the Land to Anne his Wife the Lessor of the Plaintiff for life and died Anne entred and made a Lease to the Plaintiff Et si super totam materiam c. And it seems that the Defendant Allen claim under the Title of Anne K. the Daughter but that was not found nor no other Title for the Defendant and therfore of necessity Iudgment ought to be given for the Plaintiff And this case was well argued by Crawley for the Plaintiff And Henden for the Defendant And three Points were argued 1. If the two acres in Langham passed by the words Cum pertinentiis and it seemed to the Court that they did not passe without saying Cum terris eidem Messuagio spectantibus vel pertinentibus And that is agreed in Hill and Granges case by Conveyance and 23 H. 8. 6. and it is all one in a Will Also in this case it is not found for what time these two acres had been used with the house And there was sufficient to supply the words Cum pertinent for ought that appears And if the Law be so the two acres do not passe but discend to Thomas Keene and the Feoffment good 2. If by these words it be an Estate-tail as in Beresfords Case Coke lib 7. fol 41. 9 E 3. Fitz tail 21. 12 E 3. 7 E 6. 16 Eliz in Chapmans case or a Fee-simple And yet Yelverton and Crook inclined that it was an Estate-tail but Lord Richardson Hutton and Harvey to the contrary for an intent against Law shall be void vide Abraham and Twiggs case Coâ—e lib 7. fol 41. 3. If the Collaterall Warranty which descended had extinguishâ— and barred the right of Anne Keene Henden would have maintained it because that the Warranty is speciall although it was collaterall that it did not Bar which is sanâ— question be it speciall or generall it bars the others upon whom it descends vide Coke lib 15. Seniors case he held no descent and then no Bar 12 E 4. discontinuance 50. 7 H 6. speciall Warranty shall be used by Rebutter but not by Voucher And Iudgment for the Plaintiff If a Feme shal have a supersedeas upon an Exigent against Baron and Feme Un supersedeas fuit Misâ— for the Feme upon an Exigent against Baron and Feme And upon much debate it was agreed that the Feme for the safeguard of her self from imprisonment being returned upon the Exigent or upon the Capias viz. upon the one Quod reddidit â—â— upon the other Caepi and as to the Husband Non est inventus may appear and so long as the Processe continues against the Husband she shall have idem dies But when the Baron is returned utlegatus she shall be discharged sans idem dâ—es And that stands well and raconciles all the Books But whether she shall have a Supersedeas de non molestando is doubtfull for by the 11 of H 4. 80. and Dyer 271. if the Baron be outlawed and the Wife Wâ—ived and the King pardon the Feme that shall be allowed and she shall go sine die and vide 4 E â— 34. and 14 H 6. 14. 13 H 4. 1. And it seemed by all to be agreed that the Baron after he purchaseth his pardon or after he come and reverse the Outlawry he shall not have allowance of his Pardon nor his appearance received si non qui il amesne sa feme qui par le presumption de leye est amesnable per luy mes les baron n'est amesnable per le feme vide 18 E 4. 4. there the case was that a Feme Covert was sued as Feme sole her Husband being beyond Sea and not known to be alive and she was outlawed and then her Husband came again and brought a Writ of Error for the reversall therof in his name and in the name of his Wife And there it is said that it is questionable being that he was not party to the Suit And then one said that it would be a good way to be rid of a Shrew And the Prothonotaries said that no Supersedeas was ever granted for the Wife in such a case Hil. 2 Car. Sir Charles Howards Case MEmorand That the Earl of Marleborough Lord Treasurer of England came to Serjeants Inn in Chancery Lane 6. Febr. and there assembled all the Iustices to have their opinion upon a Case which was depending in the Exchequer Chamber Where the office of the keeper of a Park is gone if the Kâ—ng dispark it upon an English Bill for the King by the Attorney-generall against Sir Charles Howard for avoiding the possession of a Lodge and desisting from taking the profits of a Park called Putney Mooreclapp the Custody of which Park and three pounds annuall Fee with the Windfalls c. and the custody of the Lodge was granted to him The King which now is by his Charter disparked the Park and after granted all the Dâ—er to Sir Richard Weston Chancellor of the Exchequer And whether by this disparking of the Park the office of the Keepership he determined or no then whether the annuall Fee be determined then if the casuall profits as Windfalls c. may be yet taken by Charles Howard who is the Patentes And upon debate it was unanimously agreed that the King might dispark his Park and that by the disparking therof the Office of the Keepership is gone and determined for Sublata causa tollitur effectus and this Office is not of necessity and such Offices are not prefumed in Law to be altogether for the benefit of the Patentes but reciprocally for the Commodity of the King and by the disparking of the Park the labour and charge is gone It was also agreed that the King might discharge the Patentee of this Office although the Park continue And iâ— one grant the Stewardship of a Mannor and he dismember the Mannor the Office determines And if a Corporation grant the Office of Town-Clerk or of Recorder and after surrender their Patent and take a new Patent which incorporates them by a new name all the Offices are determined It was agreed that the annuall Fee certain remain in both cases be he discharged or be the Park disparked vide 5 E 4. 9. 4 E 4. 22. 18. E 4. 9 Dyer 71. 6 H 8. Kelway 171. Plowd Sir Thomas Wrothes case The Earl of Lincolns Case Star-chamber MEmorand That the Sollicitor Generall moved that Sir Henry Fines had preferred a Bill against the Earl of Lincoln in this Court Where a Lord may briâ— sworn And there was a Commission De dedimus potestatem granted to take his answer upon Oath and he offered his answer upon his Honor. And the Commissioners returned this speciall matter and he prayed an Attachment And this case was propounded to the Iudgges and it was resolved by them the Lord Keeper and all the Court of Star-chamber that he ought to answer upon his Oath for it is Juramentum purgationis and not promissionis Also
And the proof therof see Coke lib 6. fol 19. Gregories case and Dyer 236. a. Then the principall and sole point will be if this Offence will be by the act of 33 H 8. cap 10. made presentable and punishable by the Iustices of Peace at their six weeks Sessions and it was unanimously agreed that it is not First because the preamble of the act recite that the Offences recited therin escape punishment and for their more speedy and effectuall punishment and repeat the particulars but therin name not Brewers by expresse words and it cannot be intended that the intent of the Statute was to give them at their six weeks Sessions to intermeddle with things not determinable at their generall Sessions And it was objected by Aâ—tho that Lambert and Crompton had put it as an Article of their charge To which it was answered that it was in some respect inquirable at Common Law viz. Misdemeanors in Bear-brewers Conspiracies and agreements to sell at such prises and the making of wholsome Beer Also it might be that they â—ake the Law to be upon the Statute of 23 H 8. that the Sessions being a Court of Record was within this act that saies in any Court of Record And then if it be not suable by Information before the Iusticeâ— of Peace the consequence is plain that the Statute of 21 Jac. cap 4. extends not therto and the Statute of 37 of H 8. makes not any thing in this case but tolls the six weeks Sessions and makes it inquirable at the generall Sessions Ideo Iudgment for the Informer June 19. An. 22. Jac. MEmorand That upon a Conference at Serjeants Inn in Fleet-street it was resolved and agreed by the Lord chief Iustice Sir James â—ea the Lord Hobart Baron Bromley Baron Denham Iustice Hutton and Iustice Jones That any one may erect an Inn for lodging of Travellers without any allowance or License Resolutions concerning Innes and who may keep an Inne and how they may be suppressed as well as any one before the Statute of 2 E 6. might have kept a Common Alehouse or as at this day one may set up to keep hackney Horses or Coaches to be hired by such as will use them And all men may convert Barley into Mault untill they be restrained by the act of Parliament made for that purpose And as all men may set up Trades not restrained by the Act of 5 Eliz. which directeth no man that hath not been bound or served as an Apprentice by the space of seven years or by restraint of setting up Trades in Corporations by such as be not free by the like reason all men may use the Trade of Inne-keeping unlesse it could be brought to be within the Statute of 2 E 6. which hath never been taken to be subject to that Statute in point of license And vide that an Hostler is chargable to the party which is his Guest for the restoring of that which is lost in his House and that by the Common Law of the Realm vide 11 H 4. fol 45. see also 11 H 4. fol 47. That in an action upon the case brought by the School-master of Glocester for erecting another School to his prejudice adjudged that no action lies and also it is there said that if I have a Mill and another erect another Mill by which I lose my Custom no action lies unlesse he disturb the water And it was said by the chief Iustice that it was so resolved before by the Iudges and that Iustice Doderidge Iustice Haughton and Iustice Chamberlain were of the same opinion and so now was my Brother Crew the Kings Serjeant who went the Circuit of Surrey Kent and Essex but the chief Baron Tanfield was of a contrary opinion And it seemed to him that Innes were licensed at first and Originally by the Iustices in Eire but nothing could be shewne to that purpose But all the Iustices were of a contrary opinion and said that that was the ground that begot the Patent and Commission to Mounperson viz. That the King might licence them if the Iudges might And it was said by the Lord chief Iustice that there was not any such thing in the Eires but because that strangers which were aliens were abused and evilly intreated in the Inns it was upon complaint therof provided that they should be well lodged and Inns were assigned to them by the Iustices in Eire The second question was if an Inn be erected in a remote and inconvenient place so that it is dangerous to Travellers and there harbour men of bad same which are apt to commit Robbery whether that might be suppressed And as to that all agreed that it is a common Nusance and may be suppressed and that to be by Indictment and presentment to which the party may have his Traverse The third question was whether when one which had erected an Inn be a man of bad behaviour and such a person as is not fit to keep an Inn how it should be aided and helped And it was agreed by all that upon Indictment or presentment therof he may have his Traverse and if he be convicted then to be suppressed viz. that he which had so misdemeaned himself should not keep it as an Inn nor use it But that it being an Inn it may be used afterwards by another Fourthly how and by what way or means the multitude of Inns might be prevented by being suppressed or redressed upon complaint or how the number might be stinted This Point seemed to be difficult and to contradict the resolution upon the first question And therfore it was agreed that they should advise concerning it and the best way is that they be strictly inforced to keep the Assise and not to suffer any to tipple in their Inns and by this way they would desist from their Trade Mich. 4 Car. Mackerney versus Ewrin RIchard Mackerney brought an action upon the case against Jeffrey Ewrin and count Case That whereaâ— one I. S. was indebted to the Plaintiff in seven pounds four shillings for pasture feeding and Oates for an Horse kept in the Stable of the Plaintiff Consideration in an Assumpsit The Defendant in consideration that the Plaintiff at his request would deliver the Horse to him to the use of the said John S. promised to pay the said seven pounds four shillings And upon Non Assumpsit pleaded and Verdict for the Plaintiff Serjeant Callis moved in Arrest of Iudgment that it is no good consideration for the Plaintiff had not any property in the Horse and he is not is do any other thing then the Law injoyn him to do As if I lose my goods and another find them and in consideration that he will deliver them to me I promise to pay him two hundred pounds that is not sufficient matter to ground an Assumpsit therupon But if a Taylor had made a Sute of Apparell for I. S. and I. D. request him to deliver it
and Iudgment against the Plaintiff 8 E 4. 3. 21 E 4 2. Lit. 264. b. 20 E 4. 17. If the Debtee makes the Debtor and others his Executors the Debt is discharged Mich 9 Car. Banco Regis Rot 373. Anne Dorchester Executrix of Anne Row Dorchester and Webb Plaintiff against William Webb in Debt upon an Obligation of five hundred pounds the Defendant demanded Oyer wherby it appears that the Defendant and one John Dorchester were obliged joyntly and severally in the said Obligation The Defendant plead in Bar that the said John Dorchester made the Plaintiff his Executrix who proved the Will and had Goods sufficient in her hands to pay the said Debt The Plaintiff reply that before the death of the said Anne Row the Obligee she had fully Administred all the Goods of the said John Dorchester Demurrer and Iudgment for the Plaintiff And in this case it is not shewn that the said Francis and Peter or any of them proved the Will of the said Obligee or that they administred his goods or that they had any goods of the Obligor to administer at the time of the death of the Obligee as it ought to have been shewn And the said Francis Executor of the Obligee and also of the Obligor refused to be Executor to the Obligee and never Administred and never meddled with the Goods of the Obligee and so the Debt is not released in Law as by the said Case and former Iudgment appears This case had been often argued by Serjeant Hedley and of the other part by Serjeant Hitcham and affirmed that once Iudgment was given for the Defendant but it yet depends Trin. 12 Car. MEmorand Vpon Petition exhibited to the King by the Prisoners of quality which were in execution in the Fleet Liberty may not be given to Prisoners by force of a Habeas Corpus Kings Bench and Marshalsey to have liberty in the time of Infection and for preservation of their lives to have liberty by Writs of Habeas Corpus to go into the Country upon security to be given to the Warden and Marshall for their return The King out of his great care of their safety referred their Petition to the Lord Keeper Coventry and that he with the advice of the Iudges should consider by what way it might be done And the eighteenth day of June we attended the Lord Keeper at Durham-house And therupon conference and consideration of a former Resolution which was at Reading in Mich. Term last before the said Lord Keeper where were present all the Iudges besides my self That these abusive Habeas Corpus were not lawfull and that the Warden and Marshall were then called and warned that they should not suffer their Prisoners to go into the Country as they had used to do by colour of such Writs This which followes was subscribed WEE are of Opinion that the Writ of Habeas Corpus is both Ancient and Legall But as the Writ doth not so no Rule can Authorize the Keeper of the Prison to give liberty to his Prisoner by colour of such Writ but the same is an abuse against Law and an Escape in the Keeper if he let the Prisoner go by such Writ We find that neither in the twenty fourth year of Eliz. when the Term was Adjourned to Hertford Nor in the 34. of Eliz. in which year it was Adjourned to Hertford Nor in the 35. of Eliz. in which year it was Adjourned to St. Albans Nor in 1 Jac. in which year the Term was Adjourned to Winchester Nor in the first of King Charles in which year it was Adjourned to Reading In all which years there were great and dangerous Infections of the Plague there was no such course to set Prisoners out of Prison by Habeas Corpus but we find it a Novelty begun of late years But We think that if the danger of Infection shall grow so great as it shall be found necessary to provide for the safety of the Prisoners who may at all times provide for themselves by paying their Debts and yeilding obedience to Justice then a course may be taken that some certaine house may be assigned for the Warden of the Fleet in some good Town remote from the Infection and the like for the Marshall of the Kings Bench in some other Town where they may remove such Prisoners as have been Petitioners to his Majesty and there keep them as Prisoners Sub arcta salva Custodia as they should be kept in their proper Prisons and not to be as House-keepers in their own houses and by this means they will have the like to avoid the Infection as other Subjects have and not make the Infection a cause to abuse their Creditors or delude the course of Justice John Bramsion 1. Richard Hutton 2. George Crooke 3. George Vernon 4. Francis Crawley 5. Humph. Davenport 6. William Jones 7. Thomas Trevor 8. Robert Barkley 9. Richard Weston 10. To Sir John Bramston Knight Lord chief Justice of England My very good Lord I Have acquainted his Majesty with your resolution and your Brethren about Writs of HABEAS CORPUS his Majesty doth exceedingly approve the same And hath commanded me to let you know that his Majesty would not recede from that which you have certified And praies you and the rest of my Lords the Judges to observe it constantly attending to that resolution under your hands Hampton Court 19 June 1636. Your Lordships assured Tho. Coventrey C. S. Mich. 14 Car. MEmorand That 28. Aprilis 14 Car. Iustice Hutton argued in the Exchequer Chamber in the Case Adjourned thither upon a Scâ—re facias by the King against Hampden for Ship-money in which he was of opinion that as well for the matter as for the form upon divers exceptions to the pleading Iudgment should be given against the King Afterwards viz. 4. Maij. Thomas Hanson Batchelor of Divinity and Parson of Creake in Northamp came to the Court of Common Bench Iustice Hutton and Iustice Crawley then being there giving Rules and Orders and said Words against Justice Hutton I accuse Mr. Justice Hutton of high Treason for which he was committed to the custody of the Warden of the Fleet by Iustice Crawley and after by the direction of the King he was indicted in the Kings Bench and convicted and fined to five thousand pounds to the King And Iustice Hutton preferred his Bill against him there and recovered ten thousand pound Dameges Lord Digbies Case MEmorand That in the Parliament holden primo Car. It was resolved by the Iudges upon conference concerning the Lord Digby That when any Peer shall be proceeded against for Treason that ought to be by Indictment and that being done Where tryall of Treason by the Statute of 3 Jac. cap. 4. shall be and how then the King is to appoint a Peer to be Steward for the time and then to proceed to Arraign him or otherwise to transmit this Indictment by Certiorari to the Parliament and there
THE REPORTS OF THAT REVEREND AND LEARNED JUDGE SIR RICHARD HUTTON KNIGHT Sometimes one of the JUDGES of the COMMON PLEAS Containing many Choice Cases Judgments and Resolutions in points of LAW In the severall Raignes of King JAMES and King CHARLES being written in French by his owne hand AND Now faithfully Translated into English according to ORDER Major haereditas venit unicuique nostrûm a Jure Legibus quam ab â—is a quibus illa bona relicta sunt Cic. pro Caerin LONDON Printed by T. R. for Henry Twyford and Thomas Dring and are to be sold at their Shops in Vine-Court Middle Temple and at the George in Fleetstreet neer Cliffords-Inne 1656. COVRTEOVS READER THese REPORTS of that Famous and Learned Judge Sir RICHARD HUTTON were intended long ere this to have been exposed to publick View as they were Originally penn'd in FRENCH by his own hand but now in obedience to a late Act of Parliament they are faithfully rendred into ENGLISH And may be of great use and benefit to the Studients and Practisers of the LAWES of these Nations This just Judge as the greatest man once of this Nation was pleased to call him was sometimes Contemporary with the Lord HOBART By reason whereof though they may seem to meet sometimes in Cases yet they part many times in the Points thereof and the Arguments thereupon CICERO and ROSTIUS together make one incomparable Man And here our Learned Author appeares not to justle the Chiefe Justice out of his place but to continue as he was upon the Bench a friendly Associate and a Learned Assistant THE NAMES OF THE PRINCIPALL CASES contained in this BOOKE A. A Andrews and Hacker 3 Agars Case 10 Allaboyter and Clifford 29 Andrews Case 30 Adams and Flemming 34 Allen and Swift 46 Aris and Higgins 65 Aleston and Andrew 128 B. BLands Case 18 Bishops Case 22 Boonton and the Bishop of Rochester 24 Bigg and Malin 27 Brook and Groves 28 Bagshaw and Walker 34 Blackburnes Case 36 Bridgland and Post 44 Bullen and Jevis 52 Bawtry and Scarlet 63 Blemhasset and Humblestone 65 Bickner and Wright 71 Beverley and Povver 79 Baker and Johnson 106 Bill and Lake 106 Babbington and Wood 111 Baker and Hucking 126 C. COmbes and Invvood 1 Cole and Allen 10 Cravvley and Kingsvvell 13 Conesbies Case 22 Cardinalls Case 29 Coppledick and Tansey 31 Coney and Coney 32 Castilion and Smith 35 Clerk and Wood 39 Cartright and Underhil 42 Clanrickards Case 43 Curle and Cook 51 Chittle and Sammon 55 Crane and Crampton 80 Clotvvorthy and Clotvvorthy 82 Crocker and Kelsey 84 Chidleys case 89 Chapman and Chapman 90 Chichley and the Bishop of Ely 96 Conghams case 98 Cook and Cook 110 Cole and Wilkes 121 Champernons case 135 D. DOrrell and Andrevvs 6 Drevvry and Fitch 16 Darcy and Askvvith 19 Davies case 42 Dovve and Palmer 124 Deanes case 125 Davies case 127 Digbies case 131 E. EDmonds case 20 Eire and Banister 24 Easington and Boucher 26 Egerton and Egerton 28 Empson and Bathurst 52 Edwards and Laurence 123 F. FLetcher and Harcot 55 Flight and Gresham 76 Farrington and Arrundel 82 Franklyn and Bradell 84 Farrington and Cagmer 98 Freeman and Stacy 109 G. GIbbs and Davy 8 Green and Harrington 34 Griggs case 59 Goldenham and Some 71 Glasier and Heliar 122 H. HArding and Bodman 11 Heard and Baskerfeld 15 Hall and Woollen 39 Hord and Cordery 49 Hawkins and Cutts 49 Howell and Auger 60 Hickson and Hicson 69 Hitcham and Brook 75 Hearne and Allen 85 Howard Sir Charles 86 Hartap and Cocks 88 Humbeton and Buck 89 Hilton and Paule 93 Holt and Sambach 96 Harbert and Angell 113 Hicks and Mounford 120 Huttons case Just 131 Hugles and Drinkwater 133 I. IUrden and Stone 18 Jennings and Pitman 63 Jones and Powell 135 K. KInd and Amery 23 King and Bowen 44 Knight and Copping 125 L. Leygh and Paine 9 Lamb and Thompson 40 Lightfoot and Brightman 54 Lindleys case 70 Laycon and Barnard 81 Lincoln the Earle 87 Lamb and West 114 Lashbrookes case 127 M. MAson and Thomson 38 Mayes and Sidley 46 Meredith and Bovill 58 Metholl and Peck 73 Mackerney and Ewrin 101 Medcalf and Hodgson 120 N. NOrris and Staples 5 Napper and Sanders 118 P. PIes case 35 Powell and Ward 41 Pitt and Chick 45 Parkers case 56 Poole and Reynold 57 Pleydell and Gosmore 67 Potter and Brown 72 Peto and Pemmerton 94 Paston and Utber 102 Purnell and Bridge 112 R. SIr Walter Rawleys case 21 Reyner and Waterhouse 27 Rugles case 37 Rud and the Bishop of Linc. 66 Ram and Lamley 113 Risam and Gooding 117 S. STeward and Bishop 2 Shaw and Tayler 4 Swain and Holman 7 Speak and Richards 11 Stone and Roberts 13 Smith and Stafford 17 Staffords case 20 Smith and Lindsey 32 Smith and Boucher 33 Sherley and Underhill 41 Suggs and Sparrow 47 Sherwills case 51 Stevens and Oldworth 91 Sandford and Cooper 95 Starkey and Tayler 104 Shervin and Cartwright 109 Strilleys case 122 Smith and Cornelius 123 Souler and Burton 132 T. TIppin and King 44 Treherne and Cleybrook 68 Trevors and Michelborn 77 Townley and Steele 78 Turner and Hodges 101 Treford and Holmes 108 U. UVedall and Tindall 77 W. WOolfe and Heydon 30 Wentworth Sir Tho 42 Wilson and Stubbs 45 Walrond and Hill 48 Whitguift and Eldersham 50 Wades case 81 Winsmore and Hobart 87 Woolfe and Hole 92 Watand Maywell 104 Wilson and Briggs 111 Whittington and Earl of Derby 37 Y. YOung and Young 92 THE NAMES OF CERTAINE CASES Cited Obiter in the PRINCIPALL CASES A. ALbanies case 35 Ashburneham and Skinner 72 Alephs case Sir William 107 Arrows case 113 Arrowsmiths case 83 B. BAker and Hall 3 Bedford and the Bishop of Exeter 4 Brownes case 9 Belcher and Hudson 17 Burnell and Brook 48 Beddinfeilds case 78 Baker and VVilloughby 105 Borman and Bower 115 Bland and Moseley 136 Brooks case 14 Bosdens case 23 Bedforne and Dandy 25 C. CAndish and Savill 7 Coppleston and Langford 23 Craddock and Wenlock 26 Coniers case Crachfords case 97 Capels case Sir Arthur Charter and Hunter 14 Couper and Andrews 58 D. LOrd Derbies case 119 Dunking and Leycroft 125 Dorchester and Webb 128 E. EWer and Moyle 44 F. FLeet and Harrison 26 Farrington's case G. GEorge and Whitlock 14 Greenwood and Beckett 76 Gillinghams case 95 Gerards case Sir John 122 Gonard and Dennet 83 Godhow and Bennet 83 Gittings and Redserne 13 H. HOdges and Balwin 81 I. IOhnson and Barker 35 Johnson Atewood 76 Jone's case 111 K. KEldriche's case 35 M. MIldmore Warlowe 52 Mills and Whitewood 105 N. NEwby and Sag 9 Nowels case Nich and Langford 115 Nichols and Grandie 29 P. PEriam's case 26 Pell and Brown 60 Powell and Vardoffe 76 Potmans case Parker and Parker 84 R. REdforne and Dandy 24 S. SMith and Mopham 136 Skinner and Amery 115 Sabud and R.W.L. 26 Stepney and Woolfe 42 Stanley and Buddens case 52 Somerford
Plaintiff had before brought a Quare impedit against the Defendants for the same Church which Writ was returned and that they did appear to defend it First we must know that this Assise shall be taken only in the Common Bench vide Mag Char cap 13. Assize of Darrein presentment abate by a Quare â—â—pedit then the Arch-bishop making default and the Assise being awarded against him by default if the other Defendants plead to the Assise yet the Assise shall not be presented because an Assise shall not be taken by parcels and therfore a Resummons shall be awarded against the Arch-bishop and the same for the Iury. But the other Defendants pleading their Plea to the Writ the Court was of opinion that it was a good Plea in abatement of the Writ for the Quare impedit is a Writ of a higher nature vide Regist fol 30. That if he against whom an Assise of Darrein presentment is brought brings a Quare impedit the Darrein presentment shall abate And the Statute of West 2. cap 5. saies it may be in the Election of one whether he will have an Assise of Darrein presentment or Quare impedit ergo he cannot have them both And if an Assise of Darrein presentment be brought and after that a Quare impedit for one avoidance the Assise shall abate for the Quare impedit is higher in his nature that is for the right and for the possession And Iustice Warburton vouched 10 Ed 3 Statham in Darrein presentment 3. If a man shall have a Quare impedit and also an Assise of Darrein presentment of one and the same Advowson pending at one and the same time the Darrein presentment shall abate and the Quare impedit shall stand because that it is of an higher nature By Hank and Hill it was urged that the Quare impedit was not depending untill he had appeared and it is not pleaded that he did appear but vide 2 Ed 4. fol that it is depending when it is returned And in a Quare impedit by the Earl of Bedford against the Bishop of Exeter Bedford versus the Bishop of Exeter it was adjudged Pasch 15 Jac. that he could not have two Quare impedits of one Church and for one avoidance And in this Case the whole Court agreed that the plea was good in abatement of the Writ and awarded that the Assise should abate Mich. 14 Jac. Rot. 3297. Shaw versus Taylor Wigorn. Replevin Where the Lord shal lose his Heriot when the Tenant have not any Beasts BRidget Shaw brought a Replevin against George Taylor for the taking of an Horse at Northfield in a place called Little falling the Defendant makes Cognizance as Bayliff to Sir Thomas Gervas because that one Richard Shaw was seised of an House and divers Lands of which the place where c. was parcell in his Demesn as of Fee and them held of the said Sir Thomas Gervas as of his Mannor of Northfield by Fealty and Rent of twenty pounds and rendring and paying after of every Tenant dying therof seised one Heriot and alledged Seisin and that he died seised And that for one Heriot so due and not delivered he distrained in the place in which c. as within the Fee The Plaintiff plead in Bar to the Avowry and takes the whole Tenure by protestation and for Plea saies that the said Richard Shaw at the time of his death had no Beasts wherof a Heriot might or could be rendred upon which the Defendant demurrs And upon the matter it seemed to the Court that if he had not any Beasts than the Lord must lose it for it is a casuall thing if he have it unlesse the Custom or Tenure be to have the best Beast or such a summ And if he had conveyed it away and so prevented him by any fraud then the Statute of 13 Eliz. had provided remedy but where there is nothing of any such thing which may be rendred at the time of the death there the King must lose his right And it was resolved by the Court that the Cognizance was not good for it ought to be certain i. e. for the best or two best Beasts and not generally for one Heroit and not shewing what thing in certain vide 3 Eliz Dyer 199. A Heriot is Quaedam prestatio c. and see there the Plea that there was no Beast at the time of his death And the opinion of the Court was also that the Bar to the Avowry was not good because the Issue is tendred to a thing not alledged for in the Avowry he made not mention of any beast but generally of one Heriot which is not certain And therfore it was awarded that the Plaintiff should recover and should have a return c. and Damages Pasch 14 Jac. Rot. 907. Norris versus Stapes Goldsborough Berk. RObert Norris and Thomas Trussells Wardenâ— and the Society of Weavers in the Burrough of Newbury Deâ— 1. By lawes in the County of Berkshire brought an Action of Debt for five pounds against John Stapes and Count that Queen Eliz. by her Letters Patents 14. of Octob An 44. at the request of the Inhabitants there using the Art of Weaving and to the intent that Corruption therin might be taken away and avoided c. did grant to all Weavers within the said Town to be a Body Politick by the name of the Wardens and Society c as before and to have perpetuall succession power to purchase to plead and to be impleaded And also power to make Laws and Ordinances agreeable to reason and not in any wise contrary and repugnant to the Laws and Statutes of the Realm for the well Government of the Society Apprentices and Servants and all using the Trade of weaving or selling of any thing therto belonging within the same Burrough and power to inflict punishment by Imprisonment Fine or Amercement upon the Offenders And granted further that the said Wardens and Society shall have the survey of those Lawes and the benefit of the Forfeitures And that no other person born within or without the said Burrough shal exercise the Art of weaving within the said Burrough if he shall not be admitted therto by the Wardens and Society And they recite the Act of 19 H 7. cap 7. of not putting of any Law or Ordinance in execution before it shall be allowed by the Lord Chancellor Treasurer and two chief Iustices or three of them or before both the Iustices of Assise in their Circuits upon pain of forfeiting forty pounds And shew that one Cuthbert Goodwin and John Hame Wardens of the said Society with the greater part of the said Society 1. Maij 45 Eliz. at the Guildhall within the said Burrough made divers Lawes and Ordinances for the Government of Weavers and that the 18 Novemb. 1 Jac. the said Orders were confirmed by the Lord Chancellor Lord Treasurer and Lord Anderson one of the chief Iustices among which one
was that none should use the Art of Weaving within the said Burrough or should have any Loom in his house or possession to have any benefit therby unlesse he had been an Apprentice to the said Art within the said Burrough for the space and term of seven years or had used the said Art within the said Burrough for five years before the making of the said Ordinance or shall be admitted therto by the Wardens and Society upon pain of forfeiture for every month twenty shillings And they further shew that after the said Ordinance made and confirmed the Defendant such a day before his inhabiting in the said Burrough and after such a day that one William Godwin being then Warden of the Weavers gave notice to the Defendant of the said Ordinance and that he afterwards c. during five months continued using the said Trade there and that he had two Looms in his possession where he had not been an Apprentice nor used the said Art for five years as before c. by which he forfeited to them five pounds viz for every month twenty shillings The Defendant pleaded Nil debet and after Verdict for the Plaintiffs it was moved by Arrest of Iudgment that this Ordinance was not reasonable and upon Arguments and Conference without arguments at the Bench it was agreed that the Ordinance was against Law and Iudgment against the Plaintiffs And Lord Hobart in Hil 15 Jac declared that we were all of opinion that Iudgment should be given against the Plaintiffs And he repeated the Case and the reasons of this Iudgment because the Ordinance was that none should use the Trade of Weaver nor have any Loom in the Town unlesse he had served c. before the making of this Ordinance so that all Apprentices which serve after shall be excluded unlesse they shall be admitted by them which is unreasonable And the Plaintiffs do not convey to themselves any good Title to be Wardens but as to the principall point of making such a restraining Ordinance the Court did not deliver any opinion Mich. 15 Jac. Rot. 2327. Dorrell versus Andrews SUsan Dorrell brought an action of Debt against Sir Eusebius Andrews London Debt The Visn of a Town within a Parish and John Cope for eighty five pounds and count upon a Lease made by her to the Defendants by Indenture by which she demised one Capitall Messuage Mannor or House called Causton within the Parish of Dunchurch in the County of Warwick and all the Stables c. in Causton aforesaid The Defendant protesting that the Rent was not behind for Plea saies that before any Rend arrear the Plaintiff entred into severall parts of the house and him dispossessed and upon that they were at issue and the Venice facias was de vicineto de Causton within the Parish of Dunchurch And it was moved in Arrest of Iudgment that the Venire facias should be of the Parish only and not of Causton for Causton is not alledged as a Town but the name of a house And the Court resolved that the Ven. fac was good for Causton is alledged as a Town in the Parish of Dunchurch and that by the addition and generall words in the Demise in which also there was an exception of part of the House as Mannor-house at Causton aforesaid so that the house is alledged to be in Causton in the Parish of Dunchurch if all be considered And if it appear that Causton is a Town or Village in the Parish of Dunchurch it will be without any doubt good And my Lord Hobart said that it had been divers times adjudged that on the Allegation of a thing done at the Town of Dale in the Parish of Sale that the Ven. fac of the Parish is good for though the Parish may contain more Towns yet it is not to be presumed but that it is of one Continent if the contrary appear not by the Record vide for that Pasch 9 Jac. between the Lord Candish and Sir George Savill c. There was another exception taken to the pleading Candish and Savill which I have not transcribed Trin. 14 Jac. Rot. 755 Swaine versus Holman RIchard Swaine Plaintiff Brownlow Dors. Wast against Thomas Holman and Elizabeth his Wife brought Wast and declared of a Lease made Anno the 8. of Eliz by the Queen under the Exchequer Seal to William Jolliff Thomas Jolliff and Elizabeth Jolliff for three lives and that William and Thomas were dead and convey the remainder to the King that now is and from him to the Plaintiff and that the Defendant Elizabeth took H. to Husband which did wast c. The Defendants confesse the Lease death and marriage as above c and say that the said Holman and Elizabeth his wife 2. Feb 40 Eliz. surrendred as well all their Estate of the said Elizabeth as the Letters Patents to the intent that the Queen should make a new Lease to the said Elizabeth and to Humphrey Holman and to Roger Holman for their lives successively which surrender the Queen accepted and the third of Febr next made such Demise and this they are ready to aver c. The Plaintiff replies and joyns Issue upon the Surrender and Demise in manner and form and the Issue was tried by a Venue which came from Westminster and the Iury found this speciall Verdict viz. the new Lease made the third of Felic in which it is recited that she had surrendred the Estate and the Letters Patents and the Queen as well in consideration of the surrender of the Letters Patents as in consideration of the payment of twenty Nobles made by the new Lease and the Iury found that the Demise made the third of Febr was with the consent of the said Thomas Holman and that the said Thomas Holman and Elizabeth his wife agreed therto and held in claiming by the said Demise And it was adjudged by the Lord Hobart and others the Iustices that the Plaintiff should have Iudgment First the consideration which procured the new Lease is the Surrender and the Surrender is not absolute but defeisable if the wife survive or if the Husband will disagree and therfore the Lord Hobart said that if Feme Lesses for years takes Husband and after the Feme takes a new Lease of the Queen for life this extinguisheth the term but if the Husband disagree then the Lease for yeers is revived And as in Barwicks Case the surrender of all the Estate where he had made a Lease for years before or where the Lease which he surrendred was void the new Lease made 〈◊〉 consideration therof is vein for the Surrender which is the consideration ought to be a good surrender of the former Estate And therfore if Lessee for life of the Blemise of the King surrender conditionally and the King reciting that he had surrendred all his Estate makes a new Lease this shall be intended an absolute Estate for a conditionall surrender within three years of
Court 12 E. a. granted a Rent-charge of two shillings out therof to John Milleton and Walter Milleton In Replevin one makes Conusance derive his Estate from one as Cosin and Heir and shews not how John Milleton dies and Walter survived and died seised and this Rent descended to one John Milleton of P. as Cosin and Heir to the aforesaid Walter and he was seised in Fee and one John Dinham was seised in Fee of one house and twenty acres of Land in Pensons and by Deed shewn in Court exchanged them with the said John Milleton for the said Rent and Walter de la Therne being seised of the Land out of which the Rent issued attorned and gave Seisin of the Rent to John Dinham wherby he was seised in Fee of the Rent and conveyed the Rent by three discents to this John Dinham for whom the Defendant makes Conuzance for ten shillings for five years arrear And the Plaintiff demurs generally upon the Conuzance And the cause was that it is not shewn how John Milleton is Cosin and Heir to Walter upon the discent First if it be good as this Case is viz. That he claimes not as Cosin and Heir but makes Title under him by conveyance afterwards Also because the Defendant makes Conuzance and is a stranger Secondly if it be but forme And this Case was argued at Bench briefly in Trin. 16. And I was of opinion because that this is the Conuzance of a Bayliff and it is a discent in one blood to which Dinham is a stranger and because that a good Issue might be taken therupon as it is alledged And if it had been a case of Bastardy the Iury might have tryell it therfore it is good by the Common Law and differs from a Formedon for there he which brings it is privy vide 41 Eliz. 13 14 in a Scire facias good without shewing how 33 H. 6. 34. Sir T. C. Case 27 H. 6. 2. 4 E. 3. 43. vide 19 E. 3. Quare impedit 58. And if it were not good by the Common Law yet it was but form and aided by the Statute of 27 Eliz cap. 5. vide in Doctor Leifeilds Case lib 10. fol 94. And Iustice Winch agreed with me but Warburton to the contrary and argued strongly that it was substance and was very materiall and he relied upon the Book in the 38 H 6. 17. and he put the cases of 11 H 6. 43. 8 H 6. 22. 2 H 2. and Wimbish and Talbois case Plowden There is debate and argued two against two and no Iudgment given because that it is not shewn Comment Cosin vide 2 H 5. 7. a good Issue there is no such Ancestor a generall Demurrer confesse not the matter as in Debt upon a Bill he plead payment and the Plaintiff demur that Demurrer doth not confesse the payment Lord Hobart would not speak of the Common Law but it seemed good to him by the Statute The Title of the Act is An Act for furthering of Justice Definitive Iustice and Interlocutery The Statute takes not away form but the intrappings and snares of form No place where the Obligation is made cannot be tried by them affirmatively Hough and Bamfields case matter and no form and so Dyer 319. But the point of Cousinage which comes by videlicet is form And if the case of Wimbish and Talbois had been at this day it should bee aided and Iudgment for the Defendant Sheriff ought to deliver the Moyety by meets and bounds IT was argued by the Court that upon an Elegit the Sheriff ought to deliver the Moyety by meets and bounds and if it be so that the Conuzor be Ioynt-tenant or Tenant in Common then it ought to be so specially alledged and contained in the return Pasch 16 Jac. Drury versus Fitch Case DRury an Attorney of this Court brought an action upon the case against Fitch one of the Serjeants of London for saying I arrest thee for Felony and after not guilty pleaded the Plaintiff was Non-suited Costs upon Non-suit where the Plaintiff hath no cause of action And now it was moved that no costs should be given to the Defendant because that the words will not beare action and therfore Iudgment shall be given Quod nil capiat per billam And they vouched one President in Grewstons case in Ban. Reg. vide that now by the last Statute costs shall be given to the Defendant in all cases where the Plaintiff should have costs if he recover but in such case where the Plaintiff if he recover shall not have costs the Defendant upon the Non-suit of the Plaintiff shall not have costs But it seemed to Lord Hobart that in this case the costs are for vexation and this is more vexation if he had no cause of action vide 29 H 8. fol 32. It is there resolved that an action lies for the costs notwithstanding a Writ of Error brought And the last day of this Term the Court was of opinion that the action lies for the words for it is more then these I charge thee with Felony and if the Action lies not yet the Defendant shall have costs for it was such an Action in which the Plaintiff ought to have costs if he recover Vpon motion in Court by the direction of Iustice Warburton who had caused a Iury to be drawn by reason of the slendernesse of the matter and for avoiding the charge of a speciall Verdict the Case was A Copyholder was a Lunatick and the Lord committed the custody of his Land to one which brought an Action of Trespasse Action brought by the Committee of a Lunatick which is a Copyholder and whether it ought to be brought by him or by the Lunatick was the question And the opinion of the Court was that the Committee was but as Bayliff and hath no Interest but for the profit and benefit of the Lunatick and is as his Servant and it is contrary to the nature of his Authority to have an Action in his own name for the interest and the Estate and all power of Suits is remaining in the Lunatick And it was ruled in this Court that a Lunatick shall have a Quare impedit in his own name vide Beverlies case Coke lib 4. the diversity between a Lunatick and an Ideot and H 8. Dyer fol 25. And though when Guardian in Socage as it was adjudged makes a Lease for years his Lessee shall have an Ejectione firmae yet there the Guardian hath the Interest and is accountable therfore But in this case the Committee hath no Interest but is as a Servant appointed by the Lord to keep the possession for him who is not able to keep it for himself Lord Hobart and the Court also agreed that the Lord of a Mannor hath not power to commit or dispose of the Copyhold of a Lunatick without speciall Custom no more then a man shall be Tenant by the Curtesie c. of a Copyhold
without Custom nor the Lord cannot commit during the Minority of an Infant Copyholder without Custom Hil. 15 Jac. Rot. 906. Smith versus Stafford Brownlow Suff. ANdrew Smith and Anne his Wife Case against Richard Stafford Executor of Jeremy Stafford in an Action upon the Case the Plaintiff counts that wheras there was Communication had of a Marriage between the said Anne when she was sole and the said Jeremy Where inter-marriage release a promise made by the Husband to the Wife before marriage the said Jeremy in consideration that the said Anne would take him to her husband promised that if after the Marriage the said Jeremy dyed living the said Anne he would leave the said Anne worth a hundred pounds and aver that she did marry the said Jeremy which died and did not leave her worth a hundred pounds And upon Non assumpsit the Iury found for the Plaintiff and in Arrest of Iudgment it was alledged that this intermarriage had extinguisht the action vide 11 H 7. 4 21 H. 7. 30. Coke 8. 136. there in Sir John Needhams case many cases are put vide Hoes case that a Release do not discharge Bail before Iudgment for it is contingent vide one Iudgment Hil 6. Jac. in the Kings Bench Rot 132. Thomas Belcher and Elizabeth his Wife Belcher and Hudson against Edmond Hudson an Action upon the case in consideration that the said Elizabeth at his request would take one Thomas Mason his familiar Friend to her Husband he assumed and promised that if the said Elizabeth survived the said Mason that he would pay yearly to her forty shillings for her maintenance and shews that therupon she did take the said Mason to her Husband and survived him and then married with the Plaintiff the Defendant pleads a Release from Mason of all Actions Demands c. and it was adjudged no sufficient release But Lord Hobart said that if he had released all promises that would have discharged the Defendant vide 4 Eliz Release of all Actions Suits Quarrels c. doth not release a Covenant before it be broken but otherwise of a release of all Covenants as it appears in Dyer 57. though the principall case was a release of all Covenants untill such a day and Covenants were broken before and not discharged for it being broken before there was no Covenant as to that Vide Lampets case Coke lib 10. 51. the reason of the release in Hoes case was because that it was contingent and uncertain and 17 Eliz a Lease to the Husband and Wife for life the Remainder to the Survivor of them for one and twenty years the Baron grant it over and survive yet it is void because it was contingent And the Lord Hobart said that the promise was released by the inter-marriage and so shall be in the case of an Obligation for Fortior est dispositio legis quam hominis and he held that strongly to be Law but Iustice Winch and Iustice Hutton held the contrary and that the Law will not work a release contrary to the intent of the parties and that the marriage which is the cause do not destroy that which it self creates Trin. 6 Jac. Jurden versus Stone Glocest EIectment upon a Lease made by Alice Remington of a Copyhold in South Corny Walter B. Copyholder in Fee married the said Alice And there was a Custom in the Mannor that the Wife shall have the Copyhold as of Franck-banck during her Widowhood Where a woman may enter in and bring an action tâ—â— beâ—â—â— Franck bank before admittance Si tam diu casta viveret and had used to challenge it and the Lord granted it as appears by divers admittances of women and this Wife after the death of her Husband came into Court and challenged her right of Franck-bank and prayed to be admitted and that the Steward refused and she made a Lease for one year to the Plaintiff and if he might bring this action by reason the woman was not admitted for it was agreed that no Fine was due to the Lord was the question And upon the Evidence it was resolved by the Court that this Estate ariseth out of the Estate of the Husband And as Lord Hobart said it budded forth of the first Estate and it seemed that where Tenant for life is admitted that shal be the admittance of him in remainder Also if the Free-hold of the Copyhold be granted over and the Husband dies there there cannot be any admittance and yet she may enter and in this case if any admittance had been necessary she had done all that she could do and that amounts to an admittance in Law to an Estate created by the Custom and by the act of God and Law A Tenant alieu and the Feoffee tender the services and gives notice the Lord refuse this is sufficient and the Lord shall be compelled to avow upon him Continuall claim amounts to an entry Pasch 16 Jac. Rot. 444. Blands Case Case GEorge Bland brought an Action upon the Case against A. B. the Defendant having some communication with one Eagle said that he was a troublesome fellow and he doubted not but to see him indicted at the next Assises for Barretry or Sheep-stealing as George Bland was Words for George Bland was indicted the last Assises for stealing of Sheep and it was not averred that he was not indicted but that he was of good fame It was moved in Arrest of Iudgment that it is not actionable and so was the opinion of the Court for it is not a direct affirmative vide the case of Steward against Bishop before fol. 1. And if one saies I suspect you for stealing my Horse And Iudgment was given for the Defendant Trin. 16 Jac. Darcy versus Askwith Brownlow Ebor. JOhn Lord Darcy of Ashton brought an action of Wast against Robert Askwith now Knight and John Marshall Wast and assigne the wast in Woods viz. In cutting down and selling two Oakes foure Ashes in a Close called Tisley Close two Okes in Parsons croft one Ash in Pinder croft and sixty one Oakes in Preston Lands Wast in cutting of wood to make Cole mines and in divers other Closes in Swillington and Preston The Defendant plead a Lease of the Mannor of Swillington to him for years and also of the Mines and justifie the shrowding of the Trees to make Punchons Poles and Stakes and other Vtensils in and about certain Pits called Cole-mines in one of the Closes without which the Defendants could noâ— dig and take Coles out of the said Pits and aver imployment about of the said Cole-mines justifie the cutting of other trees for the making of Instruments for the extracting of the water out of the said Pits and that without which they could not dig any Coles and they were necessary for the digging of Coles and for supporting the Pits and aver the Imployment And therupon the Plaintiff demurred And we all agreed
that the Plea is not good Harris argued for the Defendant for three reasons 1. Because by the Lease this was included vide 21 H 6. 61. grant of Conuzance c. gives power to make a Steward tempore E. 1. Fitz. 41. 2 E. 2. Bar 237. grant to fish in a Pond yet he cannot make a Trench 2. The Coles are the Inheritance and the bettering of them is the bettering of the Inheritance 3. For the profit of the Common-wealth 14 H 8. 18. 20 Eliz Dyer 361. Altams case Trench to make a Meadow the better is no wast vide 22 H 6. 6. digging of certain Loads of Gravell for the amending of the Land vide 12 H 4 5. And for telling this ought not to be answered any other way then by justifying of the Imployment and the Plaintiff may reply upon the sale if he will and the case is long debated 5 E 4. 10. vide Dyer 37. Malenders case And the last day of this Term the Lord Hobart declared that we were all of opinion that the Plea is not good for there though the Lease be of Mines and by vertue therof the Lessee might open new Mines as in Sanders case Coke lib 5. fol. 12. there it shall be intended of new Mines which in themselves is wast if it had not been by speciall words And the digging of a Mine is an impairing of the Inheritance and a great benefit to the Lesses and therfore if Lessee for years build a new house if he cut Trees off the same Lands for the making therof it is wast 17 E 2. Fit wast 118. And no more then one may make a Brick Kilne and burn Brick or a Lyme Kilne and burn Lyme with wood growing upon the ground and sell the Brick or Lyme no more may the Defendants in this case cut down wood for the making and supporting of these Mines for Coles which they sell vide 41 E 3. 17. And so Iudgment was given for the Plaintiff Edmonds Case MEmorand That at the Assises holden at Winchester in Lent 15 Jac. one William Edmonds was indicted of Burglary because that he Burglariter and feloniously did break the house of one Richard Heydon in the night at Ramsey Burglary and the Iury gave a speciall Verdict We find that Richard Heydon and Christian his Wife were both in Bed and at rest in an upper Chamber in the Mansion house of the said Richard Heydon and that the said William Edmonds then was and yet is the Servant and Apprentice of the said Richard and that he then lay in another Chamber of the said house remote from the Bed-chamber of his said Master and Dame and that there was a Door with a Latch at the Stairs foot of the said Bed-chamber of the said Heydon but none at the Stair-head being the entrance into the said Bed-chamber of the said Heyedon We find that the said William at the said time in the Indictment drew the Latch of the Stair-foot door and opened the said door being then latched and went up the Stairs and entred into the Bed-chamber of his said Master with an intent to murther the said Heydon and that he did then and there with an Hatchet with an intent to murther his said Master strike and grievously wound him and gave him fifteen wounds on the head and other parts of his body And if upon the whole matter c. And this speciall Verdict was shewn by the Lord chief Baron Tanfield unto all the Iudges of Serjeants Inne in Chancery Lane viz. Iustice Warburton Crook Baron Bromely Iustice Dodderidge Houghton Winch and Hutton And they all besides Winch which doubted agreed that it was Burglary and afterwards in the same Term at a meeting in Serjeants Inne in Fleetstreet it was shewn to Mountague Hobart and Denham which concurred Mich 16 Jac. Staffords Case FAlse Imprisonment was brought by Sir John Stafford the Defendant justifie Matter of Record tryed by the Country that Bristoll is an ancient City and that time wherof memory c. there hath been a Court holden there before the Sheriffs c. and justifie that there was a Plaint levied and Iudgment and that the now Plaintiff was taken in execution The Plaintiff replyed Quod non fuit aliqua querela levata according to the custom and requires this Quod inquiratur c. And it was tryed at Bristoll and found for the Plaintiff and damages twenty six pounds And it was moved in Arrest of Iudgment that this being matter of Record viz. the entry of the Plaint in a Court of Record it shall be tryed by the Record and not by the Country And it was adjudged that the tryall was good because that it is not meerly Record but whether it was according to the Custom And Non prosecutus est ullum breve is tryable by the Country Quaere if the King grant by Patent to hold plea under forty shillings if it be a Court of Record Sir Walter Rawleys Case MEmorand that on Friday the 23. of October upon conference between all the Iustices of England whether a privy Seal was sufficient it being directed to the Iustices of the Kings Bench to command them to award execution against Sir Walter Rawley which was attainted of Treason at Winchester Mich. 1 Jacobi How Prisoners which are attainted of Treason set at large shall be brought to execution before Commissioners of Oyer and Terminer or how they should proceed before execution be awarded It was resolved by all that he ought to be brought to Bar by Habeas Corpus to the Lieutenant of the Tower and then demanded if he could say any thing why execution should not be awarded for the proceedings against him being before Commissioners they are delivered only into the Court of Kings bench or they might have remained in a Bag or a Chest and no Roll made therof and so long time passing it is not a Legall course that he should be commanded by a privy Seal or great Seal to be executed without being demanded what he hath to say for he might have a pardon or he might say that he is not the same person As if one be Outlawed of Felony and taken he shall not be presently hanged but he shall be brought to Bar and so demanded c. And upon this resolution a privy Seal came to the Iustices of the Kings Bench commanding them to proceed against him according to Law And therupon a Habeas Corpus was awarded and Octob 28. he came to the Bar being brought by the Lievtenant and there he was demanded of whether he had any thing to say why c. and there he shewed that the King had imployed him as Generall of a Voyage and hath given him power De vita membris upon others And whether this did amount to a pardon or no he knew not The Attorney-generall said that the King pardoned no Treasons by any Implication but it ought to be by speciall words Then he said
be after the title devolved unto the Metropolitan And it seems also reason that he ought to admit though that the Title by Laps be accrued to the King for he claims it as supream Ordinary vide Dyer 277. quaere But in this case the Bishop which is the Defendant is bound by the Iudgement and the Writ is notwithstanding the claim of the Bishop that he admit the Clerk and the Bishop is but Servant and ought to execute the processe of the Court It was urged by Serjeant Henden one Canon Linwood fol. That if the Church be vacant when the Writ comes to the Bishop that he is bound to execute the Writ but if it be full then he certifies the Iustices And the Arch-bishop is sworn to the Canons and he vouched 22 H 6. 45. Coke lib 6. 49. and 52 Dyer 260. F.N.B. 47. Dyer 364. 14 H 7. 22. 34. H 6. 41. 9 E 3. Quare non admisit 18 E 4. 7. Trin. 16 Jac. Rot. 1999. Eire versus Bannester JOhn Eire brought an Ejectione firmae upon a Lease made by Sir Edward Kinaston against Andrew Bannester and Thomas Wenlock for Land in Norwood Challenge and after Not guilty the Plaintiff made surmiss of Kindred to the Sheriff Sir Thomas Owen to the Plaintiff the Defendant pleads that the Sheriff Non est de consanguinitate of the Plaintiff as he by his challenge supposed And because the Defendant denied the said Challenge John Eire calumnia illa non obstant prec est quod ven fac c. And at the Nisi prius the Defendants challenge the Array for consanguinity between the Sheriff and the Lessor viz. Sir Edward Kinaston and make this Averment that the Sheriff had Issue by Susan which was the Daughter of Judith the Wife of Sir Edward Kinaston and conclude it is a principall Challenge and therupon the Plaintiff demurred And it was returned upon the Postea and it seems that the Sheriff being admitted and allowed to be indifferent by the Defendants in the same Plea they which allow cannot have a Challenge to the Sheriff for the Defendants might by confession of the surmise of the Plaintiff to be true have had a Writ directed to the Coroners and although the entry is Calumnia illa non obstant that is the form of the Award and if he should be allowed otherwise afterwards to challenge the Array then it would be infinite As a man ought to alledge but one principall Challenge though he hath many so it shall be peremptory to the Defendant and when he allows the Sheriff indifferent that shall be taken to be for all causes precedent unlesse it be of latter time And so is the opinion of 20 E 4. 2. And if there be many Defendants if one challenge the Array that shall be peremptory for the others as it seems for the others ought when they challenge the Tales to shew cause presently of the Challenge for if it be quashed that shall also be against them vide Dyer 201. in Attaint vide 36 H. 6. 21. that where one challenge the Array which is affirmed the other Defendants after may challenge the Array of the Tales The second point is if it be a principall challenge or no by reason that the Lessor is not party to the Action vide 10 E 4. 12. 15 E. 4. 18. and 21 E. 4. 61. there it seems that where the Defendant justifies as Servant to I.S. and that the Land is his Free-hold it is a principall challenge that a Iuror is within the Distresse of John S. for the Title is to be tryed And now it was found by common experience that the Lessâ—e is but Servant common recoveries at this day are but as other common Conveyances But it seems that the Law is contrary and it is not averred that this is a Lease for trying the Title and as Iudges we take no notice therof but vide 3 H 7. 2. contrary to the 10 and 15 E 4. where the Challenge is to the Array because that the Sheriff was of Kindred to him whose Free-hold was in Issue and vide 9 H 7. 22. Cognizance as Bayliff to the Abbot of Ramsey Challenge to the Array because the Sheriff was within the Distresse of the Abbot and that was not a principall Challenge by Fineux Brian and Vavasor because that he was not party to the Writ vide this very Case Dyer 300. And upon argument at the Bar the Court was of opinion that it was no principall Challenge but ought to have concluded with the favour All agreed that a Surmise which is for prevention of delay ought to contain matter which is a principall Challenge for no triall shal be of such suggestion but by the deniall of the Defendant or Confession And by the opinion of Lord Hobart and Iustice Winch cest dedire n'est peremptory to the Defendant for his time of challenge is not till the Iury come to be sworn but I hold the contrary because that he might have confessed the Surmise and so have had time And I rely upon 20 E 4. 2. there in the end of the Case it is said that the Defendant by his deniall where he saies that the Sheriff is not favourable but indifferent there he shall never have a challenge for favour unlesse he shews cause of later time As to the second Point it is no principall Challenge because it might be that the Lessor had granted over the Reversion or that the Defendant might be found Not guilty And a principall Challenge ought to contain such matter which being so the Law adjudge favourable and in this very case two Presidents scil Iudgments more strong then this case Bedforne and Dandy Hil 44 Eliz Rot 1208. Bedforne against Dandy in an Ejectione firmae upon a Lease made by Sir John Digby after Not guilty pleaded a Surmise made of consanguinity between the Lessor and the Sheriff c. confessed and therupon a Venire facias to the Coroners and after the Challenge was adjudged insufficient and a Venire facias likewise to the Sheriff was ruled Craddock and Wenlock Trin 14 Jac. Rot. 2284. Craddock against Wenlock in an Ejectione firmae upon a Lease made by Sir Robert Cotton such Challenge and Award to the Coroners and tryed and adjudged a mis-tryall and a Venire facias awarded to the Sheriff and the mis-tryall is not aided by the Statute vide Coke lib 5. Bainhams case And so by the Iudgment of the Court this Challenge was insufficient and Warburton being then sick was of the same opinion as he told me vide 8 Eliz Dyer 281. Austen and Baker in Attaint vide 33 H. 6. 21. 3. Defendants one challenge the Array of the Principall and that being affirmed the other Defendants challenge the Tales Mich. 16 Jac. Easington versus Boucher Debt Severall Defendants in Debt upon a joynt Contract may plead severall pleaâ— EAsington brought an action of Debt upon a joynt Contract against Sir John
to the charges But to offer any particular summ is not necessary because they know not what summ is disbursed and that is to be assessed by the Commissioners And the words for the charge of the Commission is to be extended to all charges arising in suing forth the Commission and in execution and defence therof Also it was resolved that at any time before the distribution made they may come and pray to be joyned But after the four months passed and any distribution made though it be but of part then they come too late For by this means the distribution which is made and wherby some of the Creditors shall receive more shall be utterly avoided and another proportion made which was not the intent of the Statute Pasch 18 Jac. Mason versus Thompson Case AN action upon the case was brought for these words I charge thee with Felony for taking money forth from Iohn Spaci's Pocket and I will prove it Words Henden moved in Arrest of Iudgment that these words were not actionable First because that it is not any direct affirmative that he is a Felon and for that he vouched a case as he said adjudged in the Kings Bench Masters bear Witnesse that he is a Theef The second reason was because that the matter subsequent do not contains matter which must of necessity be Felony but stands indifferent For if it be not privily and secretly it is not Felony and it may be by way of sport or trespasse For as one said That he is a Theef and stole his Timber it is not actionable for it might be Timber cut or Timber growing so to say That he stole his Corn or his Apples or his Hope For in Mitiorem partem verba sunt accipienda And it seemed to the Lord Hobart that the first words viz. I charge thee with Felony are actionable for the Constable if he be there present ought to apprehend him therupon and it is a plain Affirmative I arrest thee of high Treason Iustice Winch prima facie held that the words were actionable and not qualified by the subsequent words as it should be if he had said For thou hast stoln my Apple Trees standing in my Orchard that could not be Felony but it is not so there for it may be Felony and ex causa dicendi it shall be taken Felony in these words for taking money c. Warburton and Hutton was of opinion that the Action lay not This Case was moved in Mich. 18 Jac. And then the opinion of the Court praeter Warburton qui haesitavit was that the Action did not lye Ideo memorand quod quetens nil capiat per breve Trin. 18 Jac. Hall versus Woollen JOhn Hall an Attorney of this Court Case Consideration of an Asâ—urâ—p sit brought an action upon the case against Woollen and declared that wheras the Defendant was possessed of an House and Land in Mekon Mowbray in the County of Leicester for one term of the Lease of Sir John Woodward And wheras one Webb was in communication of buying the said Lease of Woollen and Woollen could not sell it without the assent of Sir John W. The Defendant in consideration that the Plaintiff would procure licence of the said Sir John he promised to pay to him so much as he should disburse and deserve therfore And averred that he did procure a License and delivered it to the Defendant and disbursed such a summ and deserved for his labour such a summ and the Defendant upon the Count did demur And the question was whether that were a good consideration or no for it did not appear that there was any condition to restrain him from making an Assignment and if I promise that wheras I am obliged to A. if you will procure B. which is a stranger to make a Release therof to me I will pay you forty pounds though it be done at my instance no action lies for it is apparant that B. could not release the Obligation But it was adjudged that is a good consideration for it appears that there was privity between them and it may be that he had promised that he would not assign it without his licence And in good discretion it was convenient to have it also it was at his instance and for his satisfaction And it hath been adjudged if one promise forty pounds to another if he can procure the assent of the Mother of a woman though he may do it without such consent yet it is a good consideration Mich. 18 Jac. Clerk versus Wood. CLerk brought an action upon the case against one Wood Case alias Warren and count that he was seised of an house and twenty acres of land c in Thursfield and that he and all those whose Estate he hath have had a Common in seven acres in Thursfield And that he and all those c. have had one way leading through the said seven acres Ven. fac upon prescription for a way in divers Townâ— and from thence into one Common way leading to Buntingford and from Buntingford to Blakeley And that the Defendant had plowed and turned up the seven acres and estopped the way The Defendant pleaded not guilty and the Venire facias awarded de Tursfield And it was moved in Arrest of Iudgment by Serjeant Jones that it ought to be from all the Towns through which he claim his way for he ought to prove it in evidence viz. that he had a way or otherwise he is not endamnified But it was resolved that the tryall was good for Not guilty is properly a deniall of trespasse and disturbance and though he ought to prove title to the way yet it is sufficient if he prove title to the way by and through the seven acres upon evidence And yet if the Prescription had been traversed then he ought to prove all the way any the tryall shall be from every Town through which the way is pleaded to be extended quod vide 10 E. 4. fol. 10. where it was in two Counties and the Venire facias shall be from both and the tryall shall not be by Nisi prius vide the case between Reyner and Waterhouse supra Mich. 16 Jac. Rot. 2344. Lamb versus Thompson Debt A Condition not to be assisting to another hinders him not to bring a Writ of Error joyntly with him EDmund Lamb brought an action of Debt against Richard Thompson upon an Obligation of forty pounds the Condition whereof was If the Defendant shall not be assisting or any waies aiding unto Thomas Elme or any other person for the said Thomas Elme in any Actions Suits Vexations c. to be commenced and prosecuted against the said Plaintiff c. That then c. the Defendant pleaded Negative The Plaintiff reply that he such a day brought Trespasse against the said Thomas Elme and the now Defendant and had Iudgment and that the Defendant joyned with him in a Writ of Error in hinderance of the
are not Affirmative or Positive but a supposition only as if he had said Nowels case I will indite him for such a matter it was vouched to be adjudged 51 Eliz. in Nowels case that to say of an Attornaâ—â— That he was Cooped for forging Writs maintain an action And 14 Eliz. He is infected of the Robbery and he smelleth of the Robbary adjudged actionable In balls case There is never a Purse cut in Northamptonshire but Ball hath a part of it will not bear action But the Court would not declare their opinion Quia sub spe Concordiae Griggs Case GRigg which is the Examiner at Chester preferred there this Bill in the Chancery vocat the Exchequer Prohibition â—i Chester against one which inhabite within the same County and another which inhabite in London being executors to one to whom the said Grigg was indebted by Obligation which Obligation was put in suit in the Court of Common Pleas and there proceed to processe before the Bill exhibited and the Bill concern equity of an Agreement that the Testator had promised that one Robert Grigg should assign a lease of Tithes to the Plaintiff in consideration of his entry into the said Obligation and if he could not procure it that then the Obligation should not be prejudiciall to him and he which was distributing in Chester answered therto And an Order was made by Sir Thomas Ireland Vice-Chamberlain that Processe should be awarded to him which dwelleth in London And an Inquisition was granted to stay the proceedings at Common Law And afterwards upon the motion of Serjeant Hitcharâ— Sir Thomas Ireland was in Court and shew all that he could to maintain the Iurisdiction viz. That the Contract was made in the County Palatine and that the priviledge pursued the Plaintiff and ipse qui est reus non potest eligere c. Yet it was resembled to ancient Demesn and Guildable And by Lord Hobart he which inhabit at Doveâ— by this way may be inforced to come and answer to a Bill in Chester which would be infinite trouble and the matter is transitory And it was resolved that the Court of Chester had not power in this case but it belonged to the Chancery of England And a Prohibition was granted Hil. 20 Jac. ONe case was in the Kings Bench viz. Trespasse Baron and Feme brought in action of Trespasse Quare clausum fregit Trespasse by Baron and Feme for breaking the Close of the Baron for the Battery of the Wife and for Battery of the Feme the Defendant pleaded a License to enter into the Close made by the Baron and not guilty as to the Battery And the Court was moved in Arrest of Iudgment because the Husband and Writ could not ioyn for the weaking of the Close of the Baron the Writ shall abate for all But the Lord chief Iustice and Iustice Dodderidge were of opinion that the Plaintiff should have Iudgment And it seems that the Law is clear accordingly vide 9 E 4. 51. Trespasse by the Husband and Wife for the Battery of them both the Iury found so much for the Battery of the Husband and so much for the Battery of the Wife and so Damages assessed severally because the Wife could not soon with the Husband in an action for the Battery of the Husband for that part the Writ shall abate and for the Battery of the Wife they shall recover for for that they ought or joyn in an action vide 46 E 3. 3. Baron and Feme brought Trespasse for the Battery and Imprisonment of the Wife and the Writ was ad damnum ipsorum and yet good vide 9 H 7. in the case of Rescous and 22 E 4. 4. there is a good diversity when the Writ is falsified by the shewing of the party himself and when it is found by Verdict And Iustice Haughton and Iustice Chamberlain were of opinion that the Writ should abate for it is apparent that as to the Trespasse Quare clausum fregit the Wife had no cause of action But this case being debated at Serjeants Inn in Chancery Lane at the Table the Lord chief Baron was of opinion that Plaintiff should have Iudgment for that part and he held the Writ good in part and Reddenda singula singulie Meâ—enest issint as it seems no more then in the case of 9 E 4. for there the Writ shall avate for part And if an action of forgery of Deeds be brought against two for forging and publishing and found that one forged and the other published the Plaintiff shall have Iudgment Howell versus Auger Trespasse IN an action of Trespasse brought by Noy Howell against Auger for breaking of a house and five acres of Land in Fresham upon Non Culp pleaded the Iury gave a speciall Verdict Devise of a Fee after a Fee Robert Howell seised of the Land in Question and of other Land by his Will in writing devised this Land to Dorothy his Wife for life and devised this Land to Thomas Howell his younger Son to him and his Heirs in Fee under the Condition which shall be afterwards declared And the other Land was also devised to Dorothy for life and to the Plaintiff and his Heirs in Fee under the Condition hereafter limited If Dorothy died before the Legacies paid then he will that they shall be paid by Noy and Thomas his Sons portion-like out of the Houses and Lands given them And if either of my Sons dye before they enter or before the Legacies paid or before either of them enter Then I will that the longer liver shall enjoy both parts to him and his Heirs And if both dye before they enter then his Executors or one of them to pay the Legacies and to take the profits till they be paid and a year after and made Dorothy his Wife and Christopher Roys his Executors and died Dorothy entred the Plaintiff Noy by his Deed In 33 Eliz. in the life of Dorothy released to Thomas all his right c. with Warranty Release of Lands devised before they be vested Thomas by his Will devised the Land for which the action is brought to Agnes his Wife and died in the life of Dorothy and before Legacies paid Dorothy died and Agnes entred and took to Husband Henry Ayleyard who leased to the Defendant upon whom Noy entred and the Defendant re-entred And Si super totam Materiam c. And this Case was well argued at Bar in two Terms and the first question was If this Devise of a Fes after a Limitation be good or not much was said for it and they relyed upon a case which was adjudged in the Kings Bench between Pell and Brown of such a limitable Fee Pell and Brown And many Cases put that this operate as a future Devise Executory as well as one may by his Will Devise that if his Son and Heir dye before he marry or before that he come to the age of
font and twenty years that then I. S. shall have the Land and it shall be good vide Dyer 33. Coke lib 10.46 Lampets case But Tuesday the eleventh of February the Lord Hobart by our direction because that we were streightned of time and Howell was so importunate for Iustice that we could not argue delivered the opinion of the Court that Iudgment should be given for the Defendant And he declared that as to the point of a Fee-simple which he called the mounting of one Fee-simple upon another we now declared no opinion But we all without difficulty resolved that this release of Noy be it a Condition or not had discharged it And as to him it is an Interest used by the Devise but not executed untill it happen And therfore in Lampers case there the Release discharged it for there he had no Title executed but vested and commenced and so may have Noy Howell the Plaintiff in this case and it is not like to an Heir in the life of the Father for be is a stranger and he hath no Title at all and yet his Release with Warranty bars him and here this Release is accompanied with Warranty of which nothing was spoken Also as to Noy it is a Condition according to the words of the Will and therfore sans question that Noy had barred himself The Vacation after Hil. 20 Jac. MEmorand That on Munday the seventeenth of February at Serjeants Inn upon the assembly of all the Iustices to take consideration upon the Statute of 35 Eliz. cap. 1. for the Abjuration of Sectaries the Atturney-generall and Serjeant Crew being there Resolutions upon the Statute of Eliz. cap. 1. concerning Sectaries after the perusall of the Statute and the Continuances therof it was first upon debate considered whether this Statute was in force or discontinued and upon the perusall of the Proviso in the Statute of Subsidy and upon reasoning the matter these Points were resolved 1. If a Parliament be assembled and divers Orders made What shall be said a Session of Parliament and a Writ of Error brought and the Record delivered to the higher house and divers Bills agreed but no Bills signed That this is but a Convention and no Parliament or Session as it was An. 12 Jac. in which as it was affirmed by them which had seen the Roll it is entred that it is not any Session or Parliament because that no Bill was signed vide 33 H 6 Brook Parliament 86. every Session in which the King signes Bills is a Parliament 2. It was agreed that if divers Statutes be continued untill the next Parliament or next Session and there is a Parliament or a Session and nothing done therin as to continuance all the said Statutes are discontinued Beriatim Jones Chamberlain Hutton Denham Haughton Dodderidge Winch and Bromley declared their opinions that this Statute is discontinued And that the Statute of Subsidy is a Parliament and that every Parliament is a Session but not e converso for one Parliament may have divers Sessions as the Parliament 1 Jac had four and ended An 7 Jac. vide 33 H 6. Br. Parliament 86. And that this Proviso is not to any other purpose but to continue their proceedings in the same Estate as if this Act had not been made and if this Proviso had not been then this Statute had been discontinued by this act of Subsidy but when this ends and is determined then is the Session ended then it is a Session scilicet a Parliament which ought to be pleaded at the Parliament holden c. and all the Commissions of Subsidy are accordingly and the Proviso call it a Session Then this being done the Lord chief Baron did not deliver any opinion for he said that he had not considered the Statute and afterward it was desired that the Lords would deliver their opinions and therupon the Lord Hobart declared his opinion accordingly That it seemed to him that it was a Session and that it was not safe to meddle with such Law and that he would never refuse to declare his opinion with his Brethren After the Lord chiefe Iustice Ley made a long discourse concerning the purpose and intent of Parliament scilicet That it was not their purpose to destroy so good Lawes and therfore it was not any such Session as was within the intent of the preceding Parliament which was that these should determine when it is a Parliament or Session in which good Lawes are made And Doderidge said that it was fit to see the Commission and that that which hath been said was not to bind any one but every one spoke what then he was advised of and peradventure might change upon better consideration And afterwards upon Tuesday on an Assembly of the two chief Iustices the chief Baron Iustice Haughton Baron Denham Hutton Chamberlain and Jones the Attorney-generall brought the Commission de 12 El. June 1. and that had these words Pro eo quod nullus Regalis Assensus nec responsio per nos praestat fuit nullum Parliamentum nec aliqua Sessio Parliamenti lata aut tent fuit They have power to adjourn this Parliament thus begun And the Commission to dissolve this Parliament 38. Feb. An. 19 Jac. had the same words saving that he recite that he had given his Royall assent to an act of Subsidy by which was intended that it should not be a Session And upon view of the Commission the Lord chief Iustice moved that the King was mistaken in this that he had given power to dissolve this Parliament which had not any Session and if it be a Session then he had no power to dissolve it and then it is as it were a recesse and a Parliament cannot be discontinued or dissolved but by matter of Record and that by the King alone and if the Parliament yet continue then this Statute also continue during the Parliament by the Proviso but that would not serve for first it is against the intent of the King and against his Proclamation And also the case is truly put in the Commission as to the matter in fact and he is not mis-informed but mistaken in the Law and then the Commission for the dissolving is good semblable to the Lord Shandoi's Case and other Cases vide in Cholmleys case But because that all the Iudges were not at this Conference therfore it was deferred untill the next Term and in the interim the Grand Secretary and the Attorney-generall were to inform the King that the Statute is obscure and had not been put in ure and that we could not agree Mich. 20 Jac. Rot. 2805. Bawtry versus Skarlet Sussex JOhn Bawtry Clerk Case brought an action upon the case against Benjamen Skarlet one of the Attorneys of this Court by Bill and count In consideration that the Plaintiff will confesse Judgment the Attorney promise to defer the entry of the Judgment c. that wheras one William Carter Trin. 20 Jac.
and diversity of opinion which was between the Lord chief Justice and the Lord Hobart the now Lord Keeper and the Lords by an Order respited this matter as to the Fine of the Plaintiff and gave damages to the Defendant and referred it to the opinion of all the Justices And they all una voce except Iustice Harvey who insisted upon the damages given to the party that they should not be pardoned agreed that the Contempt and Offence for the scandalous Bill exhibited was pardoned and not within the Exception for it cannot be intended that the Plaintiff exhibited a Bill upon which he should not be fined but this exception was of that which was laid to the charge of the Defendant and the Defendant may have his remedy at Common Law and the Contempt which is accidentall to the Offence is pardoned and by consequence the Fine Pasch 2 Car. Crane versus Crampton Case CRane brought an action upon the case sur assumpsit against Crampton and count that in consideration of moneys paid the Defendant did assume to give to the Plaintiff a Ruff-band at the day of his marriage And he alledged in facto that such a day and at such a place he was married Notice and that the Defendant notwithstanding that he was requested such a day and a year after the said marriage had not given to the Plaintiff the said Ruff And upon Non assumpsit it was found for the Plaintiff and moved in Arrest of Iudgment that the Plaintiff had not alledged any notice given to the Defendant of his marriage And by the opinion of me and my two Brothers Harvey and Yelverton Iudgment was given for the Plaintiff For the Defendant ought to take notice therof at his perill unlesse he had provided to deliver the Ruff after marriage and after notice therof for if he ought to have notice no place being agreed upon where it shall be given then he should be compelled to enquire and to find him and give notice and paradventure he could never give him notice Also it is agreed if one be obliged to pay to another twenty pounds within three months after he come from Rome there shall no notice be given of his return but the Obligor ought to take notice at his perill And if it were with a Condition that I. S. that is not party to the Obligation shall do such a thing there shall not be notice And this case of an Obligation is more strong for there is a penalty and if it were to pay ten pounds when a Fair shall be at Dale there he ought to take notice And they agreed the case of 8 E 4. fol. _____ an Obligation to perform an Arbitrement there no notice is necessary for it is the act of a third person And if any notice be requisite the Request imply it as it was adjudged in the Kings Bench between Hodges and Baldwin Hodges and Baldwins case But my Brother Crook seemed to be of a contrary opinion for when the duty arise upon the notice there notice ought to be Iudgment pro Querente Laicon versus Barnard Lincoln LAicon Plaintiff against Barnard one of the Attorneys of this Court Case for Trover and Conversion of a hundred Sheep the Defendant said that he brought Debt in the County Court of Lincoln Recovery in trespass for taking of goods is no baâ— to an action upon the case sur trover against one Hacliff for two hundred and eighty pounds upon an Obligation by Iustices and recovered and that these Sheep were delivered to him in Execution as the Sheep of the said Hacliff And that afterwards and before this action the Plaintiff brought an action of Trespasse against the now Defendant for taking of these Sheep Quare caepit abduxit And it was found for the Plaintiff and Damages to two pence And averred that they were the same Sheep and the Plaintiff replyed that the Damages found by the Iury were only for the taking and chasing and not for the value And that this Action was for another Trespasse wherupon the Defendant demurred and it was adjudged for the Plaintiff for for any thing that appears which the Defendant hath confessed upon his Demurrer it is not for the same Trespasse Also the Damages of two pence cannot be given for the value of the Sheep Also the Plaintiff when a Trespasse is done to him may retake his Goods and yet he shall have an action of Trespasse for the taking of them And every taking viz. abduxit import a chasing and no man will say that by the recovery in Trespasse when the Plaintiff had his Goods that therby the Defendant shall have the property But it is true that if the Plaintiff recover the value therby he waves the property and by this way the Defendant shall have the property vide 2 R. 3. 14. 4 H 7. 5. 6 H 7. 8. and Iudgment for the Plaintiff Yelverton at first baesitavit but afterwards agreed Pasch 2 Car. Wades Case AN action upon the case was brought by a Feme Case as Administratrir against the Lady Wade Executrix of Sir William Wade Non assumpsit was pleaded the Venire facias was well but the Hab Corp. Nisi pr. was entred the Plaintiff Where the Nisi prius shall be amended c. and the Defendant Executrix of Sir H Wade c. And it was amended by the Court and there was the difference taken that when the Nisi prius is so mistaken that if it should be amended the Iury should be prejudiced viz. that it may falsifie their Verdict then it shall not be amended but in this case it is but the Writ by which the Iury is warned to appear And the authority of the Iustice of Nisi prius is not by that but by the Juras which was well and as it ought to be Also they have their Authority by the Statute of Westm 2. vide Dyet 106. In Wootons Case there the Jurat was well and omitted in the Nisi prius Anthony Coke Also the Issue was between Wooton and Cooke and Temple where Temple had confessed the action vide there that many omissions of the Record of Nisi prius are to be amended Brown was of the contrary opinion to Walsh Weston and Dyer Trin. 2 Car. Farrington versus Arrundell Entred Hil. 22 Jac. Rot. 4462. Debt AN action of Debt was brought by Lionell Farrington Qui tam pro se quam pro Domino Rege Debt upon a penall Statute is not gone by the death of the King c. against Thomas Arrundell upon the Statute of 23 Eliz. for not coming to Church and the Defendant demurred upon the Count And then King James died And if this action be abated or not by the death of the King was the Question Vide the Statute of the 1 E. 6. cap. 7. vide Coke lib 7. fol 30. And concerning this was diversity of opinion in the Common Bench for my Brother
Yelverton and I were opinion that the Debt is gone for it is at the suit of the King and Iudgment is given for the King And there shall be an answer to the King And we relyed upon the cases vouched by the Lord Coke but Iustice Harvey and Crook to the contrary And upon conference with all the Iustices of Serjeants Inne it was resolved that this action was at the suit of the party for he might be Non-suited vide 25 H 8. Br. Non-suit that the Informer may be Non-suited vide 6 E. 2. Fitz Non-suit 13. when the Iury come again to deliver their Verdict the King cannot discharge them and be Non-suited and the King cannot discharge this action And his Attorney reply not as in an Information Clotworthy versus Clotworthy Amendments Debt SImon Clotworthy brought an action of Debt against John C. Cosin and Heir of Bartholmew C. And the Imparlance Roll is Quod cum praedictus B. cujus consanguineus heres idem Johannes est viz. filius Johannis Clotworthy fratris praedicti B. C. And upon the Plea Roll upon which Iudgment is given this space was perfected and Iudgment for the Plaintiff and now the Defendant brought a Writ of Error and it was moved to be amended And if the Imparlance Roll shall be amended which is the foundation of the subsequent Rolls is the question For it is commonly holden that the Plea Roll shall he amended by the Imparlance but not e converso Hil. 18 Jac. Rot. 67â— Walker versus Worsley Amendments WAlker brought an action of Debt against Worsley Debt as Son and Heir of Thomas W. in the Imparlance Roll which was entred Mich 18 Jac Rot 576. the words which bind the Heir were omitted viz. Ad quam quidem solutionem obligasset se Heredes suos but they were in the Plea Roll And after Iudgment that was assigned for Error in the Kings Bench and it was amended in the Common Bench by the Court vide there that it was by the fault and mis-prision of the Clerk who had the Obligation and so amendable by the Statute of 8 H 6. cap 15. 1. Hil. 9 Jac. Rot. 516. Govard versus Dennet GOvard against Dennet and Iudgment and the name of the Attorney viz. Henry was omitted in the Imparlance Roll and it was in the Plea Roll Henry and after Error brought it was amended Mich. 16 Jac. Rot. 581. Arrowsmith's Case THe Imparlance Roll Trin 16 Jac Rot 1727. Debt for three hundred pounds against Arrowsmith for part sur emisset and the other part sur in simul computasset And in the Imparlance Roll both parcells did not amount to three hundred pounds but wanted six pounds therof and after Error brought it was amended Pasch 12 Jac. Rot. 420. Godhow versus Bennet REplevin by Godhow against Bennet divers spaces in the Imparlance Roll were supplyed in the Plea Roll after Verdict Hil. 12 Jac. Rot. 420. Parker versus Parker THe Imparlance Roll was Mich 12 Jac Rot 547. Parker against Parker in Trover and Conversion the Imparlance Roll wanted the day and year of the possession and conversion but the Issue Roll was after the Verdict and motion in Arrest of Iudgment amended Mich. 2 Car. Crocker versus Kelsey JOhn Canterson and Agnes his Wife Tenants in speciall tail had Issue a Son Lease made by Feme in speciall tail viz. John and John the Father died John the Son levied a Fine with Proclamations to the use of himself in Fee Agnes leased to John Herring and Margaret his Wife Lessors to the Plaintiff for one and twenty years rendring Rent c. by vertue wherof they entred Agnes died John the Son entred and afterward the said John Herring and Margaret his Wife entred And the said John the Son made his Will in writing and by that devised the Land to Kelsey the Defendant and another in Fee and died John Herring and Margaret leased to Crocker the Plaintiff who entred and being ousted by Kelsey brought Ejectione firmae And this speciall Verdict being found Iudgment was given for the Plaintiff and now affirmed upon Error brought in the Exchequer Chamber Mich. 2 Car. Franklin versus Bradell FRanklin a Woman servant brought an action upon the case upon a promise against John Bradell Consideration in an Assumpsit ex post facto And count that wheras she had served the Defendant and his Wife and done to them loyall service the Defendant after the death of his Wife in consideration of the service which the Plaintiff had done to the Defendant and his Wife promised to pay her thirteen shillings four pence upon request and alledged request and non-payment And after Verdict for the Plaintiff it was moved in Arrest of Iudgment upon the Book of 13 Eliz. Dyer that this is no sufficient consideration because that it is not alledged that the Plaintiff at the request of the Defendant had served him Also it was not sufficient because that it was done after the service performed And it was answered that it was a good consideration and that the service was to the benefit of the Defendant And therfore in consideration that the Plaintiff had married the Daughter of the Defendant he promise to pay twenty pounds it is a good consideration and so in consideration that you have been my surely to such a man for such a Debt I promise to save you harmlesse And in consideration that the Plaintiff was Baile for the Defendant he promised to give him a Horse this is good And in consideration that I.S. being a Carpenter had well built my house I promise to give him five pounds And Iudgment for the Plaintiff Hil. 2 Car. Hearne versus Allen. Entred 22 Jac Rot 1875. Oxford 1. RIchard Hearne brought an Ejectione firmae against John Allen Ejectione firmae for two acres of Land in Langham upon a Lease made by Anne Keene which was the Wife of Edward Keene and upon Not guilty pleaded a speciall Verdict was found Richard Keene was seised of an house in Chippin-norton Devise and of two acres of Land there in Fee and of two acres of Meadow in Langham in Fee used with the said Messuage which were holden in Socage And by his Will in writing dated the 20. May 30 Eliz. he devised the said house Cuni omnibus singulis ad inde pertinentibus vel aliquo modo spectantibus to Tho. K. and his Heirs for ever And for want of Heirs of him the said Thomas then to one Anne K. the Daughter of the Devisor and her Heirs for ever And for default c. then to Iohn K. his Cosin and his Heirs for ever And by the same Will devised his Goods and all his Lands to Eliz. his Wife during her Widow-hood and died Elizabeth his Wife entred Thomas the Son entred upon the Wife and disseised her and having enfeoffed one Edward K. in Fee died and Tho. K. also died without Issue Edward K. by his Will devised
use of the said Robert and Isaac and their Heirs for ever by force therof and of the Statute 27 H 8. they were seised of the said Rent in Fee and after the said Robert died and Isaac survived and is yet seised Per jus Accrescendi and for Rent arrear c. and for the said forfeiture of forty shillings they avow wherupon the Plaintiff demur And upon Conference between the Iudges they all agreed that by this Fine which granted to Brook and Jermy and the Heirs of Brook to the use of Brook and Jermy and their Heirs that they were in by the Statute of 27 H 8. and were Ioyn-tenants of the Rent for otherwise there would be such a Fraction of the Estato that Brook should be in by the Common Law and Jermy by the Statute and that is not according to the Statute And it appears that the use was limited by the Fine it self and not by any Indenture And the principall reason is upon the Statute of 27 H 8. which is where two or three are seised to the use of one or two of them Cestui que uâ—e shall be adjudged to have such Estate in possession as they have in use Iudgment pro Defendent Memorand That in this Term a motion was made for the filing of a Writ of Entry in a Common Recovery suffered by Sir John Smith upon a Purchase and all was well done and the Writ made and sealed Filing of a Writ of Entry many Termes after but by the negligence of the Attorney it was not filed and it was Unanimo assensu resolved that it should be filed and that after the death of Sir John Smith for it is but to perfect a Common Recovery which is a Common Conveyance And this was denied in the case of one Allonson for there Error was brought and Diminution alledged and a Certificate that there was no Writ by the Custos brevium And it is ordinary to file these Writs at any time within a year without motion Mich. 8 Car. Harbert versus Angell CHarles Harbert Plaintiff against Angell Case Words in an action upon the case of words which were Thou art a Theef and hast cousened my Cosin Baldwin of his Land And after Verdict for the Plaintiff it was moved in Arrest of Iudgment that the words would not maintain action And at the first Iustice Crawley and Iustice Vernon were of opinion that the former part of the words were actionable and that they were not extenuated by the subsequent words but they agreed if it had been for thou hast robbed c. it would be otherwise And the Lord Heath and Iustice Hutton were of a contrary opinion and that the words And and For are in this case to have one effect and declare what Theef he intended And they relyed on Birtridges case Coke lib 4. And upon this diversity of opinion the Lord Heath conferred with the Iustices of Serjeants Inn in Fleetstreet and we with the Lord Richardson and they all agreed that the subsequent words explained his intent and meaning viz. the Robbery and cousening of the Land And Verba sunt accipienda in mitiori sensu As to say Thou hast stoln my Corn it shall be intended Com growing so in Arrowes case Arrowes case 19 Jac. Thou art a Theef and hast stoln ten Cart-loads of my Furzes adjudged not actionable for it shall be intended of Furzes growing Quaerens nil capiat per breve Ram versus Lamley Norff. RAm brought an action upon the case against Lamley and declared That wheras he was Bonus legalis homo and free a suspitione feloniae the Defendant maliciously want to the Major of Linn and requested a Warrant of him being a Iustice of Peace against the Plaintiff for stealing his Ropes The Major said to him Be advised and look what you do the Defendant said to the Major Sir Words I will charge him with flat Felony for stealing my Ropes from my Shop Quorum quidem verborum c. And after Not guilty pleaded and Verdict for the Plaintiff Hitcham moved in Arrest of Iudgment And the Court unanimously resolved that these words being spoken to the Iustice of Peace when he came for his Warrant which was lawfull would not maintain an action for if they should no other would come to a Iustice to make complaint and to inform him of any Felony Quaerens nil capiat per breve Mich. 8 Car. Lamb versus West Trin. 8 Car. Rot. 333. SIr John Lamb Knight brought Replevin against Thomas West and count Replevin that the Defendant took his Beasts at Blisworth in quodam loco vocat Thorny Close The Defendant avowed as Bayliff to Sir William Sheapherd and derived Title by a Lease to Michael West for ninety years if he and Thomas West the Defendant Demand of Rent and one Hutton West should so long live And the said Michael 19. Aprilis An 20 Jac. granted a Rent-charge of ten pounds per annum to the said William Shepheard and his Executors out of the place in which c. for the residue of his Tearm to be paid at the house of Thomas West in S. And the said Mich. granted that if the Rent he arrear by eight and twenty daies being lawfully demanded at the said house he should forfeit twenty shillings for every day that it should he arrear and if it be arrear by six months being lawfully demanded at the said house then he might distrain for that and the Nomine poenae And for Rent arrear by a year after demand due c. he makes Conuzance And therupon the Plaintiff demurred generalls And after many Arguments at Bar the Iustices delivered shortly their opinions severally and all argued that it is a Rent-charge and then a Distresse is incident to a Rent-charge which is in its creation a Rent-charge as well as if one makes a Lease for life or years rendring Rent and if it be lawfully demanded then it shall be lawfull to distrain for it None will deny but that he may distrain for this Rent without any demand And the diversity is between a Penalty and a Rent for if the Avowry had been for any part of the Nomine poenae then without actuall demand at the day he could not have distrained therfore vide Maunds case Coke lib 7. fol 28. And all agreed that when a Distresse is for Homage if it be once tendred and refused he cannot distrain without demand vide Litt 34. 21 E 4. 6. 16 17. 7. E 4. 4. That where a Rent is reserved upon a Lease and an Obligation to pay it yet that alters not the nature of the Rent 22 H 6. a good case Rent is reserved upon a Lease and an Obligation to perform Covenants that extends not to the Rent reserved but if it be to pay the Rent then it shall be demanded there it is said that if Rent be tendred and refused the Lord or Lessor may distrain without demand It was agreed that
if Rent he reserved at the time of the Distresse and it be refused and a Distresse taken that is Tortious 30 Ass 36. 20 H 6. 31. 48 E 3. 9. 2 H 6. 4. And in this case it was said that Reddenda singula singulis that the demand shall be used when the Penalty of the Rent comes in question and not for the Rent And though it be reserved payable at another place thal changeth not the Rent but it is issuable out of the Land and distrainable upon the Lands And lastly it hath been divers times adjudged that the Rent is payable upon the Land 1 Jac Rot 1818. Nich and Langford Skinner and Amery Borman and Bower In Replevin between Nich and Langford Trin 16 Jac. Rot. 954. Between Skinner and Amery vide before between Crawley and Kingswell Trin 3 Car Rot 2865. Rent reserved payable out of the Land And although that the Iudgment is by confession after demurrer yet it was for the reason afore recited Iudgment for the Defendant The Lord Audley's Case Wilts JUratores pro Domino rege super sacramentum suum present Quod Martinus Dominus Audley nuper de Fountell Gifford in Comitatu Wilts Aegideus Broadway de Fountell Gifford praedict in Comitatu praedicto generosus timorem Dei prae oculis suis non habentes Indictment for Rape sed Instigatione Diabolica moti seducti vicessimo die Junii Anno regni Domini nostri Caroli dei Gratia Angliae Scotiae Franciae Hiberniae fidei defensoris sexto Apud Fountell Gifford praedict Comitatu praedicto vi armis c. in super Annam Dominam Audley Uxorem praefati Domini Martini Audley in pace Dei dicti Domini Regis ibidem Existent insult fecerunt Et praedictus Aegidius Br. praedictam Annam Dominam Audley vi armis contra voluntatem ipsius Annae ad tunc ibidem violenter felonicae rapuit ac ipsam Annam ad tunc ibidem contra voluntatem suam violenter felonice carnaliter cognovit contra pacem Domini Regis nunc coron dignitat suas contra formam statuti in hujusmodi casu edit provis Et ultim Juratores praedicti dicunt super sacramentum suum praedict Quod praedictus Martinus Dominus Audley praedicto vicesimo die Junii An. sexto supradicto Apud Fountell Glifford praedictam in Comitatu praedicto felonice fuit presens auxilians Confortans abettans procurans â—adjuvans manutenens praedictum Egidium Br. ad feloniam praedictum in forma praedicta felonice faciend perpetrand contra pacem dicti Domini Regis nunc Coronam dignitatem suas ac contra formam statuti praedicti Wilts IUratores pro Domino Rege super sacramentum suum present Quod Martinus Dominus Audley nuper de Fountell Gifford in Comitatu Wilts Deum prae oculis non habens nec naturae ordinem respiciens Indictment for Buggery sed instigatione Diabolica motus seductus primo die Junii An. Regni Domini nostri Caroli c. sexto Apud Fountell Gifford praedictam in dicto Comitatu Wilts in domo Mansionali ejusdem Martini Domini Audley ibidem vi armis in quendam Florence Fitz-Patrick Yeoman insult fecit cum eodem Florente F. ad tunc ibidem nequit Diabolice felonice contra naturam rem veneream habuit ipsumque F. ad tunc ibidem carnaliter cognovit peccatumque illud Sodomiticum detestabile abominandum Anglice vocat Buggery inter Christianos non nominandum ad tunc ibidem cum eodem Florence F. nequit Diabolice felonice contra naturam Commisit perpetravit in magnam Dei Omnipotentis displicentiam ac totius humani generis dedecus ac contra pacem dicti Domini Regis nunc Coronam dignitatem suâ—s contra formam statuti in hujusmodi casu edit provis The like Indictment for the same Offence with the same person 10 June the same year at new Sarum in the Mansion house of the said Martin c. Memorand That these Indictments were sound 6 April An. 7 Car. at new Sarum by vertue of a Commission before Edward Lord Georges Nich. Hide Knight chief Iustice ad placita c. Thomas Richardson chief Iustice de Banco John Denham Knight one of the Barons c. Edward Hungerford Knight Walter Vaughan Knight Laurence Hide Knight Thomas Fanshaw Knight by Letters Patents Ipsius Domini Regis pro eis quibuscunque tribus vel pluribus eorum inde Confect ad Inquirendum c. Memorand That the 25. day of April An. 7 Car. A Commission was made for the Arraignment of the said Lord Audley upon the said severall Indictments by his Peers in which the Lord Coventry Lord Keeper of the Great Seal was made high Steward And the Peers were in number twenty seven And he pleaded Not guilty And one question was propounded to the Iudges which did attend viz. The Lord chief Iustice of the Kings Bench the Lord chief Iustice of the Common Pleas the Lord chief Baron Baron Denham Iustice Jones Iustice Whitlock Iustice Harvey and Iustice Crook If the Wife might be produced as a Witnesse against her Husband Where a Wife may give Evidence against her Huâ—band And it was resolved that in case of a common person between party and party she could not according to the opinion in Cokes first Institutes fol 6. but between the King and the party upon an Indictment she may although it concerns the Feme her self as she may have the Peace against her Husband Buggary sans Penetration Also it was reported to the Lords by the Lord chief Iustice when they were demanded whether this matter of Fact being as it was proved that Pollution and using of a man upon his Belly Sodomitically without penetration was Buggery by the Statute of 25 H 8. the Lord Richardson was of a contrary opinion upon the Conference yet his opinion was involved in the generall But as he said to me their opinions we delivered only upon this case and upon these examinations if the Lords gave credit to the matter in fact that it was Buggery but they gave not a generall opinion that may be a rule in other cases but upon the foulnesse and abominablenesse of this Fact And afterwards the Lords were not unanimously resolved that it was Buggery but this Point was resolved that they ought to believe and give credit to the Law as the Iudges had declared it And it seems that they could not give a speciall Verdict upon this tryall for it never was seen Also the Commission determines after Iudgment given And the Staff of the high Steward shall be broken And after long debate they seriatim laying their hands upon their hearts as the Mannor is said that he was guilty of Rape beside the Lord North. And for the Buggaries twelve of the Lords acquitted him and fifteen found him guilty and so he had Iudgment And at
shall be indicted shall not have Councell And the Attorney Generall was commanded to report our opinion to the King And this hapned to be demanded upon the generall inconvenience that might after ensue in the Case of the Earl of Bristoll to whom the King had allowed Councell Mich. 3 Car. MEmorand That the fifth of November at Serjeants Inne in Fleet-street there assembled the Lord Hide Lord Richardson Lord Walter Iustice Doderidge Baron Denham Iustice Hutton Iustice Jones Resolves concerning Souldiers Iustice Whitlock Iustice Harvey Iustice Crook Iustice Yelverton and Baron Trevor to consider of a Case which was propounded which was One receives Presse-money to serve the King in his Wars and is in the Kings Wages and with others is delivered to a Conductor to be brought to the Sea-side and with-draweth himself and runneth away without license The Question was if it were Felony And time being given before to advise concerning it all agreed besides Yelverton and my self that it was Felony And the sole question is if a Conductor be a Captain within the 7 H 7. cap 1. and the 3 H 8. cap 5. And they said that it is not necessary that he should be such a Captain as is to lead and command them in the War or that hath skill to instruct But such as hath the leading of them by agreement between the Deputy Lievtenants and them and that ought to provide for the Billeting of them and to carry them to the place of Randesvous And one part of a Captain is to conduct although that Conduxit be properly to hire a Souldier yet this name Conductor with whom it is so agreed by Indenture to conduct the Souldiers is a Captain within the intent of those Statutes and if it should not be so these Statutes which are for the defence of the Realm shall be of little force But it was agreed by them that if these Conductors which are so called of late times be hired to carry them but to one place and there another Conductor to receive them this is not within the Statute And it ought to be such a Conductor that can give license upon just cause to proceed It was said that they used to send Captains into the Country but then they were so chargable to the Country and full of disorder that upon complaint of the Iustices of Peace about 43 Eliz. this course was invented viz. That the Deputy Lievtenants should provide for them that were pressed for Coats and Conduct and they sent their Souldiers to a place appointed to be delivered to certain persons whom the Queen appointed to receive them And it was said that though this Case as it is propounded might be cleer yet there are many Circumstances which ought to be proved and that are loft to the discretion of them before that he should be tryed It was unanimously agreed that if one takes Presse-money and when he should be delivered over he withdraw himself that is not Felony although he is hired and retained to serve But my Brother Yelverton I were of opinion that this new name newly invented is not Captain within these penall Statutes which ought to be taken strictly vide Plowden 86. that penalties which concern life shall not be taken by equity but if they be within the words of the Statute then they shall As to kill his Mistresse is within the words for Mistresse is Master Another reason was that the Statutes provide punishment for Captains which want of their number or which pay not their Souldiers within six daies after they have received their pay upon pain of forfeiting all their Goods And the Statute did not intend other Captains in this point then was in the former and latter part therof But admitting that a Conductor is such a one to whom the Souldiers are delivered by Indenture with all Covenants usuall viz. To pay to them their Wages and to convey them to their appointed place and that he may give license to depart yet they agreed that it is the better and clearer way that they should be made Captains and so named in the Indentures for the King may change the Captain at his pleasure and then it should be no question It was agreed that 7 H 7. cap 1. extends only to them who are retained and pressed to serve the King upon the Sea or upon the Land beyond the Sea And the Statute of 3 H 8. cap 5. adds only the Land here And the Statute makes departure without license from the Captain Felony and the Statute 3 H 8. without license from the Lievtenant And the Statute of 7 H 7. makes the tryall to be in the County where they shall be taken before the Iustices of the Shire as they may try other Felonies within their Commission The Statute of 3 H 8. makes their tryall before the Iustices of the County where they are taken and this being a new Felony and made tryable against the Common Law which appoint tryals by Iurors of the County where the Fact is committed and appoint a speciall Iudge viz. Iustices of Peace that is only tryable before them and not before Commissioners of Oyer and Terminer who cannot try any thing but that which is done in the same County But this if all be not done in that County where they are taken makes it tryable only before the Iustices of Peace of the County where they are taken In this point all were not resolved but required longer-time vide 2 Inst 56. Sir Richard Champions Case A Writ of Covenant is prosecuted Jan 23. returnable Oct. Purisicat A Fine of Oct. Puris where the Caption was Feb. 14. 1. The Dedimus potestatem is tested 23 Jan the Iudge certifie the Concord takes Febr. 14. which is two daies after the Term at which time the Writ of Covenant is not depending the Fine is haec est finalis Concordia facta in Oct. Purif And after it is recorded in 15 Pasch and yet adjudged a good Fine vide the Statute of 23 Eliz. 3. Dyer 220. b. Carels Case Mich. 4 Car. Jones versus Powell JOhn Jones Plaintiff against James Powell Defendant in an action â—â— on the Case for a Nusance count That the Plaintiff 10. August 1 Caroli was and is and for forty years last past hath been possessed for divers years yet during of a Messuage Nusans 1. in which he and his family did by the time aforesaid dwell And by all that time hath been Register to the Bishop of Gloc. and kept his Office there that the said Defendant the tenth day of August and ever since hath held in possession another house over against the Plaintiffs And they being so possessed the Defendant the said 10. of Aug. erected a Brew-house and a Privy in the said house and burned Sea-coles in the said Brew-house so that by the Smoke stench and unwholsome vapors coming from the said Coles and Privy the Plaintiff and his family cannot dwell in the said house
fee 60 Devise and what said in tail inde 85 Dower barred by Joynture 51 E. ELegit the Sheriff ought to deliver the Moyety by meets and bounds 16 Essoign though the Writ be not returned 28 Essoin upon return of an alias Summons 43 Essoine shall not be allowed in Dower after Issue 69 Error in omission of additions 41 Estate derived from one and shews not how 15 Exâ—cutors to what intents they shall be before probat of the Will 30 Executor the same person made by the Obligor and by the Obligee 128 Execution shall be de bonis testatoris where the Executors breake the Covenants of the Testator 35 Execution shall not be awarded upon Iudgment given in the grand Sessions of Wales 117 Extortion 53 78 Estrayes where they may be fettered 67 F. FIne to two and the Heirs of one to the use of them two and their Heirs 112 Fine de Oct. puris where the Caption was 14. February 135 G. GRant of an Advowson without alledging it to be by Deed 54 Grantee of a Rent-charge takes a Lease of part of the Land and after surrenders it the Rent shall be revived 94 Tenant for life with a Remainder to him in tail expectant and remainder to him in fee 96 Grant a Rent in fee and after had fee by Fine 96 H. HEriot where the Lord shall loose it when the Tenant hath none 4 Habeas Corpus liberty cannot be given to a Prisoner therby 129 Habendum void to parties not named in the Deed 88 Hue and Cry and Debt upon that Statute 125 I. INdempnitas nominis and supersedeas inde 45 Infant where he shall appear by Guardian and where by Prochein amy 92 Inditements for Rape and Buggery 115 Inns how they may be erected or restrained 99 Information against a Subject for Extortion 53 Information where it shall be brought 98 Intermarriage where it is a release of a promise c. before marriage 17 Jurisdiction a Plea therto where part of the land lies in the Cinque Ports 74 Judgment to what day it shall have relation 95 Joynture bars Dower 51 L. A Lord where he may be sworn 87 Lease by Feme in speciall tail 84 Lease by Baron and Feme without reservation of any rent 102 Lease where the acceptance of a new Lease makes a surrender of the former 104 N. NOtice where it shall be upon a promise 80 Nusances 136 O. OUtlawry where it may be pleaded 53 Obligation by the Sheriff where void 52 Office of a Park-keeper is good if the King dispark the Park 86 Obligation to levy a Fine before a day who shall do the first act 48 P. PArdon 79 Parliament what shall be said a Session 61 Pleas severall and by severall Defendants upon joynt Contracts 26 Prescription for a way and no place to which c. issue joyned on the Prescription 10 Prescription to have Herbage 45 Prescription to have Deer in discharge of Tithes 57 Plea as Heir and shews not how 15 Prescription to have Common omni tempore anni without saying quolibet anno 1 Plea of Grant of an Advowson without alledging by Deed 54 Prohibition 22 Prohibition to Chester 59 Q. QVire Impedit c. 31. 36 Quid juris clamat 89 Quod permittat 28 R. REcord shall be good where the conveyance is delivered to be inrolled but is not inrolled 1 Release of land devised before it be vested 60 Rationabile parte bonorum 109 Recovery if the Town be omitted therin the Land doth not passe 106 Record matter of Record tryed per pais 20 Remainder where it shall be said Contingent 118 Rent tendred at the day 13 Rent Assumpsit lies not for it 34 Rescous by the Plaintiff in the first action 98 Request where necessary 2. 73. 106 Return insufficient of a Writ of Quare Impedit 24 S. Statutes What shall be said a Parish Church within the Statute of 43 Eliz. 93 Resolves upon the Statute of 3 H. 7. cap. 2. 2 Resolves upon 35 Eliz. cap. 1. concerning Sectaries 61 Resolves upon 5 Eliz. concerning Aliens 132 Resolves upon the Statutes concerning Souldiers 134 Upon the Statute of Hue and Cry 125 Statute-Merchant without day of payment 42 Statute of Limitations extends not to Arrearages of Rent reserved upon Indenture 109 So De rationable parte bonorum 109 Debt upon a poenall Statute is not gone by the death of the King 82 Sci. fac against a Sheriff to have Execution of monies returned levied by him 32. 11 Sci. fac by Baron and Feme the death of the one shall abate it 37 Sci fac against the Sheriff for taking insufficient Pledges 77 Surrender by Baron and Feme of the Estate of the Feme for life and the King in consideration therof makes a new Lease 7 Suspension of things where they may be revived 94 Supersedeas by the Wife upon an Exigent against Husband and Wife 86 T. TEnder of Rent at the day 13 Tithes and action therupon 121 Tithes of Wood and small tithes 77 Trespass by Baron and Feme for breaking the Close of the Baron and for the Battery of the Wife 59 Tryall where nul tiel vill it pleaded 31 Traverse upon Traverse 96 Traverse of a day 121 Town shall be intended whole Town 74 Traverse of Seisin 123 Tenure by Castleguard is Socage Tenure 91 Tryall of Treason how it shall be 131 Tryall of an action of Account upon receit in two Counties 111 Tryall of matter of Record by the Country 20 Trover and Conversion the Defendant justifie without confession of the Conversion 10 Treason persons attainded therof and set at large how they shall be brought to execution 21 V. VEnire fac from a Towne within a Parish 6 Ven. fac from divers Towns 27 39 Ven. fac where nul tiel vill is pleaded 31 Ven. fac of a Visne from a place known in a Town without making it from the Town 106 View counterpleaded 44 View upon a Quod permittat 28 Usurpation 66 Judgment in Dower upon Voucher 71 W. VVAter increase thereof in Westminster Hall 108 Waifes where they may be fettered and other learning therupon 67 Warrant to four and two only execute it 127 Warranty lineall bind not without Assets 22 Wast in cutting wood to make Cole-mines 19 Wast and inquiry of damages theron 45 Wast how the Writ shall be made where a Lease for life is made the remainder in fee 110 Writs and filing therof 112 WORDS I. S. is in Leicester Gaole for stealing a Horse 2 Welsh words 8 He is a cousening Knave and so I have proved him before my Lord Major for selling of me a Saphire for a Diamond 13 George is a cousening Knave and cousened a poore man of a hundred pounds and all the Georges are Knaves 14 He is a cousening Knave and hath cousened me of forty pounds 14 He is a false Knave and keeps a false Debt-book for he chargeth me with the receit of a peice of Velvet which is false 14 Thou art a pilfering Merchant and hast pilfered away my Goods from my Wife and Children 14 She is a cousening woman and hath cousened one of her Neighbours of four pounds and I will bring good proof of it 14 I doubt not but to see you indited for Sheep stealing 18 Forgery spoken of an Attorny 29 Thou hast forsworn thy self in the Councell before the Marches 34 Thou art a filching fellow and didst filch four pounds from me 34 I charge thee with Felony for taking money out of I. S. pocket and I will prove it 38 I have matter enough against thee for I. S. hath found Forgery against thee and can prove it 41 Forsworn where actionable and where not 44 He is a Bankrupt spoken of one not a Tradesman 45 He is a Bankrupt spoken of a Baker without alledging him to be a common Baker 49 Cousening Knave whether actionable or not 52 I will have him hanged for robbing in the high-way 58 Thou art a Theef and hast stoln my Corn 15 He is as arrant a Knave as any in England 72 I doubt not but to prove that the Plaintiff hath spoken Treason 75 Thou art a common Barretor a Judas a Promoter spoken of an Attorney 104 Thou art a Theef and hast stoln Passions Lamb and marked it and he denied it 110 Thou art a Theef and hast cousened my Cosin Baldwin of his Land 113 I will charge him with flat Felony for stealing my Ropes from of my Shop 113 Thou didst bring Faggots a mile and halfe to burn the Colliers 123 Thou hast made many false Certificates to the Major and Burgesses in that Court 123 Trust him not he is not worth four pence of a Tradesman 125 If I list I can prove him perjured 127 Thou old Witch thou old Whore I will have thee hanged if I can do it 132 I accuse Mr. Justice Hutton of high Treason 131 He is a Witch and an Inchanter and hath bewitched the Children of Strong 13 Errata PAge 1. line 28. for Bormis Inn read Bozuni's Inn p. 3. l. 19. r. grant p. 7 l. 25. blot out by p. 13. l. 2. r Witch p. 22. l. 20. for to the Secondary r. secondarily p. 24. l. 27. r. of p. 28. r. Quod permittat p. 49. l. 8. r. entire l. 24. r. Ignoramus l. 36. r. Lord Hobart the same p. 54. l. 18. the same L. 38. p. 56. l. 42. r. Vicaridge l. 54. r. folk p. 61. l. 9. r. vested p. 65. l. 37. r. Lord Hob. p. 76. l. 38. r. sold p 81. l â—â— r. Justices p. 88. r. Hartopp p. 99. l. 25. r. unwholesome p. 104. l. 35. r. Perpoint l ult r. demised p. 105. l. 23. r. Lessee l. 33. after One add Grants proximam Advocationem to and after l. ult r. admitted p. 107. l. 10. r. founded l. 15. r. trimming p. 109. l. 24 r. objection l. 25. r. Action p. 110. l. 14. r. property l. 19. the Ter-tenant r. and held the said lands l. 37. r. dimisione p 112. l. 10. r. time l. 24. put out which granted p. 214. l. 8. r. agreed l. 35. r. rendred p. 116. l. 5. r. Georges p. 117 l. 24. r. Certiorari p. 119. l. 23. r. her l. 35. r. to p. 130. l. penult r. according