of the Contract and being made at the time of the Communication and contract should charge the Defendant but if the promise were at another time it should be otherwise There was a Case lately betwixt Smith and Edmunds Two Merchants being reciprocally endebted the one to the other agreed betwixt themselves to deliver all their Bills and Bonds into the hands of one Smith who promised that he would not deliver them to the parties until all accounts were ended betwixt them and yet he did deliver them and for that an Action brought against him was adjudged maintainable yet there was not any consideration nor was it material for the action is grounded upon the Deceit and so is it here upon the Warranty And of that opinion were Clench and Wray Iustices but Gawdy was of a contrary opinion CCLXII Woodshaw and Fulmerstones Case Hill. 30. Eliz. Rot. 699 In the Kings Bench. WOodshaw Executor of Heywood brought Debt upon a Bond against Richard Fulmerstone and the Writ was dated October Mich. 29 30 Eliz. and the Condition of the Bond was That if Fulmerstone died before his Age of one and twenty years and before that he had made a Ioynture to A. his Wife Daughter of the Testator Heywood Then if the said Defendant caused one hundred pounds to be payed to the said Heywood within three months after the death of the said William that then the Bond should be void and the said William Fulmerstone died 30 September 30 Eliz. which matter he is ready c. The Plaintiff doth traverse absque hoc that the said Heywood died intestate Tanfield It appeareth of Record that the Plaintiff hath not cause of action for this one hundred pounds was to be paid within three Months after the death of William Fulmerstone 1 Cro. 271 325 565. as the Defendant hath alledged which is also confessed by the Plaintiff and this Action is entred Mich. October 30 Eliz. scil within a month after the death of William Fulmerstone and so before the Plaintiff hath cause of action and therefore he shall be barred Gawdy Where it appeareth to the Court that the Plaintiff hath not cause of Action he shall never have Iudgment as in the Case betwixt Tilly and Wordy 7 E. 4. But here it doth appear that the Plaintiff hath cause of Action for where a man is bound in an obligation the same is a duty presently Obligation and the condition is but in defeazance of it which the Defendant may plead in his discharge CCLXIII Windham and Sir Edward Cleers Case Trin. 31 Eliz. In the Kings Bench. ROger Windham brought an Action upon the Case against Sir Ed. C. declared that the said Ed. being a Iustice of Peace in the County of N. and where the Plaintiff was a loyal subject Action upon the Case of sclander 1 Cro. 130. and of good fame all his life time nor ever touched or reproched with any offence of Roâ—ery c. the Defendant malitiose invide machinams ipsum Rogerum de bonis nomine fama et vita deprivare directed his warrant to divers Baylifs and Constables of the said County to arrest the said Plaintiff And it was alledged in the said Warrant That the Plaintiff was accused before him of the stealing of the horse of A. B. by reason of which the Plaintiff was arrested and so detained until he had entred into a Bond for his appearance c. whereas in truth he was never accused thereof nor ever stole such horse and whereas the Defendant himself knew that the Plaintiff was guiltless by reason of which he was greatly discredited c. And it was found for the Plaintiff And it was moved that upon this matter an Action doth not lye for a Iustice of Peace if he suspect any person of Felony or other such Offence may direct his Warrant to arrest him 14. H. 8. 16 Gaudy and Clench If a man be accused to a Iustice of Peace for Felony for which he directs his Warrant to arrest him although the accusation be false the Iustice of Peace is excused but if the party in truth was not accused before the Iustice it is otherwise It was a Case lately betwixt the Lord Lumley and Foord where Foord in a letter written by him had written It is reported That my Lord Lumley seeketh my life If it was not Reported an Action upon the Case lieth but if reported no Action lieth So here if he was accused no Action lieth but if not an Action lieth And afterwards in the principal Case Iudgment was given for the Plaintiff CCLXIV Isleys Case Trin. 31 Eliz. In the Kings Bench. ISley and others were Plaintiffs in an Ejectione firmae and upon the general Issue it was found for the Plaintiffs and 4 days after the verdict given was moved in stay of judgment a special maâ—ter in Law whereof the Iustices were not resolved for the law but took advisement and gave day over and in the mean time one of the Plaintiffs died which matter the Defendant shewed to the Court in further stay of the Iudgment But by Coke the same is not any cause for the Postea came in Quindena Pasch which was 16 Aprilis at which day the Court ought to have given Iudgment presently but took time to be advised and the 19 of April one of the Plaintiffs died And the favour of the Court ought not to prejudice us for the Iudgment here shall have Relation to the 16 of April at which time he was alive and it was so of late adjudged in the Case of Derick James who died the day after the verdict and yet Iudgment was not stayed for the Court after verdict cannot examine surmises and they have not a day in Court to plead and in our case It was but a day of Grace and no entry is made of it Although no plea can be now pleaded after verdict yet as amicus curiae one may inform us of such matter And sometimes in such case Iudgment hath been stayed as 9 Eliz. and sometimes notwithstanding such Exception as 2 Eliz. So as I conceive the matter is much in the discretion of the Iustices And because the same was a hard verdict and much against the Evidence It is good discretion upon this matter to stay Iudgment and such was the opinion of the Court. CCLXV. Steed and Courtneys Case Trin. 31 Eliz. In the Kings Bench. Error 1 Cro. 116. Owen 93. More 691. Prescription to levy a fine not good ERror was brought upon a Fine levied upon a Plaint in a writ of Covenant in the City of Exceter And two Errors were assigned First The Plaint was quod teneat convent de duobus tenementis Whereas in truth the word Tenement doth not comprehend any certainty for in the Word Tenement is understood Messuage Land Meadow Pasture c. and whatsoever syeth in tenure And 11 H. 6. 18. by grant of Lands and Tenements Rent or Common shall pass And an Ejectione firmae
extend ad veritatem facti which is set forth in the Avowry but only to reputation and so both stand together well enough Rent charge parcel of a Mannoâ— And that a Rent charge may be parcel of a Manor see 22 E 3. 13. 31. E 3. 23. in the Lord Tiptofts Case where it is ruled that title made to a Rent charge as parcel of a Manor is a good title and the Assize awarded upon it and in our Case the Reputation is enforced by the sute at the Court which was also reserved upon the said Feoffment together with the said Rent so as the intent of the parties to the Feoffment was that this Rent so reserved and accompanyed with the said sute shall be esteemed a Rent service and so parcel of the Manor and as to the continuance of Reputation it sufficeth if at the time of the bargain and sale aforesaid which was 26 H 8. it was by many reputed parcel of the Manor and he cited the Case of the Marquess of Winchester The King gave to his Ancestor the Manor of Dale and all lands then antea reputed parcel of the said Manor and in a Bill of Intrusion against the said Marquess he pleaded the grant with averment that the Land then antea reputed parcel Manerii praedict And because he did not shew certainly at what time the Land was reputed parcel of the Manor Iudgment was given for the Queen for it might be for any thing in his Plea that the said Land was reputed parcel of the said Manor before time of memory which Reputation would not serve but such Reputation ought to be within time of memory and understanding He cited also the Case of the Earl of Leicester King Edward the sixth seised of the Manor of Clibery of which a Wood was parcel granted the said Wood in Fee which afterwards escheated to the King for Treason Queen Mary granted the said Wood to another in Fee who granted it to the now Queen who granted the said Manor omnes boscos modo vel ante hac cognit vel reputat ut pars membr vel parcel Maner praedict to the Earl of Leicester and it was resolved in the Exchequer that by that grant the said Wood did pass to the Earl and Iudgment was given against the Queen Dy. 362 â— for it was part of the Manor in the time of E 6. at which time an t ' hac without the word unquam shall be extended ad quoddamcunque tempus praeteritum And Reputation needs not so ancient a Pedigree for to establish it for general acceptance will produce reputation As the house of the Lord Treasurer now called Tibould was of late a private Manor but now hath a new name by which it is known and that within these twenty years which is not so long a time as we have alleged for our Reputation and would pass in a conveyance by such name so None-such But as to Reputation I conceive that Reputation is not what this or what that man thinketh Reputation quid but that which many men have said or thought who have more reason to know it quaenam est inter illos reputatio There was a Case ruled in the Exchequer 13 Eliz. in a Bill of intrusion the Case was that King Hen. 6. was seised of a Manor to which a Neif was regardant who purchased Lands which the King seised and let by Copy as parcel of the said Manor and so continued until the time of E 6. who granted the same to Allice Hardwick and all Lands Tenements reputed parcel of the said Manor And it was adjudged that the said Land so purchased by the said Neif and demised by Copy did pass by the said grant to Hardwick And afterwards the same Term the Iustices without any solemn Argument shewed their opinions in the principal Case viz. That this Rent did not pass by the bargain and sale made as above by Anthony Wingfield to Bohan father of the Avowant for here in the premisses of the Avowry is not any matter set forth importing Reputation or by which it may appear that the Rent in question was ever reputed parcel of the said Manor but rather to the contrary and the bare averment of Reputation in the conclusion of the Avowry is not sufficient to induce Reputation But if the Avowant had set forth in his Avowry any special matter to induce the Court to conceive a Reputation upon the matter of the Avowry as to shew that the Bayliffs of the said Manor had always received the said Rent as parcel of said Manor and as Bayliffs of the said Manor had accounted for it as parcel of the Manor and that the Lessees of the said Manor had enjoyed the said Rent as parcel of the said Manor the same had been good matter to induce a Reputation to have incorporated the said Rent with the said Manor and so judgment was given against the Avowant and of such opinion as was affirmed by Wray was Anderson chief Iustice of the Common Pleas and Manwood chief Baron of the Exchequer XIX Cham and Dovers Case Pasch 26 Eliz. in the Kings Bench. Ejectione firmae IN an Ejectione firmae the Case was that one Michel was seised of the Manor of D. within which diverse parcels of Land part of the said Manor where customary Tenements demised and demisable by copy c. according to the Custom of the said Manor for one two or three lives within which Manor there was a Custom scil that the Lord of the Manor for the time being might grant Copy-hold estates for life in Reversion The Lord granted such Lands for life by copy in possession took a wife and granted the same Copy-hold to a stranger in Reversion for life and died the Copy-holder in possession died the Land demised by copy is inter alia assigned to the Wife for her Dower who had Iudgment to recover in a Writ of Dower who entred and made a Lease thereof to the Defendant who entred against whom the Lessee of the Copy-holder brought Ejectione firmae Custom ad pasturandum non ad colendum and all this matter was found by Verdict and further found that every Copy-holder of the said Manor might Lease his Copy-hold for a year ad pasturandum sed non ad colendum and that the Lease made to the Plaintiff was for a year ad pasturandum 1. Cro. 469. Wells versus Partridge Post 100. Popham Attorny General of Council with the Defendant took exception to the Declaration because the Plaintiff had declared a Lease at the common Law and the Iury have found a Lease by the custom which cannot stand together And such a Verdict doth not maintain the Declaration as if the Plaintiff had declared upon a Lease for years of Lands and the Iury found a devise for years c. but the exception was disallowed by the Court. As to the matter in Law he argued that the Tenant in Dower should
for that he hath not made his Fresh sute according to the Law for he ought to have begun his Fresh sute within the Hundred where the Robbery was done and it was also objected that the Robbery was done post occasum solis in which Case the Hundreders are not to pursue the Malefactors And Walmsley Serjeant cited a Case out of Bracton Si appellatus se defenderit contra appellantem tota dle usque ad horam in qua Stellae incipiunt apparere recedat quietus de appello and it is not reason to drive the Hundreders to Follow felons at such a time 1 Cro. 270. when for want of light they cannot see them And all the Iustices were clear of opinion that if the Robbery was done in the night time the Inhabitants are not bound to make the pursute And by Rhodes if in a Praecipe quod reddat of Lands the Sheriff summons the Demandant upon the Land in the time of night such a summons is meerly void LXXIII Wiseman and Wisemas Case Pasch 29 Eliz. In the Common Pleas. Intrat Trin 28. Rot. 1458. IN an Action of Debt by Wiseman against Wiseman the Case was Debt 1 And. 160. Owen 140. that one Wiseman was seised of the Lands and by his Will devised 1. I will and bequeath unto my Wife B. acre for the Term of her life the remainder to my Son Thomas in tail Item I will and bequeath unto my Son Thomas Devises all my Lands in D. and also my Lands in S. and also my Lands in V. Also I give and bequeath unto the said Thomas my Son all that mâ— Island or Land enclosed with water which I purchased of the Earl of Essex To have and to hold all the said last before devised premisses unto the said Thomas my Son and the Heirs of his Body The only matter was If the Habendum shall extend to the Island only in which Case Thomas shall have but for life in the Lands in D. S. and V. or unto the Island and also to the Lands in D. S. and V 2 Roll. 60. Roph. 126. in which Case he shall have Fee-tail in the whole And it was argued by Fenner that the Habendum should extend to the Island only as he said the opinion of the Iustices of this Court was in 4 Eliz. in another Case I devise my Manor to D. my eldest Son and also my Land in S. in tail in that Case the entail limited for the Land in S. shall not extend to the 1 Roll. 844. said Manor and of such opinion was Weston Welsh and Dyer Brown contra that the Son hath tail in both But if the words of the devise had been I devise my Manor of D. and my Lands in S. to my Son in tail here the Son had an estate tail in both So it hath been adjudged that if I devise Lands to A. B. and C. successively as they be named the same is good by way of Remainder Walmesley contrary and he relied much upon this that the words of the Habendum are in the plural number 2 Bulst 180. 181. All the last before devised premisses whereas the thing lately devised by the Will was an Island in the singular number which cannot satisfie the Habendum Extent of an Habendum which is in the plural number and therefore to verifie the plural number in the Habendum the Habendum by fit construction shall extend to all the Lands in D. S. and V. and so upon his motion made at another day it was resolved by all the Iustices that the Habendum should extend to all the said Lands and the Habendum should not streighten the Devise to the Island only LXXIV Fullwood and Fullwoods Case Pasch 29 Eliz. In the Common Pleas. Bail renders himself in Court. IN an Action upon the Case the Defendant put in bail to the Court to answer to the Action and now Iudgment being given against him he came into Court and rendred himself and prayed that in discharge of his sureties that the Court would record the rendring of himself which was granted And the Court demanded of the Plaintiff if he would pray execution for the body against the Defendant who said he would not whereupon the Court awarded that the sureties should be discharged and the Rule was entred that the Defendant offered himself in discharge of his sureties and Attornatus Querentis allocatus per curiam c. dixit se nolle c. Ideo consideratum fuit per curiam quod tam praedict defend quam praedict Manucaptores de recognitione praedict denariis in eadem contentis exonerentur LXXV Pasch 29 Eliz. In the Common Pleas. THe Case was He in the Reversion upon a Lease for years makes a Charter of Feoffment to divers persons to the use of himself for life Feoffments and after to the use of his eldest Son in tail and the words of the Charter were Dedi Concessi Barganizavi Feoffavi and he sealed and delivered the deed but no livery of seisin was made and afterwards he came to his Lessee for years and said to him that he had made a Feoffment and shewed also the uses but did not shew to whom the Feoffment was made to whom the Lessee said you have done very well I am glad of it Attornment And if that were a good Attornment was the Question It was said that that was the Case of one Arden And Gent and Manwood were of opinion that the same was no Attornment because it was not made to the Feoffee scil to the Grantee of the Reversion and so it was ruled in this Case for Attornment ought to be to the Grantee himself and not to Cestuy que use 1 Cro. 251. Tythes and where the spiritual court shall have jurisdiction of them LXXVI The Parson of Facknams Case Pasch 29 Eliz. In the Common Pleas. THe Parson of great Facknam brought an Action of Trespass against the Parson of Hannington and the Case was If the Parson of one Parish claim by prescription a portion of Tythes out of the Parish of another if the Spiritual Court shall have the Iurisdiction for the tryal of it And the opinion of the whole Court was clear that it should because that the matter is betwixt two spiritual persons and concerning the right of Tithes As 35 H. 6. 39. I. Vicar of B. brought Trespass for taking away of forty loads of Beans c. The Defendant pleaded that he is Parson of the said Church of B. and the Plaintiff is Vicar c. and before the Trespass c. the Beans were growing in the same Town and severed from the nine parts and he took them as belonging to his said Church and demanded Iudgment of the Court c. The Plaintiff said that he and all his Predecessors Vicars c. time out of mind c. have used to have the Tithes of such a Close c. belonging to his Vicaridge and
petit quod inquiratur per patriam praedict Brett similiter It was moved that the parties should replead for this matter upon which they are at Issue scil the appearance is not triable by Iury but by the Record And the Court was clear of opinion that the parties should replead for the cause aforesaid And it was moved by the Lord Anderson that if A. be bound to appear in the Kings Bench at such a day and A. at the said days goe to the Court but there no process is returned then the party may go to one of the chief Clerks of the Court and pray him to take a Note of his appearance And by Nelson we have an acient form of entry of such Appearance in such Cases Ad hunc diem venit I. S. propter indemnitatem suam Manucaptorum suorum petit quod comparentia sua in Curia hic recordetur And see for the same 38 H. 6. 17. And afterwards the Lord Anderson inspecto Rotulo ex assensu sociorum awarded a Repleader And so by Nelson it hath been done oftentimes here before and put in ure The same Law is where at the day of appearance no Court is holden or the Iustices do not come c. he who was bound to appear ought to have an Appearance recorded in such manner as it may be and if the other party pleadeth Nul tiel Record it behoveth that the Defendant have the Record ready at his peril for this Court cannot write to the Iustices of the Kings Bench for to certifie a Record hither CXV Baxter and Bales Case Mich. 29 30 Eliz. In the Common Pleas. Debt not extinct by administration BAxter brought Debt upon a Bond as Executor of I. against Bale who pleaded that the Plaintiff after the death of the Testator was cited to appear before the Ordinary or his Commissary to prove the Will of the said I. and at the day of his appearance he made default upon which the Ordinary committed Letters of Administration to the Defendant by force of which he did administer so the debt is extinct c. but the whole Court was clear of opinion that the debt was not extinct for now by the probate of the Will the administration is defeated and although the Executor made default at the day which he had by the Citation before the Ordinary yet thereby he is not absolutely debarred but that he may resort to the proving of the Will whensoever he pleaseth But if he had appeared and renounced the Executorship it had been otherwise and the debt is not extinct by the Administration in the mean time CXVI Mich. 29 30 Eliz. In the Common Pleas. IN a Franchise the parties are at Issue upon a matter triable out of the Franchise And it was moved if now the Record should be sent into the Common Pleas and there tryed and after trial sent back into the Franchise Which Periam and Anderson utterly denied and by Periam there is no reason that we should be their Ministers to try Issues joyned before them And it is not like 2 Len. 37. where in a Liberty or Franchise a Forrein Voucher is to warrant Lands in such cases we shall determine the Warranty but that is by a special Statute of Glocester cap. 12. And Nelson Prothonotary said that such an Issue was tryed here of late Quod nota CXVII The Earl of Arundel and the Lord Dacres Case Mich. 29 30 Eliz. At Serjeants Inne PHilip Earl of Arundel and the Lord William Howard his Brother marryed the Daughters and Co-heirs of the late Lord Dacres And now came Francis Lord Dacres as heir male of the said Family and claimed the Inheritance c. And after long sute betwixt both parties they submitted themselves to the award of Gilbert Lord Talbot and of Arthur Lord Grey of Wilton and Windham and Periam Iustices And before them at Serjeants Inne the matter was well debated by the Council learned on both sides and as unto Greistock Lands parcel of the Lands in question the Case was That Tenant in tail makes a Feoffment in fee unto the use of himself for his life the Remainder in tail to his eldest Son with divers Remainders over with a Proviso that if any of the Entailees do any act to interrupt the course of any entail limited by the said Conveyance that then the use limited to such person should cease and go to him who is next inheritable And afterwards Tenant in tail dieth his eldest Son to whom the use in tail was first limited entreth and doth an Act against the said Proviso and yet held himself in and made Leases the Lessees enter the Lessor dieth seised his Heir being within age and in ward to the Queen It was holden by Shutleworth Serjeant Yelverton Godfrey Owen and Coke who were of Council with the Heirs general of the Lord Dacres that here is a Remitter for by this Act against the Proviso the use Remitter and so the possession doth accrue to the enfant Son of him to whom the use in tail was limited by the Tenant in tail Then when the Tenant in tail after his said Feoffment holds himself in this is a disseissin for a Tenancy by sufferance cannot be after the cesser of an estate of Inheritance But admit that he be but a Tenant at sufferance Hâ—b 255. Dy. 54. yet when he makes Leases for years the same is clearly a disseisin and then upon the whole matter a Remitter and although the Enfant taketh by the Statute yet the right of the tail descending to him afterwards by the death of his Father doth remit him as if Tenant in tail maketh a Feoffment in fee to the use of himself for life the Remainder in tail to his eldest Son inheritable to the first intail notwithstanding that the eldest Son takes his Remainder by the Statute and so be in â—â— force thereof yet when by the death of his Father the right of the Entail descends to him he is remitted CXVIII Butler and Ayres Case Mich. 29 30 Eliz. In the Common Pleas. Dower BUtler and his Wife brought a Writ of Dower against Thomas Ayre Son and Heir of Bartholmew Ayre first Husband of the said Margaret Wife of the Plaintiff and demanded Dower of Lands in A. and B the Tenant pleaded never seised que Dower and the Iury found that the said Bartholmew was seised during the Coverture de omnibus tenementis infra script preterquam the Tenements in sic ut dicta Margareta dotari potuit Exception was taken to this Verdict because that this preterquam c. doth confound the Verdict To which it was said by the Court that the preterquam is idle and surplusage for it is of another thing than that which is in demand and the seisin of the first Husband of Lands in A. and B. is confessed and the preterquam works nothing Another matter was objected because here the Iury have assessed damages
and damages and in an Action upon the Case brought upon that promise the Plaintiff was barred for here is not any consideration for they bailed the Servant of their own head without the request of the Master and the matter which is alledgged for consideration is executed before the Assumpsit and the promise was not before the enlargment and the said bailment was not at the instance Claytons Rep. 45. 1 Cro. 756. or request of the Master And the Case of one Hudson was cited adjudged in the Kings Bench The Defendant in consideration that he was Administrator and natural Son of the Intestate and that the goods of his Father have come to his hands promiseth to pay the debt to the Plaintiff And in an Action upon the Case upon that promise the Defendant pleaded he made no such promise and it was found that no goods came to the hands of the Defendant And it was holden that the consideration that he was Administrator and Son to the Testator was not of any force to maintain the Action and afterwards in the principal Case the Iudgment was affirmed And it was moved by Coke that Iudgment should not be given against the Executor of his own goods if he had not goods of the Testator for the charge doth not extend beyond the consideration i. e. That the goods of the Testator came to the hands of the Defendant But Wray Iustice was of opinion that Iudgment shall be of his proper goods as in Case of confession Kemp Secondary if the Action be brought upon Assumpsit of the Testator Iudgment shall be of the goods of the Testator but of the promise of the Executor of his own goods but the Original Iudgment which is now affirmed was general CXXII Savel and Woods Case Hill. 30 Eliz. In the Kings Bench. 1 Cro. 71. 3 Len. 203. 265. Post 128. THe Case was That a Parson did Libel in the spiritual Court against a Parishoner for Tythes of such Lands within his Parish the Defendant came into the Kings Bench and surmised and that he and all those whose estate he hath in the Lands out of which the Tythes are demanded have used to pay every year five shillings to the Parish Clark of the same Parish for all the Tythes out of the same place And it was argued by Coke that that could not be for a Parish Clark is not a person corporate nor hath succession But if he had prescribed that they had used to pay it to the Parish Clark to the use of the Parson it had been good Also he ought to shew that the Parson ought of right to find the Parish Clark c. And he cited the Case of Bushie the Parson of Pancras who libelled in the Spiritual Court for Tithes The Defendant to have a prohibition did prescribe that he and all those c. had time out of mind c. used to pay to the Vicar c. and at last a Consultation was awarded because it was triable in the Ecclesiastical Court for both parties as well Vicar as Parson are spiritual persons and the modus decimandi is not in question but cui solvend And at another day it was agreed by the Iustices that of common right the Parson is not tied to find the Parish Clark for then he should be said the Parsons Clark and not the Parish Clark But if the Parson be tied to find such a Clark Challenge and such a sum hath been used to be paid to the Parish Clark in discharge of the Person the same had been a good prescription and so by way of composition and by Clench Tythes are to be paid to spiritual Persons but a Parish-Clark is a Lay-person And afterwards the Court granted a Consultation CXXIII Higham and Reynolds Case Hill. 30 Eliz. In the Kings Bench. IN an Action of Trespass the Plaintiff declared that the Defendant 1 Maii 28 Eliz. cut down six posts of the house of the Plaintiff at D. The Defendant doth justifie because that the Free-hold of the house 10 Aprilis 27 Eliz. was to I. S. and that he by his commandment the same day and year did the Trespass c. upon which the Plaintiff did demur in Law because the Defendant did not traverse without that that he was guilty before or after And the opinion of Wray was that the traverse taken was well enough because the Free-hold shall be intended to continue c. Vide 7. H. 7. 3. But all the other three Iustices were of a contrary opinion to Wray But they all agreed that where the Defendant doth justifie by reason of his Free-hold at the day supposed in the Declaration there the traverse before is good enough And afterwards Iudgment was given against the Defendant CXXIV Knight and Footmans Case Hill. 30 Eliz. In the Kings Bench. IN Trespass by Knight against Footman the Case upon the pleading was that one Margaret had issue two Sons Richard and Thomas Surrender of Copy-hold Land. and surrendred to the use of Richard for life and afterwards to the use of Thomas in Fee they both Thomas being within age surrender to the use of one Robert â—ap John in Fee who is admitted Richard dieth Co 1 Inst 248. Thomas dieth having issue A. who is also admitted and enters into the Land and if his entry be lawful or that he be put to his plaint in the nature of a Dum fuit infra aetatem was the Question And Wray was clear of opinion that it was And if a man seised of Copy-hold Land in the right of his Wife or Tenant in tail of a Copy-hold doth surrender to the use of another in Fee the same doth not make any discontinuance but that the issue in tail and the Wife may respectively enter 1 Cro. 372. 380. 391. 483. 717. More 596. and so was it holden in the Serjeants Case when Audley who afterwards was made Chancellor of England was made Serjeant and afterwards it was adjudged that the entry of the Enfant was lawful CXXV Sir Wollaston Dixies Case Mich. 29 Eliz. In the Exchequer AN Information was in the Exchequer against Sir Wollaston Dixie upon the Statute of Vsury upon not guilty pleaded Information upon the Statute of 13. Eliz of Usury The Informeâ— gave in evidence an usurious Contract upon a bargain of Wares The opinion of the Court was that the Information being exhibited for the loan of money that the Evidence was not pursuing nor leading to the Issue And yet the Iury against the opinion of the Court upon that evidence found the Defendant guilty And it was moved in arrest of Iudgment that the Evidence did not maintain the Information nor prove the Issue ex parte Querentis and it was said there are three things within the Statute i. three words i. bargain loan and cheivizance and these three are several things and therefore if the Information be conceived upon loan and the Informer giveth in Evidence a corrupt
in the Case which gives cause of suit in Chancery for they will not order a matter there which is directly against a Rule and Maxim of the common Law. As if a Feme Covert be bound c. and the Obligee bring her into the Chancery and if a man threaten me that if I will not pay to him ten pounds he will sue me in Chancery upon which I promise to pay it him no Action will lye And an Infant is not chargeable upon any contract but for his meat drink and necessary Apparel 19 Z. 4. 2. And in Debt upon such necessary Contract the Plaintiff ought to declare specially so as the whole certainty may appear upon which the Court may judge if the expense were necessary and convenient or not and upon the reasonableness of the price for otherwise if the necessity of the thing and reasonableness of the price doth not appear the Chancellor himself would not give any remedy or recompence to the party Wray Justice conceived that the Action would not lye for the contract was void and the Infant in an Action against him upon it may plead Nihil debet And if an Infant sell goods for money and doth not deliver them but the Vendee takes them he is a Trespassor but if the Infant had been bounden in an Obligation with a surety and afterwards at his full age he in consideration thereof promiseth to keep his surety harmless upon that promise an Action lyeth for the Infant cannot plead non est factum which see Mich. 28 29 Eliz. in the Case of one Edmunds And afterwards it was adjudged against the Plaintiff CLVII Charnock and Worsleys Case Trin. 30 Eliz. Rot 833. In the Kings Bench. Owen 21. 1 Cr. 129. CHarnock and his Wife brought a Writ of Error against Worsley the Case was that the Husband and Wife the Wife being within age levyed a Fine and the Wife upon inspection was adjudged within age it was moved if the Fine should be utterly reversed or as to the Wife only should stand against the Husband by Godfrey the Book of 50 E. 3. 6. was vouched where it is said by Candish that where such a Fine is reversed the Plaintiff shall not have execution till after the death of the Husband and by Coke and Atkinson a Fine acknowledged by the Husband and Wife is not like to a Feoffment made by them for in case of Feoffment something passeth from the Husband but in case of a Fine all passeth out of the Wife and the Conusee is in by her only And Atkinson shewed a Precedent in 2 H. 4. where the Fine was reversed for the whole and also another Precedent P. b. H. 8. Rot. 26. A Fine levyed betwixt Richard Elie Plaintiff and N. Ford. and Jane his Wife Deforceants the Wife being within age and Iudgment was given quod finis praedict adnulletur pro nullo penitus habeatur and that the Husband and Wife should be restored and thereupon a Writ issued to the Custos Brevium to bring into Court the Foot of the Fine and it was presently cancelled in Court. Wray this is a strong Precedent and we will not varse from it if other Precedents are not contrary Gawdy who was the same day made Iustice the Fine cannot be reversed as to one and stand as to the other and resembled it to the Case of Littleton 150. where Land is given to Husband and Wife in tail before coverture and the Husband aliens and takes back an estate to him and his Wife for their lives they both are remitted for the Wife cannot be remitted if the Husband be not remitted And a Precedent was cited to the contrary 7 Eliz. where the Case was that the Husband and Wife levyed a Fine the Husband died the Wife being within age the Wife took another Husband and they brought a Writ of Error and the Wife by inspection adjudged within age Fine reversed as to one to stand good against another and the Fine was reversed as to the Wife and her Heirs And it was argued by Golding that here the Writ of Error ought to abate for the Writ is too general whereas it ought to be special Ex querela A.B. nobis humillime supplicantis accepimus c. See the Book of Entries 278. Also the purclose of the Writ is ad damnum impsorum the Husband and the Wife whereas the Wife only hath loss by it and as to the Fine it self he conceived that it should be reversed but as to the Wife as if a man of full age and a man within age levy a Fine in a Writ of Error brought the Fine shall be reversed as to the Infant only and shall stand against the other and he cited the Case of the Lord Mountjoy 14. Eliz. Where a man seised in the right of his Wife acknowledged a Statute and afterwards he and his Wife levyed a Fine and he said that during the life of the Husband the Conusee of the Fine should hold the Land charged with the Statute Also in the Precedent of 2 H. 4. the Iudgment is that propter hunc alios errores the Fine should be reversed and I conceive that another Error was in the said Writ for which the Fine might be reversed in all viz. the Fine was levyed of two parts of the Manor of D. without saying in tres partes dividend And see that where two parts are demanded in a Writ 3 Co. 58 59. Modern Rep. 182. the Writ shall say so Brief 244 Coke contrary and as to the last matter I confess the Law is so in a Writ but not in a Fine for the same is but a Conveyance for it I be seised of a Manor and I grant to you two parts of the said Manor it is clear it shall be intended in three parts to be divided And as to the principal matter I conceive when the Fine is levyed by the Husband and Wife it shall be intended that the Land whereof c. is the Inheritance of the Wife if the contrary be not shewed and therefore if the party will have an especial Reversal he ought to shew the special matter as in Englishes Case A Fine was levyed by Tenant for life and he in the reversion being within age bringeth a Writ of Error now the Fine shall be reversed as to him in the Reversion but not as to the Tenant for life but here it shall be intended the Inheritance of the Wife and that the Husband hath nothing but in the right of his Wife and therefore she shall be restored to the whole for nothing passeth from the Husband but he is named with his Wife only for conformity 11 H. 7. 19. A. takes to Wife an Inheretrir who is attainted of Felony the King shall not have the Land presently by which it appeareth that all is in the Wife and she shall be restored to the whole and the Iudgment shall be according to the Presidents cited
issues the Iury might have assessed the damages severally scil for each issue several damages but here is but one issue and it was the folly of the Defendant that he would not demur in Law upon the Declaration for one part scil the not performance of the Award and traverse the other part scil The suing of the Execution or the Assumpsit of it And in our case it may be that the Iury did assess the damages for the suing of the Execution without any regard had to the performance of the Award And note that the verdict for assessing of the Damages was in these Terms scil Et assidunt damna occasione non performationis Assumpsionis praedict c. And Cook who was of Councel in this Case put this Case The late Earl of Lincoln Admiral of England brought his Action of Scandalis Magnatum and declared That the Defendant exhibited in the Star-chamber against him a Bill of Complaint containing diverse great and infamous slanders viz. That the said Earl was a great and outragious oppressour and used outragious oppression and violence against the Defendant and all the Country also The Defendant pleaded Not guilty and found for the Plaintiff and assessed damages and it was moved in stay of Iudgment first That the Plaintiff had declared upon matter of slander for part for which an Action lyeth and for part not For the oppression supposed to be made to himself no Action lieth because every subject may complain for wrong done unto him and although he cannot prove the wrong an Action will not lye But as for the oppression done to others by the supposal of the Bill an Action lieth for what is that to him he hath not to do with it for he is not pars gravata But because the Iury assessed Damages entirement the Iudgment was arrested for the cause aforesaid And afterwards in the principal case the last day of this term Iudgment was staied CCXXXIX Palmer and Thorps Case Hill. 31. Eliz. In the Kings Bench. BEtwixt Palmer and Thorpe the Case was this 1 Cro. 152 A man demised his Manour of M. for thirty two years and the day after let the same Manour for forty years to begin from Michaelmas after the date of the first Lease and the Tenant attorned And by Cook the same is a good grant although to begin at a day to come for it is but a Chattel and so was the opinion of Wray Chief Iustice for a Lease for years may expect its commencement as a man seised of a Rent in Fee grants the same for twenty years from Mich. following and good for no estate passeth presently but only an Interest See 28 H. 8. 26. Dyer CCXL Sir Anthony Shirley and Albanyes Case Hill. 31 Eliz. In the Kings Bench. Rot. 668. IN an Action upon the Case upon Assumpsit by Sir Anthony Shirley against Albany Assumpsit 1 Cro. 150. The Plaintiff declared That he was seised of the Manor of Whittington for the term of his life the Reversion to the Earl of Arrundel in Fee and so seised surrendered all his Estate to the said Earl who afterwards by his Deed granted a Rent-charge of 40 l. per annum out of the said Mannor to him and afterwards conveyed the Manor to the Defendant in Fee. And afterwards 27 Maii 22. Eliz. upon a Communication betwixt the Plaintiff and the Defendant concerning the said Rent the Defendant did promise to the Plaintiff that if the Plaintiff would shew unto the Defendant any Deed by which it might appear that he ought to pay to the Plaintiff such a Rent he would pay that which is due and that which should be due from time to time And further declared that 27 April 27 Eliz. he shewed unto the Defendant a Deed by which it appeared that such a Rent was granted and due And for eighty pounds due for the two last years he brought the Action The Defendant pleaded that after the said promise and before the shewing of the said Deed scil 14 Jan. 22 Eliz. the Plaintiff entred into the said Land and leased the same for three years The Plaintiff Replicando said that 1 Decem. 27 Eliz. the Defendant did re-enter upon which they were at Issue and it was found for the Plaintiff It was moved by Glanvil Serjeant that by the entry the Promise was suspended and being a personal thing once suspended it is always extinct Wray The Action is brought for the Arrerages due the two last years and so at the time of his re-entry the Plaintiff had not cause of Action and therefore it could not be suspended Suspension of Rent Ante. 110. Gawdy When the Plaintiff sheweth the Deed the Defendant is chargable to arrerages due before and after the promise wherefore if the entry maketh a suspending of the Rent the suspension doth continue but I conceive here is not any suspension for this promise is a meer collateral thing and so not discharged by the entry into the Land for it is not issuing out of the Land. But if the Plaintiff before the Deed shewed had released all Actions the same had been a good Bar and I conceive that the Deed was not shewed in time for it ought to be shewn before any arrerages due after the promise but here it is shewn five years after But that was not denied by all ther other Iustices Another exception was taken that where the promise was that if the Plaintiff shewed any Deed by which it might appear that the Defendant should be charged with the said Rent and the Declaration is by which it might appear that the Plaintiff ought to have the Rent c. so as the Declaration doth not agree in the whole See 1 Ma. 143. in Browning and Bestons Case the Condition of the Lease was if the Rent should be arrear not paid by two Months after the Feast c. and the Rejoynder was by the space of two months c. And the pleading holden insufficient for per duos menses doth not affirm directly post duos menses but by Implication and Argument And here it was holden that the Condition was a good consideration Another exception was taken because the promise is layed All the Rent ad tunc debitum aut deinceps debend It was holden that this word ad tunc doth refer to the time of the shewing of the Deed and not to the promise And as to the last exception but one it was resolved that the Declaration notwithstanding the same was good enough scil ostendit factum per quod apparet quod redditus praedict solvi deberet in forma praedict Another exception was taken because here no breach of the promise is alledged for it is pleaded thath eight pounds de annuali redditu arrer fuer but it is not said de redditu praedict 8 l. ergo it may be another Rent and then the promise as to this Rent is not broken Wray Although the word praedict be wanting yet the Declaration is well enough
And after four and twenty years after the death of the said Sir Anthony the said Edward entred into the Land to him devised by the said Devise and leased the same to the Plaintiff Descent where tokes away entire c. And it was moved here if this dying seised of Henry of the Lands in Hertford and descent to his Heir should take away the Entry of Edward the Devisee And by Anderson cleerly If here upon the whole matter be a descent in the Case then the Entry of Edward the Devisee is taken away although that the Devisee at the time of the descent had not any Action or other remedy for it shall be accounted his folly that he would not enter and prevent the descent But VVindham Periam and VValmesly Iustices 2 Len. 147. 1 Cro. 920. 3 Cro. 145. Owen 96. were of a contrary opinion For a Devisee by a Devise hath but a Title of Entry which shall not be bound by any Descent as Entry for Mortmain for Condition broken And after long deliberation they all agreed that there was not any Descent in the Case for by the Devise and death of the Devisor the Frank-tenement in Law and the Fee was vested in the Devisee Edward And then when the Queen seised and leased the same during the Nonage of Henry and the Lessee entred he did wrong to Edward and by his Entry had gained a tortions Estate in fee although he could not be said properly a Disseisor nor an Abator And afterwards when Henry after his full age when by his Indenture he leased without any special Entry ut supra and by colour thereof the Lessee entred now he is a wrong-doer to Edward the Devisee and by his Entry had gained a wrongful Possession in Fee and then the paying of the Rent to Henry nor the walking of Henry upon the Land without any special claim did not gain any Seisin to him and so he was never seised of the Land and could never dye seised and then no Descent and then the Entry of Edward was lawful and the Lease by him made to the Plaintiff was good And so Iudgment was given for the Plaintiff CCXCIV. Greenwood and Weldens Case Mich. 32 33 Eliz. In the Common Bench. Replevin IN a Replevin between Greenwood and VVelden The Defendant made Conusans as Bayliff to John Cornwallis shewed how that seven acres of Land called Pilles is locus in quo and at the time of the taking were holden of the said Cornwallis by certain Rent and other Services And for Rent arrear he made Conusans as Bayliff to Cornwallis The Plaintiff pleaded out of the Fee of Cornwallis upon which they were at Issue And it was found that the Plaintiff is seised of seven acres called Pilles hoden of Cornwallis ut supra But the Iury say That locus in quo doth contain two acres which is called Pilles and these two acres are and then were holden of Agmondesham of the Middle-Temple And if upon the whole matter videbitur Curiae c. And by the opinion of the whole Court out of his Fee upon that matter is not found for although it be found that the two acres be holden of Agmondesham yet it may be that they are within the Fee of Cornwallis for it may be that Cornwallis is Lord Paramount and Agmondesham Mesne and then within the Fee of Cornwallis And therefore for the incertainty of the Verdict a Venire facias de novo was awarded CCXCV. Bishop and Harecourts Case Mich. 32 33. Eliz. In the Common Bench. Assumpsit 1 Cro. 210. IN an Action upon the Case The Plaintiff declared that the 5 Junij 30 Eliz. the Defend in consideration that the Plaintiff the same day and year sold and delivered to the Defend a Horse did promise to pay the Plaintiff a hundred pounds in Trinity Term then next ensuing and shewed that the Term began 7 Junij after And upon Non assumpsit pleaded it was found for the Plaintiff And it was moved in arrest of Iudgment That it appeareth upon the Declaration that the Plaintiff hath not cause of Action for the Trinity Term intended is not yet come for the day of the Assumpsit is the fifth of June and the fourth day was the first day of the said Term scil the day of Essoins and the seventh day 4. die post and then the promise being made at the day aforesaid after the Commencement of the said Term the same is not the Term intended but the Plaintiff must expect the performance of the promise until a year after And of that opinion was Anderson but the three other Iustices were strongly against him to the contrary for by common intendment amongst the people the Term shall not begin until 4. die post and so it is set down usually in the Almanack And afterwards Iudgment was given for the Plaintiff CCICVI Mich. 32 33. Eliz. In the Common-Bench COoper Serjeant came to the Bar and shewed that A. Tenant in tail the Remainder over to B. in Fee. Co. 2 Inst 483. 484. 1 Cro. 323. 471. 567. Hob. 496. 3 Cro. 224. A. for a great sum of mony sold the Land to I. S. and his Heirs and for assurance made a Feoffment in Fee and levied a Fine to the said I. S. to the use of the said I. S. and his Heirs And note that by the Indenture of Bargain and Sale A. covenanted to make such further Assurance within seven days as the said I. S. or his Heirs or their Council should devise And shewed that before any further assurance was made the said I. S. died his Son and Heir being within age And now by advise of Council and of the Friends of the Infant it was devised that for such further assurance and cutting off the Remainder a common Recovery should be suffered in which the said Infant should be Tenant to the Praecipe and should vouch the Vendor Common Recovery suffered by an Infant by his Guardian and because that the said Term of seven years is almost expired and that the said Recovery is intended to be unto the use of the said Infant and his Heirs it was prayed that such a Recovery might be received and allowed And two Presidents in such Case were shewed in the time of this Queen one the Case of the Earl of Shrewsbury and the other one VVisemans Case But the Iustices were very doubtful what to do But at last upon good assurance of people of good Credit that it was unto the use of the Infant and upon the appearance of a good and sufficient Guardian for the Infant in the Recovery who was of ability to answer to the Infant if he should be deceived in the passing of that Recovery and upon consideration had of the two Presidents and upon Affidavit made by two Witnesses that the said intended Recovery was to the use of the Infant the Recovery was received and allowed CCICVII Cottons Case Mich. 32
this Court is especially named Wray This Proviso begins with Iustices of the Peace therefore it doth not extend to offences which are Treason and the meaning of this Statute of 23 Eliz. was to enlarge the Statutes of 1 5 Eliz. for where the offence against the Statutes before was to be enquired at the next Session and the other within six Months now by this Statute it may be enquired at any time within the year and day but it doth not extend to restrain the proceedings against offences of Treason for the words of the Statute are That such offences shall be inquired before Iustices of Peace within a year c. But in the next clause the Iustices of Peace may punish all offences against this Act but Treason by which it appeareth that no offences are restrained to time but those which the Iustices of the Peace have authority to hear and determine and that is not Treason Gawdy to the same purpose For all the Proviso is but one sentence and there the whole shall be referred to spiritual offences as the not coming to Church c. CCCXXIII Filcocks and Holts Case Mich. 32 33 Eliz. In the Exchequer Error Assumpsit IN an Action by Filcocks against Holt Administrator of A. the Plaintiff declared how that the Husband of the Defendant who died intestate was indebted to the Plaintiff in ten pounds by Bill and that the Defendant in consideration that the Plaintiff would permit the Defendant to take Letters of Administration and give to her further day for the payment of the said ten pounds promised to pay the said ten pounds to the Plaintiff at the day And upon a Writ of Error brought in the Exchequer upon a Iudgment in the Kings Bench in that case It was assigned for Error that here is not any consideration for by the Law she is to have Administration being wife of the Intestate and as to the giving of further day for the payment of the ten pounds the same will not make it good for it doth not appear that she was Administratrix at the time of the promise made and then she is not chargeable and then c. And such was the opinion of the Court. And it was said by Periam Iustice and Manwood chief Baron That the Bishop might grant Letters of Administration to whom he pleased if he would forfeit the penalty limited by the Statute â—atch 67 68. Also it was said where an Executor or Administrator is charged upon his own promise Iudgment shall be given de boniâ— propriis for his promise is his own act CCCXXIV Adams and Bafealds Case Mich. 33 Eliz. In the Kings Bench. Action upon the Case AN Action upon the Case was brought and the Plaintiff declared That where such an one his Servant departed his service without cause or license the Defendant knowing him to be his Servant did retain him in his Service and so kept him Tanfeild The Action doth not lye for if my Servant depart out of my service and another doth retain him an Action doth not lye at the Common Law if he do not procure him to leave my service and afterwards retain him or immediately taketh him out of my service And this Action is not grounded upon any Statute See 11 H. 4. 176. 47 E. 3. 14. 9 E. 4. 32. Gawdy The Action lieth for here is damage and wrong done to the Plaintiff Fenner contrary For the wrong is in the departure and not in the Retainer and upon the Statutes it is a good Plea to say for the Defendant that the party was vagrant at the time of the Retainer and the sciens doth not alter the matter CCCXXV Nash and Mollins Case Mich. 32 33 Eliz. In the Kings Bench. Prohibition 1 Cro. 206. Tithes NAsh and Usher sued a Prohibition against Mollins for that the Defendant had libelled against them in the Spiritual Court for Tithes of Wood growing in Barking Park in Essex the other did surmise that the Lands were parcel of the possessions of the Prior and Covent of Cree Church and that the said Prior and his Successors time out of mind c. had held the said Lands discharged of Tithes and held them so at the time of the Dissolution c. and the other part traversed it whereupon they were at Issue if the Prior c. held the Land discharged tempore Dissolutionis c. And now on the part of the Plaintiff in the Prohibition certain old persons were produced who remembred the time of the Monasteries and that they did not pay any Tithes then or from thence Exception was taken to the suggestion by Coke that here is nothing else than a Prescription de non Decimando for here is not set forth any discharge as composition unity of possession priviledge of order as Templarii Hospitiarii c. â—enner Iustice Spiritual persons may prescribe in non Decimando for it is not any prejudice to the Church Wray Although it is not set down the special manner of discharge yet it is well enough for we ought to take it that it was by a lawful means as composition c. or otherwise For the Statute is that the King shall hold discharged as the Abbot c. and we ought to take it that it was a lawful discharge of Tithes tempore dissolutionis And afterwards the Iury found for the Plaintiffs in the Prohibition But no Evidence was given to prove that the Defendant did prosecute in the Spiritual Court contrary to the Prohibition CCCXXVI Sheldons Case Mich. 32 33 Eliz. In the Kings Bench. SHeldon Talbot and two other four persons in all Indictment upon the Statute of 23 Eliz. were Indicted upon the Statute of 23 Eliz. of Recusancy the words of the Indictment were Quod illi nec eorum uterque venerunt to any Parish Church c. It was moved by Atkinson That the Indictment is not good for uterque doth refer unto one of them and not where they are many as here and so is an insensible word and so upon the matter there is no offence laid to their charge And the Iustices doubting of it demanded the opinions of Grammarians who delivered their opinions that this word uterque doth aptly signifie one of them Exposition of words and in such signification it is used by all Writers Gawdy I conceive that the opinions of the Grammarians is not to be asked in this case But I agree that when an unusual word in our Law comes in question for the true construction of it then the opinion of Grammarians is necessary But uterque is no unusual word in our Law but hath had a reasonable Exposition heretofore which we ought to adhere unto which see 28 H. 8. 19. Three bound in an Obligation Obligamus nos utrumque nostrum and by the whole Court uterque doth amount to quilibet And see 16 Eliz. Dyer 337 338. Three Ioyntenants in Fee and by Indenture Tripartite each of them
Request the said Feoffees or their Heirs should be seised of the said House to the use of the said Ann and her Heirs Afterwards the seventh of April 16 Eliz. Ann demanded of William Ramsey Son and Heir of John Ramsey six pounds thirteen shillings and four pence being due to the said Ann ut supra the which sum the said William Ramsey did refuse to pay by force of which and by the Statute of 27 H. 8. the said Ann Ramsey was thereof seised and died seised and from her descended the said House to William Ramsey The Plaintiff confessed the Feoffment to Crofton and Langhton to John Ramsey and others and shewed further That the said Ann required the surviving Feoffees to enfeoff one Robert Owen of the said House who three days after made the Feoffment accordingly Robert Owen enfeoffed John Owen who died thereof seised and from him the said House descended to Israel Owen Crafton died Langhton having issue two Daughters died All the Feoffees but one died Ann the time aforesaid demanded the said six pounds thirteen shillings and four pence of the said William Ramsey in another House in London due at the Feast of St. Michael last before who denied to pay it the second Daughter of Langhton entred and thereof enfeoffed the said Israel Owen Rents 3 Cro. 210 211. who leased the same to the Plaintiff and upon that Evidence the Defendant did demur in Law And first it was resolved by the whole Court That the said sum to be paid to the said Ann was not a Rent but a sum in gross because reserved to a stranger c. which see Lit. 79. Reversion And by Munson Iustice If the words of the reservation had been twenty Nobles Rent yet it had been but a sum in gross but otherwise it had been by devise Also there is not any condition for the payment of it but only a Limitation for the word subsequent which limits the future use takes away all the force of the words of the Condition as 27 H. 8. 24. Land given in tail upon condition that the Donee and his Heirs shall carry the Standard of the Donor when he goes to battel and if he fail thereof then the same to remain to a stranger the limiting of the Remainder hath taken away the condition and hath controlled it and now the Condition is become a Limitation But where the words subsequent are against Law as if upon failer that then it shall be lawful for a stranger to enter Feoffments upon condition c. these words because they are against Law for a Rent cannot be reserved to a Stranger c. do not destroy the Condition by Mead contrary by Munson for the Condition is utterly gone And by Mead Feoffment in Fee upon condition That if the Feoffor shall do such a thing that he shall re-enter and retain the Land to the use of a stranger the use is void 1 Cro 401 402 and the Feoffor shall hold the Land to his own use A Feoffment in Fee upon condition That the Feoffee shall marry my Daughter and if he refuse to marry her that then he shall be seised to the use of I.S. the same is not a Condition but a Limitation and in all cases afterwards of a Condition where an Interest is limited to a stranger there it is not a Condition but a Limitation And Mead said That the said annual sum is not demandable but the party ought to pay it at his peril Lit. 80. But by Munson it ought to be demanded for so this word Refuse doth imply Regula And when at the Request of Ann the Feoffment is made by Munson Mead and Windham the Rent is gone but Dyer contrary unless the Feoffment be made to Ann her self And afterwards Iudgment was given for the Plaintiff Hil. 19 Eliz. Rot. 748. There was a Case betwixt Shaw and Norton Shaw and Nortons Case One Green devised his Lands to A. and devised also the said A. should pay a Rent to B. and that B. might distrain for it and if A. fail of the payment of it that the Heirs of the Devisor might enter the same is a good Distress and a good Condition And by Munson Demand ought to be made of the Rent for the words are Refuse which cannot be without Demand or Request And it was certified That such a Clerk refused to pay his Tenths and because it was expresly set down in the Certificate that he was requested c. for that cause he was discharged And it was also holden That if Request be necessary that in this case Request is to be made That it ought to be made to the surviving Feoffee or his heir and not to the heirs of any of the Feoffees who are dead CCCLXIII Lacyes Case Hill. 25. Eliz. In the Kings Bench. Indictments Co. 13. Rep. 53. LAcy was indicted of the death of a man upon Scarborough Sands in the County of York between the high water-mark and the low water-mark and the same Indictment was removed into the Kings Bench and being arraigned upon it he shewed that the said Indictment was sued by vertue of a Commission which issued the first day of May directed to the Iustices of Assize and other Iustices of Peace in the said County Commission repealed to enquire of all Murders Felonies c. and pleaded further That the second day of May aforesaid issued another Commission directed to the Lord Admiral and others upon the Statute of 28 H. 8. cap. 15. by force of which the said Lacy was indicted of the same murder whereof he was now arraigned and the said last Commission was ad inquirendum tam super altum mare quam super littus maris ubicunque locorum infra jurisdictionem nostram maritimam And that the said Indictment taken before the Admiral was taken before this upon which he was arraigned and upon the whole matter prayed to be dismissed And the opinion of all the Iustices was that the first Commission was repealed by the second and so the Indictment upon which he was arraigned taken coram non Judice 10 E. 4. 7. If a Commission for the Peace issueth into one County and afterwards another Commission issueth to a Town within the same County and parcel of it the first Commission is repealed which Gawdy granted if notice be given c. but Wray denied it but the whole Court by this last Commission to the Lord Admiral the first Commission as to the Iurisdiction in locis maritimis is determined and repealed for these two Commissions are in respect of two several Authorities the first Commission meerly by the Common Law the other by the Statute aforesaid and thereupon the party was discharged against the Queen as to that Indictment Note that in the Argument of this Case it was said by Coke and agreed by Wray That if a man be struck upon the high sea 2 Co. 93. whereof he dieth in another County
out of the pardon shall be intended and construed the bare Act of Conversion but the whole offence i. the continuance and practise of it is understood As if by general pardon all intrusions are excepted now by that the instant Act of Intrusion i. the bare Entry is not only excepted but also the continuance of the Intrusion and the perception of the profits And note The words of the Statute are conversion permitted and Conversion continued is Conversion permitted And the said Statute doth not punish the Conversion but also the continuance of the Conversion for the penalty is appointed for each year in which the Conversion continues And Egerton Solicitor put this Case 11 H. 8. It was enacted by 3 H. 7. cap. 11. That upon Recovery in Debt if the Defendant in delay of Execution sues a Writ of Error and the Iudgment be affirmed he shall pay damages now the case was That one in Execution brought such a Writ of Error and the first Iudgment is affirmed he shall pay damages and yet here is not any delay of the Execution for the Defendant was in Execution before but here is an Interruption of the Execution and the Statute did intend the Execution it self i. the continuance in Execution ibidem moraturus quousque It was said on the other side That the conversion and continuance thereof are two several things each by it self and so the conversion only being excepted in the pardon the continuance thereof remains in the grace of the pardon And it appeareth by the Statute of 2 and 3. Ph. Ma. That conversion and continuance are not the same but alia atque diversa and distinct things in the consideration of the Law for there it is enacted That if any person shall have any Lands to be holden in Tillage according to the said Statute but converted to Pasture by any other person the Commissioners c. have authority by the said Statute to enjoyn such persons to convert such Lands to Tillage again c. And in all cases in the Law there is a great difference betwixt the beginning of a wrong and the continuance of it As if the Father levyeth a Nusance in his own Lands to the offence of another and dyeth an Assize of Nusance doth not lye against the Heir for the continuance of that wrong but a Quod permittat See F.N.B. 124. It was adjorned CCCLXX Powley and Siers Case Mich. 26 Eliz. In the Kings Bench. POwley brought Debt against Sier Executor of the Will of A Debt The Defendant demanded Iudgment of the Writ for he said That one B. was Executor of the said A. and that the said B. did constitute the Defendant his Executor so the Writ ought to be brought against the Defendant as Executor of the Executor and not as immediate Executor to the said A. The Plaintiff by Reply said That the said B. before any probate of the Will or any Administration dyed and so maintained his Writ Wray Iustice was against the Writ for although here be not any probate of the Will of A. or any other Administration yet when B. made his Will and the Defendant his Executor the same is a good acceptance in Law of the Administration and Execution of the first Will for the Defendant might have an Action of Debt due to the first Testator Gawdy and Ayliff Iustices The Writ is good See Dyer 1 Cro. 211. 212. 23 Eliz. 372. against Wray CCCLXXI Pasch 26 Eliz. In the Kings Bench. THe Case was A seised of certain Lands Bargain and sale of Trees bargained and sold by Indenture all the Trees there growing Habendum succidendum exportandum within twenty years after the date of the said Indenture the twenty years expire The Bargainee cuts down the Trees A. brought an Action of Trespass for cutting down the Trees And by Wray Iustice The meer property of the Trees vests in the Bargainee Post 288. and the Limitation of time which cometh after is not to any purpose but to hasten the cutting of the Trees within a certain time within which if the Vendee doth not cut them he should be punished as a Trespassor as to the Land but not as to the Trees Gawdy contrary And that upon this Contract a conditional property vests in the Vendee which ought to be pursued according to the direction of the condition and because the condition is broken the property of the Trees is vested in A. CCCLXXII Curriton and Gadbarys Case Pasch 26 Eliz. In the Kings Bench. IN in Action upon the Case the Plaintiff declared Leases That the Defendant in consideration that the Plaintiff should make a lease for life to the Defendant of certain Lands Habendum after the death of A. before the tenth of August next following promised to pay the Plaintiff ten pounds the first day of May next after the promise which was before the tenth of August And the truth was That the said ten pounds was not paid at the day ut supra nor the said Lease made And now both sides being in default the Plaintiff brought an Action It was said by Wray Iustice If the Plaintiff had made the Lease according to the consideration and in performance thereof the action would have lyen but now his own default had barred him of the Action But for another cause the Declaration was holden insufficient for here is not any Consideration for the promise is in consideration that the Plaintiff shall lease to the Defendant for life Habendum after the death of A. which cannot be good by way of lease but ought to enure by way of grant of the Reversion so as here is no lease therefore no consideration and notwithstanding that if a Lease be made for life Habendum after the death of A. the Habendum is void and the Lease shall be in possession according to the Premises yet the Law will not give such construction to the words of a Promise Contract or Assumpsit but all the words ought to be wholly respected according to the Letter so as because that no Lease can be made according to the words of the Consideration no supply thereof shall be by any favorable construction And so it was adjudged But before the same imperfection was espied Iudgment was entred and therefore the Court awarded that there should be a cesset executio entred upon the Roll for it is hard as it was said by Wray to drive the party to a Writ of Error in Parliament because Parliaments are not now so frequently holden as they have used to be holden and the Execution was staid accordingly CCCLXXIII Willis and Crosbys Case Pasch 26 Eliz. In the Kings Bench. Error IN a Writ of Error It was assigned for Error That whereas in the first Action the parties were at issue and upon the Venire facias one Gâ—â—gory Tompson was returned But upon the Habeas Corpora George Tâ—â—â—â—son was returned and the Iury was taken and found for the
his Parishioner all demands in his Lands his Tithes thereby are not extinct and afterwards a Consultation was granted CCCCXII Lee and Curetons Case Trin. 31 Eliz. Rot. 902. In the Kings Bench. Debt 1 Cro. 153. IN Debt upon an Obligation the Defendant pleaded Non est factum and it was found for the Plaintiff and Iudgment given and afterwards the Defendant brought Error and assigned for Error that the Declaration was per scriptum suum obligat Error without saying hic in Guria prolat to which it was answered by Coke that the same was but matter of form for which a Iudgment ought not to be reversed for that the Clark ought to put in without instruction of the party and so it was holden in a case betwixt Barras and King 1 Cro. 768. 778. 3 Cro. 22. M. 29 30 Eliz. Another Error was assigned because the Iudgment is entred de fine nihil quia perdonat where it should be quod capiatur although the Plea were pleaded after the General pardon and for that cause the Iudgment was reversed for if the pardon be not specially pleaded the Court cannot take notice of it as it was holden in Serjeant Harris Case CCCCXIII Lacy and Fishers Case Trin. 31 Eliz. In the Kings Bench. IN a Replevin the taking is supposed in S. which Land is holden of the Manor of Esthall the Defendant made Conusans as Bailiff of the Lord of the Manor aforesaid and issue was taken upon the Tenure Trial. and it was tryed by a Iury out of the Visne of Esthall only Tanfield The trial is good for the issue ought not to have been tried by both Visnes S. and Esthall for two things are in issue If it be holden or not 2. If it be holden of the Manor of Esthall for which cause the Visne ought to be from both places and the opinion of the Court was That for the manner of it it was not good as if an issue be joyned upon common for cause of vicinage it shall be tried by both Towns See 39 H. 6. 31. by Littleton and Danby and the case in 21 E. 3. 12. was cited in a per quae servitia the Mannor was in one county and the Lands holden in another county the Tenant pleaded that he did not hold of the Conusor and that he was tried by a Iury of the County where the Land was See 2 H. 4. Gawdy denied the Book cited of 21 E. 3. to be Law and the reason wherefore the Visne shall come from both places is because it is most likely that both the Visnes may better know the truth of the matter than the one only Another Exception was taken Exposition of Stat. 21. H. 8. cap. 19. because the Conusans as it seems is made according to the Statute of 21 H. 8. 19. and yet the party doth not pursue the said Statute through the whole Conusans for by the Statute in Avowry or Conusans the party needs not to name any person certain to be Tenant to the Land c. nor to make Avowty or Conusans upon any person certain and now in this Conusans he hath not made Conusance upon any person certain but yet he hath named a person certain to be Tenant c. and in as much as this Conusans is not made either according to the Common-Law or according to the Statute it cannot be good But that Exception was dissallowed by the Court for if the Statute remedieth two things it remedieth one and the Conusance made in form as above was well enough by the opinion of the whole Court. CCCCXIV Diersly and Nevels Case Trin. 31 Eliz. In the Kings Bench. IN an Action of Trespass the Defendant pleaded Not-guilty 2 Roll. 682. and if he might give in evidence That at the time of the Trespass the Freehold was to such an one and he as his servant and by his Commandment entred was the question and it was said by Coke That the same might so be well enough and so it was adjudged in Trivilians Case for if he by whose commandment he entreth hath Right at the same instant that the Defendant entreth the Right is in the other by reason whereof he is not guilty as to the Defendant and Iudgment was given accordingly CCCCXV. Savage and Knights Case Mich. 29 and 30 Eliz. Rot. 546. In the Kings Bench. Error Ante 185. 1 Cro. 106. 2 Cro. 109. 654. Sty 91. Yelv. 164. Sty 115. A Writ of Error was brought upon a Iudgment given in Leicester in Debt Tanfield assigned for Error because in that suit there was not any Plaint for in all inferior Courts the Plaint is as the Original at the Common Law and without that no Process can issue and here upon this Record nothing is entred but only that the Defendant summonitus fuit c. and the first Entrie ought to be A. B. queritur versus C c. Clench Iustice a Plaint ought to be entred before Process issueth forth and this Summons which is entred here is not any Plaint and for that Cause the Iudgment was reversed CCCCXVI Rawlins Case Trin. 31. Eliz. In the Kings Bench. IN Trespass for breaking his Close by Rawlins with a continuando It was moved by Coke that the Plaintiff needed not to shew a Regress to have Damages for the continuance of the first Entry scil for the mean profits and that appears by common experience at this day Gawdy Iustice whatsoever the experience be I well know that our books are contrary and that without an Entry he shall not have damages for the continuance if not in case where the Term or estate of the Plaintiff in the Land be determined and to such opinion of Gawdy the whole Court did incline but they did not resolve the point because a Regress was proved See 20 H. 6. 15. 38 H. 6. 27. CCCCXVII Harris and Bakers Case Trin. 31. Eliz. In the Kings Bench. Accompt Damages 3 Len. 192. Collet and Andrews Case 2 Len. 118. 3 Len 149. IN an accompt damages were given by the Iury and it was moved that damages ought not to have been given by way of damages but the damages of the Plaintiff shall be considered by way of Arrearages but see the Case H. 29 Eliz. in the Common Pleas betwixt Collet and Andrews and see 10 H. 6 18. In Accompt the Plaintiff shall count to his damage but shall not recover damages vide 2. H. 7. 13. 21 H. 6. 26. The Plaintiff shall not recover damages expresly but the Court shall adâ— quoddam incromentum to the Arrearages Coke It hath been adjudged that the Plaintiff shall recover damages ratione implicationis non Retentionis CCCCXVIII Mich. 26. Eliz. In the Kings Bench. THe words of the Statute 32 H. 8. cap. 37. of Rents are that the Executor of a Grantee of a Rent-charge may distrain for the arrearages of the said Rent incurred in the life of the Testator so long as the Land charged doth continue in