by my Neighbours means shall be in the same degree as my Neighbours Act for what he does shall be to his own prejudice And upon the Iudgment affirmed the Attorney of the said Hayes made the like Writ of Habere facias seisinam directed to the Sheriffs of London as was done in the Common Pleas wherupon it was affirmed to the Court in Hillary Term next ensuing that the Sheriffs had made their execution by the quantity of the feet comprised in the writ and that in the doing of it there was pulled down the part of another house of the said Allen which was erected two feet upon the land of the said Anne and prayed remedy for it and that this Habere facias seisinam varying from the thing recovered might not be filed To which it was said that this quantity of feet was but a Surplusage in the Writ and that the Writ before this was sufficient and warranted by the Verdict and judgment Sherrey versus Richardson 5. IN Debt upon an Obligation of 50 l. by Lawrence Sherrey against Arnold Richardson the case was this 16 Martii 33 Eliz. the said Richardson was bound to Sherrey in 50 l. with condition to stand to and observe the Arbitrement Award order rule finall end and judgment of one Walter Bolton and Edward Price Arbitrators indifferently elected to arbitrate award and judge of and for all Actions Suits Quarrels and Demands whatsoever betwixt them untill the date of the Obligation so that it be made and done in writing under their hands and Seals ready to be delivered to the parties at or before the last day of this instant month of April and the said Arbitrators the last day of April 33 Eliz. made an Arbitrement in writing under their hands and Seals that within four daies next ensuing the award either of the said parties shall release each to other all Actions Suits and Demands before the date of the said Obligation with this Proviso that if either of the said parties shall be discontented with the said Award or any part of it within twenty daies after the Award that then upon the payment of 10 s. by the party which thinks himself agrieved with the Award to the other within the twenty daies the Award shall be void either of them to be at liberty against the other as before the Award and by the whole Court if the Award shall be said made within the time comprised in the Oâ—ligation where the Proviso had been to be performed after the four daies it had been good and a finall Award because that the Proviso to make the Award void after the time limited for making of Releases is repugnant to that which was to be executed before to wit that either of them shall release each to other vvithin four daies for every Avvard ought to be reasonable and indifferent betvvixt the parties in all appearance and so that the one part of it ought not to impugn or encounter the other and here to what purpose shall it be to make the Award void and to put out at liberty against the other when they have made Releases each to other and vvhat indifferenty or reason should there be that vvhen one hath released the other may dissolve the Arbitrement by the Proviso and hovv may the Obligation vvhich had been once forfeited by the not making of the Release vvithin the four daies be helped and become not forfeited by dissolving of the Arbitrement by the Proviso But by Popham Gawdy and Clench if the Releases had been limited to have deen made at a day to come as ten daies after and that the Proviso had been to have been performed in the mean time before these ten daies then the Avvard had been void because they had not pursued the submission for it vvas no finall end of the controversie in as much as it is not certain by reason of the Condition whether it shall be an end or not But it seems to Popham that the Award here is not made within the time that it ought to have been made by the Condition for the Obligation is alledged to be made the 16 of March 33 Eliz. and then no month can be the instant month but March and therfore this word April is but a meer negation and if it should not be so to what April shall it refer for there is no matter to guide it more to one April then another but the generall intendment which happily shall guide it to the next April for avaiding of incertainty if it had not been for the words this instant moneth and the words within this moneth shall not be said to be frivolous vain where they may have a good and plain intendment but rather the word April which is repugnant to it shall be said to be void and a meer negation but it seems to him that as the Award is the case being that at any time within 20 daies after the Award made the one or the other disliking the Award might have been defeated upon the payment of 10 s. if the 10 s. had been paid within four daies as it might have been and before the Releases made the party by the intent of the Award had not been bound to have made the Releases because that by it within the time before the Releases made the Arbitrement shall be defeated by the Condition if it had been a good Award and therfore it shall not be said to be a finall Award at the time of the Award made because that instantly upon it before the four daies are passed there was power in the said parties to have defeated the Award upon the payment of the said 10 s. and therfore it seems to himself also that the Award was void and by consequence the Plaintiff shall be barred 6. KIng Richard the 3. by his Letters Patents granted to the Burgesses of Glocester and to their Successors that the Town of Glocester c. shall be a County of it self several and distinct from the County of Glocester for ever and no part of that County and shall be called the County of the Town of Glocester neverthelesse saving and reserving to himself and his Heirs that the Iustices of Assise in the County of Glocester the Iustices of Goal-delivery and of the Peace in holding of their Sessions and also the Sheriff of the County of Glocester in holding of his County-Courts and every of them may freely enter into the said Town and keep the said Sessions and County-Courts of and for any thing and matter arising out of the said County of the Town aforesaid and within the said County of Glocester as before time they had accustomed to hold them there the said Grant or any other thing notwithstanding And grants further that they shall have a Major two Sheriffs and one Recorder within the same County of the Town of Glocester and that the Ministers of the Sheriff of the County shall not afterwards enter to do or execute any thing
there which to their Office of Sheriff appertaineth or any waies to intermeddle with it except only for the Sheriff of the County of Glocester to hold their County-Courts as is aforesaid And that the Major Aldermen of the said Town for the time being their Successors having power and authority to enquire here determine all things which Iustices of P. or Iustices assigned to hear determine Trespasses and Misdemeanors within the County of Glocest before this time have made or exercised And that the Iustices of Peace of him his Heirs or Successors within the said County of Glocester should not intermeddle with the things or causes which belong to the Iustices of Peace within the said Town c. And upon this Charter divers things were moved by Sir William Periam Knight now chief Baron of the Exchequer before his going into the Circuit 1. Whether by the saving of the Charter they have sufficient power reserved to them to fit within the Town being now exempted from the said Town of Glocester to enquire there of the Felonies done in the said County of Glocester And so for the Assises and Nisi prius taken there of things made in the County of Glocester Then if the the Sheriffs may execute their Warrants made there at the time of the Assises or Goal-delivery notwithstanding the exemption given to them by the Patent And it was agreed by all the Justices that the saving in the Patent is sufficient for the Iustices of Assise and Goal-delivery to sit there for the things which happen within the County of Glocester for as the King may by his Letters Patents make a County and exempt this from any other County so may he in the making of it save and except to him and his Successors such part of the Iurisdiction or priviledge which the other County from which it is exempted had in it before As in divers places of the Realm the Goal of a Town which is a County of it self or which is a place priviledged from the County is the Goal of the County and the place where the Assises or Goal-delivery is holden is within the County of the Town and yet serve also for the County at large as in the Sessions Hall at Newgate which serves as well for the County of Middlesex as for London and yet it stands in London but by usage it hath alwaies been so and nothing can be well prescribed unto by usage which cannot have a lawfull beginning by Award or Grant and this by the division of London from Middlesex at the beginning might be so And so the Goal of Bury c. And although that the words are saving to him and his Heirs yet by the word Heirs it shall be taken for a perpetual saving which shall go to his Successors which is the Queen and the rather because it is a saving for Iustice to be done to the Subjects which shall be taken as largely as it can be And albeit the expresse saving for the Sheriff is but for to hold his turn yet in as much as the authority of the Iustices of Assise and Goal-delivery in holding their Sessions as before was accustomed is saved it is Included in it that all which appertain to the execution of this Service is also saved or otherwise the saving shall be to little purpose And therfore that the Sheriff or other Minister made by the authority of these Courts is well made there and warranted by the Charter And wee ought the rather to make such exposition of the Charter because it hath been alwaies after the Charter so put in execution by all the Iustices of Assise But it seems that by this Commision for the County a thing which happens in the Town cannot be determined albeit it be Felony commited in the Hall during the Sessions but by a Commission for the Towne it may 7. SIr Francis Englefield Knight being seised in his Demesne as of Fee of Vide this case reported in Coke lib. 7. 12 13. the Mannor of Englefield in the County of Berks and of divers other Lands in the first year of Queen Eliz. departed out of the Realm by licence of the Queen for a time and remained out of the Realm in the parts beyond the Seas above the time of his licence wherby the Queen by her Warrant under her privy Seal required him to return upon which he was warned but did not come wherupon the Queen seised his Land for his contempt After vvhich the Statute of Fugatives was made 13. year of the Queen upon which by Commissions found upon this Statute all his Lands were newly seised and afterwards 17 Eliz. by Indenture made between him and Francis Englefield his Nephew and sealed by the said Sir Francis at Rome the said Sir Francis covenanted with his said Nephew upon consideration of advancement of his Nephew and other good considerations to raise an use that he and his Heirs and all others seised of the said Mannor c. shall hereafter stand seised of them to the use of himself for term of his life without impeachment of Wast and afterwards to the use of his Nephew and of the Heirs Males of his body and for default of such Issue to the use of the right Heirs and Assigns of the said Francis the Nephew for ever with a Proviso that if the said Sir Francis shall have any Issue Male of his body that then all the said Vses and Limitations shall be void and with a Proviso further that if the said Sir Francis by himself or any other shall at any time during his life deliver or tender to his said Nephew a King of Gold to the intent to make the said Vses and Limitations void that then the said Vses and Limitations shall be void and that therafter the said Mannors c. shall be as before Afterwards the said Francis was attainted of Treason supposed to be committed by him 18 Eliz. A Le umures in partibus transmarinis le attainder fuit primerment utlagary apres per act de Par. 28 Eliz. by which the forfeiture of the Condition was given to the Queen and at the same Parliament it was also enacted that all and every person or persons which had or claimed to have any Estate of Inheritance Lease or Rent then not entred of Record or certified into the Court of Exchequer of in to or out of any Mannors Lands c. by or under any Grant Assurance or Conveyance whatsoever had or made at any time after the beginning of the Raign of her Majesty by any persons attainted of any Treasons mentioned in the said Act after the 8. day of February 18 Eliz. within two years next ensuing the last day of the Session of the said Parliament shall openly shew in the said Court of Exchequer or cause to be openly shewn there the same his or their Grant Conveyance or Assusance and there in the Term time in open Court the same shall offer
Sheriff of another County then where the occasion brought or by Warrant of a Iustice of Peace of another County for matter of the Peace and the like which are not like to the case of Partridge who was beâ—ten in the County of Glocester by Sir Henry Pole for which he brought his Action in London And Sir Hen. Pole would have justified by Assault of the Plaintiff in the County of Glocester with a trâ—verse that he was not guilty in London But it was then ruled in this Court that he could not do it to oust the Plaintiff to sue in London but in such a case he might have alledged that the Assault was done in London because it was also a thing transitory of which they shall take notice there and so help himself if the matter had been true But in the case at the Bar if the speciall matter alledged in the forraign County be false as here the Plaintiff may maintain his Action and traverse the special matter alledged by the Defendant And so a traverse in such a case may be upon a Traverse when falsity is used to oust the Plaintiff of that benefit which the Law gives him Hillary Term 38 Eliz. Wood versus Matthews 1. IN a writ of Error brought by Owen Wood against Griffeth Matthews upon a judgment given in the common Pleas the case was briefly thus The Issue in the Common Pleas was whether one were taken by a Cap. ad satisfaciendum or not and upon the triall therof at the Nisi prius the Jury found for the Plaintiff in this Action to wit that the party was not taken by the said Capias and upon the back of the Pannell entred dicunt per Quer. but on the back of the Postea the Clark of the Assises certified the Pannell thus to wit That the Jury say that no Capias was awarded which was otherwise then was put in Issue or found by the Jury and the Roll of the Record was according to the Postea and upon this Judgment given for the said Matthew then Plaintiff upon which amongst other Errors this variance between the Issue and Verdict was assigned for Error and after deliberation had upon this point and this matter alledged by the Defendant in the Writ of Error and certified out of the Common Pleas the Court awarded as to this point that the Record sent up out of the Common Pleas by the Writ of Error shall be amended according to that which was endorsed on the back of the Pannell for the endorsement upon the Pannell is the Warrant for the certifying of the Postea aâ—d so this Warrant over to him that makes the Entry in the Roll And therfore wheras it was alledged that the Postea was amended in the Common Pleas aftâ—r the Record removed it was holden to be well done there for although the Record were removed by the Writ of Error yet the Nisi prius the Postea and the like remain still there as it is of the Warrant of Attorney and the like And if the Postea had not been amended there but sent up with that which was endorsed upon the Pannel all shal be amended here according to that which was indorsed upon the Pannel and according to this there was a Presidâ—nt shewn Tr. 35. H. 8. between Whitfeild and Wright where the Issue was whether a quantity of Grain were delivered between two Feasts and endorsed upon the Pannel Dicunt pro quaer and yet the Postea certified and the Rolls also made that the delivery was made ad festa and upon this matter alledged in Banco Regis and the Error in this point assigned and certified out of the Common Pleas the Record removed by the Writ of Error was by award of the Court amended and the word Ad razed out and the word Inter written in lieu of it according as it appeareth it ought to have been by the Note upon the back of the Pannel And the like amendment was made lately in the Checquer Chamber upon Error brought there upon a Iudgment given in Banco Regis where the Iudorsment upon the back of the Writ was pro Quer. and the Postea and Roll was that the Plaintiff was guilty and there amended the last Term. Slanings Case 2. NIcholas Slaning of Bickley was seised in his Demesn as of Fee of the Mannor of Bickley and of a Mill in Walkhampton in the County of Devon called a blowing Mill and of another Mill there called a knocking Mill and of an acre of Land there also and of divers other Mannors and Lands in the said County of Devon the said Mills and acres of Land in Walkhampton then being in the possession of one Peterfeild and Atwill of an Estate for divers years then to come and being so seised he with Margaret his Wife levied a Fine of the said Mannor of Bickley and of other Lands omitting the said Lands in Walkhampton to certain Câ—nuzees who rendred the same back again to the said Margaret Slaning for her life with the remainder over to the said Nicholas and his Heirs After which the said Nicholas by Indenture daied 30. Octob. 21 Eliz. gave and enfeoffed all the said Mannors and Premisses to John Fits and others and the Heirs of the said Fits to the Vses Provisoes and Limitations mentioned in the said Indenture which was to the use of himself and the Heirs Males of his body by any other Wife the remainder to Nicholas Slaning of Newton Ferries and the Heirs Males of his body with divers remainders over with this Proviso to wit Provided and it is the intent of these presents and of the parties therunto that the said John Slaning and the Heirs Males of his body or the said Nicholas Slaning of Newton-ferries and the Heirs Males of his body in whomsoever of them the Inheritance in tail of all the Premisses shall happen to be by force of these presents shall pay to Agnes the Daughter of the said Nicholas Slaning of Bickly 200 l. or so much therof as shall be unpaid at the time of the death of her said Father according to the intent of his last Will with a Letter of Attorney to it by which he ordains John Hart and Robert Fort joyntly and severally his Attorney to enter into the said Mannor of Bickley Walkhampton c. and all other the Lands Tenements and Hereditaments in the said Indenture mentioned and possession for him to take and after such possossion taken for him and in his name to deliver full possession and seisin of the Premisses to the said John Fits c. according to the form and effect of the said Indenture wherupon possession and seisin was given of all but that which was in possession of the said Peterfield and Atwill And the said Pererfield and Atwill nor either of them never attorned to the said Grant After which Nicholas Slaning of Bickly made his last Will by which devised to the said Agnes his Daughter 200 l. to be paid in form following
Living And Mountague chief Iustice said that this word Bribing doth not import that he took a Bribe and therfore this word and all the other words but corrupted Knave are idle but these words impeacheth him in his Office for it hath reference to that and therfore is actionable And Iudgment was given accordingly The same Term in the same Court Sir Baptist Hickes Case in the Star Chamber SIr Baptist Hickes having done divers Pions and Charitable Acts to wit had founded at Camden in Glocestershire an Hospitall for twelve poor and impotent men and women and had made in the same Town a new Bell tunable to others a new Pulpit and adorned it with a Cushion and Cloath and had bestowed cost on the Sessions House in Middlesex c. one Austin Garret a Copyholder of his Mannor of Camden out of private malice had framed and writ a malicious and invective Letter to him in which in an ironicall and deriding manner he said that the said Sir Baptist had done these charitable works as the proud Pharisee for vain-glory and oftentation and to have popular applause and further in approâ—rtous manner taxed him with divers other unlawfull Acts And it was resolved by the Court that for such private Letters an Action upon the case doth not lye at Common Law for he cannot prove his case to wit the publishing of it but because Where a private Letter is punishable as a Libell it tends to the breach of the Peace it is punishable in this Court and the rather in this case because it tends to a publike wrong for if it should be unpunished it would not only deter and discourage Sir Baptist from doing such good Acts but other men also who are well disposed in such cases and therfore as the Arch-bishop observed this was a wrong 1. To Piety in respect of the cost bestowed on the Church 2. To charity in regard of the Hospitall 3. To Iustice in consideration of the Session House and these things were the more commendable in Sir Baptist because he did them in his life time For as Mountague chief Iustice observed they who do such acts by their Will do shew that they have no will to do them for they cannot keep their Goods any longer And he only took a diversity where such a Letter concerns publike matter as they did or private in which case it is not punishable But the Lord Coke said that it was the opinion of the Iudges in the Lord Treasurers case when he was Attorney that such a private Letter was punishable in this Court and therupon he had instructions to exhibit an Information but the Lord Treasurer Jacens in extremis was content to pardon him and so it was resolved between Wooton and Edwards And Sir Francis Bacon Lord Chancellor said that the reason why such a private Letter shall be punished is because that it in a manner enforceth the party to whom the Letter is directed to publish it to his friends to have their advice and for fear that the other party would publish it so that this compulsary publication shall be deemed a publication in the Delinquent and in this case the party was fined at 500 l. The same Term in the same Court. Bernard versus Beale AN Action upon the case was brought for these words viz. That the Words That the Plaintiff had two Bastards 36. yeaâ—s since Plaintiff had two Bastards 36. years ago upon the report wherof he was in danger to have been divorced And it was resolved that for Defamation there was no remedy but in the Spirituall Court if he had no temporall lesse therby and therfore it is not sufficient to ground an Action to say that he was in danger to be diverced but thâ—t he was De facto divorced or that he wâ—s to have a presentment in marriage as it is in Anne Devies case Co. lib. 4. The same Term in the same Court. Brabin and Tradums Case THe Case was That the Church-wardens of D. had used time out of mind to dispose and order all the Seats of the Church wherupon they disposed of a Seat to one and the Ordinary granted the same Seat to another and his A Prohibition for a Seat in the Church Heirs and excommunicated all others who afterwards should sit in the Seat and a Prohibition was prayed and granted for this grant of a Seat to one and his Heirs is not good for the Seat doth not belong to the person but to the house for otherwise when the person goes out of the Town to dwell in another place yet he shall retain the Seat which is no reason and also it is no reason to excommunicate all others that should sit there for such great punishments should not be imposed upon such small Offenders an Excommunication being Traditio diabola In the same Term in the same Court. Fulcher versus Griffin THe Parson of D. covenanted with one of his Parishoners that he should A Parson covenant that his Parishoners shall pay no Tithes pay no Tithes for which the Parishoner covenanted to pay to the Parson an annuall summ of money and afterwards the Tithes not being paid the Parson sued him in the Court Christian and the other prayed a Prohibition And it was agreed that if no interest of Tithes passe but a bare Covenant then the party who is sued for the Tithes hath no remedy but a Writ of Covenant And the better opinion of the Court in this case was that this was a bare Covenant and that no interest in the Tithes passe The custody of a Copyholder that was a Lunatick was committed to Darcies case in the Common Pleas. I. S. and for Trespasse done upon his Land it was demanded of the Court in whose name J. S. should bring the action and their opinion was that it should be in the name of the Lunatick Trinity 16. Jac. In the Kings Bench. The Earl of Northumberlands Case THe Earl of Northumberland being seised of the Mannor of Thistleworth in which he had a Leet to be holden twice a year to wit within a moneth after Easter and a moneth after Michaelmas and Henry Devell being a Free-holder of the said Mannor erected a new Dove-coat at Heston within the Precinct of the said Leet which was presented at the Leet for a common Nusance for which Devell was amerced 40 s. and was commanded to remove it upon pain of 10 l. for the which a Distresse was taken by Henry Sanders and others as Bailiffs to the said Earl wherupon Devell brought a Replevin and they made Avowry and justified as Bayliffs and prescribed that they used to make by-laws to redresse common Nusances and also prescribed in the Distresse And the point in question was whether the new erecting of a Dove-coat by a Free-holder were a common Nusance punishable Whether the erecting of a Dove-coat be a common Nusance in the Leet And it was resolved by the whole Court upon
given in Cities and Towns Corporate and not where Iudgment is given in this Court or the Common Pleas and Executions are only there and this seems to be a reasonable construction Executions in Towns corporate to wit Executions upon Iudgments given in Towns corporate If the Sheriff make execution at the Town side he shal have for his fees as the Statute limits therfore he shall have it if within the Town if this should not be so this mischief would ensue that presently when an Execution issues out against a man he wil shelter himself in a Town corporate as in a Sanctuary and the Sheriff will not do execution there because he shall not have so great a Fee for doing it as if it were in another place and so execution which is the life of the Law shall be undone Jermy for the Defendant and first if the summ exceed a 100 l. he shall have but 6 d. for every 20 s. of all It is considerable that at Common Law the Sheriff ought to do execution freely without any recompence In Both and Sadlers case lately in this place an action upon the case was brought by a Bailiff that wheras a Warrant for taking such a man was directed to him the Defendant promised him 40 s. for his pains he took the man and brought an action for the 40 s. and it was agreed that he should not have it The Law abhors that great Fees shall be given for executions Co. lib. 3. 7. in Heydons case In the exposition of the Statute three things are considerable 1. What the Common Law was before the making of it 2. What the mischief was at the Common Law 3. The remedy which the Statute gives 4. The true reason of the remedy The Common Law was that the Sheriff shall not take any Fee for execution Ergo now he shall take as small a fee as may be because this is nighest to the common Law And the first words are declarative what Fees he shall take and the subsequent words affirmative what Fees they may now take to wit where the summ doth not exceed a 100 l. 12 d. for every 20 s. 14 Jac. It was objected that the Sheriff is not bound to do execution before he hath his Fee and then it was resolved that he might have an action of Debt and so it seems that the party is not bound to give levying money before that the execution be done and otherwise the party Plaintiff may be at great mischief if the other be not taken And it hath been agreed lately in the Common Pleas that if the summ exceed 100 l. he shâ—â—l have but 6 d. for every 20 s. And as to the second point he endeavoured to maintain that the Proviso extends to executions in Towns corporate although the Iudgments upon which the executions issue are given in other Courts and this is the constant practise of the City of London The Iudges delivered their opinion with a protestation that they might recall them if afterwards better reason appeared Crew chief Iustice was of opinion that he shall have but 6 d. for every 20 s. if the summ exceed 100 l. and the summ shall not be divided but if the summ be under a 100 l. then 12 d. for every 20 s. and this is the reason of the Law And for the second point although the Iudgment be given in the superior Court yet if the Sheriff does execution there he shall have his levying money and this is within the intention of the Proviso Doderidge Iustice the first question is upon the exposition of the Statute the second upon the Proviso For the first two expositions may be made as hath been remembred then we will enquire of the interpretation This Statute was made for the benefit of Sheriffs that as they are in hazard by taking of men because many times resistance was made 2. When the Sheriff had taken a man and in the carriage of him to prison he had escaped an action upon the case did lye against the Sheriff and when he had him in prison he ought to have great care in keeping of him for an action lies against him if he escape and therfore although on the one side there was a great mischief by reason of great Fees that the Sheriff took for execution so on the other side the Law tendred Sheriffs in respect of the hazard â—â—d care which they had of men in execution and therfore the Law in an indifferency provides that the Sheriff shall have a good Fee for execution and also it provides against his extortion and so it is indifferent between the oppression of the Sheriff and covetousnesse and we are not to judge according to the intent but according to the equity of the Law for equality to prevent the covetousnesse of Sheriffs and the oppression of the people then in this case if he shall have but 6 d. for every 20 s. for 200 l. he shall have no more for execution of 200 l. then if it were a 100 l. But I think this was not the intent of the Act. For the second point I take it that this Statute did not extend to Suits within Towns corporate and executions upon them for they are not at any great trouble for doing of execution within their Towns nor hazard But if a Sheriff does execution in a Town corporate then he shall have according to the Statute for it may be that the Prison is far distant And I upon the suddain conceive that this Proviso extends only to Towns corporate which are Counties Jones Iustice three questions have been made upon this Statute 1. For the nature of the action which the Sheriff is to have upon this Statute and for that it hath been many times resolved that he shall have an action of Debt for when a remedy is given by a Statute and no action is given by the same Statute wherby the penalty shall be recovered there he shall have an action of Debt 2. Who shall have the Fee when the Sheriff makes a Warrant to a Bayliff of a liberty the Bayliff of the liberty or the Sheriff The second branch of the second question is thaâ— when one Sheriff makes the extent and another Sheriff makes the Liberate who shall have the Fee 3. The third question hath been in debate in the Common Pleas and there was some opinion that if the summ be above a 100 l. and under 200 l. that the Sheriff shall have 12 d. for every 20 s. of the first 100 l. for otherwise the Sheriff shall have a lesse for execution of 199 l. then he shall have for 100 l. But if it be above 200 l. he shall have 6 d. ab initio My opinion on the suddain is that for every 20 s. of the first 100 l. he shall have 12 d. and for the residue he shall have 6 d. for every 20 s. and the other shall not be altered And for the second point I hold that this
Proviso extends only to Iudgments originally commenced in Towns corporate and not to executions upon Iudgments given in superior Courts for then the Sheriff does execution as an Officer to these Courts And the Sheriff of the County is at as great pains as if he were Sheriff of another County and shall not be bound by the Proviso Whitlock Iustice was for the Plaintiff in both the points to wit that the Sheriff shall have 1 s. for every 20 s. of the first 100 l. and 6 d. for every 20 s. of the residue And by him the Sheriff may refuse to do execution untill the levying money be paid to him And for the second point the Sheriff of the County of the City is not within the Proviso but shall have the Fees by the Statute provided as well as the Sheriff of the County shall have for the words are generall and the exception goes to all Towns corporate and Cities but doth not say Cities which are Counties and therfore this Sheriff is within the benefit of this Law And in Michaelmas Term next following the case was moved again by Whitlock for the Plaintiff and he said that he would not speak to the second point because the Court had delivered their opinion that the Proviso in the Statute that this shall not extend to executions in Towns corporate it is to be intended of executions in Towns corporate upon Iudgments there given But for executions there upon Iudgments given in this Court or any other superior Court the Sheriff shall have such Fees as are limited by this Statute And the Court said to him that were agreed of it And as for the first point he conceived that the Sheriff shall have 12 d. for levying of every 20 s. of the first 100 l. and 6 d. of every pound more and this appears cleerly by the Letter of the Statute And the case in Mich. 19 Jac. in C. B. between Empson and Bathirst doth not make against it for the resolution of the said case was upon other matters The case being a man was bound in a Statute of 120 l. the Sheriff extends and before the Liberate takes double Bond of the party for payment of his Fees and afterwards brought Debt against the party who pleads the said matter in Bar and the Statute of 23 H. 6. cap. 10. And in the case were three points 1. Whether the Sheriff may take a double Bond for the payment of his Fees and it was resolved that the Bond was void for the Sheriff might have Debt upon the Statute for his Fees 2. Whether the Sheriff shall have his Fees before the Liberate and resolved that he shall not 3. Was this very question and two Iustices were against one that where the summ exceed 100 l. he shall have but 6 d. for levying of every 20 s of the first 100 l. But the Iudgment was given upon the other points All the Court seemed to be of opinion that he shall have 12 d. for every 20 s. of the first 100 l. and 6 d. for every 20 s. of the residue The same Term in the same Court. Awdeley versus Joye AWdeley being put out of the Town-Clarkship of Bedford moved for a Writ of Restitution to the place and it seemed to Doderidge Iustice that the Iustices of this Court have power to grant restitution in this case and he cited a case in 16 Eliz. in this Court where restitution was granted in such a case and 43 Eliz. by warrant of Fennor Iustice a Writ of Restitution was granted One who was Town Clark of Boston for life was made Alder-man and put out of his Clarkship and was restored This Court hath power not only in judiciall things but also in some things which are extrajudicial The A Writ of Restitution to a Town-Clark being ousted of his Office Major and Commonalty of Coventry displaced one of the Alder-men and he was restored And this thing is peculiar to this Court and is one of the flowers of it Crew chief Iustice doubted whether restitution could be made to Awdeley or no because the Office was granted to him in Reversion when it was expectant upon an Estate for life and when the Officer for life died Joye was elected and he said that all the said Writs remembred are where he had once possession Whitlock Iustice in the case of one Constable 10 Eliz. It was resolved that this Court hath power to grant restitution in such a case where he was put out of his Office And by Jones Iustice this Court hath power to grant Restitution and he remembred one Mittlecots case And Noy being of Counsell with Awdeley said that there are Presidents to prove this in the times of E. 2. E. 3. and H. 6. And it was said by the Iustices that they are the chief Conservators of the Peace within the Realm and therfore have power for the preservation of the Peace in such factious Towns to grant restitution The same Term in the same Court Dabborne versus Martin THomas Dabborne brought an action upon the case against Martin for Words Thou art a Knave of Record these words Thou art a Knave of Record and a forgering Knave And it was argued by Jermy for the Defendant that the words were not actionable for a Knave signifies a Male-child so that it is no more then to say Thou art a Male-child of Record And for forgering Knave the action will not lye for Forger is a generall word and may be applied to divers Trades as forgering Smith forgering Goldsmith and when he called him forgering Knave there was no communication of his Office 18 Jac. Sir William Brunskill brought an action upon the case and declared that he was well discended and was a Gentleman of the Chamber to Prince Henry and he brought an action for these words Thou art a Cosener and livest by cosenage and adjudged not actionable Co. lib. 4. 16. Action upon the case doth not lye for these words Thou art a corrupt man if there were no communication touching his Profession And it was argued for the Plaintiff that the words were actionable for it lyeth for these words Thou art an Out-putterer if they were spoken in Northumberland where they are understood but not here because they have no signification And the words here are speciall and shall have reference to his Office and shall have such an interpretation as is now used and now Knave hath no signification of Male-child Jones Iustice said that if one saith that such a one is a corrupt Iudge action lies or if one saith of a Clark that he is a forging Clark action lies And in 28 Eliz. the opinion of Iustice Fennor was that for these words Thou hast forged my Fathers Will action lies Crew said that he did not understand the word Forgering but for calling one Knave of Record action lies And Doderidge Iustice said that he never gave way to these actions upon the case for words And no opinion