Doctor and Student 137. in what case the Master shall answer for his Servant Coventry Solicitor to the contrary for it was lawful for the Plaintiff to command his Servant to sell them for it was found by the Verdict that the Iewels were of some worth and value and he did not command him to sell them for more then they were worth and 9 H. 6. 53. b. If the Master send his Servant into a Fair or Market to Merchandize for him the Master shall not be punished for his fault And in this case the command was not to deal with the Plaintiff or to sell to any one in particular and for it see 9 H. 6. aforesaid And if the Servant will exceed the lawfull command of his Master the Master shall not be punished therfore but if the command be unlawfull it is otherwise 11 E. 4. 6. A man sells cloath of such a length which proves to be short of the length an action lies not without a Warranty so Fitz. N. B. 64. c. For Wine if it be warranted to be good an action lies if it be corrupt If my Beasts go into another mans Soil an action lies against me but if my Servant drive my Beast into another mans Soil I shall not be punished for he doth this of his own wrong without any such warrant from me 13 H. 7. b. And if when a man sell a thing for more then it is worth an action would lye for it we should never have an end of actions And the action doth not lye for another reason because it doth not appear that the King of Barbary did lawfully imprison the Plaintiff 26 H. 8. 3. If a man makes a Lease and covenants that he shall not be disturbed if a stranger disturb him an action lieth not against the Covenantor so here c. for it seems it was Ex regali potestate and not in a lawfull manner and so he concluded that the action will not lye and so it was resolved by the whole Court Mountague chief Iustice the Plaintiff is no party who shall have the action but the King of Barbary 2. The Verdictis contrary to the Declaration and Iewels are in value according to the estimation and therfore 38 Eliz. between Simson and Sanders in the Star Chamber it was resolved that a man shall not be punished for Perjury upon the valuation of Iewels Doderidge said that 22 Eliz. an action upon the case was brought in the Common Pleas by a Clothier that wheras he had gained great reputation for his making of his Cloath by reason wherof he had great utterance to his great benefit and profit and that he used to set his mark to his Cloath wherby it should be known to be his Cloath And another Clothier perceiving it used the same mark to his ill-made Cloath on purpose to deceive him and it was resolved that the Action did well lye The same Term in the same Court VPon an Indictment of Barretry before the Iustices of Wales a Certiorari was moved for to remove it into this Court And it was said at the Bar that it had not been seen from the time of E. I. that such a Writ A Certiorarâ— granted into Wales had been granted in the like case and therfore he collected that it ought not to be granted But it was resolved by the Court that a Certiorari should be granted in regard it is in the Kings case and by Haughton Iustice notwithstanding the Statute Quod communia placita non sequantur Curiam meam yet it is plain that the King may sue in what Court he will And albeit this Writ in such a case ought not to be granted in case of a common person yet that is no reason but that it may be granted in the case of the King The same Term in the same Court Sir Henry Glemhams Case IN a Quo warranto against Sir Henry Glemham for using certain Liberties to which Sir Henry pleaded in Bar and the Kings Attorney replyed and so this matter rested three years and then the Kings Attorney put in a new Replication and joyned Issue upon other points And it was moved for the Defendant that he might put in a new Bar in regard the Replication A Plea not to be amended in another Term without assent of parties is altered and nothing was entred but all remained in paper And it was agreed by the Court that the King shall not be concluded but that he might put in his Replication at any time And that the King cannot make a double Plea for the other party shall answer first to one and then to the other And the Court would not allow Sir Henry to make a new Bar in this case without the assent of the Attorney who would by no means agree to it And in case of a common person this shall not be allowed without the assent of parties The same Term in the same Court IN an Action of Trover and Conversion between one Nicholas and William Ward it was agreed that tithe Lamb and Wooll was included within small Tithes And Mountague said that a Vicaridge endowed Lamb aâ—d Wooll included in small Tithes might be appropriated but not to the parson to which Haughton and Doderidge agreed 31 H. 6. Fitz. tit Indicavit is that such a Vicaridge may be dissolved An appropriation may be by the King sole where he is Patron but there is no Book that it might be by the Patron sole Grindons case in Plowden and 17 E. 3. 39. An Appropriation cannot be without the Kings licence The same Term in the same Court. Blaxton versus Heath IN an Action of Debt by Blaxton against Heath the case was this A man possessed of a term for twenty years in right of his Wife made a Lease for ten years rendring rent to him his Executors and Assigns and died And the question was whether the Wife shall have the rent after his death or his Executors and it was argued that the wife should nâ—t have it because she was in by a Title Paramount as if there be two Joynt-tenants for life the one makes a Lease for years rendring rent and dies the other shall not have the Rent Dyer 167. and so of Joynt-tenants in fee Co. lib. 1. 96. and Perkins accordingly To which Mountague chief Iustice agreed for he said it was but an extract of ten out of twenty the remainder continuing as before And Redditus is Reventus a turning again but it is otherwise of a Condition which is a new Creature of which the wife shall take no advantage Crook Iustice This is a speciall reservation and therfore the Executor shall have it and not the wife for she comes in Paramount as in the case of Ioyn-tenants Haughton agreed therunto and said that the Rent shall be incident to him who hath the Reversion under the Lessor who is the Executor And Mountague demanded of Hobert chief Iustice of the Common Pleas his opinion in this
l. at such a day without saying how or in what manner these Debts accrued or when because the Action is nor meerly founded upon the Debt but upon the promise and the Debts are but inducements to it But if it were to recover the Debts themselves in an Action of Debt there ought to be made a certainty therof to wit when and how it comes And further here in as much as the Assumpsit is found for the Plaintiff it shall be implyed that the consideration was duly performed for without due proof of the consideration the Plaintiff hath failed of his assumption and therfore also it shall be now taken that the Testator hath such a term of years in reversion to which the term for years in possession may be surrendred for he said that he who hath ten years in possession may well surrender to him who hath more years as twenty in reversion for the lesser may surrender to the greater term To all which Popham and Fennor agreed And Popham said further although it shall be taken most strongly against Hughes to wit that Robotham had a lesser term in the reversion then Hughes had in the possession yet the surrender shall be good for in Law it is greater and more beneficiall for him to have a lesser term to be a term in possession then to have it to be in reversion â—â—nd by him if a Lessee for twenty years make a Lease for ten years then he wâ—ich makes the Lease for ten years hath a reversion upon these ten years so that if Rent be reserved upon it he may distrain for it and have Fealty of the Termor And if he grant the Reversion over for ten years with attornment of the Termor in possession the Grantee hath the Reversion and shall have the Rent for the time and yet the Remainder for years remains alwaies to the Grantor and therfore before the Reversion granted ever the Termor for ten years in possession might have surrendred to his Lessor and therby the said Lessor shall have so many of the said years which were then to come of his former term of twenty years And after the Reversion granted he which hath the ten years may surrender to the Grantee of ten years in Reversion and there he shall have so many years in possession which were to come of his Reversion Quod nota bene And if he had had a lesser term in the Reversiâ—n then the Lessâ—r himself had in the Possession it shall go to the benefit of the first Termor for twenty years who was his Grantor for the Term in possession is quite gone and drowned in the Reversion to the benefit of those who have the Râ—version therupon having regard to their Estate in the Reversion and not otherwise to all which Fennor agreed wherupon Gawdy gave the rule that Iudgment shall be entred for the Plaintiff But Popham said that if the consideration for the surrender had not been sufficiently alledged that the Plaintiff shâ—uld not be helped by the other consideration of 100. marks given by Thornel for if such an Assumption as this is be founded upon two more considerations and such which by possibility may be performed then the party hath failed of his Suit As if a man in consideration of 5 s. paid and of other 5 s. to be paid at a day to come assume to do a thing or to pay money if the one 5 s. be not paid or if it be not averred that the other 5 s. was paid at the day limited for the payment of it the party hath failed in his assumption in the one case and the declaration is insufficient in the other case for he hath made a departure from his consideration But if one of the considerations be impossible or against Law there the other considerations which are possible or stand with the Law suffice if they he well alledged And he said that the Executor shall be charged with the contract of the Testator by common course of the Court which stands upon reason for if an Action of Debt upon a bare contract be brought against an Executor if he do not demur upon it but plead to the Paâ—s that he owes him nothing and it is found against him he shall be theâ— by charged of the Goods of the dead and the cause why he may be helped by demurring upon the declaration in that case is becâ—use the Testator might have waged his Law in that case of debt which the Executor could not do of other contracts and therfore shall not be charged with it by such an act if he will help himself by demurrer but in â—he assumption of his Testator he could not have waged his Law and it is founded upon the death of the Testator to wit his debt with which the Executor by a mean may be charged as before and therfore the assumption in such a câ—se maintâ—inable against the Executor But if the Testator upon good consideration assume to make assurance of Land or to do any other such collaterall thing which doth not sound in a duty of a thing payable there the Executor shâ—ll never be charged with such an assumption to render recompence for it And to this agreed all the Iustices â—â— the common Bench and Barons of the Exchequer And such an assuâ—â—â—ion hath not been allowed in the Kings Bench but of late time and thâ—â— but 〈…〉 or two cases But in the other case it hath been common and of 〈…〉 and therfore now too late to be drawn in question and if it should â—â— it may be maintained with good reason in this case of a duty of â—â—ing payable in as much as the Testator cannot wage his Law in the Action but in the other case there is no reason nor course of the Court to maintaiâ— it But the Iudges in the Exchequer Chamber reversed all these Iudments in both cases 2. Nota that this Term was adjourned to Octob. Trin. and because the Writ was that Adjournment shall be made in Octob. Trin. of all cases untill Tres Trinitat the Adjournment was made in every of the Courts of Kings Bench Common Bench and the Exchequer the very first day of Octob. Trin. then it was holden by the Iustices that the Adjournment ought not to have been made untill the sitting of the Court the fourth day from Octabis And because that the Writs were that at the said Tres Tr. the Term shall be holden therafter as if no Adjournment had been the Iustices held that they ought to sit the first day of the said Tres Trin. and so from thence every day untill the end of the Term and for all causes as if no adjournment had been and so they did accordingly saving by assent some of the Iustices did not come thither by reason of their far distance from London at the end of the Term upon the last Adjournment But they held that if it had not been for the especiall words in the Writ which were
dies and afterwards John his Son and Heir dies without Issue the reversion by this descends to the said Christopher who dies leaving Issue And upon this Case made in the Court of Wards the two chief Iustices Popham and Anderson agreed first That upon the devise and death of the Father the said Christopher and William were Joynt-tenants of the Land and not Tenants in Common notwithstanding the word severally because it is coupled with the said word joyntly But yet they agreed also that by the descent from John to Christopher the Fee-simple was executed in the said Christopher for the Moyety in the same Mannor as if he had purchased the Reversion of the whole or of this Moyety and that it is not like to the Case where Land is given and to the Heirs of one of them in which case for the benefit of the Survivorship it is not executed to divide the Ioynture because the Estates are made at one and the same time together and therfore not like to the case where the Inheritance cometh to the particular Estate by severall and divided means And a Decree was made accordingly Trin. 36. Eliz. In the Kings Bench. 1. IT was agreed by all the Iustices and Barons of the Exchequer upon an Assembly made at Serjeants-Inn after search made for the ancient Presidents and upon good deliberation taken If a man have two houses and inhabit somtimes in one and somtimes in the other if that House in which he doth not then inhabity be broken in the night to the intent to steal the Goods then being in his house that this is Burglary although no person bee then in the House and that now by the new Statute made such an Offender shall not have his Clergy for before the Statutes were made which take away Clergy in case of Burglary where any person was put in fear no mention was made in the Inditements of Burglary that any person was in the House But it was generall that the house of such a one Noctanter fregit and such Goods then there Felonice cepit And the breaking of a Church in the night to steal the Goods there is Burglary although no person be in it because this is the place to keep the Goods of the Parish And in the same manner the house of every one is the proper place to preserve his Goods although no person be there And that the Law was alwaies so it is to be collected by the course of the Statutes therof made for first the Statute of 23 H. 8. doth not take Clergy from any in case of Burglary unlesse some of the same Family be in the house and put in fear And in 5 Eliz. 6. The Offendor shall be ousted of his Clergy if any of the Family be in the house be they sleeping or waking And these Statutes were the cause that it was used of late time to put in the Inditements of Burglary that some person of the Family was then in the house to put them from their Clergy But this doth not prove that it shall not be Burglary but where some person was in the house and by 18 Eliz. Clergy is taken away in all cases of Burglary generally without making mention of any person to be there which enforce the resolution aforesaid and according to it they all agreed hereafter to put it in Execution Finch versus Riseley 2. IN this Term the case betweeen Finch and Riseley was in question before all the Iustices and Barons for this assembled at Serjeants-Inn in Fleetstreet where after Arguments heard by the Councell of the parties upon this point only If the Queen make a Lease for years rendring Rent with a Proviso that the Rent be not paid at the day limited that the Lease shall cease without making mention that it was to be paid at the receit whether the Lease shall cease upon the default of payment before Office found therof And by Periam and some of the Iustices the Lease stall not cease untill an Office be found of the default because it is a matter in Fait which determines it to wit the not-payment And by Gawdy it shall be taken as if it had been for the not-payment that the Proviso had been that the Lease shall be forfeited In which case it is not detennined untill Re-entry made for the forfeiture which in the Queens case ought alwaies to be by Office which countervails the re-entry of a common person As where the Queen makes a Lease rendring Rent and for default of payment a Re-entry albeit the Rent be not paid yet untill Office found therof the Rent continues Popham Anderson and the greater part of the Iustices and Barons resolved that it was cleer in this case that Ipso facto upon the default of payment the Lease was determined according to the very purport of the contract beyond which it cannot have any beeing and therfore there needs no Office in the case But where it is that it shall be forfeited or that he shall re-enter there untill advantage taken of the forfeiture in the one case or untill re-entry made in the other case the Term alwaies continues by the contract And where in the case of a common person there is need of a re-entry to undo the Estate there in the case of the King there needs an Office to determine the Estate for an Office in the Kings case countervails an entry for the King in person cannot make the entry And upon this resolution of the greater part of the Iustices in Mich. Term 31 32 Eliz. the same case was in question in the Office of Pleas in the Exchequer between the said Moil Finch Plaintiff and Thomas Throgmorton and others Defendants and there adjudged by Manwood late chief Baron and all the other Barons unanimously after long argument at the Bar and Bench that the Lease was void upon default of payment of the Rent according to the Proviso of the Lease and this immediatly without Office for the reasens before remembred upon which Iudgment was given a Writ of Error was brought before the Lord Keeper of the great Seal and the Lord Treasurer of England where it long depended and after many arguments the Iudgment given in the Exchequer by the advice of Popham and Anderson was affirmed and that upon this reason for the Proviso shall be taken to be a limitation to determine the Estate and not a Condition to undo the Estate which cannot be defeated in case of a Condition but by entry in case of a common person and but by Office which countervails an entry in the case of the Queen And this Iudgment was so affirmed in Mich. Term 36 37 Eliz. Smiths Case 3 IT was found by Diem clausit extremum after the death of Richard Smith that in consideration of a marriage to be had between Margaret Smith and William Littleton a younger Son to Sir John Littleton Knight and of 1300. marks paid by the said Sir John to the said
but as referring to the provision subsequent in the Statute in which case this matter shall be used but as the Proviso it self shall be and according to this it hath been commonly put in practise by all the Iustices in all places after the Statute untill now And they agreed also that it need not be shewn whether he were made a Iesuit or Priest c. either beyond Sea or within the Realm because whersoever it was it is within the Law if he were made by the pretended authority of the See of Rome But they agreed that it ought to be comprised in the Indictment that he was born within this Realm or other Dominions of the Queen but need not to shew where but generally Et quod I. S. natus infra hoc Regnum Angliae c. And the Indictment ought to comprise that he was a Iesuite or Priest c. by authority challenged or pretended from to the See of Rome because that this is in the body of the Act without such reference as in the other point and according to this resolution the proceeding was against the said Southwell Easter Term 37 Eliz. Pigots Case 1. AFter the death of Valentine Pigot Esquire a Commission was awarded in nature of a Mandamus and after the death of Thomas Pigot Father of the said Valentine a Commission was awarded in nature of a Diem clausit extremum and the said Commissions were awarded to one and the same Commissioners who by one Inquest took but one Inquisition upon these severall Commissions in this form Inquisitio indentata captâ— apud c. virtute Commiss in natura brevis de diem clausit extremum eisdem Commiss direct c. ad inquirendum post mortem Thomae Pigot Ar. nuper defuncti patris predict Valentin per sacramentum c. Qui dâ—cunt c. After which all the points of the Câ—mmission after the death of the sâ—id Valentine are enquired of but for the Commissions after the death of the said Thomas Pigot it is imperfect in some points as who is his Heir c. is not found And by Popham and Anderson this Inquisition is void as to Valentine as well as for Thomas for their authorities which are the Commissions are by severall Warrants which cannot be simul semel by one and the same Inquisition executed and satisfied but ought to be divided and severall as the Warrant is severall and yet the same Inquest which found one Inquisition by one Warrant may also find another Inquisition by the other Warrant but divided and severall and not as one for as it is made it does not appear upon which of the Commissions the Inquisition as to Valentine is taken for as it is made it may be as well upon the one as upon the other for it is said to be by vertue of both the Commissions which cannot be and therfore is not good in any part and severall Warrants ought to be severally execused and therfore although the Escheator as appeareth by 9 H. 7. 8. may take â—â— Inquisition Virtue officii and at the same day another Inquisition Virtue brevis by one and the same Inquest yet this cannot be drawn into one Inquisition And that which is found Virtue officii contrary to that which before the same day Virtute libris as that it found more Land is good for the King And this their opinion was certified to the Court of Wards Sir Rowland Haywards Case 2. THis Case was also sent to the same chief Iustices out of the Court of See this case in Coke â— Report 35. Wards Sir Rowland Hayward being seised in his Demesne as of Fee of the Mannors of D. and A. in the County of Salop and of other Lands in the same County part wherof were in Lease for years by severall Indentures rendring certain rent part in the possessions of severall Copyholders and part in Demesne in possession out of Lease by Indenture dated 2. September 34. Eliz. made mention that this was for and in consideration of a certain sum of money to him paid by Richard Warren Esquire and others demised granted bargained and sold to the said Richard Warren and the others the said Mannors Lands and Tenements and the Reversion and Remainder of them and of every part of them and the Rents and Profits reserved upon any Demise therupon for 17. years next ensuing the death of the said Sir Rowland rendring a Rose at the Feast of S. John Baptist yearly if it be demanded which Deed was acknowledged to be enrolled and afterwards by another Indenture covenanted and granted for him and his Heirs hereafter to stand seised of the said Mannors Lands and Tenements to the use of the said Sir Rowland and of the Heirs Males of his body and afterwards and before any Attornment to the said Richard Warren and his Co-lessees or any of them the said Sir Rowland died seised of the said Mannors Lands and Tenements leaving a full third part of other Lands to descend to his Heir And it was moved on the Queens part that for part to wit for that which was in possession it past to the said Richard Warren and the other by way of Demise at Common Law and therfore it doth not passe afterwards by way of Bargain and Sale as to the Remainder and that therfore for the Services of the Mannors and for the Rents reserved upon the Demise these remain to the Heir who was in Ward to the Queen and within age and therfore to the Queen by reason of the Tenure which was in Capite by Knights-service But by Popham and Anderson it is at the Election of the said Richard Warren and his Co-lessees to take it by way of Demise or by way of Bargain and Sale untill that by some act done or other matter it may appear that their intent is to take it another way for the Vse in this case may well passe without the Inrolement of the Deed because the Statute of 27 H. 8. of Inrolements extends but to where a Free-hold is to passe and the Vse so passing this shall be executed by the Statute of 27 H. 8. of Vses and therfore if the said Richard Warren and his Co-lessees after the death of the said Sir Rowland Hayward would elect to take it by way of Bargain and Sale they shall have all the Reversions Remainders Rents and Services as well as the Land in possession executed to them by the Statute of Vses And of the same opinion were all the Iustices in Trinity Term following upon their meeting at Serjeants-Inne for another great cause Trinity Term 37 Eliz. 1. VPon an Assembly of all the Iustices and Barons of the Exchecquer at Where a Justâ—ce of Peace bails one who is not bailable he shall be sined and albeit he be committed but for sufficiâ—â—â— of Felony and haâ—h no notice of his offence Serjeants-Inne in Fleetstreet this Term it was resolved by them and so agreed to be hereafter put
Prohibition and had it and Noy moved for a Consultation 1. Because that a Prohibition and an Attachment upon it are but one Suit for the contempt of the party in bringing his Suit in another Court and translating this from the Kings Court and when it is once tried for the Defendant the same thing shall not be tried again And as to the Statute of 50 E 3. 4. upon the mistake wherof the mistake is raised he confessed that the Printed Books and also in the Extract of the Parliament one Roll remaining in the Tower is the same Iudge but the Parliament Roll it self and the Petition is Liceatque Iudici Ecclesiastico sive diocess eidem an hujusmodi and the answer to the Petition is one Consultation granted sufficeth in this case And the Parliament Roll it self was brought into the Court and viewed but he said that if it were as it is in the printed Book and Extract the same Iudge shall not be intended the same personall Iudge but the same Iudge of Conusance of the same Iurisdiction or cause for otherwise if another Commissary be made as the Bishop may when he will his Successor may be newly prohibited and also one thing may be infinitely tried for in many places the Suit begins in the Arch-deacons Court and from him an Appeal may be brought to the Bishop The same Term in the Kings Bench. Pack versus Methold in a Writ of Error IN Mich. Term 22 Jac. Methold brought an action upon the case in the Common Pleas against Pack and declared that in consideration that the Plaintiff would pay to Playford 52 l. 14 s. to the use of the said Pack such a day c. Pack promised to deliver to him his Bond in which he was bound to him in the said summ when he should be therunto requested And shews that he had paid c. and the Defendant did not deliver to him the Bond albeit the same to do he was afterwards often times requested and upon non assumpsit pleaded it was found for the Plaintiff and now it was moved in Arrest of Iudgment because the request is not laid specially nor the day nor place therof expressed But the Court to wit Hobart chief Iustice Hutton and Harvey gave Iudgment for the Plaintiff and yet they agreed that if he had demurred upon the Declaration it had not been good and also that if it had been generall Licet saepius requisit it had not been good in as much as it is parcell of the promise and therfore ought to be said substantially viz. That it was after the promise and payment of the 52 l. but the time is supplied by these words Postea and there is no defect but in the place and Postea implies that it was after the promise and payment And Hobart said that all the points of the Declaration which have matter and substance are good only there wants the place where the request was made which by the Issue is moved and the request is here well notified to the Court and the defect of the place is now helped by the Statute Hutton said that if the promise had been to pay so much upon request at Easter there the day ought to have been shewn and Postea had not been sufficient but here the Postea refers only to a thing wherby it is certain and he said that upon this Issue such a request shall be given in evidence Harvey said that the request being here laid as it is the Court may well give Iudgment And it seemed to Hobart that such a request cannot be given in evidence where the Issue is upon an Assumpsit And Iudgment was given for the Plaintiff and afterwards a Writ of Error Hill 1. Car. Where in an action upon the case there ought to be a speciall request and where not was brought in the Kings Bench and the opinion of the Court was strongly that the Plaintiff ought to have alledged the request specially and ceriainly in time and place because it is traversable and parcell of the Assumpsit and not to be done but upon request Jones Iustice remembred divers Presidents in the point and further day was given to bring in Presidents of either side and two Presidents were produced according to the opinion of this Court Scil. Pasch 30 Eliz. Rot. 464. in 1. Court Old and Estgreens case Trin 16 Jac. Rot. 268. Wales case But in Debt Licet saepius requisit is sufficient for it is not materiall nor traversable for the bringing of the action of Debt which is a Precipe is a sufficient demand in it self and afterwards at another day the Court continued of the same opinion and therfore the Plaintiff in the first action brought a new action Quod nota for albeit the Defendant had pleaded non assumpsit and Issue was joyned upon it yet this did not amend the evill laying of the request according to the Presidents abovesaid Pasch 2 Car. In the Kings Bench in t Hill 1 Car. Rot. 135. Constable versus Clobery IN an action of Covenant the question was upon the Traverse the Plaintiff declared upon the Indenture of Covenant and the Covenant was that a Ship shall go with the next fair wind and that the Merchant shall pay so much for fraught the Defendant saith by way of traverse that he did not go with the next wind and it was obiected by Stone of the Temple of Counsell with the Plaintiff that the Traverse was not good but he ought to have traversed that the Ship did not go at all for that which is materiall shall be traversed and that the Ship did not go is the most materiall thing here and this appeareth by 15 E. 4. 2. where a Gift in tail is traversed and not the death of the Tenant in tail 19 H. 8. 7. 36 H. 6. 16. 2 H. 5. 2. 2 H. 7. 12. and there are cases to this purpose Co. lib. 7. 9. Ughtreds case If a man intitles himself to Land by an Estate which cometh by Condition he ought to shew that the Condition is performed A Covenant against a Covenant will not make an Estoppell but he shall bring his action 3 H. 6. 33. Where he ought to shew that he went to Rome because it is a precedent Condition The principall case in Ughtreds case prove other to wit that which is materiall is alledgable And the difference upon the case of 48 E. 3. 3. 4. Where A. Covenant with B. to serve him with three Esquires in France and B. covenant for it to pay him 42. marks he may chuse to covenant in generall or speciall as he will for there was Covenant against Covenant and here there is a Covenant of one part to go with the Ship and on the other part to pay so much for the Fraught and so Covenant against Covenant And it seemed to Doderidge Iustice that the Traverse is not good for the Traverse here is by permission of God And for another thing where Merchants
shall it be in the case Doderidge Justice the Servant may have the Action also If the Servant be robbed of wares the Master or Servant may have an appeale 8. E. 2. Tit. Robbery two joynt Merchants one is Robbed both shall joyne in the Action and may also joyn in the appeal But it may be objected as Whitlock Iustice did that the Master is not Hospitans I say this is to no purpose A man put his Horse in the Stable and before he goes to bed or lodging the Horse is gone he shall have an action although he did not lodge there For the word transeuntes although he be at the end of his Iourney yet it is within the custom and he shall have action And by Crew if I send cloath to a Taylor and it is stoln from him the Taylor shall have an action of trespasse or the Owner Jones the case of Hue and Cry is a more stronger case then this is for there the Servant ought to swear that he is robbed and yet the Master shall have an action And for the word transeuntes all agreed that although he be at the end of his journey or at an Inne in London yet he is within the remedy of this Law And if a man stay in an Inne a moneth or a quarter of a year shall not he have an action if he lose his Goods Doderidge agreed that if a man be boarded in an Inne and his Goods are stoln he shall not have an action upon this Law And notwithstanding this objection judgment was given for the Plaintiff upon the Verdict Trin. Term 2 Car. In the Kings Bench. Sir William Buttons Case SIr William Button a Iustice of Peace brought an action for these words Sir William Buttons men have stoln Sheep and he spake to me that I should not prosecute them and it seems that the action did not lye because Words Sir William Buttons men have stoln Sheep and be spake to me that I should not prosecute them Sir William did not aver that he is a Iustice of Peace and it doth not appear in what County the said Felony was done 36 Eliz. One brought an action for these words A. is a cosening fellow and the greatest Pickpurse in Northamptonshire and there is not a Purse picked within 40. miles of Northampton but he hath a hand in it And the action did not lye because he did not aver that there were Purses cut Jones Iustice put this case One saith that A. is as strong a Thief as any is in Warwick Gaol he ought to aver that there is a Theef in Warwick Gaol or otherwise they are not actionable Doderidge put this case There is a nest of Theeves at Dale and Sir Iohn Bridges is the maintainer of them these are actionable because it implies maintenance Note that it appeared upon a motion which the Attorney-generall made against one Lane who is a Recusant in Northamptonshire that a Lease for years made by a Recusant of his own Lands after conviction if it be Bona fide will bind the King but if it be upon fraud and covin then it will not and Whitlock said that it is a common course for Recusants to make Leases after their Indictment and before conviction The same Term in the same Court The Case of the Major Bayliffs and Jurates of Maidstone IN a Quo warranto depending against the Mayor Bayliffs and Iurates of Maidstone in Kent Serjeant Finch of Counsell with them of Maidstone put the case briefly in effect thus In the Quo warranto against them it was ordered by the Court that they should have day to plead untill afornight after Trinity Term and the truth was that they had not pleaded accordingly wherupon Iudgment was entred in the Roll and the Writ of Seisin awarded and execution therupon and afterwards by a private order in the Vacation by the chief Iustice and Iustice Jones it was ordered that the Iudgment should be staid and the truth was that it was never entred amongst the Rules of the Court and therfore he prayed that the Iudgment might not be filed but that the last order might be observed and that they might amend their Plea Hendon Serjeant on the other side said that it could not be for by the Iudgment given the King was intitled to have the profits of Franchises which he shal not lose he cited the case which is in F. N. B. 21. Error in B. R. cannot be reversed the same Term before the same Iustices without a Writ of Error but otherwise it is in C. B. and he said that the same course was observed in Eyre there can be no pleading in Eyre after the Eyre determined and upon this he cited the case of 15 E. 4. 7. before the Iustices in Eyre if the Defendant does not come the Franchises shall be seised into the Kings hands nomine destinctionis and if the party who ought the Franchise doth not come during the Eyre in the same County he shall forfeit his Franchise for ever so here after Iudgement entred there can be no plea per que c. Finch we have order from the Court for stay of Iudgement here no perfect Iudgement was given and this is not without president and he cited one Chamberlains Case where the Iudgement was nigh to perfection c. but he did not put the Case Creve ch Justice in this case there was the assent of the Attorney generall who prosecuted the Quo Warranto and so the cases put by Hendon to no purpose Jones upon F. N. B. 21. J. took this difference true it is that the Kings Bench cannot reverse a Iudgement although it be in the same term without a Writ of Error but this is where error lies in Where the Kings Bench may reverse its owne judgmeÌ„t without Writ of Error and where not the same cause in the same Court as upon outlawry but if no error lies in this Court for the same cause but in Parliament then the Kings Bench may reverse the Iudgement without Writ of Error being the same term And the Iudgement here was ever of Record for the Roll untill it be fixed amongst other Rolls is no Record And for the Case of 15. E. 4. 7. it is not like our case in reason for when When a Roll â—s become a Record the Eyre is determined the power of the Iustices in Eyre is also determined but it is not so here for the Iustices have power from Term to Term But Noy argued further for the King that it is a Iudgement of another Term and Execution awarded upon it and said that it is without president that now it should be avoyded and upon the awarding of execution the King under his seal hath averred that judgement is given which cannot be falsified and for Chamberlains Case he said that there was an assent in it Doderidge the Question which now is moved is but this whether a Iudgement entered in a private Roll
as a memorandum and afterwards there is an order that the Iudgement shall not be filed if the Iudgement upon this shall be stayd and speaks to it and by him the Case of 15. E. 4. 7. is nothing to this purpose for Iustices in Eyre were Iustices by commission and they had not the custody of their Records and so it differs from this case And Jones Justice which was not denyed if a Iudgement be pronounced here and be not entered the Iudges may alter it the next Term. It was said by Noy in this case that all Franchises in England are against common Right and execution of Iustice and for the present purpose he cited one Sir John Wells Case where in a Quo Warranto the Defendant had day to plead or otherwise that judgement should be entered to seise and he failed to plead at the day and the Iudgement was not filed and yet he could not be relieved But it was sayd by some of the Iustices that this was a case of great extremity But by Hendon it was affirmed in the Exchequer in one Sandersons Case and in the principall case the matter was adjourned for a fortnight and ordered that the plea should be accorded Mich. Term 2. Car. in the Kings Bench. Sharp versus Rust IN an Action upon the Case upon an Assumpsit between Sharp Plaintiff and Walter Rust Defendant upon non-Assumpsit pleaded it was found for the Plaintiff and it was moved in arrest of judgement upon these words in the Declaration the Defendant being Father to the Plaintiffs Wife for whom the Apparrel was bought said to the Plaintiff deliver the Apparrel to my Daughter and I will pay for them and saith not to whom the payment shall be made And it was argued by Woobrich of Grayes-Inne that this is no sufficient cause to stay the Iudgement for by necessary implication and reference of the words precedent the certainty of the pers on appeareth to whom the payment ought to be made And he observed that in our Law the time the estate the thing and the person not being sufficiently expressed Where a thing incertain may be made certain both in time estate and person yet by necessary coherence and relation to matter precedent they are sometimes made certain enough 1. For the time Perkins P. 496. puts the Rule if a condition hath relation to an act precedent and no time is limited when it shall be done yet if ought to be done when the act precedent is done and therefore if I. S. be bound to me in 20 l. upon condition that if I enfeoff him of black acre that then he wil pay me 10 l. c. in this case presently when I have enfeoffed the obligor of black acre he ought to pay the 10 l. notwithstanding there be no time limited when it should be payd 2. For the thing being put incertainly yet the communication precedent makes this certain 30. H. 8. Dyer 42. in the Case of the Executors of Greenliffe where it is agreed that albeit it is not shown what thing is granted yet it shall be the Land of which the communication was 3. For the Estate although it be incertain yet sometimes it is made certain by the matter precedent as in the Case Co. lib. 8. A Stewardship was granted for life and afterwards an Annuity was granted for the exercise of that Office without declaring what Estate he should have in that Annuity and resolved that he should have the Annuity for life because he had the Office for life 4. For the person the consideration sometimes ascertains the person and therefore if land he given to one by Deed habendum sibi una cum filia donatoris in frankmariage this shall enure to both because the Feme is Causa donationis and by intendment of law the Land and the feme shal be given together to the man for the advancement of the Feme as it is Mich. 2. 3. Ph. Mary Dyer 126. a 4. E. 3. 4. Plow Com. 158. enfeoff him another and bind him and his heirs to warrant doth not say to whom he shall warrant yet the Feoffee and his heirs shall have advantage of this warranty for it cannot have any other intendment 6. E. 2. Voucher 258. 22. E. 4. 16. Kelleway 108. Co. lib. 8. Whitlocks Case In a Lease for years reserving rent it is the surest way to make the reservation to no person in certain but to leave it to the general intendment of the Law 15. H. 7. A man deviseth that his Land shall be sold for the payment of his debts and doth not say by whom they shall be sold by his Executors because they are lyable for the payment of his debts but if one devise that his land shall be sold saith not for the payment of his debts the devise is void because the Law doth not intend in this case to make the sale 40 E. 3. 5. 4. E. 3. Fitzherbert Obligation 16. Nota if a man be bound in debt or Covenant by writing and puts such a clause in the writing Et ad majorem hujus rei securitatem invenit fidei jussores quorum unusquisque in tot in solido se obligavit that although none speak there but the principall in the writing if the others put to their seals they accept that which the principal spake so become principal 2. E 4. 20. and here in our Case it appeareth that the Deed was so therefore it is reason that the Declaration should be so for there cannot be a material difference between the Declaration the deed especially being upon an agreement which is to be ruled according to the intention of the parties as it is in Plow Com. 140. a. In our Law if any parties be agreed upon a thing and words are expressed or written to make the agreement although they be not apt words yet if they have substance in them tending to the effect intended the Law shall take Intention of parties to be observed them of the same substance as words usuall for the Law regards the intention of the parties and here the intent appeareth that the assumption shall be mâ—de to the Plaintiff although there want expresse words and therefore he prayed Iudgement for the Plaintiff And afterwards the same Term Iudgement was given for the Plaintiff The same Term in the same Court. Beven versus Cowling IN an Action upon the Case Littleton mooved in arrest of Iudgment for the Defendant wherein the Case was this the Defendant assumed that if the Defendant would defer the payment of a bond in which one A. was bound to him and would not implead him upon it then he promised to pay it and he doth not say that he deferred the payment untill such a day and therefore this is no valuable consideration so that the action doth not lye for notwithstanding Action upon the Case upon a â—romise that if â—e would not sue such a
will remember but one book upon which I will rely 27. H. 8. 24. Jordons Case in an Action upon the Case the Defendant assumed to the Plaintiffe that if the Plaintiffe would discharge I. T. of such an Execution in which he is bound at the suit of the Plaintiffe then if I. T. did not satisfie the Plaintiffe by such a day the Defendant would do it and they were at Issue upon an Assumpsit and there the Count is admitted good and he need not plead it was by writing because the Discharge is good without writing but it hath been resolved that if a man be in execution at my suit and I go to the Sheriffe and command him to discharge the Party this is a good Discharge although it be by Peroll Jones If I say to the Sheriff suffer the party to go at large this is a good release both to the party and to the Sheriffe and by him relaxavit implies a sufficient release and therefore the Plaintiffe in the Writ of Errour shall be barred And if a man be bound to save one harmlesse in an Action brought upon this obligation he pleads that he hath saved him harmlesse and shews not how the Plaintiffe demurres generally he shall not now take advantage of it Doderidge The Cases put by Bolstred are not to this purpose for all those cases are of things in certaine and he agreed that a release by perol was sufficient and the case of 22. H. 8. is a stronger case then this is Whitlock agreed also and therefore Doderidge advised the Plaintiff to be satisfied or otherwise they would affirm the first Judgement Trin 2. Car. in the Kings Bench. Caryes Case IN Caryes case of Grayes Inne where these words were adjudged actionable You a Councellor a Foole an Asse a Hangman a Councellor of Law a Foole in the Profession it was said by Jones Instice it was not sufficient to say that he was eruditus in Lege but he ought to say that he was Homo Conciliarius and he said that in maintainance against Boughton it came in question upon evidence to a Iury whether one who is a Barrister may give advice and it was ruled that he could not albeit he had Letters Patents to inable him as fully as if he had been called to the Bar and in Fleetwoods case adjudged that these words You the Kings Receiver you are his Deceiver are you not were actionable The same Term in the same Court SIr Tho. Savill was indited for breach of the peace within the Pallace to wit for assaulting Sir Fran Wortley and he pleaded his pardon and Doderidge said that to strike in the place was the losse of the right hand by the Law and in this poynt our Law agrees with the Lawes of France and Spain and all other Nations for as the person of the King so his Palace and courts of Iustice are so sacred that such contempts and affronts are judged worthy of such punishments and said that the Book of 24. E. 3. 33. Fitzherbert Forfeiture 22. of which he would have Students to take notice is that where one came into the Palace armed and being brought to the Barre in his compleat armor the cause was demanded and he said that it was in his own defence being in fear of a great man then in Court and he was committed to Prison by the Court during the Kings pleasure and his Lands forfeited during his life Vide for the like matter 41. E. 3. Fitzh Coron 280. Dyer 188. 22. E. 3. 13. Hillar 2. Car. in the Kings Bench. ONe Mathias Wheelhorse was indited at the Sessions of the Peace holden in the Town of Northampton quia Noctivagus and because he divers dayes and nights did frequent the house of c. which was within the liberties of Southampton and was a suspected Bawdy-house and Crawley Sergeant moved that this Inditement was insufficient for three reasons 1. Because it does not appeare in the Inditement that the party knew this to be a Bawdy-house 2. Because it is not said that it was a Bawdy-house but that it was susspected to be a Bawdy-house 3. Because the Inditement is before Iustices of Peace Villae de Northampt and the house is infra libertates Villae de Northampt. and it shall not be intended that the power of the Iustices of Peace extend thither and for it see Co. lib 5. 120. Longs case 13. H. 7. 33. 34. 22. H. 7. Kelleway 89. Co. lib. 9. Mackaleys case And the Court gave no opinion concerning the exceptions But another thing was moved to wit that one could not be indited before Iustices of peace for being Noctivagus but this is to be inquired of in the Leet and in this the whole Court was against him for it is a misdemeanor and it is contrary to the Statute of Winchester and every one may arrest him And at another day he moved this last exception again and sayd that the Iustices of Peace have no power to fine men that are noctivagant yet true it is that a Court-Leet hath such a power Rastol Leet 2. and true it is also as it is in 4. H. 7. 1. 2. that every one may arrest a Night-walker but there it is said that if he appeareth to be a man of good fame the party who arrests him ought to let him go at large and the Inditement here is only that he was Noctivagus it appears not that he is a suspicious Night-walker by Doderidge Whitlock Iustices only present by the Common Law every man may arrest him who is Noctivagus and the word Noctivagus implies that he was a common Night-walker and they sayd that Iustices of peace by their Commission have power to take such Inditements for it is of ill behaviour and albeit the Inditement were nought for the other exceptions yet being good in this it shall not be quasht and therefore Iudgement was given upon it and the party fined 40 s. The same Term in the same Court. Sparrow versus Sherwood IN Trover and Conversion of two loads of Fitches of certain Land c. The Defendant justifie by the command of Hare to whom part of the Land belongs and to one Pots to whom another part in right of the Lady his Wife belongs and shews that part of the Fitches did grow upon the Land of one and part upon the Land of the other and upon this the Plaintiff demurs 1. Because he justifies by the command of two generally and he cannot justifie upon the Land of the one by the command of the other and therefore he ought to have alledged severall commands 2. Because he does not shew particularly upon whose Land the Fitches grew but that part grew upon the Land of one and part upon the Land of the other which is incertain 3. Because the Wife of Pots is called by the name of Lady and the Wife of an Esquire cannot be a Lady Doderidge and Whitlock onely present for the first were of opinion
where the Plaintiff shews a speciall Title under the Possession of the Defendant As for example In trespasse for breaking of his Close the Defendant pleads that J. G. was seised of it in his Demesne as of fee and enfeoffed J. K. by virtue of which he was seised accordingly and so being seised enfeoffed the Defendant of it by which he was seised untill the Plaintiff claiming by calour of a Deed of Feoffment made by the sayd J. G. long before that he enfeoffed J. K. where nothing passed by the sayd Feoffment entred upon which the Defendant did re-enter here the Plaintiff may well traverse the Feoffment supposed to be made by the sayd J. G. to the sayd I. K. without making Title because that this Feoffment only destroies the Estate at will made by the sayd I. G. to the Plaintiff which being destroyed he cannot enter upon the Defendant albeit the Defendant cometh to the Land by Disseisin and not by the Feoffment of the sayd I. K. for the first Possession of the Defendant is a good Title in Trespasse against the Plaintiff if he cannot shew or maintain a Title Paramounâ— But the Feoffment of the sayd I. G. being traversed and found for him he hath by the acknowledgment of the Defendant himself a good Title against him by reason of the first Estate at will acknowledged by the Defendant to be to the Plaintiff and now not defeated But in the same case he cannot traverse the Feoffment supposed to be made to the sayd I. K. to the Defendant without an especiall Title made to himself for albeit that I. K. did not enfeoff the Defendant but that the Defendant disseised him or that he cometh to the Land by another means yet he hath a good Title against the Plaintiff by his first Possession not destroyed by any Title Paramount by any matter which appeareth by the Record upon which the Court is to adjudge and with this accord the opinion of 31 4. 1. That the materiall matter of the Bar ought alwaies to be traversed or other wise that which upon the pleading is become to be materiall and that which the Plaintiff traversed here to wit the Lease made by Wright to the Defendant is the materiall point of the Bar which destroyeth the Title Paramount acknowledged to the Plaintiff by the colour given in the Bar which is good without another Title made So note well the diversity where in pleading in Trespasse the first Possession is acknowledged in the Plaintiff by the Bar and where it appeareth by the pleading to be in the Defendant and where and by what matter the first Possession acknowledged in the Plaintiff by the Bar is avoided by the same Bar And upon this Iudgment was given for the Plaintiff as appeareth in 34. and 35. Eliz. Rol. Earl of Bedford versus Eliz. Anne Russell Mich. 34. and 35. Eliz. 2. IN tho Court of Wards the Case was thus between the now Earl of Bedford In the Court of Wards and Elizabeth and Anne the Daughters and Heirs of John late Lord Russell which was put ten times to all the Iustices to be resolved Francis late Earl of Bedford was seised of the Mannor of Baruake Chaldon c. in Commitatu Dorset in his Demesne as of see and so seised the fourth year of Queen Eliz. of it enfeoffed the Lord S. John of Bletsoe and others in see to the use of himself for forty years from the date of the sayd Deed and after to the use of the sayd John then his second Son and the Heirs Males of his body and for default of such Issue then to the use of the right Heirs of the sayd Earl the Feoffor for ever Afterwards Edward Lord Russell Son and Heir apparant to the sayd Earl dyed without Issue and after the sayd John Lord Russell dyed without Issue Male having Issue the sayd two Daughters afterwards to wit 27 Eliz. the sayd Francis Earl of Bedford by Indenture made between him and the Earl of Cumberland and others in consideration of the advancement of the Heirs Males of the body of the sayd Earl which by course of descent should or might succeed the sayd Earl in the name and dignity of the Earldome of Bedford and for the better establishment of his Lordships Mannors and Hereditaments in the name and blood of the sayd Earl covenanted and grantes with the sayd Covenantees that he and his Heirs hereafter shall stand seised of the sayd Mannors amongst others to the use of himself for life without impeachment of Waste and after his decease to the use of Francis the Lord Russell and the Heirs Males of his body for default of such Issue to the use of Sir William Russell Knight his youngest Son and the Heirs Males of his body with diverse Remainders over after which the sayd Francis Lord Russell tyed having Issue Edward the now Earl of Bedford and after this the sayd Francâ—s late Earl of Bedford dyed also and after the Daughters of the sayd John Lord Russell or the now Earl of Bedford shall have these Mannors of Barunke c. was the question and upon this it was argued by Cook Sollinton and others for the Daughters that an use at Common-law was but a confidence put in some to the benefit and behoof of others and that Conscience was to give remedy but for those for whose availe the confidence was and that was in this Case for the sayd Daughters which were the right Heirs to the sayd Francis late Earl of Bedford upon the first conveyance made 41 Eliz. for the confidence that he put in the Feoffees as to the profits that he himself was to have was but for the forty years and how can any other say that he shall have any other Estate when he himself saith that he will have it but for forty years and therefore in this case his right Heir shall take as a Purchasor by the intent of the Feoffor which hath power to make a disposition of the use at his pleasure and his pleasure as appeareth was to have it so and it is not as if the use had been limitted to be to himself for life with such a Remainder over in which Case the use of the Fee by the operation of Law ought to execuse in himself for the Free-hold which was in him before As where Land is given to one for life the Remainder to his right Heirs he hath a Fee-simple executed but here he shall have but an Estate for forty years precedent and that the Fee-simple cannot be executed by such a limitation made to the right Heirs but in case of an Estate for years only precedent such a limitation to his right Heirs afterwards is not good but in case of an use it is otherwise for it may remain to be executed to be an use in Esse where the right Heir shall be and therefore not to be resembled to an Estate made in Possession And an Vse is alwaies to be
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-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
35 E. Rot. 258. And Popham said further in this case that to erect an Hospitall by the name of an Hospitall in the County of S. or in the Bishopprick of B. and the like is not good because he is bound to a place too large and incertain But a Colledge erected in Accademia Cantabrig or Oxon. is good and sâ—me are so founded because it tends but to a particular place as a City Town c. King versus Bery and Palmer 2. IN an Ejectione firmae brought by William King against John Bery and William Palmer Defendants for two Messuages and certain Lands in Halstead in the County of Leicester upon a Demise alledged to be made by Dorothy Pool and Robert Smith the case upon a speciall Verdict was this The said Dorothy was Tenant for life of the said Tenants the Remainder over to the said Robert Smith and his Heirs and they being so seised made the Lease in the Declaration upon which the Action was brought And per curiam the Lease found by the Verdict doth not warrant the Lease alledged in the Declaration for although they joyned in the Demise yet during the life of the said Dorothy it is her Demise and not the Demise of the said Robert Smith but as his confirmation for that time for he hath nothing to do to meddle with the Land during the life of the said Dorothy but after the death of the said Dorothy then it shall be said to be the Domise of the said Robert Smith and not before because untill this time Smith hath nothing to do to meddle with the Land And in a more strong case If Tenant for life and he in the Reversion in Fee make a Gift in tail for the life of Tenant for life it shall be said to be his Gift but after his death it shall be said the Gift of him in the Reversion and if the Estate tail had expired during the life of the said Tenant for life he shall have the Land again in his former Estate and there shal be no forfeiture in the case because he in the Reversion of the immediate Estate of Inheritance had joyned in it and therfore hath dispensed with that which otherwise had been a meer forfeiture of the Estate for life wherby it was awarded by the Court that the Plaintif take nothing by his Bill in 33 34 Eliz. Rot. And the Judgment is entred Hill 34. Eliz. Ret. 72. 3. In this Term I hapned to see a Case agreed by the Iustices in 3. 4. Eliz. which was this If a man make a Lease of two Barns rendring Rent and for default of payment a Re-entry if the Tenant be at one of the Barns to pay the Rent and the Lessor at the other to demand the Rent and none be there to pay it that yet the Lessor cannot enter for the Condition broken because there was no default in the Tenant he being at one for it was not possible for him to be at both places together And upon this Case now remembred to the Iustices Popham Walmesley and Fennor said That perhaps also the Tenant had not money sufficient to have been ready to have paid it at either of the said places but it is sufficient for him to have and provide one Rent which cannot be at two places together And by the Case reported here also If Lands and Woods are demised together the Rent ought to be demanded at the Land and not the Woood because the Land is the more worthy thing and also more open then the Wood And therfore by the three Iustices aforesaid Rent ought not to be demanded in any private place of a Close as amongst Bushes in a Pit or the like nor in the open and most usuall passage therof as at a Stile Gate and the like 4. Vpon a Prohibition sued out of the Kings Bench the Case appeared to be this The late Lord Rich Father to the now Lord Rich devised to his Daughter for her advancement in marriage 1500. upon condition that she marry with the consent of certain friends and deviseth further that if his Goods and Chattels are not sufficient to pay his Debts and Legacies that then there shall be 200 l. a year of his Lands sold to supply it and dies making the now Lord Rich his Executor his Goods and Chattels not being sufficient to pay the Debts of the Testator as was averred the said Daughter married with a Husband against the will of those who were put in trust to give their assents and the Husband and the Wife sued in the Spirituall Court for the Legacy And it was surmised that they would not allow the proofs of the said now Lord Rich exhihited to prove the payment of the Debts of his Testator and further that they would charge him for the sale of the Land upon which matter the Prohibition was granted to the Delegates before whom the matter depended and now consultation was prayed in the case Vpon which it was affirmed by a Doctor of the Civill Law that they will allow the proofs for the payment of the Debts according to our Law and that the Legacy shall not be paid untill the Debs are satisfied But he said that by the Law if the Executor do not exhibit his Inventory but neglect it for a year or more that then if any omission or default be in the true value of the Inventory exhibited that then such on Executor for this default shall pay all the Legacies of his Testator of what value soever they are not respecting the Debts or the value of the Goods or Chattels how small soever the omission or default be in the Inventory And so he said was the case of the now Sir Richard S. who did not bring in the Inventory for four years after the death of the Testator and that in the Inventory exhibited the values of every thing were found to be too small and therfore to be charged by their Law albeit he hath not Goods and Chattels sufficient of the Testators To which it was answered that this was quite without reason for by such means every Subject of the Realm may be utterly defeated if he take upon him the charge of an Executorship And if this shall be admitted no man will take upon him the Execution of the Will of any and by such a means none will have their Wills performed which shall be too inconvenient And they said further that in as much as Debts are to be proved by the Common Law of the Realm those of the Ecclesiasticall Courts ought to admit in the proof therof such proofs as our Law allows and not according to the precisenesse of their Law And although by their Law such a Condition as before being annexed to a Legacy is void because that marriage oughr to be free without Coercion yet where we are to judge upon the point as we are here if the Execution happen to be charged because of the sale of Land and for
given for the Defendant The same Term in the same Court. Laurking and Wildes Case THe Rector of the Church of livelled in the spirituall Court for the Tithes of a riding Nag where the case was That a man let his Land reserving the running of a Horse at some time when he had occasion Tithes for a riding Nag to use him there The Defendant shewed this matter in the Court by his Counsell and prayed a Prohibition and avers that for the same Land in which the Horse went he paid Tithes And by the Court nigh London a man will take a 100. or 200. Horses to Grasse now he shall pay Tithes for them or otherwise the parson shall be defeated But in this case if the Defendant alledge and prove that it was a Nag for labour and not for profit a Prohibition lies The same Term in the same Court. Havergall versus Hare IN an Ejectione firmae brought by Havergal against Hare the Case was thus Afterwards fol 55. A Rent of 20 l. per annum was granted out of Green acre to one and his Heirs to be paid at Michaelmas and the Annunciation of our Lady by equall portions and the Grantor covenants that if the Rent of 20 l. be arrear by the space of twenty daies that the Grantee may distâ—ain and that if there be not sufficient distresse upon the Land or iâ— there be a Rescous Replevin or Pound-breach that then it shall be lawfull for the Grantee and his Heirs to enter and retain the Land to them and their Heirs untill the 20 l. be paid 10 l. for one half years Rent was in arrear and for it an entry was made Mountague chief Iustice and Doderidge Iustice there can be no entry made when 10 l. only is behind for the words of the Deed are that if the Rent of 20 l. be behind that the Grantee and his Heirs may enter and if he shall enter now he shall retain the Land for ever for the 20 l. shall never be paid Crook and Haughton Iustices contrary for if 10 l. be arrear the Rent of 20 l. is arrear for Haughton said In an Assise of Rent of 40 l. where part is arrear yet he ought to bring his Assise for the whole Rent of 40 l. for the Writ ought to agree with the Deed. Doderidge agreed with him in the case of an Assise but not in the principall point And for the second point it was agreed by them all that upon the entry of the Grantee he shall have a Fee-simple determinable admitting the entry for the 10 l. to be good The same Term in the same Court and it is entred 14 Jac. Rot. 1484. Robinson versus Walter RObinson brought an Action of Trover and Conversion against Walter and upon the whole matter the case appeared to be this A Stranger took the horse of the Plaintiff and sent him to a common Inn and there he remained for the space of half a year at which time the Plaintiff had notice where his Horse was and therupon he demanded him of the Inn-keeper who answered that a person unknown left the Horse with him and said that he would not deliver the Hoâ—se to the Plaintiff unlesse he would pay for his meat which came to 3 l. 10 s. for all the time and also would prove that it was his Horse upon which the Plaintiff demurred in An Inn-keeper may detain a Horse untill he be satisfied for meat albeit he be left by a stranger Law And it was resolved by Mountague chief Iustice Crook and Doderidge Iustices Haughton Iustice dissenting that the Defendants plea was good for the Inn-keeper was compellable to keep the Horse and not bound at his peril to take notice of the Ownder of the Horse And by the custom of Lond. if a horse be brought to a common Inn wher he hath as it is commonly said eaten out his head it is lawfull for the Inn-keeper to sell him which case of the custom implies this case And there is a difference where the Law compels a man to do a thing and where not As if the Lievtenant of the Tower brings an Action of debt for Dyet against one who was his Prisoner in this case the Defendant cannot wage his Law because the Law compels the Lievtenant to give Victuals to his Prisoner otherwise if another man brings an Action of debt for Dyet and in the case at the Bar the Inn-keeper was compellable And Doderidge said that if the Law were as the Plaintiff would have it it were a pretty trick for one who wants a keeping for his Horse And Mich. 6 â—ac in the Kings Bench between Harlo and Ward the like was resolved as was cited by Barkesdels of Counsell with the Defendant Mich. 14. Jac. In the Kings Bench. Rawlinson versus Green A Copyholder surrendred out of Court according to the custom of the Mannor which at the next Court was presented and entry therof made by the Steward Scilicet Compertum est per homagium c. but no admittance Afterwards Cestuy que use surrenders before admittance and the first Copyholder surrenders to the Plaintiff And in this case there were two questions 1. Whether he may surrender before admittance 2. Who shall have the Land whether the first Copyholder or the Lord Haughton Iustice held that he could not surrender before admittance and the entry of the surrender doth not make an admittance for this being the A â—urâ—ender of Copyhold cannot surrender before admittance sole act of the Steward shall not bind the Lord and it is not like to the usuall foâ—m of an admittance for that is Dat Domino de fine fecit fiâ—elitatem admissus est inde tenens Doderidge Iustice agreed and said that in Hare and Brickleys case the admittance of a Copyholder was compared to the induction to a Benefice which gives the possession Hillary 14. Jac. In the Kings Bench. Sir John Pools Case Three Executors brought an Action of Debt and one only declared and they were ready for a triall in the Country and now it was moved that the Declaration might be amended and the names of the other Executors incerted but per Curiam this cannot be without the assent of the parties Pasch 15. Iac. In the Kings Bench. Cooper versus Smiths AN Action upon the Case was brought for these words viz Waterman Action for these words Thou hast killed thy Masteâ—s Cook and thou Innuende the Plaintiff hast killed thy Masters Cook Innuende c. and I will bring thee in question for thy life And after Verdict for the Plaintiff it was moved in Arrest of Iudgment by the Counsell of the Defendant that the words were not actionable for the incertainty inasmuch as it doth not appear who was his Master nor that his Master had a Cook Mountague chief Iustice said that the words were actionable and albeit Inâ—uendo cannot maâ—e a thing that is uncertain certain an Innuendo cannot make a
doth much concern the Infant in as much as by his false plea he shall be bound to â—nswer of his own Goods if he hath no Goods of his Testator and therfore in a 11 E. 4. 1. he hath remedy against his Guardian for pleading a false Pâ—ea And by Doderidge if he hath no Guardian the Court shâ—ll appoint him a Guardian And if an Infant bring an action as Executor by Attorney and hath Iudgment to recover this is not erronious because it is for his benefit so per Curiam the difference is where he is Plaintiff and where he is Defendant And there is another difference where he is Executor and where not for being Executor his Plea might have been more prejudiciall to him and Coke lib 5. Russels case was agreed for good Law for an Infant may be Executor and may take money for a Debt and make a Release and give an Acquittance but not without a true consideration and payment of the money The same Term in the same Court. Thomas Middletons Case THomas Middleton alias Strickland was condemned for a Robbery at the Where a Felon is condemned and elcapeth and is re-taken upon confession that he is the same party execution may be awarded The Sheriff of Middlesex fined for not attending the Court. Assises in Oxford after which he made an escape and being taken again he was brought to the Bar and upon his own confession that he was the same party who did the Robbery and that he was condemned for it the Court awarded execution And Mountague chief Iustice said thâ—t was no new case for it had been in experience in the time of E. 3. and 9 H. 4. and 5. E. 4. that the Court might so do upon his own confession And because the Sheriff of Middlesex did not give his attendance upon the Court in this case nor came when he was called the Court fined him 10 l And Mountage said that it shall be levied by proces out of the Court and also all other Fines there assessed and not estreated into the Exchequer for then the party might compound for a matter of 20 s. and so the King be deceived The same Term in the same Court. Gouldwells Case IOhn Gouldwell seised of Land in Socage Tenure devised them to his Wife for life the Remainder to John Gouldwell his Son and his Heirs upon Condition that after the death of his Wife he shall grant a Rent-charge to Steven Gouldwell and his Heirs and if John Gouldwell dye withâ—ut Heirs of his body that the Land shall remain to Steven Gouldwell in Tail the Wife dieth John Gouldwell grants the Rent accordingly Stephen Gouldwell grants the Rent over John Gouldwell dies without Heir of his body and the second Grantee distrains for the Rent arrear and Stephen Gouldwell brings a Replevin And it was urged by the Counsell for the Plaintiff that this Rent shall not have continuance longer then the particular Estate and cited 11 H. 7. 21. Edriâ—ks case that if Tenant in Tail acknowledge a Statute this shall continue but during his life and Dyer 48. 212. But it was agreed per Curiam that the Grantee was in by the Devisor and not by the Tenant in Tail and therfore the Grant may endure for ever But for the second point this being to him in Remainder the intent of the Demisor is therby explained that he shall have the Rent only untill the Remainder come in possession for now the Rent shall be drowned in the Land by unity of possession 3. It was agreed and resolved that by the granting of the Kent over this was a confirmation And Mountague said that it was a confirmation during the Estate Tail and shall enure as a new grant afterwards And Haughton and Doderidge said that they would not take benefit of the grant over by way of confirmation for as Haughton said this enures only ought of the Devisor and he hath power to charge the Land in what manner he pleaseth and it is like to an usuall case as if a man makes a Feoffment in Fee to the use of one for life the Remainder over with power to make Leases and after he makes a Lease this is good against Tenant for life and him in the Remainder also And I have considered what the intent of the Devisor should be in granting of this Rent and it seems to me that in as much as the Land is limited in Tail and the Rent in Fee that by this the Grantee shall have power to grant or dispose of the Rent in what manner he would but if the Land had been in Fee I should have construed his intent to have been that the Grantee should have the Rent only untill the Remainder fall to which Doderidge agreed who said that we are in the case of a Will and this construction stands with the intent of the Devisor and stands with the Statute which saies Quod voluntas Donatoris est observanda The same Term in the same Court. Baskervill versus Brook A Man became Bail for another upon a Latitat in the Kings Bench and before Iudgment the Bail let his Lands for valuable consideration Difference between baile in the Kings Bench and the Common Pleas. And how a bail shall relate And afterwards Iudgment was given for the Plaintiff And now it was debated whether the Land Leased shall be liable to the Bailment and it was said by Glanvill of Councell with the Lessee that it ought not to be liable and he put a difference between a Bailment in this Court and a Bailment in the Common Pleas for there the Suit cometh by originall and the certainty of the debt or demand appeareth in the declaration and therfore then it is certainly known from the begining of the Bailement for what the Bail shall be bound But in this Court upon the Latitat there is not any certainty untill Iudgment given before which the Land is not bound and now it is in another mans hands and therfore â—ot liable and he puts Hoes case Co. lib. 5. 70. where iâ— was resolved that where the Plaintiff releaseth to the Bail oâ— the Defendant upon a Suit in the Kings Bench before Iudgment all Actions Duties and Demands that this Release shall not bar the Plaintiff for there is not any ceâ—tain duty by the Bail before Iudgment and therfore it cannot be a Release and he citeâ— the case of 21 E. 3. 32. upon an account and said that it was like to a second Iudgment in that which reduceth all to a certainty and therfor c. But it was said by Mountague and Crook that the Lessee shall be bound for otherwise many Bailments and Iudgments shall be defeated which will bring a great Inconvenience And Mountague said that it was like to the case of a bargain and sale of Land which after it is Inrolled within six moneths shall relate to the beginning of the Bargain so upon the Iudgment given relation is made from the time
of the Bailment But Haughton being contra therfore Curia advisare vult The same Term in the same Court The Earl of Shrewsburies Case VPon a Verdict a rule was given to have Iudgment and this was upon the Thursday and upon Sâ—â—uâ—day after thâ— party that was Plaintiff died and it was moved to have a Writ of Error because it was said that the party died before Iudgment in as much as of course aâ—ter the Verdict and the â—ule given for Iudgment there are four daies given to speak in Arrest In the diâ—cretion of the chief â—ustice to allow a Writ of Error The entry of a Iudgment how it shall relate of Iudgment â—â—o so as Yelverton Attorney-generall said he died before Iudgment absolutely given and he moved the Court to have a Supersedeas And it was agreed that it wâ—s in the discretion of the chief Iustice Ex officio to allow a Writ of Error but because it was a cause of great consequence he took the advice of the Court and it was agreed that a Writ of Error was a Supersedeas in it self yet it is good to have a Supersedeas also and if the Writ of Error had been allowed the Court could not deny the party a Supersedeas But because the Writ of Error was not allowed and also because no Error appeared to the Court for where Iudgment is entred this shall relate to the time of the rule given It was resolved that no Writ of Error should be allowed nor any Supersedeas granted The same Term in the same Court. Rones Case IN an Ejectione firmae brought by the Lessee of Rone Incumbent of the Church of Dallinghoe in Com. Suff. It was found by speciall Verdict that the King was the true Patron and that Wingfeild entred a Caveat in vita Incumbentis he then lying in Extremis scilicet Caveat Episcopus ne quis admittatur c. Nisi Convocatus the said Wingfeild the Incumbent dies Naunton a stranger presents one Morgan who is admitted and instituted afterwards the said Wingfeild presents one Glover who is instituted and inducted and afterwards the said Rone procure a presentation from the King who was instituted and inducted and then it came in question in the Spirituall Court who had the best right and there sentence was given that the first institution was Irrita vacua inanis by reason of the Caveat then the Church being full of the second Incumbent the King was put out of possession and so his presentment void But it was adjudged and resolved by all the Court for Rone for 1. It was resolved that this Caveat was void because it was in the life of the Incumbent 2. The Church upon the Institution of Morgan was full against all but the King and so agreed many times in the Books and then the presentation of Glover was void by reason of the super-institution and therfore no obstacle in the way to hinder the presentation of Rone and therfore Rone had good right And if the second institution be void the sentence cannot make it good for the Spirituall Court ought to take notice of the Common Law which saith that Ecclesia est plena consulta upon the institution and the person hath therby Curam animarum And as Doderidge Iustice said he hath by it Officium but Beneficium comes by the Induction And although by the Spirituall Law the institution may be disannulled by sentence yet as Linwood saith Aliter est in Anglia who is an Author very well approved of amongst the Civilians And Doderidge put a case out of Doctor and Studient the second Book If a man devise a summ of money to be paid to I. S. when he cometh to full age and afterwards he sues for it in the Spirituall Court they ought to take notice of the time of full age as it is used by the Common Law to wit 21. and not of the time of full age as it is used amongst them to wit 25. So in this case at the Bar for when these two Laws met together the Common Law ought to be preferred And when the Parson hath institution the Arch-deacon ought to give him Induction And see Dyer 293. Bedingfeilds case cited by Haughton to accord with this case The same Term in the same Court Taylors Case JOhn Taylor a Citizen and Alderman of Glocester was put out of his place by the Common Counsel of the City for some misdemeanor and he sued out a Writ of Restitution and for that the cause of his displacing was not sufficient Writ of Restitution for an Aldermans place his Writ was allowed by reason wherof the other Alderman who was elected in his place was to be removed for the number of Aldermen was full But Hazard another Alderman to the end that the new elect who now was Major should not be displaced was contented to surrender his place in consideration of 10 l. a year granted to him by the Corporation for term of his life with which the Wife of Hazard was not content and therfore he would have left his agreement And therupon the question was whether he might surrender or not And it was said by Coventree Sollicitor that he cannot and he cited Middlecots case an Alderman of B. where the opinion of the Court was 13 Eliz. that he cannot surrender Doderidge perhaps they would not except his surrender Mountague said that Alderman Martin of London gave up his Aldermans place and without question any man in such a case may surrender or leave his place to which the Court agreed and therfore it was ordered that Hazard shall have his 10 l. a year and that he shall stand to his first agreement The same Term in the same Court. May and Samuels Case AN action of Debt was brought upon an Obligation the Condition wherof was to stand to the Arbitrement of John S. concerning all matters between them to the time of the submission who arbitrates that the one shall pay 20 s. and that the other shall make a generall release to him of all matters from the beginning of the world to the time of the arbitrement Arbitrement Haughton Iustice this is an arbitrement but of one part and therfore void but if it had been only that the one shall pay 20 s. it may be good for it shall be intended that the other by reasonable construction shall be discharged or acquitted to which Crook and Doderidge Iustices agreed But by Mountague chief Iustice it ought to be specified yet they all agreed and so it was adjudged that this was a void arbitrement for it was of the one part only to wit that he shall pay 20 s. for the other part for the release to the time of the arbitrement was not within the submission so if the arbitrement had been that the one shall make a release or shall be discharged or acquitted without speaking of the other this being on the one part only is a void arbitrement vide
Co. lib. 8. Baspoles case and 7 H. 6. 40. accordingly The same Term in the same Court Vaughans Case THomas Dedham had to Apprentice one Holland who got his Main with Child and afterwards departed from his Masters Service and staid a whole night with Vaughan his Kinsman and Dedham procured a Warrant from S. Stephen Soame a Iustice of Peace that the Constable should bring the said Apprentice to order according to Law and because that Vaughan perswaded him to withdraw himself so that he should not be taken by virtue of the Warrant he was indited And it was agreed that it was lawfull for Vaughan to lodge and relieve him albeit he knew his misdeeds they being no Treason or Felony But Haughton Iustice took exception to the Inditement because no place appeared where he perswaded him to withdraw himself from the Warrant or in truth that he did hide himself from the Warrant for if he did not so the perswasion was nothing And Doderidge took another exception to the Warrant because the Statute saith that two Iustices of which one of them shall be of the Quorum shall proceed in such cases against the Malefactor and that they shall compell the party to allow means for the education of the Infant or otherwise the Offendor shall suffer corporall punishment and so this Warrant not being speciall according Pasch 16. Jac. In the Star Chamber Wrennums Case SIr Henry Yelverton Attorney-generall exhibited an Information in the Star Chamber against one Wrennum Ore tenus because he had divers times petitioned the King against Sir Francis Bacon Lord Chancellor pretending that the said Lord Bacon had done great Injustice to him in granting an Injunction and awarding Possession of Land against him for which he had two decrees in the time of the former Chancellor And also he made a Book of all the proceedings in the said cause between him and one Fisher and dedicated and delivered it to the King in which he notoriously traduced and scandalised the said Chancellor saying that for this unjust decree he his Wife and Children were murthered and by the worst kind of death by starving And that now he having done unjustly he must maintain it by speaking untruths and that he must use his authority Wit Art and Eloquence for the better maintenance therof with other such like scandalous words And the Attorney cited a president 2 Jac. Where one Ford for an offence in the like manner against the late Chancellor was censured in this Court that he should be perpetnally imprisoned and pay the fine of 1000 l. and that he should ride upon a Horse with his face to the tail from the Fleet to Westminster with his fault written upon his head and that he should acknowledge his offence in all the Courts at Westminster and that he should stand there a reasonable time upon the Pillory and that one of his ears shall be cut off and from thence shall be carried to Prison again and in the like manner should go to Cheapside and should have his other ear cut off c. And because they conceived that the said Wrennum had wronged the said Lord Chancellor in the said suggestion they all agreed in his censure according to the said President See for such matter 19. Ass 5. 9 H. 8. Sir Rowland Heywards case and 21 H. 8. Cardinall Wolseys case The same Term in the Kings Bench. Mingies Case AWrit of Annuity was brought by Mingy which was granted Pro Consilio impenso impendendo the Defendant pleaded in Bar that he carried a Bill to the Plaintiff to have him set his hand to it and because he refused Annuity pro Consil impenso c. he detained the said Annuity And per Curiam this is no plea for he is bound to give advice but not to set his hand to every Bill for this may be inconventent to him The same Term in the same Court THe Case was this A Lessee for years was bound in a Bond to give up the possession of the Land demised to the Lessor or his Assigns at the end of the Term the Lessor assigns over his Interest and the Assignee requires the Lessee to perform the Condition who answers that he knew not Notice where requisite whether he were the Assignee and therupon refuseth And the question was whether he had broken the Condition and it was adjudged that he had for he hath taken upon him so to do and it is not like a Condition annexed to an Estate as Co. lib. 5. Mallories case or Co. lib. 6. Greens case where the Patron presented his Clark to a deprivation yet the Ordinary ought to give the Patron notice of the deprivation for it is a thing Spirituall of which a Lay-man shall not be bound to take notice It was moved that a man riding upon a Horse through the water was Dead and. drowned and by the Coroners Inquest it was found that his death was caused Per cursum aquae and the Horse was not found a Deodand and per Curiam they did well for the water and not the Horse was the cause of his death The same Terme in the same Court. Wooton versus Bye THe case was this A man made a Lease for years rendring Rent and upon payment of the Rent the Lessor made an Acquittance by a release of all Actions Duties and Demands from the beginning of the World to Release of all Demands bars a future Rent the day of the date And whether the Rent to come were released by it was the question And it was moved by Crook at the Bar that it was not for a Covenant in future shall not be released by such words yet a release of all Covenants will be good in such a case as the Book is in Dyer 57. so Hoes case Co. lib. 5. 70. b. such a release will not discharge a Bail before Iudgment But it was answered and resolved by the Court that such a Release will discharge the Rent to come for this word Demand is the most large and ample word in a Release that may be as Littleton saith and in Co. lib. 8. Althams case and in Hoes case Co. lib. 5. one was Bail for the Defendant the words wherof are conditionable Scil. Si contigerit predict defendent debit damna illa prefat Quer. minime solvere c. So that before Iudment it is altogether incertain and therfore cannot be released but in the case at the Bar he hath Jus ad rem though not in re as Crook Iustice said The same Term in the same Court. Bret versus Cumberland IN a Writ of Covenant the case was thus Queen Elizabeth by her Letters Patents made a Lease of certain Mills rendring Rent in which Lease were these words to wit That the said Lessee his Executors Administrators and Assigns should from time to time repair the Mills and so leave them at the end of the Term the Lessee assigns over his Term the Queen also
levied yet the Vse shall be directed by the originall Indenture and therfore 6 Rich. 2. A Feoffment is made to two and their Heirs and afterwards a Fine is levied upon it for further assurance to the use of them and the Heirs of one of them yet it shall go to the use of both for it shall be respected according to the original agreement where there are divers assurances for the perfecting of one and the same thing 16 E. 3. tit Age. A Daughter had a Seigniory by descent a Tenancy Escheats a Son is born he shall have the Land see Sharoes case in 4 Mar. Dyer and in Chadleighs case all looks to the originall agreement and therfore variance of time shall not hinder the originall agreement as 33. Ass the Servant inâ—ends to kill his Master and afterwards the Master puts him out of his Service and then he kills him this shall be petty Treason in the Servant 28 H. 6. Two are bound in a Bond at severall times and yet he shall declare against both as upon the first delivery 11 H. 7. it is adjudged that if a Deed be delivered by an Infant and afterwards it is again delivered when he comes of full age And see Mallories case Finches case and Borastons case Nunc tunc quando are a demonstration of the time and not of the matter and so they concluded that the Vse shall rise upon the first Indenture and not upon the Fine or Replevin brought but Doderidge and Haughton Iustices contra Trin. 17. Jac. In the Kings Bench. Silvesters Case JOhn Silvester promised to John B. that if he would marry his Daughter that he would give with her a Childs part and that at the time of his death he would give to her as much as to any of his Children excepting his eldest Son and afterwards he made his Executors and died I. B. brought an action upon the case against the Executors upon this Promise and shewed that the Executor had not given him a Childs part and that such a younger Son of the Testators had a 100 l. given him And it was resolved by the Court that the promise of a Childs part is altogether incertain but being so much as any of his Children had and then shewing that the younger Son had a 100 l. this was certain enough and therupon Iudgment was given for the Plaintiff The same Term in the same Court. Godfrey and Owen COrnelius Godfrey was Plaintiff in an action upon the case for Words He is a very Varlet and seeks to supâ—res his brothers Will c. words against Owen Defendant and the words were these to wit He is a very Varlet and seeks to suppresse his Broâ—hers Will he makes shew of Religion but he is a very Hypocrite And the words were spâ—ken of a Merchant to one who gave him much credite in his Trade Mountague chief Iustice said that the words which are actionable in such a case ought to touch the Plaintiff in his Profession which these do not do Et relata ad personam intelligi debent secundum conditionem personae for in the suppressing of his Brothers Will the case might be such that he might well do it for perhaps there may be an after Will made And for calling him Hypocrite lies not in the conusance of the Common Law for GOD only can judge of the heart of man and therfore these words do not touch the Plaintiff as he is a Merchant Doderidge Iustice Words ought to tend some way to the ruine of the party or otherwise they are not actionable and Iudgment was given Quod quere nil capiat per billam Mich. 17. Jac. In the Star Chamber Sis John Bingleys Case IN Sir John Bingleys case in the Star Chamber it was resolved by the two chief Iustices Mountague and Hobart and agreed by the Lord Verulam Lord Chancellor and Sir Edward Coke that if an Information be exhibited there which begins with divers particular misdemeanours and conclude in the generall that 1. The matter included in the generall charge ought to be Ejusdem generis 2. They ought to exceed the particulars expressed in number 3. They ought not to be greater or more capitall wherupon Mountague cited the Statute which speaks of Deans and other Spirituall persons upon which it hath been resolved that Bishops are not within it for they are of a higher degree and the principall reason of these rules was because that a man cannot possibly make a defence because he knews not what will be objected against him and upon this Sir John Bingley was discharged at this time for the most transcendent Offence that was objected against him to wit concerning Captain Baugh and other Pirates to whom the King of his grace and bounty had given 200 l. to make them Loyall Subjects But Sir John Bingley Colore officii had defrauded them of almost An Officer â— his own wrong all of it for the want wherof some of them died miserably and the rest became Pirates again But Sir John Bingley made many protestations of his innocence in this mâ—tter And it was holden also that one might be an Officer of his own wrong as their might be an Executor of his own wrong And this was Sir John Bingleys case for somthing in the information for he committed Extortion Colore officii The same Term in the Star Chamber THe Attorney-generall put in an Information against divers Dutch Merchants for buying and transporting of many great summs of Gold and Silver Bullion And it was said by the Court that divers Statutes had been made for redresse of this mischief as the Statute of 5 R. 2. the Offenders wherof ought to forfeit all they may and by another Statute in 17 E. 4. this Offence was made Felony to continue for seven years But the Court would not now punish them upon any Statute for it was an offence at common To carry Gold and Silver out of the Realm punishable at Common Law Law and therfore punishable in this Court And Sir Edward Coke said that if any be to be punisht upon a penal Statute it ought to be within two or three years at least after the offence committed for the Informer hath but a year to sue and the King two years for the most part The Statutes of 37 E. 3. and 5 E. 6. Prohibite the buying of Coin and that it is so at the Common Law see 21 E. 3. 60. and Plow 215. and not only he that buyes but he that sels also offends in it for it is a Prerogative only belonging to the King and it is his Coin and none can put a value upon it but himself which is a Flower of his Crown Hobart chief Iustice of the Common Pleas as one shall be punished for ingrossing any Commodity a Fortiori one shall be punished for ingrossing and buying of a great quantity of money all other Commodities being thereby ingrossed for money is the Mistresse of commerce Pecunia
est rerum omnium vendendarum mensura Bracton 117. 18 E. 3. Hollinghead 109. 50 E. 3. Rot. Pat. Memb. 7. And for transportation 17 E. 3. 19 E. 3. Rot. Pat. 24. De monetis non transportandis 19 R. 2. Rot. Pat. The Dutches of obtained licence to melt Coin to make Plate And divers of the Defendants were within the Kings generall pardon but in as much as they pleaded it in their Rejoynder and not in their answer as it ought to be the Court over-ruled their Plea so that they could have no advantage therby But in as much as they were strangers and not coâ—usant of our Laws and relyed only upon their Counsell the Court had consideration therof in their censure Hillary 17 Jac. In the Kings Bench. Serle versus Mander SErle brought an action upon the case against Mahder for these words to Words I arrest you upon Felony wit I arrest you upon Felony and after Verdict for the Plaintiff it was moved in Arrest of Iudgment by Richardson that the words were not actionable for he doth not say that the Plaintiff had committed Felony But it was rescived by the Court and so adjudged that the action lieth The same Term in the same Court A Iudgment was obtained against one of the Servants of the Lord Hay Iudgment against a Defendant when beyond Sea with an Ambassador reversed Viscount Doncaster when he was Ambassador in Bohemia and attending upon him there And this matter being disclosed to the Court by the Counsell of the Defendant they would not suffer the Plaintiff to have execution upon the said Iudgment but ordered the Plaintiff to declare De novo to which the Defendant should presently answer Memorand It was said to be against the course of the Court to have an Imparlance Imparlance before the Declaration entred The same Term in the same Court The King against Briggs A Quo warranto was brought by the King against Briggs for exercising A Subject cannot have a Forest of certain Priviledges who justified by virtue of a Forest granted to him And by Bridgeman this is the first Quo warranto which he knew that had been brought against any Subject for a Forest for a Subject cannot have a Forest but he may have a Chase which peradventure may passe under the name of a Forest And there are divers incidents to a Forest which a Subject cannot use nor have there ought to be a Iustice of a Forest which a Subject cannot have and such a Iustice ought to be a man of great Dignity 2. There ought to be Verderors who are Iudges also and by 34 E. 1. Ordinatio Forrestae ought to be by Wait but a Subject cannot award a Writ Also there are three Courts incident to a Forest 1. A Court of Attachments which may be without Verderors 2. The Swanimate Court 3. The Iustice seat and this appeareth in 1. E. 3. cap. 8. 21 E. 4. cap. 8 But by the Statute of 27 H. 8. cap. 7. There are some other incidents to a Forest 2. Admits that a Subject may have a Forest yet it fails in this case because he hath shown the exemplification and not the Letters Patents and see Co. lib. 5. Pains case that neither an exemplification or constat are pleadable at Common Law and Co. lib. 10. Dr. Leyfeilds case The same Term in the same Court Sir William Webb versus Paternoster THe case was this Sir William Plummer licensed Sir William Webb to lay his Hay upon the Land of the said Sir William Plummer untill he could conveniently sell it and then Sir William Plummer did make a Lease of the Land to Paternoster who put in his Cattell and they eat up the Hay And it was two years between the license and the putting in of the Cattell and yet Sir William Webb brought an action of Trespasse against Paternester for this Mountague chief Iustice 1. This is an Interest which chargeth the Land into whosoever hands it comes and Webb shall have a reasonable and convenient time to sell his Hay 2. The Lessee ought to give notice to Notice Sir William Webb of the Lease before he ought to put in his Cattell to which Haughton Iustice agreed in both points But Doderidge Iustice said that Sir William Webb had no certain time by this license yet he conceived that he ought to have notice But it was resolved that the Plaintiff had Convenient time a convenient time to wit two years for the removing of his Hay and therfore Iudgment was given against him But admit that there had not been a convenient time yet the Court was of opinion that the Plaintiff ought to have inclosed the Land at his perill for the preservation of his Hay And it was agreed that a license is countermandable although it be concerning A license whether for profit or pleasure countermandable profit or pleasure unlesse there be a certain time in the license as if I license one to dig Clay in my Land this is evocable and may be countermanded although it be in point of profit which is a stronger case then a license of pleasure see 13 H. 7. The Dutches of Suffolks case for a license The same Term in the same Court SIbill Westerman brought an action upon the case against Eversall and had Error Sibell for Isabell Iudgment and in the entry of the Iudgment she was named Isabell 1 Ass and 3. Ass A Fine was levied by Sibill when her name was Isabell and it was not good for it doth not appear to be the same party so in the case at the Bar And for this the Iudgment was reversed The same Term in the same Court JEne as Executor of brought an action upon the case against Chester An Infant chargable for necessary Apparrell because the Defendant made request to the Testator of the Plaintiff to buy for him certain silk Stuffs for Apparrel and to make him a Cloak the Defendant pleaded that he was within age and George Crook said that the Defendant should not be charged because it is not shewn that the Apparrell was for the Infant himself but he was over-ruled in this for it is sufficiently expressed to be for him And it was agreed by the Court that it ought to be shewn that it was Pro necessario vestitu and it ought to be suitable to his calling and as Doderidge said that there was a case adjudged in this Court between Stone Withipole that where Withipole had taken of Stone certain Stuffs for Apparrel being within age and afterwards he promised payment if he would forbeare him some time and the Assumpsit adjudged not good because he was not liable for the Debt at first for the reason aforesaid Trin. 17. Jac. In the Common Bench. Gilbert de Hoptons Case AN action upon the case was brought for those words viz. Thou art a Words Thou art a Theef and hast stoln my Furze Theef and hast stoln
my Furze And after Verdict for the Plaintiff it was moved in Arrest of Iudgment thâ—t these words were not actionable But it wâ—s said on the other side that to say thou art a Theef is actionable and the subsequent words are in the Copulative and enure as a confirmation of the precedent words But if it had been for Thou hast stoln my Furze this had been â—n explanation of the precedent words and therfore in that case the action would not have been And it was answered and resolved by the Court that the word and in some cases shall be taken as the word for and so it shall be in this case and therfore adjudged that the action lies Mich. 22. Jac. In the Star Chamber TWo men came Ore tenus into the Star Chamber for stealing of the Kings Deer and were fined a 100 l. a peece and three years Imprisonment unlesse it would please he King to release them sooner and before Fines in the Star Chamber for killing the Kings Deer they should be released of their Imprisonment to be bound to their good behaviour And it was observed by the Attorney-generall that the offence was the greater in regard that the King had but one darling pleasure and yet they would offend him in that And it was said by some of the Court that it was a great folly and madnesse in the Defendants to hazard themselves in such a manner for a thing of so small value as a Deer was The Lord President said that Mr. Attorney was the best Keeper the King had of his Parks in regard he brings the Offenders into this Court to be punished The Lord Keeper said that the Defendants in such a case being brought Ore tenus â—re not allowed to speak by their Counsell and yet these men have had their Counsell but it was Peters Counsellors meaning their sorrow and contrition at the Bar which much moved him so that if his vete might prevail he would set but 20 l. fine upon them In the same Term in the same Court THe Lord Morley and Sir Richard Mollineax being beyond Sea their Sollicitor in their names exhibited a scandalous Bill in the Star Chamber against the Bishop of Chichister and after their return this continued so for three years without any disclaiming therof by them and now the matter being questioned they said that it was not done with their privity But because they had not disclaimed the Fact before they were fined a 100 l. to the King and a 100 l. to the Bishop for Damages and the Bill was to be taken of the File The same Term in the same Court. Lewes Plaintiff versus Jeoffreys and others Defendants THe Plaintiffs Brother had been a Suitor to a woman which matter proceeded to a Contract and afterwards the Defendant Jeoffreys hapned to be a Suitor to her also wherupon being Rivalls they fell out and the Plaintiffs Brother called the Defendant Jackanapes which was taken very ill by the Defendant being a Iustice of Peace in the County of Worcester and the other being but a mean man in respect of him so that he told him that if he would meet him on Horse-back he would fight with him afterwards one of the Sons of the Defendant went to the said Brother being upon his own Land and gave him a mortall wound wherupon a friend on the behalf of the party wounded came to the Defendant being a Iustice of Peace and brought him a peece of his Skull to the end that his Son should be forth coming at the next Assises declaring to him the danger of death the man was in wherupon the Defendant took a Recognisance of 10 l. of his Son and of his sureties of 5 l. a peece to answer this at the next Assise And in the mean time the party died of the said wound and the Son did not appear at the Assises and the Iudges of Assise fined the Defendant 100 l. for taking such slender security for the appearance of his Son which was paid and yet notwithstanding the Defendant was fined 200 l. more for this offence and also 200 l. for his misdemeanor in his challenge albeit the Defendant A Challenge fined in the Star Chamber was of the age of 63 years and so it seems that he intended to fight with him But he being a Iustice of Peace who is Conservator pacis he did against his oath to do any thing which may tend to the breach of the Peace And for the other matter it was said by the Court that the Defendant being Father to the offendor it had been better for him to have referred this matter to another Iustice of Peace or at least to have had the assistance of another And the party being in such great danger of death his son was not bailable Hillary 1. Car. In the Kings Bench. Bowyer versus Rivet THe case was thus Sir William Bowyer 12. Jac. recovered against Sir Thomas Rivet in an Action of debt Sir William made his wife his Exceutrix and died the wife made Bowyer her Executor and died then Sir Thomas Rivet died Bowyer brought a Scire facias to have execution upon the Iugment against Sir Thomas Rivet the younger as Heir apparant to the Land to him descended from Sir Thomas Rivet who pleaded Riens per descent from Sir Thomas Rivet and it was found that he had two acres and a half of Land by discent and it was prayed by Goldsmith that Iudgment might be given against Sir Thomas Rivet generally for he said that this false Plea shall charge him and his own Lands and cited Plowden 440. where in debt against an Heir upon his false Plea his own Lands shall become liable to the debt and Co. lib. 3. 11. b. Sir William Herberts case where the case was upon a Scire facias against the Heir as it is in this case But on the other part it was argued by Richardson the Kings Serjeant Banks and all the Iustices that Execution shall be awarded in no other manner against the Heir then it should be against his Ancestor or other Purchasor to wit of a Moyety of that which he had by discent for as much as in this case he cannot be to this purpose charged as Heir but he ought to be charged as Ter-tenant and as a Purchasor and a Purchasor shall never hurt himself but his false Plea And Banks argued that the Heir in this case is charged as a Purchasor and the false Plea of a Purchasor shall never charge himself 33 E. 3. Fitz. Execution 162. and 6 E 3. 15. and that in this case he is charged as Ter-tenant appears by three reasons 1. Debt will not lye against an Heir but where he is bound as Heir but in this case Execution is to be sued against him as another Ter-tenant Dyer 271. 11 E. 3. 15. and in 27 H. 6. Execution 135. and Co. lib. 3. 12. b. That in Iudgment upon Debt or Recognisance the Heir is charged and
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
Iudgement for the Plaintiff The same Term in the same Court NOta by Doderidge and Jones Iustices that upon the principall Iudgement reversed the outlawry is also Ipso facto reversed Also if an Outlawry reversed upon revers all of the principall judgement outlawry be awarded if it be not per Judicium Coronator unlesse it be in London the outlawry is voyd It was demanded by the Iustices when the outlawry and Iudgement are affirmed how the entry is And it was answered by Broome Secondary that the entry is generall Quod judicium affirmetur in omnibus and this sufficeth But if the Iudgement be affirmed and the outlawry reversed then the entry is Quod judicium affirmetur Utlagario cassetur The same Term in the same Court Calfe and others versus Nevil and others AScire facias was brought by Joseph Calfe and Joshua Executors of A. against Nevil Davyes and Bingley and the Case was this they became bayle to one Hall who was condemned in an Action to the Testator of the Plaintiff that the said Hall should either render his body to Prison or that he should satisfie the Iudgement the Defendents Plead that after the Scire facias returned and presently after the Iudgement the said Hall brought a Writ of Error in the Exchequor Chamber hanging which the said Hall reddidit se prisonae in exoneratione manucaptorum suor and there dyed and the Plaintiffe demurred upon this Plea because it was double and Calthorp argued for the Plaintiff that it was double or rather treble 1. That Reddidit se prisonae 2. That he was imprisoned 3. that he dyed in Prison And to prove the Piea double in this Case he cited 13. H. 8. 15. 16. 4. E. 4. 4. 21. H. 7. 10. The second matter that he moved against the former was that pendant the Writ of Error reddidit se prisonae and doth not conclude upon the Record hoc peratus est verificare as he ought to have done and for this he cited 7. H. 8. Kelleway 118. If J. S. bee bound in a Recognizance that A. shall appeare such a day before the Kings Iustices at Westminster if his appearance be not recorded hee shall not have any averment by Bricknell and Conisby and in 30. Eliz. It was one Wicks Case which is ours in effect in case of baile Dyer 27. 6. E. 4. 1. 2. For the matter the Plea is nought 1. Because by the Writ of Error brought the Scire facias against the baile is not suspended because the Bayle is a distinct record and upon this he cited the Case of the Ambassador of Spain against Captaine Gifford which was Trin. 14. Jac. That by the Writ of Error brought the baile was not suspended and he said that it was so resolved also in Goldsmith and Goodwins Case 2. For the render of the principall to prison it is not good because it doth not appear upon Record and for this he cited one Austin and Monkes Case which was in 14. Jac. In Scire facias against the baile it is pleaded that the principall had rendered himselfe to prison and upon the matter it appeared that the render was upon Candlemas day which is not Dies juridicis and so the Court this day had no power to commit him to prison for which the Plea was adjudged voyd 3. For the death it is no Plea the baile by it is not discharged because he hath not rendered himselfe in due time and for this he cited Justice Williams and Vaughans Case which was Mich. 3. Jac. where in Scire facias against the baile they pleaded that the principall was dead and thereupon the Plaintiff demurred and in this Case two points were resolved 1. There was no Capias mentioned to have issued against the principall and yet resolved that a Scire facias would lye against the Baile 2. That the Plea in Bar is not good because it may be that the principal dyed after the Capias awarded or after the return thereof because it appeareth that there was once a default in the principal and so the baile forfeited and no Plea afterwards would discharge it and upon this he put this Case A Prisoner escape out of Prison the Goaler makes fresh suit and before he hath taken him the Prisoner dies this is the act of God and yet because it was once an escape an Action of Escape lyes against the Goaler Jermy for the Defendent and he remembred a Case which was Hil 20. Jac. Cadnor and Hildersons Case that by the Writ of Error the bayle is suspended Nota that it was agréed by the Court in this case that by the Writ of Error brought in the bayle was not discharged because it is incertain whether the Iudgement shall be reversed or not Also it was agreed that if the principal dies before a Capias awarded against him that the bayle is discharged It was also agreed by the Court that the Plea was not double for the first matters are but an inducement to the last and yet by Doderidge if severall matters are pleaded in Bar and there be not any dependency on them the Where a Plea is double and where not Plea is double although none of them be materiall but one Jones Justice cited one Hobs and Tadcasters Case which was 43. Eliz. in B. R. where after a Writ of Error brought a Scire facias issued against the Bayle and upon Nihil returned the Plaintiff in the Scire facias brought in an Audita Quaerela and there the matter came in question whether upon the Iudgement the Principall ought presently render himself to prison or that he should stay until a Capias awarded against him and there it was resolved by Popham and all his Companions that the Principal is not bound to render himselfe to Prison untill a Capias be taken out so that if he dies after the Iudgement and before the Capias awarded against him the Bayle is discharged And in the principal Case here it was resolved that a Scire facias does not lye against the Bayle until a Capias be awarded against the Principal because no Capias in this case was awarded against the Principal which could not be by reason of the Writ of Error before his death And also the Plaintiff in his Declaration ought to have averred and shewn that the Capias was awarded against the Principal for these reasons Iudgement was given quod quaerens nil capiet per Billa The same Term in the same Court. Reynor versus Hallet IN an Action upon the Case for these words viz. Reynor is a base Gentleman Words Reynor is a base Gentleman he hath foâ—â— childâ—en by his seâ—vant Agnes and he hath killed or caused them to be killed he hath four children by his Servant Agnes and he hath killed them all or caused them to be killed and after a verdict for the Plaintiff it was moved in arrest of Iudgement by Jermy that the words were not actionable For 1.
will is wrong to him and the performance of Wills is much favoured because it is the last desire of the Partie who is dead and it is for the publick-weale because by this means debts shall be payd And many cases are within the equity of the Statute that are not within the letter as those Cases which have been put all which he agreed Jones Iustice on the sudden was against it and that this Case is not within the equity of the Statute of 4. E. 3. There are divers Actions which are not helped by this Statute as Trespasse for cutting of Trees Battery and the like for the Statute is de bonis Catallis asportat in vita testator An Executor shall have a Replevin of Goods taken in vita testator for by this he recovers the thing it selfe and shall have Detinue but shall not have treâ—passe for he cannot punish the wrong done in the life of the Testator The Statute of 4. E. 3. is much inlarged by equity as the cases which have been put and extend also to usurpation in the life time of the Testator as appears in Russels Case Co. lib 5. 32. 33. Eliz. in C. B. in the Bishop of Chichesters case that if the Testator dyes within 6 months after the usurpation the Executor shall have a Quare impedit And the Case of Trover and Conversion in vita Testator was maintained by Executors and it was so resolved 41. and 42. Eliz. in the Countesse of Rutlands Case in both the Benches because this is in nature of a Writ of Detinue Now for the Case in question I conceive that it is not within the Statute of 4. E. 3. because it is neither bona nor catalla Whitlock Iustice contra and that this Statute is very much taken by equity praeter literam though not contra literam But Nota that all agreed if it were upon an escape after Iudgement that the Action would lie by the Executors according to the Case of F. N. B. 121. a. But the principall Case was adjourned And afterwards Trin. 3. Car. It was argued again by Jermy for the Plaintiff and the sole point was A man taken by latitat and being in the custody of the Sheriff escape the Party at whose suit he was arrested dies whether his Executor shall have an Action upon the Case upon the Escape and he conceived that he might It hath been objected that it is a personall wrong and as an Action doth not lye against Executors upon an Escape in vita Testator so not by Execucutors To which I answer that it is not meerly personall but mixed with an interest At the Common-Law an Executor could not have trespas for Goods taken in vita Testator but yet he should have a Replevin 34. E. 3. Fitz. Avoury 257. and Executors 106. So at Common-Law a Successor should not have Trespas for Goods carried away in the life time of his Predecessor but he shall have a Replevin 9. H. 6. 25 but this was remedied by the Statute of Marlebridge cap. 28. and so upon the Statute of 4. E. 3. de bonis asportat c. Trover and Conversion hath beene adjudged within the said Statute for the Statute hath alwayes been liberally expounded 7. H. 4. 2. Fitz Executor 52. An Executor shall have ravishment of Gard taken away in vita Testator and also other Statutes which do not name Executors have beene eâ—pounded to extend to them as the Statute of 23. H. 8. which gives attaint 3. Eliz. Dyer 201. Co. lib. 6. 8. Executors shall take benefit of the pardon of Trin. 14 Jac. Pâ—obe and Maynes Case if the party escape being a rested upon mean Proces the Sheriffe is not liable for the Escape otherwise if upâ—n an Execution 43. Eliz. and 6. E. 6. Bendloes Reports which is cited there Executors shall have restitution upon the Statute of 21. H. 8. and Co. lib. 5. 31. and 27. Russels Case an Executor shall have Trover upon Goods lost in vita Testator and this is in manner and nature of a promise to have the party in Court at the day and it is cleer that upon an expresse Assumpsit to the Testator an Executor shal have an action upon the Case and it hath been in manner agreed by the Court that if it had been an escape of one in execution that the action would have lyen by the Executor and I see no difference between that and our case And it was adjourned The same Term in the same Court UPon an Information by Heath the Kings Attorney against two men of the County of Huntington in the name of all the County that they ought and used to repaire the Bridge of S. Eedes in the County of Huntington Issue was joyned by the County whether they ought and used to repaire this Bridge and the Attorney gave no evidence but put it upon the other side for he said by the Statute of 22. H. 8. cap. if it doth not appeare that any particular person or Towne ought to repaire a Bridge by reason of Tenure or otherwise that then the County where this is ought to repaire it But Nota that the issue was whether they ought to repaire the whole Bridge and yet upon the evidence it appeared that onely two Arches and a halfe of the Bridge was in the County of Huntington and two Aâ—â—hes and a halfe in the County of Bedford and the Iury found generally that onely two Arches and a halfe of the Bridge were in the County of Huntington and say nothing where the rest was for they could not find a thing in another County And also they found that the County of Huntington ought to repaire all but not that they used to repaire it And at another day Hedley Serjeant moved for the County that the Verdict was not good because the issue was whether they ought to repaire and a tempore cujus contrarium c. had repaired c. And the Iury hath found that they ought to repaire which is but the halfe of the issue and also they find that they ought to do it which is a Question in Law and therefore voyd 8. H. 6. 3. 4. Secondly the issue is whether they ought to repair the Bridge and the Iury hath found that they ought to repair two Arches and a halfe onely c. and the Bridge is an entire thing The Attorney answered that for the first exception the case of 27. Ass Pl. 8. is against it And for the last the very case of 43 Ass Pl. 37. is against it and therfore the Court conceived the Verdict good notwithstanding these exceptions Doderidge Iustice By the common Law before the Statute of 22. H. 8. if no man by reason of tenure or otherwise ought to repaire a Bridge the County ought to do it like to the case of 8. E. 4. Fishers by the Law of Nations may dry their Nets upon the Land of any man The same Term in the same Court DOctor
Cleland brought a Writ of error against Baldock upon a Iudgement given in where the Plaintiff declared that the Intr. Hill 22. Iac Rot. 59â— Defendant in consideration that he would do all his commands honestly and truly for the space of a yeare assumed to pay him 10 l. and further declared that he had done all his honest and lawfull commands and this promise being found by verdict Iudgement was given against Doctor Cleland and thereupon he brought this Writ of error and Greene assigned two errors 1. The Assumpsit is that he shall doe all his commands honestly and truly and he hath declared that he hath done all his lawfull and honest commands and he may honest commands and yet not honestly 2. It is said that Jurator Assident dampna and it is not said occasione transgression predict and it is against all Presidents But Nota that there were these words ex hac parte opposita and therefore the exceptions were disallowed by the Court and the first Iudgement affirmed The same Term in the same Court. Secheverel versus Dale THis Case was sent out of Chancery to this Court â—o know the Law therein and in Trespas the case was this Henry Secheverell the Father seised in Fée levied a Fine to A. and B. in Fee to the use of himselfe for life absque impetitione vasti with power to cut and carry away the trees and to make Leases for 21 yeares or three lives the remainder to the use of John Secheverell his eldest Son for life without impeachment of waste with the same powers Henry the Father made a Lease to one under whom the Plaintiff claims for three lives rendring the ancient Rent excepting all the trees unlesse those which shall be for cropping lopping and fewell Henry the Father dyes John the Son in the next remainder cut certain trees Victorin Secheverell who clayms by the lease made by the Father brings trespas and two Questions were moved 1. Whether Lessee for life without impeachment of waste may make a Lease excepting the trees and it was objected by the Councel of the Plaintiff that he could not because this second Lease ariseth out of the first fine and out of the estate of the Conusor But the Court prima facie was of opinion that he might well make such a Lease with such an exception See Co. lib. 11. Lewys Bowls his Case and Doctor and Student lib. 1. cap. 1. and by Doderidge Iustice the Lease ariseth out of both the estates Jones Iustice suppose the Lessee absque impetitione vasti assigne over all his estate might he cut the trees and it was conceived that he might for by Doderidge he hath power to dispose of the trees as it was resolved in Lewys Bowls his case Jones he hath no propriety in the Trees untill they be cut Crew ch Justice Admit a Stranger cut the trees who shall have them By all the Court the Lessee without impeachment of waste shall have them 2. Point Tenant for life without impeachment of waste with power to cut and carry away the trees and make Leases for 21. years or three lives the remainder for life to J. S. without impeachment of waste c. Tenant for life makes a Lease for thrée lives and dyes whether he in remainder for life without impeachment of waste with power to cut the trées may cut the trées and take them during the Lease for thrée lives and the Court séemed to be of opinion that he might And Leving of Councell with the Plaintiff argued that when tenant for life without impeachment of waste with power to cut the trees and to make Leases for 21. years or three lives makes a Lease for thrée lives excepting the trées that this is a voyd exception because he hath no interest but a bare Authority 27. H. 6. Fitz. Wast 8. Statham tit Wast 1. makes this a Quaere which Statham was once the owner of the Land in question A man makes a Lease for life without impeachment of waste a Stranger cuts trées the Lessée brings trespas he shall recover no Damages for the value of the trees because the propriety belongs to him in the reversion he may dispose of them Quaere Dyer 284. Daunsley and Southwels Case Co. lib. 11. Lewys Bowles case that such a Lessee may take trées which are blown down and 3. H. 6. 45. Mich 41. and 42. Eliz. C. B. Leechford against Sanders in an Action of waste upon a Lease made to Sanders for life with a proviso that the Plaintiff might dispose of the trées during the estate and resolved that the Action lies not for notwithstanding this power the trées are demised to the Lessée also so here when the trées are excepted he hath no interest but only an authority 2. The exception is voyd for another reason because when such a Lessée makes such a Lease this is not his Lease but it hath its operation out of the originall fine and he who makes this hath but the nomination and therefore cannot adde a condition or exception to it And if the second Lease shall have its being out of the estate of the Lessee for life then there shall be an use upon an use as appears Co. lib. 1. 134. and that the Law will not allow 15. H. 7. and Co. Lib. 1. Albanyes Case If a man devise that his Executors shall fell his Land they cannot adde a condition or exception to this sale as an attornment upon a condition subsequent is voyd Co. lib. 2. Tookers case 3. This case may be resembled to the case of Copy-holds which is in Co. lib. 8. 63. b. in Swaynes Case If a Lord takes a Wife and afterwards grants Lands by Copy according to the custome and dyes his Wife shall not be endowed of this Land for albeit her title of Dower was before the Grant yet the title of Copi-hold which is the custome is elder then the title of Dower so in our case the title of the second Lessee is derived out of the estate of the Conuzées and therefore shall not be clogg'd with the Exceptions of Lessee for life without impeachment of waste 4. This priviledge to cut the trées is annexed to the estates and goes along with the estate and therefore shall not begin before the Stranger be in possession 3. E. 3. 44. 45. Idles case 28. H. 8. Dyer 10. And it may be resembled to the cases of 16. E. 4. and 27. H. 8. Tenant in taile sold the trées if he dyes before the Party takes them he shall never have them because he hath stayd out his time But it may be objected that upon such a Lease he may reserve a rent as it is in Whitlocks case Co. lib. 8. to which I will offer this difference Lessée for life with power to make Leases for thrée lives reserving rent makes a Lease for thrée lives reserving rent this reservation is good because it is but a Declaration of the Lease and of the rent
but if there were no such clause of reserving rent then I conceive it were otherwise But admitting all this were against me yet the justification of the Defendant is not good for by the exception out of the exception the Lessor cannot take the benefit of the bodies of the trées because he will thereby deprive the Lessée of the croppings and loppings c. as in 28. H 8. Dyer Maleverell and Spynkes case Mylward of Lincolnes Inne for the Defendant And first he conceived that the Lessée for life without impeachment of waste might dispose of the trées in the same manner as Tenant in fée might doe with this difference that the disposall thereof ought to be in his life time and so it is resolved in Lewys Bowles case Co. lib. 11. 46. 2. The second matter in the case is whether the Lessée for life without impeachment of waste c. hath only an authority or an interest in the trées and I conceive that he hath an interest for his power is to make Leases of it or of any part for 21. years or 3. lives and that the Conuzors shall be seized to the use of such Lessées now when he makes a Lease excepting the trées the trées are not demised so that he remains still tenant for life without impeachment of waste for the trees 3. Excepting all Timber-trées but for fencing cropping and lopping it hath béene objected that this exception hath no forme It is a generall rule that if a man makes a Grant and in the close thereof except all that which was granted before the exception is voyd and this appears by 34. Ass Pl. 11. A Will was granted salvo stagno molendini so here the last exception takes away all that which was granted before 38. H. 6. 38. in a Quare impedit 28. H. 8. Dyer 19. by Mountague the cropping and lopping of trées belong to the Lessee like to the Duke of Norfolks case in 12. H. 7. 25. and 13. H. 7. 13. and 18. E. 4. 14. and albeit every grant shall be taken most strongly against the Grantor yet it shall have a reasonable intendment for the benefit of the Grantor and this appeares by 7. E. 4. 22. 17. E. 3. 7. 9. E. 4. 2. 21. E. 3. 43. so here the Exception shall have a reasonable intendment that he shall onely have such loppings and croppings as shall be bestowed upon the Park and no other Doderidge Iustice I conceive that by the words without impeachment of waste he hath interest in the trees as long as the estate continues 2. That when he makes a lease by the second power given to him this is derived out of the Fine and shall be good against him in the remainder 3. Because he hath power to dispose of the trées I conceive that when he makes a Lease excepting the trees this is a good exception 24. Eliz. C. B. A man made a Lease for years now he hath the wast of the trees if he assign over his estate excepting the trées the exception is voyd but in our case the Lessée hath not parted with his whole estate 4. So the sole question is whether he in remainder may cut the trées during the estate of thrée lives made by Henry Secheverell and he conceived that he might and so concluded for the Defendant Jones Iustice agréed that the Lessee for life without impeachment of wast hath interest in the trées but this interest is concomitant with his estate and determinable with it 2. I conceive that the exception is good Such things which a man hath by the Law he cannot resign to himselfe upon his assignment as the cropping and lopping of trées as if tenant in taile after possibility c. who is dispunishable of wast by fréedome of the Law assign over his estate reserving the trees he cannot cut the trees but here the Lessee hath a larger liberty then the Law gives to him and he by vertue of this may give away the trees but I conceive that if he had assigned over all his estate then he could not have excepted the trees but here he hath not granted over all his estate for he hath a remainder and may have an estate in possession afterwards and upon this Lease for three lives hee may reserve a rent to himselfe 3. I conceive that this Lease is derived partly out of his owne estate and hee hath not the meere nomination and partly out of the first Fine and therefore such Lessees shall be subject to all charges made by the Tenant for life who made the Lease as Statutes Recognizances c. to wit during the life of the first tenant for life 4. When he dyes who made the said Lease for three lifes whether he in remainder may cut the Trees during the said Lease and he conceived yet not without some doubt that he had no power during the lives of the sayd Lessees Whitlock Iustice agreed with the rest so that it was agreed by all 1. That it is a good exception 2. That the second lease is drawn out of the Fine And the question now is whether he in remainder without impeachment of waste with power to cut the trees hath power to cut them during the lives of the said three Lessees and the Councell was commanded to speake to this point only upon another day The same Term in the same Court. Foster and Taylers Case ERror was brought upon a Iudgement given in C. B. and after the Record was certified into this Court the Common-pleas amended a rasure of the Record which was there and now Bramston Sergeant movâ—â— for the Def. that the Record might be amended here Jones Iustice I doubt whether an inferior Court can amend after the Record is certified here for then it is but a piece of Parchment with them Bramston It is resolved that it may in Blackamores case Co. lib. 8. Doderidge the doubt is whether it may be amended after error assigned in the same Court for this takes away the benefit of the Law from the Plaintiff in the Writ of error Jones at another day said that if in nullo est erratum had been pleaded it could not have beene amended And as it is it cannot be amended because now it is assigned for error and the Plaintiffe was once intitled to his Writ of error which shall not be taken away from him afterwards and in 11. Jac. there was such a case moved by Yelverton the Kings Solicitor and agreed that it could not be amended And Pasch 17. Jac. one Abbingtons case upon a rasure as our case is it was doubted whether it could be amended and by Broom Secondary in the said case it was amended Doderidge in this case it may be amended albeit it be after error brought because it is only the error of the Clerk and it is amendable although the error be assigned in the same point and so was the opinion of the whole Court and therefore it was amended The same
Terme in the same Court WEld of the Inner Temple moved for a Prohibition to the Ecclesiasticall Court at Worcester and shewed for cause 1. That the suit there was for money which by the assent of the greater part of the Parishioners of D. was assessed upon the Plaintiffe for the reparations of the Church to wit for the recasting of their Bels the truth is that the charge was for the making of new Bels where there were four before whereby it appears that it is meerly matter of curiosity and not of necessity for which Parishioners shall not he liable to such taxations and he relied upon 44. E. 3. 19. by Finchden 2 The party there is overcharged of which the Common Law shall Judge 3 The Party hath alledged a Custome that he and all those who hath an estate in such a Tenement have used to pay but 11 s. for any reparation of the Church But the Prohibition was denied and by Doderidge in the Book of 44 E. 3. there was a By-law in the case to distrain which is a thing meerly temporal for which the Prohibition was granted per Curiam in this case the assessment by the major part of the Parishioners binds the party albeit he assented not to it and the Court seemed to be of Opinion that the Custome was not reasonable because iâ—â—aid a burthen upon the rest of the Parish Littleton of Counsell of the other side suppose the Church falls shall he pay but 11 s. Whitlock If the Church falls the Parishioners are not bound to build it up again which was not denied by Justice Jones The same Term in the same Court A Prohibition was prayed because a person had libelled in the Ecclesiasticall Court for the tenth part of a bargain of Sheep which had depastured in the Parish from Michaelmas to Lady day and the party surmised that he would pay the tenth of the Wooll of them according to the custome of the Parish But the Prohibition was denyed for as Doderidge Iustice sayd by this way the person shall bee defrauded of all if he shall not have his recompence for now the Sheepe are gone to another Parish and he cannot have any Wooll at this time because it was not the time of sheering Nota per Whitlock de animalibus inutilibus the Person shall have the tenth part of the bargain for depasturing as Horses Oxen c. but de Animalibus Utilibus he shall have the Tith in specie as Cowes Sheep c. The same Term in the same Court UPon an Issue joyned in an Ejectione firmae it was found for the Plaintiff and Lewkoor moved in arrest c. because the Ejectione firmae was de Messuagio â—ive Tenemento which is not good for the incertainty and so it was resolved 12. Jac. in this Court and Ejectione firmae lies not De Tenemento Co. lib. 11. 54. Savils case And it was resolved in the Exchequor-chamber that it lies not de pecia terrae and in this Court in Rhetorick and Chappels Case it was resolved that it lyes not De Mess Tenemento The same Term in the same Court Sir Robert Browne against Sir Robert Stroud IN debt upon an Obligation for performance of certain Covenants contained in certain Indentures made between the Parties aforesaid and the Covenant upon which the question did arise was this R. B. being seised of the Mannor of Dale S. R. S. of the Mannor of Sale they exchanged the one for the other and the Mannor of R. B. being more worth then the Mannor of R. S. R. S. covenanted to pay for the said Mannor 1200 l. and no time was limited when the money should be payd and the money not being payd within a year after R. B. bargained and sold the said Mannor by Deed indented and inrolled to J. S. and his Heirs and afterwards brought an Action of Debt against the said R. S. for the said 1200 l. who pleaded this mater in Bar and Jermy argued for the Plaintiff that this Plea shall not discharge the Defendant of the said Covenant for it is a reciprocall covenant and he ought to sue the other Party for the breach of the covenant and it is a perfect bargain Dyer 30. 14. H. 8. 9. and here the Agreement is in writing and it is good albeit there be no limitation when the money shall be payd 37. H. 6. 9. Calthrop for the Defendant that the Action could not lyâ— for the contract is Executory and therefore is not to pay the money till he hath the Mannor for the Covenant is that pro Maner c. he should pay him 1200 l. and the word pro implies a condition and consideration and being excecutory on the one part shall be also executory on the other part 9. E. 4. 20. 21. Abridg. in Plowden 134. in Browning and Bestons case 15. E. 4. 4. If A. grant to B. all the ancient Pale and for them B. grants that he will make new Pale for A. if B. cannot have the old Pale he shall be excused from making the new Pale for he cannot have the one without doing the other 6. E. 6. Dyer 75. The contract was pro 20. which makes a condition 15. H. 7. 10. by Fineaux If a man covenant with me to serve me for a yeare and I covenant to give him 10 l. he shall have an Action for the 10 l. although hee do not serve me otherwise if I covenant to give him 10 l. for his service Also there is no time limited when the payment shall be made true it is that in Co. lib. 6. 30. when the act to be done is a transitory act and no time is limited there it ought to be done in convenient time but the Law shall judge of the conveniency of this time and the Law will never judge the time of payment to be before he hath the Mannor pro quo c. In many cases when no time is limited the Law will appoint a time as appeareth in 33. H. 6. 48. and Perkins 799. But now in our case the Law will never appoint that this money shall be payd because the other party hath disabled himselfe to perform his part like to Sir Anthony Maines case Co. lib. 5. 21. Doderidge The bargain is not perfect because no day of payment is limited and the other shall have no Action of Debt for the money before he hath the Mannor Jones If I covenant to make a Feoffment to J. S. and he covenant in consideration of that Covenant to pay me 10 l. he shall have an Action of Debt against me before he hath made the Feoffment And at another day in Trinity Term. 3. Car. Noy argued for the Plaintiff and opened the case thus Amongst other Covenants in certain Indentures between them it was agreed that wheras Sir R. Brown the Father was sâ—ized of the MaÌ„nor of Gadmaston with the Advowson appendent Sir R. Stroud of the MaÌ„nor of D. within the same CouÌ„ty that there
a Lease made de Burg. sine Tent. which is not good no more then in Ejectione firmae de Mess sive Tent. 2. Because the Judgement is not quod capitur as it ought to be because it is vi armis 3. The judgement is Ideo concessum est where it ought to be consideratus est and for these Errors the Judgement was reversed And the same day another Judgement between Bell and Margery Strongury was reversed for the same causes The same Term in the same Court. Petit versus Robinson IN Error to reverse a Iudgment given in C. B. in a Replevin there Jermy for the Plaintiff assigned two Errors 1. It appears that after the Writ and before the triall it was coram Justiciar Dic. Domini Regis and there was not any speech of any King but of King James before and there is no speech of his demise and therefore this shall be intended before the Iustices of King James which cannot be 2. Because the Nisi prius is certified to be tried before Francisco Harvey Mill. uno Justiciar c. the Postea returned is before Francisco Harvey Arm. argued so there was no such Iudge of Nisi prius as Francis Harvey Banks for the Defendant I conceive the first errors to be because the adjournment was per br Dom. Reg. and King James was named before so that the objection may be that it shall be intended the Writ of Adjournment of King James which cannot be but I conceive the Writ is generall and shall not be intended â—hat it can be adjourned by the Kings Writ who was dead before and the Clerk of the Assises who certified it is bound to take notice of the Kings death 37. H. 6. 28. and also the Record is not per br Dic. Dom. Regis but per br Domini Regis generally And for the second I conceive it is no error and if it be error then if the Certificate be not according to the Copy out of which the Clerke certifies it shall be amended 22. E. 4 22. 35. H. 6. 23. b. Co. lib. 8. 136. Blackmores case which is a stronger case then this But it hath been objected that the Record is certified by the Iustices and now there can be no averment to the contrary but I conceive that this Court may send to the Clark of the Assizes to amend it and those objections were over-ruled in C. B. in the same case Doderidge Iustice I conceive that notwithstanding these exceptions the Iudgement ought to be affirmed for as to the first the Court is bound to take notice of the demise of the King and therefore it shall be intended the King that now is and so the Writ of adâ—ournment good enough in Dyer King Henry 8. made a Patent and it was Eâ—ricus Dei gratia c. where it should be Henricus and yet the Patent good so in a Writ to the Bishop the subscription is Episcop Norw this is good enough for the Bishop of Norwich is very well known And for the other I conceive it is not well alledged because it is not showne whether he were a Knight at the time of the Certificate or not and so it may well stand together that he was a Knight for he might be an Esquire at the time of the triall and before the Record certified might be made Knight Jones Iustice to the same intent and that we ought to take notice of the demise of the King therefore it shall be intended of the Writ of adjournment of the King which now is and therefore it is no error and yet if it were it were amendable Whitlock Iustice agreed and therefore the Iudgement was affirmed by the whole Court The same Term in the same Court. Crabbe and his Wife versus Tooker IN Covenant betweene Walter Crabbe and Anne his Wife against Tooker the covenant upon which the breach was layd was this Tooker the Defendant covenanted with Tooker his Son and Anne Slade one of the Plaintiffs whom he intended to marry to give them their meat and drink in his house and if any discontent should happen between the Father and Son so that he and his Wife Anne should disagree to dwell with Tooker the Father then they should have 6. Beasts gates c. Tooker the Son died Anne disagree to dwell with Tooker the Father and marries with Crabbe who with hâ—s Wife Anne brings this Action and Taylor argued for the Planitiff that the Action lies for albeit the Covenant be in the conjunctive if they disagree yet it shall have a disjunctive interpretation as where a man covenant to levy a fine to one and his heirs if he dies the Covenantor may levy a fine to his Heirs and Hill and Granges case in Plow Two Tenants in common grant a rent this shall be taken for severall Rents and Co. lib. 5. Slingesbyes case also the Wife is party to this covenant and she must either have remedy upon this covenant after the death of her Husband or not at all for she cannot disagree in the life time of her Husband per que c. And it was agreed on the other side that there ought to be a dislike between all joyntly the Father the Son and the Wife and now one of them being dead the covenant is discharged like to the case put in Brudenels case Co. lib. 5. If Administration be grant during the minority of 3 if one of them dies the administration ceaseth and 31. Eliz. in C. B. A Lease was made to three and the Lessor grants to them to be dispunishable of Wast quamdiu cohabitarent one of them dies and it was resolved that now they shall be liable to wast Also the Bar is not bone for it is pleaded that Discordia orta fuit and doth not shew what manner of discord this was and therefore not good as 3 H 6. In Annuity brought Pro concilio c. he ought to shew for what manner of Councel it was Whitlock Justice was of opinion for the Plaintiff and that this Covenant extends to the Wife and that upon equall construction because it comes in place of the first Covenant and this was intended for the benefit of the Wife as well after the death of the Husband as before Jones Justice was of the contrary opinion and that the second covenant was a severall covenant from the first and that the disagreement is to be made by all three joyntly and that when one dies the Covenant is gone 2. Eliz. Dyer A man will that A. B. and C. his Feoffees shall sell his Land B. dies now the Authority is determined The Lord Gray committed the custody of his Son to four one of them dies the authority is gone and in this case there is no matter of interest but an agreement and in such a case as this is a Feme covert hath a will albeit she hath no legall will but in this case there ought to be a disagreement of both and
that it was good enough for although it were a joynt command yet the parties commanding having severall titles it shall be taken as severall commands reddendo singula singulis and for the third it is good enough being in a Plea otherwise if it had been in a Writ But for the second Exception the bar is not good enough because incertain so that although upon other Exceptions moved by the Defendant the Replication of the Plaintiff was not good yet the Defendants Bar being ill the Plaintiff shall have Iudgement upon tâ—e Declaration And the Plaintiff had Iudgement accordingly The same Term in the same Court Risley versus Hains IN an Action upon the Case upon an assumpsit the Plaintiffe declared upon the Sale of several parcells of Tobacco to wit for one parcell so much for another parcell so much and so forward and in the Conclusion he saith quae quidem separales summae in toto se attingunt to 55. l. which being computed is lesse then the pariculars and upon non assumpsit it was found for the Plaintiffe and now Andrewes moved in arrest of Judgement for that the particulars and the summing up of them differs and this being in a Declaration which ought to contain truth it is not good and so there appears to be no cause of action 35. H. 8. Dyer 55. And Grices Case in the very point Mich. 17. Jac. in this Court but by Jones and Whitlock Iustices onely present the Declaration is good enough for there is a particular promise for every parcell and the summing up of particulars is only surplusage and officiousness of the Clark therefore the Iudgement was affirmed And nota that Jones said obiter in this Case that upon a contract the Party to whom payment is to be made need not make request and afterwards it was agreed by the whole Court that it should be amended otherwise it had been more The same Term in the same Court A Great multitude of Welsh-men were Indited for the death of a man by an Inquisition taken before the Coroner in the County of Mountgomery in Wales and Littleton of Councel with the Welsh-men took some Exceptions to the Inquisition as 1. That the Coroner cannot take any Inquest unlesse it be super visum corporis and to this purpose he cited Britton 6. Ric. 2. Coron 107. 21. E. 4. 70. 2. Ric. 3. 2. This also is the reason that if a man drown himselfe and cannot be found the Coroner cannot enquire of the death of this man but for the King to have a forfeiture of his Goods an Inquisition ought to be taken before the Iustices of Peace as it was resolved in this Court Trin. 13. Jac. upon which the first exception was that the Inquisition was taken at D. in the time of King James super visum corporis in D. in the time of this King and for this he cited two presidents out of Cookes Booke of Eâ—tryes Another Exception was because the Inquisition was per Sacramentum probor legal hominum Com. predict whereas by the Stat. of 4. E. 1. this inquest ought to be by men of the four Towns next adjoyning and this ought to appear in the Inditement also Hill 10. Jac. Rot. 3. Co. lib. Intr. 354. And day was given to the Attorney General to maintain this Inquisition But afterwards Pasch 3. Car. the Inditement was quashed especially for the first exception The same Term in the same Court King versus Merrick In an Action upon the Case for these words I charge you King with Felony and you Constable inuendo Thomas Legat to apprehend him And a verdict for the Plaintiff It was moved in arrest of Iudgement by Bacon that the words are not actionable The first words are not because they are not an expresse affirmation and for this he cited Mich. 11. Jac. in this Court Powel and Bauds case where an action was brought for these words I have arrested Powel of Felony for stealing sheep of mine and adjudged not actionable Also the Plaintiff did not shew in his Declaration what kinde of felony this was and it may be such a felony for which an Action will not lie for there are divers kinds of felony and a Mayhem is one kind as appears in 40. Ass Pl. 4. 6. H. 7. 1 and in this case it shall be taken in mitiori sensu and it shall not be intended such a felony for which he may be hanged If one charge another with felony because he hath committed a Mayhem it is cleer that an action will not lye And the other words I charge you Constable to apprehend him are not actionable and the words are onely spoken to the Plaintiff Also the words are layd to be spoken in London and it appears that the Constable was of a Town in Norfolk who cannot apprehend any one in London Earle for the Plaintiff It hath been argued that the words are not actionable because felony is a generall word and contains in it selfe a mayhem also But I conceive that in this case felony shall be taken according to the general and common acceptation which is such a Felony for which a man may loose his life and for this he cited Co. lib. 4. 15. b. Yeomans charged Hext for my ground in Allerton Hext seeks my life and if I could find Iohn Silver I do not doubt but within two dayes to arrest him upon suspition of Felony and it was adjudged that for the last words the Action lies because he shall be imprisoned for suspition of felony and felony is there taken according to the common acceptation of the word It hath been objected that there is no expresse affirmation of the Felony but I conceive that there is 39. Eliz. Action was brought for these words I will call him in question for poysoning my Aunt and adjudged that it lyes and Mich. 37. and 38. Eliz. Woodrofe and Vaughans case for these words I did not know Mr. Woodrofe was your Brother I will prove him perjured or else I will bear his charges and adjudged actionable And Hill 44. Eliz. Rot. 351. This man inuendo Iohn Latham hath cut my Wives purse and his Father knowing of it received it of him and the Money and Rings theein and therefore I charge him of flat Felony and resolved that for these words did cut my Wife's purse no action lies for the cutting of ones purse only is not felony unlesse it be taken from the person and to receive one is not Felony but resolved that the last words were actionoble and then it was agreed that if one say that I. S. did see such a one that had committed felony and did suffer him to slip away I charge him of Felony these words are not actionable and Mich. 20. Jac. in this Court that these words beare witnesse I arrest him of felony are actionable and therefore he prayeâ— judgement for the Plaintiff Doderidge Iustice the words are not actionable And Hexts case comes not to this
case for there by the word Felony it was manifest what Felony he intended by the circumstances of the speech to wit that he ment such felony for which he might lose his life But the words here being generall of Felony it may be intended as well of a Mayhem aâ— of any other Felony for in an appeal of Mayhem he is arraigned as Felo Domici Regis 40. Ass and the other case of 44. Eliz. I do arrest him of flat Felony is not consonant with the reason of this case for there by the arrest his liberty is taken away but in this case there is no restraint and it is very hard to make these cases agree together for words are as variable as the faces of men c. Jones Justice agreed and he took it for a generall rule that where words carry a double sense and there is nothing to guide the sense more one way then another there the words are not actionable for finis est legis dirimire lites And therefore if one faith of another that he hath the Pox because the sense is ambiguous it shâ—ll be interpreted in mitiori sensu and therefore the words are not actionable to if one sayes of another that he hath stolen his Apples or his Corn because they may be Apples from the tree or Corn in the field the taking whereof is no felony but it was adjudged in the Common-Pleas when I was there that these words viz. Thou art a Thief and hast stolen my Corn are actionable by reason of the addition of the word Thiefe So that the speaking of words of a double sense are not actionable unlesse ex antecedentibus or consequentibus it can be collected that the words were spoken in pejori sensu Then the words in this case I charge you with Felony peradventure intend such a Felony for which he shall recover damages only which is Mayhem and therefore no action will lie These words Thou art forsworn are not actionable because forswearing may be in ordinary communication or in a Court of Justice and it shall be taken in mitiori sensu but if he sayes Thou art forsworn in a Court of Record it is actionable and if in this case he had charged him with Felony and sayd further that he had stolen c. they would have been actionable but here he only charges him with Felony which is an ambiguous word and also it is no direct affirmation and therefore not actionable and Iudgement was given Quod quaerens nil capiat per Billam The same Term in the same Court Goods Case GOod and his Wife brought a Writ of Error upon a Judgement given in the Court of the Castle of Windsor in an Action of Debt there which was entered Trin. Mich. 2 Car. Rot. 119. 120. and two Errors were assigned 1. Because the Judgement there is given in these words ideo consideratum ad judicatum assessum est whereas it ought to be onely by the word consideratum and the Judgement being the act of the Court the Law is precise in it and therefore it hath been resolved that a Judgement given by the word concessum is not good but it ought to be by the word consideratum 2. The costs ex incremento are not said to be given ad petitionem quaerentis aâ— it ought to be for beneficium nemini obt ruditur and therefore it hath been resolved in this Court that an alien born shall not have medietatem linguae if he does not request it and as to this it was answered of the other side that costs ought alwayes to be assâ—ssed ex petitione quaerentis and albeit here the request of the Plaintiff was not precisely put to increase of the costs yet at the beginning of the Judgement it is said Ideo ad petitionem quaerentis consâ—â—eratum c. And that costs shall be given ex in cremento so that this request goes to all the Sentence and by the unanimous opinion of all the Court the Judgement was reversed for both the Errourrs for 1. Ideo considerat adjudicat c. is not good the Judgement being the Act of the Court and the Law hath appointed in what words it shall be given and if other words should be suffered great incertainty and confusion would ensue and needâ—esse verbosity is the mother of difficulty 2. The increase of costs ought to be given ad petitionem quaerentis and the words ad petitionem quaerentis being misplaced will not supply this defect and Dammages ex incremento is alwayes given ad petitionem quaerent for as Bracton saith Omne judicium est trinus actus trium personarum judicis actoris rei and if in this case the usuall form should not be observed all would be in a confusion and in as much as the words are misplaced it is as if they had not been put in at all and therefore void like to a case put in Walsinghams case in Plowden where an averrement misplaced is as if there were none In this case the Judgement was reversed and Trin. 3 Car. in B. B. intr Hill 2 Car. Rot 849. a judgement was reversed because it was Ideo concessum consideratum est FINIS THE TABLE OF THE PRINCIPALL MATERS Contained in this BOOK A. ACceptance 113 Of a second Lease determines the first 9 Action 179 Where the Master shall be charged in an Action for the act of the Servant e contr 143 Action upon the case for words 35 36. 139. 140. 128 129. 148. 150. 177. 180. 184. 187. 207. 210. Action upon the case 116. 144. for pulling down a house 15 Against an Officer for his neglect 27 For laying too much waight wherby goods in another mans possession are lost 46 For stopping of a Water-course 166 Accessaries 107 Adjournment 33 Administration  not avoided by Averment 37. granted by a Lay-man 160 Administrators  Of the Wise shall have a Lease setled on the Wife not the Husband 106 Admittance 125 What the Heir may do before admittance 39 upon a surrender by a Disseisor 71 Addition  Of matter of Ornament shall not avoid a grant 57 Advowson 23 Agreement 134 construed according to the intention of the parties 182 Where to be joynt where severall 204 Alien  Where he may purchase where not 36 Amendment 21. 128. 203 204. Of the Postea and made according to the Pannel and the Record 102 Of a Record after the Record removed and Errour assigned 196 Annuity 87. 86 Pro consilio 135 Appropriation 144 145 Appeal  Of Mayhme 115 Plea in it 115 Assesment  by the major part of Parishoners shall bind the rest 197 Assumpsit 148. 182 183. 193. 206 against an Executor of an Assumpsit in the life of the Testator 30 31 32. generall indebitat Assumpsit 31 without consideration is nudum pactum 178 What shal be a good consideration to ground Assumpsit 183 184. Assise 111. Assets where a Lease for years to a Copyholder in the hand of
the Executor of the Lessee shall be Assets 188 Assault and Battery 13 In what case it lieth not against a Constable 13 Assurance 19 Arbitrement 134 Of one part only not good 134 Avowry 163 Authority 1. 194 to enquire upon severall Commissions A joynt Inquisition cannot be returned 94 Averment 28. 158 Not to avoid a Record 29 Wher it must be of Levant Couchant by the party 201. error 201 Award 15 16 B. BAile discharged by death of the Principals 186 How it shall relate 132 In the Kings Bench and the Common Pleas differ 132 When suspended by a Writ of Error brought 186 Bar. 1. 112. 167. 114 Not good for want of traverse è contr 67 68 Void for incertainty 204. 209 Bargain and Sale  By word not good 48 To one and his Heirâ— to the use of another where void 81 Burglary 42. 52. 84 Brief Of entry of an Advowson 22 C. CErtiore 202. Of the names of the Jurors To remove Indictment 144 Chattels 5 Charge 5. 86. 152. 196 Where avoided by entry for a condition broken 50 51 Charitable uses 7. 139 Charters 17 Clergy  Where allowable 52 Claim  Where it determines the Estate 64 è contr 64 Common recovery 6 Of Advowson 23 By Tenant for life a forfeiture 23 Need not be averred 24 is a baâ— of all Rights 10â— Certainty  A thing incertain made certain bâ— matter ex post facto 18â— In performance of Covenants whâ— is to do the first act 19â— Where joynt and severall 20â— 204 Condition 27. 53. 58. to pay money payment shall be upon the Land 11 Repugnant 16. void for uncertainty 99 Given to the King by Attainder 19 Inseparable and not to be transferred 19 Words conditionall 25. 198. 199 Where payment of money in part by fraud shall be no performance of it 100 When to be performed to the Assignee and not to the Heire 100 Taken strictly 104. within convenient time 199 Not to allien and he deviseth if broken 106 Where the word paying is a Condition where a confidence 11 Where discharged by the disability of the party to perform it 110. 198 Confirmation 105 131 cannot enlarge an Estate which is determinable upon a condition 52 Contingency 21 Contribution 155 Constable  his Office and authority 13 Contract 150. 209 Contempts and affronts before Courts of Justice how punished 288 Copyhold 125 Intailed where good where not 34. 129 Granted by Disseisin avoided by the Disseisee 71 Copyholder  Surrender of a Copyhold cannot surrender before admittance 128 Covenant 22. 109. 110. 146. 161. 198 200. 204 Lyeth not against an Executor of a Lessee after Assignment 137 To pay money pro terris and no time limited  Where conditionall and Executory 196 County where chargeable repairing Bridges 192 Counts 25 57 Courts  Ecclesiasticall Court ought to take notice of the Common Law 133 Costs  De incremento must be ad petitionem quaerentis 209 Cui in vita 39. 13 Custome  which layes a burthen upon Parishioners not good 197 D DAy where a precise day must be alledged where not 201 Demand 58 In the Disjunctive 23 Of a Messuage or house how it ought to be 14 15 Of a piece of Land 13 14 Of a Rent at what place 58 Of a Pension 23 Demurrer  No repleader after it 42 Demise of the King to be taken notice of 23 Deodand 136 Departure 3â— Deprivation 37 By the high Commissioners for speaking contumelious words against the Book of Common-Prayer 59 Debt 85. 98. 109. 173. 164 Where maintainable by Granter of the Reversion against the Assign for a Rent arrear 55 Where it lieth not for want of privity of contract ibid. Not maintainable by the Successor of a Prebend for Rent incurred in the time of the Predecessour against an Executor 102 Not for an escape upon a mean process in vit Testator 189. 190 Devise 91. 52. 188 To charitaâ—ble use 6. 7 Upon Trust 7 Of Gavel kind Lands 10 Of a Rent 131 Construed according to the intent of the Devisor 131. 188 Of a summe of money 133 Is an ailenation 107 Dove-cotes 142 Descent of a Copyholder doth not take away Entrie 35 E EJectione firmae  Upon a Lease of a Copyhold 38 Lyeth not of a water course 167 Lyeth for an executor 190. 191 De Messuagio five Tenemento void 203 Election 86. 153. 95 Enfant  Must answer by Guardian but may bring Action by Attorney 130 Chargeable for necessarik 151 Error 24. 100. 102. 111. 109. 193. 114 130. 151. 203. 211 Where it is in the discretion of the Court to allow a Writ of  Error 132 Is. A supersedeas in it self 132 Escape 41. 85. 131 Estates  To two joyntly and severally for their lives they are Tenants in common 52 Determined by death 86 Tail with Fee expectant 138 Where they shall passe by Livery where by Declaration of use 47. 49 Estoppel 115 Exchange 198 Execution one in Execution discharged by word 206 Where the party taken again upon a fresh suit shall be again in Execution 41 Against Terrtenants 152 Executors shall take benefit of a geral pardon 142 Infant Executor may take mony Release and give acquittance 130 What Actions are maintainable by Error 189. 190. 191 Exemplification  not pleadable 151 Exception 1. of Trees 194. 195. Of profits 196 Of Woods Copices the soyle is is excepted 146 Exposition of Statutes  Of Stat. 23. H. 8. of charitable uses 7 Of Stat. 14. Eliz. of Leases to Colledges 9 Of Stat. 13. Eliz of 13. Eliz. of Fugitives 18 Of Stat. 32. and 34. H. 8 of Wâ—lls 89. 90 Of Stat. 27. Eliz. concerning Jesuits 93 Of 8. Eliz. cap 4. 107 Of 29. Eliz. cap. 4. 173 Of 22. H. 8. of reparation of Bridges 192 Exposition of words  Of the word Subject 69 Of the word Twelvemonth 104 Scilicet 201 Postea 291 Extinguishment of a Lease 30 Where a Term or other thing shall be extinguished as to one and in Esse to another 40 By unity of possession where and where not 166 167 168 169 170 171 F FAlsifying Recovery 6 Fees  For serving Executions 174 175 Feoffments 103 Inrolled without Livery not good 8 To uses 3 Fine  Imposed by the High Commissioners 60 Fines levied 62 108. 112 How Proclamations thereupon shal enure 63 by a Disseison where a good bar 65 not construed to other Lands then are mentioned in the Deed which lead the uses 105 Forfeiture 84 105 Of a Copy-holder for not paying his Fine  Of the Office of Leivtenant of a Forrest 117 Formedon 112 Forrests 117. 150 Fraud  added 19 Fugitives 18 Freehold  cannot begin at a day to come 47 Franchises where forfeited by Non-claim 181 G GRants 86 Not voyd by addition of word  Of Ornament 57 Where Acres in a Grant shalâ— be according to Statute Acres or according to Estimation of the place 55 Of the Office of Keepership 116 Where it
Vse may be averred without Deed upon a Fine sur Render And all agreed that if there had been a Deed to have declared the purport of the Fine that the Fine shall not be taken to extend further then is comprised in the Deed. And what is the cause therof the Deed or the intent of the parties and none can say but that it is the intent of the parties and not the Deed and the intent may as well appear without the Deed as with it albeit it be not so conclusive by Parole as by Deed. And therfore suppose I have 100. acres of Land in a Close in D. and I. S. hath another 100. acres in the same Close and Town and I. S. hath a 100. acres of Land in the same Town out of this Close and my intent is to levy a Fine to I. S. of the whole Close by the name of 200. acres of Land with a Render as before and I levy it accordingly shall the Render enure to the Land which I. S. had in the same Town It is cleer that it shall not although it be without Deed why then shall the Fine here be taken to work rather to the Land called Karkian then to any other Lands which any other had in the same Towns when it appeareth plainly that it never was the intent of the parties that the Fine should extend to these Lands called Karkian and it was decreed in Chancery accordingly Hall versus Arrowsmith 4. IN the case between Hall and Arrowsmith it was agreed by the whole Court in the Kings Bench That if a Copyholder for life hath licence to make a Lease for three years if he shall live so long and he makes a Lease for three years without such a Limitation that yet this is no forfeiture of his Estate because the operation of Law makes such a Limitation to the Estate which he made to wit that it shall not continue but for his life and then such an express Limitation in the case where the Law it self makes it is but a meer trifle and yet if a Lessee for life makes a Lease for years and he in the Reversion confirm it it remains good after the death of the Tenant for life but this then shall be as if it had been made by him in the Reversion himself and shall be his Lease But if the Lease there had been made determinâ—ble upon the life of Tenant for life the confirmation therof by him in the Reversion will not help him after the death of him who was Tenant for life Causa patet But in the principall case if the Copyholder had had an Estate in Fee by Copy it had been a forfeiture of his Estate to make an absolute Lease because in that case he does more then he was licensed to do And they agreed that such a licence cannot be made to be void by a Condition subsequent to the execution therof to undo that which was once well executed But there may be a Condition precedent united to it because in such a case it is no licence untill the Condition performed but the licence before mentioned is not a condition all Licence but a Licence with a Limitation and therfore hath not been of force if the Limitation which the Law makes in this case had not been and the Limitation in Law shall be preferred before the Limitation in Deed where they work to one and the same effect and not different Arthur Johnsons Case 5. ARthur Johnson was possessed of a Term for years and so possessed assigned this over to Robert Waterhouse and John Waterhouse being Brothers to the Wife of the said Johnson to the use of the said Wife the said Johnson dies and makes his Wife his Executrix after which the said Wife takes Robert Witham to Husband who takes the Profits of the Land during the life of his said Wife the Wife dies Intestate her said Brothers being next of kin to the said Wife took administration as well of the Goods of the said Wife as of her first Husband And whether the said Waterhouses or the said Witham shall have this Lease or the use therof was the question in the Chancery and therupon put to the two chief Iustices upon which they and the chief Baron and all the other Iustices of Serjeants-Inne in Fleetstreet and Beamont also were cleer in opinion that the said Administrators had now as well the Interest as the Vse also of the said Term as well in Conscience as in Law and that they had the use as Administrators to the said Wife and that the said Witham shall not have it because it is as a thing in Action which the Administrators of the Wife alwaies shall have and not the Husband As if an Obligation had been made to the use of the Wife And this opinion was certified accordingly to the Lord Keeper of the great Seal of England and it was so decreed Taunton versus Barrey 6. IN an Ejectione firmae brought by Giles Taunton Plaintiff in the King Bench against Giles Barrey Defendant the Case was thus Iohn Coles Esquire made a Lease of the Lands in question to the Father of the said Barrey for divers years depending upon the life of the Lessee and of the said Defendant and of the Survivor of them upon condition that the said Father should not alien without the consent of the said Coles his heirs after which the said Father devised the Term to the said Defendant and died making his Executor who assented And the question upon this point found upon a speciall Verdict was whether upon the matter the Condition were broken and by the opinion of the whole Court adjudged that it was for in such a case he ought to have left it to his Executor without making any Devise of it for the Devise is an Alienation against him and therfore it was agreed that the Plaintiff shall recover Term 37 Eliz. Rot. between Roper and Roper Michaelmas Term 38 39. Eliz. Everets Case 1. THis Case was moved by the chief Iustice to the other chief Iustices at Serjeants-Inne in Fleetstreet concerning one Everet who before was attaint for stealing of a Horse reprieved after Iudgment and Indited again for stealing another Horse before this Attainder And the Vicar of Pelton in the County of Somerset was Indited as accessary before this Felony for the procurement of it And Everet being again Indited upon this last Inditement did not plead that he was formerly Indited of another Felony c. but acknowledged the Inditement wherby the Accessary was Arrained tried and found guilty and had his Iudgment also as the principall but the Execution of the Accessary was respited And now moved whether upon this matter it shall be fit to execute the Accessary the principall being executed And it seemed convenient to all the Iustices and Barons that he shall be executed and that the matter was cleer in this case because the principall did not take advantage of his
first Attainder by way of Plea but acknowledged the Deed in which case the Accessary may well be Arraigned But if the principall had pleaded his former Attainder whether now he shall be put to answer for the benefit of the Queen having regard to this Accessary who otherwise shall go quit because there was not any principall but he who was formerly attainted And it seemed to Popham and some others that it shall be in the same manner as if the same person so formerly attainted should be tried now for Treason made before his Attainder as appeareth by 1 H. 6. 5. because it is for the advantage of the King in his Escheat of the Land and notwithstanding that it is moved by Stamford in his Pleas of the Crown it seemed to Popham that there was no diversity where the Treason was made before the Felony of which he is attainted and where after and before the Attainder And by the same reason that he shall be again tried for the benefit of the King in this case because of the Escheat by the same reason in this case here because of the forfeiture which accrueth to the Queen by the Attainder of the accessary and for the Iustice which is to be done to a third person who otherwise by this means shall escape unpunished But he agreed that the party Attaint shall not be again Arraigned for any other Felony done before the Attainder in case where no Accessary was touched before the Statute of 8 Eliz. cap. 4. he who is convict of Felony and hath his Clergy after his purgation made shall be Arraigned for another Felony done before the conviction if it be such for which he cannot have his Clergy and was not convicted or acquitted of the same Felony before the Attainder But upon this Statute it appeareth that he who shall have his Clergy in such manner shall not be drawn in question for any other Felony done before his Attainder for which he might have his Clergy And of this opinion as Clark and others of the Iustices said were all the Iustices in the time of Wray And as to the Statute of 18 Eliz. cap 7. It is not to be understood but that he who hath his Clergy and delivered according to this Statute shall be yet arraigned for any other Felony done before his former Conviction or Attainder if it be such for which he cannot have his Clergy for the words are That he shall be put now to answer c. in the same manner as if he had been delivered to the Ordinary and had made his Purgation any thing in this act to the contrary notwithstanding Pollard versus Luttrell 2. IN an Ejectione firmae between Pollard and Luttrell for Lands in Hubury and Listock upon the Title between the Lord Audeley and Richard Audeley it was agreed by the chief Iustices that if the Disseisor levy a Fine with Proclamations according to the Statute of 4 H. 7. and a stranger within five years after the Proclamations enter in the right of the Disseisee without the privity or consent of the Disseisee that this shall not avoid the Bar of the Fine unlesse that he assent to it within the five years for the words of the Statute are so that they pursue their Title Claim or Interest by way of Action or lawfull Entry within five years c. and that which is done by another without their assent is not a pursuing by them according to the intent of the Statute for otherwise by such means against the will of the Disseisee every stranger may avoid such a Fine which was not the intent of the Statute Mountague versus Jeoffreys and others 3. IN Trespasse by Edward Mountague Plaintiff against Richard Jeoffreys and others Defendants for a Trespasse done in certain Lands called Graveland in Hailsham in the County of Sussex the Case upon a special Verdict was thus Sir John Jeoffreys late chief Baron bing seised in his Demesn as of Fee amongst others of the said Land called Graveland having Issue but one only Daughter by his Will in writing devised all his Land of which he was seised in fee except the said Graveland to his said Daughter for 21. years c. and the said Land called Graveland which was then in Lease for divers years to one Nicholas Cobb which years at the time of the death of the said Sir John Geoffreys continued he devised to the said Richard Jeoffreys his Brother and his Heirs and by the same Will he disposed divers Legacies of his Chattels and the Remainder he gave to his said Daughter and made her Executrix of his said Will after which the first Wife of the said Sir John Jeoffreys being dead he covenanted with Mr. George Goring to take the Daughter of the said George to Wife and covenanted with the said George amongst other Lands to assure the said Land called Graveland to the said George Goring and Richard Jeoffreys and their Heirs to the use of the said Sir John Jeoffreys and Mary Goring Daughter of the said George and the Heirs of the said Sir John Jeoffreys by a certain day before which day the marriage being had the said Sir Io Ieoffreys made a Deed and sealed it and delivered it containing a Feoffment of the said Land called Graveland amongst others to the said George Goring and Richard Ieoffreys and their Heirs to the Uses aforesaid in performance of the said Covenants with a Warrant of Attorney to make Livery accordingly and the Attorney made Livery in other parts of the Land and not in Graveland and this was in the name of all the Lands compriâ—â—d in the Deed and the said Nicholas Cobb never attorned to this Deed After which Sir Iohn Ieoffreys interlined in the said Will that the said Mary then his Wife should be joynt Executrix with his Daughter And in the Legacy of the rest of his Goods c. he interlin'd the said Mary his Wife to be Joynt-tenant with his said Daughter without other publication therof and afterward the saâ—d Sir Iohn died the said Daughter being his Heir who took to Husband the said Edward Mountague 4. IN Trespasse the Plaintiff supposeth the Trespasse to be done in the breaking of his House and Close in such a Town the Defendant justifies in a House and Close in the same Town and shews which to put the Plaintiff to his new Assignment to which the Plaintiff replied that the House and Close of which he complains is such a House and gives it a speciall name upon which the Defendant demurs and adjudged that the Plaintiff take nothing by his Writ for albeit a House may have a Curtilage which passeth by the name of a Messuage with the Appurtenances yet this shall not be in this case for by the Bar the Plaintiff is bound to make a speciall demonstration in what Messuage and what Close he supposeth the Trespasse to be done as to say that the House hath a Curtilage the which he broke and
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
great deliberation viz. Mountague chief Iustice Crook Doderidge and Haughton Iustices that it was not a common Nusance either punishable or inquirable in a Leet and by Haughton a man hath Jus proprietatis privilegii in the Doves 1. Propriety in respect of the place as 22 H. 6. 39. Trespasse lies for taking a Goshawk in respect of the place as 3 H. 6. 55. For Hares and Spencers case in Dyer and so of other things which are Ferae naturae And if a Deer goes out of a Park albeit it be in the Kings case yet it is lawfull for the Owner of the Sail to take it if it be in the place where the Deer bath chase and re-chase And by the Register and Fitzherbert it appears that Trespasse lies Quaere columbare fregit Columbas cepit But 16 E. 4. 7. Trespasse doth not lye for killing of Doves but there is a Quaere of an action upon the case and because the Doves do no Trespasse neither is there any remedy for the killing of them therfore they are no common Nusance for by Brook 34 H. 6. Brooks action upon the case the common custom is the common Law and there is no authority against it but Co. lib. 5. 104. Boulstons case which is only on the byâ— and is not agreeing with the reason of the principall and this confirms my opinion Quod fiat concessum per totam Curiam for there the principall case was that a man made Cony-burrows and the Conies strayed into his Neighbors grounds and adjudged that it was not actionable but it was lawfull for any man to kill them upon his own ground so here c. Doderidge It may be a hurt to the Common-wealth but not a publike Nusance for that ought to be immediate or generall 1. Immediate it cannot be for the erecting of a Dove-coat cannot in it self be a Nusance 2. It is not generall but particular to the Neighbouring Inhabitants And it hath been allowed of all sides that a man may have a Dove-coat by prescription which could not be if it were a Nusance to which Mountague agreed And it is lawfull for any man to kill the Doves upon his own Land but they must be ware that they do it not against any Statute for Doves are preserved by many Statutes as by the Statute of Wales made in the time of E. 1. and the Statute of 18 E. 2. gives directions that the killing of Doves shall be presented at the Leet And the Statute of 18 Eliz. ordains that Doves shall not be shot 3. However the Replevin lies for a fault in the pleading for the harm and nusance which the Doves do is laid to be Per totam patriam wheras it ought to be within the Precinct of the Leet to which Mountague agreed Crook A man hath property in the Doves only by the Possession for being at large they are Nullius in bonis and when they are in his possession to wit in the Dove-coat they do no harm to any and it was lately ruled in this Câ—uâ—t that a man cannot lay Loggs in the Kings high way although there be sufficient room for Passengers because it is a wrong to have the high way strained so here a Prescription should not be good if it were a Nusance for it is all one to erect a great Dove-coat or a little one for a Nusance Non recipit magis aut minus And Bolstons case rather confirms then encreaseth my doubt and so I agree with my Brethren Mountague A man hath Jus duplex in Doves 1. Jus proprietatis 2. Jus privilegii for they fly to and again and as Bracton saith have Animum revertendi and so have not other things which are Ferox naturae And it is a good Argument that this matter was never questioned for it is without question Littleton saith in the case of Disparagement 21 E. 3. 4. They of the Leet ought to enquire of such things as have been enquirable yet the excesse therof is restrainable by the Iustices of Assise A Precipe lies of a Dove-coat as appears by the Verse Mich. Col. and Dower and Partition lies therof which shews it to be lawfull and by the Excesse of Dove-coats restrainable by the Iustices of Assise Book of 17 E. 4. 7. It seems that it is not lawfull to take Doves And as a man cannot prescribe to do a Nusance so the King cannot licence one to do it And therfore I agree that Iudgment shall be given for the Dove-coat The same Term in the same Court. Richardson versus Cabell RIchardson being a Parson libelled against Cabell in the Spirituall Court for Tithes because the said Cabell being an Inn-keeper took all the benefit of his Pasture by putting in Guest Horses into his Pasture wherupon Cabell prayed a Prohibition and it was not granted for it is Tithable in this case But if Cabell had taken a crop of Hay and afterwards he had put Guest Horses into the Pasture in that case it had not been Where tithes shall be paid for grasse of guest Horses Tithable for he had his Tithe before and therby it should seem that some Crop is not Tithable The same Term in the same Court. Southern versus How RAlph Southern Plaintiff in an Action upon the Case against Robert How shews for his case That the Defendant being a Goldsmith in London and having Counterfeit Iewels knowing them to be counterfeit sent William Saldock his Servant with them to the Plaintiff being a Merchant in Barbary to use him for the sale of the Iewels to the King of Barbary and the Plaintiff therupon sold them to the King of Barbary for 800 l. and Saldock having received the said money went from thence And the Iewels being afterwards discovered to be counterfeit the Plaintiff was taken and enforced by Imprisonment to make restitution of the money to the said King But it was said by the Court that the Verdict did not prove the case for it was found that the Defendant did not command his Servant to make use of the Plaintiff nor to sell to the King but generally to any And that the Iewels were of some worth Scil. 80 l. And it was agreed at the Bar by Davenport that in this case the action well lies for the Master shall answer for Where a Master shall be answerable for his Servant and where not his Servant Dyer 151. the Lord Norths case 5 E. 4. 1. the Sheriff shall be amerced for the ill return of his Bailiff And if I command my Servant to kill one who commands another in this case the Master shall not be punished but in Trespasse all are principals and 2 H. 4. 18. If a Servant burns his Masters house wherby another house is burnt there the Master shall answer for it for 14 H. 8. 31. b. an Action upon the case lies where there is no other action provided for such a thing so that an action well lies in this case and see
one he would pay it where good where not this he may implead him presently Mich 12. Jac Kebles Case A man promiseth to pay so much in consideration of a Lease at Will and it was holden no good consideration for by the same breath that he creates it he may defeat it Pasch 8. Jac. Austins Case A man promise that in consideration he would forbear another he would pay it and no time was limited and therefore it was holden no good consideration Trin. 38. Eliz. Rot. 523. A man promise quod non implacitabit and avers quod non implacitavit and because of the uncertainty it was holden no valuable consideration Doderidge Justice If there be no consideration at the time or no cause of Action the forbearance afterwards will not make it actionable and he said that it had been adjudged in this Court that a consideration to forbear for a little time is not good but by some to forbear for a reasonable time is good But in the principall Case upon the hearing of the Declaration read it appeared that it was that he should never implead him upon the said obligation so that if the Plaintiff brings an Action upon the obligation the Defendant here may have an Action upon the Case against him Also it was non implacitabit and this shall be taken indefinitely quod nunquam implacitabit and therefore the Iudgement was affirmed for otherwise the Plaintiff shall both take advantage of this promise and of the bond also and here he hath in a manner forsaken the benefit of his bond and hath betaken himselfe to the benefit of this Assumpsit By Jones and Whitlock Iustices if A. be bound to me and I enter into bond to him that I will not sue this Obligation I cannot sue him upon the first Obligation without forfeiture of my bond and by Doderidge if an Obligation be forfeited and I say to the Obliger do not sue the Obligor or do not implead him an Action upon the case lies against me The same Term in the same Court. Arnold versus Dichton IN an Action upon the Case and Non-Assumpsit pleaded it was found for the Plaintiff and Noy mooved in arrest of Iudgement that there was no consideration to maintain this Action the Case being thus Arnold having married the Daughter of the Defendents Testator the Testator promised to give him 40 l. and meat â—nd drink for a year and a Featherbed and Bolster and afterwards the Testator in consideration that the Plaintiff would Assumpsit forbear to sue him all his life for it promised that he should have as good a portion at his death as any of his children and the Plaintiff declares that he gave to one Tho. P. one of his Sons 200 l. and that he left him at the time of his death but 30 l. but when he gave to Tho. P. the 200 l. appeares not peradventure it might be in his life time and this promise doth not extend to that which he had given before as if a man be bound to keep a Goale and that no prisoner shall escape this only extends to a future keeping and future escapes and not to other escapes which were before True it is that sometimes the Law will alter the sense as in the Case of 32. H. 6. where a man is bound that his Feoffees c. And at another day Doderidge said that the first promise was but an inducement to the second and the Defendant hath pleaded Non Assumpsit to the last promise and then comes the Plaintiff and shews that he gave to such a one 200 l. and doth not shew when this was given and this may be before the promise and therefore I conceive the Declaration is not good Jones agreed that the Declaration is not good for admit that in this case he had given to all his children but one great portions before the said promise and had given a small portion to one after the promise the Plaintiff now shall have but according to the said promise and it is alledged here that he gave to such a one 200 l. which may be before the promise and therefore the breach not well laid Whitlock contra and that the Plaintiff shall have according to the best gift in this case whether it were before or after the promise and that upon the intention of the promise for the intention is that the Plaintiff should have as good a marriage or portion with his Daughter as any other of his children should have But by Doderidge this construction cannot be made without offering violence to the words for then daret should be for dedisset and for any thing which appeareth he had a portion before and this was but a superaddition Jones put this case I am bound to enfeoff J. S. of so much Land as I will enfeoff J. D. this extends not to a Feoffment which I have made to J. D. before but only to a Feoffment which I shall make to him afterwards which was not denied by Whitlock and it was adjourned The same Term in the same Court. Barker versus Ringrose BArker brought an Action upon the Case against Ringrose and declared that whereas he was of good fame and exercised the Trade of a Wool-winder the Defendant spake these scandalous words of him that he was a Words Thou art a bankrupt Rogue Bankrupt Rogue and it was moved in arrest of Iudgement that those words were not actionable for the words themselves are not actionable but as they concern an Office or Trade c. and it appeareth by the Statute of 27. E. 3 that a Wool-winder is not any Trade but is but in the nature of a Porter so that the Plaintiff is not defamed in his function because he hath not any also it is not averred that he was a Wool-winder at the time of the words speaking Jones Justice If one saith of a Wool-winder that he is a false Wool-winder action upon the Case lieth and it was demanded by the Court A Wool-winder wâ—at he is what a Wool-winder was and it was answered that in the Countrey he is taken to be a Wool-winder that makes up the fleece and takes the dirt out of it and a Wool-winder in London opens the fleeces and makes them more curiously up and in London they belong to the Mayn of the staple Doderidge If one saith of a Sher-man that he is a Bankrupt Action lyes and so it hath been adjudged of a Shoo-maker and note that if one saith of any man who by his Trade may become a Bankrupt within the In what case to call a man Bankrupt is actionable Statutes that he is a Bankrupt an Action lies as of a Taylor Fuller c. And the Court seemed to incline that in this case being spoken of a Wool-winder in London the Action lies But Mich. 3. Car. the Case being moved again the Court was of opinion that the Action could not lye and would not give