN Trespasse for breaking the House and taking of a Cowe the Defendant pleades that the King and all those whose Estates he hath in the hundred have had Turne and at the Court held such a day it was presented that the Plaintiff hath incroached upon the high Way for which he was amerced and the amercement was affirmed by two Justices of peace according to the Custome of the Turne aforesaid And that he being Bayliff of the hundred by vertue of a Warrant to him in due manner made and directed hath entred the said house and taken the said Cowe for distresse for the said amercement and carrying it away which is the same Trespasse and so demands Judgement upon which Plea the Plaintiff Demurred And by Haughton Serjeant for the Plaintiff the Plea in Barr is not good and first he conceived that it was not good insomuch that the King hath made his Prescription by whose Estate and he intended that he could not make his Prescription by whose Estate insomuch that this lies in grant as it is 12. H. 7. 15. where it is agreed that by nothing which lieth in grant a man may Prescribe by whose Estate Also the Plea is that the King was seised in his Demesne as of Fee where it ought to be in Fee only insomuch that it is a thing only in Jurisdiction or Signiory and not Manurable as in 8. H. 7. 7. H. 4. 30. assis In an Action of Debt upon Reservation made upon Lease of a Mannor and hundred it is agreed that the hundred is not in Demesne nor Manurable Also the Plea is not good insomuch that it is not Pleaded before whom the Turne shall be held And allwaies when a man claimes a Court by Patent he ought to shew before whom his Court shall be held otherwise it shall not be good so of Conusance of Pleas otherwise it is if it be in a Turne for that shall be intended a certaine ancient Court See 44. Ed 5. 17. 1. H. 4. 6. 6. H. 4. 1. Also the Statute of Magna Charta chap. 35. requires that it should be held in the accustomed place and so it ought to be alledged or otherwise it is against the Statute and for that it shall not be good for it is of the nature of Sheriffs Turne and derived out of that See the book of Entries in Replevin 2. Also the Statute of Magna Charta chap. 14. appoints that the officers shall be the Sheriffe and this is not pleaded but generally by two Justices of Peace upon their Oath And also it is not pleaded to what Sum the amercement was made Also it is pleaded that he being a Bayliffe of the Hundred by vertue of a Warrant to him in due manner directed and made hath taken the distresse and doth not plead the Warrant certainly nor the place where it was made And for that the Plea is not good Also he pleades that he took and led away the Cowe in name of distresse and he ought to say that he took it and impounded it for that he tooke it and carried it away imports that he tooke it to his owne use 9. Ed. 4. 2. 20. Ed. 4. 6. And so he concluded that the Barr is not good and praied Judgement for the Plaintiff And Barker Serjeant for the Defendant conceived that the Prescription for the Hundred by which the Estate was very good and for that See 12. H. 7. 17. a. 8. H. 7. 13. H. 7. Also he intended that the title to the Court is very good notwithstanding that it is expressed before that it shall be held insomuch that the Law takes notice of the Turne of the Sheriffe and that he is Judge of that and that the Affirance is very good insomuch that this is according to the Custome of the Turne aforesaid And the Warrant of the Baylifâ—e is very well pleaded and more is pleaded then need for it is the duty and appertaineth to his office to gather the amercements and he might do that without Warrant by force of his office But if it be upon plaint between party and party otherwise it is and for that see the book of Entries 553. And also the charge in the Action is for that that he took and carried away and of that he made Justification and he cannot Plead otherwise and to the whose Estate c. That a man cannot Prescribe to have a thing by whose Estate which lieth meerely in grant without shewing of a Deed yet when that is appurtenant to another thing as here the Court is to a Hundred it may very well that do and 33. H. 8. B. Leete when the penalty is Presented by the Jury it selfe there needs not any affirance And so he concluded that the Plea in Barr is very good and praied Judgement upon that for the Defendant And Coke cheife Justice said that Turne of the Sheriffe is derived of Turner which signifies to ride a Circuit and so of that is derived Turner and of that the Turne of the Sheriffe and of this is derived the Hundred and from this the Leete And it seems to him that he ought to plead before that the Court shall be held insomuch that it is against Right and so it was adjourned Michaelmas 1611. 9. Jacobi in the Common Bench. Hill against Upchurch NOTE that Coke cheife Justice saith that it was adjudged in 27. of Eliz. For the Mannor of Northhall in the County of Essex that admitting that a Copy-hold may be Intailed by the Statute that then Custome that a surrender shall be a Barr or discontinuance of such Estate tayl is good for as well as the Estate may be created by Custome as well it may be Barred or discontinued by Surrender by Custome Brandons Case NOTE if a Mannor or other signiory be extended upon a Statute and a Ward falls which is a sufficient value to make satisfaction of the Extent yet this shall not be
any satisfaction in tender to satisfaction Insomuch that this is only the fruit of Tenure and not like to cutti ng of Trees nor to digging of Cole or other Ore And so Coke cheife Justice that it hath been adjudged and with this agreed the booke of 21. Ed. 3. 1. The manner to make Summons in Dower if the Land lieth in one County and the Church in another County Then upon the Statute the Sheriffe ought come to the next Church though it be in another County and there make Proclamation asthe Auditors in Accompt ought to commit the Accomptants found in arrerages to the next Gaole and there ought to be committed though that they are in another County The words of a Patent of a Judge of the Common Bench are as follows that is to say James by the grace of God c. Know that we have constituted Humphrey Winch Serjeant at Law one of our Justices of the Common Bench during our good pleasure with all and singuler Vales and Fees to the same office belonging and appertaning In Witnesse of which c. Michaelmasse 1611 9. Jacobi in the Common Bench. Jacob against Stilo Sowgate IN an Action upon the Case for slanderous words The declaration was that the Defendant said of the aforesaid Plaintiff that he is perjured to which the Defendant pleads that the Plaintiff another time hath brought an Action in the Kings Bench against the same Defendant for that that he the said Plaintiff was perjured and had cozened John Sowgate and that the Defendant had pleaded to all besides these words Thou art perjured not guilty and to the words thou art perjured he Justifies that the Plaintiff was perjured in making an Affidavit in the Star-chamber and this Issue was Joyned and it was found for the Defendant but it was not pleaded that any Judgement was given upon it And Haughton Serjeant for the Plaintiff which had Demurred upon the Defendants Plea Argued that the Plea is insufficient for if it shall be intended by that that the Plaintiff was afore times barred if it be in a reall Action it ought to be averred that it is for the same Land and if it be in a personall Action it ought to be averred that it is the same Debt or Trespasse and if it be pleaded by way of Justification then he ought to have averred also that the Plaintiff hath taken a false and untrue Oath upon which Issue might have been taken But here nothing is pleaded but the Record and nothing averred in Facto So that the Issue cannot be taken upon it for the pleading is only of Record and that the Defendant for the cause aforesaid in the Record afore said mentioned spoke the said words and this is not good for there is not contained any cause of Justification as in Quare Impedit in the 15. and 16 H. 6. The Defendant pleads that he was Incumbent by the cause aforesaid and without that But this was no good Plea for he ought to plead his Title specially And also it is not pleaded as Estoppell for then he ought to have relied upon that precisely as 35. H. 6. in Replevin the avowant relies upon discent 30. assis 32. 2. H. 7. 9. Also Estoppell it cannot be insomuch that Judgement was not given in the first Action Also it is not pleaded as Estoppell for the Plea is concluded Judgement if Action where he ought to have relied upon the Estoppell and peradventure also the Triall was voyd by unawarding of Venire Facias or other Error So that without Judgement it can be no Estoppell and so he concluded and praied Judgement for the Plaintiff Barker Serjeant argued for the Defendant that the Declaration is very good and notwithstanding that the words are generall that is he is perjured yet this may be supplyed very well by the Innuendo as it appeares by James and Alexanders Case 4. Coke 17. a. And also that Estoppell by the Verdict is good without Judgement as in Action of Debt release was pleaded and Issue joyned upon that and found for the Defendant and after another Action was brought for the same Debt and agreed that the first Virdict was Estoppell 2. Ed. 3. 19. b. c. And he cited Baxter and Styles Case to be adjudged in the point that the Estoppell is good and also Vernons Case 4. Coke where the bringing of a Writ of Dower Estopped the Wife to demand her Joynture and so concluded and prayed Judgement for the Defendant Coke the Count is good being of the aforesaid Plaintiff and may after be supplyed by Innuendo though that the words after are generall But if the words were generall that is He is perjured without saying that the Defendant spoke of the aforesaid Plaintiff these English words following Videlicet he Innuendo the Plaintiff is perjured this is not good and shall not be supplied by Innuendo and he said that another time convicted is a good Plea in case of life without Judgement but this is in favour of life but in trespasse it ought to be averred that it is the same Trespasse and also there ought to be Judgement and the Defendant ought to relye upon that as an Estoppell and agreed by all that Judgement should beâ—given for the Defendant if cause be not shewed to the contrary such a day c. Michaelmass 1611. 9. Jacobi in the Common Bench. Hall against Stanley IN Trespass for Assault and Imprisonment the Defendant justifies insomnch that the Action upon the case was begun in the Marshalsey for a Debt upon an Assumpsit made by the Plaintiff and that upon that Capias was awarded to this Defendant being a Minister of the said Court to Arrest the Plaintiff to answer in the said Action and that he by force of that Arrested the Plaintiff and him detained till the Plaintiff found suerties to answer to the said Action which is the same assault and Imprisonment To which the Plaintiff replied that none of the parties in the said Action were of the Kings houshold and so demanded Judgement upon which the Defendant Demurred in Law And Dodridge the Kings Serjeant for the Defendant that the Court of Marshalsey may hold Plea of Actions of Trespasse by the parties or any of them of the Kings house or not and he intended that the Jurisdiction at the Common Law was generall and then they have Jurisdiction of all Actions as well reall as personall and though that their Jurisdiction be in many cases restrained yet in an Action of Trespasse there is not any restraint but at this day they have two Jurisdictions That is in Criminall cases and also in Civill causes within the Virge See Fleta book the second and third where he discribes the Jurisdiction of all Courts and amongst them the Jurisdictions of this Court and also Britton which wrote in the time of Ed. 1. lib. 1. chap. 2. which saith it was held before Bygott who was then Earle
upon the Estate and to the Livery made after two Rent dayes incurred he intended that Livery is good that notwithstanding for the deferring of the Execution of a letter of Attorney shall not defeat the Lease or other meane act which amounts to a Command for the Lessâ—r takes the profits in the mean time and it is not like to Littletons case that if a man devise his land to his Executors to be sold and they take the profits and do not make Sale that the Heir may enter insomuch that the Executors have not performed the Condition and it was not the intent of the Devisor that they should take the profits in the Interim to their own use and he intended that the declaration was not repugnant for it is of the aforesaid Church and not of the Dean and Chapter aforesayd and also there need not such congruity as it were the Foundation of the Action insomuch that this is only Allegation of the truth of the matter see 1 H. 7. 18. For variance upon shewing in Deed and 17 Ed. 3. 33. b. and here the aforesaid shew that it is the same in substance though it vary in words and though that the name is altered yet are the same persons in substance and the same Body and though that it be as it is intended to be of another part yet it is but name and the Foundation then is not Issuable as if the King H. 8. had been the Founder and made speciall provision in the Foundation that after the Time of Ed. 6. it shall be said to be the Foundation of Ed. 6. this shall be good and so he concluded and prayed Judgment for the Plaintiff see after adjudged Michaelmas 9. Jacobi 1611. In the Common Bench. The Bishop of Ely THE Bishop of Ely granted an Office with the Fee for the exercising of that if it be an ancient office it is a good grant and if the Fee be newly increased yet Foster Justice thought that the Grant shall be good for the Office and for so much of the Fee as hath been anciently granted with the Office Michaelmas 1611. 9. Jacobi in the Common Bench. Holcroft against George French IN an Action upon the Case upon an Assumpsit if the consideration be Executory then the Declaration ought to contain the time and place where it was made and after it ought ro be averred In Facto when it was performed or executed accordingly but if it be by way of Reciprocall agreement then the Plaintiff may count that in consideration that he hath promised for the Defendant the Defendant hath promised to do another thing for him there he need not that the Declaration contain time or place for the consideration or otherwise that it is performed and executed But if in the first case where it is executory that is also an averment that it is executed there if the Defendant plead Non Assumpsit generally and do not plead the speciall matter he cannot after take exception to that Count for the Default aforesayd where he pleads specially to that as in an action of Trover the Conversion ought to be averred to be in a certain place and so in submission and Arbitrement they are contained in the declaration it need not to expresse any time or place certain but if the Defendant pleads that the Arbitrators made no award or that the parties have not submitted themselves to their award there the Plaintiff may reply that the Arbitrement or Submission was made at such a place and this was agreed by all the Justices Michaelmasse 1611. 9. Jacobi in the Common Bench Sir Edward Puncheon against Thomas Legate IT was adjudged in the Kings Bench and affirmed upon a Writ of Errour in the Kings Bench that an action upon the case upon an Assumpsit made by the Testator is very well maintainable against the Executor and this was for Money borrowed and so the Count speciall but not upon generall Indebitatus Assumpsit but is good without any averment that the Executors have assets over the payment of Debts due by specialty and Legacies and he sayd that the Record of the Case of 22 H. 8. with this agrees and that the book in this is misprinted and so Coke cheife Justice who publickly reported this Judgment in the Common place sayd which was adjudged in the 11 H. 8. in this Court Note that Land of which a Writ of Right Close lyeth shall be assetts in a Formedon and it is a Free-hold and not a Copy-hold and so are all Lands in ancient Demesne 3 Ed. 3. 14 H. 4. It is no matter what is known to the Judge if it be not in the form of Judgment Pasche 1611. fol. 50. HAughton Serjeant for the Defendant argued that the entry of him in Remainder is not lawfull insomuch that he intended it is not any forfeiture of the Estate tayle and first he argued that the condition is not good but repugnant to Law and for that voyd and yet he agreed that Tenant in tayl may be distrayned from making unlawfull Acts but here the condition tends to restraine him from doing of things which are lawfull as if a man makes a Gift in tayl upon condition that the Wife of the Donee shall not be indowed or that the Husband of the Donee shall not be Tenant by the Curtesie or that a Feoffee shall not take the profits of the Land though that the profits may be severed from the Land as in 16 Ed. 3. Formedon was brought of the profits of a Mill yet the condition is voyd insomuch that it is against the nature of an Estate tayl or in Fee-simple to be in such manner abridged so if a man makes a gift in tayl upon condition that the Donee shall not make waste the condition is void for the making of wast is a priviledge which is incident to an Estate tayle and for that the condition restraynes the Tenant in tayle of a thing which the Law inables him to do the condition is yoyd so a Donee in tayle upon condition that he shal not make a Deed of Feoffment or Lease for his own life as it is agreed in Mildmayes Case so here when the condition restraynes Tenant in tayl of concluding and agreeing the which in him is not any wrong no more then if a man should make a gift in tayl upon condition that the Donee should not bargaine and sell the Land this is voyd insomuch that he doth not make any wrong or discontinuance So in the case here for the thing which is restrayned that is concluding agreeing is in it self a lawfull act and also this is only the affections and qualities of the minde that they cannot make an Estate conditionall if an open act be not annexed unto it but he agreed that if a man make a gift in tayle or a Lease for life of white acres upon condition that the Donee or Lessee shall not take the profits of Black acre this is
that Sir Thomas Fitzherbert had the possession by acceptance of the surrender of the estate conveyed to William Fitzherbert and his Wife notwithstanding it was admitted by pleading that he had that by Disseisin And all the Justices agreed that the Jury shall not be concluded by the pleading of the parties insomuch that they are sworn to speake the truth Pasche 1612. 10. Jacobi in the Common Bench. Brook Plaintiff against Cobb IN Wast the Plaintiff assignes waste in cutting down of 20. Oaks in such a Close and 40. Oaks in such a Close c. Upon the Evidence it appears that the said Oaks were remaining upon the Land for standils according to the statute at the last felling of that and they were of the growth of 16. or 20. years and that tithes were paid for it And it was agreed by the Lord Coke and all the Justices that this was no Waste insomuch it was felled as Acre wood And it was said by the Lord Coke that though it be of the age of 20. or 24. yeares yet if the use of the Parties be to fell such for seasonable Wood this shall not be Waste and if Tithes be paid for that it appears that it is no Timber Doctor Mannings Case in the Star-chamber ONe Golding as an Informer and not as party greived exhibits his Bill in the Star-chamber against Doctor Manning Chancellor to the Bishop of Exeter for Extortion Oppression and other offences It was resolved that when a Bill contains any particular offences and after the same Bill contains generall words which includes many offences of the same kind And the Plaintiff proves the particular offences he may examine other particular offences also included within these generall words in supplement and aggravation of the particular offences contained in the Bill and if they be proved the Court will give the greater and high sentence against the Defendant in respect of them notwithstanding that they be not particularly expressed in the Bill But if the Plaintiff hath not proved any of the offences particularly expressed in the Bill the Defendant shall not be censured by the particulars grounded upon the generall words of the Bill And if a man which is not party greived exhibite Bill for offence made to another person as against whom the offence was committed he shall not be allowed as Witnesse insomuch as he is party greived and by that he should be a witnesse in his own Cause Pasche 1612. 10. Jacobi in the Common Bench. William Peacock Plaintiff against Sir George Raynell IN the Sar-chamber the Plaintiff exhibits his Bill against the Defendant for Libelling and Infamous Letters the which was in this manner The Plaintiff being Heire generall to Richard Peacock which was of the age of eighty six yeares and had Lands of Inheritance to the value of 8. or 900. pound per annum and the Defendant had married the Daughter of Sir Edward Peacock which was a yonger brother of the said Richard Peacock and the said Defendant perceiving that the said Richard Peacock had purpose to settle his Inheritance upon the said Plaintiff and intending to remove the affection of the said Richard from the Plaintiff and to settle that in himselfe writes a Letter to the said Richard Peacock containing that the Plaintiff was not the Son of a Peacock and was a hunter of Tavernes and that divers women had followed him from London to the place of his dwelling and that he did desire to heare of the death of the said Richard and that all his Inheritance would not be sufficient to satisfie his Debts and many other matters concerning his Reputation and Credit to that subscribed his name this ensealed directed to the said R. Peacock And it was agreed that this was a Libell and for that the Defendant was Fined to two hundred pound and Imprisonment according to the course of the Court And the Plaintiff let loose to the Common Law for his recompence for the Damages he hath sustained But if the Letter had been directed to the Plaintiff himselfe and not to the third person then it should not have been a Libell or if it had been directed to a Father for Reformation of any Acts made by his Children it should be no Libell for it is not but for Reformation and not for Defamation for if a Letter containe scandalous matter and be directed to a third person if it be Reformarory and for no respect to himselfe it shall not be intended to be a Libell for with what mind it was made is to be respected As if a man write to a Father and his Letter containe scandalous matter concerning his Children of which he gives notice to the Father and adviseth the Father to have better regard to his Children this is only Reformatory without any respect of profit to him which wrote it But in the first case the Defendant intended his profit and his owne benefit and this was the difference Pasche 1612. 10. Jacobi In the Common Bench. Randall Crewe against Vernon IN the Star-chamber it was resolved That if the Defendant do not performe the Sentence of the Court as here he was to make acknowledgement of his offence committed against the Court of Exchequer at Chester and this acknowledgement was to be made at the great Assises at Chester and he did nor performe the Sentence and yet the Defendant could not be fined for this contempt but only Imprisonment and for that he was committed close Prisoner till he performed it But he could not be fined insomuch there was not any Bill upon which this Sentence should be founded Pasche 1612. 10. Jacobi in the Common Bench. Charnocke against Corey See before IN Debt against Administrator The Defendant pleades two Recognisances acknowledged by the Intestate which were not satisfied and that he had not any Goods or Chattells of the said Intestate unlesse Goods and Chattells which did amount to the Debts due by the said Recognisances And it seemed to all the Justices that the Plea was not good But that the Defendant ought to plead according to the Common forme that is that he hath no Goods besides or beyond the Goods to satisfie the two Recognisances or that he hath no Goods to such value which do not amount to the said Sums due by the two Recognisances And in these cases this manner of pleading is Implied confession that he hath Goods of such a value and so they should be assets if the Recognisances be discharged or remaine of Covin and fraud to deceive Creditor Pasche 1612. 10. Jacobi in the Common Bench Bicknell against Tucker see before 75. THE Case was A Copy-hold Estate was granted to one for life remainder to another for his life the first Copy-holder for life accepts a Bargaine and Sale of the free-hold from the Lord and after that levies a Fine with proclamations and five yeares passe and then he dies and if this Fine shall be a Barr to him which
hath the Copy-hold Estate for life in remainder was the question And it was argued by Harris Serjeant that the Estate of Fines in the body of that binds all persons but onely some which have Infirmities and by the saving Rights Titles Claimes and Interests are saved But Title comes in the conditionall perclose of saving that is so that they pursue their Title Claime and Interest c. By way of Act or lawfull Entry within five yeares next after the said proclamations had and made So that in this case the principall matter to be considered is what thing is operated by the acceptance of the Bargaine and Sale for if by that the remainder of the Copy-holder be turned to right then insues that the Fine shall be a Barr And it seemes that this determines the first Estate for life and he agreed that it cannot be a surrender insomuch that there is a mesene remainder as it is 37. H. 6. 17. b. 4. H. 7. 10. But this Lease to commence at a day to come cannot be a surrender but shall be determined and extinct by acceptance of a new Lease as it is there and in 22. H. 7. 51. a. agreed and so it was adjudged in Hillary 30. Eliz. between Wilmottand Cutlers Case that if a Husband which was seised of a Copy-hold Estate in right of his Wife accept an estate for life this determines the copy-hold Estate which he hath in right of his Wife in possession So if Lessee for yeares accept an estate of one which hath no Estate yet this determines his Tearme as it was adjudged Hillary 31. Eliz. Rot. 1428. b. That if Lessee for yeares of a Lease made by the Ancester accept an estate of Guardian in Soccage this determines his Lease which he had of the Ancestor and upon that he concluded that in this case the acceptance of a Bargaine and Sale turnes the Copy-holder in remainder to a Right and then it appeares by Saffins Case 5. Coke 125. That he shall be bound though that he hath only Interest and so of Title also and he said that it appeares by Kite and Quarintons case 4. Coke 26. a. that a Right or Title may be of Copy-hold Estate for it is there said by Wray cheife Justice that it shall be with in the Statute of 32 H. 8. chapter 9. of buying of Titles and so concluded Dodridge the Kings Serjeant agreed that the sole question is if any thing be here done to turn the Copy-hold-Estate in remainder into a right for then he agreed that this shall be barred otherwise not and to that hee intended that the first Estate for life shall be sayd to be in Esse notwithstanding the acceptance of the Bargaine and Sale as to all estrangers and especially when it is to their prejudice as if Tenant grant Rent and after surrenders his estate now between the parties the Lease shall be extinct by the surrender but to the Grantee of the Rent it shall be sayd to be in Esse and if during his life he in Remainder also grants a Rent hee shall hold the Land subject to both the Rents though that the grants be both to one self sameperson so if he in Reversion grants his Reversion with warranty and after the Tenant for life surrenders and the Grantee be impleaded he shall never vouch during the life of the Tenant for life 5 H. 5. Comment 24 Ed. 3. And here also is a custome which preserves the Copy-hold Estate in Remainder and their particular Tenant cannot that prejudice and for that also it shall not be turned into a right as if a Copy-hold Estate be granted to one for life by one Copy and after the Lord grants another Estate for life by another Copy to another and then the first Copy-holder commits forfeiture he which hath the second estate cannot take advantage of that but the Lord shall hold it during the life of the first Tenant for no act made by the particular Tenant shall prejudice him in Remainder for otherwise many Inconveniencies would insue upon that as by secret conveyances or as if a grantee of a Rent charge grant that to the Tenant of the Land for his life the Remainder over the Remainder shall be good notwithstanding that the particular Estate bee extinct and drowned also he intended that the Copy-hold Estate is another thing then the land it self and for that the Fine shall not be a Barr no more then in Smith and Stapletons Case Com. Where a Fine levied of Land shal not be a Barr of Rent insomuch that it is another thing so in this case he intended that the fine shall not be a Barr of the Copy-hold Estate and concluded c. Wynch Justice was of opinion that the Fine shall not be a Barr to the Copy-hold Estate in Remainder for the acceptance of the Bargaine and Sale doth not determine the first Copy-hold Estate for life as to him in Remainder but only to the first Tenant and the Lord and betweene those he agreed that the Copy-hold Estate is determined as in Heydens Case by acceptance of a Lease for years and for that the Remainder shall not be turned to a Right and by consequence shall not be barred and for that he supposed that the reason that the Fine was a Bar in Saffins Case 5 Coke 123. b. was insomuch that the Lessor entered made a Feoffment and after levied a Fine and it is there agreed that the Feoffment turnes the Estate of the Lessee to a Right and for that the Fine shall be a barr and also there the Lease was by limitation of time to have a beginning but if a man makes a Lease for years to begin at a day to come and before the beginning of that makes a Feoffment or is disseised and Fine with proclamation is levyed yet he which hath future Interest shall not be barred for this is not turned to a Right and it was not the intent of the Statute of Fines to make a Barr of right where there was no discontinuance or Estate at least turned to right and this was the cause that at the Common Law Fine with Non-claime was no Barr but where they make alteration of possession and he cited Palmers case to be adjudged that a Fine of Land shall not be a barr for Rent where the case was Lessee for life Remainder for life of Rent The first Lessee for life of the Rent purchaseth Land and levies Fine of that and adjudged that this shall not binde them in Remainder of the Rent no more if he in remainder levy a fine that shall not prejudice the particular Tenant and so he concluded in this case that the Ramainder shall not be barred and that the Plaintiff shall have Judgment Warburton Justice accordingly and he argued that the Statute of Fines containes two parts The first to barr those which have present right and they ought to make their claim within five yeares after the Fine levied or otherwise they
shall be barred And the second those which have Right title or interest accrued after the Fine levied by reason of any matter which preceded the Fine and in both cases the Estate which is barred ought to be turned into a right or otherwise it shall not be barred the which cannot be here for the estate is given by the Custome and it is to have his beginning after the Death of the first Tenant and though that the first Tenant commit Forfeiture yet he in remainder cannot enter for his time is not yet come as in 45 Ed. 3. is a collaterall Lease with warranty to the Tenant for life in possession this shall not be a barr insomuch that it is made to him which hath possession so if a man make a Feoffment upon condition and the Feoffee levy a Fine with proclamations and five yeares passe and the condition is broken the Feoffee may enter at any time otherwise if the Fine had been levied after the condition broken and so if the Lord be intituâ—ed to have Cessavit and Fine is levied by the Tenant and five yeares passe he shall be barred and this was the cause of the Judgment in Saffins case insomuch as the Lessee had present interest to enter and this was altered into a Right by the Feoffment and then the Fine was a Barr but here he in Remainder hath no right till after the Death of him which was the first Tenant and then his right to the possession begins and then if a Fine had been levied with proclamation this shall be a Barr and so he concluded that Judgment should be entered for the Plaintiffe Coke cheife Justice accordingly and he agreed also that the sole question is if by acceptance of a Bargaine and sale by the first Tenant for life the Remainder be turned into a right and he sayd that right sometimes sleepeth but it never dyes but this shall be intended the right of the Law and not right of Land for that may be barred by Writ of Right at the Common Law and he intended that Copy-holdes are within the Statutes of Fines be they Copy-hold for life yeares in tayl or in fee for the third part of the Realme is in Copy-holdes and two parts in Lease for yeares and if these shall not be within the Statute then this doth not extend to three parts of the Realme and it is agreed in Heydons case 3 Coke 8. a. That when an act of Parliament doth not alter the Tenure Service Interest of Land or other thing in prejudice of the Lord or of the custome of the Mannor or in prejudice of the Tenant there the generall words of such act of Parliament shall extend to Copy-holds and also it is resolved to be within the Statute of 32 H. 8. Of Maintenance and also it is within the expresse Letter of this which containes the word Interest and Copy-holder hath interest and so also of Tenant by Statute Merchant then the question will be if the acceptance of a Bargaine and sale turnes that to a right and he intended that his Estate for life remaines though that it is only passive in acceptance of Bargain and sale and for that it shall not be prejudice more then if Tenant at will accepts a Bargaine and Sale for his Estate at will this notwithstanding remaines but if Lessee for years or life accepts a Fine upon conusance of right this is a forfeiture insomuch that it is a matter of record and it shall be an estoppel to say that he did not take Fee by that doth not admit the Reversion to be in another also insomuch that the Bargain and sale was executed by the Statute for this cause it shall not be prejudice as it was adjudged in the Lady Greshams case in the Exchequer 28 Eliz. Where two severall conveyances were made with power of Revocation upon tender of ten pound and adjudged by act of Parliament that a revocation was good and also that no license of alienation shall be made insomuch that it was by act of Parliament which doth no wrong and it is for the Trespasse for which the party ought to have license and if it be not Trespasse there need no license before hand nor pardon afterwards So if a man makes a Lease for yeares remainder for yeares the first Lessee accepts Bargaine and Sale this shall not turn these in remainder to prejudice Thirdly it seemes to him also that notwithstanding the acceptance of the Bargain and Sale the first Copy-hold Estate for life remains in Esse and is not determined For this differs from an Estate of Land for it shall not be subject to a Rent granted by the Lord the first Estate remaines till all the remainders are determined for the first tenant for life cannot surrender to the Lord also it is customary estate for by the Common Law this being granted to three successively this shall be determined and extinct for the third part for they three take into possession and the word successively shal be taken as void but here the Custome appoints that the remainder shall not have his beginning till the death of the first-Tenant and that they should take by succession and for that there is a difference between this customary Estate and other Estates at the Common Law and other surrenders for if a Copy-holder surrender to the use of another for life nothing passeth but for life only the Lord hath not any remainder by this Surrender and if this Tenant for life commits forfeiture he in reversion shall not take advantage of that and if at the Common Law Tenant for life remainder for life or in fee be and the first Tenant for life makes a Feoffment and after levies a Fine and resolved that he in reversion should not be bound till 5 years are incurred after the death of the 1. Tenant for life for then his title of Entry first accrues in apparancy and before that is in secrecy of which he in remainder is not held to take notice and so in this case he in remainder shall not be bound till five yeares are incurred after the death of the first Tenant and the rather insomuch as the first Estate remaines for that that the first Tenant was only passive and not active and so he concluded that Judgement shall be given for the Plaintiff insomuch that the Fine was no Bar and upon this concordance of all the three Justices in opinion no other Justices being present this Tearm Judgment was entered accordingly Pasche 1612. 10. Jacobi in the Common Bench. Danyell Waters against the Deane and chapter of Norwich IN covenant The case was this in 37 H. 8. the then Deane and Chapter of Norwich made a Lease to one Twaits for fifty yeares which ended 35 Eliz. in time of Ed. 6. The then Dean and Chapter surrendred all their possessions to the King which those newly endowed and incorporated by the name of Deane and Chapter of the foundation
without title he may have an action of Covenant for the Lessor hath the Evidences and ought to defend the possession of his Lessee and the right also and damages are only to be recovered and so is the difference between a Lease and Inheritance though that the words of the Covenant are all one And also he said that it may be objected that the Incorporation was not well pleaded by Edw. 6. Insomuch that he doth not say after the Conquest for Ed. 3. was Ed. 6. in truth sor there were 3 Edwards before the Conquest and he was the third after And he saith that he hath known many exceptions to be taken to that but hath not known any of them to be allowed and for that he will not insist upon it But the principal matter upon which he insists was that it doth not appear by the pleading that the Deane which made the Lease was dead and it appears by the pleading that he entered in 4 Jacobi and was seised and then of necessity ought to be living and such averment of his life is sufficient as it is agreed in the 13 Eliz. Dyer where a Parson made a Lease for years and the Lessee brought an Ejectione firme and in pleading it was said that the Parson is seised of the reversion and this was allowed to be good without other averment of his life for he cannot be seised if he be not living and then if the Deane shall be intended to be living then they all agreed that the Lease shall be good against him for it was adjudged in this Court between Blackeleech and Smal that if a Bishop makes a Lease for years and after makes a Lease for life the Lease for years being in Esse and dyes and the Successor accepts Rent this shall bind him and by this it appears that the Lease was good against the Dean himself which made it and also against the Successor till he enter and avoid it and then by consequence the action of Covenant shall be very well maintainable and so he concluded also that Judgement should be given for the Plaintiff which was done accordingly Pasche 1612. 10. Jacobi in the Common Bench. Browning against Strelley MIchael 2 Jac. Rot. 531. In debt the Margent of the Count contains Nottingham and the Count it self contains that the Obligation was made at the Town of Nottingham which is a County of it self and the Defendant pleads non est factum and the view was of the Town of Nottingham and it was tryed by the Jury of the County of Nottingham and this was moved in arrest of Judgment after verdict for the Plaintif by Nichols Serjeant And it was agreed by all the Justices that Judgment shall be given accordingly to the verdict insomuch that notwithstanding that the Town of Nottingham is a County of it self yet it may be that some part of the Town may be within the County and for that possibility they would not arrest the Judgment Ireland against Smith IN action upon the Case for these words the Plaintiff counts that he was and is Proctor in the Arches and in communication between one Morgat and the Defendant of him the Defendant said to the said Morgat You take part with Ireland against me who is an arrant Papist and hath a Pardon from the Pope and can help you to such an one if you will And after verdict it was moved by Hutton Serjeant in arrest of Judgment that the action doth not lye and he saith that it hath been adjudged in this Court 3 Jacobi Rot. 7031. between Kingstone and Hall that an action doth not lye for like words he is an arrant Papist And it were good that he and all such as he is were hanged for he and all such as he is would have the Crowne from the Kings head if they durst And it was adjudged that an action doth not lye for these words which are more strong then the words in this action but of the other part it was said by Haughton Serjeant that he did not insist upon these words that he is a Papist but that he had obtained a Pardon from the Pope the which by the Statute of 13 Eliz. is made High Treason and then notwithstanding that no time was limited when the Pardon should be procured that is before the Statute or after yet it shall be intended such a Pardon which is against the Statute for the presumption of the Law shall be taken in the worst sense and not like to the Case where a man saith to another that he hath the Pox And also it is alledged by the Count that the Plaintiffe is not above the age of 40. years so that he cannot obtain a Pardon before the Statute of 13 Eliz. And for that he supposed that the action is very well maintainable Coke cheif Justice said that it was adjudged in the Kings Bench in the time of Catlyn cheife Justice there that an action upon the Case doth not lye for calling a man Papist And Winch Justice said that if a man call a Bishop or another man which is trusted with government of the Church and Ecclesiastical causes that he thought the action lyes otherwise not Also he supposed that the Pardon might be for Purgatory or other matters which are not within the Statute of 13 Eliz. And also the Pardon may be procured by another and come to his hands by delivery over afterwards that it had passed two or three and the averment is not sufficient for it is onely Implication and Inference Coke and Warberton Justices sayd that a Papist is one that errs in his opinion and though that the Papists are Authors of many Treasons yet the Law doth not intend so and so of Heretick which is alwaies in a fundamentall point of Religion and yet an action doth not ly for calling a man Heretick also the Pope is a temporall Prince in Italy and for this cause also may pardon and this is out of the statute of 13 Eliz. and so they all agreed that the Action doth not ly for these words Pasche 1612. 10 Jacobi In the Common Bench. Marstones Case IN a common Recovery the Tenant appears by Attorney and vouches one which is present in Court which appears and vouches the common Vouchee and the Attorney hath a Warrant of the party acknowledged before a Judge but this was not entred of record and this was in Hillary tearme 16 Eliz. And it was moved by Dodridge the Kings Serjeant that the Warrant of Attorney might be now amended and entred upon the record and Coke supposed cleerly that it shall not be entred insomuch that it is a want of a Warrant of Attorney but if there had been a mis-construing of the Warrant of Attorney otherwise it is for this seems to be within the Statute of 27 Eliz. Chapter 5. Concerning amendments In Debt upon an obligation with condition to perform Covenants in an Indenture of Lease the Defendant pleads that after
Ed. 2. Counter Plea of voucher 111. 21. Ed. 4. 71. Then he supposed here was generall warranty which is executed and also another warranty which remaines notwithstanding any thing which appears to the Court for he hath not demanded any binding 10. Ed. 3. 15. a. b. Also the warranty in the Fine is the warranty of all the Conusees and the warranty upon which the voucher is is only the warranty of Sir Robert Osborne which cannot be intended the same warranty which is contained in the Fine which is by two as it is resolved in 10. Ed. 3. 52. But admitting that it agrees in all that is the voucher and the warranty in the Fine that is in number of persons and quantity of land and all other circumstances yet it shall be no Barr for the Common Recovery is only as further assurance for it is for forfeiture if it be suffered by Tenant for life as it is resolved in Pelhams Case 1. Coke Also he supposed that notwithstanding that the Fine was levied hanging the Writ of entry and â—o Sir Henry Rowles made Tenant yet this is good being by purchase but not if it be by discent or by recovery upon elder Title And he supposed that if the recovery and the warranty might be together by any possible meanes they shall not be distroied insomuch that this is the common case of assurance and for that shall be taken as in Pattenhams Case 4. and 5. Phil. and Mary Dyer 157. and 2. Coke Cromwells Case 77. b. where a man makes a Feoffment upon condition rendring Rent and after suffers common recovery and yet this notwithstanding the condition and Rent remaines And so it seemes that in this case the warranty remaines notwithstanding the Recovery and so he concluded and praied Judgement for the Plaintiff Nicholls Serjeant for the Defendant and he seemed that the warranty is destroied first insomuch that the Recovery was to other uses and the Fine was when proved that there was no further assurance also he supposed that insomuch that it doth not appeare to what use the Recovery was for the Mannor of Kelmersh that for that it shall be intended to the use of Sir Robert Osborne himselfe and then for that also the warranty is distroied insomuch that part of the Land is re-assured to Sir Robert Osborne as in 40. Ed. 3. 13. The Father enfeoffes the Son with warranty which re-enfeoffes the Father this destroies the warranty So if they make partition by their owne Act as it is agreed in the 34. Ed. 3. Also he supposed that the Tenancy in Sir Henry Rowles is distroied before that the Fine was Levied insomuch that this was Executed by voucher and so he did not purchase hanging the Writ for this is also conveied from him by the Recovery in the value before that the Fine is levied and it is all one with the case where a man recovers upon good Title hanging a Writ and he agreed that the recovery had been for further assurance that then it shall be as it hath been objected by the other party and the warranty had remained but this he supposeth it was not insomuch it was to other uses then the Fine was and he intended that if the Estate to which the warranty is annexed be distroied the warranty also shall be distroied 19. H. 6. 59. 21. H. 6. 45. 22. H. 6. 22. and 27. So if the Estate be avoided the warranty is distroied if it be by the Act of the parties named also he supposed that the warranty is executed and that it shall be intended the same tye upon which the warranty is created as it is 10. Ed. 3. 51. Mauxells case Com if he demand no tye but enter generally into the warranty there shall be execution of all warranties and shall bind all his rights for otherwise all the Estates tayl cannot be bound by that But where the Lieu is demanded as where there are three severall Estates tayl limited to one man and upon voucher he enters generally into the warranty all the tayles shall be bound but if he demand the Lieu's which he hath to bind him to warranty there shall be a Barr of that only upon which the voucher is and the remedy is that if he be impleaded by the party that hath made the warranty he shall be rebutted by his owne warranty But if he be Impleaded by a stranger he shall vouche him that warranted that and if warranty be once executed by voucher and Recovery in value though that the Land recoverd in value be a defeasable Title yet the party shall not voucheat another time by the same warranty as it is 5. Ed. 3. Fitz. voucher 249. and 4. Ed. 3. 36. And for that in this case insomuch that the warranty was once executed he shall not vouche againe upon the same warranty Also it is not alledged in the Count that the Plaintiff was Impleaded by Writ of Entry in the Post but in the Per in which he might have vouched and so shall not have this Action where he might have vouched And also he supposed that Sir Henry Rowles shall not have benefit by this warranty without praying aid of those in remainder insomuch that he is but Tenant for life but he supposed that it was no Remainder but reversion for otherwise they are but as an Estate and he may have advantage of the warranty as it seemes without aid praying But not where there is Tenant for life with the reversion expectant And so he concluded and praied Judgement for the Defendant And he cited one Barons Case where Tenant in tayl levies a Fine with warranty and after suffers Recovery And it was agreed by all the Justices that yet the Recovery shall be a Barr to the Remainder notwithstanding that the Estate tayl be altogether barred and extinct by the Fine but Coke cheife Justice said that Wrayâ— cheife Justice would not suffer that to be argued insomuch that it was of so great consequence being the common course of assurances But it seemes that the Recovery shall not be a Barâ— for the Remainders for the causes aforesaid and he said that he was of councell in Bartons Case and thought this Objection to be unanswerable and of this opinion continued Pasche 1612. 10. Jacobi in the Common Bench. Richard Lampitt against Margeret Starkey EJECTIONE Firme upon speciall verdict the case was this Lessee for five hundred yeares devised that to his Father for life the remainder and residue of that after the death of his Father to his Sister the Devisor dies the Sister which hath a remainder takes a Husband the Husband at the request of the Father grants release and surrenders all his Right Tearme and Intrest to the Father which had the Possession And the question was if by that the remainder of the Tearme should be extinct or not And it was argued by Dodridge for the Plaintiff that the remainder remaines that notwithstanding insomuch that this is
concluded and praied Judgement for the Plaintiffs Wynch Justice that the Count is not good for the Plaintiffs have not alledged that they have used time out of mind c. To maintaine Ferrey but only that they have used to make Constitutions Secondly it is not alleadged that they onely have used to maintaine Ferrey and if they cannot prescribe in the sole using of that and to exclude others then others may use that as well as they being for the publick good for how shall they be punished if that they do not use and maintaine at the Common Law the Inhabitants of a Towne shall be punished for not repairing of a Bridge or high Way the which may be maintained by the Inhabitants together and if they do not do it then others may do it as well as others may repaire high Waies or Bridges as those which have used to repaire them as a common Host shall be punished in Eyre if he refuse to lodge any man and yet he which he refused to lodge may have an Action upon the Case for the refusall Also the Patent gives the forfeyture to the Port-reeve but the By-Law doth not make any mention who shall have it and he conceives that it shall not be as upon the Statute of 2. Ed. 6. Which gives penalty for not setting forth of Tythes but doth not appoint who shall have them and this was adjudged to be to him which ought to have the Tythes but this cannot be so here insomuch that it is against the Grant and agreed that a stranger shall be bound by By-Law where it is for the publick good but not otherwise and also the custome that these Bardge-men shall have the preheminence may be good as well as custome that the poore of such a Parish shall have common in such a place till such a day and then the others and so in this case and so he concluded that Judgement shall be Arrested Warburton Justice conceived that the Count is good and that the Inhabitants may prescribe very well as 47. Assis foure Townes were charged for the repaire of a High way and so may the two Townes for the Ferrey that he intended to be high way upon the water and also he conceived that this is inquirable in Eyre and also by the Justices of the Kings Bench and now by the Justices of Assises by Indictment by the name of Inhabitants The which may be as good an Action upon the Statute of Winton against the Inhabitants of the Hundred and so he conceived that in this case the Inhabitants of Milton and Gravesed may be punished by Indictment if they do not repaire the Ferrey and that the King there this day may erect a Ferrey in place where it is necessary for the King may erect office which is for the benefit of the Common Wealth but not to charge the Common Wealth And that if any will passe in his owne Ferrey without carrying of another this is no breaking of the By-Law and so he concluded that Judgement should be given for the Plaintiffs Coke cheife Justice seemed the contrary for he conceived it is not shewed in the Count to whom the Ferrey belongs for the owners of that are not mentioned the which it ought And yet he agreed that a Ferrey may be without owner as it is agreed 12. Ed. 4 8. Insomuch as this is locall and need not any Agent but out of Leete and Ferrey otherwaies it is for there ought to be Agent or otherwise the Ferrey should be of no use and for that there ought to be an owner Secondly it is alledged that Infra Easterne Townes there is such a custome that the Inhabitants may make constitutions and that the Inhabitants shall maintaine a Ferrey but not that there was a Ferrey but that he conceived it might be good insomuch that it is not traversable Thirdly what Action the Inhabitants may have if they be disturbed of it for this is no easement and they have no Estate of Inheritance and for that the Prescription by the name of Inhabitants is not good for they cannot have Estate and to the Satute of 6. H. 6. chapter 7. Which saith it is a laudable custome and usage that a Bardge shall be maintained but not that Inhabitants shall maintaine that nor those incorporate so that the Statute doth not make them capable of such a thing for which a Writ of right and assise by the Statute of Westminster 2. lies Fourthly That the custome and the Patent are repugnant for by the custome the Bardge hath not any preheminence nor precedence but equall liberty was to all water-men to carry what passengers that they could and with that also agreed the Statute of 6. H. 6. And then if the custome were not so this cannot be made by the grant of the Queene nor by the By-Law for this is the liberty of the Subject the which cannot be abridged nor restrained by them for if the King may grant such prehâ—minence here so may he do in all other Ferreis and places and also in the practise of the Law to have preaudience in this Court and in all other Courts of Justice And so should it be also of Butchers and Bakers and all others which used buying and selling And he said that the King hath preemtion of time in some places but this is not by his prerogative but by the custome of the place And he agreed that custome in subject may have preemption but not by the Kings grant for the King cannot grant that to another that he himselfe hath not by his prerogative and perchance he which hath such grant will not come to Market till all the Market be ended and he conceived that the River of Thames is so publick that the King cannot restraine that by his grant no more then he can grant preheminence to a Coachman to carry people into the Streets of London The which is adjudged upon the matter in the 50. of Ed. 3. Toll 2. Where the King grants Toll for every one which passeth by a Common way And agreed that it was not good if it be in a Common Way or in a Common River for as it is resolved in the 22. assis 93. Every common River is as high Street and Common Waies and the passengers Way as the water increases and the Thames is a branch of the Sea and a common Street as it appears by Bracton fol. 8. 5. The Plaintiffs have brought their Action by the name of Corporation of Port-reeve Jurats and Inhabitants of Milton and Gravesend and they are incorporate by the name of Port-reeve Jurates and Inhabitants of Gravesend possessors of Ships the which words are left out in the name by which the Action is brought so that the By-Law is not made by the same name by which they are incorporate nor the Action brought by the same name And yet he agreed that they might make a By-Law according to the grant without calling all the
appears by 9 Edw. 4. 33. 37 H. 6. 32 H. 6. 1. Ed. 4. 2. 50. Ed. 3. And he conceived that the burying is not any Administration nor the taking of the goods into his custody to preserve them no more then in Trover and Conversion when a man takes the goods for to preserve them And he agreed that where a man intitles himselfe to goods by Administration committed by any but by the Bishop he ought to pleade specially that he which committed it had power to doe it But here it is not so but only conveiance and for that need not here such precise pleading of that insomuch it is only execution of Administration and for that it is good without intitleing the Arch-Deacon And he agreed that an Executor of his owne wrong may pay Debts due to another and shall be discharged And he agreed also that the Confession of one Executor shall bind his Companion and that Judgement shall be given upon that for the Plaintiff And they all agreed that the pleading that the Defendant hath no goods besides the goods which do not amount c. it was not good and for these causes they all agreed that Judgement ought to be given to the Plaintiff Trinity 10. Jacobi in the Common Bench. Tyrer against Littleton 9. Jacobi Rot. 299. IN Trespasse for taking of a Cow c. Upon not guilty pleaded by the Defendant the Jury gives speciall Verdict as it followes that is that the Husband of the Plaintiff was seised of eighty Acres of Land held of the Defendant by Harriot service that is the best Beasts of every Tenant which died seised that he had at the time of his death and that the Husband of the said Defendant long time before his death made a Feoffment of that Land in consideration of marriage and advancement of his Son to the use of his Son and his Heires with such agreement that the Son should redemise to his Father for forty yeares if he so long lived and that after the marriage was had and the Son redemised the Land to his Father and the Father injoyed that accordingly and paied the Rent to the Lord and after died and that the Plaintiff had no notice of his Feoffment and that the Husband at the time of his death was possessed of the said Cow and that the Defendant took it as the best Beast in name of Harriot and also found the Statute of 13. Eliz. of fraudulent conveiances to deceive Creditors and so praied the direction of the Court and this was agreed by the Plaintiff aforesaid Nicholls Serjeant first that all conveiances made upon good consideration and Bona Fide are by speciall Proviso exempted out of the Statute of 13. Eliz. chap. And he conceived that this is made upon good consideration and Bona Fide and for that it is within the said Proviso and also he said that as upon the Statute of Marlebridge there is fraud apparent and fraud averrable as it appeares 12. H. 4. 16. b. Where in ward the Tenant pleads that his Father levied a Fine to a stranger the Lord replies that this was by Collusion to re-enfeoff the Heire of the Tenant at his full age and so averred that to be by Collusion to out the Lord of his Ward and this is fraud averrable But if the Tenant had enfeoffed his Tenant immediately in Fee-simple this is apparent without any averment and the Court may adjudge upon it And so upon the Statute of 27. Eliz. chap. 4. it appears by Burrells Case that the Fraud ought to be proved in Evidence or confessed in pleading or otherwise this shall not avoid conveiance for it shall not be intended 6 Coke 78. a. and see 33. H. 6. 14. b. Andrew Woodcocks case upon which he inferred that this is but a fraud averrable if it be a fraud at all and of this the Court could not take notice if it be not found by the Jury and he said upon the Statute of 32 H. 8. Of Devisees as it appeares by Knights Case 8 Coke and 12. Eliz. Dyer 295. 8 9 10 10 11 12 13 14 15 16 17. And so he concluded and praied Judgement for the Plaintiff Harris Serjeant for the Defendant argued that the Circumstances which are found in the speciall Verdict are sufficient to satisfie the Court that it is fraud for as well as the Court may give direction to the Jury upon Evidence that it is fraud and what not as well may the Court Judge upon the special matter being found by special Verdict at large as in 9 El. Dyer 267. and 268. that is the special matter being found by special verdict at large as in 9 El. Dyer 267. 268. that is the speciall matter is found by Inquisition upon Mandamus and leave to the Court to adjudge if it be fraud or not and in 12 El. 294. and 295. 8. the speciall matter was found by Jury upon Eligit directed to the Sheriffe and by him returned to the Court And in Trinity 27. Eliz. between Saper and Jakes in Trover the Defendant pleades not guilty and gives in Evidence as assignement of a Tearme to him with power of revocation And the Court directed the Jury that this was fraudulent within the Statute of 27. Eliz. to defraud a purchasor and in Burrells Case 6. Coke 73. a. before the fraud to the Court upon Evidence to the Jury and the Court gave direction to the Jury that it was fraud and that upon the Circumstances which appeares upon the speciall Evidence And so in this case he conceived that insomuch the circumstances appear by the Verdict that the Jury may very well adjudge upon it and so he concluded and praied Judgement for the Defendant Coke cheife Justice that the Statute of 13. Eliz. Doth not aid the Defendant insomuch that the Feoffment was made for good consideration and for that shall be within the said Proviso for if that shall be avoided at all that shall be avoided by the Statute of Marlebridge which is ouly affirmance of the Common Law and this is the reason that not withstanding the Statute speakes only of Feoffment by the Father to his Son and Heire apparent yet a Feoffment to a Cosin which is Heire apparent is taken to be within the Statute and in the 24. of Eliz. in Sir Hamond Stranges Case It was adjudged that if the Son and Heire apparent in the life time of his Father purchase a Mannor of his Father for good consideration this is out of the Statute and so it was adjudged in Porredges Case also he said that the Law is an Enemie to fraud and will not intend it being a conveiance made for consideration of a marriage to be fraudulent no more then if the Father had made a Feoffment to the use of a stranger for life the remainder in Fee to his Son and Heire the which is not within the Statute of Marlebridge as it is agreed in Andrew Woodcocks Case 33.
name So by Custome as the Custome that if a Copy-holder will sell his Copy-hold Estate that he which is next of blood to him shall have the refusall and if none of his blood then he which Inhabits in the neerest part of the part of the ground shall have it before a stranger giving for that as much as a stranger would and the Lord shall have him for his Tenant whether he will or no for it shall be intended that so it was agreed at the first and it is reasonable and if it had not been ruled and adjudged before yet he conceived it might now be a rule and adjudged insomuch that it is so reasonable and good and for the second custome that is for the custome of cutting of Trees by such Copy-holder which hath such priviledge he conceived also that it was good But he agreed that a bare Tenant for life cannot be warranted by custome to do such an Act as it was here adjudged between Powell and Peacock But here he had a greater Estate then for life for he hath power to make another Estate for life and shall have as great priviledge as Tenant after possibility c. which is in respect of Inheritance which once was in him and he may do it for the possibility which he hath to give to another Estate as it is agreed in 2. Ed. 4. that a Lease fo a hundred yeares is Mortmain in respect of the continuance of it so here for the Estate may continue by such power of nomination for many lives in perpetuity and that as when at the Common Law they have in reputation and opinion of Law a greater Estate may cut and sell Trees so here insomuch that the Estate comes so neere to Inheritance he conceived that he might cut the Trees by the custome and that the Custome is good and so he concluded that Judgement should be given that the Plaintiff should be barred in respect of Customes and then to the third that is when a man lets Land and by the same Deed grants the Trees to be cut at the will and pleasure of the grantee there the Lessee hath distinct Interest But if the Lessor by one selfe same clause had demised the Land and the Trees there the Intendment is But notwithstanding that there are severall clauses and that he hath distinct Interests yet he conceiveth that the Trees remaine parcell of the Inheritance and free-hold till they are cut and are severed only in Interest that is that may be felled and devided by the Axe for Tythes shall not be paid for them if they exceed the growth of twenty yeares not it shall not be Felony for to cut those and burn them And it is not like to an Advowson for that may be severed and for that he conceived that if the Custome had not warranted the Cutting and Selling that the Copy-holder had forfeited his Estate and that the Lord might very well have taken advantage of it and 29. assis 29. A man sells Trees to be cut at Michaelmasse insuing and before Michaelmasse Haukes breed in them the seller shall have them by which it appeares that the property is not altered So that though they are not parcell of the Mannor yet they are parcell of the Free-hold insomuch that they are not severed in Facto And he agreed that Lessee for yeares of a Mannor shall take advantage of Forfeiture and need not any presentment by the Homage and Littleton fol. 15 saith that the Lord may enter as in a thing Forfeited unto him and so for attainder of Felony And if a Copy-holder makes a Lease for yeares by which he forfeits his Copy-hold Estate And after the Lord grants the Mannor for yeares the Lessee of the Mannor shal take advantage of this Forfeiture made before he had any Estate in the Mannor without any presentment by the Homage But here in this case the Custome warrants the cutting of the Trees by the Copy-holder and for that he concluded all the matter as above that the Plaintiff should take nothing by his Writ Coke cheife Justice agreed and he said that Fortescue and Littleton and all others agreed that the Common Law consists of three parts First Common Law Secondly Statute Law which corrects abridges and exp'aines the Common Law The third Custome which takes away the Common Law But the Common Law Corrects Allows and Disallows both Statute Law and Custome for if there be repugnancy in Statute or unreasonablenesse in Custome the Common Law Disallowes and rejects it as it appeares by Doctor Bonhams Case and 8 Coke 27. H. 6 Annuity And he conceived that there are five differences between Prescription and a Custome And all those as pertenent to this cause First in the beginning Pugnant ex Diametro for nothing may be good by prescription but that which may have beginning by grant and also prescription is incident to the Person and Custome to some place and holds place in many Cases which cannot be by grant as in 11 H. 4. Lands may be devised by Custome and so discent to all the Sons as in Gavelkind and to the youngest Son in Eurrough English and others like which cannot have their beginning by Grant but prescription and Custome are Brothers and ought to have the same age and reason ought to be the Father and Congruence the Mother and use the Nurse and time out of memory to Fortifie them both Secondly they vary in quality for prescription is for one man only and Custome is for many if all but one be not dead Thirdly they vary in extent and latitude for prescription extends to Fee-simple only but Custome extends to all Interests and Estates whatsoever as appeares by pleading for Tenant in tayl for life or yeares cannot prescribe in what Estate nor against the Lord in his Demesnes but they ought to alledge the Custome and against a stranger they ought to prescribe in the name of the Lord and for that prescription b. Copy-holder of Inheritance may sell the Trees is not good but such Custome is good and 5. Ed. 3. 24. And the old Reports 196. One Tenant being a Free-holder prescribes to have Windfalls and all Trees-which are withered in the Top and if the Lord makes them in Cole to have so much in money And so if they sell and this for Sale and this was not-good insomuch that it is alledged in the person as prescription but if it had been alledged as Custome and to be burnt in his house then it shall be good as appendant and 14. Ed. 3. Barr 227. Wilby saith to be adjudged that prescription to have Turbary to be burnt in his house is good but not to sell and 11. H. 6. 17. accordingly by which it appeares that this may be very well by Custome and cannot be by prescription Thirdly he conceived that where a man may create an Estate without nomination there he may create that by nomination And also that which may be done by the
awarded good because it comes in Lieu of Goods which they had as Executors and shall be Assets in their hands as the Goods should have been and for that it is well brought in the Detinet only And they said that in the principall case it shall be mischeivous if the Action shall be brought in the Debet and Detinet for it may be the Rent reserved is of more worth then the Profits of the Land will amount unto and that the Executors or Administrators have no other Assets now shall be the Executor or Administrator be charged with his own proper Goods which shall be mischeivous and the case of 10. H. 7. 5. and 6. that is direct in the point was often times cited and all these three things which were of councell with the Defendant informed the Court that they were of Councell with Hargrave when the Judgement given in the Kings Bench was reversed for Error in this very point and for this cause because the Action was brought in the Debet and Detinet where it should be in the Detinet only And so they praied that the Judgement should be hindered But by the whole Court except Yelverton And so it was adjudged that the Action was well brought as it is and especially for the reasons given in Hargraves Case 5. Coke 31. And to that which hath been said by Yelverton Justice that in all cases where Executors are charged by the name of Executors or Administrators that there the Action shall be against them in the Detinet only Flemming cheife Justice answered that â—rue it is in all personall things where they are named as Executors Action shall be in the Detinet But as it is an Action of Debt for Rent reserved upon a Chattell reall and an Executor is as an Assignee in Law and so charged as privy in Estate and not meerely as Executor and if he have no more Assets then the Rent which he is to pay he may plead nothing in his hands against all the World and to that that hath been said that the Executor hath been charged of his own Goods If the profits be not more then the Rent or the Rent more then the profits to this he said that in this case where the Executor hath the Tearme and hath not any other Assets that they may wave this Tearme And in Action of Debt brought against him for the Rent may plead to the occupation and that recover The reason of the diversity between this case and the case of 28. H. 8. Dyer 14. is plain for in an Action of Debt against the Termor himselfe Non habuit nec occupavit is no Plea for there was a contract between them and for this privity of contract is the Lessee charged though he did not occupy But in the case of an Executor the privity of the contract is gone and so may be a difference But yet it seemes if he have Assets sufficient to pay the Rent he cannot wave it And to the case 14. H. 4. 28. that hath been cited that doth speake nothing how the Action should be brought And the Justices have seen the record of Hargraves case and the Reversall of that And they said the same error which was in Hargraves case is in this case and for that bring your Writ of Error in the Exchequer chamber if you will for we so adjudge And then it was moved that the Lord Rich was Tenant in Tayle of part of the reversion and Tenant in Fee-simple of the other part and so it seemes that he ought to have two Actions because he hath as two reversions But it was resolved by all the Court that if a man have a reversion of part in Fee-simple and of the other part in tayl and makes a Lease for yeares rendring a Rent he shall have but one Action both being in the hands of one But otherwise it had been if the reversion had been in severall hands they should not Joyne in Debt and for that Fenner put this case two Coparceners are of a reversion and they make partition now the Rent is apportioned and they shall sever in Debt But if one dies without Issue and the part discends to the other Parcener now he shall have but one Action of Debt againe and so it is if a man makes a Lease of two Acres rendring Rent and after grants the reversion of one Acre to J. S. and of the other Acre to J. N. now they shall sever in Debt for this Rent but if J. S. and J. N. Grant their reversions againe to the first Lessor he shall have but one Action of Debt and so the exception dissalowed by all the Court and the Judgement given for the Plaintiff according to the Verdict Yates and Rolles THe case was this J. S. covenants by Indenture with J. N. I. D. and A. B. to enter Bond to pay ten pound to J. N. and J. N. dies and his Administrator brings a Writ of covenant and the question was insomuch that this ten pound was to be paid to J. N. if his Administrator shall have Action of Covenant or if the Action shall survive to the other two and it was moved by Stephens that the Action shall be well brought by the Administrator for this shall be taken as a severall covenant and this now is in nature of a Debt and enures only to him which shall have it also the payment of the money which is the effect of the covenant shall be to him only Ergo the Damages for the not performing of it shall goe to him also and by consequence to his Administrator But it was adjudged insomuch that this was a joynt covenant that this shall survive to the others and not well brought by the Administrator So also resolved that insomuch that the words are that he would enter Bond and doth not say to whom that this shall be intended to the Covenantees and though that the Solvendo is but to one of them yet that is very good as an Obligation made to three Solvendum to one of them is good by Fenner and by Williams Obligation to two Solvendum ten pound to one and ten pound to another both ought to joyne in Debt upon this Obligation and Judgement for the Defendant Sammer and Force THe Case was this The Lord of a Copy-hold Mannor where Copy holders are for life grants Rent-charge out of all the Mannor one Copy-hold Escheats the Lord grants that againe by Copy the question was If the Grantee shall hold it charged or not and by the whole Court but Fenner he shall not hold it charged because he comes in above the Grant that is By the custome the same Law of Statutes Recognizances or Dowers but the 10. of Eliz. Dyer 270. by the whole Court that he shall hold it charged but this hath been denyed for Law in a Case in the Common Bench between Swaine and Becket which see Trinity 5. Jacobi But to Coke Justice it seemed that
this common being annexed to the Land though that the Estate be increased yet the common remaines his second reason was of the manner of conveiance and that was by confirmation and if that conveiance had been by Feoffment peradventure the common had been gone But a confirmation enures allwaies upon an Estate precedent and though that this somtimes inlargeth the Estate yet this doth not alter the Estate as to any priviledges annexed to it his third reason was of the matter of the confirmation and that is that he hath confirmed it with the appurtenances and this seemes to him admitting that the common had been extinct yet these words with the appurtenances amount to a new grant of a common as in the case of Corody in 22 Ed. 4. 17. and 18. If the King grant to one such a Corody as I. S. had he shall have so much bread and beere as I. S. had so here when he grants and confirmes that with the appurtenances this is with all such priviledges as I. S. had so here when he confirmes with the appurtenances this is with all the priviledges that the old Estate had and so this should be a grant of such common as was annexed to that and so it seemed to him for these reasons that the common remaines to which it was said by Davies of the other part that he agreed al the manners of Prescriptions but he denied that it was a locall Prescription that is to Land but only to an Estate and this proves well the words of the Prescription for the Copy-holder ought to prescribe that is that every customary Tenant within the Mannor c. So he hath his common in respect that he is customary Tenant and this is in respect of the Estate which he hath by the Custome and not in respect of the Land and that this shall not enure as a new Grant he cited a case to be adjudged Michaelmasse 43. and 44. Eliz. in the Kings Bench Rot. 367 Where in Trespasse the Defendant justifies the lopping of Trees in the wast of the Lord where the custome was that every Copy-holder might shride the Trees in the wast of the Lord and that he was a Copy-holder there and the Lord granted to him the Inheritance of his Copy-hold with all such Lands Tenements and Commons of Estovers pertaining to the Copy-hold and adjudged that insomuch that the Customary Estate was distroied this custome was not now annexed to the Land but being determined with the Estate cannot be said appertaining to it and for that the Justification ill and it seemed to him to be all one with the principall case and it was adjourned and after in Michaelmasse Tearme 8. Jacobi It was adjudged that the Common was extinct and not revived Hillary 7. Jacobi 1609. In the Kings Bench Proctor against Johnson THE Case hath depended seven yeares in this Court upon a Writ of Error was this Two Joynt Tenants for yeares of a Mill one grants his Estate severally to another and dies the Grantee doth not enter yet The other reciting the Lease to him made and to his companion joyntly and that his companion died so that all belonged to him as Survivor as he intended grants all the Mill to Johnson and all his Estate Right and Interest in that And covenants that the Grantee there shall continue discharged and aquitted of all Charges and Incumbrances or other Act or Acts done by him and after binds himselfe in a Bond to performe all Grants Covenants and Agreements contained in the Indentures according to the intent and meaning of the parties and after the Grantee of his companion entered into the halfe and the question was If the Bond were forfeit or not and it was adjudged in the Common Bench that the Obligation was forfeited And the matter was argued this Tearm in this Court by Yelverton of Grayes Inne that the Bond shall not be forfeited for the Bond was with Condition to performe all Grants c. According to the true intent and meaning of the parties and then let us see what was the intent of the parties and suerly this appeares by the recitall in the Indenture and for that he said that all appeares to him as survivor as he conceived so that he was doubtfull of that and for that his meaning was that if he had all then to grant all and if he had but a moity then to grant but the moity and this proves well the words subsequent where he saith that he granted the Mill and all his Estate Right and Interest in that so that he did not intend to grant more then his Estate and these words subsequent qualifie the generall words precedent and so it seemes to him that the Obligation shall not be forfeited And Sir Robert Hitcham the Queens Attorney to the contrary and that the Bond was forfeited for he hath bound himself to perform all grants and he hath not performed his Grant for he granted all the Mill and then though but a moity passeth yet he shall forfeit his Bond if the moity be evicted and for that if a man which hath nothing in the Mannor of D. makes a Lease by Deed indented to J. S. and binds himself to performe all Grants though that nothing passes yet if he enter and be ejected he shall have Debt upon his Obligation and he cited one Yelvertons Case to be adjudged but did not tell when where a man which hath nothing in the Mannor of Dale covenants with J. S. to stand seised to the use of him and his Heirs at Michaelmas and before Michaelmas he purchases the Mannor of Dale and it was resolved that no use shall be raised at Michaelmas for he had not the Mannor at the time of the Covenant and also it was resolved that no Action of Covenant lies upon the Covenant but he sayd that it is a cleer Case that if he had entred into a Bond to perform all Covenants in the Indenture that the Bond shall be forfeited though that he could not have action of Covenant upon the Covenant and also he sayd that he well agreed the Case of the Lady Russell which was adjudged also but Nescio quando where a man made a Lease for years of the Mannor of Dale except one Acre the Lessee binds himself to perform all agreements and after the Lessee enters into the Acre this shall be no breach of the condition for this exception is no agreement for nothing shall be sayd an agreement in an Indenture but that which passeth in Interest and so he sayd that though that the Lessee cannot have an Action of Covenant in the principall Case insomuch that this is so speciall yet the Bond shall be forfeited upon these Words grants and agreements and the Covenant special doth not qualify the generall express grant and after four Justices that is Flemming the cheife Justice Willams Yelverton and Crooke were of opinion that the Bond is forfeited and this for the generalty of the
Grant his Intent was cleerly to pass all but Williams if he had sayd Totum Molendinum suum or all his Estate in the Mill there paradventure it should haue been otherwise and so a difference where he saith he grants the Mill and all his Estate in that and where he grants all his Estate in the Mill for in the first case all passes by the Grant of the Mill and these words which are after are but words explanatory as â—rooke sayd and it was adjourned And after in Easter Tearm next insuing Hitcham the Queens Attorney came again and prayed that the Judgment be affirmed and Yelverton of Grayes Inne sayd that he hath considered of Nokes Case 4. Coke and this was all one with this case for the case was thus A man lets a House in London by these words demise Grant c. That the Lessee should injoy the House during the Tearm without eviction by the Lessor or any claiming from or under him and the Lessor was bound to peform all Covenants Grants Articles and Agreements as our case is and there by the whole Court that the sayd express Covenant qualifies the generalty of the Covenants by the Words Demise and Grant which is all one with our case for first he granted Totum Molendinum and after covenant that he should injoy c. against himself and all which claime in by from or under him and after binds himself to perform all Grants Covenants Articles and Agreements and so it seems to him that it is au expresse Covenant in this Case as well as in other and qualifies the generall Covenant implyed by the word Grant and then the Grantee being outed by a title Paramount no Action of Debt upon such Obligation and prayed that the Judgment be reversed and the Justices sayd they would consider Nokes Case and the next day their opinions were prayed again and the cheife Justice sayd that he had seen Nokes case and said that there is but a small difference between the cases but he sayd that some diflemay be collected For first in our case is a Recitall of the Estate of the Grantor that is that all belongs to him as Survivor and for that this was a manner of Inducement of the Grantee to be more willing and forward to accept of the Grant and to give the more greater consideration for it but in Nokes case there is no recitall and so this may be the diversity Secondly In Nokes Case the Tearm past all in Interest at the first and the Grantee or Lessee had once the effect of this Lease in Interest of the Lessor but in this case when two Tenants in Common and one grants Totum molendinum there passes but a half at the first and so the grant is not supplyed for the other halfe and then if the speciall Covenant shall qualify the generall c. The Grantee shall not have any remedy for a half at all and this may be the other diversity but admitting that none of these will make any difference then he sayd that all the Court agreed that this point in Nokes Case was not adjudged but this was a matter spoken collaterally in the case and the case was adjudged against the Plaintiff for other reasons for that that he did not shew that he which evicted this Tearm had title Paramount for otherwise the Covenant in Law was not broken and for this reason Judgment was given against the Plaintiff and not upon the other matter and so the whole Court against Nokes Case And the cheif Justice sayd that to that which is sayd in Nokes case that otherwise the speciall Covenant shall be of no effect if it cannot qualify the generalty of the Covenant in Law he sayd that this serves well to this purpose that is that if the Lessor dyes and any under the Testator claim the Estate that the Action of Covenant in this case lies against his Executors which remedy otherwise he cannot have for if a man makes a Lease by these words Devise and Grant and dyes Action of Covenant doth notly against his Executors as it is sayd in the 9. Eliz. Dyer 257. But otherwise upon expresse Covenant and then this expresse speciall Covenant shall be to this purpose And also it seems to him that if a man devise and grant his Land for years and there are other Covenants in the Deed that in this case if the Lessor binds himself to perform all Covenants that he is not bound by his Bond to perform Covenants in Law and he cited that to this purpose the Books of 22 H. 6. and 6 Ed. 6. B. Tender that if a man makes a Lease for yeares rendring Rent this is Covenant in Law as it is sayd 15 H. 8. Dyer and a man shall have Debt or Covenant for that and yet if a man binds himself in a Bond to perform all Covenants where there are other Covenants in the Deed and after doth not pay the Rent no action of Debt lyeth upon this Obligation nor the nature of the Debt altered by that and he sayd that the Munday next they would pronounce Judgment in the Writ of Errour accordingly if nothing shall be sayd to the contrary and nothing was sayd Hillary 7. Jacobi 1609. In the Kings Bench. Bartons Case THE Case was this A man was taxed by the Parish for Reparations of the Church and the Wardens of the Church sued for this Taxation in the spirituall Court and hanging this Suit one of the Wardens released to the Defendant all Actions Suits and Demands and the other sued forward and upon this the Defendant there procured a Prohibition upon which matter shewed in the Prohibition was a Demurre joyned and Davenport of Grayes Inne moved the Court for a Consultation and upon all the matter as he sayd the point was but this If two Wardens of a Church are and they sue in the Court Christian for Taxation and one Release if that shal barr his Companion or not And it seems to him that this Release shall not be any Barr to his Companion or Impediment to sue for he sayd that the Wardens of a Church are not parties interested in Goods of the Church but are a speciall Corporation to the Benefit of the Church and for that he cited the Case in 8 Ed. 4. 6. The Wardens of the Church brought Trespass for goods of the Church taken out of their possession and they counted Ad damnum Parochianorum and not to their proper damage and the 11 H. 4. 12. 12 H. 7. 27. 43 H. 7. 9. Where it is sayd expresly that the Wardens of the Church are a corporation only for the Benefit of the Church and not for the disadvantage of that but this Release sounds to disadvantage of the Church and for that seems to him no Barr also this Corporation consists of two persons and the Release of one is nothing worth for he was but one Corps and the moyity of the Corps could not release
and for these reasons he prayed a consultation and Yelverton to the contrary and he took a difference and sayd that he agreed that if the Wardens of the Church have once possession of the Church there in Action of Trespas brought for these Goods one Warden cannot release but this tax for which they sue is a thing meerly in Action of which they have not any possession of that before and there he cannot sue alone and for that this release shall barr his Companion And the Court interrupted him and sayd that cleerly consultation shall be granted and Flemming cheife Justice we have not need to dispute this release whether it be good or not and there is a difference where a suit is commenced before us as if Wardens of the Church brought Trespasse here for Goods of the Church taken and one Release then we might dispute if this release were good or not but when the matter is original begun before them in the spirituall Court and there is the proper place to sue for this Tax and not any where else we have nothing to do with this Release and for that by the whole Court a consultation was awarded Hillary 7. Jacobi 1609. In the Kings Bench. Styles Case UPon a Motion made by Yelverton on the behalfe of one Styles the Case was this Styles had a Judgment in Ejectione firme and was put in possession by the Sheriff by an Habere facias possessionem and after the Defendant enters againe within the two weeks after Execution and the Writ was returned but not Fyled and Yelverton moved the Court for another Writ of execution and by Williams he could not have a new Writ of Execution but is put to his new Action and the Fyling of the Writ is not materiall for it is in the election of the Sheriff if he will Fyle or returne that or not but be sayd if the Execution had not been fully made as he sayd there was a Case where the Sheriff made an Execution of a House and there were some persons which hid themselves in the upper Lofts of the House and after the Sheriff was gone they came downe and outed those that the Sheriff had put in possession before and in this Case a new Writ of Execution was awarded but there a full Execution was not made and so the difference But the cheif Justice sayd That if the Sheriff put a man in possession and after the other which was put out enters in forthwith that in this Case the Court may award an Attachment against him for contempt against the Court. Hillary 7 Jacobi 1609. In the Kings Bench. Gittins against Cowper CUstome of one Mannor was That if any Copy-holder within the Mannor committed any Felony and this be presented by the Homage that the Lord may take and seise the Land a Copy-holder committed Felony and this was presented by the Homage and after the Copy-holder was Indicted and by Verdict acquit and the Lord entred and if his entry were lawfull or not was the question The points were two First If the Custome were good Secondly Admitting the Custome to be good if this Verdict and acquittall shall conclude the Lord of his entry And Walter of the Inner Temple argued that the Custome was good and that the Lord was not concluded by this Verdict And to the first point he sayd That it was a good Custome First insomuch it might have a reasonable beginning and for that he cyted the Book of 35 H. 6. where it is sayd that such Customes which might have reasonable beginning should be good and to that he cyted a Case which was adjudged as he sayd in 27 Eliz. and was one Delves Case and the Case was this A Quo warranto issued against Delves to know Quo warranto he held a Leet to which he pleaded that he was seised of such a Messuage and that he and all those whole Estate he hath in the said Messuage have used allwaies to have and hold a Leete there within the Messuage If this prescription that is to have a Leete appendant to a single Messuage was good or not was the question And it was adjudged insomuch that by resonable intendment it might be that this house was the Scite of a Mannor and the Lord granted that with the Leet the Prescription adjudged good and he sayd that many Customes are grounded upon the nature of the place and for that he sayd that this Mannor was adjoyning to great Woods and it might be that the Copy-holders committed Felonies and outrages and after fled into the Woods and there lived and yet injoyed the benefit of their Copy-holds and for that it was reasonable for the Lord to annex such a restraint and condition that is if they committed any Felony this should be a forfeiture of their Copy-hold and this should be a meanes to bridle them to commit such haynous and odious offences And that Customes ought to have a respect to the place he cyted the Case of 12 H. 3. where the Custome of the Isle of Man was That if any man stole a Hen or a Capon or such small matter that should be Felony but if he stole a Horse that should not be Felony for a man may privily convey away a Hen or might consume it but for the smalnesse of the place and being compassed with the water he could not so doe with a Horse So in 39. H. 6. That the married Wife of a Merchant in London may sue and be sued by the Custome and the reason is that London is the cheife City and place of Merchandise within the Realme of England and it is conceived that the Merchants cannot be alwaies resident there but sometimes beyond Sea or other where about their businesse and Affaires and for that it shall be reasonable that his Wife shall sue and shall be sued in his absence and in time of E. 1. Title Prescription the custome of Hallifax that if any Felon be taken with the manner he shal be forthwith beheaded and this was as it seems for the better suppressing the common Felonies there committed and so he concluded for this Reason that this custome might have such reasonable beginning and in respect of the place that should be a good custome His second Reason was that this might begin at this day lawfully Therfore this shall be good and for that he cited the case of 10 H. 7. 11. That if a man make a Feoffment upon condition that the Feoffee shall not commit Felony that this is a good condition but he sayd that he supposed that if the Feoffee commit Felony and the Feoffor enter into the Land and after the Feoffee is attaint of this felony that now the Lord shall enter by Escheate and his reason was that the Statute of Westminster 3. De quia emptores terrarum prohibits any man to make a Feoffment to the prejudice of the Lord to his Wardship or Escheat His third reason was that this
was a good Custome insomuch that this was annexed to an Estate created by custome and for that he cited one Skeggs case to be adjudged in 24 yeare of Eliz. and was thus that is The custome of a Mannor was that a marryed wife Copy-holder might surrender to the use of her last will and after might devise to her Husband and it was adjudged insomuch that this was annexed to her Estate which begun by custome this was a good custome and the 3 of Ed. 3. At the common Law such custome is voyd and after he cited a Judgment in the point given in this Court 23. of Eliz. Rot. 5014. or 504 or 5004. that the same custome was adjudged a good Custome after he answered some objections which might be made against this custome that is First for the uncertainty of the time when the presentment shall be by the Homage and to that he sayd that the Lord may make that when he will and the time doth not take away the offence and no prejudice upon that discends to the Heir but is to his advantage Secondly Because no number certaine of the Homage and that every tryall must be by twelve and to that he answered that we are not now in point of Tryall but only for the information of the Lord. Thirdly this is against the nature of a Court-Baron to inquire of Felonies and to that he said there is not any inquiry made here but only to inform the Lord and such a thing is not against the nature of the Court which inlargeth this Fourthly The offence is against the King and a common person shall not have the punishment of that to that he sayd the King shall not have any benefit of it for he shall not have any Escheat of Copy-hold lands for Treason or Felony Fiftly This is against the Kings Prerogative to that he sayd that Custome may be against the Prerogative of the King as if a man claim Waife or stray by prescription these are things given to the King by his Prerogative and yet Prescription for them is good and so he concluded this first point that the custome was good To the second point he conceived that this verdict and acquittall shall not conclude the Lord and for that he sayd that at the Common Law if a Verdict had been given and no Judgment upon it the party was not concluded to bring the same Action 18 Ed. 3. 35. Then comes the Statute of 2 H. 4. And this outs non-suit after verdict and yet if verdict be imperfect or finds a thing not in Issue there non-suit may be after verdict as it is sayd in 22 Ed. 4. 10. And if verdict be given in the point and Judgment upon that doth not conclude the party to have action of more high nature as it is sayd in 3 Ed. 3. and 3 Assise 1. and Hudsons ease in the 4 Coke and as it is in Tryalls of Land so it is in tryalls of life as 2 R. 3. 14. 7 H. 4. 34. Then if the party himself shall not be bound by verdict A fortiori a stranger shall not be also every Estoppell there ought to be a matter of estoppell for the Jury is not sworn to give their verdict according to the truth in Deed but according to the evidence to them given and then if faint evidence or no evidence be given it shall be hard that this shall conclude any of his right also there is no party to be estopped because a stranger as is aforesayd also the acquittall is in such manner that is that he hath not committed the Felony in manner and form as in the Indictment is alledged and this doth not answer the Custome because generall so it seems to him that this shall not be any conclusion to the Lord and so for both points the entry not congeable And Stevens to the contrary and it seems to him breifly that the custome was not good and he denyed the Rule that is that this might have reasonable beginning by agreement of parties shall make a custome good and for this Littleton saith in his chapter of villainage that if the Lord of one Mannor will prescribe to have Fine if any of his Tenants marry their Daughters without his license this is a void custome and yet it may be such agreement between the parties at the first and it seems the custome not reasonable for it is too generall that is if any Tenant and this doth not exclude Infants Secondly if any Felony be committed and this includes petty Larceny and Maime by involuntary means for these are Felonies and for that see 13 H. 7. 19. 6 H. 7. That in Appeal of Mayme a man shall count Felony and yet it shall be hard that a man shall loose his Land for these Felonies Secondly Homage cannot inquire of the fact of Felony but of the conviction of Felony and so it seems to him the custome ill and to the other point it seems that the Lord shall be concluded and to that that hath been objected that the Lord is a stranger to the verdict and for that cause shall not be estopped he said that the Lord is no stranger for in this case every man is party and every man may give Evidence for the King and he cited the case in the time and title of Mortdancester where the case was where a man was as principall for the Death of J. S. and another as accessary in receiving the Principall after the principall was out-Lawed and the Accessary hanged and the Lord seised the Land of the Accessary for Escheat after came the principall and reversed the Out-Lawry and was found not guilty and the Heir of him which was hang'd entred upon the Lord and adjudged insomuch that there cannot be an Accessary unless there be a principall that the entry of the Heir was lawfull in this case so he sayd in this case insomuch that the Copy-holder is acquitted by verdict and found not guilty and seems to him that the entry of the Lord should not be lawfull and by the whole Court the custome was good but they did not deliver any opinion upon the second point for they moved the parties to Composition Hillary 7. Jacobi 1609. In the Kings Bench. Barwick and Fosters Case A Man made a Lease for two years at Michaelmas rendring two shillings yearly during the Tearm at the Feast of the annunciation of our Lady and Michaelmas or ten dayes after at the Feast of Saint Michaell in the last year the Rent is not paid the question was what remedy the Lessor hath for his Rent of this halfe yeare and the opinion of Flemming cheife Justice and Williams was that he hath no remedy And first they sayd as this case is the Lessee hath election to pay either upon the Feast or upon the tenth day after and that is for the benefit of the Lessee then he hath made his Election not to pay that at the Feast of Saint
Michaell then it is cleer that the Lessor hath no remedy by way of distress for the Tearm is ended before and by Action of Debt upon the Contract he hath no remedy as it seems as this case is for the Contract is that the Rent shall be paid yearly during the Tearm then when the Tearm is ended the contract is determined and for that the cheife Justice sayd That if a man makes a Lease at Michaelmas for a yeare rendring Rent yearely at our Lady day and the ninth of October which is after Michaelmas that the Lessor hath not any remedy for the Rent of the last halfe yeare for that is not reserved to be payd yearly according to the contract And Yelverton Justice agreed that the Lessee hath election as above but he saith when that is behinde the tenth day after Michaelmas then the Lessor shall bring his Action of Debt and declare that the Rent was behinde at the Feast of Saint Michaell and shall not make mention of the ten dayes after and Coke Justice sayd That it seems to him that the Lessee shall not have the benefit of these ten dayes after the last Feast for the words of the Lease are rendring Rent yearly during the tearme at the Feasts aforesayd or ten dayes after so that the Lessee shall have the benefit of these ten dayes during the tearme but not after then he shall not have these after the last Feast of Saint Michaell for then shall the tearme be ended And after in Trinity Terme 8 Jacobi The Case was moved againe and then Flemming cheife Justice conceived That the Lessee shall not have ten dayes after the last Feast and this upon construction to be made reasonably for otherwise the Tearm being ended the Contract should be determined with the Tearm and so the Lessor should be without remedy for his Rent and he sayd that reservations are not taken so strictly according to the letter And for that he cited the case of Hill and Granger in the Com. fol. 171. Where a man makes a Lease for a year And the Lease was made in August rendring Rent yearely at the Annunciation of our â—ady and Michaelmasse upon condition of Re-entry In this case the first payment shall be at the next Michaelmasse after the making of the Lease and not at the Annunciation of our Lady though this is first in words and this by reasonable construction for otherwise this word Yearely shall not be supplied and of this see the Action and so he said in this case Rent is reserved yearely during the Tearme at the Feasts of the Annunciation of our Lady or Michaelmasse or ten daies after he shall not have ten daies after the last Feast But Williams held his old opinion that the Lessor hath no remedy for the last halfe years Rent and it was adjourned Hillary 7. Jacobi in the Kings Bench. Grymes against Peacocke IN Terspasse for his Close broken The Defendant justifies that it was used within the Mannor of D. that every Farmer of such a house and averred that that had been allwaies let to Farme had Common in the Lords wast The house came into the hands of the Lord in Possession And he granted the house and the wast to J. S. in Fee J. S. Bargaines and Sells the house to J. N. with all Commons Profits and Commodities used occupied and pertaining to the same And after grants the wast to another If the Grantee of the house shall have Common in the wast was the question And Yelverton argued that the Common was gone for if he shall have Common this shall enure as a new Grant of a Common but this cannot so enure for two reasons First when a man will grant a Common he ought to shew the place in certaine where the Grantee shall have this Common or otherwise the Grant is void But here no place is shewed and for that it cannot enure as a new Grant of a Common Secondly If that be a new Grant yet this hath reference to the usage that is Quod Vsitatum est c. And this Vsitatum is void for it seemes to him that Lessee for yeares cannot alledge a usage for every Vsitatum ought to go in one selfe same currant not interrupted as in ths case of a Coppy-hold But here every new Lease is a new contract and so the usage is interrupted and then the Grant having the reference to the usage and that is void usage nothing shall passe by this Grant and for that in Long 5. Ed 4. 40. If a custome be against Law And that is confirmed by the Act of Parliament this is void confirmation for it hath reference to a void custome so here this Grant hath reference to the usage and for that it seemes to him that the Common is gone Hutton Serjeant to the contrary and that the Grantee of the Messuage shall have common for this usage is not a thing by strictnesse in Law appertaining to the Land but this hath gained his reputation that that shall passe very well in a conveiance by apt words And for that it will not be denied but if a man makes a Lease for years to one and grants him Common for all his Kine c. And after this Lease expires and he makes a new Lease and grants such Commons as the first Lessee had that this shall be a good grant of Common to the Lessee So he said in this case this grant of the house with all profits and commodities used occupied and appertaining to the said Messuage shall be said a grant of such Common which other Lessees of this Manner have used and this by reasonable construction in Law to make good the conveiances of Lay-men according to the common speaking for Benigne sunt Faciende Interpritationes Chartarum c. and for that he cited the case of Hill and Grange in the Comment Where the case was That a man made a Lease for yeares of a house and a hundred Acres of Land appertaining to that though the Land be not appurtenant to the house yet insomuch that this hath been usually occupied with the house this shall passe as appertaining to it and so 26. Assis 38. A man makes a Lease for life rendring Rent and after grants over the Rent to J. S. and dies The Heire grants and confirmes to the Grantee and his Heires the same Rent with clause of distresse and the Tenant for life dies now is the Rent reserved upon the Estate for life determined and yet this shall enure as a new grant of another Rent in quantity So in Sir Moyle Finches Case the case of uses and Durham in Ejectione Firme A Lease was pleaded of a Mannor whereof the feilds in which c. Were parcell And Issue was joyned Quod non Demiset Manerium And upon this Issue found it was that there were not any Free-holders but diverse Copy-holders and this was allwaies knowne by the name of a Mannor and it was adjudged that
this shall passe for him which pleads the demise of the Mannor Then if in Judiciall proceeding the Law makes such favourable construction to make that passe by a Mannor which is no Mannor in truth because it hath been usually known by the name of a Mannor then it seemes to him a Fortiore that no more beneficiall construction shall be made in conveiances which allwaies shall be construed to the intent and meaning of the parties and so it seemes to him that the Common remaines and Crooke Yelverton and the cheife Justice Flemming conceived that in reason he shall have the Common but they did not give any absolute opinion as to that But Williams Justice to the contrary and that the Lessee for yeares cannot have more then he contracted for in his Lease and then the Vsitatum void and the Lessees have taken that by wrong And this Grant having reference to a void and wrongfull usage is not good and it is adjourned Hillary 7. Jacobi 1609. In the Kings Bench. Stydson against Glasse Stydson brought an Ejectione Firme against Glasse and upon speciall Verdict the case was this that is That one Holbeame was seised of the Land in question in Fee and made a Lease for life to Margret Glasse and after covenanted with John Glasse Husband of the said Wife Lessee that before such a day he would Levie a Fine to A. B. and to the Heires of A. of the same Lands which Fine should be to the use of the said Glasse for sixty yeares to begin after the death of the said Margeret Glasse with Proviso within the same Indentures that if the said Holbeame at a certaine day should pay to the said John Glasse a hundred pounds that then the Lease should cease and then of that the Conusees should stand seised to the use of the said John for his naturall life and after the said Holbeame disseised the said Margeret Glasse the Lessee and made a Feoffment to the use of himselfe and one Alice with whom he intended to marry and to the Heire of their two bodyes begotten the remainder to the right Heires of the Feoffor and after the sayd Feoffor and Alice intermarried and after the said Holbeam tendred a hundred pound to the sayd John Glasse the Lessee for years and after the sayd John Glasse assigned over his Tearme and after the sayd Holbeam by Deed indented and inrolled bargained and sold the said Land to the said John Glasse and his Heir and after Iohn Glasse dyed and the Inheritance discended to the said Margeret Glasse Lessee for life the Conusor dies his Wife enters and lets to the Plaintiff the Defendant enters upon him and the Plaintiff re-enters and brings Trespass against the Defendant which justifies as servant to the Assignees of the Tearm and if upon all the matter c. And it was argued by Nicholls Serjeant for the Plaintiff and he moved three points in the case First if by this feoffment upon such condition as this is had been Extinct at the Common Law or remaines to the Feoffor notwithstanding the feoffment for if he have interest in the Land then it is extinct by the Livery for it is given of the Feoffor and past out of him and yet the Feoffee cannot have and for that it is extinct but if it were but Authority as in 15 H. 7. Authority to sell the land of the Devisor then the Authority remaines and is not extinct by the Feoffment of the land so power of Revocation to a stranger which is but authority is not extinct by a feofment Albaines case Coke 112. a. But if it be right in Interest then it is extinct by the feofment as power of revocation to the Party himself resolved to the point in Albains case so of Title to a Writ of Deceit 38 Ed. 3. So of a title to be Tenant by the Curtesie 9 H 7. 1. But by 42 Edw. 3. by a Feoffment made by a Parson of Land of his Rectory the Tythes of that Land are not extinct but remaines notwithstanding the Feoffment for that it was collaterall to the title of the Land as the Cases of Authority are which were put before then if this power to alter a Lease by payment of a hundred pound be not any right nor Interest but a collaterall power and the authority not extinct by the Feoffment but remaines but admitting that it is in nature of an ordinary Condition and that before the Statute it should be extinct by the Feoffment for that it is the gift of the Feoffor and yet it is not transferable to the Feoffee If now by the Statute of 32 H. 8. which inables Grantees of reversions to take advantage of Conditions if the condition be not transferred to the Feoffees and so over to he to whose use that then by consequence this remaines to the Feoffor which was the he to whose use and then the tender of the money after well may alter the Lease it seems that so for before the Statute if a Lease for yeares had been made upon condition to cease and after the Lessor enters upon the Lessee and makes a Feoffment and the Lessee re-enter and breakes the condition the Feoffee shall take advantage of that condition being by way of ceasing of an Estate so after the Statute the Feoffee of the Lessor shall take advantage of the condition of Re-entry and of every other condition annexed to the reversion as well as of one condition to cease before the Statute and as well that every Grantee shall doe since the Statute for though that he comes in by Feoffment which is wrong to the Lessee yet after the re-entry the Lessee is in nature of a Grantee And he cyted the Case of Clyfford Error 7. Ed. 6. to be that Lessor entred upon his Lessee and made a Feoffment if the Lessee re-enter the Rent and the Condition are revived againe and the Feoffee shall have both see Cliffords Error 7. Ed. 6. Dyer the last case and 1. M. Dyer 96. 43. but there is not any such matter and for that it seemes that he hath another report of this case of Cliffords Error or otherwise he meant some other case and not Cliffords Error so is our case the condition being inherent to the reversion shall passe with the reversion be that by grant or feoffment and when the reversion is revived by the entry of the Lessee the condition shall be revived also and it is the more strong insomuch that the Condition is that upon the payment of the money the Lease for years shall cease and not that the Lessor shall re-enter that such Feoffee shall take advantage of a condition by way of ceasing of that at the Common Law 2. point and for the second point he would not argue against that that he took to be cleer and for that he conceived the Law to be against his Clyent in this point though that after the Disseisin and Feoffment the free-hold could not accrue
of the Lessor But he agreed the case of Littleton that an Assignee of an Estate may perform a condition in preservation of an Estate otherwise of an Assignee of a Reversion in destruction of an Estate so at the Common Law it is clear that the Feoffee cannot perform the condition and by him it is cleerly out of the Statute of 32 H. 8. for this Statute doth not extend to a collaterall condition as it appears by Spencers case 5. Coke and so hath been many times after this adjudged and this is a collaterall condition Ergo c. And so concluded and prayed Judgment for the Defendant Nicholls Serjeant to the contrary and that this Disseisin hath not suspended the condition but that he may pay the Money and make the Estate to cease notwithstanding the Disseisin for-that that the condition is collaterall like to the 20 of Ed. 4. and 20 H. 7. That where a Feoffee upon a collaterall condition takes back an Estate for years yet this shall not suspend the condition but it may be performed or broken notwithstanding the Lease for that that it is collaterall so in our case for suppose that the condition had been if he marry Mistris Holbeam that then his Estate shall cease and as well it shall be upon the Tender of the Money here and he said that this case was late in the Common Bench. This feoffment was made to the use of the Feoffor for life Remainder to another for life the Remainder to the third in tayl the Remainder to the right Heirs of the Feoffor in fee with power of Revocation and after the Feoffor lets for years and during the Tearm he revokes the mesne Remainders and it seems to the Justices that well he may for that that the Lease for years goes only out of the Estate for life as he sayd and for that the power of Revocation as to the Mesne Remainders was not suspended Quere of the truth of this case in the common Bench for perchance it is not truly collected but so entred and so he prayed Judgment for the Plaintiff Flemming cheife Justice sayd that the point of the principall case would be if by the wrong of the Lessor the Estate of the Lessee shall be prevented to accrue then he might perform the condition to determine the ancient Estate that is the Lease for years and it is adjourned Pasch 8. Jacobi 1610. In the Kings Bench. Earle of Shrewsbury against the Earle of Rutland IN a Writ of Errour the Earle of Rutland brought an Assise of Novel Disseisin against the Earle of Shrewsbury and four others and the Plaint was of the office of the keeping of the Park of Clepson and of the vailes and fees of the sayd Parke and of the Herbage and Paunage of the same and the Demandant made his title and alledged that the Queen Eliz. was seised of Clepsam Park in fee in right of her Crown and that she being so seised by her Letters Patents under the great Seal granted unto one Markham the keeping of the Park of Clepson with the vailes and fees and the Herbage and Paunage of the same Park for his life after the Queen Eliz. reciting the Grant made to Markham and that Markham was alive gave and granted by her Letters Patents to the Earl of Rutland the Office of the keeping of the sayd Clepson Parke with the Fees and Wages to that appertaining to have and to hold to him for his life after the death of Markham or after the surrender or forfeiture of his Letters Patents and further granted the Herbage and Paunage to the sayd Earle of Rutland for his life and doth not say when this shall begin after which the Queen Eliz. died and the Eee-simple discended to our Lord the King which-now is as lawfull Heir to the Crown of England which granted that to the Earle of Shrewsbury after which Markham dyed and the Earle of Rutland entered and was seised till the Earle of Shewsbury with four others entered upon him and dissersed him and to that the Tenants alledged no wrong no disseisin and when the Assise was to be taken in the Country the Array was challenged by the Tenants for that that one of the Tenants in the Assise had an Action of Trespasse hanging against the Sheriff and this challenge was not allowed and the Assise being perused at large for the Herbage and Paunage they found that the said Queen Eliz. was seised of Clepson Park as aforesaid and by her Letters Patents as afore is rehearsed granted the Keeping of this to Markham for his life and further by the same Letters Patents granted to him the Fees and Wages to that belonging and further granted by Letters Patents and doth not say Easdem to him the Herbage and Paunage of the sayd Park and that the Queen after the reciting the Grant made to Markham and that Markham was alive granted to the Earle of Rutland the keeping of the sayd Park and vailes and fees to have and to hold after the death surrender or forfeiture of the Letters Patents of Markham for his life And further by the sayd Letters Patents shee granted the Herbage and Paunage of the same Park to him for his life as more fully appears by the Letters Patents and it was not expressed as to the Herbage and Paunage when that began and they found the death of Markham and that the Earle of Rutland put two Horses into the sayd Park to take seisin of the sayd Herbage and Paunage and they found further the grant of the King to the Earle of Shrewsbury of the fee-simple and of that prayed the advise of the Court and to the keeping of the Park they found the seisin and disseisin of that and of the fees and wages to the Dammages c. And this being adjourned into the Common Bench was remanded into the Country and there Judgment was given for all for the Demandant and after this it came into the Kings Bench by Writ of errour and the Errours assigned by the councell of the Tenants and argued at the Barr were foure The first was that the Earle of Rutland himself between the verdict and the Judgment hunted in the Park and kild a Buck and took a shoulder of that for his fee and so he hath abated his Assise and so the Judgment was given upon a Writ abated and therefore they cannot plead that in abatement insomuch that it was mesne betwixt the Judgment and the verdict they assigned that for errour The second was because the principall challenge was not allowed where that ought to have beene allowed and the challenge was that one of the Tenants had an Action or Trespasse hanging against the Sheriff before the Assise The third was Because the Jury have found the Letters Patents made to Markham and that the Queen granted to him by her Letters Patents the custody of the Parke of Clepson in Clepson And further by the same Letters Patents granted the vailes
and fees c. And further granted the Herbage and Paunage and have not found that this was granted by the same Letters Patents and then if this be not granted by the same Letters Patents then there is not any grant of this to the Earle of Rutland because there is no receitall of the Patent by which the Herbage and Paunage was granted to Markham The fourth errour was that they have erred in point of Law and to that the point is but this the King grants the Herbage and Paunage of a Park to one for life and after reciting that grant and that the Patentee is alive grants that to another and doth not say when that shall begin and it seems to them that the Argument for the Plaintiffes in the Writ of errour that this was a voyd grant and so the Judgment erronious but I have not the Report of the Arguments of the Conncellors at the Barr but only of the Judges which moved two other errours in the case not moved by the councell at the Barr and Crooke Justice rehearsed the case as before And to the first errour he conceived that this is no errour and that for two reasons First He tooke a difference betweene a thing which abates the Writ by Plea as if a man brings an Assise against another and mesne between verdict and Judgment the Plaintiff dies this matter shall abate the Writ without Plea and for that if Judgment be given upon such verdict the Judgment is erronious but in our case an entry doth not abate the Writ without pleading that and now as this case is this cannot be pleaded being between Verdict and Judgment and for that it shall not be assigned for Errour see 19 Assise 8 Where this difference is taken and agreed Secondly Admit that this entry might have abated the Writ in Facto without Plea yet there is no such entry alledged which might abate the Writ in Facto without Plea for the entry is alledged that the Earl of Rutland entred to hunt and kild a Buck and took a shoulder of that for his fee and it seems that this is no such entry that shall abate the writ for he hath now entred to another purpose to hunt the which he could not do but the entry ought to have been alledged that he entred to keep for in every entry the intent of the Entry is to be regarded and to this purpose he cited the case of Assise of Freshforce Com. 92. and 93. Where entring into the Seller hanging the Assise of that to see the Antiquity of the House there was no Entry to abate the Writ and the case of 26 Assise 42. where the Disseisee hanging the Assise comes and sets his foot upon the Land but takes no profits and adjudged that he should recover notwithstanding so in this case the intent is not shewed that is that he entred to keep possession but to hunt nor was it such entry which should abate the writ and to that which is sayd that he kild a Buck and took the shoulder of that for his fee this doth not help for if that had been a Buck which he might to have kild by vertue of his Office he ought to have shewed his warrant for otherwise a Parker cannot kill a Buck if not that it be for his fee and then he shall have the Buck and not a shoulder only also it is alledged that he took a shoulder and doth not say the best shoulder or the right shoulder and this ought to be shewed in certain And so for he first Errour he couceived that this is no cause to reverse the Judgment and to the challenge he sayd that he would speake to that at the last and for that he now spake to the errours supposed in the grant And first to Markhams Grant where the Jury found the Queen Eliz. granted to him the keeping of the Park and by the same Letters Patents grant the fees and Wages and further granted by her Letters Patents and doth not say Easdem the Herbage and Paunage it seems to him that this is very well for two reasons First insomuch that there is a copulative which is this word Et and also a Relative which is this word Vlterius and this word conjoynes the matter precedent with the subsequent and the word Vlterius hath necessary relation to the same Letters Patents and so Ex precedentibus subsequentibus the Iury hath well found the matter Secondly these words are supplied in the second Patent for there the Jury have found that the Queene hath granted that to Marham by the same Letters Patents and so for these two reasons he concluded that this is no Error to reverse the Judgement And to the Patent made to the Earle of Rutland it seemes to him also that this is very good and all that he said in effect was that in construction of the Patents of the King such exposition is to be made that if any reasonable meaning may be conceived they shall not be defeated but shall stand good And so he said in our case that it is necessarily intended that this was also to begin after the Estate of Markham determined and for that good And he said that a man ought not to make a curious and captious interpretation of the Kings Patents for Talis Interpretatio injure Reprobatur And to the challenge that seemed unto him a principall challenge and this not being allowed where it ought to be allowed this is an error as it is said 8. of Assises 23. and for this error it seemes to him that the Judgement shall be reversed and to that he said he relied much upon the book of 11 H. 4. 25. which takes a difference between Debt and Trespasse for battery for the booke saith that a man may demand his Debt without giving occasion of any malice But Battery is an evill Action and there the book is resolved that it shall be a principall challenge and so he saith in Trespasse this being with force and Armes that c. And in 8. H. 5. in a Assise the Tenant challenges the array because he had an Action of Trespasse hanging against the Sheriff And there the array was affirmed because it appeares that the Defendant had brought this Action by Covin against the Sheriff which case proves as he said that if there be not any Covin this is a principall challenge and 38 H. 6. 7. accordingly and the case 28. Assise 11. where the Defendant in Assise challenged a Juror because he had an Action of Trespasse hanging against him and was outed by award and in 21. Ed. 4. 12. it is said where there is an apparent favour or apparent displeasure there shall be principall challenge and certainly though the Law may intend that a man may lawfully demand his right and without malice yet it appeares that the nature of men is perverse and froward and few Actions are begun without apparent displeasure especially
cited the book of 24 Ed. 3. Where a Tales was returned by the Sheriff of Middlesex and the party challenged the Jury because he sued the Sheriff for the death of his Servant and this was a principall challenge for in such case his life was in question the same Law in case of Maintenance and Champerty for the Law hath inflicted great punishment upon such Offences so these matters tend to utter subversion of his Estate and life but otherwise in Actions of Trespasse and so he concluded no principall challenge To the abatement of the Writ it seemes no Error First he conceived that there is no entry and for the reason that Crooke had given before that is because he entred to hunt and not to keep possession and hath not shewed any Warrant to kill the Buck and he cited the book of the 5. of Ed. 4. fol. 60. Where Babington brought an Assise of the house of the Fleete and hanging the Assise Babington came to the Jury within the house when they had the View with his Councell to shew Evidence for the view and this was not any entry to abate the Writ and so the entry to hunt is an entry for another purpose then an entry to keep possession not being by warrant as it is not found and for that no entry to abate the Writ But admitting that this had been an entry to abate the Writ yet being a thing which doth not abate the Writ without Plea and that cannot be pleaded as the case is he conceived was no Error but if it had been a thing which abated the Writ in Facto without Plea then to give Judgement upon a Writ abated is Error As if the party die hanging the Writ or if a woman sole brings an Assise and takes a Husband hanging the Assise or if the Plaintiff in a Assise be made Judge of Assise as the 15. of Assise in all these cases the Writ is abated in Facto without Plea But entry shall not abate the Writ without Plea and so it seemes to him no error But he conceived that there were two other errors for which he reversed the Judgement The first was that this Assise was de Libero Tenemento in Clepson and the plaint was of the keeping of the Park of Clepsom and of the Herbage and Paunage of the Parke aforesaid called Clepsom and made his Title for Herbage and Paunage of the Park of Clepsom and so he conceived that there is variance between the Plaint and the Title and Park of Clepsom and Clepsom cannot be intended one without speciall averment and for that he conceived it to be errour And to that he cited the case of twelve Assises two Where in attaint the first originall was of the Mannor of Austy and the Attaint was of the Mannor of Auesty and yet for that that the Attaint is founded upon the Record and not upon the Originall and the Record was of the Mannor of Auesty this was very good but the Booke saith that this variance between the Originall and the Record was sufficient to reverse the Record for errour and the case in 42 of Ed. 3. Where Scire facias was brought of Tenements in Eastgrave and the Fine was of Tenements in Deepgrave and for the variance the Writ abated and in the case of 5 Coke 46. Formedon was brought of the Mannor of Isfeild and the Tenant pleads in barr a recovery of the Mannor of Iffeild and this shall not be amended unlesse it appear that this is a misprision of the Clark or by other averment he cited also the case of 3 H. 4. 8. Scire facias upon garnishment in a Writ of Detinue of writings the Originall name John Scripstead and the Scire facias was made Iohn Shiplow and therefore agreed that he shall sue a new Scire facias so he said in the Principal case the Plaint being of Herbage and Paunage of Clepson Parke aad the title being at Clepsom Parke these shall not be intended to be the same Parke without averment and there in no averment in our case and for that such variance is such errour that shall reverse the Judgment The second errour for which he reversed the Judgment was that which was moved by Justice Crook that the Jury have not found any seisin of the Paunage for it seemed to him that a Horse could not take Seisin of paunage and for that he defined paunage and he sayd that Linwood title-Tithes saith the Paunagium est pastus Porcorum as of Nuts and Akornes of trees in the wood and Crompton saith that this is Pastus Porcorum and he saith that Paunagium is either used for Paunage or the Paunage it self and the Statute of Charta de Foresta saith that every Freeman may drive his Hoggs into our royall Wood and shall have there Paunage but he doth not say Horses or other Beasts but he conceived that if the Earle of Rutland had right in the Park that this had been sufficient seisin of Herbage and Paunage also for Hoggs will feed upon grass as well as upon Akornes and he cited the Book of 37 H. 6. saith that Seisin to maintain an Assise ought not to be of a contrary nature to the thing of which seisin is intended to be given but in one case only and that is where the Sheriff gives seisin of a Rent by a Twig or by a Clod of Earth and this is in case of necessity for the Sheriff cannot take the Money out of the purse of the Tenant of the Land and deliver seisin of that and for that he cited the case in 45 Ed. 3. Where Commoner comes to the Land where he ought to have Common and enters into the Land and the Lord of the Waste or the Grantor of the Common outs him he cannot have an Assise of his Common upon this outing for this was not any seisin of the Common so it is in this case the Horses cannot take Seisin of the Paunage and so there is no seisin or disseisin found by the Jury and then no Assise and this being after Judgment no abridgment may be of the Plaint and so for these last reasons he reversed the Judgment And at another day the case was rehearsed again and argued by Yelverton and Fenner Justices but I did not hear their Arguments insomuch that they spake so low but their opinions were declared by the cheife Justice and Yelverton affirmed the Judgment in all First he held that this entry shall not abate the writ Secondly admit that it is abated yet being between Verdict and Judgment shall not be assigned for errour Thirdly he held that no principall challenge Fourthly he held both the grants good Fifthly that Clepsam and Clipsam are all one and not such variance that shall make Errour And lastly that a Horse may well take Seisin of Paunage and Fenner agreed in all but he held that this was a principall challenge and not being allowed this
was Error and for this cause and another exception to the Record which was not much materiall he reversed the Judgment And at another day Flemming cheife Justice rehearsed the case and this argued and to the first matter he conceived First That it is no such entry that abates the Writ Secondly Admitting that it were yet this cannot be assigned for Errour And to the first matter he took this ground That every entry which may abate a writ ought to be in the thing demanded and for that he sayd if a man brings an Assise of Rent or common and hanging this Assise he enters into the Land this is not any Entry which will abate the Writ and he sayd that the Park and the keeping of the Park are two distinct things and for that the entry into one that is the Park will not abate the Writ for the keeping of that and to that which is sayd that he took a Fee that is a shoulder of a Buck that doth not make any matter for two reasons First he hath not shewed a Warrant he had to kill the Buck. Secondly the taking of the fee is no entring into the Office but the excercising of that but admit that this were an entry or the thing it self yet he sayd every entry into the thing shall not abate the Writ and to that he sayd that if this entry of the Earl of Rutland to hunt was no such entry that shall abate the Writ for his office was not to hunt and for that his entry being to another purpose it shall not be sayd an entry to abate the Writ and for that he cited a case which hath been cited as he sayd by Justice Yelverton that if a man have Common in the Land of J. S. between the Annunciation of our Lady and Michaelmas and the Commoner brought an Assise of his Common and at Christmas put in his Beasts and this shall not be any entry to abate his Writ for it cannot be intended for the same Common which case is agreed to be good Law and he cited the case put by Brooke in Assise of Freshforce before remembred Com. 93. Where hanging a Formedon the Tenant pleads in abatement of the Writ that the Demandant hath entred after the last continuance and upon the evidence it appears that many were cutting wood upon the Land and the Demandant comes into the Land to them and warnes them upon the perill that might ensue to them that they should do no more then they could do by Law and this was found no entry Also the case of 26. Assise before cited by Justice Crooke and he sayd that the Statute of Charta de Foresta chapter 11. willeth that every Arch-Bishop Bishop Earl or Baron comming to the King by his command and passing by his Forrest c. Was licensed to take one Beast or two by the sight of the Keeper c. Put case then that the King had sent for the Earl of Rutland and he had passed through this Park and had killed a Buck had this beene an entry to abate this writ Quasi diceret non for this was entry to another purpose so he sayd in the principall case the entry to hunt and so no entry to abate the Writ but admitting that this had been an entry which would abate the writ then let us see if this entry hath so abated the writ being Mesne between the Verdict and the Judgment it cannot be assigned for errour and to that he agreed the diversity before taken by Crooke and Williams where the writ is abated by Plea and without plea and he cited a Judgment in the Kings Bench between Jackson and Parker 2 Eliz. where in Ejectione firme the Plaintiff entred Mesne between Verdict and Judgment and this was assigned for Errour in the Exchequer Chamber and the Judgment notwithstanding affirmed and he sayd that if Memorandum had been made of it or if a Jury had found it and it had been prayed that that might be Recorded yet this had not been materiall and that that be not assigned for Errour And to the matter moved by my Brother Williams that there should be a variance between the plaint and the Title he conceived that there is no such variance that shall make the Judgment errronious and to that he examined the matter First that the Assise was of a Free-hold in Clepsom and his title is made of the parke of Clipson that that cannot be otherwise intended but that of necessity it ought to be the same park For first there is but one park by all the Record Secondly the plaint saith De parco predicto which hath reference to Clepsom park and there is but one park put in view by all the record Fourthly It shall be so taken according to the common speaking Fiftly when he hath made his plaint of the custody of the park of Clepsom and of the Herbage and paunage of the park aforesaid called Clepsom these words called Clepsom are but Idle and Trifles and that which is but Surplusage shall not annoy Also he said that J. and E. are letters which do not much differ in pronunciation and they are all one as I and he shall be pronounced as hi and he cited the Book of 4 H. 6. 26. Where in Debt variance was taken between the writ and the Obligation that is Quatuordecem pro Quatuordecim and this variance was not materiall but that the writ was awarded good and so he conceived that in this case the variance of Clepsom and Clipsom shall not be such a materiall variance that shall make the Judgment erronious and to the title First to Markhams grant that is where the Jury have found Quod ulterius concessit c. And doth not say Per easdem he held that good without scruple and this for the necessary relation that this had to any thing before granted for he sayd that this should be a strange and marvelous patent which begun in such a manner that is Et ulterius Rex concedit c. And there was not any thing granted before And for that he cited the case of 11 Ed. 4. 2. where Debt was brought upon an Indenture against the Abbot of Westminster and the Indenture was between the Abbot of the Monastry of the blessed Mary of Westminster and rehearsed divers Covenants for performance of which Covenants the Abbot of Westminster bound himself in twenty pound and doth not say that the aforesayd Abbot and yet good for it shall be intended the same Abbot for he is party to the Deed and the case of 10 H. 7. 12. Where in Assise of Common the plaintiff makes his plaint of Common appurtenant to his Free-hold in D. and shews for Title that he was seised of a Messuage and of a Carve of Land in D. to which the Common is appurtenant and that he and his Ancestors and all those whose Estates c. have used Common of pasture with ten Beasts and exception
taken to the title because he saith that he was seised and not saith that he is and yet good by this word Fuit for that shall be intended that he continues seised so he sayd that things which are necessarily to be intended though they be not so particularly expressed yet shall be good by Implication and so he concluded that this is no Error for which the Judgment shall be reversed And to the challenge he conceived that this is not any principall challenge and to that he put this difference that if a man brings an Assise of certain Land and hath an Action of Trespass hanging against the Sheriff for entring into the same Land there shall be a principall challenge to the Array but if it be for entry into other Land not in demand otherwise it is and what is principall challenge and what not he cyted the Bookes of 3 Ed. 4. 12. 6 Ed. 4. 1. 21 Ed. 4. 67. 14 H. 7. 1. 21. Ed. 4. 10. And to the point in question he cyted the Bookes before remembred by Crooke and Williams and no others and for that I omit to recite them and he agreed also that in actions which concern life Honesty Mayme Battery to say that he hath such action hanging against the Sheriff shall be a principall challenge but Trespass for entring into Land not for in Trespass there is no Land to be recovered also no damages but to the value of the Trespass And in Debt a man shall recover more then in Trespasse And yet it is agreed that this is no principall Challenge to say that he hath an Action of Debt hanging against the Sheriff as the Book of 11 H. 4. is which hath been remembred and for this I conceive it no principall challenge And to the seisin of the Paunages if a Horse may take seisin of that it seemes that yea for I conceive that the taking of seisin doth not consist in the eating or not eating of that of which the seisin is to be taken and for that he cited that if a man grant to me the Herbage and Paunage of his Parke and I come into the Parke and take the Grasse and Herbs into my hands or if I gather Akornes this is sufficient seisin for me to have Assise though that I do not eate the Grasse nor the Akornes and for that let us put the case that a man hath Herbage granted to him and he puts in his Beasts and before that they eate the grasse they are driven out none will deny but that that shall be good seisin for so is the Book of the 22. Assise 84. Where a man hath Common granted to him and he takes the Beasts of a stranger and puts them in and them forthwith drive out that shall be a good seisin of the Common to have Assise so that he said that the eating is not to purpose also he said Horses will eate Akornes as well as Cowes And he saith that in the Country where he inhabits being a Wood-land Country they will not suffer the Beasts to go into the Woods at a certaine time of the yeare and this is when Crabs are ripe for then their Beasts will eate Crabs and set their teethes an edge and then not being able to chew Akornes do swallow them whole and then those Ackornes being swallowed whole will grow in the Mawe of the Beast and so kill them And he saith that though that Horses be not so proper Beasts to take seisin of Paunage as Porkes are yet being put in for the same purpose if they are disturbed that shall be Seisin and Disseisin and it seemes to him that when things are granted to one that it shall not be strange to say that seisin of one shall be seisin of both and for that if a man grants all his arrable Land all his Meadow and all his Wood Livery and Seisin in one suffices for all but I conceive that this is in respect of the soyle which passeth and so are all of one self same nature and so he conceives that this is sufficient Seisin and Disseisin found to have Assise And lastly to the Title of the Earle of Rutland he said that this was good and to the Grants of the King he said two things are necessary in all Grants of the King that is a Recitall and a certainty and when a recitall shall be necessary and when not and he said that in all cases when a common person makes a Lease for years or for life and the reversion is conveied to the King if the King will make Estate to another he shall not recite this Lease for this not being of Record the King cannot take notice of it and so he shall not recite But in all cases when the King makes a Lease for life or for years and after will make a Grant to another he ought to recite the first Estate because that is of Record And Justice Yelverton as I heard of those which were next unto him put this case That if the King grants a Lease for yeares rendring Rent and after the King reciting the Lease grants that to another for years or grants the reversion to another and doth not recite the Rent which was reserved upon the first Lease that this second Grant shall be void for the not recitall And the cheife Justice cited one Phillpotts Case to be adjudged in the 2. of Eliz. That where the King made a Lease for one and twenty yeares and after reciting the said Lease grants the reversion to another and before that the second Letters Patents were sealed the first Lessee surrendred And said that the second Grant was adjudged void for the King intended to passe a reversion and now he shall have a Possession and all that which is said to be in case of Land Now let us see how it shall be in case of office and for that if a common person hath â—n office in Fee and grants that for life and after grants the Fee simple to the King and the King will grant that to another there he ought to recite the common persons Grant as well as if it had been his one Grant for there is not properly a reversion of an office as the Book cited by my Brother Williams sayd Secondly if the office be recited in Esse and be not in Esse the Grant is void as Blanyes Case is in the Lord Dyer 3 Eliz. 197. 47. And this sufficeth for recitalls Then for certainty of the Kings Grant it is said in the 2. R. 3. it is said that the Grants of the King ought to be made in certaine and for that where the King there Grants to Sir John Spencer that he shall not be Sheriff this was void for the incertainty of the place But if the Grant had been of such a County or such a County the Grant should be good Also there ought to be certainty of Estates as it is in 18. H. 8. Where the King gives Lands to
one and his Heires Males this is void for uncertainty of the Estate then it is so averred in our case if there be not sufficient recitall and certainty and to the recitall that is good without question for she recites that she hath granted that to Markham for ifâ— and Markham is yet alive and so the recitall good Then for the certainty he said that the rule is that if the certainty be declared by expresse words or if the King may reduce that to a certainty the Grant of the King shall not be defeated and for that he cited the case of Information of Mines Comment But if the King grant to me all Mines in the Land of J. S. There I shall have all Mines Royall for the Law saith the King cannot have other Mynes in the Soil of a Subject but Mines Royall and so there the Law supplies the Grant so that they be Mines Royall though not expressed in the Grant in certaine so he said in the principall case that the Queen hath expresly recited that she hath granted the Herbage and Paunage for life to Markham and that Markham was yet alive and after grants that to the Earle of Rutland and doth not say when that shall begin the Law saith that shall begin after the death of Markham for before that it cannot begin But if the Queen had exprest in the Letters Patents that this shall begin forthwith then this had been void as the Lord Gaudy said in Altonwoods Case 1 Coke fol. 51. And so he concluded the Title of the Earle of Rutland good So he affirmed the Judgement in all But Williams was very peremtory for the conceit of Paunage that it was not good Seisin But after Crooke Justice recanted his opinion of that and insomuch that there were three which concluded for the reversing of the Judgement And yet for every point there were three against two It was doubted if this Judgement should be reversed or not And they said that they would advise with the rest of the Judges and after that it was moved againe by Serjeant Nicholls in the next Trinity Tearme and Yelverton and the cheife Justices would have the Judgement affirmed but Williams Fenner and Crooke to be reversed and note well this President where Judgement was reversed and yet for every point there were three Contra two or foure Contra one see the first Judgement in the Common Bench Michaelmasse 6. Jacobi afterwards Termino Pasche 7. Jacobi 1609. In the Kings Bench. Trinity Colledge Case THE Case was this King Henry the eight Incorporated the Schollers of Trinity Colledge in Cambridge by the name of Masters Fellowes and Schollers Collegij Sanctae et Individuae Trinitatis in the Town and University of Cambridge and in the 6. Ed. 6. They made a Lease by the name of Master and Fellowes of Trinity Colledge in Cambridge leaving out the University And if this Lease were good or not was the question And Yelverton argued that this was not a good Lease and that for the misnaming of the Corporation And to that he said to every Corporation two things were incident That is name and place and if any of those fayl and be not certainly recited in a Lease the Lease shall not be good And he conceived that this Corporation is founded upon two places and that one of them That is the University is left out and for that cause the Lease is nothing worth for if a Corporation hath two names one of them cannot be omitted as it is in the first of Mary Dyer 96 97. and 4. Mary 140. and 150. 11. Eliz. Dyer 278. 35. H. 6. 5. and 6. No more then when it consists of two places one of them may be left out And for that if they had been incorporated by the name of Master and Fellowes of Trinity Colledge in Norfolke and Suffolke in a Lease they could not leave out Norfolke or Suffolke but both the places ought to be incerted And by him in the principall case if the Lease had been made by the name of the Master and Fellowes of Trinity Colledge in the Town and leave out the University of Cambridge without question this shall be void so here this being impliedly omitted shall be as strong as if it had been by expresse words excluded so in the making of every Corporation the intent of the Founder is to be considered and for that it seemes the intent of the King in placing that in both places was first to erect a Colledge and that to grace the Town and then he hath placed them in the University and this was for the instruction in good Arts and Learning and so for these benefits they have of both these places nor one nor the other may be left out And if the King had been incorporated by the name of Master and Fellowes of Trinity Colledge in Cambridge and in the Market place of Cambridge There though that the Market place was parcell of the Town of Cambridge yet it seemes to him that this cannot be left out for peradventure the Founder hath a speciall reason to place that there that is to have all things necessary for them more neer unto them Also where any stranger demands any possession of them in Precipe Quod Reddat or such like he ought to ensue them certainly and precisely Then a Fortiore where they depart with their possessions by their own Act there they shall not be unknowing of their one names And Walter of the inner Temple argued to the contrary and he conceived that the Lease is good and first he argued the ground which hath been taken of the other part that is that every corporation ought to be in a certain place and he conceived that there is a certaine place in this place that is the Town of Cambridge And to that that is said that this Corporation is founded upon two places he denied that all together for no more then one materiall Body may be but in one place Simul and Semel no more may it be in a Body Corporate which hath allwaies his resemblance to a Body naturall and for that he denied the case which hath been put of the other part of Norfolk and Suffolk And he cyted the opinion of the Lord Popham in Buttons Case in which the Lord North was Interested that a Corporation cannot be limited to a County as Probos Homines of such a County or Trinity Colledge in such a County but it ought to be restrained to some certaine place or one County or a Town But admit that the Corporation may be founded upon two places yet he faith that a University is not Locall but Personall And to this purpose he cyted two Records one in 48 H. 3. Which was this King H. 3. Intending to keep a Parliament at Oxford and knowing that the place was not sufficient to contain all those which should be there assembled and the Schollers together sent his Writ which was directed to the
Chancellor and University of Oxford commanding them that they should remove the University to such a place till the Parliament should be ended And after he sent his Writ to them againe which was directed to the Chancellor and University by which he wild that they should returne againe the Parliament being ended by which Writ he conceived that it appeares that the University was not Locall And this for two reasons First insomuch that this Writ was directed to the Chancellor and University and every Writ is directed to a person and not to a place Secondly the Writ that he should move and remove the University which is a thing impossible to do if it should be a place The other Record was 49. Ed. 3. And this declares that there was contention between the Schollers of Cambridge and the Townesmen there and the Schollers went to Northampton and there they made a Petition to the King that they might erect a University and the King sent his Writ to the Maior commanding him that he would not suffer the Schollers to remaine there and that he would there erect a University which proves that a University may be erected at the Kings pleasure and so cannot a place then admitting that a Corporation may consist upon a place yet the University not being a place that shall not be any prejudice to omit it And he cited a case which was adjudged as he said in the 26. of Eliz. which was thus The Deane and Canons of Winsor made a Lease for years by the name of Deane and Canons of new Winsor And this was adjudged no variance and the case of 5. Ed. 4. 5. of the Abbot of Saint Maries in York which see there and he said the Lord Norths Case was thus That Christ Church in Oxford was incorporate by the name of Deane and Canons of Christ Church in Oxford And they made a Feoffment by the name of the Deane and Canons of Christ Church in the University of Oxford and adjudged a good Feoffment And he said that in the argument of this case it was said by Gaudy that if a corporation were made of Dale and after Dale is made into a City they may make a Lease by the name of a City of Dale and the Lord Popham as he said put these cases That is that if a Corporation be founded of Oxford And that they made a Lease by the name of c. In the Precincts of Oxford this shall be a good Lease yet a thing may be within the Precincts of another place and not in the place and in the 32. Eliz. was the case of one Jermin and Wylles that if a Corporation be made by the name of Deane and Chapter of Saint Maries in Exceter is good But they agreed in this case as he said that if it appeare that they cannot be intended allone otherwise it should be and he conceived in the principall case that it is not necessarily that it should be intended the same place and for that he conceived in all those cases that the Lease shall be good and he said that there were neer two hundred Leases upon the same Title for which c. And after this it was argued in Michaelmasse Tearme 1609. 7. Jacobi by the Justices And the opinion of Crook and Williams Justices was that the Lease was good But Fenner and Yelverton to the contrary and Flemming cheif Justice argued that the Lease was not good but he said this should not be absolutely his opinion but moved a composition betwixt the parties But insomuch that the matter was not compounded in the same Michaelmasse Tearme Judgement was praied And Williams Justice brought into the Court a decree out of the Court of Wards concerning the Case which is put in 7. Eliz. Dyer and 1. Coke Porters Case And upon the decree appeares that an Information being exhibited there against the Master and fellows of Trinity Colledge in Cambridge concerning certain Land they made Title to by a Devise made to them by the name of Masters Fellows and Schollers of Trinity Colledge in Cambridge and this Devise was made four and five of Phil. and Mary and the Decree recyted that upon this were two great Doubts and Questions conceived First If this Devise were good and also by the Statute of 1. and 2. Phil. and Mary which inabled to devise to spirituall Corporations And the second point was That where they were incorporated by the name of Master Fellows and Schollars De sancta and Individua Trinitate in the University and Town of Cambridge if this devise made to them by the name of Master Fellowes and Schollers of Trinity Colledge in Cambridge was good and the Decree rehearsed that the opinion of all the Justices in England was First That it was a good Devise within the Statute of one and two Phillip and Mary as it is reported in the Booke before cited Secondly That this was not such a mis-naming of the Corporation which made the Devise voyd and Williams Justice produced this Record as he sayd to fortify his opinion And he conceived no difference between a Grant and a Devise nor no difference when an Estate or conveyance made unto them and conveiance made by them and for that he cited the Case in the 19 H. 8. in Dyer where if a man devise Land to the Abbey of Saint Peters where the foundation is Saint Paul this is a voyd devise and so in a grant And Crooke Justice to the same Intent Yelverton Justice to that Decree shewed by my Brother Williams I conceive a great Difference First a Will and a grant for in case of a Will it sufficeth if they be described by a name by which the Intent of the Devisor may be sufficiently known and a man is intended to be Inops consilij at the time of the Devise made and for that that he hath not any to instruct him oâ— the precise name of the Corporation for which c. And Fenner Justice to the same intent and if a man devise to one and his Assignes as it is a Fee-simple in case of a Devise so it is not in grant and so devise to one and his Children is an Estate Tayl in case of Devise but not in a grant Flemming cheife Justice to the same intent and to the Decree he sayd that this is as good Law as ever he heard in his life but yet he conceived also that there is a great difference between a Grant and a Devise as if a man devise to a Monke the Remainder over this is a good remainder so devise to one the Remainder over and the particular Tenant refuse this is good in a Devise contrary in grant and to the case which is put by my Brother Williams out of the 19 H. 8. Dyer there is a great difference where there is not any such person at all to take there the Devise shall be void as where the Devise to the Abbot of Saint Peter where
Lessee for years or life surrender before the performance of the condition the Fee doth never increase as it is 14. H. 8. 20. and the Lord Chandois Case 6 Coke But the Estate tayl remaines after the condition performed and then hath the Fee dependant upon the Estate tayl and that there is a necessity that there shall be an office as it was in Nicholls Case in the Com because of the right and that after the condition performed then the Fee shall vest Ab Initio and this corporates together partly by the Letters Patents and partly by the performance of the condition and so it is in Butler and Bakers case that it is not a Grant in futuro but one immediate Grant to take effect In futuro see 2. H. 7. for the execution of Chantrey and Grendons Case in the Com. and 2. H. 7. If the King grant Land to J. S. for life the remainder to the right Heires of J. R. which is in life the remainder is good as well as in case of a common person and so he seemed that Judgement shall be given for the Plaintiff Walmesley Justice agreed that it shall be remainder and not reversion as if Lands begin to the Husband and the Wife and to the Heires of the Body of the Husband the Husband dies this is a remainder in the Heires Males and not a reversion for it cannot grow higher and it was not in the King as one distinct Estate before the Grant and Formedon in remainder lieth for it and though it be misrecited yet it shall be good and ayded by the Statute of Misrecitalls and grant of a thousand is suffered to convey the reversion of a thousand by the common Law and if the recitall were that it was a reversion depending upon the Estate tayl it was good without question and the King may grant five hundred reversions if he will and that the last Damus is ex certa scientia et mêre motu nostris Damus et concedimus that if the Patentee pay twenty shillings Tunc sciatis quod nos de ampliori gracia ea certa scientia et mero motu nostris concedimus c. and that the word Volumus will amount to a Covenant or a Release as 32. H. 6. The King by his Patent by these words Nolent that he shall be impleaded and this amounts to a release and so words which intends expresly words of Covenant may be pleaded as a Grant in case of the King as it is 25 Ed. 4 So is a common person license another to occupy his Land this amounts to a Lease of Land if the time be expressed so if a man grants to another that he shall have and injoy his Land to him and his Heires that by that Fee passeth And if the King grant reversion to begin at Michaelmasse the Grant is void for that it is to begin totally at Michaelmasse and doth not looke back to any precedent thing But if it relate to any precedent Act then that shall be good by relation and shall passe ab Initio see Com. Walsinghams Case 553. b. that in such case the performance of the condition divests the Estate out of the King and there is no difference in this case betwixt the King and a common person and agreed in the case of Littleton Where a man makes a Lease for yeares upon condition to have Fee that the Fee shall not passe till the condition be performed and with this agrees 2. R. 2. But if a man makes a Charter of Feoffment upon condition that if the Feoffee injoy the Land peaceably for fifteen years that the Feoffment shall be void In this case the Fee-simple determineth by the performance of the Condition and in this case the Fee passeth ab Initio by the Livery as in 10. Assise 18. Assise 1. 44. Assise 49 Assise And he agreed that the words Habeat et Teneat the Reversion passes and this is good Fee-simple and this refers to the first Damus et Concedimus and so concluded that he seemed that Judgement shall be given for the Plaintiff Coke cheife Justice accordingly and he conceived that there are two questions upon the substance of the Grant And to the first objection that hath been made that is that reversion was granted and increase of an Estate cannot be of a reversion and in all these cases which have been put they are of an Estate in possession and so is the case of Littleton also and he agreed that it shall not be good if it be not good ab Initio that though there be not other words then Reversionem predictam That it shall be good And to the second point upon the former He conceived that the Grant is but a Grant and that the condition is but precedent Limitation when the Estate of Fee-simple shall begin and so it is said by Montague in Colthurst and Brinskins Case in the Com. And further he saith that there are four things necessary for increasing an Estate First that it ought to be an Estate upon which the increasing Estate may increase Secondly the particular Estate ought to continue for otherwise it is grant of a reversion in Futuro Thirdly That the Estate which is to increase ought to vest by the performance of the Condition for if there be disturbance that it cannot then vest then it can never vest Foutthly that both the Estates as well the particular Estate as the Estate which is to increase ought to have their beginning by one self same Deed or by diverse Deeds delivered at one self same time And to the first and to prove that he cyted 44 Ed. 3. Attaint 22. Lessee for yeares upon condition to have Fee granes his Estate the Fee doth not increase upon the performance of the condition for then it shall passe as a Reversion and so the particular Tenant surrenders his Estate as it is sayd 14. H. 8. For if the Privity be destroyed the Fee will never increase but there is no such â—ycity but that if the substance of the Estate remains though it doth not remain in such form as it was at the first Reversion the Estate may well increase as if Lands be given to the Husband and wife and to the Heirs of the Husband upon the Body of the Wife to be begotten the Wife dies and the Husband is Tenant after possibility of Issue extinct yet he may well perform the condition for the Estate remaines in substance and with this agrees 20 H. 6. Ayd and so it is if a Lease be made to two for years upon condition to have fee one dies the other may perform the Condition and shall have Fee-simple as it is agreed by 12. Assise 5. the reason is that the privity remaines and the Estate also in substance Thirdly As to that also it seems that it ought to vest upon the performance of the condition which is the time limited for the beginning of the Estate and if it do not vest
lawfull for the Inne-Keeper as to the Person of his Guest ought to receive him and he is compellable to do it as it is 5 Ed. 4. 2. and 22 Ed. 4. And for his Goods he ought to keep them safe and of the other part the Guest ought to pay the Inne-Keeper as well for the meat of his Horse as for his own as it is 28 H. 6. And it should be inconvenient that he should be put to his Action for c. And for preventing this mischeife the Inne-keeper may detaine the Horse of his Guest till he be satisfied and it seems to Coke cheife Justice that an Inne-Keeper is not chargeable with the Goods of any which is not lodged in the Inne and the Goods must be lost by default of the Inne-Keeper and that the Inne-Keeper is not compellable to receive the Horse of any if the Master be not lodged and if a Neighbour of the Inne-Keeper come to the Inne-Keeper he shall not answer for the Goods for he is not lodged but as a Tipler and so if an Inn-Keeper invite any to his House Ad Praudendum aut Caenandum the Inne-Keeper shall not be charged as it 35 H. 8. For it was agreed that the Guest ought to averr that he was lodged in the Inne And Foster Justice sayd that it was adjudged in the case of one Perin of the Black Swan in Holborne that by the custome of London an Inne-Keeper may sell a Horse which remaines with him to be Kept and hath eaten more then he is Worth and so it was sayd by Foster that where a Haberdasher of London came to an Inne and there sold divers Hats and after went to a Faire and left divers other Hats in the Inne the which in his absence were stollen and the Inne-Keeper should not answer for them for that that the Haberdasher was not lodged in the Inne at that time and this was the Case of one Coley in the 25. of Eliz. But Sir Edwin Sands lodged in an Inne and there left a Trunck and went to meet the Kiug the Trunck remaining in the Inne in his absence it was stollen and the Inne-Keeper was charged Quere the Difference if the Owner desire that his horse should go to grass the Inn-Keeper shall not answer but if an Inn-Keeper receive the horse and of his own head puts the horse to grass and he is stoln there the Inn Keeper shall be charged and though the Inne-Keeper deliver the Key of the Chamber to the Guest yet the Inne-Keeper shall answer for the goods which are stollen for it is an implyed promise of every part that is of the part of the Inne-Keeper that he will preserve the Goods of his Guest and of the part of the Guest that he will pay all duties and charges which he caused in the house and that the Inne-Keeper may retain without custome by the Common Law the Horse of the Guest as a pledge till he be satisfied of all dues and so a Tayler and Goods taken in Withernam But the Inne-Keeper cannot work the horse of his Guest in such a case nor sell his Goods though that they be Bona peritura Trinity 7. Jacobi 1609. In the Common Bench. Colledge of Phisitians Case THOMAS Bonham brought an Action of false Imprisonment against Doctor Alkins and divers other Doctors of Phisicke The Defendants justified that King H. 8. Anno Decimo of his Reigne founded a Colledge of Phisitians and pleaded the Letters Patents of their Corporation And that they have Authority by that to chose a President c. as by the Letters Patents c. and then pleads the Statute of 32 H. 8. chapt 40. And that the said Doctor Alkins was chosen President according to the said Act and Letters Patents and where by the said Act and Letters Patents it is provided that none shall practise in the City of London or the Suburbs of that or within seven miles of the said City or exercise the faculty of Phisicke if he be not to that admitted by the Letters of the President and Colledge sealed with their common Seale under the penalty of a hundred shillings for every Month that he not being admitted shall exercise the said faculty further we wiland grant for us and our Successors that by the President and Colledge of the Society for the time being and for their Successors for ever that they may chose foure every yeare that shall have the overseeing and searching correcting and governing of all in the said City being Phisitians using the faculty of Medecines in the said City and other Phisitians abroad whatsoever using the falculty of Phisicking by any meanes frequenting and using within the City or Suburbs thereof or within seven miles in compasse of the said City and of punishing them for the said offences in not well executing making and using that And that the punishment of those Phisitians using the said faculty so in the premisses offending by Fines Amercements Imprisonments of their Bodies and by other reasonable and fitting waies shall be executed Note the preamble of these Letters Patents is Quod cum Egregij officij nostri munus arbitremur ditionis nostrae Hominum selicitati omni ratione Consulere Id autem vel inprimis fore si improborum conaminibus tempestave occurramus apprime necessarium fore duximus improborum quoqur hominum qui medicinam Magis avaritiae snae causa quam ullius bonae conscientiae fiducia profitabuntur undi Rudi et credulae plebi plurima incommoda oriuntur audaciam compescere And that the Plaintiff practised in London without admission of the Colledge and being Summoned to appeare at the Colledge and examined if he would give satisfaction to the Colledge according to the said Letters Patents and Statute he answered that he had received his decree to be Doctor of Phiâ—ck by the University of Cambridge and was allowed by the University to practise and confest that he had practised within the said City and as he conceived it was lawfull for him to practise there that upon that the said President and Commonalty fined him to a hundred shillings and for not paying of that and his other contempt committed him to Prison to which the Plaintiff replied as aforesaid and upon this demurrer was joyned And Harris for the Defendant saith that this hath been at another time adjudged in the Kings Bench where the said Colledge imposed a Fine of five pound upon a Doctor of Phisick which practised in London without their admission and for the non payment of that brought an Action of Debt and adjudged that it lay well and that the Statute of 32. H. 8. extends as well to Graduats as to others for it is generall and Gradiots are not excepted in the Statute nor in the Letters Patents and all the mischeifes intended to be redressed by this are not expressed in that and the Statute shall not be intended to punish Imposters only but all other which practise without examination and
all their Study is practise and that if they have no practise of themselves then they attend upon others which practise and apply themselves to know the nature of Simples And to third objection that in London ought to be choyce men for the Statute appoints that they shall be examined by the Bishop and Deane and four others at least and for that there is a more strict course for them then in other places to that it is agreed But he said that in the University there is a more strict course then this for here he ought to be publickly approved by many after that he hath been examined and answered in the Schooles to diverse questions and allowed by the Congregation house And 35. H. 6. 55. Doctor is no addition but a degree quia gradatim et progressâ—one Doctrine provenit to that and that Doctor is teacher and that he was first taught by others as Scholers afterwards he is Master and Doctor dicetur a docendo quia docere permittitur and they are called Masters of their faculty and that the Originall of Doctor came of the Sinagogue of Jewes where there were Doctors of Law and it appeares that they had their ceremonies in time of H. 1. And when a man brings with him the Ensigne of Doctrine there is no reason that he should be examined againe for then if they will not allow of him he shall not be allowed though he be a learned and grave man and it was not the intent of the King to make a Monopoly of this practise And to the second point that he propounded it seemes that the Justification is not good which is Quia non comperuit upon Summons he was amerced and ordered that he shall be arrested and being arrested being examined if he would submit himself to the Colledge he answered that he was a Doctor and had practised and would practise within the sayd City as he conceived he might lawfully do and for that shewing of this case he was committed to prison and he conceived two things upon the Charter First That it doth not inhibit a Doctor to practise but punisheth him for ill using exercising and making and may imprison the Emperick and Imposter and so prayed Judgment for the Plaintiff and after in Hillary Tearm in the same year this case was argued by all the Justices of the Common Bench and at two severall dayes and the first day it was argued by Foster Daniell and Warburton Justices at whose Arguments I was not present but Foster argued against the Plaintiff and Daniell and Warburton with him and that the Action of false imprisonment was well maintainable And the second day the same case was argued again by Walmesley Justice and Coke cheife Justice and Walmesley argued as followeth that is that the Statute of 3. H. 8. was in the negative that no person within the City of London or seven Miles of that take upon him to exercise or occupy as Physitian or Chirurgion c. And he doth not know in any case where the words of the Statute are negative that they admit any Interpretation against that but one only and that is the Statute of Marlebridge chapter 4. Which provides that no Lord shall distrain in one County and the beasts distrayned drive into another County in which case though that the words are uegative yet if the Lord distrain in one County he may drive the Beasts to his Mannor in another County of which the Lands in which the distresse was taken were held but it is equity and reason in this case that the Statute should admit such exception for it is not of malice but for that that the Beasts may remain within his Fee but in the principall case there is not the like reason nor Equity And also the King H. 8. in his Letters Patents recites as followeth that is Cum Regij officij nostri munus arbitremur ditionis nostri hominum felicitati omni ratione consulere id autem vel imprimis fore si Improborum conatibus tempestive occurremus apprime necessarium duximus improborum quoque hominum qui medicinant magis avaritiae sue causa quam ullius bonae conscientiâ— fiducia profitebantur c. By which it appears that it is the Office of a King to survey his Subjects and he is as a Phisitian to cure their Maladies and to remove Leprosies amongst them and also to remove all fumes and smells which may offend or be prejudiciall to their health as it appears by the severall Writs in these severall cases provided and so if a man be not right in his Wits the King is to have the Protection and Government of him least he being infirme wast or consume his Lands or Goods and it is not sufficient for him that his Subjects live but that they should live happyly and discharges not his Office if his Subjects live a life but if they live and flourish and he hath care as well of their Bodyes as of their Lands and Goods for Health for the Body is as necessary as vertue to the minde and the King H. 8. to express his extraordinary care of his Subjects made the said Act in the third year of his Reigne which was the beginning of his Essence to that purpose and by the Common Law any Phisitian which was allowed by the University might practise and exercise the sayd faculty within any place within England without any dispensation examination or approbation of any but after the making of the sayd Act made in the third year of King H. 8. none may practise exercise or occupy as Phisitian or Surgion within theCity of London and seven miles of that if he be not first examined approved and admitted by the Bishop of London and the Dean of Paules for the time being calling to them foure Doctors of Phisick or Chirurgions c. And that no practiser may occupy or exercise the sayd faculty out of the sayd Precincts if he be not first examined approved and admitted by the Bishop of the Diocess or in his absence by his Vicar generall every of them calling unto him such expert persons in the said faculty as their discretions thinks convenient and the reason of this difference as he conceived was for that that in this City and the sayd Precincts the King and all his Councell and all the Judges and Sages of the Law and divers other men of quality and condition live and continue and also the place is more subject unto Infection and the Heir more pestiferous and for that there is more necessity that greater Care diligence and examination be made of those which practised here in London and the precincts aforesayd then of those which practise in other places of the Realm for in other places the People have better aire and use more exercise and are not so subject to Infection and for that there is no cause that such care should be used for them for they are not in such danger and
every Knight and that diverse of those Fees were received and this office being litigious were delivered to be detained in Deposito and to be delivered to him which was Officer and the plaintiff brought an Action by the name of Chester as Officer and recovered those Fees and this was resolved good Seisin and also that Seisin after the grant of the Office and before the investing of the Patentee by the Marshall was good for the Investing was but a ceremony it was also resolved that where an office extends to all the parts of England and that here an Assise doth not lie in any County though that the dissesin were made in one County but the Assise be brough for the profit of the office in one County and not for the office it selfe 43. Ed. 3. Feoffments and Deeds That by Grant of the profits of a Mill and Livery the Mill it selfe passes so that taking of the profits is dissesin of the office also it was objected that the Demandant was no officer for though that he hath a Patent of it yet he was not Invested nor Installed in the office which appeares to the Marshall and for that he was no Officer and so hath no cause to have Action And that this is an office which is incident and annexed to the office of Earle Marshall and though that he be not Earle Marshall yet there are Commissioners have his power and authority and for that the Investing and Instalment of the Plaintiff in the said office appeares to the said Commissioners but it was resolved cleerely by all the Justices that the Demandant was Officer by the Kings Grant without any Installation or Investing and that this without that all the Fees and Profits of the office appertayning to him and that the Investing and Installation was but a ceremony in the same manner as if the King hath a Donative and gives that to another the Donee shall be in actuall possession by the gift without any Induction or other ceremony But admitting that the office were annexed to the office of Earle Marshall then it was agreed that the Commissioners cannot give it as the cheife Justice of the Common â—ench hath divers offices appertaining to his place and he may dispose of them But if he die the King in time of vacancy nor the most ancient Judges cannot give or dispose of any of them being void as it appeares by Serrogates Case Eliz. Dyer And so the cheife Justice is made and allwaies hath been made by Patent and so are the other Justices and for that they cannot be made by Commissioners and so the cheife Justice of England hath all times been made by Writ and for that cannot be made by Patent nor by Commission And so in the case at the Barr though that the Commissioners have the power and authority of the Earle Marshall yet they are not Earle Marshall it was also objected that the Fees were not due to the Plaintiff for that he did not attend But to that it was answered and resolved that the Fees were due to the office and for that non attendance of the office was no forfeyture of the Fees And upon these resolutions the Recognitors found for the Demandant according to the direction of the Court. Trinity 7. Jacobi 1609. In the Kings Bench. Godsall GODS ALL and his Wife The Proclamations of the Fyne were well and duly entred in the Originall remaining with the Chirographer But in the Transcript with the Custos brevium was error and it seemeth that this notwithstanding the Fyne was good but the Transcript was amended Trinity 7. Jacobi 1609. In the Kings Bench The Town of Barwicke THE King which now is by his Letters Patents Incorporated the Mayor Bayliffs and Burgesses of Barwicke and granted to them the execution of the Returne of all Writs And after a Writ of Extendi facias was directed to them and they made no returne of that and upon this was the question if that shall be executed by them or by the Sheriff of Northumberland And it seemed to Nicholls Serjeant that argued for the Plaintiff in the extent that desired execution and the returne of that that they ought to make execution and returne for it seemes to him that this was English and that this appeares by the Act of Parliament by which the Incorporation was confirmed and so it appeares also by the Letters Patents of the King by which the Incorporation is made for if it were not English neither the Letters Patents nor the Act of Parliament are sufficient to make Incorporation of that and also they certified Burgesses to the Parliament of England And the Kings Bench sent Habeas Corpus to it and for the not returne of that inflicted a Fyne upon the Corporation See 21. Ed. 3. 49 and 1. Ed. 4 10. But Hutton Serjeant seemed to the contrary and that they ought not to make execution for he said it is a part of Scotland and not part of England and it was conquered from that and it was a Sherifwicke and hath the same priviledges of ancient times which they now have by their new Grant See 24 Ed. 1. and 2. Ed. 2. Obligation c. That one Obligation dated there shall not be tryed in England and also that it is not within the County of Northumberland nor part of it nor the Sheriff of Northumberland cannot meddle in it see 2. H. 7. 31. 26. H. 6. 23. and it is adjourned It seemes that Jacob and James are all one name for Jacobus is-Latine for them both but Walmesley conceived that if he be Christened Jacob otherwise it is as if one be Christened Jacob and another James then they are not one selfe same name Note that Coke cheife Justices said that if Commissioners by force of Dedimus potestatem take a Fine of an Infant that they are Fynable and ransomable to the value of their Lands and that this shall be sued in the Star chamber Trinity 7. Jacobi 1609 In the Common Bench. Robinson RObinsons Case A man devises Lands to his Wife for life the remainder to his Son and if his Son dies without Issue not having a Son that then it should remaine over and it seemed that this it a good Estate tayl and it was adjudged accordingly If a man makes a Lease for three yeares or such a small Tearme to his Son or Servant to try an Ejectione Firme or if it be made to another Inferion by a Superior which cannot countenance the Suit it shall not be intended Maintenance nor buying of Tytles which shall be punished Trinity 7 Jacobi 1609. In the Common Bench. NOte an Attorney of the Common Bench was cited before the High Commission and committed to the Fleet for that he would not swear upon Articles by the Commissioners ministred and Habeas Corpus was awarded to deliver him and a Prohibition to the Court of high Commission see 1. and 2. Eliz. Scroggs case
charge to the King and to the Common Wealth and the execution of Writs may be prejudicall and penall to the Sheriff himselfe And for that he may well provide that he shall have notice of every execution which are most Penall And also in all the Indenture now made he doth not constitute him to be his under Sheriff but only for to execute the Office and for these reasons he seemed the Obligation is good and demands Judgement for the Plaintiff But it seemes to all the Court that the Covenant is void and so by consequence the Obligation as to the performance of that void but good to the performance of all other Covenants And Coke cheif Justice said that the Sheriff at the Common Law was elligible as the Coronor is and then by the death of the King his Office was not determined and also it is an intire Office and though the King may countermand his Grant of that intirely yet he cannot that countermand by parcells and also that the under Sheriff hath Office which is intire and cannot be granted by parcells and this Covenant will be a meanes to nourish bribery and extortion for the Sheriff himselfe shall have all the benefit and the under Sheriff all the payn for he is visible the under Sheriff and all the Subjects of the King will repaire to him and the private contracts between the Sheriff and him are invisible of which none can have knowledge but themselves And Warburton sayd that in debt upon escape c. are against the Sheriff of Notingham he pleaded Nihil debet and gives in evidence that the Bayliff which made the Arrest was made upon condition that he should not meddle with such executions without speciall warrant of the Sheriff himselfe and his consent but it was resolved this notwithstanding that the Sheriff shall be charged in and in the principall case Judgement was given accordingly that is that the Covenant is void Note that the Sheriff of the County of Barkes was commited to the Fleete for taking twenty shillings for making of a warrant upon a generall Capias utlagatum for all the Justices were of opinion that the Sheriff shall not take any Fees for making of a warrant or execution of that Writ but only twenty shillings and foure pence the which is given by the Statute of 23. H. 6. for it is at the Suit of the King But upon Capias utlagatum unde convictus est which is after Judgement it seemes it is otherwise A man grants a Rent to one for his life and halfe a yeare after to be paid at the Feasts of the Anunciation of our Lady and Michaell the Archangell by equall portions and Covenants with the Grantee for the payment of that accordingly the Grantee dies 2. Februarâ—… and for twenty pound which was a moyity of the Rent and to be payd at the anunciation after the Executors of the Grantee brings an Action of Covenant and it seems it is well maintainable And Coke cheife Justice sayd That if a man grants Rent for anothers life the Remainder to the Executors of the Grantee and Covenant to pay the Rent during the Tearm aforesayd this is good Collective and shall serve for both the Estates and if the Grantee of the Rent grant to the Tenant of the Land the Rent and that he should distrain for the sayd Rent this shall not be intended the same rent which is extinct but so much in quantity and agreed that when a Rent is granted and by the same Deed the Grantor covenants to pay that the Grantee may have annuity or Writ of Covenant at his Election Michaelmas 7. Jacobi 1610. In the Common Bench. Waggoner against Fish Chamberlain of London JAMES Waggoner was arrested in London upon a Plaint entered in the Court of the Maior in Debt at the suit of Cornelius Fish Chamberlain of the sayd City and the Defendant brought a Writ of Priviledge returnable here in the Common Pleas and upon the return it appears that in the City of London there is a custome that no forrainer shal keep any shop nor use any Trade in London and also there is another Custome that the Maior Aldermen and Commonalty if any custome be defective may supply remidy for that and if any new thing happen that they may provide apt remedy for that so if it be congruae bonâ— fidei consuetudo rationi consentiae pro communi utilitate Regis civium omnium aliorum ibidem confluentium and by Act of Parliament made 7 R. 2. All their customes were confirmed and 8 Ed. 3. The King by his Letters Patents granted that they might make By-Laws and that these Letters Patents were also confirmed by Act of Parliament and for the usage certified that in 3 Ed. 4. and 17. H. 8. were severall acts of Common Councell made for inhibiting Forrayners to hold any open shop or shops or Lettice and penalty imposed for that and that after and shewed the day in certain was an Act of Common counsell made by the Mayor Aldermen and Commonalty And for that it was enacted that no Forrayner should use any Trade Mistery or occupation within the said City nor keep any Shop there for retayling upon payn of five pound and gives power to the Chamberlain of London for the time being to sue for that by Action c. in the Court of the Mayor in which no Essoyn nor wager of Law shall be allowed and the said penalty shall be the one halfe to the use of the said Chamberlain and the other half to the poor of Saint Bartholomewes Hospitall And that the Defendant held a shop and used the Mistery of making of candles the seventh day of October last and for that the Plaintiff the ninth day of the same month then next insuing levied the said plaint And upon this the Defendant was Arrested and this was the cause of the taking and detaining c. And upon argument at the Bar by Serjeant Harris the younger for the Defendant and Hutton for the Plaintiff and upon sollemne arguments by all the Justices Coke Walmesley Warburton Danyell and Foster it was agreed That the Defendant shall be delivered and not remanded And the case was devided in to five parts The first the custome Secondly the confirmation of that by Act of Parliament Thirdly the grant of the King and the confirmation of that by Act of Parliament Fourthly the usage and making of Acts of common councell according to this Fiftly the Act of common councell upon which the Action is brought and upon which the Defendant was Arrested And to the first which is the custome it was also said that this consists upon three parts That is first if any custome be difficult Secondly if it be defective Thirdly if Aliquid de novo emergit The Mayor Aldermen and Commonalty Possunt opponere remedium and that there are foure incidents to that remedy First it ought to be Congruum Retione
but hath nothing in the Soyl according to the 14. H. 2. and 3. H. 6. 45. Ives case 5. Coke 11. So if a man make a feoffment of land except the Woods all woods are except by that and if Woods be cut and after grow againe in the same place this is also excepted But if woods after grow in another place this shall not be excepted for it was no wood in Esse at the time of the feoffment so if a man grants to another to dig Coles in his Soyl this is but to take profit and the Soyl doth not passe as it is agreed in 11. Eliz. Dyer 245. And it was said by Hutton Serjeant that he had seen an Ejectione Firme brought upon a Lease of Vsura terra But it was agreed by Coke cheife Justice and Foster that the Statute of 22. Ed. 4. chap. 7. was repealed by the Statute of 35. H. 8. for this is the negative and for that is repeal of a former Statute but if the last had been in the affirmative otherwise it should be and it was also agreed that this was not within the Statute of 35. H. 8. for that appoints of what age the wood shall be when it shall be inclosed and by this recompence is given to the Commoner but here it is not averred by pleading of what age this wood was which was inclosed and for that it was adjudged that the Action is not maintainable against the Commoner see Pasche 8. Jacobi for another argument at the Bar and also by the Judges Hillary 7. Jacobi 1609. In the Common Bench. Vivion against Wilde A Man was bound in an Obligation to another with Condition to stand to abide and performe the award of two Arbitrators and before the award by his writing the Obligor revoked the authority of one of the Arbitrators And it was agreed by all that this Obligation is become single without Condiion and yet it was not pleaded that the Arbitrator had notice of the revocation before the award made And yet for that it was pleaded that Revocavit it was agreed that that implies notice for without notice it is no revocation But it was agreed that if a man submit himselfe to the award of another and after he revokes his authority But before the Arbitrator had notice of that he makes the award the award is good and shall be performed so if a man make a Feoffment and Letter of Attorney to make Livery And before Livery made he revokes the power of the Attorney But before notice the Attorney makes Livery this is good but if the Feoffor makes a Lease or feoffment to another before the Livery made by the other this is a Countermand in Law and shall be good without notice for Fortior est dispositio legis quam hominis But where a man makes actuall revocation of the authority and before notice the other executes his authority and in pleading the other pleades Quod revocavit the other party may reply Quod non revocavit and give in evidence that he hath no notice of that before the execution of his authority and this is good for without notice it is no revocation where revocation is the act of the party The case is entred Trinity 7. Jacobi Rotulo 2629. Vivion against Wild. Hillary 7. Jacobi 1609. In the Common Bench. Smallman against Powys A Man made a Lease for life rendring Rent and after the Lessor by Indenture in consideration of fifty pound deviseth and granteth the Reversion to have from the day of the date for 99. yeares rendring a Rent also which was lesse then the first Rent and the Grantee of the reversion destraines for the rent reserved upon the Lease for life being behind and the sole question in this case was if the reversion shall passe without Attornment and it was said that in all cases where a use may be raised by the Common Law and that it shall be performed by order of Chancery that in these cases the use shall be executed by the Statute of 27. H. 8. of uses and one case was cyted by Harris Serjeant 14. and 15. Eliz. where the Brother was Tenant in tayl the remainder to his Sister in tayl the Brother by Deed which was Indented in parchment but made in the first person and no mention of Indenting in the Deed and the Deed was Inrolled withâ—… three moneths and after Livery and Seisin was made and it wâ—… adjudged that the Deed enures as a Bargaine and Sale and that nothing passes by the feoffment so that it was no discontinuance but that the Sister might enter after the death of her Brother without Issue Coke cheife Justice said that it was a good Bargain and Sale though that the words Bargain and Sell were not in the Deed but he conceived if a Letter of Attorney be incerted in the Deed so that it may appear that the intent of the parties is that it should not enure as a Bargain and Sale but as a feoffment there it is otherwise so if a man covenants to stand seised to a use if it be in consideration of money and the Deed is inrolled there this shall enure well as Bargain and Sale as it was adjudged in Bedels case 7. Coke 40. a. but the Statute of 27. H. 8. of inrollments doth not extend to a Tearme for the words of the Statute are that no freehold shall passe c. But it seemes in the principall case that the Statute of uses executes the use which is raised by this Grant and that the Grantor shall stand seised c. And all the Justices insisted strongly upon the Limitation of the Estate from the day of the date of the Grant and the Reservation of the Rent immediatly and upon this concluded that it was the intent of the parties that the Grantee should have the Rent reserved upon the first Lease and should pay the Rent reserved upon his estate and that when words of diverse natures are incerted in one conveiance the Grantee hath election to use which of them that he will as it appeares by Sir Rowland Haywards case and by Danyel if a man makes a Bargain and Sale in english and makes Livery Secundum forma Chartae this shall not be good But if it be in Latine otherwise it is for this word Vendo is compounded of Do and it is an apt word for Sur. that Livery might be made And agreed all that the reversion passes well without Attornment and that these words Demise and Grant shall be taken and enure to a Bargain and Sale and Judgement was given accordingly A man made a Lease for yeares to two if they lived so long and it was resolved by the Court that this determines by the death of one of them according to the resolution in Bradwells Case 5. Coke 9. a. and Judgement was given accordingly and there the case of Trupenny was recited which was this Lands was let to one for one and
is appurtenant or appendant the Grantee shall have Common Pro Rata but if a commoner purchase parcell of the Land in which he hath Common appurtenant that this extincts all his Common And it was agreed that Common may be appendant to a Carve of Land as it appeares by the 6 Ed. 3. 42. and 3. Assise 2. as to a Mannor but this shall he intended to the Demesnes of the Mannor and so a Carve of Land consists of Land Meadow and Pasture as it appeares by Tirringhams case 4. Coke 37. b. And Common appendant shall not be by prescription for then the Plea shall be intended double for it is of common Right as it appeares by the Statute of Morton chap. 4. And the common is mutuall for the Lord hath Right of Common in the Lands of the Tenant and the Tenant in the Lands of the Lord And it was urged by Nicholls Serjeant that the Common shall be apportioned as if it were Rent and that the Lessee shall have Common for his Lease and then the Lessor hath no Common appurtenant or appendant to the two Virgats of Land and for that the Prescription was not good Coke cheife Justice if it had been pleaded that he had used to have Common for the said Beasts Levant and Couchant upon the said Land there had been no question but it should be apportioned for the Beastes are Levant and Couchant upon every part as one day upon one part and another day upon another part and for that extinguishment or suspention of part shall be of all as if a man makes a Leafe of two Acres of Land rendring Rent and after bargaines and sells the reversion of one Acre there shall be an apportionment of the Rent as well as if it had been granted and attornment And he agreed that if a man have Common appurtenant and purchase parcell of the Land in which he hath Common all the Common is extinct but in this case common appendant shall be apportioned for the benefit of the Plow for as it is appendant to Land Hyde and gain And in the principall case there was common appendant for it was pleaded to be belonging to two Virgats of Land and for commonable Beastes And he conceived also that the prescription being as appertaining to such Land that this shall be all one as if it had been said Levant and couchant for when they are appurtenant they shall be intended to Plow Manure Compester and Feed upon the Land And also he conceived that the right of Common remaines in the Lessor and for that he may prescribe for after the end of the Tearme shall be returned and in the intermin he may Bargain and sell and the Vendee shall have it and shall have common for his Portion And Walmesley Justice agreed to that and that during the Tearme the Lessor shall be excluded of his Common for his proportion Foster Justice agreed and that the possession of the Lessee is the possession of the Lessor but he conceived when the Lessor grants to the Lessee six acres of Land in such a feild where the Land lies and then the Beasts were taken in another feild And so they agreed for the matter in Law and also that the pleading was ill and so confesse and avoid the prescription But upon the traverse as it is pleaded the Jury shall not take benefit of it and Judgement was given accordingly Termino Pasche 7. Jacobi 1609 In the Common Bench. THOU art a Jury man and by thy false and subtill means hast been the Death and overthrow of a hundred men for which words Action upon the case for slander was brought and it seemed to Coke cheife Justice that it did well lye if it be averred that he was a Jury man and so of Judge and Justice for Sermo relatus ad personam intelligo debet de qualitate persone as Bracton saith and in the like Action brought by Butler it was not averred that he was a Justice of Peace and resolved that an Action upon the case doth not lye But Walmesley Justice conceived that an Action doth not lye for one Juror only doth not give the Verdict but he is joyned with his Companions and it is not to be intended that he could draw his Companions to give Verdict against the truth and false and subtill means are very generall Warburton Justice agreed with Coke and conceived that the Action well lies being averred that he was a Jury man as if one calls another Bankrupt Action well lies if it be alledged that the Plaintiff was a Tradesman and it is common speaking that one is a Leader of the Jurors and a man may presume that other Jurors will give Verdict and may take upon him the knowledge of the Act. Walmesley conceived that the Action did not lye for that the words are a hundred men which is impossible and for that no man will give any credit to it and for that it is no slander and for that Action doth not lye no more then if he had sayd that he had kild a thousand men But Coke Warburton Daniell and Foster agreed that the number is not materiall for by the Words his malice appears and for that they conceived that the Action doth well lye Pasch 7. Jacobi 1609. In the Common Bench. Denis against More ANthony Denis Plaintif in Replevin William More Defendant the case was this Two joynt Lessees for life were the Remainder or Reversion in Fee being in another person he in Reversion grants his Reversion Habendum the aforesaid Reversion after the death surrender or forfeiture of the Tenant for life it hapneth that the Lease determines for the life of the Grantee and Remains to another for life and resolved that this shall be a good grant of the Reversion to the first effect of Possession after the Deaths of the Tenants for life according to the 23 of Eliza. Dier 377. 27. And it shall not be intended to passe a future interest as if it were void of the other party and so was the opinion of all the Court see Bucklers case 2. Coke 55. a. and Tookers case 2. Coke 66. Upon a Fine the first Proclamation was made in Trinity Tearm 5. Jacobi And the second in Michaelmas Tearm 5. Jacobi And the third in Hillary Tearm 6. Jacobi where it should be in Hillary Tearm 5. Jacobi And the fourth and fifth in Easter Tearm 6. Jacobi And this was agreed to be a palpable Errrour for the fourth Proclamation was not entered at all and the fifth was entered in Hillary Tearm 6. Jacobi where it should have been in Hillary Tearm 5 Jacobi and it shall not be amended for that it was of another Tearm and the Court conceived that this was a forfeiture of the Office of the Chirographer for it was an abusing of it and the Statute of 4. H. 4. 23. and Westminster 2. Are that Judgement given in the Kings Court shall stand untill
they be reversed by Errour A man is bound in an Obligation dated the third of January and by Release dated the second day of the sayd Moneth of January releases all Actions c. From the beginning of the World untill this present day and delivered the Release after he had delivered the Obligation And Coke cheife Justice conceived that a Release of all Actions untill the Date shall not discharge duty after but a Release Vsque confectionem presentium that discharges Duties after the Date and before the Delivery But he conceived that the Day of this present time shall be the Day of the Date and it shall not be averred that it was delivered 20. years after and it shall not wait upon the Delivery of the Deed. A Writ of Dower was brought by Frances Fulgham against Serjeant Harris the younger in this manner Precipe c. Quod c. Frances Fulgham Widdow where the form in the Register Que fuit uxor and not Widdow and the words of the Writ are Rationabilem detem Tenementorum que fuerunt Fran. Fulgham quondam viri suâ— and yet it was resolved to be Errour see the Register and yet it doth not vary in substance and 38 Ed. 3. In re nisi sunt all one yet for that the forme in the Register is otherwise The Justices would not amend it John Warren Plaintiff in Trespasse and Ejectione Firme against Cicely Spackman it was resolved that the admittance of a Copy-holder for life was sufficient for him in remainder In a Writ of Dower by Mistris Fulgham upon Ne Vnques couple c. pleaded a Writ was awarded to the Arch-Bishop in the time of the vacation of the Bishoprick of Lychfeild and Coventry who returned that he had a Delegate which made a Commission to Babington Chancellor of the said Diocesse to make inquiry and certificate of the said matter which have certified that they were lawfully coupled in lawfull matrimony And adjudged without question that the return was not good for the Arch-Bishop himselfe ought to execute it and Delegata potestaâ— non potest delegari and for that it was ordered that he should amend her Certificate See the Statute of 5 Ed. 3. That an Arrest Eundo rediundo from celebrating divine service And it seemed to the Justices that such Arrest is not lawfull for he ought to be priviledged rather then a man which comes to any Court to procecute or defend any suit here Pasche 7. Jacobi 1609. In the Exchequer The Duke of Lenox case IN Trespasse the case was this the King by his Letters Patents created the Duke of Lenox Alneger and he made his deputy And the Duke by the said Letters Patents of the King was to measure all Clothes and to have so much for every Peece and to search and to view that if it be well and sufficiently made or not and he made his Deputy which offers to measure search and view certain parcell of Worsted and demanded the duty due to the Alneger for that and for that that the owner refused to pay it he seised certain peeces of Worsted and kept them upon which this Action was brought And Haughton Serjeant for the Defendant conceived that the sole question rests upon these Letters Patents of the King and for that he would first consider First if these duties of Subsidies and Ausnage are due by the Common Law and if they are not due by the Common Law then if they are due by Statute Law And if they be due neither by the Common Law nor Statute Law then if the King by his Letters Patents may grant it And to the first he said That Subsidy is ayd or help And there are two manners of ayd one which is Inheritance in the King as ayd to make his Son Knight or to marry his Daughter and others which are given by grant of others and these are not Inheritances in the King and these duties were not demandable by the Common Law nor by Custome And this appeares by the 25. Ed. 3. 6. Where any prises were demanded which were due by the common Law and some which were not due and subsidie for Woolls were not due by the Common Law but it was granted to the King and is now due but this is by grant and not by the Common Law and in the 14. Ed. 3. A Statute was made for the King for his subsidy for Woolles what part he should have which part was given to him in quantity and in time of H. 6. A Statute was made by which subsidy was given to him during his life and 36 Ed. 3. Subsidy was granted for three yeares and after should not be any subsidy paied as appeares by 45. Ed. 3. And if subsidie were not due by the Common Law for Woolles then may it be concluded that it was not due for clothes for Woolles grow without mans labour and the 11. H. 4. and 13. H. 4. The King makes a grant of Alnage of clothes and a Writ is awarded to the Mayor and Sheriffs of London to give possession to the Patentee which returnes the Writ that the Office was not granted before this time And the Statute of 24. Ed. 3. was the first Statute that gave profit to the King for clothes But he granted that the Office of Alneger was of ancient times and an ancient Office but it was no Office of profit but an Office of Justice and Right and no Fee was due for the exercising of it and that 1. Ed. 2 was a Grant of the Office of the Alneger and 11. H. 4. was a Grant of the Office of Alneger for Canvas but it doth not appeare by any account that the King had any profit for the Alnage it selfe or upon the said Grants either before or after and allowing that there were accounts for Cloth yet it doth not appeare that there were any accounts for Worsteds The Statute of 27. Eliz. gives subsidy of four pence for every broad Cloth so that the Statute made expresse mention of broad Cloth but there was not any mention of Worsteds and this Statute shall not be taken by equity though that the Statute of 1. R. 2. 12. for escapes by the Warden of the Fleet being a penall Statute yet for that that it was for a generall mischeife shall be taken by equity as it appeares by Platts Case in the Comment So the Statute of 9. Ed 3. chap. 3. provideth that where Debt is brought against diverse Executors that they shall have but one Essoyn and the Statute mentions Execurors only yet Administrators are taken within the equity of this Statute as it appeares by 3 H. 6. yet in this case at the Bar the Statute of 27. Eliz. was not for the remedy of a mischeife but is a Grant to the King and Grant of one thing cannot be Grant of another thing as if the King pardon an Offence another Offence cannot be pardoned by this As it appeares
to viewers and searchers this doth not abridge the power of the Alneger for this is but an addition of greater care and diligence and by the statute of 39. and 43. Eliz. If upon a search they find any forfeyture they shall have it but if they do not find the Alneger may find it and then the King shall have it And to the Second he answered that true it is for every 64. of clothes the Alneger ought to have foure pence for his Fee and though that some peeces of cloth are more broade then others yet the lobour of the Alneger to measure them is all one So he concluded and demanded Judgement for the plaintiff Hillary 7. Jacobi 1609. In the Common Bench. Rutlage against Clarke IN Account the Plaintiff declares that the Defendant hath received of his money by the hands of a stranger to give an account The Defendant pleades in Bar that he received to deliver over to a stranger the which he hath done accordingly without that that he received it to make any of account otherwise then in this manner and it was resolved that the Plea in Bar was good without traverse for when he received the money he is to deliver it over or to give an account of it to the Plaintiff so that he is accountable Conditionally but the traverse is repungnant to the Plea though it be otherwise or another way against the Book of 9. Ed. 4. 15 See 41. Ed. 3. 7. 1. Ed. 5. 22. H. 6. 49 21 Ed. 4. 4. 66 1. Ed. 5. 2. that it is a good Bar without traverse But Brooke in abridging the case of 21. Ed. 4. 66 in Title of account saith that it seemes that the traverse ought to be without that that he was his receiver in other manner and there and in the Book at large are that Justices that is Coke Nele and Vavasor against Bryan that it ought to be traversed But here in the principall case it was adjudged that the traverse made the Plea ill Hillary 7. Jacobi 1609. In the Common Bench. Dunmole against Glyles THE case was this Grand-Father Father and Son the Grand-Father was possessed of a Tearme for two and twenty yeares to come devised to the Son the Land for one and twenty yeares and that the Father should have it during the Mynority of the Son and makes the Son his Executor and dies the Son being within the age of one and twenty yeares the Father enters into the Land and makes a Lease for seven yeares by Indenture untill the Son came to full age the Father makes his Son his Executor and dies The Son enters by force of the devise made by the Grand-Father And the question was if the Son shall avoid the Lease made by his Father and it was agreed that he might in proofe of which a Judgement was cyted which was in the Kings Bench Mich. 5. of Eliz. Rot. 459. or 499. In the Prioresse of Ankoresse Case where a Tearme was devised to one and if he died within the Tearme then to such of the Daughters of the Devisor which then should not be preferred the Devisor dieth the Tearme was extended for the Debt of the first Devisee and then he died the extent was avoided by the Daughters not preferred and they grounded their Judgement upon the former Judgements in Weltden and Eltingtons case and Paramores and Yardleys case in the Comment and for that the Law intends that a Devisor is Inops consillij and for that his devise shall have favourable construction according to his intent appearing within the devise and it was said by Coke that in many cases a man may make such an Estate by devise that he cannot make by an Act executed in his life time as it was adjudged in Graveners case where a man devises his Lands to his Executors for payment of his Debts that there the Executors have Interest that there the Executor of Executors shal have that and such Estate cannot be executed by Act in the life of the Devisor and so it was concluded by them all that the Son shall avoid the Lease made by the Father for the Devise was Executory and doth not vest till the full age of the Son and then Executor and shall avoid all Acts made by the Father by which Judgement was given accordingly Freeman against Baspoule See 9. Coke 97. b. THE case was this A. was indebted to B. and they both died the Heire of A. for good consideration assumed to the Administrator of B. that he would pay to the said Administrator the said Debt and for the not payment of that according to the Assumption the Administrator after brought an Action and then the said Heire and the Administrator submitted themselves to the award and arbitrement of C. and became bound one to the other to stand to the award accordingly so that the said Arbitrator makes his award of all the matters and controversies between them before such a day C. the Arbitrator before the day recyted the Assumpsit and the debt as aforesaid and agreed that the Heire should pay the Administrator so much money and that published according to their submission And in Action upon the case Nullum fecit Arbitrium was pleaded and upon demurrer it was objected that the award was void First For that it was for one party only and nothing was arbitrated of the other and to prove this the Book of 7. H. 6. 6. was cited and 39. H. 6. 9. see 2 R. 3. 18. b. And this also appeares by the pleading of an award for he which pleades it that he hath performed all things which are to be performed of his part And that the other pleades performance of all thing which are to be performed of his part by which it appeares that there ought to be performance of both parts and by consequence one award to both parties according to 22. H. 6. 52. Secondly that the award was void for that that the submission was of all controversies so that the Arbitrator delivered his award of all controversies c. And there was no award of the said Suit between the parties and for that he hath not made an Arbitrement of all controversies and by that the award was void and to prove that the Bookes in 4 Eliz. Dyer 216. Pumfreies award and 19. Eliz. Dyer 356. 39. and 39. H. 6. 9. Where it is said that if the submission were of all things and the Arbitrement of one only that is a void Arbitrement Thirdly For that it was not limited within the award at what day nor at what place the money should be paid by the Heire to the Administrator and for this cause also it shall be void for it ought to be payd immediatly and if the Heire cannot find the Administrator he forthwith hath forfeyted his Obligation and for that in this point it is uncertain and for that shall be void as it is in Samons case 5. Coke 77. b. Where
47 Edw. 3. 17 Edw. 4. and 21 H. 7. that have been remembred to the contrary is only that it is reason that the Plaintiff should have the same process which was at the Common Law and there was not any such processe as Capias in debt at the Common Law and 21 H. 7. may be understood that the Elegit was not returned and so no record of that And 50 Edw. 3. a man may recover in Debt and pray Elegit and after brings Debt upon the Record but it doth not lye And he agreed to the Book of 23 H. 6. For there the Defendant was bound in an Obligation to make satisfaction of Debt and hee dyed in Prison and this cannot be satisfaction according to the Condition And in the Case of Fitz. Nat. Brev. the same doubt of that and this was the more strong case then the case at the Barr and if he doubted of that is the cause that he doubts also And cyted Williams and Cuttis case Rot. 88. in the point where the reason of the Judgment was for that that the Plaintiff had his plain and full satisfaction and saith that it was apparent difference between that and Blunfields case for there was 2 Defendants and here if one dyes there shall be no satisfaction and so these reconciled And so if a man be taken upon a Statute Merchant and dyes in execution that shall not be satisfaction for this is speciall processe given by statutes And 14 H. 7. 1. If a man being in Execution escape he shall not be taken againe and in the 14 H. 7. in debt upon an Obligation Capias profine was awarded and the Defendant taken by that And the Plaintiff prayed that he might be in Execution for his debt also and could not for that he had sued Fierifacias and it doth not appear if the Sheriff have that executed or not And so he concluded that the Judgment should not be revived by the Scire facias against the Executors and that Judgment shall be given for the Defendants in the Scire facias Walmsley Justice accordingly He specially observed the forme of the Writ which suggests quod executio adhuc restat facienda c. And to that the Defendants in the Scire facias plead that Capiás was awarded at the suit of the Plaintiff and upon that the Defendant was taken in execution and there dyed by which it appears that the words and suggestion of the Writ was answered directly and upon that the strongly relyed and then said that there were 3 ways to have Execution that is by Fieri facias Capias and Elegit And there is a speciall order to be observed in the suing of that for a man may have Fieri ficias and if the Defendant have not goods may have Elegit or Capias But if he make his Flection to have Capias he cannot have Fieri facias nor Elegit or if he sue Elegit he cannot have a Fieri facias nor Capias In 33 H. 6. and 44 Edw. 3. which have been cyted the Plaintiff sues Elegit and after that would have sued Capias supposing that he had not accepted the Elegit but of the other part it was said that the Sheriff had made Execution of it the which he could not contradict it And if the Plaintiff had Fieri facias and goods delivered to him in Execution and the Writ returned he shall not have a second Execution and so if Elegit executed and returned 14 H. 7. 15 H. 7. and said that Executions are tickle things for if the party escape he delivers himselfe out of Execution and the Plaintiff shall not have other Execution against him for that he hath had one Execution 2 Edw. 4. And so if a man sues a Writ of Priviledg out of Parliament and by that is delivered out of Execution he shall not be taken again And so if a man be delivered upon a Writ of Error for when the Party hath made his Election to take processe against the body it was his folly that he made such Election for though that death be the act of God yet for that that statutum est omnibus semel mori and for that God hath done no wrong for he hath but performed his Eternall Decree and for that it is not the act of God only but the folly of the party to make such Election and the Book of 47 Edw. 3. by Percy is but his opinion and more other Books are against that and 〈◊〉 H. 6. Danby and Prisot are against Lacon and though that the death of the Party in Execution is no satisfaction in rei veritate yet in Law it is satisfaction for that that the party hath no other remedy the Writ in the Register is certiorari ad faciendum in omnia singula que secundum legem consuetudinem fieri c. And there is not any Law nor Custome to warrant any such Course and here is not any other proceedings upon it But if he may have a Writ of Scire facias ostensurus quare satisfactionem habere non debet then it may be that the Defendant's ought to give another answer but for that that there is not any such Writ it seems that Judgment shall be given for the Defendants Coke chief Justice seemed the contrary and he agreed with Foster and he said that it is vexata et spinosa questio for the Books vary and great arguments have been made of both parts There are three things considerable 1. Reasons 2. Authorities 3. Answers of Objections And for the Reasons First he considered in whom the default is for which the Plaintiff shall lose his Debt 2. That the Debt remains after the body is taken in Execution 3. If the body taken in Execution be satisfaction 4. If the dying in Execution be a discharge 5. The Mischiefs if so they shall be And to the Objections First Escape which is the wrong and act of the Party it is no satisfaction nor discharge and here is the act of God and election of the party 2. Execution by Elegit If Lands be extended upon that this is no satisfaction And so if he be delivered by a Writ of Error and so in this case And for the first the fault was in Jackeson for he did not keep his day in the Condition and upon this was sued then he pleaded a false plea and upon that Judgement was given against him in all which actions the default was in the Defendant and no default in the Plaintiff for he took the Body which is the visible execution not in satisfaction but to satisfie and the Defendants have not pleaded fully administred but confesse that they have Assets and there is more reason that the Plaintiff shall be satisfied then the Executors keep the goods to their own use for it is Summa Injustitia nocentem habere totum lucrum innocentem totum damnum Second reason was that it is no satisfaction for the Defendant to dye
Commoner shal not be by that excluded and he said that the persons mentioned in the statute are two The first is the owner of the ground and such person he agreed Sir Francis Barrington is not The second is such person to whom such wood shal happen to be sold and such Person it seems is Sir Francis Barrington and yet he agreed that he hath an Inheritance in the Trees and the Owner of the soyl cannot cut them nor dig the soyl from the Roots of the Trees for then the Grant could not take effect and he sayd there is no difference between sales of Wood though that the statute speaks of the Person to whom Wood shall be sold and another person to whom it shal be given without consideration and to that he resembled the statute Westminster 2. Chap. Si quis alienavit terram uxoris suae non deferratur c. sed expectet emptor c. though that the statute mention buyer only yet Donee without any consideration shal be intended in it and that the statute doth not intend within it and that the Statute doth not intend sale Vinca vice tantum but rather sale of Inheritance for such Vendee may rather intend the preservation of the wood then the other And he inferred upon these words of the statute to inclose the same Grounds with hedges sufficient to keep out al manner of Cattel and beasts out of the same Grounds and these words expound themselves for they shal not be intended Deer but Cattel which belong to Commoners and so is the statute of West 2. Chap. If Infant suffer Usurpation this shal not bind him but this shal be intended where he hath Advowson by discent and not by purchase and this appears by the words of the statute which are Cum aliquis vis presentandi non habens presentavit ad aliquam ecclesiam cujus presentatus sit admissus ipse qui verus est patronus per nullum aliud breve recuperare potuit advocationem quam per breve de recto quod debet perminare per duellum vel per magnam assisam per quod heredes infra etatem existentes per fraudem negligentiam custodis multities ex heriditatem patiebantur c. By which words it appears that there ought to be presentation which passeth by fraud and negligence of the Guardian which the Statute remedies and that is presentation which he had by discent and not by purchase and in the Time of Ed. 1. Fitz. trespas 239. It is said the Law of the Chase that none may inclose his own Wood without the view of the Forrester and if the statute of 22 Ed 4. Gives license to inclose and that notwithstanding the Commoner may put in his Beasts then is the statute made in vain and it is resolved in the 30 of Ed. 3. Fitz. trespas that if a man hunt in a Park or Chase that this is not within the statute of VVestminster 1. Chap. 21 Ed. 1. So the statute of 22 Ed. 4 Extends to the Kings Deere and also to other Beasts which shal be intended â—he Cattel of the Commoners and it is not repealed by the statute 35. H. 8. For these statutes are made for several purposes and consist upon several grounds and if the statute of 22 Edw. 4. be repealed then there cannot be inclosure in forrest or Chase at al And which is general Law and the Justices ought to take notice of that without pleading and that al Lawes to some respects may be intended to be special as the statute of 13 Eliz. Concerns only spiritual men and so Charta de foresta concerns only forrests and the statutè of 3 H. 7. Chapt. 1. Gives appeale to the Wife for the death of her Husband and though that al these statutes concern one thing only and for that to some intent may be said to be special yet they are al generall Laws and so he concluded that Judgment shal be given for the Defendant VValmesley agreed with Foster in al that is that Sir Francis Barrington hath nothing but profit In alieno solo and for this cause was not within the statute of 22 Ed. 4. Which might inclose and the Common Law doth not exclude the Commoner for the Lord Rich granted the Wood and this Transit cum onere to Sir Thomas Barington and sayd that it was in vain to dispute if the statute of 22 Ed. 4. was private Law or if it were repealed which makes nothing in the Case and so he breifly concluded that Judgment shal be given for the Commoner which is the Plaintiff Coke cheife Justice agreed that Judgment shal be given for the Plaintiff and did agree that the Arbitrement the Convaiance nor the private Act made nothing in the Case for by these the Commoner cannot be barred of his Common but for the statute of 22 Ed. 4. He would first consider how the Law was before the making of that and as to that it appears by the statute of Charta de foresta that by the Common Law no man which was Owner of Wood in which another had Common that they could not inclose but Assise of Common or action upon the case lyeth as it requires and if it be several Wood within the Kings Forrest in which none hath interest of Common then may he inclose by the view of the Forresters and this hold inclosed by the space of three years as it appears by the Preamble of the Statute of 22. Ed. 4. Cum parvo fossato bassahaia that is a Little Ditch and Low Hedge for that the Kings Deare are not shut out and this appears in the Register in the Writ of Ad quod damnum Fitz. Na. Bre. 226. f. And then comes the statute of 22 Ed. 4. and gives power to inclose with such sufficient Hedges able to keep out al manner of Beasts and Cattel And then considered between what persons the statute is made And to that he conceived it is made between the King and his Successors of one part and Subjects having woods growing upon their owne Grounds and such persons unto whom such woods shal happen to be sold of the other part and a Commoner is not named in the statute and also the Body of the statute is not general but there are some words in one sentence and this is but a sentence and cannot be divided the words are First The sayd Hedges so made may keep c. Secondly And repaire and maintain them as often as need shal be within seven years Thirdly without suing any other License of him that is the King or his Heirs or other persons that is which have forrests or Chases or any of their Officers and here the sentence concludes and there is no period before them so that this statute being made between the King and owners of forrests and Chases of one part and Owners of woods in their own soyl and other persons to whom such woods should be sold other
Office by Deputy without special words of Deputation in the Patent for he conceived that it is not meerly an Office of trust for he hath not the keeping of any Records for the Courts of which he was steward were not Courts of Record and yet that all the Books are that ancient grants of Office of stewardship contain that the Patentee may exrecise Per se vel per sufficientem deputatum suum though they are not of Courts in which the steward is Judge but the suitors but if a Grant be of such an Office of Inheritance then there needs words of Deputatum for here it is apparent that there was not special trust reposed in the Patentee And he also agreed that if it be not an Office of profit the Grantor may enter and out the Patentee but the fee shal remain as it appears by the 31 H. 8. Brookes Novell Case and 18 Ed 4. And it was not the intent of the Queen that the Earl of Rutland should execute the Office in person for that should be an undervaluing of him the which he sayd was proved by Sir Robert VVrothes Case in the Commentaries where an Officer to the Prince was discharged of his attendance by alteration of quality of the Prince and making of him King and yet the Fee remained And to the second it seems that the patent hath expresse words of Deputation And the third Grant which hath a reference to the Grant precedent and al the words being put together make a perfect Grant and this such construction hath been alwaies made of Grants of the King as it appears by Sir John Mullyns Case 6 Coke 56. And Justice VVindhams case 5 Coke 7. a. So if the King makes a Lease of a Mannor except a Grove next to the Mannor this shal be intended next to the Mannor House for otherwise it shal be out of the Mannor and so the exeption voyde but Coke and Foster doubted of that And to the third point that the Action was maintainable Vi armis for when the Deputy of the Earl of Rutland proclaimed the Court as Deputy of the Earle of Rutland and these Defendants proclaimed that as stewards of the Earl of Shrewsbury and after adjourned that and after held all the Courts and received the profits it seemed to him that for this outing and disturbance which is disseisin action upon the case lies Quare vi armis as wel as in the Book of Entries 15. two men had Warrens adjoyning and one of them puts Cats and other vermine into the Warren of the other to destroy it and the Action of trespasse Vi et armis lyes and so for menace action of trespas Vi armis lies as it appears by 3 H. 4. and this disturbance is sufficient to maintain an Assise and upon that he concluded that the Plaintiff in the Action ought to recover and to have Judgment And Harris the younger Serjeant argued that the Grant is not good for default of certainty as to this Grant of Stewarship for the Grant is of the Office of Stewardship of the Mannor of Mansfeild and doth not shew where the Mannor is nor in what County and it appears and is put for a Rule by Hussey cheife Justice in the 25. of H. 7. 60. b. That when a man wil have advantage of Letters Patents of the King it behooveth that they extend certainly to things of which he wil have advantage see 2. R. 3. 7. a. By Hussey 44. Ed. 3. 17. 5 Ed. 4. Garters Case 17 Ed. 3. 15. and Doddingtons Case which is Hill and Pext 2 Coke 1. 31. b. If the Town be misnamed it is good if there be another certainty but if it be not named at all otherwise it is And to the Point moved by Hutton he concived that this Office of Stewardship could not be exercised by a Deputy as it appears by Littleton in his Chapter of Estates upon condition where he saith that there are Estates upon condition in Law of which Stewardship is one fol. 89. Sect. 379. That cannot make Deputy without speciall Grants and with this agreed Sir Henry Nevills Case Com. 379. and Long 5. Ed. 4. 26. b. and by 21 E. 4. 20. and Sir Henry Nevills Case before he could not grant over his office but if he do not attend to the Execution of that it is forfeiture 11 Ed. 4. so if he wants skill 29 H. 6. 42. Per totam curiam He conceived that the Law doth not make any difference between the person of an Earl and another to the executing of this Office and that the words of the Patent do not contain words of deputation for in the Grant the words are Habendum Officium predictum breifly written Cum omnibus vadis feodis eidem Officio sue ratione ejusdem c. The which last words are expository of the first that is that it shal be intended that the Office is contained in the last Grant and shal not be referred to a Grant precedent in which the Stewardship is contained and also he conceived that this Action upon the case doth not ly Quare vi armis as it appears by Fitzherberts Naturabrevium 86. H. Where it is sayd that in trespass upon the case these words Vi armis are contained in the Writ shal be sufficient cause to abate the Writ see 11 Assise 25. He which councels to make Disseisin shal not be a Disseisor with force for he ought to do some manual Act either to the person or to the possession see 41 Ed. 4. 24. a. and 44. Ed. 3. 20. b. And so he concluded that this Action is not maintainable and that Judgment ought to be given for the Defendant for the causes aforesayd This Case was argued again by Nicholls Serjeant for the Plaintiff and by Dodridge the Kings Serjeant for the Defendants to the same intent and it was urged by Dodridge that the Patent containes three several expresse Grants which are distinct Grants in themselves as there be three distinct severall Patents though they have but one Parchment and one Seale and if the King grant the Office of parkship of two parks by one self same Grant if the Patentee be disseised of them he may have several Assises though that it be but one self-same grant And he agreed that the words officium predictum in the 3. grant shall be intended officium predictum and so supply the defect in the second grant if it were not limitation of the estate in the second grant but for that that the second grant was perfect in it self there need not of necessity any such construction and that these words shall be referred to the last words appeares by the last words of the habendum that is cum vadis feodis eidem officio aut ratione ejusdem officij and these Relatives are exposition accordingly And to the objection of the clause of Assistance in the end of the Patent he answered that if the grant were ill
and void in it self this Clause doth not supply that For this is but notification to the Officers of the Queen that they should be attendant to the said Earl For though that the Intent of the Queen was that the Earl of hutland should execute this office by Deputy yet this intent shall not make the grant good for though that the Intent of a common person be apparent within the Deed yet this intent shall not make a voyd grant good 19 H. 6. 20 H. 6. 22 H. 6. 15. Grant to 2. Et heredibus with warranty to them and to their Heirs this clause of warranty though it were the intent of the parties apparent yet it was not sufficient to make the grant which was voyd good and so it is in 9 H. 6. 35. Abbot by his deed in the first person grants a Tenement and the Grantee in the third person renunciavit totum Commune quod habuit in uno tenemento and though that in this Grant the Intent of the parties is apparent yet this Intent shall not make the Grant which is void in it self to be good So if a man makes a Lease for life to the Husband and Wife and after grants the reversion of the Land that the Husband held for tearm of life that grant of the Reversion is void though that the Intent was apparent 13 Edw. 3. Grants 63. And so in Patent of the King grant to a man and heredebus masculis suis is void though that the Intent also is apparent that he should have an estate tayle 18 H. 8. b. Estates 84 But admitting that the Grant may be supplyed by the last words that is that in the last Grant the words are officia predicta and in the clause of Assistance yet these words may be supplyed for there are two other Grants in which there is expresse mention that the Patentee may exercise it by Deputy and so the words shall have full Interpretation Reddendo singula singulis And hee conceived that the Writ shall abate for that that it contains Vi armis And also the Declaration for the Jury have not found any disturbance at all And he agreed that in some cases Trespasse Vi armis well lyes as it is Fitzh Na. Bre. 92. 86. as where it is actuall taking 45 Ed. 3. 30. 44 Edw. 3. 20. where trespasse Vi armis is maintainable against a Miller for taking of Toll against the Custome for here is actuall taking and 8 R. 2. 7. Hosteler 7. In an action of Trespasse Vi armis against an Host for that that certain evill persons have taken the money of the Plaintiff and good But where there is not any actuall taking there the Writ ought not to containe Vi armis for for not scowring of a Ditch or stopping of Water as it is 43 Ed. 3. 17. But for casting of Dung into a River action of Trespasse Vi armis lyes 12 H. 4. But for burning of a house it doth not lye Vi armis 48 Ed. 3. 25. And so for turning of water-course 3 H. 4. 5. But in this case there is but disturbance with a word and commandement to hold a Court and no Court held nor no Proclamation made and so no disturbance at all 16 Edw. 4. 11. one hath the office of a Parkership and another man was bound that he should not disturbe And in debt upon the Obligation he pleaded that the Obligor hath threatned to disturb him and adjudged that this is no breaking of the Condition for there is no disturbance and in 2 Ed. 3. 25. and 40. Quo minus by Jeffery Scorlage where the King grants to the Mayor of Southampton the Customes of the same Towne and in quo minus for taking of them it was adjudged that words are no assault but there ought to be an act done But in this Case is nothing found but words and no act done but it is found that after the Defendants held the Courts But that doth not appear if it were against the will of the Earl of Rutland or not and so concludes that the action is not mayntainable And this case was argued again in Trinity Tearm next ensuing by the Justices Danyel being dead but I was not present at the argument of Foster and Warburton Justices but I heard the arguments of Walmsley Justice and Coke chiefe Justice And first Walmesley conceived that the Grant was good and that the Earl of Rutland by this Grant might exercise his Office by Deputy and this only in respect of the quality of his person for the Patentee is a Noble man which hath been employed as an Embassador of the King into other Realms and this Grant of this Office being amongst others varies from them for this wants the word exercendum which is contained in the others and also the office of a Steward is too base for an Earl to execute for the Steward is but as a Clark and not a Judge for he shall not be named in a Writ of false Judgment nor shall hold plea of any actions but under 40. s. for that it is not fit nor convenient that an Earl should exercise such a bas Office in Person For if Recovery here be pleaded it shall be tryed by the Country 1 Edw. 3. And the Steward shall not give Judgment but the Suitors and no tryall shal be by Verdict but by waging Law and the fee of the Stewardis but a 1 d. for every Plaint And for that it was not the Intent of the Queen that the Earl should exercise such a base office in person and her Intent is apparent for that that the word Exercise is not contained in the Patent And the Intent of the Queen is to be considered for the other Offices are fit to be executed by the Earl for the exercising of them is but a matter of pleasure as in hunting in the Forrests and Parks of the Queen and for that if these Grants have not contained words of deputation the Earl ought to exercise them in person according to Littleton And Noble men are not to be used as common people for they are not to be Impannelled of a Jury and Capias doth not lye against him by which he cannot be outlawed and for that he shall not be bound to sit in such a base Court as this base Court is And all this matter is wel declared and expounded in the last clause of the Patent where the words are Et ulterius volumus mandamus quod omnes c. Sint intendentes auxiliantes c. Where the words volumus in Patents of the King to amount to as much as concedimus or a Covenant which is all one with a Grant as in 32 H. 6. The King releases all his right in an Advowson Nolentes that the Patentee shall be grieved or disturbed and adjudged that this shall amount to a Grant and so the word Volumus in the principall case and also he conceived that the
action is well maintainable Vi armis as Quare Impedit for disturbance by word or presentment by word And it is also found that the Defendants did take all the profits and that the Deputy of the Plaintiff came to the usual place where the Court was kept and that could not be intended to be out of the Mannor And so for these reasons he concluded that Judgement should be given for the Plaintiff And Coke cheife Justice argued to the same intent that is that the Plaintiff ought to have Judgment And first he conceived that the Patent is good notwithstanding the uncertainty that the Mannors are not named in what Counties they are either in England France or Ireland for the Mannor is named very certain by which it may be granted though it be in the Kings case as it appears by 32 H. 6. 20. where the King grants all Mannors Messuages c. which were parcell of the possessions of I. S. attaint and good And such grant was made to Charles Brandon Duke of Suffolke and adjudged good though that the person of a man is more incertain then the Mannor yet Id certum est quod certum reddi potest And 39 Ed. 3. 1. in the Abbot of Reddings case where a grant was made to the Abbot and his Successors that the Prior and Covent shall take the profits in time of vacation Fitz. Na. Bre. 33. b. And 23 Ed. 3. 20. The King grants to the Queen the Barrony and all Mannors c. till Iohn of Gaunt be able to govern himselfe and that shall be intended till the Law intends him able to govern himself and Mannor is very certain of which a view shall be awarded The second exception which was taken to the grant was for that that it was to take effect at the ful age of the Earl And after it is recyted in the Patent that he was of full age before the making of the Patent and so by consequence the Patent is to take effect from the time that it was past And to that he said that it shall be intended to the profits of the Office only for it appeares by the Patent that the Queene had granted it to another during his Minority That is the office And to the third mattter That is if hee cannot make a Deputy then he hath forfeited the said Office by the not using of it And to that he said it appeares by Waltons case 10 Eliz. Dyer fol. 270. That if a man grants a Fee pro concilio impendendo or keeping of Courts the Fee shall not be forfeited without speciall request to the Patentee to give Councell or to hold his Courts for hee doth not know if the Grantor will have his Courts held or not and so it is 39 H. 6. 22. Brewens case where it is also agreed that it shall be no forfeiture of an office without speciall request to hold the Courts or to give Councell But in the case of the Queen otherwise it is for she ought not to make demand in case of Rent nor Condition though that it be within the Statute of 32. H. 8. And yet it was argued in Sir Thomas Hennages case that if the King make a Lease for years upon condition to cease this shall cease without office upon the breaking of the Condition but a Lease for life shall not cease without office though that the Condition be broken And so if the King grants an Office for life this shall not be avoided without Office And he doubted the case of the Lease for yeares And also he agreed that the Grantee of a Stewardship cannot make Deputy to exercise his Office without speciall words in the Patent But if the Office be granted to him and his Heires or to him and his assignes it is sufâ—â—cient without other words to make a Deputy And also he sayd that the word Steward is the name of an Office and is derived of Steed and Ward which are Saxon words and intend the Keeper of the place which the party himselfe ought to hold and it appeares by Cambdem and Lambert And so the word Senescalls also signify for this is but a Custos sive officiarius loci See Fleta liber 2. chap. 72. Senescallum providebit Dominus circumspectum fidelem Modestum pacificum qui in consuitudinibus c. Jura Domini sui teneri c. Quique balivos suos instruere potest Cujus officium est curia maneriorum c. And a Deputy is a person authorised by the Officer in the name and right of the Officer and for all that he doth the Officer shall answer for he is but as a shaddow of the Officer But assignee is in his own right and he shall answer for himselfe and forfeiture by assignee of Tenant for life shall not be forfeiture of the reversion 39. H. 6. And he agreed that a Marshall Steward Constable Bayliff and such like cannot make Deputies without speciall wordes in the Grant as it appeares 39. H. 6. 11. Ed. 3. 10. Ed. 4. 14. 17. and 7. 21. Ed. 4. Nevills case in the Com. and Littleton And to the exceptions which have been taken to the Writ and Count he saith that an Action of Trespasse which is founded upon the case doth not lye Vi et armis where the point and cause is Action is supposed to be made Vi et armis and for that he takes difference between Causa causans and Causa causata for where the matter which is supposed to be done Vi armis is not the point of the Action But the cause of the Action there lies very well Vi armis But wherein the point of Action is supposed to be made Vi armis there the Writ shall abate As if a man brings an Action of Trespasse for casting dung into a River by which his Land is drowned in this case an Action of Trespasse upon the case Vi armis lyeth very well for here the casting in of the Dung is but Causa causans And the drowning of the Land is Causa causata 8. R. 2. And so disturbance to hold a Leet by which he hath lost his offerings 19. R. 2. 52. And the Earle hath election to have Trespasse or Assise though it be not Manurable As if a man prescribe to have seven pence of every Brewer which sells strong Beer for disturbance to have the seven pence Action upon the case lyes for this disturbance is Dissesin 15. Ed. 4. 8. 14. Ed. 3. 4. 1. Ed. 5. 5. 19. R. 2. Action upon the case 51. And to the objection which hath been made that disturbance found by the Jury is not the same disturbance which is mentioned in the Count for in the Count the disturbance is supposed to be made Vi Armis but the Jury do not find any distubance to be made Vi Armis But this notwithstanding it seemes that the Count is good As if a Sheriff enters a Franchise and executes
22 Assise 24. 48 Ed. 3. 8. Register 47. And in case that one common person hath any Office which he cannot exercise by a Deputy yet if he be imployed in the Kings service as if he be made Ambassador out of the Realm or other such imployment he may during his absence make a Deputy and this shal not be forfeiture of his Office and an Earl in ancient time was not only a Councellour of the King but by his Degree was Prefectus sive prepositus commitatus as it appears by Cambden 106 107. Comes prefectus Satrapas which is Prepositus comitatus and was in place of the Sherif at this day and when that he was Sherif though that he had the custody of the county committed unto him which was a great trust yet then by the Common Law he might make an under Sherif which was but a Deputy the like Holinsheads Chronicle 463. Amongst the customes of the Exchequer he called the under Sheriff Senescallus which agreed with the Definition before for he held the place of Sherif himself and by the statute of Westminster 8. chapt 39. It is sayd that Vice comes est viccarius commitatus and if a Barony discend upon the Sheriff yet he shall continue Sheriff 13. Eliz Dyer and Britton 43. If a Rybaud strike a Baron or a Knight he shall loose his Land And Tenant by Knights service may execute it by Deputy 7. Ed. 3. Littleton And if it be so in the case of a Sheriff which hath the County committed to him that he may make a Deputy by the Common Law upon that he inferred that the Steward which hath but the Mannors of the King committed to him that he may make a Deputy And also he said that the words in the last clause that is Volentes precipentes that the Officers and the Subjects should be attendant expoundes and declares the intent of the Queen for the words are Omnibus premisses and the Grant of the Office of the Stewardship is one of the premisses and so he concluded upon these reasons that Judgement shall be given for the Plaintiff and that the Grant was good and the Action wel maintainable And oâ— this opinion were Warburton and Foster Justices And Judgement was given accordingly this Trinity Tearm 8. Jacobi And Coke cheife Justice remembred a Report made by him and Popham cheife Justice of England upon reference made to them that this Patent was good and that the Earle of Rutland might exercise this Office by Deputation and he conceived that there were other words in the Patent which were found by the Jury that the said Earle should have the said Office Cum omnibus Juribus Jurisdictionibus c. as full c. as any other Patent hath been had and withall the Appurtenances and it seemed that a former Patentee had power by expresse words to execute that by a Deputy and he conceived though these words Adeo plene c do not inlarge the Estate yet this inlargeth the Jurisdiction of the Officer as in 43. Ed. 3. 22. Grant is made by the King of a Mannor to which an advowson is appendant Adeo plene tam amplis modo forma c. And these words past the advowson without naming that and he said it was adjudged Hillary 40. Eliz. in Ameridithes case where the case was the Queen granted a Mannor Adeo plene intigre in tam amplis modo forma as the Countesse of Shrewshury or any other had the same Manno r and Queen Kathrin had the same Mannor and diverse liberties with it of great value during her life and adjudged that these liberties should passe also by this Patent by these words and so in the principall case if the former Patent had been found also by the Jury and so was the opinion of Popham and him and was certified accordingly FINIS A Table of the Second Part. ARch-Bishops Jurisdiction 1 2. 28. Admiralties Jurisdiction 10 11. 13 16 17. 26. 29. 31. 37. Arbitrement satisfaction what 31. 131. Assumpsit 40 41. 273. Arrianisme one committed for it 41. Assets 47. Almony 36. Apurtenant what shall be said 53 Action sur Case by a Commoner for words 55. 84. 100. 119. 122. Avowry the whole plea 62 63. 102 Agreement what 72 Account 76 Audita Querela 81. 83. 168 Atturnment good by one under age where and why 84 Award void 100 Age not allowed in Dower 118 Administration repealable 119 Accord with satisfaction good plea where where not 131 Attorney ought to finde Baile in an Originall not Bill 134 Action sur Assumpsit 137 Assuâ—psit against an Executor where maintainable 138 Assets in Formedon what 138 Attachment 144. 168 Assent to a Legatee 173 Ayd prayer 191 Attachment for contempt of the Court 216 Accessary null unlesse there is Principall 220 Assignment of an estate suspended 225 Assise of novel Disseisin 229 Abatment of brief per entry 231 232 Abatement de facto and by plea differ in what 235 Agreement and Arbitrement good pleas where 132 Agreement by word to keepe backe tythes 17 Admiralls Commission for measuring of Corne 29 Administration during minority of c. 83 Atturney brings Debt for Trees 99. Arbitrement 130. 131. Arrest of Judgment 167. Acts what to make an Executor de seu tort 184. Attachment of Priviledge for an Estate against the Marshall c. 266. Assise where it may lye sans view 268. Assise the Recognitors challenged ibid Ajournment of the Tearm 278. Annuity or Writ of Covenant where 273. Arbitrement submission and revocation 290. Approvement of Common 297. Account 308. Award submission 309. Arbitrement 310 Arbitrement who it binds 323. Assise del Office 328. B BIshop not displaceable 7. Baron alone cannot sue for not setting forth Tithes without the feme proprietory 9 Ballast granted to Trinity House a Monopoly 13. Baron and Feme joyn where 66. Baron Judgment against an Executor 83 Baron how chargeable pur sa feme 92. 93. 95. Bar in trespass 121. By-Laws whom they bind 180. To what extended 258. Baron and feme take by intirity where 226. Barwick whether part of England or Scotland 270. Bayle 293 Banckrupt actionable 299. C CHase an action not to be divided 56 Cui in vita of Copy-hold 79. Custome for pound breach 90. Common Recovery 16. Copiholder shall hold charged where 208. Confirmation to a copiholder destroys common 209 210. Consultation after it no Prohibition grantable upon the same Libell 247. Cape grand Petit 253 Cause of a commitment traversable 266. Count in trespass after the teste del Breife 273. Covenant to pay Rent 273 Continuance Ibidem Chellenge 275 Customes of London argued by the Justices 284. 285. 286. Certiorari 312. Capias ad satisfaciendum no satisfactory execution 312. 313. 314. 315. 316. Copy-hold at common Law 44. Creditor may sue both heireand Executor 97. Court of Equity not proper after Judgment 97. Copyhold intayled 121. Covenants direct and collaterall how they differ 136.