it is that if the Lord had seisin of more then the very services in this case it may not be avoyded in avowry and no fall tenure shall be avoyded c. but when he joyns another falsity and that is in the quantity of land now the false quantity of the rent had made the tenure traversable and the judgement was commanded to be entred accordingly Trin. 19. Jac. Thomas Bull Executor c. against Fankester THomas Bull Executor of William Bull brought an action against Fankester and declared that the Defendant enfeoffed his Testator in certaine land and that he covenanted for him and his heirs that he was seised of a good estate in fee and he alleadged the breach upon which they were at issue and now Attoe moved in arrest of judgement first because the Plantiff sueing as Executor had not shewed the Will for it hath been adjudged here that if a man bring an action as executor and do not shew the Will that the Defendant may demurre upon that because it is matter of substance but Hobert said it is very good because the Defendant had admitted him to be responsible but it is true he might have demurred upon the declaration as we often times adjudged here secondly Attoe said that the covenant being made with the heire the executor shall not have an action of covenant for it is annexed to the land which was granted by Hobert and Winch being only present in the Court. Note that it was said at the barre and agreed by Hobert that if the debtor make the dettee his executor he may now retain in debt against him and safely plead plene administravit if he had no other goods and shall not be driven to his special plea and so it had been agreed often times in this Court Parson and Morlees case PArson and Morlees case it was said that the Lord Chancellour presented to a venefice which belonged to the King which was above the yearly value of 20. l. per annum and this was referred to Hobert chief Iustice and to Tanfield chief Barron to certifie whether this was meerly void it remained good till it was avoyded Harris against Wiseman HArris had procured a prohibition against Wiseman who had libelled in the spiritual Court against the Plantiff for a frat in the Church which did belong to his house and it was said by Hobert and Winch only present that a man or a Lord of a mannor who had any Isle or a seat in the Church c. and he is sued for that in the spiritual Court he shall have a prohibition but not every common parishioner for every common seat and upon the first motion at the barre in this case day was given over to the Defendant to shew cause wherefore that a prohibition shall not be granted and the Defendant not having notice of that after the day the Plantiff had a prohibition and now after the day he shewed a good cause and upon that a supersedeas was granted to stay the prohibition in that case Aylesworth against Harrison AYlesworth against Harrison in debt against an executor the question was whether he may plead plene Administravit and give in evidence a debt in which the Testator was indebted to him or whether he may plead the special matter that plea amounting but to the general issue and it was argued by Harris Serjeant the Defendant may plead the special matter and shall not be bound to the general issue to leave that to the lay people who may suppose such a retainer to be an administration and he vouched the 15. E. 4. 18. if a man illiterate seale a deed which is read to him in another manner c. and he delivers that as an escrow to be delivered over as his deed upon conditions performed and this is delivered over before the conditions performed he may in this case plead the special matter and conclude so not his deed or if he will he may plead the general issue of non est factum and so is 39. H. 6. in dower the Tenant said that before marriage the husband infeoffed him and that after the Tenant let to him at Will and that the husband continued possession during his life absque hoc that he was seised of such an estate of which she might have dower and exception was taken there because that this only amounts to the general issue and yet ruled to be good for the lay people may conceive such a continuance of possession during the life of the lessee to be such an estate of which the wife may have dower if this were put upon the general issue and in our case because he had liberty to plead specially or generally he prayed that the Defendant may be admitted to plead specially and that he may not be bound to the general issue Serjeant Hendon to the contrary if one plead a plea which amounts to the general issue see Layfields case Coo. 10. and though in Woodwards case commentaries there was such a plea pleaded yet this doth not prove the contrary for in the same case no exception was taken by the Plantiff and presidents do prove that the Defendants in this kind have been compelled to plead the general issue Hobert if no special matter may be alleadged to the contrary the Defendant shall be compelled to plead the general issue and this is good discretion in the Court to take away the perplexity of pleading because one plea is as good as the other to which Winch being only present agreed and it was ordered that the Defendant here plead accordingly In debt against the heire upon the obligation of his father and in the declaration the Plantiff omitted these words obligo me et hered es meos c. and after error brought the Plantiff prayed that this might be amended because it was the misprision of the Clark only Hobert and Winch said that this shall not be amended for it is a matter of substance but because the clark who made this misprision was a good clark day was given over c. Widdow Archers case IN debt against the Widdow of Archer being executrix of her husband and the Plantiff declared that neither the Testator in his life nor the executrix after his death had paid that omitting those words licet saepius requisitus c. and evil but this omission was amended Sir Edward Grubham against Sir Edward Cooke SIr Edward Grubham brought an audita querela against Sir Edward Cooke upon a recognizance of 4000. l. and this was acknowledged to the use of his Mother and shewed that the conusor had infeoffed him and another in the land and that the conusee had sued execution only against him and it was found for the Plantiff and it was so moved in arrest of judgement by Ashley Serjeant first because he had not shewed in this audita querela when the Statute was certified nor yet the Teste nor yet the return of the writ of extent
owner had not any remedy and so here he doubted that when the Sheriff made execution whether he shall have any remedy or no and therefore it is good conscience to allow him to take a bond for that before he make execution for otherwise a great inconvenience may insue for perchance after the extent and before the liberate the parties may agree and then the Sheriff shall not have any thing for all his paines which he had taken in the extent which never was the intent of the Statute but it may be objected that in this case the Sheriff may have an action upon the case against the debtee or the conusee if he make such composition I answer yet this is a great hinderance and trouble to the Sheriff to prosecute the suite and it shall be very inconvenient to allow that the Sheriff shall be allowed no other remedy and then for the third point he argued that the Sheriff shall have 12. d. in the pound for the first 100. l. where the bond exceed 100. l. and 6. d. for that which exceeds for otherwise as the case is he shall have nothing at all for the first hundred pounds for the words of the Statute are if the same be above 100. l. then he shall have 6. d. so that 6. d. only shall be taken for that which is above 100. l. and nothing for the first hundred if this construction shall be made and he also remembred the objection made by Hendon and so concluded that judgement ought to be given for the Plantiff Hobert said cleerly the Sheriff may take a single bill for his fees and that is the ordinary course also he read the Statute of the 29. Eliz. that it shall be lawful to the Sheriff c. and said the words of the Statute made a contract in law for which an action of debt lyes for the Sheriff and he â—â—id to Serjeant Bawtry that the second point will be found to be against him and for the third point that the Sheriff shall have but 6. d. for all in the case the summe exceed 100. l. and so they thought judgement ought to be given for the Defendant and Iustice Winch said that the reason wherefore the summe of 12. d. in the pound is given if that not exceed 100. l. is because that it is as much labour to the Sheriff to execute 100. l. as it is for 500. l. Maps and Maps against Sir Isaac Sidley MApps and Mapps brought an action upon the case against Sir Isaac Sidley upon a promise and shewed that one named Holdish was indebted to the Testator of the Plantiffs in 12. d. upon a bond which became due and that the Defendant in consideration that the Plantiffs will forbear to prosecute a suit upon the same obligation he promised to pay that and the Plantiffs shewed that they had forborn him till such a day c. and upon non assumpsit pleaded it was found for the Plantiff and now it was moved in arrest of judgement by Hitcham Serjeant of the King that this declaration is not good for this forbearance ought to be for ever and not a temporary forbearance only for the Defendant by his promise had made the debt his own as if the assumpsit promise had been to forbear to come to my house this ought to be a perpetual forbearance and here the assumpsion of the Defendant amounts to a release in law to the principal and yet he agreed if this had been generally that he had forborn and had not shewed he had forborn ill such a day the declaration had been good Hobert if the promise had been to forbear till such a day there he may sue the dettee if he do not pay it the day and it was adjourned Mich. 19. Jac. Mabies case MAbies case Hobert in Parson Mabies case if I let my rectory excepting my glebe the exception is void for no rectory may be without glebe and the same law of a mannor excepting the demeasnes but he may except parcel of the glebe and good but in pleading the lease of a rectory this shall be taken for the whole rectory and not for parcel Gratwick against Gratwick GRatwick brought a formedon in remainder against Gratwick and the Tenant pleaded that the day of the purchase of the writ and yet he the Plantiff is seised of the moity of the land in demand and it was argued by Serjeant Harvey that this is no good plea for he ought to shew of what estate he was seised and he may be seised by vertue of a Statute and he vouched the 39. E. 3. 7. Hobert if he had said that he was seised in his demeasne as of fee or as of freehold this had been good and a seisin by force of a Statute is no seisin at all and Hutton said if Tenant plead entry in part pending the wriâ— he ought to say that he entered and expulsed the other for otherwise it is not good and I conceive that the Court inclined that in the principal case that the plea for the cause aforesaid being of a general seisin was not a good plea. Sir Edward Grubham against Sir Edward Cooke AT another day the case of Sir Edward Grubham and of Sir Edward Cooke was moved againe and it was objected by Ashley that the declaration in the audita querela is not good because he had not shewed the day of the Testee and of the return of the writ execution in certainty but only by process such a day out of the Chancery which is not good but he ought to plead all the record of the extent in special and he offered to shew a president of that and secondly he had not shewed the execution of the liberate by which the land was delivered and so there is no express allegation of a grievance Richardson the presidents in the old book of entries are according to our declaration and Hutton vouched the 9. H. 6. and 39. H. 6 and in an action of debt upon a judgement he needs not recite all the record but he may begin at the judgement and as to the second point they all agreed that the party may have an audita querela before an ouster and yet here the showing that it was delivered to the conuser by the liberate is a sufficient averment of the ouster for it may not be delivered without an ouster and ruled that the Plantiff shall have judgement if the Defendant do not shew other cause by such a day Vpon a Capias Vtlagatum the sheriff returned that the party which was arrested had a protection from Lord Stafford who was a Lord of the Parliamen and it was moved by Serjeant Hitcham that the return was not good for the protection of a Lord of the Parliament is not good in a Capias Utlagatum which concerned the King and by Winch Iustice only present in Court the return is cleerly naught and day was given over to the Sheriff to amend his
shall be given for the Plantiff and yet they agreed he might have demurred upon the declaration and that was good and also they held if that had been generally saepius requisitus c. it had not been good because the request is parcel of the promise and therefore ought to be precisely set down to be after the promise and the payment of the 52. l. but here they said for the time it is very well expressed by this word postea and there is not any defect but only in the place for postea implies that this was after the promise and payment of the money and Hobert said that all the points of the declaration quoad the substance are good only it fails in the place where the request was made and this varied by the issue and all the rest is sufficiently alledged to ascertain the Court that the promise is broken and Hutton said that in his opinion such a request ought to be given in evidence but Harvey said that though the request is parcel of the promise and that ought to be sufficiently alledged and so it was here so that the Court may give judgement of that and he said that postea requisitus had relation to the time of the promise and the payment of the money and judgement was given accordingly for the Plantiff in the said case Sir John Davis priviledge denied NOte that this day being the 26. of November Davis who was the Kings first and chief Serjeant came to the Bar and he offered to move the Court and they refused to heare him because his course was gone in his absence and he claimed his priviledge that the Kings Serjeant might move at any time but Iustice Hutton answered that 20. years agoe when he was made Serjeant there was no such custome or priviledge except they moved for the King and so said Iustice Winch also and he said that though of late time such favour had been given to them yet that was ex gratia Curiae and this was an evil custome especially now when the King had five Serjeants and he used to have but two and so they told him they would not allow of any such priviledge or prerogative neither would they hear him upon any such account and they said perchance of favour they might hear him Austin against Beadle AUstin brought an ejectione firme of lands against Beadle and declared of a lease made at Haylesham and the Defendant pleaded that Haylesham praedict ubi tenementa jacent is within the five Ports where the writ of the King rans not and so he pleaded to the jurisdiction of the Court and the other replied that the Town of Haylesham was within the Countie of Sussex absque hoc that it was within the five Ports and upon that the Defendant demurred and it was argued by Finch that the traverse was not good and he said that he ought to have traversed absque hoc quod villa de Haylesham ubi tenementa jacent is within the five Ports for the veritie was that it was part in the five Ports and part in the Countie of Suffex and the land lies in that part which is in the five Ports and for that he may not take issue upon that traverse for then it will be found against him and so he said it was held 50. Ed. 3. 5. that the Plantiff in trespass there in his declaration and replication he distinguished the part and so the Plantiff ought here but it was answered by the Councel of the other side and resolved also by the Court that the traverse is good and that the Bar is naught and if the Plantiff may not traverse in other manner and that the Defendant in his Bar he ought to have made his distinction and every plea which goes to the jurisdiction of the Court shall be taken most strong against him who pleads that and the traverse here ought to be to the Town and not to ubi which was idle for the law said as much and we do not imagine any fractions of Towns and so I conclude the Plantiff ought to have judgement Ashley against Collins IN a case between Ashley and Collins it was agreed clearly by the Court that if an infant made an obligation and after he being sued upon that an Attorney without warrant suffers a judgement by non sum informatus that this was no cause to grant an audita querela and upon the opinion of the Court the audita querela was quasht for it was said he shall have a writ of error if he were within age and if he was not then he shall have his writ of disceit against the Attorney Anthony Gibson against Edward Ferrers ANthony Gibson brought an Action of debt of 1000. l. upon an obligation made the 11th of December 21. Iac. and the Defendant came and demanded Oyer of the condition and the condition recited that whereas there were differences between the said parties concerning some accompts now they had for the final determination of them they had put themselves upon the award and arbitrement of Gerrard de Malines to be made before the last day of December next if therefore the said Edward Ferrers his Executors c. shall and do for his and their parts perform stand to and keep the said Arbitrement of the said Gerrard de malines that then c. quibus lectis et auditis idem Edwardus dicit quod praedictus Antonius Actionem suam versus cum habere non debet because he said that the said Gerrard de malines did not make any Arbitrement and the other replied and shewed an Arbitrement which he did award to Gibson interested to be paid for money among divers other things and upon that the Defendant did demur in law and it was argued by Bridgman Serjeant for the Defendant that Arbitrement is void for it is for the payment of interest and I hold that Arbitrators who are judges indifferently chosen may not award interest to be paid for that is an unlawful thing for all the Statutes which have been made concerning usury have branded that to be unlawful and those differences which are submitted ought to be intended to be lawful differences and he cited a case in the Kings Bench where an action upon the case was brought upon a promise made upon consideration that if the Defendant will forbear the principal together with the interest that he will pay that at a certain day and it was adjudged that the action lies because there was no certain interest set down for he said if the certaintie of the interest had been set down the consideration had not been good and then if this thing be so unlawful that a man may not binde himself by his promise then á fortiori Arbitrators may not award that and for another reason it is void because that interest is awarded for the time after the submission was made and so I pray that the Plantiff may be barred Hendon contrary I hold the award
REPORTS OF THAT REVEREND AND LEARNED JUDGE SIR HUMPHRY WINCH KNIGHT Sometimes one of the JUDGES of the COURT OF COMMON PLEAS Containing many Choice Cases and excellent matters touching Declarations Pleadings Demurrers Judgements and Resolutions in points of LAW In the foure last years of the Raign of King JAMES faithfully Translated out of an exact french Copie with two Alphabetical and necessary Tables the one of the names of the Cases the other of the principal matters contained in this Book LONDON Printed for W. Lee D. Pakeman and G. Bedell and are to be sold at their Shops in Fleetstreet 1657. COVRTEOVS READER THe principal end in publishing Books is the profit which redoundeth to others and what improvement can there be either more noble in it self or of greater advantage to the receiver then that of knowledge and especially of the Lawes of this Nation in which you live and by which your actions ought to be regulated the studie of other learning being private fitter for Vniversities then Common wealths fuller of contemplation then experience and more laudable in Scholers themselves then beneficial unto others if therefore either benefit will prevail with you or delight perswade you then I beg favour to speak with some confidence you will finde both those desired motives in this solid Book to Court you the Author of the greatest part of them was for many years a grave Judge of the Court of Common Pleas reverend for his learning and integritie and honourable for his imployment of whose death The death of Justice Winch 4. Febr. vide fol. 125. and great worth you will finde a deserved testimonie near the end of these Collections some eminent and judicious Pen unhappily by time buried in oblivion hath made some addition of Cases to our great Author no less quaint then useful which being found in one entire exact french copie you have here with all deligence faithfully rendered in English for publick use touching the errors which may occur in this Tract be pleased to distinguish some being of more consequence then others the first you will finde particularly corrected in the usual place after the end of this Book and the rest an easie judgement may in Transitu rectifie which is hoped are not many this copie comming to some ingenuous hands it was thought fit to expedit the printing thereof to prevent other spurious Copies in prejudice of the publick especially at this time wherein the press is prostituted to so much ignorance and lawless libertie and now to speak a modest word of the merit of this work not only as an invitation to the buyer and for his benefit but rather with due respect to the memory of our Author who is hoped will live in this posthumous issue and surely it is no small prejudice to the professors of Law that the rest of his labours are abortively smoothered The Cases herein you will finde well polished in the stating and solidly canvased in the debating both the Bench and Bar of that Court with leave be it spoken being then as well supplied with deep Sages of the Law as in divers years either before or since expect matter here not eloquence and the grateful nutriment of the understanding rather then the pleasing condiments of Rethorick to tickle the Phantasie Farewel A Table of the several names of the cases contained in this Book A AYlesworth against Harrison 19 Widdow Archers case 20 Allen against Brach 27 Avis against Genney 65 Adams against Ward 90 Austin against Beadle 113 Ashley against Collins 114 B BArtlet against Bartlet 2 Bull against Fankester 19 Buckley against Simonds 35 Bishop of Glocester against Wood 46 57 Batterseys case 48 Bulloign against Gervase 58 Buckley against Simonds 59 Brigs case 65 Bret and Ward 70 Bacon against Weston 70 Barley against Foster 71 Boone and the Bishop of Norwich 72 Blunt and his wife against Hutchinson 73 Bray against Sir Paul Tracie 79 Baker against Baker 100 Brown and Ware against Barker 102 Bubles case 103 C AUditor Curle for words 33 39 Clotworthy against Mitchel 49 Countess of Berk. against Sir Peter Vanlore 77 Cook against Cook 90 Crompton against Philpot 102 Cooper against Edgar 103 104 c. 115 116 D DUncombe against the Bishop of Winton 7 Duncombe against the Universitie of Oxford 11 Davies against Turner 18 Dodderidge against Anthony 52 Davies Eliz. against Hawkins 125 E EArl of Northumberland and Earl of Devon 6 Ewer and Vaughan 8 Empson against Bathurst 20 50 F FLemming against Pitman 63 Fosters case 72 Ferrers against English 73 G Goddard against Gilbert 10 Grice against Lee 16 Sir Edward Grubham against Sir Edward Cook 20 23 Gratwick against Gratwick 23 Good against Bawtrie 34 Gell against white 35 Gage against Johnson 53 Grasier against wheeler 76 Good against Good 78 Goldingham against Sir John Sands 81 88 Godsals case 90 Gibson against Ferrers 114 120 H HArrington against Harrington 9 Harris against wiseman 19 Doctor Hunt against Allen 25 Hill against Waldron 29 Hoels case 30 54 Harvey against the hundred of Chelsam 66 Hasset against Hanson 66 Heath against Trist and Cawtrel 73 Holman against Tuke 80 Hickford against Machin 82 83 c. Hickman against Sir William Fish 100 Holman against Sir Thomas Pope and his wife 102 Holbeach Sir Thomas against Sambeach 102 Hilliard and Sanders 109 110 111 121 122 Holt and Rand against Holt 112 Hitcham Sir Robert against Brooks 123 124 I IOhnson against Norway 37 K KIng against Bowen 2 L LEwings against March 4 LLewellings case 11 Sir Henry Lelloe warden of the Fleet 35 M MAior against two Bailiffs 16 Maps against Sir Edward Sidley 22 Mabies case 23 Mackwilliams case 41 Mankleton and Allen 73 Marriots case 78 Methol against Peck 112 N NOrton against Lakins 1 Napper Sir Robert 74 87 O OXford and his wife against Goldington 64 Over and her husband against Tucker 82 P POtter against Turner 7 Parson and Morlee 19 Pleadal against Gosmore 67 124 125 Potter against Brown 70 89 Priest and King 77 Portington and Beamond 79 R REignolds against Pool 1 44 Rives case 48 S SAckvil against Earnsby 4 Sir George Spark 6 Savil against Thornton 13 Sir George Stripping in waste 15 Spencers case 57 Sparrow against Sowgate 61 Sheldon against Bret 63 Summers case 66 Stephens and Randal 77 Summers against Dugs 80 Sheis against Sir Francis Glover 100 T TOpping against King 5 Tutter against Frier 7 Trehern against Claybrook 26 69 Thorntons case 63 Theakers case 71 Thorns case 76 Trenchard Sir George against Hoskins 91 92 93 V VAnheath against Turner 24 W WAste against Prettie 3 White against Williams 5 Wetherly against Wells 6 Wright against Black 28 54 Whitgift against Sir Francis Barrington 31 Webs against Barlow 62 Sir Michael Wharton and Sir Edward Hide 72 Westley against King 75 Weaver against Best 75 Woodley against the Bishop of Exeter and Manwaring 94 95 96 c. Wen against Moore 101 EASTER
that he agreed if one say of another that he was foresworn in a Court which is not a Court of record that none action will lye because the party is not punishable for that in perjury but in our case the commission issued out of the high Commission Court which Court to the examination of witnesses is in nature of a temporal Court and had been confirmed by act of Parliment and Serjeant Harvey argued to the contrary that the first words are not actionable and then the subsequent words are uncertain and yet if one say of another that he was foresworn at the Common Pleas barre the words are actionable for it shall be intended that this was upon examination in the execution of Iustice Hobert if a man is foresworn in a Court Baron before the Steward this is perjury but in our case the words are altogether uncertain for it doth not appear what authority the Commissioners had nor yet in what manner he was forsworn and Iustice Hutton said if one man say of another he was foresworn before the Bishope of S. this is not actionable but if one say of another that he was forsworn before the Bishop of S. upon examination by him by vertue of a Commission issuing out of the Chancery this is actionable and Hutton agreed to the case of the Court Baron the same Law by him if that be in a Court Leete but in the principal case Iudgement was arrested Wase against Pretty Ent. Hill 16. Jac. Rot. 1716. WAse against Pretty Ent. Hill 16. Iac. Rot. 1716. in an ejectione firme the case was that one joynt Coppiholder did release to his companion and the question was whether this is good without surrender and admittance for it was objected if this shall be good then a Coppihold shall pass without the assent of the Lord but it was resolved by Hobert Warberton and Winch Hutton being absent that the release is good and Warberton said that by Littleton if 3. Ioyntenants are and one of them release to another he to whom the release is made is in by the releasor but if there are but two then he is in by the Lord or from the first conveyance Winch if two Ioyntenants are in capite and one release to the other the King shall not have a fine for this Alienation but Hobert said that the practice is otherwise at this day but he said that when one joynt Tenant releases to another he is in by the first conveyance and in the case in question the release shall be good without surrender and admittance for the first admittance is of them and of every of them and the ability to release was from the first conveyance and admittance it seems if a Tenant in Capite alien upon condition and afterwards he enters for the condition broken he shall not pay a fine for such an alienation Hitcham Serjeant said that if land be given to two upon condition that they shall not alien and one releaseth to the other this is no breach of the condition Hobert if the King grant you his demeasnes you shall not have his Copihold Winch said that it was adjudged in this Court that where one erected a house so high in Finsbury fields by the wind mills that the wind was stopped from them that it was adjudged in this case that the house shall be broken down Goddard against Gilbert GOddard brought an action upon the case against Gilbert for these words thou art a thiefe and hast stolen 20 loads of my furzes and upon not guilty pleaded it was found for the Plantiff and it was moved in arrest of judgement by Hitcham that these words are not actionable for though the first words of themselves had been actionable yet when those words are coupled with other words which do extenuate them it is then otherwayes for if a man say thou art a thiefe and hast stollen my apples or my wood it shall be intended that the apples and the wood were growing and he said there is no difference to say in this case you are a thiefe and have stollen 20 loads of my furzes but it was said by Iustice Warberton that the furzes shall be intended to be cut for that is the most natural and proper signification of the words and Hobert chiefe Iustice said that it is true that it is the most proper signification of the words but yet they are furzes when they are growing as well as when they are cut down and Hobert chief Iustice said if a man say of another thou art a thief and hast stollen my corn in this case the words shall be taken in the better sence and judgement in the principal case ought to be arrested and it was the opinion of him and of Winch that there is no difference where a man said thou art a thief and hast c. and thou art a thief for c. ut supra but it was adjourned Winch Iustice said I was of counsel in the Kings Bench in a case where a man had a window in the backside of his house and another man erected a wall within a yard and half of that in his own ground and adjudged in an action upon the case that the wall shall be broken down Warberton certainly this was an antient house but Winch said that made no difference It was ruled that after imparlance in debt upon an obligation the Defendant shall be received to plead that he was alwayes ready to pay notwithstanding it was strongly urged 13. Eliz. Dyer 306. is to the contrary Gilbert Lewings against Nicholas March. GIlbert Lewings brought an action of covenant against Nicholas March and deâ—lared that Charles Cornwallis had granted the next avoydance to the Church of D. to Thomas March and that Nicholas March was his Executor and that Nicholas March assigned this to Gilbert Lewings his executors and assignes to present to the same Church when that shall become void and covenanted that the same person who shall be so presented by him shall have and enjoy that without the let or disturbance of the said Charles Cornwallis or Nicholas March or any of them or any by their procurement and after Gilbert Lewings presents I. S. and after I. W. presented an other claiming the first and next avoydance by the procurement of Charles Cornwallis and ruled that the declaration was not good for it ought to say that Charles Cornwallis granted to I. w. the next avoydance and procured him to disturbe and that by his procurement he was disturbed Athow It seems to me to be but little difference to say he disseised me by the procurement of I. S. and he commanded I. S. to disseise me and he did that accordingly at his command Sir Edward Sackvil against Earnsby VPon a motion made by Sir Randal Crew in the behalf of Sir Edward Sackvil against Earnsby the case was that two brothers were seised of land to the eldest for life the remainder to the youngest in tail and they
Kingsmil agreed to this In evidence to the Iury in a replevin brought by I. S. against one Bennet for the taking of beasts and the Defendant made Conusance and he said that Mr. Potts was seised of 6. acres of land and granted a rent charge out of that to one William Pots his son in taile and for rent behinde he avowed and the issue was that the rent did not pass by the grant and Hobert said that in this case the avowant ought to prove that the grantor was seised of 6. acres or more and not of 4. or 5. acres if he will maintain his issue in this case Action upon the case for words he innuendo the Plantiff stole the Tobacco out of his Mrs. shop Finch moved the declaration was not good because he had not averred that there was a communication concerning him before and where the person is incertaine there the innuendo is void Hobert and Winch held that to be good but then Hobert moved that the declaration was not good because he said the Tobacco in his Mrs. shop and had not averred that there was Tobacco there to which also Winch agreed but if he had said that he had stolen Tobacco out of his Mrs. shop such declaration without any averment is good but here the words the had altered the sense and so there ought to be an averment and Winch said that if he had said that he had stole 2 or 3 pound of Tobacco out of his Mrs. house this had been good without any averment for the certainty appears and it was adjourned Trin. 19. Jac. Sir George Stripping in Wast SIir George Stripping brought an action of waste and an estrepment was awarded to the Sheriff of Kent to prohibit him to make waste and the Sheriff returned the writ executed accordingly and now there was an affidavit made to the Court that since the estrepment he had cut down certaine Willowes which grew upon the bank of the River by which a bank fell down and a meadow adjoyning was overflowed and upon this affidavit Davies moved for an attachment against the Defendant for it appears by this affidavit that waste is committed for the cutting of willowes in this case is waste because that they support the bank as if they grew neer a house Hobert and Winch being only present that this is a waste in law but yet no attachment shall be awarded because that this appears only by affidavit and is only the collection of the party and this doth not appear by pleading or by the recorâ— of the Sheriff and Brownlow said that in this case he ought to have a Pond which was granted Maior against two Bayliffs ACtion of false imprisonment was brought by Major against 2 Bayliffs of a corporation who pleaded not guilty and at the nisi prius the Plantiffe was nonsuite and now Serjeant Richardson moved upon the Statute of cap. 5. 7. Iac. for double costs and that upon the very words of the Statute and the question was whether the costs ought to be taxed by this Court or by the Iustices of Assize Hobert said that upon the nonsuite the Iustices of Assize might have commanded the Iury to have taxed the single costs and then the same judge might have doubled them and that within the words of the Stat. but if the judge grants this then upon his certificate the double costs shall be assessed for otherwise the party shall be without any remedy and Brownlow ch Prothonotary agreed with that as to the certificate that this Court shall assesse the Costs and Brownlow had a president according Mich. 19. Jac. Grice against Lee. GRice against Lee in an action upon the case and the Plantiff declared that he being long time before and still is seised in fâ—e of certain messages and lands in Layton Buzard in the County of Bedford and that to these messuages he had a common appendant time beyond memory c. in 600 acres of waste called Layton Heath and had common in 600 acres of wood in Layton aforesaid and that the Defendant had made certaine conney borroughs and which the aforesaid couneys where he had not made any mention of any conneys before eat up the grass and that the Defendant had inclosed the said wood by which the Plantiff had lost the profits and the Defendant as to the digging of the heath for coneys said that E. 3. granted to the Dean and Cannons of Windsor that they and their successors haberent in omnibus terris dominicalibus liberam Warrennam sibi tunc et successor et in posterum conferendam And that the 20. E. 4. the Duke of Suffolk and his wife granted to them the said Mannor of Layton whereof the said Heath is parcel and said that 22. E. 4. it was enacted by Parliament that all charters made by King E. 3. to the Deane and Canons of Windsor shall be good and that the said Deane and Cannons of Windsor being so seised of the Mannor of Layton and of the Heath in the 3. H. 7. erected a free warren and that by mean conveyance the said D. and C. conveyed that to the Defendant and so justified the making of the said coney borroughs by vertue of the charter of E. 3. and as to the 600. acres of wood he justified by the licence of the father of the Plantiff who then was seised of the common and upon these pleas in barre the Plantiff demurred and Serjeant Richardson took exception because that it is not expressy alleadged that hee was seised of the house and land to which the common is appendant at the time of the making of the conney borroughs for he only said that a long time before the erection of the conney borroughs and yet he is seised which immplies that he was seised before and after but not at the time of the warren made and for this he cited the Book of entries where waste was brought and he counted of a lease for life to the Defendant and a grant of the revertion and an attornment of the Tenant and that the Defendant had made waste and ruled to be evil because he had not alleadged that this was after the attornement and so in Stradlings and Morgans case and he cited a judgement 5. Iac in C. B. Adkinson brought an action of trespass against I. S. and declared quod per multos Annos jam preteritos he had exercised marchandize and that the Defendant such a day said of him that he was a Bankrupt and it was adjudged that the declaration was evil because he had not alleadged that he exercised marchandize at the time of the speaking of the words and he said that the cause of the judgement was entered upon the roll and the same case he could shew to the Court and Hobert desired to sâ—e that for he doubted much of the law of the same case to which Winch and Hutton agreed and Richardson said that as to that which may be said that a fee
doth not lye for for it is not averred that there was any fellony committed also Iustice Hutton held that in this case the declaration is not good because it is not expresly alleadged with an eo quod that the Plantiff stole the Vetches but only an indictment preferred containing such a matter and Iustice Winch said that the framing of an indictment in a Court of record is not any cause of an action for it is a proceeding in an ordinary Course of justice and for that reason ought not to be punished by an action upon the case for that will deterre and scare men from the just prosecutions in the ordinary way of justice Hobert chief Iustice was of a contrary opinion and yet he said that it is true that the ordinary Course of justice ought not by any means to be hopped or hindred and as that may not be obstructed so neither may the good name of a man in any thing which concerns his life be taken away and impeached without good cause for Courts of justice were not erected to be stages to take away the good name or fame of any man and therefore by the common law if two do maliciously conspire to judict a man without cause though the indictment it self be good and legally drawn yet a writ of conspiracy lies against those which caused this indictment to be preferred and it is as great a slander to preferre a Bill of indictment to the grand jury and to give this in evidence to them as it is to declare that in an ale house and as to the declaration he held that to be good without any averment of an indictment indeed and the indictment in writing and the preferring that to the grand jury containes the scandal and I am of opinion that an action upon the case lyes well see more after Easter 20. Jac. C. P. Hill against Waldron Easter 20. Jac. C. P. HIll against Waldron in an action of debt upon an obligation the condition was that I. S. shall levy a fine to the obligee before such a day of such land the Defendant pleaded that the obligee had not sued forth any writ of covenant the replication was that before the obligation made I. S. had made of feofment in fee of the same land to I. S. and that the feoffee continued in possession at the time of the making of the obligation and upon this the Defendant demurred and in this case two points were moved first when I am obliged that I. S. who is a stranger shall levy a fine to the obligee whether in this case the obligee is bound to sue a writ of covenant and it was argued by Serjeant Harvy that not yet he agreed that if the condition was that the obligor shall levy a fine to the obligee in this case the obligee ought to do the first act viz. to sue a writ of covenant as Palmers case Cooke 5. but otherwise when the fine is levied by a third person for there the obligor had took all upon him 4. H. 7. 15. E. 4. if I am bound to marry the daughter of I. S. and she will not marry me yet I have forfited my obligation and so here he ought to leavy a fine at his perill and at his own costs or at the costs of the obligor But admitting that the obligee ought to sue a writ of covenant because it appears by the replication that before the obligation made I. S. had made a feofment over and that the feoffee did continue possession at the time when the fine was to be leavied and therefore the obligee needs not to sue forth any writ of covenant because he who is to leavy the fine had disabled himself to perform that and he urged Sir Anthony Maines case where Cooke 5. the party needs not to tender a Surrender because that he who had the reversion had granted that over before the Surrender was to be made Serjeant Hendon to the contrary for he argued that the obligation is not forfeit except the obligee sue a writ of covenant and there is no difference between this case and when the obligor himself was to leavy a fine for the obligor had not undertaken for the whole fine but only that I. S. shall acknowledge a fine and if the obligor shall be compelled at his perill to sue a writ of covenant then you will construe the condition to extend to an unlawfull act for it shall be maintenance in him to sue forth a writ of covenant he vouched a case P. 4 Iac. Rot. 1548. Burnell against Bowle the condition of the obligation was that I. S. shall acknowledge a judgement in this Court to I. D. and in debt upon this obligation the Defendant pleaded that the Plantiff had not sued forth any orginall writ and it was holden a good plea and for the second point he held that the obligee ought to sue this writ of Covenant though that I. S. had dismissed himself of the land for the words are general that I. S. shall leavy a fine and this he ought to do though no estate pass by the fine for a fine upon release shall be a good performance of the Condition but otherwise if it had been to make a feofment in fee for a man cannot make a feofment except he be seised of the land at the time as 31. E. 3. debt 164. a man was obliged to present the obligee to such a Church and the obligee took a wife by which he had disabled himself to be a person yet the obligor ought to present him for otherwise he shall forfeit his obligation and so in this case Hobert and Hutton as to the first point held the barre to be good and that the obligee ought to sue forth the writ of Covenant for Hobert said he ought to do that for it is no reason to compel the obligor who is a stranger to the estate which passeth by the fine to sue a writ of Covenant and for that reason if I am bound to compel you to come upon such land to take a feofment I am not bound that the other make a livery of seisin but if the case was that I was obliged to you that I. S. shall leavy a fine to I. N. in such case the fine ought to be leavied at my peril though that I. N. will not sue a writ of Covenant Hutton according but Winch doubted of the case and as to the second point Hutton and Hobert agreed that the obligee as this case is needs not to sue a writ of Covenant because that I. S. had made a feofment of the land before and so had disabled himself at the time of the obligation for now it is impossible to leavy a good fine for if he should enter into the land and put out the feoffee this were not good within the condition and Hutton said it ought to be agreed that if I. S. had made a feofment after the time of the making
of the 4. H. 7. cap. 24. the demandant replied that 15. Iac. she brought a writ of Dower against the now Tenants and against two others and that the writ abated by the death of the two others and that she brought a writ by Iourneys accompts the Tenant replied that the others were not Tenants but one Sir Iohn Web and it was moved that this rejoynder was evil for they confessed that they themselves are Tenants by which the writ is good against them at the least Hobert if she brought a writ of Dower against one who is not Tenant that is not any claim within the Statute but if she brought a Dower against 4. who are Tenants and two die and she bring a writ against the others by Iourneys accompts this is a good claim within the Statute though the second writ was after the time limitted but quere here if the two who died were not Tenants Trin. 21. Iac. C. P. Harvey against the Hundred of Chelsam HArvey brought an action upon the Statute of Winchester of Hue and cry against the Hundred of Chelsam and it is found for the Plantiff and a writ of error was brought and all the record was certified and now the Plantiff prayed two things may be amended the first is the title of the action for upon the roll it is an action upon the case it should be an action upon the Statute but it was said by Hobert that it shall not be amended for the Statue of the 18th of Eliz. did not give amendments upon indictments or upon popular actions or actions upon penal Statutes and cited a judgement in Doctor Husses case Coo. 9. 71. which was reversed in Banco Regis upon default in pleading being upon a penal Statute and so in Mich. Term last Judictari for Indictari and adjudged that it shall not be amended and the second point was upon the venire facias where was one Gregory retorned as appears by the names of the Iury but the Clark of the Assise returned one George and it was entered upon the roll and certified in the record to the Kings Bench and per totam Curiam there needs no amendment for that name of George where it should be Gregory being in the tales de circumstantibus and not in the principal panel and it was also by consent of the parties and as to the first point all the Court agreed with Hobert and for the second point Hobert said that if that variance had been material it should not be amended for we will not make a new certificate for the Court of the Kings Bench may choose to credit the first or the second certificate and so we submit our judgements to the censure and pleasure of another Court which we will not do and in the great case of Fulger 18. Iac. where we made such a new certificate though it was adjudged according to our opinion yet they would not credit our last certificate and therefore we will not make a certificate again which note well Hasset against Hanson HAsset brought an ejectione firme against Hanson and upon a general issue and a special verdict the case was this that one Woodhouse was lessee for years of the King of a Mannor and I. S. was a Copiholder of a Tenement of inheritance and the Coppiholder bargained and sold his Coppihold land in such a Town to the lessee of the Mannor and this was by indenture and the indenture was to this effect that he bargained and sold all his lands and Tenements as well Coppiholds as other land bought of Iohn Culpepper in such a Town and it was found that the lessee of the Mannor entered in the Coppihold and occupied and after that the said I. S. died after whose death W. S. his heir was admitted as heir of I. S. upon the presentment of the homage that I. S. died seised and that the said W. is his heir and that at the same Court W. S. Surrendered to the use of the Plantiff and he was admitted and it was argued by Richardson for the Plantiff and by Attoe for the Defendant And these insuing points were agreed by the Iustices S. by Hobert Winch Hutton and Iones and first it was said by Hobert that though a Coppiholder may not convey his Coppihold to a stranger without Surrender and admittance yet he may grant his estate to the Lord of the Mannor out of the Court by bargain and sale for the custome is not between the Lord and his Tenants but between themselves only Secondly Winch said that the admittance of the Lord viz. the lessee of the Mannor amounts to a grant to him who had a title but it is otherwise if it is to him who was in by wrong as by disseissin Coo 4. 22. which was granted by all the Court. Thirdly Iones Iustice said that the bargain is void for it is of all lands and Tenements bought of Iohn Culpepper and it was not found by verdict nor yet averred by the party that the land was bought of Culpepper which Hobert and Hutton granted and Hutton cited 2. E. 4. 29. but Winch to the contrary as to that point but they all agreed that the Plantiff shall have judgement and accordingly so it was done Mich. 21. Jac. C. P. M. 21. Iac. in C. P. Pleadal against Gosmore PLeadal an Attorney of the Common pleas brought an action of trespas against Gosmore and he declared of the taking of a Mare Colt in May and of the retainer till the first of Iuly and that the Defendant held him in Compedibus Anglice in fetters diversis vicibus temporibus by which she Colt was much the worse and the Defendant pleaded that the Countess of Hartford was Tenant for life of the Mannor of Sherstone within which the taking of the Colt is supposed to be and that the Lords of the Mannor time before memory c. had used to have estrayes and used to seise them by their Bailiffs and to proclaim them according to the Law of the land and that the said Mare Colt came within the Mannor such a day and the Defendant as Bailiff to the said Countess seised that as an astray and made proclamation according to the Law and when the Mare Colt was so fierce and wild that he could not came that nor keep that out of the lands of his neighbours he Fettered her as to him bene licuit and he detained her till the first of Iuly at which day the Plantiff came to him and told him that this was his Mare Colt upon which the Defendant delivered her which is the same Trespas c. and upon that the Plantiff demurred and Attoe argued that the plea was not good for matter of Law for a man may not Fetter an estray Colt as appears in the like case 27. Assises and the reason is because satisfaction shall be given for his damages which he made to the Defendant and he cited a case adjudged in that point 8. Iac. Trin. between
Harvey and Blacklock in this Court where the Defendant pleaded such plea in all points as here as to the Fettering for the Defendant fettered the horse of the Plantiff because he was so fierce and so wild to one of his own horses and so continued till he delivered him to the Plantiff and because the horse died within the year the Plantiff brought his action and upon this plea pleaded by the Defendant it was demurred in law and judgement was given for him for Cook who was then chief Iustice said that a horse may be of 40. or 100. l. price and it shall be intollerable to allow such Nusance and secondly he had not made proclamation and so trespass lies against and so in our case Harris Serjeant to the contrary for when the Lord of a Mannor takes an estate he had some kinde of property before the year is expired and for that reason he may detain the estray against the owner till amends is made to him 44. E. 3. 14. 29. E. 3. 6. by Knevet 20. H. 7. by Vavasor and Frewick and if he had property against the owner himself he may use that with moderation to make some benefit of that especially in case of necessity as 22. Assise 5. 6. a man may justifie the beating another if he be in a rage and 6. E. 4. 8. one may justifie the felling of a tree in the ground of another in case of necessity and here is no other way to restrain this Savage Colt and so the justification is good but in this case it was resolved by Hobert Winch and Hutton Iones being in the Chancery First when a beast comes within the Mannor of another Lord this is a trespas but after the seisure for an estray it is a possession of the estray in the Lord and the beginning of property as Hutton used the term so that he may have an action of trespass against any stranger which takes that out of his possession and if he estray into the land of another he may him retake Secondly it was resolved that if the Lord make not proclamation in convenient time that this possession became tortious for the law necessarily imposeth it upon the Lord of the Mannor that he make Proclamation because that otherwise the owner may not come to the knowledge of him Thirdly that the estray within the year is as a pledge in the Custody of the law till amends be made to the Lord and for that reason the Lord may not work him no more then he can work a distress Fourthly it was resolved that if the estray goe into the Mannor of another Lord and the last Lord claims that as an estray the first Lord had lost that but not before claim Fifthly Hutton and Winch agree that he might Fetter the Colt being so fierce and wild for he is answerable for the trespas and wrong which he makes in the land of his neighbours and also to the owner if he lose him and therefore it is unreasonable that he may not keep him safe for his indempnity and that is not like to the case 27. Assise which was urged of the other side also they said fettering is the usual way in the Country to restrain wild horses and therefore if it be in an ordinary manner as he Fetters his own there is not any remedy against the Defendant Hobert chief Iustice was against that last point for the Lord may not hold him in arcta custodia as a prisoner because he had rather the keeping of an estray the the property and for that if the estray go into the land of another Lord the first may not take him again if the other claims him as an estray for the possession was rather in regard of his Mannor then in regard of himself and therefore he shall not answer for the wrong which he doth in the lands of others for the possession is in regard of his Mannor and his Fettering is an abuse and he may not neither use nor abuse an estray and he said over that the Defendant had not well pleaded for another reason because he had not shewed that he proclaimed him in the next market Town within convenient time which convenient time ought to be adjudged by the Court and he said the Lord may not keep him else where within the year then within the Mannor Winch Iustice said the Defendant ought to proclaim an estray ut supra if the year be past for by that he gains an absolute propertie but here where no property is devested he needs not to proclaim him within the year and Hobert commanded this case to be moved again see the last case but one in the book Ruled that after imparlance in debt upon an obligation the Defendant shall be admitted to plead alwayes ready though the 13. Eliz. in Dyer was urged to the contrary Hill 21. Jac. C. P. Hillary Term in 21 year Iac. C. P. Trehern against Claybrook TRehern brought an action of debt against Claybrook upon a lease for years and upon nihil debet pleaded and a special verdict the case was to this effect the Grandfather of the Plantiff was seised of lands in Southwark and he made a lease for years of that to the Defendant at London rendring 45. l. rent and after he devised the reversion to the Plantiff in fee and in his will he set forth that his intent was that his Executors shall have the reversion during the Term upon condition that they enter into bond to pay 34. l. per annum at 4. usual Feasts during the Term and he further devised that this bond shall be made by the advise of his overseers and he limitted all this to be done within 6. moneths after his decease and if his Executors refuse his will was that his overseers shall take the profits upon the same condition and appointed that both obligations be made to the Plantiff and the devisor died and the Executors within 3. moneths shewed the will to the overseers but no obligation was offered to be made within the 6. moneths and the Plantiff required the Executors to enter into the obligation and to pay the rent which was not done and he claimed the reversion and brought his action afterwards in London where the lease was made and not in Southwark where the land did lie and this case was twice argued by Councel at the barre and now it was argued by the 3. Iustices Hobert being absent And Iones Iustice moved a point which was not moved at the barre viz. that the Plantiff is devisee of the reversion and so is privie in estate only and for that reason the action ought to be brought in Southwark where the land lies and not in London where the contract was made but the lessor himself had liberty to bring the action where he pleased in regard of the privitie of estate and contract and so was it adjudged in the Kings Bench between Glover and Humble and here though this be
and at that day the Court was of opinion that judgement shall be given for the Plantiff for by the rejoynder the Defendant had shewed that he had forfeited the bond though that be another matter then is in the replication and so he shall have judgement super totam materiam according to the judgement in Francis Case Coo. 8. for their the declaration stood good though the Plantiff had not cause of action in the same manner yet because it appeared he had cause of action he shall have judgement Weaver against Best VVEaver against Best in debt for 48. s. in the debet and detinet and for 2. shirts in the detinet only and he declared that the Defendant such a year retained the Plantiff to be his servant in husbandry giving him 48. s. and a shirt by the year and he shewed that he retained him for the next year and he averred that he served him and they were at issue upon nihil debet and the Plantiff had a verdict for him and it was now moved in arrest of judgement by Serjeant Brigman because he had not shewed that his retainer was according to the Statute of the 5th of Eliz. which Statute limitteth the form of there retainer and their wages and other things and he had not shewed the place where service was and also he had joyned two debts in one action one in the debet and detinet the other in the detinet only and Winch Iustice said that the Statute of the 5. Eliz. extends to such as are retained in husbandry and therefore other retainers are left as they were before the Statute at the Common law and this shall be intended to be a retainer according to the Statute if the contrary be not shewed by the other partie for his retainer was for a year and therefore it shall be intended that the wages was appointed by the Iustices and it was also said by the Court that if the justices of the peace in this kinde do neglect to set down the wages yet a servant may bring an Action upon his own contract also it was said that he needs not to shew the place where he served for if he did no service yet if he did not depart it is very good and for the other matter it was clear that he may bring his Action so by several precipes in one writ Thornes case IT was agreed clearly between Thorn and C. that where an obligation is made and the obligor and the obligee conferred about it and the obligor said to the obligee that he had forged this this is actionable for here it refers to a certainty but if he had said to the other thus he was a forger and had forged falsâ— writings no action will lie for the words are to general in that case also it was agreed clearly by the Court the Sheriff may not arrest a man upon a Capias after the time of the return of the writ Grasier against Wheeler Grasier as Executor brought an action of Covenant against Wheeler upon a lease made by the Testator rendring rent and this was made by I. S. and the Defendant covenanted that the lessee should pay the rent and the Plantiff assigned the breach in non-payment of 30. l. to the Testator such a day when it was due and for 10. l. due in his own time and the attorney of the Defendants as to the 10. l. pleaded non sum informatus and as to the other he pleaded that the Defendant paid to the Testator 7. l. in money and a horse in full satisfaction of all the said 30. l and that the Testator accepted that in full satisfaction and the Plantiff said that this was paid to the Testator for another debt absque hoc that he received that in satisfaction of the 30. l. and now Devenport argued that the issue was misjoyned for the issue ought to have been taken upon the payment and not upon the acceptance and he cited Pinnels case Coo. 5. where the payment in full satisfaction ought to be pleaded precisely and he said that he agreed to the case of Nichols Coo. 5. where the issue was joyned upon payment upon a single Bill and found that this was not paid and the Plantiff had judgement but if the issue had been found for the Defendant that had not been aided by the Statute for though it had been paid yet that was no bar Bridgman contrary and he said the difference is where the issue is joyned upon a matter alledged by the adverse partie and they are at issue upon a point which is not material that is aided by the Statute of the 18. Eliz. and where no issue at all is joyned there is not any help Winch Iustice said that this is an issue which will make an end of the matter And at another day this Tearm Serjeant Harvey moved the case again in arrest of judgement because the issue is joyned upon the acceptance which is not material and he cited Fowkes case depending in this Court debt upon an obligation and the Defendant pleaded the acceptance of another obligation in satisfaction which in verity is no bar and issue was taken upon that and it was doubted whether this being insufficient be aided by the Statute or not Bridgman Serjeant said to the contrary and he said as before that because the issue is taken upon the allegation of the Defendant if it is not good yet it is aided by the Statute of 32. H. 8. and Hutton said this is a full issue and as to the traverse said it is a material issue for he pleaded that he accepted them for another thing absque hoc that he accepted them in satisfaction of the 30. l. which is the most proper issue for he said it is clear that he may say that he accepted them for part c. and good and so here The Countess of Barkshire and Sir Peter Vanlore in Dower IT was agreed clearly in Dower between the Countess of Barkshire and Sir Peter Vanlore that if the Tenant plead never seised to have Dower and in verity the husband of the demandant had an estate but that was by disseisin which is avouched by the entrie of the deseissee who had a title paramont this is no title by which she may have Dower though they are at issue upon this plea and also it was agreed that if a man had a good estate by bargain and sale from him who had right to alien that and yet after he accepts a fine upon conusance of right as that c. from the other partie though in this case this be a conclusion to the parties between whom the fine was to denie that the land was of the gift of the Conusor and so that he was seised yet it is not any conclusion to the jurors to finde the verity of the matter in fact and that he had nothing of the gift of the Conusor also it was agreed in that case if a man held lands
reversion for life of the Grandfather is no dispensation to the estate of the lessee for though the action was suspended during his life yet now it is on foot again and in many cases an estate may be dispunishable of waste and yet by matter ex post facto this shall be punishable viz. where the first privitie of the estate was determined as in case a lease for years be without impeachment of waste and then the lessor releases to the lessee c. the first privity is gone and he is now punishable in an action of waste and here in our case there was no absolute dispensation but only for the time and yet perchance though the estate is subject to waste in the creation yet if the lessor will afterwards by his deed grant that this shall be dispunishable this may priviledge him but here is no such matter in the case at the bar and of this opinion was the Court and Winch said that there was no difference where the Franke tenement is intercedent for if this be not punishable yet the particular estate shall not participate of that priviledge of him in the remainder and Iones Iustice said if the particular estate had been extracted and drawn out of that estate for life in that case that had been dispunishable but it was agreed by Hendon Serjeant that the Plantiff in his declaration had declared of a waste after the estate for life was determined and they found that this was made in the time of him in reversion for life and so differed but the Court was of opinion that this was nothing to the purpose for it is only a variance from the time and not from the matter for it is not material whether this was before his death or after his death because in both cases this is punishable but day was given over to shew other causes Portington and Beamount IT was argued clearly in the case between Portington and Beamount that if the Court of the Councel of York which is a Court of equitie do decree against a maxime in law as against a joynt Tenant who had that by Survivorship that the heir of his companion shall have the Moietie that in this case a prohibition shall be granted except that during the lives of the parties it was agreed that there shall not be any Survivorship and then they hold plea upon that equitie and then good In Dower it was agreed clearly that if the Tenant shew that before the husband any thing had in the land A. was seised of the same land in fee and leâ— that for years rendring rent and granted the reversion to the husband of the Plantiff who died seised of the said reversion and so demanded judgement if the demandant shall have Dower c. this is no plea in bar of Dower but proves she had title of Dower but this saves the lease for years and she shall have judgement only of the reversion and of the rent and also she doth save to the Tenant damages and the demandant shall be indowed of the reversion Summers against Dugs SUmmers brought an action upon the case upon a promise against Dugs and he shewed in his declaration that the Defendant was rector of the Rectorie of D. and that he and all his predecessors had used to have all manner of Tithes and said that he the Plantiff occupied 100. acres of land in the same parish and shewed that the Defendant promised to the Plantiff that in consideration that he would plant his lands with Hops and so make the Tithes to be the better the Defendant promised to the Plantiff to allow him towards every acre which he shall so plant 40. s. towards the charge in planting them and he shewed that he planted an acre at the request of the Defendant and so upon the promise brought the action and now it was moved whether this was a good consideration to ground an action because the Tithes are not bettered by the planting of that with Hops but by the growing of them and the increase of them and he had not averred that the Tithes were of better value then they were before and it was also moved that he may not have an action for the Rood c. but this afterwards was referred to Arbitrement but the Court said if the Plantiff had shewed in his declaration that he might have made more benefit of that by other means then that by the planting of it with Hops the Tithes also being bettered then it had been more cleare Philip Holman against Tuke PHillip Holman was executor of George Holman and he brought an action of debt against George Tuke and declared upon a lease made by himself by the name of Philip Holman executor of the Testament of George Holman deceased of such land and the said land was delivered to him in execution of a Statute by extent which Statute was made to this Testator and this lease was for years if the Plantiff should so long continue seised by force of the Statute and it was rendring 100. l. per annum and for 3. years rent behinde he brought his action in the debet and in the detinet and also in the declaration he averred that he did continue seised so long by vertue of the extent and Serjeant Bing demurred in law because he said the action ought to be brought in the detinet only because he had brought the action as executor but Hendon and the Court c. Iones and Hutton to the contrary because the lease was made by himself and Hutton said in the case there is difference between a personal contract and real and it was said that an executor shall never be forced to bring his action in the detinet only where he need not name himself to be an executor which note well It was agreed in a case by Hobert that where a man brought an action de parco facto and declared upon the breach of a pound and also of the taking out of beasts and the Defendant as to the taking out of the beasts pleaded not guilty and as to the breaking of the pound he said that he was Lord of the Soil upon which the pound stood and thaâ— he brake of the Lock and put a lock of his own and Hobert said in this case that he ought to plead the general issue for in verity this is not any broach of the pound except the beast come out of it and Iones Iustice was of an opinion that if he put out the beasts he may not have this action because the freehold was in him but he ought to have a special action upon the case Entred in Easter Term in the 19th year of King James Rot. 1672. Ellen Goldingham against Sir John Saunds ELlen Goldingham brought an action of Dower against Sir Iohn Saunds to be indowed of the third part of the Mannor of Goldingham and he vouched the son to warranty as son and heir to Christopher Goldingham husband of
the demandant who appeared and entred into warranty freely and he pleaded that he had nothing by descent from Christopher Goldingham his father upon which plea the Tenant and the vouchee were at issue and the demandant had judgement against the Tenant to recover but cesset executio until the voucher is determined and after that and before the day of the nisi prius Edward Goldingham died and then at the day the Tenant lost by default so is the Record and now upon the prayer of the demandant to have a writ of seisin these cases were moved First by Serjeant Hendon that the writ of seisin may be stayed because as he said the Tenant may revouch the heir of the heir for it is not possible that the vouchee should lose by default because that he was dead and therefore you may see that he conceived that where it is said in the Record viz. on the back of the postea that the Tenant lost by default he conceived that to be meant of the vouchee and not of the Tenant in the writ of Dower but Hutton was of opinion that admitting that it should be so intended yet he may revouch for there was a judgement given against him with a cesset executio till the voucher is determined and that is now determined by his death and when judgement is once given he had not day in Court but if the vouchee had died after the warranty then he may revouch but here the Court rather intended that the record shall be meant that the Tenant in the writ of Dower made default and then it is not possible that ever he shall revouch but they said it had been more question if the Tenant had appeared at the day of the nisi prius and had pleaded the death of the vouchee after the last continuance and had prayed the advantage of his warranty and at another day Hendon moved that the judgement given against the Tenant was not good for it was absolute with a cesset executio where that ought to be a conditional judgement c. against the Tenant if the vouchee had not assets and if he had then judgement against him according to the Lord Dyer 202. Mich. 3. Ma. Rot. 508. for otherwise the Tenant shall lose the benefit of his warrantie against the voucher and so if the heir do confess the assets yet the judgement shall be conditional for otherwise if he had not assets according to his confession the demandant shall have a new judgement against the Tenant and of this opinion was Iones Iustice But Hutton said that this was very well and that the judgement may be either wayes conditional or absolute and he said that this is no prejudice to the warranty for the Tenant may have a scire facias against the vouchee but in this case day was given over till the next Term and the Prothonotaries were commanded to search the presidents concerning that See more after Mary Over and her second husband against Tucker MAry Over and her second husband brought an action of Dower against one Tucker and demanded Dower of the indowment of one Paul her fiâ—st husband and it was agreed that this trial ought to be by witnesses according to Dyer 155. and it was awarded by the Court that the the Councel of either side should draw up Interrogatories and put their neams to them and then they should be delivered to Master Waller the Prothonotary in whose office the cause is entred and he shall have the examination of the witnesses of both sides and then seal up the Interrogatories again and so remain till they were delivered over to the Court and then qui melius probat melius habet The residue of Easter Term in the two and twentieth year of King James in C. P. AN action of debt was was brought against an Executor who pleaded plene Administravit and the other replied and shewed that before this action brought he brought another action against the Defendant in which he was outlawed and that after the reversal of the outlawrie he took out this writ c. and that he had assets at the first bringing of the first writ and issue was taken upon that and it was found for the Plantiff and it was resolved that the Plantiff shall have judgement for this is in nature of Journeys accompts according as it was in Aldridges case upon the same matter which was long debated by the Court and it was also affirmed to be good law in a writ of error brought of that in the Kings Bench for otherwise if it should not be so the Defendant himself should take an advantage of his own evil plea which the law will not allow by any means to be suffered but then it was said by the Court that in this case the Plantiff in the action ought to bring his second writ immediately after the reversal of the first judgement in the outlawry if he will take any advantage of that Trin. 22. Jac. C. P. Trinity Term in the two and twentieth year of King James in the Common Pleas. HIckford brought an audita querela against Machin and the case in effect was this Richard Davis 43. Eliz. acknowledged a Statute Merchant of 500. l. before the Maior and Clark of Gloucester to Machin and all the circumstances of the Statute de mercatoribus were well observed saving only that no day of payment was mentioned and after the said Machin took a lease for years of part of the land of which the Conusor was seised and after the Conusor died intestate and Hickford took out letters of Administration and Machin sued execution against the said Hickford who brought an audita querela and the single point was whether this Statute be good in regard that no day of payment is appointed and after divers arguments by the Serjeants in other Terms this Term it was argued by all the Court and the effect of their several arguments were in this manner Iones Iustice began and said it seems to me that the Statute is good and that no audita querela will lie and he said here had been 3. objections made against this Statute first that every Act of Parliament which gives directions for the doing of a thing ought to be precisely pursued and shall not have an explanation upon an explanation and he said that notwithstanding this objection he thought the Statute to be good for in every Act of Parliament there is substance and there is form and if the substance be observed though not every circumstance yet that is very good and so is the case concerning conditions which are as strictly to be observed as any thing yet if the substance be observed though not the very letter yet this is very good as the case of Scroop Cook 10. one Covenanted to stand seised to devise uses with a provisee that if he shall be disposed to alter disanul or change the uses c. that then it shall be lawful at all
have Dower because the feme is dowable of them for this sufficeth to say that he had assets generally 7. Ed. 2. Dower 184. out of which I conclude that this voucher is not like to other vouchers but this is onely to secure the estate of the Purchasers and then as to the president I answer first it was found there that the vouchee had nothing and also it was never debated for a writ of error was brought of that and nothing done for this was referred to Arbitrement and so I pray that no writ of seisin may be awarded and the Court semed to be of opinion that the judgement may be conditional chiefly Hobert and Iones vehemently but now they said because that judgement is once given they are not to reverse their own judgements and to give another judgement and now it is as if he had no assets but yet that doth not aide an erroneous judgement given before and therefore if the Tenant will be relieved he ought to bring his writ of error but it was said that if this judgement was to be given again this was as it should be because that is all one now as if he had not assets and the judgement stood as it was Potter against Brown NOw the case of Potter and Brown was moved again and Hendon took two exceptions as before first for default of averment and secondly the words are not actionable for it was adjudged in Lanes case if one say of another that he is as arrant a Thief â—s any is in the Goal of Warwick this is not good without averment that there are Thieves in Warwick Goal and here it shall be so for the law doth not suppose that there are Thieves in England and besides here in this case the subsequent words do qualifie the other for the words under the for ought to be of such a thing as is Theft and that is not so in our case Serjeant Richardson to the contrary the last words do not qualifie but rather aggravate them for he gives a reason of his speach and this taking is to be understood with a fellonious intent for the first words do charge him to be a Thief and therefore the last words shall be intended that he took them with a fellonious intent for he did not only charge him in the general but in particular but the Court c. Hobert Hutton and Winch said that the Plantiff shall not have judgement because he failes of averment for he did not say expresly that he is a Thief but as arrant a Thief as any is in England and we are not to enquire after words except they are plain for if one say he was in Warwick Goal for stealing of a Horse adjudged not to be actionable and we may not presume that there are Thiefes in England and so judgement was arrested Adams against Ward INtra Trin. 21. Iac. Rot. 1845. note that it was said in an action upon the case between one Adams and Ward an Attorney that whereas one Hennings sued Adams in an action of debt and Adams retained Ward to be his Attorney and gave him warrant to plead the general issue and Ward suffered the judgement by nihil dicit that this was not any cause of an action except it was by Covin and for that if Adams had not laid in his declaration that this was by Covin he should not have recovered and at another day it was agreed that the Covin was not traversable by Plea but only in evidence at the Bar. Cook against Cook in Dower IN a writ of Dower between Cook and Cook they were at issue and at the day of nisi prius the Defendant pleaded that the demandant had entred and was seised and yet is seised since the last contrivance c. Octabis Sancti Hillarii ultimo quo die continetur usque ad hunc diem c. vicesimum diem Februariâ— which in verity was the day of the nisi prius and it was demurred upon this Plea for two causes the first was because he had not shewed that the Tenant was disseised for otherwise it shall not abate the action and to say that the demandant was seised was not sufficient for though this implies so much that the other was disseised yet here it ought to be expresly alledged but the Court spake nothing to this but Winch thought this to be very good according to Dyer 76. there the entrie is pleaded only and yet good but they resolved that the pleading of the continuance is not good for it is from one Term to another nisi prius justiciarii Venerint c. and he ought to have precisely shewed that but the question now was whether the demandant shall have judgement to have seisin or have apetite Cape only and Iustice Hutton said that it was adjudged in Sir Henry Browns case that if a man pleaded an insufficient Plea after the last continuance there the Plantiff shall have judgement as if the first issue had been tried for him and for this he cited the new book of entries fo 57â— and this may not be a judgement by default for they both appeared and therefore he shall have the same judgement as if the first issue had been tried for him and it was said in this case though the Defendant did demur generally yet this is very good The residue of Trinity Term in the 22. year of King James GOdsel an Attorney brought an action upon the case for words and he laid in his declaration that the Defendant spoke those words among other Master Godsel is a knave for he forged false deeds for which he was imprisoned at York and should have lost his ears and the jury found only these words Godsel is a forger of writings and deserves to lose his ears and Hendon moved in arrest of judgement that the words which are found are not the words in the declaration for the words were there that he forged deeds and it is only found to be writings and it was adjudged in this Court between Brown and Ellis that for saying an Attorney had forged writings no Action will lie for they are too general and besides it doth not at all appertain to him to make writings and so for Nowels Case he is Cooped up for forging of writings and it was adjudged not to be actionable and so to say he is a forger of writings by which he had cozned fatherless Children the words are not actionable because he did not say Deeds and upon this motion and reason the judgement in this case was arrested This case is Entred Hillarie the 21. Jac. Roll. 550. Sir George Trenchard against Peter Hoskins TRenchard brought an Action of Covenant against Peter Hoskins and declared upon an indenture bearing date the 19th of September 44. of Eliz. made between Iohn Hoskins father of the Defendant and the Defendant on the one part and the Plantiff on the other parte by which they bargained and sold certain lands to the
Plantiff in Hammond which indenture rehearseth that King Henry the eight was seised of this land in his demeasne as of fee in the right of his Crown from him conveyed that to Ed. 6. who in the 7. year of his Raign by his letters patents bearing date at Westminster he granted that to one Fitz Williams to Hilton in fee as by his letters patents may appear they being so seised by indenture which bore date c bargained and sold that to Henry Hoskins and to Proud also recited that Proud releaseth to the said Hoskins all his right as by the said release may appear and conveyed that to Iohn by discent and so the said Iohn being seised he and his son Peter made this conveyance to the Plantiff upon a good consideration in which they did covenant with the Plantiff in this manner and the said Iohn and Peter for them and there heirs do Covenant and grant to and with the Plantiff c. that they the said Peter and Iohn Hoskins according to the true meanâ—â—ing of the said indenture were seised of a good estate in fee simple and that the said Iohn and Peter or one of them have good Authoritie to sell that according to the intent of the said indenture and that there was no reversion or remainder in the King by any Act or Acts thing or things done by him or them and the Plantiff laid the breach that neither Iohn nor Peter had a lawful power to â—â—ll the Defendant pleaded that Iohn had a good power to sell that according to the intent of the said indenture notwithstanding any Act or Acts made by him or his faâ—her or by any claiming under them and upon that the Plantiff demurred and the case was now argued by the Court and Iones Iustice began and said that his opinion was that the Plantiff shall be barred the case being upon construction of covenants and the sole question is whether they are several covenants or only one covenant and I held that they are all one covenant and those words for any Act or Acts do relate to the two other precedent sentences and so it is all but one covenant though this stand upon several parts for if these words were placed in the fore-front there had been no question but that this had been but one covenant and this made no difference when it is set before and when it is set after and the repeating of that had been toutalogie for if I covenant I will build a house at Dale Sale and a vale of Brick here Brick shall refer to them all because it is tied in one entire sentence and covenant and so if I covenant with you that I will goe with you to Canterbury to Salisbury and Coventrie here the word goes relates to all 3. as in the case of Sir Henry Finch the rent was granted out of the Mannor of Eastwel and not of the Messuage lands and Tenements lying and being in the Parish of Eastwel or else where in the same Countie belonging thereto and resolved that land which is not parcel of the Mannor is not charged with the rent because it is all but one sentence and one grant and cited the case of Althams case and Hickmots case where special words will qualifie general words where they are all in one sentence and so I conceive they are but one covenant Cook 8. 9. especially in the intents of the parties and upon the intents of all the parties of the deed for when a deed is doubtful in construction the meaning must be gathered from all the parties of that but yet that is tied with two cautions that it be not against any thing expressed by the said indenture but only in case where it is doubtful Cook 2. 5. so Cheineys case and Baldewins case a habendum will destroy an implied premisses Cook 4. but not an expressed and so in Nokes case an express particular covenant qualifies the generalty of the implyed covenant like to the case which was 32. Eliz. in the Court of Wards between Carter and Ringstead Cook 8. where Carter was seised of lands in Odiham and of the Mannor of Stoy and there covenanted that he would Levie a fine to his son of all his lands in Odiham in tail and for the Mannor of Stoyes that should be to the use of his wife now these subsequent words drew that out of the tail according to the intent of the parties and so in our case and I also take an exception to the form of the declartion for he conveyes that to Fitz Williams and to Proud and Hoskins by the name of all his lands and Tenements which were in the tenure of Anne Parker and did not aver that these lands for which the Covenant was made were in her hands and for that it is not good and for these reasons I conceive the Plantiff shall be barred The argument of Hutton Justice HUtton to the contrary I hold that they are 3. several Covenants and yet I agree the cases afore cited and the reason is they are all included in one sentence for it is the care of the Purchasor that he had an owner of the land before he purchase for that which is the ground of assurances that he is seised in fee and hereafter that the Covents that this is free from incumberances made by him and that he had good title to alien which strikes at the very root of assurances and my first reason is because here are several parties and they covenant that one of them is seised of a good estate and that they or one of them had power to alien that for it may not stand with the intents of the indentures to buy of him who had no title and might not sell and also the last Covenant is meerly in the negative that they have made no Act or Acts by which the reversion shall be in the King and that is all one as if the word Covenant had been added in every clause of the sentence and Covenants in law may be qualified by express Covenants but if a man made a lease for years upon condition to pay 20. l. in this case an entrie by the law is implyed for default of payment but yet if it added that if it be behinde he may enter and retain till he is satisfied of the 20. l. now in this case this had taken away the implyed Covenant and condition but every express Covenant must be taken most beneficially for the Covenantee and in Nokes case it is said that an express Covenant controuls an implied one but he may use either of them at his pleasure and election and I grant Henry Finches case to be good law for there is not any clause or sentence till after the Alibie but yet in Dyer 207. they are distinct sentences and shall receive several constructions and so here the matter being several they shall receive divers constructions and he Covenanted that
and died by whose death the Church became void the which was the first and the next avoydance after the grant and Harcourt presented Cardon and that the said Arthur Basset so being seised in fee 18. Octobris 17. Eliz. by his will in writing devised to Iohn Basset his son the first and next avoydance of the Church aforesaid which first and next avoydance hapned after the death of the said Arthur Basset and that the said Iohn Basset was possessed of the said next avoydance and the said Chardon being incumbent 29. of September 37. Eliz. he was elected Bishop of Down in Ireland and he being so Elect the Queen by her letters 37. of her Raign considering the smalness of the said Bishoprick that it was not able to maintain him in his episcopal dignitie ex gratia sua speciali concessit Lycensavit et potestatem dedit to the said Chardon Bishop elect that he with the said Bishoprick the rectory of Tedbome in comendum ad huc recepire et fructus de c. in usus suos convertere disponere et applicare valeat et possit habendum that in Comendam for 6. years and within the 6. years he was consecrated and after the Term of the 6. years the Church became void per legis Anglie and that the Queen by her prerogative presented one Bee who was admitted instituted and inducted and the Plantiff conveyed from Iohn Basset his title by his grant of the next avoydance and shewed that the said Church became void by the death of Gee and that the vacation by the death of Gee is the next avoydance after the death of Arthur Basset by reason whereof the Plantiff presented and was disturbed and upon his decla ration Edwards the patron demurred and the Bishop claimed nothing but as ordinary and Manering pleaded and confessed the seisin of Arthur Basset and the grant to Manwood and the presentation by Harcourt of Chardon and the devise to Iohn Basset but he shewed that after the death of Arthur Basset the Acre to which the advowson is appendant descended to Thomas Basset as c. and he being so seised the Church became void by the death of Chardon who had the next avoydance after the death of Arthur Basset and that this remained void by 2. years after his death by which the Queen presented by Lapse the said Gee who was admitted c. and Thomas Basset conveyed that to Edwards and that became void by the death of Gee and that he presented the said Mannering c. absque hoc quod praedicta vacatio Ecclesiae praedictae post Mortem de Gee was the first and next avoydance after the death of Arthur Basset as the Plantiff had alleadged and upon this bar the Plantiff demurred and it was argued by the Councel of both sides on several dayes and in Michaelmas Term ensuing it was argued by the Court but because that Harvey was newly made Iustice he did not argue the case but Iustice Hutton began The argument of Justice Hutton ANd Iustice Hutton after a recital of the case said that his opinion was that the Plantiff should be barred and in the first place it is to be considered whether the King had any title at all to present by the Creation of Chardon to be Bishop Secondly admit that he had title whether he had dispensed with that and by his dispensation he had satisfied his prerogative Thirdly admit that the King had title and that this was not satisfied with the Commendam whether the grantee had lost his turn and as to the first point it ought to be agreed that when a parson is made a Bishop that he is discharged of the Church by the Common Law and so is the 45. Edw. 3. 5. and Dyer 159. petit Broo. 116. and this is an avoydance by Cession and for any thing that I see in our books the King had not any title to present except that he himself was patâ—on but because that did not happen fully in question here I will not deliver any opinion but I will say what our antient books do lay 41. Edw. 35. adjudged that the King shall not present to a prebendary where the prebend was made Bishop and the tithe which the King had to present was by reason that the temporalities of the Bishoprick of which he was prebend was in his hands and see the 7. H. 4. 25. a good case 11. H. 4. 37. Dyer 228. and for Brooks presentation 61. that is but the report of the Chancellor who had that in presentation but our Common Law doth not warrant any such thing and then for the second point whether the King had dispenced with his prerogative and in the first place we are to know that these Commendams were at the first but to see the cure served and by the opinion of Pollard the ordinary is to see the cure served though that be charged with such rents that none would have it and for that Commendams were at the first good but now if the King had title then that began per the consecration otherwise he shall never have it and so is 41. Edw. 3. 5. if consecration doth not give that he shall never have it and hereby his grant to hold that in Commendam he had dispenced with this prerogative and if this had been granted to him for his life none will deny but that he had dispenced with his prerogative and shall never take advantage of that again afterwards and no more in this case for he is incumbent to all intents and purposes for Fitz N B. 36. he may have a Spoliation and yet in this case he is parson and Bishop and now that the King may dispence with that it is not to be doubted and I will compare that with the like cases A. 6. Eliz. Dyer 252. where the King granted the Custody of the land and heir of his Tenant if he died his heir being within age and this grant was to Cantrel and it was agreed to be good and Wardship is as Royal an antient perrogative as any appertains to the Crown and 3. H. 6. title grant 61. the King may grant the temporalities of the Bishoprick before it is void which in my opinion is Cosen German to our case out of which book I conclude the King may dispence and by the dispensation he is full parson and this is for his life for the King may not make him incumbent except it be for life like to the case of Dyer fo 52. where the patron and the ordinary made a confirmation of a lease for part of the time which was made by the parson and agreed that this shall stretch to the whole time and no better case may be put then the case of Packhurst in Dyer 22. 8. where Packhurst was incumbent of the Church of Cleave and was made Bishop of Norwich but before he was created Bishop he had a dispensation from the Arch-Bishop to retain that in Commendam for 3.
ought to maintain the award but to shew the breach for it shall be otherwise if it be found against him and then Hendon answered to the other exception that this is not for direct usury but is rather for the damage which he sustained by the forbearance of the money and yet if it were for interest it is good and then as to that which now had been agreed by my brother Bridgman that contracts and obligations for usury are good I say then by the same reason an award for that is good for whatsoever a man may contract for the same thing may be awarded if the contract will bear that and usury is not malum in se but only malum prohibitum and is good by our law and here in this case though the Arbitrator was deceived in the summe yet after the award made it is altogether certain and an implied recompence is sufficient in this case but the Court said that the casting up of the accompts did not make an award for it is not a good Calculation but the ending of the controversies that doth make the award but yet the opinion of the Court in this case was that the award was good for an Arbitrement shall not be taken absolutely upon the bare words and the Court did command the parties to come before them upon the morrow in the Treasury and as it seems this was for mediation to make an agreement for the opinion seemed to be for the Plantiff The case of Hilliard and Sanders argued by the Court. IUstice Harvey this Term did argue the case of Hilliard and Sanders which see before and after a brief recital of the case he said that his opinion was that the avowant shall not have return because that by the fine of the lands the rent is extract and I am induced to be of this opinion by two things the first is the agreement and tâ—e other is the favourable exposition of the Statute of fines to settle repose and quiet and I will first shew the efficacie of fines at the common law 21. Ed. 4. the Pryor of Binghams case it is laid for a ground and rule in law if a thing be contained in a fine either expresly or implicitly this is very good and so is 44. Ed. 3. 22. 37. H. 6. 5. for a fine is no more then an agreement and therefore it is called in latin Concordia and then see if by any words you may pass this rent by the fine and though the word rent is not there yet if it be so infolded in the lands that is good with that it is very good and for that 3. H. 7. 16. 17. 21. H. 7. proves that by a feofment of the land the rent doth pass and wherefore not by fine then and this shall be within the Statute of 4. H. 7. and 32. H. 8. and a case may be out of the Statute of 32. H. 8. and yet be within the Statute of the 4. H. 7. as the 2. Ed. 3. in Dyer though the feme after the death of the husband she may enter upon the discontinues of the husband yet if she do not within 5 years she shall be barred and now you see that the construction of these Statutes was alwayes to settle repose and quietness for if such a construction should be made according to the opinion of Chornton in Smith and Stapletons case then it will be mischievous and for his opinion it was only in the way of arguing and yet I conceive he had the good opinion of the Reporter and without all question it is a case of as hard a construction as that is of Archers case where the heir who nothing had in the land in the life of his father did levie a fine this is a bar for ever and the reason is because it is of a thing which is intailed and he cited a case in Bendloes Reports where a discontinuee was disseised by Tenant in tail who levied a fine and the discontinuee entred and then proclamations passed that in this case the issue was barred truly I do agree the case of 36. H. 8. that that a fine levied of land did not bar him who had title of Common or a way the reason is because there is no privitie but in our case there is a privitie and by Margaret Podgers case a Coppiholder is within this Statute and in our case the rent passeth especially in regard of the agreement as in the Lord Cromwels case and he cited a case primo Jacobi between Gage and Selby in an ejectione firme where Gage was Tenant in tail and he levied a fine to I. S. in fee and after he levied another fine to the use of himself for life the remainder over and his brother brought a writ of error to reverse the first fine and ruled that he may not for the second fine had barred him of any writ of error and so I conclude the fine had extinguished the rent The argument of Justice Hutton to the contrary HUtton contrary the fine had not barred the rent in which I will consider the nature of fines at the Common Law and they were of mightie and great esteem and force as appears by the great solemnitie which is used in them as is prescribed in the Statute of fines 18. Ed. 1. de modo Levandi fines and he agreed that such a fine by Tenant in fee simple will pass that inclusively for by the release of all his right in the land a Signiorie is gone I agree also that a fine is but an agreement but yet it must work according to the nature of the thing as upon a writ of Measne or of right of advowson a fine may be levied and yet it is not levied of the lands but of the advowson or Signiorie and so if the writ of covenant be one thing and the agreement of another thing then it is not good and first I will prove that at the Common law fines have been rejected when the writ of covenant did not contain the thing of which the fine is to be be levied and if at the Common law a fine was levied of rent there ought to be a writ of covenant of that 18. Ed. 2. fines 123. and there the rule is given that it is against reason to hold covenant of that which never was and the rent there never was before but ought to begin then and yet it is clear a man may create a rent by fine but he shall not have a writ of covenant of that when it was not in esse before and because the concord may not varie from that therefore it was not received 38. Ed. 3. 17. Knevet put the rule that a fine may not be of more then is in the writ of covenant and when a fine is properly levied of that it is by way of release Fitz. fine 100. and so I conceive here the rent doth not pass Secondly here no man may plead that any fine is levied of
return and this was granted by Hobert chief Iustice at another day this Term Peter Vanheath against Turner PEter Vanheath brought an action against Turner and declared upon the custome of Merchants that if any Merchant over the sea deliver money to a factor and make a bill of exchange under his seal and this is subcribed by the Mr. or by any of the company of such Merchants that the Merchant himself or all the company or any one in particular may be charged to pay that and he shewed that one Morgan was factor of the company of which the Defendant was one and that the said Morgan did substitute one Greenway to whom the Plantiff delivered 100. l. upon a bill of exchange to which bill one Bounder being one of the company set to his hand in England and so the action accrewed to the Plantiff The Defendant pleaded nihil debet per legem and upon that the Plantiff demurred in law and the question was whether the Defendant may wage his law and it was argued by Serjeant Harvey that he shall not wage his law for this is only an action upon the case and sounds only in nonfesance and here is no privity between the Plantiff and Defendant for the bill was made over the sea and subcribed here in England and he shall not charge the Defendant without a special custome so that it is plaine that it is custome which made the Defendant lyable and if the Defendant do not pay for this no action of debt lyes but only an action upon the case and every plea ought to conclude to the point in action and for that in trover and conversion non culp is a good plea and yet he may traverse the finding for this tends to the issue and is good and so in debt upon a lease for years nihil debet is a good plea or non dimisit for the cause aforesaid but when the plea doth not tend to the point in issue it is otherwise for he ought to traverse that which tends to the point in issue and in our case the Defendant may traverse the custome or give answer to the nonfesance but he shall not wage his law and an action lyes upon this contract against the Mr. for this and so he concluded that judgement ought to be given for the Plantiff Harris Serjeant contrary this non payment is not a non fesance in the Defendant and here the Defendant may not plead not guilty or non assumpsit for no promise was made and it is a general rule in law that where a man may traverse the conveyance there he shall not wage his law see 5. H. 7. but here the Defendant may not traverse the conveyance Ergo he may wage his law and 5. H. 7. the successor of an Abbot shall have his law of a contract made with his predecessor and he said that the book of the 23. E. 3. is not law Hobert chief Iustice if the Bayliff at the common law make a substitute the substitute is not chargeable but here the custome will bind the law Secondly he laid 2. or 3. Merchants trade over the sea who made a factor there who takes money there and gives a bill and this is subscribed by one of the company that this should bind all or any of the company is not a good custome and the custome of Merchants is part of the common law of this Kingdome of which the judges ought to take notice and if any doubt arise to them about there custome they may send for the Merchants to know there custome as they may send for the Civillians to know there law and he thought that the Defendant ought to be admitted to wage his law for the delivery of the money made a contract in law and as he may have an action of debt so without question he may have an action upon the case and so count upon a promise and then the Defendant may not wage his law Mich. 19. Jac. C. P. Doctor Hunt against Allen. DOctor Hunt brought an action of debt upon an obligation of 100. l. against the heire of Edmond Allen and the condition of the obligation was that whereas the testator Edmond Allen in the first year of the raigne of the King hath given and granted to the Plantiff the presentation to the Church of D. if therefore the said Edmond Alllen from time to time shall make good the said grant from all incumberances made or to be made by him and his heirs that then c. and the grantor dyed and the Church became void and the heire of the grantor presented and whether this was a breach of the Condition was the question and Hobert chief Iustice and Winch being only present thought this tortious presentation to be no breach of the condition but this extends only to lawful disturbance by the heire and by the pleading here it appears that though the heire presented yet he had no right to present because that his father had granted that before and then the presentation of the heire is as a meer stranger And those general words will not extend to a tortious disturbance by the heire but Hobert said that the words shall have such a construction as if it had been said that he shall enjoy the same from any act or acts made by him or his heires and in this case there ought to be a lawful eviction to make a breach of the condition but otherwise if the condition had been that he shall peaceably enjoy from any act or acts made by him or his heires in that case a tortious disturbance would have been a breach of the condition but it was adjorned till another time Information was for that one such his apprentice departed out of his service and the Defendant received and retained him without a testimonial from the Mr. contra formam Statuti And so he demanded 5. l. the Defendant pleaded nihil debet per patriam and it was found against him and now Hendon Serjeant moved in arrest of judgement that an apprentice is out of the clause of the Statute of the 5th of Elizabeth and that the same Statute extends only to servants and to labourers retained within that Statute for the statute saith be it enacted that no person or persons that depart out of service without shewing of a testimonial as is above remembered and this branch as is above remembered had only reference to the next clause before and the same branch before makes only mention of certaine trades in which an apprentice as in our case is not included and the certificate set down within the Statute proves that an apprentice is not within the Statute for the words are I. W. servant to such a one c. and so it extends to servants and not to apprentices and secondly he said the information is not good because he had not shewed in what trade this apprentice served and perchance he was retained in such a trade as is not