as Servant to the Bishop of Durham Absque hoc that he was guilty at the Castle of York or any where else c. And this Case was long depending and the first point was if the Defendant had confessed any conversion for that is the ground of the action and ought to be traversed or else confessed and avoided It was agreed that the Conversion is the ground of the Action Brook 1 Mar. Trespass 121. and the Inducement ought to be such as contain sufficient matter with the Trespasse vide 9 E. 4 5. 19 H 6.30.22 Then it was agreed H. 6. 35. 8. that when one takes a Distresse and such an action is brought that is no plea for that is not any conversion vide 27 H. 8.22 Coke lib. 10. fol 46 47. Request and refusall to deliver is good evidence to prove conversion but if it be found specially it shall not be adjudged Conversion and Iudgment was given for the Plaintiff because the Defendant did not claim any property and did not answer to the point of the Action for a Distresse is no Conversion Hil. 15 Jac. Coble versus Allen. Norf. Trespasse COble brought an action of Trespasse against Allen for breaking his Close at Barningham and by the new Assignment divers parcels were assigned the Defendant as to part pleads that he was seised of an House and thirty acres of Land in Colby and prescribe to have a way over them to his Common in Barningham Prescription for a Way and no place to which c. Issue joyned upon the Prescription and for the other parcels prescribe that he and all those whose Estate he hath in the said house in Colby used to have for themselves and their Families one way for Pack-horses over the said other parcels of Land in Barningham unto the Kings high way leading to the City of Norwich And Issue was joyned upon these two Prescriptions and found for the Plaintiff But it was moved in Arrest of Iudgment that the Venue was from Barningham and Colby and that in the Plea there is not mention of any place where the Common lies and therefore there is not any tryall but it was adjudged that the tryall was good for though that the proper use of a way is to some end and that ought to be shewn yet if it be only that he had a way over the Closes of the new Assignment and no place or end therof is pleaded for what cause or to what other place and Issue is taken upon the Prescription and found the Prescription is good And another reason was there by Implication it is indifferent whether the way lies in B. or in another Town and by intendment rather it may be taken to lye in B. and then if by one intendment the tryall may be good it shall so be intended But when it appears that the tryall shall be in three Towns and the Ven fac is but in two this is not aided for it is a Mis-triall and there must be a Venire facias de novo but in this case no new Venice can be awarded and then it is but a Jeofaile for not pleading in which Town the way lies and then it is aloâ—â— and also unto the Kings high way may be taken that this Kings high way is contigue adjacent to these Closes where the way is by Prescription And for these reasons and causes Iudgment given for the Plaintiff Harding versus Bodman RObert Harding Plaintiff against Bodman Defendant Case in an action upon the Case recites that wheras the Plaintiff brought an action upon the Case against one Lenning for calling of him c. the Defendant upon the tryall being produced for the Defendant as a Witnesse gave evidence upon his Oath to the Iury Action upon the Case against one foâ—giving evidence that the Plaintiff was a common lyar and so recorded in the Star Chamber by reason of which Evidence though the Iury found for the Plaintiff yet by reason hereof they gave but small Damages to the Plaintiff And upon not guilty pleaded it was found for the Plaintiff and upon motion in Arrest of Iudgment it was adjudged that this is a new invention and that no action lies for it First because that it is impossible to be known whether the Iury gave greater or lesse Damages for that or not Also by this means every man which is produced as a Witnesse by one way or other may be subject to an action upon the Case and also by any thing which appears to the Court the Evidence was true for it was not averred that Revera that the Plaintiff was not a common lyar that he was not recorded for a common lyar in the Star Chamber And for these reasons the Plaintiff Nil capiat per breve c. Trin. 15 Jac. Rot. 1968. Speake versus Richards South HUgh Speake brought an action of Debt against Edward Richards Debt for 523 l 17 s 8 d and declare that Anthony Hall and Henry Paramour 22. June 13 Jac. became obliged to the Plaintiff by Recognizance in the Chancery in 2000 l and that they did not pay it wherupon the Plaintiff had two Sci. fac.'s to the Sheriff of Middlesex Debt for money returned levied by the Sheriff who returned Nihil wherupon Iudgment for the Plaintiff and a Levari facias awarded to the Sheriff of Southampton returnable 15 Mich. which Writ was delivered to the Defendant being then Sheriff to be executed The Defendant before the Return levied by vertue of the said Writ the said 523 l 17 s 8 d of the Lands and Chattels of the said Henry Paramour parcell of the said Debt and at 15 Mich. returned that he had levied the said 523 l 17 â— 8 d parcell c. which summ he had ready at the day to deliver to the Plaintiff in part of satisfaction c. And that the Defendant although often required therto refused to pay the said 523 l 17 s 8 d by cause wherof this action accrued nor brought it into Chancery and to have the parties c. The Defendant as to three hundred and eight pounds part therof pleaded Nil debet to two hundred and fifteen pounds seventeen shillings eight pence residue therof Actio non For he said that after the Writ directed and before the return viz. 31 Augusti 14 Jacobi the Defendant at Westminster paid it to the Plaintiff upon the receit wherof the same day the Plaintiff gave an Acquittance for the same which he pleads and therby acquitted and discharged the Defendant and demands Iudgment if against his own Deed of acquittance he shall be received to demand the said money wherupon the Plaintiff demurred And it was argued by Serjeant Richardson for the Plaintiff and by John Moore for the Defendant An exception was taken that he could not plead Nil debet because that it is a Debt upon Record for he is charged by the return He is not estoppled to plead payment
to passe without pain then to indite the Offenders of whom great part be flock of the same Country c. And upon Nil debet pleaded it was found for the Plaintiff And it was moved by Serjeant Bawtry that the Writ had recited the Statute otherwise then it was for the Writ saies Indicari pro indictari and it ought to be written by this Abbreviation Indicāuri And the word Indictari is a word by it self and he resembled it to Freemans case Coke lib 5. fol 45. Fecit vastum vendicōnem destrictionem for destructionem and not amendable Also Coke lib 4. S. Cromwells case upon the Statute of Rich 2. de scandalis magnatum the word Messoignes is said Messuages and not amendable Harris answered that the Cursitor had a Note drawn which was well and it was only his mis-priston Secondly that there is no such Passive Verb as Indicari and so being insensible shall be amended And for that vouched 11 H 6. 2. 14. adjudged upon the Statute of forging of false Deeds Immaginavit were it should be Immaginatus est and amended 3. This Abbreviation is sufficient Also he said that it is only the preamble of the Statute wherupon the action is not founded but upon the body of the Act. Sir George Wrothies case in Ejectment the word Demisit was amended and made Divisit Brickhead against the Bishop of Yorke and Cooke for the Ticaridge of Leeds the Writ was Vacariam and for that the Cursitor was examined and his Instruction being Vicariam it was amended there An 14 Jac. 1. The Lord Hobart inclined strongly that it should be amended by the instruction which was delivered to the Cursitor but as to that Winch and I differed because that this matter of Instruction is not a thing which ought to be informed by the party as all matters of fact are As whether it be a Vicaridge or a Church or in debt for twenty pounds in the Instruction and he make it thirty pounds that shall be amended But in this case it is matter of skill and no difference between this case and Freemans case And in debt if he had Instruction in the Debet and Detinet and makes the Writ in the Detinet only that shall not be amended 2. The Lord Hobart inclined that this recitall is but in the Preamble and may be omitted to which we disagreed he inclined that the Abbreviation was sufficient to supply all the word This Case being long debated the Court Ex assensu ordered that the Defendants should give 80 l. to the Plaintiff Mich. 10 Jac. Rot. 641. Poole versus Reynold IOhn Poole brought a Prohibition against Richard Reynold Farmer of the Moyety of the Rectory of Colleton Prohibition Prescription to have Deer out of a Park in discharge of all Tithes and after the Park is disparked with the Chappell of Shute annexed to the said Rectory And the Surmise was that of time wherof memory within the Parish of Colleton there was a Rectory appropriate and the Cappell of Shute annexed therto Et una Vicaria perpetua ejusdem Ecclesiae de Colleton dotat And wheras the said John Poole for six years last past had occupied one house a hundred acres of Land twenty acres of Meadow forty acres of Pasture called Shute Park in Shute aforesaid within the Parish of Colleton which said Tenements were anciently a Park and now dis-parked which Park De temps d'out memory c. untill the dis-parking therof was used and filled with Deer and severed from other Land and was dis-parked An. 10 Eliz. and converted into the said house a hundred acres c. And that all the Occupyers of the said Park called Shute Park de temps d'out memory c. untill the dis-parking had paid to the Vicar there his Farmer or Deputy one Buck of the Summer season within that time upon request and one Doe of the Winter season within that time c. in discharge of all Tithes of the said Park untill the dis-parking and after the dis-parking in discharge of all Tithes of the said Tenements which they had accepted for all the time aforesaid untill the dis-parking and after or otherwise agreed with the Vicar for them And traversed this Prescription and found for the Plaintiff And now in Arrest of Iudgment it was moved by Henden that this Prescription extends to the Land quatenus it is a Park and that being destroyed the Prescription is gone for a Tenurs to cover a Wall or Thatch an house if the party destroy or pull it down the Tenure is extinct 32 E 14 Avowry And it shall be presumed that this was by grant when it was a Park which is collected by the thing which is to be paid and if it be to be paid or delivered out of the Park then it is determined vide Lutirels case Coke lib 4 Also this Prescription is against the benefit of the Church and shall not be enlarged And the Wood which is sold out of the Park shall not be discharged 14 Jac. in Conyers case in this Court Conyers case Prescription that the person had two acres of Meadow given in discharge of all Tithes of Hay ground viz. of all the Meadow in the Parish it any arrable Land be converted into Meadow it extends not to discharge that vide Lutirels case Coke lib 4 fol 86. That an Alteration in prejudice of the party determine the Prescription but vide the principall case there adjudged that building of new Mills in the same place and converting of Fulling Mills into Corn Mills alter not the Prescription vide Terringhams case lib 4. He which hath Common purchased part of the Land all is extinct for it is his own act And he cited a case which was in this Court argued at Bar and afterwards at Bench between Cooper and Andrewes Mich 10 Jac Rot 1023. for the Park of Cowhurst vide 32 E 1 Fitz avowry 240.5 E 2. Fitz annuity 44.20 E 4.14.14 E 4.4 But this case was adjudged for the Plaintiff Quod stet prohibitio and that which is by the name of Park is for the Land and is annexed to the Land by the name of Park if the Prescription had been to pay a Buck or a Doe out of the Park then it would alter the case But it is generall and had been paid also after the Park dis-parked viz. the tenth of Eliz. And the case of Cowper and Andrewes was the third shoulder of every Deer which is killled in the Park and two shillings in money and that case was never adjudged Hil. 10 Jac. Meredith versus Bonill Case HUgh Meredith a Iustice of Peace in the County of Monmouth brought an action upon the case against Bonill Words for these words I will have him hanged for robbing on the high way and for taking from a man five pounds and an Horse After Verdict for the Plaintiff it was moved in Arrest of Iudgment that the words were not actionable for they
latter Lease taken by him which was void did nâ—t surrender his former Lease which was good Sir Rowland Heywards Case the Lessee had Election to take as a Lease or as a Bargain and Sale and that it is not by way of Estoppell because it was contracted out of the Reversion Trin. 14 Jac. Rot. 3308 Thompson against Green Thompson and Green Mills and Whitewood adjudged that when one grants Proximam Advocationem to mother this is meerly void 13 Eliz. Rot. 1428. Ejectione firmae brought by Mills against Whitewood adjudged that where Lessee for years takes a new Lease after the death of his Lessor of the Gardian in Socage this is no surrender of his Lease 42 Eliz. Rot. 105. In Sir Arthur Capels Case adjudged _____ Rud who was Lessee for sixty years of an Advowson when the Church was void took a Presentation to himself of the Lessor and is admitten and inducted this was a Surrender of his Lease Mich. 5 Car. Baker versus Johnson A Iury was at the Bar in an Ejectione firmae brought by Henry Baker against Bartholomew Johnson upon a Lease made by James Baker which was seised of two Marshes among others called Knightswick and Southwick In a recovery if the Town be omitted the Land do nor pass which lye in an Island called Camby in the Parish there called North-Benfleet And he being Tenant in tail and intending to dock it and to make himself seised in Fee by Indenture the 10. of Eliz. Covenanted to suffer a recovery of these two Marshes by name and of many other Lands and that it should be to the use of himself in Fee and the recovery was had and therin South-Benfleet and many other Parishes named and Camby but the Parish of North-Benfleet was omitted And if the Lands in North-Benfleet passed or no was the Question And it was strongly argued by Crew and Henden to have it found specially it being in a Common Recovery which is but a Common Conveyance But all the Court agreed that the Town and Parish being omitted although that Camby was a place known but it appeared that that extends in and to ten Towns yet being in a Town that the Recovery extends not therto no more then if one had a Mannor in the Town of Dale which Mannor is called Bradford and within the said Mannor is a place known which is called Braisty Wood and he omit the Mannor and the Town and say the hundred acres of Land in Braisty Wood that is not good And the Court agreed that a Common Recovery is good in a Town Parish or Hamlet and peradventure in a place known out of the Town Parish or Hamlet as in the Forrest of Inglewood in Insula de Thamete c. But if it should be admitted that a Common Recovery shall be good in a place known in a Town or Hamlet that shall be absurd for there is no Town in which there are not twenty places known and it had been adjudged that a Venire facias de viceneto of a place known in a Town without making the Visne of the Town is not good Mich. 5 Car. Bill versus Lake London Case FRancis Bill brought an action upon the Case against Sir Aurthur Lake and counted that wheras at the speciall instance of Lettice Wife of the Defendant Where the request is the cause of action he had provided for the said Lettice a Tasfety Roll the Defendant did assume to pay as much as it was worth upon request And so in like manner for providing of Linnen stuff c. and making of severall Garments for the Wife and aver that the severall things bought amount to such a summ and the making therof was worth such a summ which in toto c. and alledge the request And aver that they were necessary Vestments and convenient for the degree of the Wife and after the making of them he had delivered them to the Wife The Defendant pleaded the Statute of 21 of King James for Limitation and said that the Plaintiff within six years after the promise supposed nor within three years after the end of the Parliament had not prosecuted any Originall or any Action upon this promise and Assumpsion wherupon the Plaintiff demurred And upon Argument at Bar by Serjeant Brampton for the Plaintiff and Davenport for the Defendant the matter was reduced to this Question Whether the cause of Action shall be said upon the request Quest or upon the promise Brampton agreed that where it is found upon an Assumpsit in Law and that the request is but for increase of Damages and not issuable there the Assumpsit is the cause of the Action But this cannot be founded upon an Assumpsion in Law because that it is not certain but to be made certain first by the Plaintiffs buying and providing of the Stuff Secondly by the Plaintiffs termining and making therof and then the matter of promise is for the payment of so much money as it should be reasonably worth and therfore the request is there collaterall and then it is the cause of the action and so within the Statute if it be an action which is founded upon an Assumpsit in Law then it doth not charge the Husband see the difference when request is materiall and shall be alledged and when not in Mecholl and Pecks Case before and a Feme Covert is not capable to make any Contract because she is Sub potestate viri And though it be for necessaries of Diet and Apparrell that shall not charge the Husband Sir William Alephs Case But an Infant is capable to make Contract for Diet and Apparrel necessary An 25 Eliz Sir William Alephs case was adjudged that where an Infant had taken so much for his necessary Apparrell and Diet which amounted to fifty pounds which was paid by Sir William Aleph And he took an Obligation with a penalty adjudged that it did not bind him in regard of the forfeiture And Dyer 234. Sir Michael Penits case the Wife took Sattin and Stuff to make her a Gown and Sir Michael paid the Taylor for the making therof And yet upon an action of Debt brought against the Husband it was resolved that it did not charge him And that the request to the cause of the action he vouched Dyer 31. 18 E 4. 4. solvend sur request and 9 H 7. fol 22. Replevin and Tenure for plowing the Land when he shall be required he ought to alledge the request and he concluded with a Case adjudged Hil 4 Car Rot. 710. Banco Regis between Shuesouth and Fernell an action upon the Case and count that the Defendant An 1618. had kept a Dog which he know had used to woory Sheep and that the Dog had wooried and killed divers Sheep of the Plaintiffs And the Defendant in consideration therof promised to satisfie the Plaintiff what he was damnified when he should be required therto and the promise was An 18 Jac. and the request and
reasons the Court gave Iudgment for the Plaintiff And Serjeant Ward argued well and vouched divers good Cases The Writ of Detinue supposeth properly in the thing demanded vide 50 E. 3. 6. Cook versus Cook WIlliam Cooke alias Barker brought an Action of Wast against George Cook alias Barker and count against him as Tenant for life How a Writ of Wast shall be where there is a lease for life remainder in fee. of the Lease of George Cook and intitle himself to the Reversion Ex assignatione of the said George and shews that George Cook being seised in Fee and the Ter-tenant in Socage devised the Land to the Defendant for life the remaineer in tail to the Plaintiff And upon the Count the Defendant demurred And the Question was how the Writ should be where a Lease is made for life the remainder in Fee for it cannot be Quod de ipso tenet And it seems that the Writ shall be speciall upon the Case as a Fine levied to one for life the remainder in Fee the Writ shall be speciall upon the Case And it seems that it shall never be Ex assignatione but where the Reversion is granted over vide 38 E 3. fol. 23. the direct Case and vide 38 H. 6. fol. 30. in the Writ of Consimili casu vide F N B fol 207. in the Writ of Consimili casu qui illud tenet ad vitam D. ex Assignatione praedicti B. quam I. filius heres R. qui quidem R. illud praefat D. demisit ad eundem terminum inde fecit praefat B. c. The Estate for life with a Remainder over is but one Estate and it was a question at Common Law if he in remainder shall have an action of Wast vide 41 E 3. 16. 42 E 3. 19. 50 E. 3. 3. Reg. 75. But at this day the Law is cleer that he in remainder shall have an action of Wast F N B fol 207. but these Books prove that the Writ of Wast ought to be Ex divisione non ex assignatione Mich. 6 Caroli Case Words AN action of the case was brought for these words Thou art a Theef and hast stoln one Passions Lamb and marked it and denied it And upon Not guilty pleaded and Verdict for the Plaintiff Serjeant Ashley moved in Arrest of Iudgment because that it is not shewn whose Lamb for Passions is no word of any signification without the name of Baptisme And the Court was of opinion that the Count was good for it had been sufficient to call him Theef and then the subsequent matter and words aggravate and contain matter of Felony And it is a generall Rule that when the first words are actionable the latter words which toll the force therof ought to be such as do not contain Felony Babbington versus Wood. BAbbington brought an action of debt against Wood upon an Obligation of 600 l. the Condition was That if Wood resign a Benefice upon request that then the Obligation should be void A Condâ—tion to resign a Benefice upon request And the Condition was entred the Defendant demurred and Iudgment in Banco Regis pro querente And upon Error brought Iudgment was affirmed in the Exchequer Chamber for this Obligation is not voidable by the Statute of 14 Eliz. which makes Obligations of the same force as Leases made by Parsons of their Gleaves viz. Per non residency And it doth not appear by the Plea of the Defendant that it was not an Obligation bona fide which might be lawfull As if a Patron which hath a Son which is not yet fit to be presented for default of age and he present another with an agreement that when his Son comes to the age of 24. years be shall resign it it is a good Obligation And this Case viz. an Obligation with Condition to resign had been adjudged good in the case of one Jones An 8 Jac. And the Councel said that he who is presented to a Church is married therto Jones Case and it is like as if a man who hath married a Wife should be bound to be divorced from her or not co-habit with her these Conditions are void But these resemble not our Case Wilson versus Briggs WIlson brought an action of Account against Briggs as Bayly of his Mannor in the County of Cambr. Tryall of an action of Account upon receit in two Counties and also as Bayly to another Mannor in the County of Suff. And this action was brought in the County of Cambr. and found for the plaintiff and Iudgment to account and found in the arrearages and Iudgment given And now the Defendant brought a Writ of Error Iudgment was reversed because it was mis-tryed for it should be tryed at the Bar by severall Ven. fac to be directed to the severall Sheriffs First it is agreed that a writ of Account against one as Bayliff of his Mannor cannot be brought in another County but only in that County where the land lies vi 8 E. 3. fol 46. Fitz. Acc. 93. see there that two actions of Account brought against one for receit in two Counties And there it is said that it being upon a day that he may have one writ and count in the two Counties But to that it is said that that proves not but that he might have two Writs wherby it might be awarded that he should answer But in this case it was resolved that it was a mis-tryall for it ought to be by two Ven. fac and tryed at Bar and it is not aided by the Statute of 21 Jac cap 13. Trin. 8 Car. Purnell versus Bridge Hil. 6 Car. Rot. 1235. Fine to two and the heirs of one to the use of them two in fee. HEnry Pernell brought Replevin against William Bridge Robert Bridge and two others William Bridge plead Non cepit and the other made Conusance and upon Demurrer the case was such Richard Braken was seised in Fee of sixty acres of arrable Land and forty eight acres of Meadow and Pasture wherof the place in which c. was parcell And he the sixth of Febr. An 18 Eliz. by Deed granted an Annuity or Rentcharge of thirteen pounds six shillings out therof to Edward Steward in Fee payable at the Feast of Saint Peter or within eight and twenty daies after And if it be arrear for eight and twenty daies after the said Feast that then he forfeit for every Fine after forty shillings with a clause of Distresse as well for the said Rent as for the said forty shillings if it shall be arrear Edward Steward seised of the Rent died wherby it descended to Ioan Iermy Wife of Thomas Iermy Daughter and Heir of the said Edward Steward and they being seised therof in the right of the said Ioan An. 41 Eliz. in Crastino animarum levied a Fine of the said Rent to Robert Brook and Isaac Iermy and to the Heirs of Robert which Fine was to the
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
before the return because it is another Action and the Sheriff might have paid it to the Plaintiff though he return that he had the money ready to be delivered to him for if he had after that paid it to the Plaintiff that was good satisfaction and he might as well pay it after he had levied it and before the return as he might pay it after the return and then Nil debet is a good Plea But it was objected that by the return 15 Mich. that he had the money ready and that after the acquittance his return should conclude him And it was said that it would not for it is in another Action and stands therwith 22 E 4.38 One vouched as Heir may be bound to Warranty by his Father and if he bring an Assise De morte Antecestoris and the Tenant plead Bastardy it is no Estoppell that the Defendant vouched him as Heir before The Acquittance or Release is good before the return and not like unto Hoes Case of Bail Coke lib 5.71 or 5 Eliz Dyer 217. Release of Actions and Suits will not release a Covenant before it be broken Object That the Acquittance or Release is pleaded only by recitall Res To this it was answered that he had paid the two hundred and fifty pound seventeen shillings eight peace which the Plaintiff had accepted and the Plaintiff by Demurrer had confessed the Deed and all that is contained therin then it appears that he is satisfied and that the release in matter as it is recited shall be an Estoppell vide 46 Eliz. 13. But it seemed that it is no Estoppell by the reciting in the Release that which is in possession but that afterward he might well say that he was not in possession at the time of the Release and all the Court agreed that the Acquittance or Release and receit of the money is a good Bar as to two hundred and fifteen pounds seventeen shillings eight pence and so it was adjudged But whether an Action of Debt lies against the Sheriff upon this return is questionable yet that it is not any Contract Account or Loane upon which three properly an Action of Debt lies as it is said M. 18. E. 4.23 and 41. E. 3.10 and 42 E. 3.9 When money is delivered to be delivered over that no Debt lies if it be not delivered over but Account vide 34 H. 6. 36. a. 9 E 4.50 And the Court inclined that in this Case Debt lies for it is a generall Contract In Dowses Case the Sheriff levy part and do not return it but the party pay it Debt lies against the Sheriff And if money be delivered to buy Land if he buy it not Debt lies or Account Mich. 15 Jac. Rot. 636. Stone versus Roberts STone brought an Action upon the Case against Roberts for these words The Plaintiff is a Witty and an Inchaunter Case and hath bewitched the Children of one Strong And Iudgment for the Plaintiff Words For though Witch is a word of malice and familiarly used to old poor women and therfore no Action lies yet here it is coupled with a Deed by which the Plaintiff is drawn in danger of his life by the Statute of 1 Jac. Hil. 15 Jac. Rot. 710. Crawley versus Kingswell RIchard Crawley Plaintiff in Roplevin against Richard Kingswell Replevin for taking of one Cow at C. the Defendant makes Conuzance for ten pounds Rent-service come Bayliff to his Father the Plaintiff confesse the Tenure but alledge that at our Lady day which was one day of payment he was upon parcell of the Land Rent tendered at the day and there was ready and offered to pay it and remained there till after the setting of the Sun The Defendant replyed and protestando that he made no such tender for plea saith that after that and before the Distresse viz. such a day he at this Close demanded the Rent and none came there to tender or pay it for which he did distrain and praies a return c. and avers that the Plaintiff nor any other neither at the time of the distresse nor at any time after offered to pay the Rent wherupon the Plaintiff demurred and it being argued by Hendon and John Moore it was adjudged by the whole Court that the Defendant shall have a return And a diversity was taken between this and Homage where one makes a tender to the party and he refuse there he cannot distrain because it is a personall thing which cannot be performed as payment of a Rent may by another hand vide Litt. fol 35.21 E 4.17.7 E 4.4.20 H. 6.13 Also it was agreed that the tender there by the Tenant at the day is not materiall but if he had tendred it when the Distresse was taken the taking should be tortious 30 Ass 38. vide 22 H 6.36 37.21 E 4. b. 45 E. 3.9 vide Litt. 7. fol 28. Demand necessary only for a Penalty 26 Eliz. Certain Cases vouched in an Action for words GIttings Plaintiff in the Exchequer against Redserve Gittings is a cousening Knave and so I have proved him before my Lord Mayor for selling me a Saphire for a Diamond the Action does not lye And by Manwood if A. saies of B. Thou art a cousening Knave and hast cousened me of five hundred pounds no Action lies which the Court agreed Banco Regis 30 Eliz. George versus Whitlock HE is a cousening Knave and consened a poor man of a hundred pounds and all the Georges are cousening Knaves no action lies Hil. 30 Eliz B. R. Walcot Plaintiff versus Hind HE is a cousening Knave and hath cousened me of forty pounds adjudged no action lies And upon Error brought in the Exchequer Iudgment was affirmed and it is said that our Law takes no notice what a Cousener is Trin. 37 Eliz. Brookes Case HE is a false Knave and keeps a false Debt Book for he chargeth me with the receit of one peece of Velvet which is false not actionable Mich. 37 and 38 Eliz. Charter versus Hunter THou art a Pilfring Merchant and hast Pilfred away my Goods from my Wife and my Children not actionable A Butcher and his Wife brought an action upon the Case against B. and his Wife and shew that the Plaintiff used the Trade of a Butcher and that his Wife in his absence sold and delivered flesh and the words were that the Wife of the Plaintiff is a cousening woman and hath cousened one of her Neighbours of four pounds And it was alledged over that she the Defendant would bring good proof of it and adjudged that an action lies not Trin. 13 Jac. Rot. 650. Heard versus Baskerfield Brownlâ—wâ— Devon WIlliam Heard Plaintiff Replevin against Richard Baskerfield in Replevin for taking two Cowes at Brood the Defendant makes Conuzance as Bayliff to John Dinham Esquire and shows that Walter de la Therne was seised in Fee of twenty acres of Land wherof c. And by his Deed shewn in
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
he had nothing else to say but submit himself to the mercy of the King And there execution was awarded and a Roll made therof and so it was done in Lepu's case as the President was shewn and he was committed to the Sheriffs of London and Middlesex and by them he was brought to the Gatehouse and the next day which day the Lord Mayor of London came to Westminster to take his Oath he was beheaded in the great Court at Westminster and he died in a good and religious manner and spake much without any fear of death submitted himself to the Block and by his death gained great reputation in this life and by the grace and mercy of God remission of his sins and eternall life afterwards c. Bishop and others FAther Tenant in tail hath Issue two Sons the Father with the eldest Son makes a Feoffment with Warranty the eldest Son dies Lineall Warranty and after the Father dies the younger Son brought his Formedon and this Feoffment with warranty of the eldest Son is pleaded in Bar and upon Demurrer Iudgment for the Demandant For it is but a lineall Warranty and then without Assets it is no Bar for though the eldest Son dye in the life of the Father yet the younger Son by possibility might have the Land as Heir to him Mich. 16 Jacobi AN action of Debt was brought upon the Statute of 5 Eliz. for perjury against one that was produc't as a Witnesse in an action of Trespasse and deposed falsely And upon Nil debet pleaded the Plaintiff was non-suit Costs shal not be allowed upon a non-suit in an action brought upon the Statute 5 Eliz. of Perjury And whether the Defendant should have costs or no was moved by Serjeant Harvy and that stands upon the words of the Statute of 23 H. 8. cap. 16. the words are In any Action Suit Bill upon the Case or upon any Statute for any Offence or wrong personall immediatly supposed to be done to the Plaintiff The opinion of the Court was that the Defendant should not have costs upon this non-suit because that this action is founded upon a Statute made long after the making of that Statute Also this is not an immediate wrong to the Plaintiff but to the Secondary for it is an immediate wrong to the truth and such Statutes which are intended by this Act shall be like to Trespasse done to the party himself as Ravishment of Ward Also it is not aided by the Statute of 4 Jacobi cap 3. for that gives costs to the Defendant where the Plaintiff shall have costs if he recover And Mr. Brownlow the Prothonatory said that it had been ruled so before for the Plaintiff should not have costs if he recover because the Act 5 Eliz. gives a Penalty viz. a forfeiture of twenty pounds against the Witnesse and forty pounds against the Suborner and so the Plaintiff if he had recovered should not have had any costs and therfore it is not aided by the Statute of 4 Jacobi Mich. 16 Jacobi Conesbies Case THe Lady Conesby being the Wife of Sir Ralph Conesby was cited into the Ecclesiasticall Court by Mr. Watts Prohibition who had married Elizabeth the Grand-child of the Father of Sir Ralph to which Grand-child by Will one Legacy of a hundred pounds was devised and that was pass 3 Jac. by the Lady Conesby Executor of the first Testator and upon payment an Acquittance under the hand and Seal of the said Watts was c. in the presence of two Witnesses now dead And this being denied and they allowing of no proof by comparison of hands nor by circumstances but only proof of them which wrote it or of them which saw them subscribe And by their Law an Acquittance of the Husband for a Legacy to the Wife without the Wife is not sufficient also if Watts himself will deny it upon his Oath there it shall stand against all proofs A Prohibition was granted upon the motion of Serjeant John Moore and after Serjeant Harvy had said all that he could say Trin. 16 Jac. Rot. 954. Kind versus Ammery KInd Plaintiff in a Replevin against Ammery Replevin The Avowry was for a Rent-charge and the Grant was of a rent of twelve pounds payable at two Feasts Demand not necessary in an Avowry for a Rent-charge and if it vs behind for the space of a month after any of the said Feasts it being lawfully demanded that he might distrain and for Rent arrear at the Annunciation and by the space of a month after and not paid he distrained And the Plaintiff demurred upon this Avowry and shewes for cause that it is not shewn that the Avowant made any demand before the Distresse And Serjeant Harris relied upon a Case which was An 31 Eliz. as he said and vouched the number Roll Bosdens case that upon demurrer between Bosden and Downes there the Avowry was not good for the same cause And Maunds case Coke lib. 7 fol. 28. implies that it ought to be demanded but it is not issuable if it be at the day or after And he said it was debated 31 Eliz. whether it was form or substance which shall not need to be shewn upon Demurrer But the Court agreed that no actuall demand was necessary to procede the Distresse in this case but that the Distresse is a demand But if the Grant has been penned in this form if it be arrear at such a Feast and for a month after demand that then he may distrain otherwise it is for there the Distresse is limited to the month after the demand And so it was adjudged in this Court between Coppleston and Langford Trin. 3. Car. Rot. 2865. Copplestone Langford Replevin between Beriman and Bower Avowry for Rent granted out of ten acres of Land in Crediton payable at such a Feast upon the Town stone upon the Key in Barnstable if it be lawfully demanded with clause of Distresse and the Distresse was before demand and upon demurrer it was resolved a good Distresse without demand vide Dyer 348. Booton against the Bishop of Rochester A Quare impedit was brought by Booton against the Bishop of Rochester who pleads that he claims nothing but as Ordinary and yet pleads further that the Clerk which the Plaintiff present had before contracted with the Plaintiff Simoniacally Insufficient return on a Writ in Quare Impedit to the Arch bishop and therfore because he was Simoniacus he refused him and that the Church was then void and so remained void wherupon the Plaintiff had a Writ to the Arch-bishop of Canterbury who returned that before the coming of this Writ viz. 4 July the Church was full of one Mr. Doctor Grant ex collatione of the said Bishop of Rochester which had collated by Laps and this return was adjudged insufficient First it is clear that though the six months passe yet if the Patron present the Bishop ought to admit although it
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
Conversion was brought by Abraham Cartwright against Clement Underhill And upon Not guilty pleaded there was found a speciall Verdict to this effect Bankrupt Francis Bayle being a Merchant had made a fraudulent Deed to the Defendant of the Goods contained in the Count but afterwards he went abroad to Church to the Exchange and did Trade and Commerce And yet afterwards it is contained in the Indenture of Sale by the Commissioners to the Plaintiff that he had made this fraudulent Deed and that afterwards he had traded and served the Exchange untill a day after at which day he wholly absented himself And upon this speciall Verdict the Defendant had Judgment For every Deed to defraud other Creditors but those to whom such Deed is made is not sufficient to make one to be a Bankrupt But if he make any Deed after he begins to be a Bankrupt it shall not bind But upon the Statute of 1 Jacobi which makes him a Bankrupt which make fraudulent Deeds it ought not to be as this case was viz. so long before he became a Banrupt And there were many more imperfections in the speciall Verdict Hill 18. Jac. The Earl of Clanrickards Case THe Earl of Clanrikard and Frances his Wife Writ of Right brought a Writ of Right against the Earl of Leicester Essoin upon the return of an alias Summons And upon the Summons being returned but no return of proclamation made at the Church of the Parish where the Land lies upon the Lords day Post praedicationem sive Divinum Servitium there was an Essoin cast and that was adjourned in the Essoin Roll And the Demandauts perceiving the return to be insufficient they sue an alias Summons which having great returnes as all the Writs issuing out of this Court in a Writ of Right or other reall actions ought to have was returnable Oct Hil And the Tenant cast an Essoin upon the alias Summons And it was moved at the day of Essoin and now also at the first day of the Term by Serjeant Harris that an Essoin did not lye for he had an Essoin before And by the Statute de essonii calumniand 1â— E 2. Non faciant quia alias se essoviant And the Statute 31 Eliz cap 3. which gives the Proclamations hath prouided that no Grand Cape shall be awarded upon this default but only an alias Summons so that the Writ is good and stands and therfore he shall not be otherwise essoined But it seemed to the Court to be otherwise here for the first Essoin is as Nul and therfore vide Dyer 252. that when the Sheriff return tarde in a Formedon and the Tenant is essoined and that is adjourned it is of no effect but he shall be essoined upon the other Writ of alias c. vide 24 E. 3. Br Essoin 24. accord also vide 21 H. 6. That upon the resummons after the death of the King the Tenant shall be Essoined and yet the first Writ and all is revived And in this case though the party may appear to the first Writ â—ne note besoigne de ject un essoign for the nature of that is to save a default so that no Grand Cape shall be awarded and there no Grand Cape ought so be avwarded and therfore the Essoin before not avoidable Hil. 18 Jac. Rot. 739. Bridgeland versus Post Dower Counter-plea to the View BRidgeland against Post and his Wife in a Writ of Dower the Tenants demand the View and the Demandant counter-pleads the View Quod le tenant n'ad entry nisi per le Baron And therupon the Tenant demur And it was adjudged a good Counter-plea and the Tenant ousted of his View Accord 9 E. 4. fol 6. vide 2 H 4. 24. Pasch 19 Jac. King versus Bowen Case Words KIng brought an action of the case against Bowen a Minister for saying Thou art a false forsworn Knave and didst take a false Oath against me at a Commission at Ecclesall innuendo a Commission sued out of the high Commission the Defendant justifie and after issue tryed and found for the Plaintiff it was moved in Arrest of Iudgment that these words were not actionable for it doth not appear in the Count what Commission nor out of what Court nor what matter he did depose but generally that he had taken a false Oath at a Commission The former words forsworn Knave will not maintain an action otherwise of Perjuted Knave for that shall be intended in a legall sence and no Innuendo will supply matter which give not cause of action nor the Iustification But the words ought to contain scandall in themselves without any supplement An action lies for saying one had forsworn himself in a Court Baron and to say he had forsworn himself in the Common place but to say that one hath forsworn himself at the Bar innuendo the Bar of the Common place will not maintain an action Querens nil capiat per breve Pasch 19 Jac. Tippin versus King Wast SIr George Tippin Plaintiff in an action of Wast against King and alledge Wast in severall Closes Sparsim Inquiry of damages And Iudgment by nihil dicit and an Inquiry awarded the Iury found but eight pence Damages And upon motion for a new Writ it was resolved that the Iury ought not now to enquire of the Wast And therfore the difference is when the Plaintiff upon the distresse recover upon the Statute there the Statute gives power to enquire of the Wast But in this case the Wast is confessed Per nient dedire Ewer and Moyle Dyer 204. a. accord And it was so adjudged between Ewer and Moyle upon demurrer in Wast there the Wast is confessed and the Writ shall be only to enquire of the Damages so if the Plaintiff will release his Damages he shall have a Writ upon Iudgment of the place wasted Mich. 18 Jac. Rot. 2805. Pitt versus Chick MAtthew Pitt brought Replevin against Chick Replevin The Defendant avow for that the place contains five acres which lye between the Lands of Sir George Speck And that the said Sir George Speck and all his Ancestors Prescription to have Herbage de temps d'out c. have used to have Herbage and Pasture of the said five acres viz. if they were sowen then after the reaping untill re-sowing and if they were not sowen then for the whole year and convey Title to the said Herbage by Lease in writing to him and avow Damage feasant And it was urged that he which had all the profit for a time and the sole profit had the Free-hold and that is not a thing which lye in Prescription semble al Common or so pasture for a certain number of years And it was said that a Grant de vestura terrae or de herbag terrae for one and twenty years is a good Lease But it was adjudged that it is a good Avowry and he had only profit a
Defendant brought a Writ of Error in the Exchequer Chamber upon a new Statute and after divers terms Hall died and after the Plaintiff was non-suited without mention made of his death Tadcaster brought two Scire facias against Hobs and upon two Nihils had Iudgment Hobs brought an Audita Querela alledging the death of Hallowell before Scire facias and before Capias and it was adjudged that the Audita Querela well say and Hil 4 Jac Rot 975. between Timberley and Calverly Scire facias brought against the Bail and he pleaded that the Principall died before Capias returned against him And Iudgment upon argument given against the Plaintiff The like Iudgment between Iustice Williams and the Sureties of one Vaughan Hil. 19 Jac. Rot. 312. or 3125. Walrond versus Hill London Debt WAlrond brought an action of debt upon an Obligation of three hundred pounds against William Hill with Condition that if Thomas Harris and Elizabeth his Wife One bound to levy a Fine before such a day who shall do the first act before the end of Easter Term next shall levy a Fine before the Iustices of the Common Pleas by due course of Law to the use of the Plaintiff that then c. the Defendant pleaded that before the end of the said Easter Term the Plaintiff did not purchase any Writ of Covenant pro fine leuand wherupon a Fine might be levied according to the course of Law The Plaintiff replyed that the fifteenth of April the said Thomas for money enfeoffed another of parcel of the Land that was to be conveyed by the Fine And that the said Thomas and Elizabeth his Wife have not any Estate or Interest in the said parcell so conveyed wherof they may levy a Fine And upon this Replication the Defendant demurred And upon argument at Bar by Serjeant Harvey for the Plaintiff and Serjeant Henden for the Defendant the first question was If the Bar be good Intant que le Defendent est oblige That Thomas Harris and Elizabeth his Wife shall levy a Fine he ought to procure that to be done at his perill semble al 4 H. 7. 3 H. 6. Condition that John S. a stranger shall take Alice D. to his Wife before Mich. If I. S. refuse the Obligation is forfeited And therfore it was urged that he ought to procure a Writ of Covenant at his perill But the Lord Hobart held that the Plaintiff ought to procure the Writ of Covenant to have made himself capable of the Fine And he put this case if I. S. be obliged that I. D. shall enfeoff I.N. the Obligee such a day I. N. ought to be upon the Land or ought to make a Letter of Attorney to receive the Livery or otherwise the Obligation is not forfeited And when a Covenant is to levy a Fine he which is to do the first act c. vide Palmers case Coke lib 5. fol 127. 4 E. 3. 39. 18 E. 3. 27. 11 H. 4 18. 21 E 4. 2. The second question was whether this Obligation be ferfeited being that the said Thomas Harris had made a Bargain and Sale of part of the Land to another before so that he was disabled at the time to levy a Fine And we all agreed that the Condition was impossible and is all one as if he had disabled himself afterwards as in Maynes case Coke lib 5. 21. where the Covenant was to make a new Lease upon surrender of the former Lease there if he which ought to make the new Lease disables himself to make a new Lease and to accept of the Surrender by granting the Reversion for years he ought not to do the first act viz. Surrender but the Covenant is broken And in this case it is all one as if one who had granted the Reversion for years or for life Covenant that he upon Surrender will make a new Lease he had broken this Covenant being disabled at the time And it was said and agreed by the Court that the Fine to be levied ought to be an effectuall Fine which might operate to convey the Land according to the Covenant Burnell and Brook One case was vouched in this case to be between Burnell and Brook where the Condition was that he should acknowledge a Iudgment and a good Bar that the Plaintiff had not purchased an Originall Writ for he ought to make himself capable of Iudgment acknowledged to him vide 34 E. 1. Fitz Debt 164. A Condition that if he present the Obligee to a Benefice that then c. Though the Obliges taken Wife by which he is disabled to take it put he ought to present and offer him to the Ordinary to refuse him Vide 28 E 4. 6. where parcell of the Land was recovered yet Debt lies for entry Damages recovered in a Court of ancient Demeasn which case was then vouched but it is not much to the purpose And afterwards we all agreed that the Plaintiff should have Iudgment Hord versus Cordery A President was shewn which was thus IN the County of Wiltes Richard Hord Clerk Vicar of Chute Case brought an action upon the Case against William Cordery and Bridget his Wife and Dorothy Cox Conspiracy for one malicious confederacy of charging the Plaintiff with the felonious Raye of the said Dorothy Cox and procured him to be examined before Sir Anthony Hungerford a Iustice of Peace and therupon was bound in a Recognizance to appear at the next generall Sessions of the Peace at Devises and from thence was bound over to the Assises And there the Defendants An 15 Jac before Sir Thomas Flemming and Tanfield Iustices of Assise preferred one Bill of Indictment of their malice aforesaid and by the procurement of the said William and B. the said Dorothy shewed to the grand Inquest whether it were true or false And the Iury perceiving the malice and the falsiâ—y did not find it to be true and gave their Verdict by Ignorance Vpon Not guilty pleaded by William and Bridget and non informatus by Dorothy the Iury found for the Plaintiff and after a Writ of Error An 15 Jac and 20 marks costs for the delay Ego vidi recordum est bien pleivement aver que il ne ravish le feme est ent Hil. 10 Jac. Rot. 92. 1. 1. Trin. 20 Jac. Hawkins versus Cutts HAwkins brought an action upon the case against Cutts Case and declared that he was of good Fame c. and for the space of eight years last past had used the Art and Mystery of a Baker Pandopatoritae and had gained his living by buying and selling the Defendant said of him He is a Bankrupt Knave And not guilty Words it was found for the Plaintiff And in Arrest of Iudgment it was moved that it is not shewn that he was a common Baker neither had used the Trade but used the Art and Mystery of a Baker And there is as Serjeant Hobart said as much skill
and art used by Bakers of Bread in private mens houses as by common Bakers And every â—ooman which bake in private if she be a good Housewife use the art and mystery of a Baker And if a man had said generally that he had gained his living by buying and selling and not shewn what Trade he had used it is not good Therfore the Trade ought to be alledged and so sufficiently that the Court may judge him such a person as is within the Statute of Bankrupts Also Winch said that it is not alledged that he gained his living by buying and selling any thing which concerne his Trade And I was of the same opinion and relyed upon the case of 11 H. 4. 45. An nation upon the case against an Inn. keeper and shewed that he was lodged there and his Horse was stoln And the Defendant pleaded a plea that he delivered to him the Key of the Stable c. And by the Court the Writ shall abate because he did not shew that he was a common Hostler And therfore Iudgment arrested And the Court agreed that if the Count were good the words would maintain an action for a Baker is a Trade mentioned in the Statute 5 Eliz. but it ought to be a Common Baker Trin. 20 Jac. Whiteguift versus Eldersham Second deliverance JOhn Whiteguift brought a Writ of second deliverance against Richard Eldersham for taking of his Cattle at Clanding in quodam loco vocat Corles Paud. The Defendant makes Conuzance as Bayliff to Sir Francis Barrington because that the place c. was parcell of the Mannor of Curles and that John Curles was seised before the time Avowry c. therof and held it of Sir Francis Berrington as of his Mannor of Clanding by Knights servies viz. by Homage Fealty survitium scuti and by the Rent of ten pounds payable yearly at two Feasts of which Rent the said Sir Francis was seised by the hands of the said John Whiteguift as by the hands of his very Tenant in his Demsn as of sea and Avow put Homage infect wherupon the Plaintiff demur And shew for cause that the Defendant had not shewn any Title to have Homage of the said John and that the Cognizance is repugnant and no sufficient Seisin alledged of the Services and that the shewing of the Seisin is not formall vide Bevils case Coke lib 4. fol 6. Seisin of Rent is the Seisin of the Services and he might have traversed the Tenure and the other party ought to shew whether he had done Homage before vide 44 E. 3. 41. when an Avowry is upon the Baron for the Homage of the Feme it is sufficient Avowry without shewing that he had Issue by her and yet if he had not Issue he could not avow upon the Baron but that ought to come on the other party vide 5 E. 2. Fitz. Avowry 209. A man avow for Homage and alledge Seisin of Esenage without Homage and good And after upon motion this Term Iudgment was entred for the Defendant Trin. 20 Jac. Sherwells Case MAry Sherwell brought a Writ of Dower Dower and in But therto it was pleaded that the Father of the Husband of the Demandant was seised of one house and sixty acres of Land in Fire and made a Feoffment to the use of himself for life and after to the use of the Husband and the said Mary for their lives Joynture which bars Dower for the Ioynture of the said Mary the remainder to their Heirs And that afterward the Father died in the life of the Husband and aftre the Husband died And adjudged that this is no Ioynture to bar Dower according to the opinion in Varnons Case because that the Estate of the Wife at the Commencement take not effect immediatly after the death of the Husband Et quod abinitio non valet tractu temporis non convalefeit And if a Feoffment to the use of the Baron for life the remainder to I. S. for years remainder to the Feme for her Ioynture this is not a Ioynture he bar Dower Trin. 20 Jac. Francis Curle versus James Cookes AN action of the case was brought and Count Case that the King by his Letters Patents An 12 Jac. reciting the Statute of 31 H. 8. for erecting of the Court of Wards and the Officers therof and that two persons shall be named by the King and his Successors who shall be Auditors of the Land of the Kings Wards And reciting the Statute of 33 H. 8. for the making of the Master of the Wards and Liveries and his power had made him the Plaintiff one of his Auditors and granted to him the Fees due and accustomed to be had and 40. Marks fee and gave power to him as one of his Auditors according to the said Statute and to exercise it with the Fees in as ample a manner as others had used And averred that at the time of the Patent made and at all times after the erection of the said Court the Auditors had engrossed all the Accounts of the Feodaries and that they had taken therfore two shillings and shewed that he was sworn and exercised that Office and shewed the Oath specially and that he had by vertue therof ingrossed divers Accounts of the Feddaries and had taken therfore two shillings and that the Defendant having conference with the Plaintiff concerning his Office and his bone gesture therin said to him You have received money for ingrosement of Feodaries innuendo the said Fees for ingrosement of the Accounts of the Receivers Feodaries and other Officers aforesaid which I will prove is Cousenage And then and there spoke further You are a Couseâ—er innuendo the said Francis decepisse Dominum Regem 8. subditor in executione officii praedicti and you live by Cousenage deceptionem dicti Domini Regis subditorum shorum in executione officii ful Non Culp verdict pro Plaintiff and Damages thirty three pounds It was moved in Arrest of Iudgment by Attho that first it is alledged that the Fee of two shillings is lawfull and that he said You have received monies for ingrossement of Feodaries which I will prove is Cousenage innuendo the Fees aforesaid which are lawfull and then by his own shewing it is not Cousenage 2. It is insensible Ingrossements of Feodaries for they cannot be ingrossed but their Accounts 3. That Ad tunc ibidem for the other words are for other words spoken at another time of the same day and they are not actionable for they do not relate to his Office Also the words will not maintain action for the word Cousenage is generall and of an ambiguous interpretation and therfore no action lies for that And he resembled it to Sir Edmund Stanhops case He hath but one Mannor and hath got it by swearing and forswearing Midlemore and Warlow And to the Case of Midlemore and Warlow An. 30 Eliz. Thou art a cousening Knave and hast cousened me
3 H 6. 14. 32. there it is well argued and the better opinion that it is only by argument And a man outlawed may make an Executor and this Executor may have a Writ of Error to reverse the Outlawry And therupon and upon the view of the Record in Woolleys case the Court gave Iudgment that it is no plea. Lightfoot versus Brightman Covenant LIghtfoot brought on action of Covenant against Brightman and count that the Defendant being possessed of an Advowson in grosse for tearm of years covenanted that he would not grant nor assign his Interest to any Grant of an Advowson pleaded without alledging to be by deed good if the issue be taken upon collaterall matter without offer therof first to the Plaintiff and that he should have it fifty pounds better cheap then any other and alledge breach of the Covenant that he granted the said Advowson and his tearm therin over without offering it to the Plaintiff and Issue joyned upon non concessit and found by Verdict quod concessit and damages fifty pounds And it was moved in Arrest of Iudgment that it is not alledged that the Grant upon which the Issue is joyned was by Deed and then no breach assigned I at the first was of opinion that the Iudgment should stay but after upon advisement I concurred with Serjeant Hobart and Iustice Winch that it was averred by the Verdict for now it being a perfect Grant it shall be intended that upon the Evidence a Deed was shewn as upon Issue joyned upon Grant of a Reversion where it is not alledged that it was by Deed or that the Tenant atturned yet if it be found it shall be good And so in Avowry for a Rent-charge where the Grant therof is pleaded not by Deed and Issue is joyned fur concessit and found quod concessit that is good by the Verdict like to Nichols case Coke lib 5. Debt upon a Bill payment pleaded and Issue found for the Plaintiff he had Iudgment But it seems if it had been found for the Defendant the Plaintiff shall have Iudgment for the Bar confesse the action as in the 9 H. 6. Debt upon an Obligation the Defendant plead that he delivered it to the Plaintiff to be his Deed when certain Conditions were performed And he pleaded that the Conditions were not performed if it be found accordingly yet the Plaintiff shall have Iudgment Coke lib 2. fol 61. Wiscots case a Lease by Baron and Feme which ought to be by Deed pleaded generally and found the Plaintiff had Iudgment vide Smith and Stâ—plâ—tons case Mich. 20 Jac. Chittle versus Sammon CHittle against Sammon in Replevin Replevin Avowry for Rent granted to the Father in see without alledging that it was arreare after the death of the Father Counsance for Rent as Bayliff to Sir John Reves upon a Grant out of the Land wherof the place in which c. was parcell upon a Grant made to the Father of Sir John and for Rent arrear c. Issue was joyned upon this point if the place was parcell of the Land out of which the Rent was granted and found by Verdict that it was And now moved by Attho in Arrest of Iudgment that it is not alledged that this Rent was arrear after the death of the Father as it ought to be and therfore it may be intended that this Rent was arrear in the life of the Father But the Court agreed and resolved that it was good after Verdict for now it is pleaded that it was arrear and not paid to him Ergo it was due to him and though it might have been more fully pleaded yet after Verdict it is sufficient Fletcher versus Harcot AN action upon the case was brought by Fletcher of Otely against Harcot and count Case that wheras the Defendant had arrested one Batersby by a Commission of rebellion Assumpsit in consideration that the plaintiff being an Hostler would keep a Prisoner to save him harmlesse issuing out of the Court of the Lord President and Councell of the North as he affirmed And wheras the Plaintiff keeps a common Inne in Otely and had kept it by the space of five years and had entertained men The Defendant requested the Plaintiff to keep the said Batersby in his Inne at Otely by the space of one night as a Prisoner and that he would keep and save him harmlesse and shew that he had kept him for that night as a Prisoner And Batersby afterward brought an action of false Imprisonment against him for the said keeping of him in his house and that he had expended and laid out in defence thereof ten pounds And that he had required him to save him harmlesse and he refused Non assumpsit found for the Plaintiff and moved by Harvey in Arrest of Iudgment that it is no sufficient consideration because it doth not appear that he had lawfully arrested the said Batersby for it is not affirmatively alledged but as he said Also it doth not appear that the recovery in the action of false Imprisonment was for the same cause but in that he had misinformed for it was in the Record Pro custodia praedicta ex causa praedicta And for the other matter the Lord Hobart seemed at first to doubt if it did not appear that it was a lawfull Arrest then there was no consideration But because the diversity when the consideration appears to be for doing of a thing which is unlawfull As if one at the request of I. S. promise to better I. D. and he promise to save him harmlesse this is a void Consideration But if one request I. S. to enter into the Mannor of Dale and drive out Cattle and that he will save him harmlesse if he doth so and after Trespasse be brought against him and recovery had he shall have his action So if a Sheriff pretending to have a Writ where he hath none arrest one and request an Inne-keeper to entertain him in his house or hire one to conduct the Prisoner to the Gaol and promise to keep him without Damage if an Action be brought and recovery had therupon the party shall have an action of the case against the Sheriff upon this promise for he which doth a thing which may be lawfull and the illegallity therof appear not to him he which imploys the party and assume to save him harmlesse shall be charged And Iudgment was entred for the Plaintiff Mich. 20 Jac. Parkers Case Debt Hue and Cry AN action of Debt was brought against the Hundred of _____ in the County of Stafford by William Parker upon the Statute of Winchester cap 1 2. reciting the Statute That forasmuch as Robberies do daily encrease Murthers and burning of houses and Theft be more often used then they have been heretofore Amendment of a false Abreviation and Felons cannot be attainted by the Oathes of the Iurors which had rather suffer strangers to be robbed and
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
brought an action of debt against the now Plaintiff upon an Obligation of a hundred and twenty pounds to which the now Plaintiff appeared by his Attorney and required a Declaration and the now Defendant on the part of the said William Carter his Master gave the said Declaration and required the now Plaintiff to confesse the action and pendente Pl. he the now Defendant in consideration that the Plaintiff would give order to his Attorney to confesse the action and to suffer the said Defendant to have Iudgment in the said Plea for the said William Carter his Master assumed to the Plaintiff that no Iudgment should be entred untill after Crast Annunciat And that no execution shall be sued out untill after the end of Michaelmas Term next and shew the performance therof by him and the breach of the Defendant And after Verdict it was moved that it is no sufficient consideration and that was impossible for him to perform that Iudgment should not be entred in the Term in which Iudgment is given but that is in the discretion of the Court and afterwards Iudgment was given for the Plaintiff Pach. 19 Jac. Rot. 3014. 21 Jac. Jennings versus Pitman RIchard Jennings brought an action of Covenant against George Pitman upon an Indenture of an Apprentiship Covenant of an Apprentiship by which the Defendant had put himself to be an Apprentice to the Plaintiff in Ipswich to the Trade of a Linnen Draper and there were divers clauses in the Indenture according to the usuall form and assigne for breach the wasting of severall summe of money The Defendant pleaded the Statute of 5 Eliz. by which it is enacted That it is not lawfull for any one inhabiting in any City or Towne Corporate using the Trade of a Merchant over the Sea Mercer Pannary Goldsmith Iron-monger Imbroyderer or Clothier to take any Apprentice to be instructed in any of these Trades if it be not his Son or that the Father or Mother of such Apprentice had at the time of the taking of him Lands Tenements or Hereditaments of Inheritance or Freehold of forty shillings per annum to be certified by three Iustices of Peace under their hands and Seals where the Land lies to the Mayor Bayliffs or other head Officer of the City or Town Corporate and to be inrolled entred and recorded there and pleaded the clause of the Statute which makes Obligations and Covenants void which are taken against it And averred that Ipswich was a Town Corporate at the time of the making of the Statute The Plaintiff replyed that his Father had at that time when he was bound Lands and Tenements in great Bealing viz. ten acres to the Value of forty shillings per annum The Defendant by Rejoynder offer to joyn Issue that his Father had not Lands c. wherupon the Plaintiff demurred And the question was If this part of the Statute To be certified by the Justices c. be such an essentiall part therof that the Covenant be void without it It was agreed that it had not been put in use after the Statute but it seems that it is Essentiall and it ought to be so at the time when he is put to be an Apprentice but it may be enrolled afterwards for the Statute in another part provides a penalty for the not Inrolling Like to the Case upon the Statute of 18 Eliz. That they which claim any Estate of them which were Attainted in the Rebellion they brought their Conveyances to the Exchequer to be inrolled within one year if they bring and deliver these Conveyances though they be not inrolled yet they have performed as much as was in them And if the Certificate be not at the time when the party is put to be an Apprentice the Statute was to no purpose If this Bar be good then the Replication is a departure and the Rejoynder also and the Bar being good Iudgment shall be given against the Plaintiff but if the Bar be not good then for the Plaintiff for the Count contains matter certain But the Court moved whether this Covenant lay against an Insant for although it is by the Statute provided that he shall be bound to serve as a man of full age yet that makes not the Covenants good and it is like to a Custom which shall be taken strictly Trin 20 Jac. This Case between Jennings and Pitman was moved this Term And the Lord Hobart was of opinion that this Statute being that it appears that he was within age scil sixteen years will not bind him to any Covenants which are not implyed in the Indenture of serving For the doubt was whether an Infant was an Apprentice out of London though that he put himself to serve And the only matter which binds him in this Statute is that he shall be bound to serve when he is bound by Indenture being within age as well as if he were of full age and if the Covenant be only a Covenant to serve no Covenant lies for Imbeziling of Goods And if the Covenant be to serve him faithfully and diligently that shall not bind him upon this Covenant And I was of the same opinion for it is only made good as to the serving and there are many Covenants and Clauses besides in this Indenture which bind him not As not to play at unlawfull Games c. And a Custom that an Infant at such an age may sell his Land shall be taken strictly viz. that he cannot give it c. But my Brother Winch was of opinion that it was a thing incident and a quasi Consequent viz. That if he shall be bound to serve by consequence he shall be bound to serve faithfully and truly He resembled it to the case of a Fine levied by an Infant and not reversed during his â—onage that shall bind him and by consequence the Indenture which leads the uses of the Fine and when the Law enables to any thing that which is incident and without which the other thing cannot be is implyed Trin. 19 Jac. Rot. 1734. Blemmer Hasset versus Humberstone Norf. JN an Ejectione firmae brought by Ralph Blemmerhasset against William Humberstone for Land in Pucklethorp Ejectione firmae upon a Lease made by John B. upon a speciall Verdict found it was resoved A Copyhold may be extinguisht without an actuall surrender that when a Copyholder bargain and sell his Copyhold to the Lord of a Mannor which hath the Mannor in Lease for years that therby the Copyhold Estate is extinguished And the Lord Hobart said that if a Copyholder come into Court and saies that he is weary of his Copyhold and request the Lord to take it that is a Surrender for between the Lord and the Tenant a Conveyance shall not need to be according to the Custome for the Copyholder hath no other use of the Custome but only to convey the Land to another vide Coke lib. 4. That a Release by him which hath Right to a
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 Kings Bench is never to enter the Admission but only to recite it in the Count vide 11 H 7. Rot 412. In a Writ of Right by Baron and Feme and another Feme Infants there per custodes good vide 8 E 4 5. for the Mainprise entred in another Term lib Intractionum fol 366. It was vouched by Croke and affirmed by Yelverton in one Simpsons case in Durham Simpsons case where the Tenant was by Prochein amy where it should be by Guardian was Error The Presidents are that an Infant when he sue may be by Guardian or Prochein amy the one or the other but when he is sued it shall be by Guardian Mich. 3 Car. Wolfe versus Hole WOlfe an Attorney Plaintiff against Hole by a Writ of Priviledge Amendment and he Count upon an Assumpsit And after Verdict given and Iudgment a Writ of Error was brought and moved that there was a default in the Imparlance Roll viz. fault de trover pledges which was as it ought to be in the Plea Roll And it was moved that it might be amended and after debate at Bar by Henden and Davenport it was resolved that the not finding of Pledges is not matter of form but matter of substance and it concerns the King for if the cause to amerce the Plaintiff the Iudgment is Ideo le Plaintiff ses pledge sont Amerce and that it is not aided by the Statute of 18 Eliz. quod quaere and vide 12 Eliz Dyer 288. there is a Case written by me that An 17 Jac was amended after the Verdict and in one Hillaries case and vide thâ—re in Dyer that the Plaintiff when he is sued by Priviledges ought to find pledges and that as well as when a Bill is filed against an Attorney But now because that it was assigned for Error and that if it be amendable the Iustices of the Kings Bench would amend it this Court would not but if it had been in the Imparlance Roll and omitted in the Plea Roll it should be amended vide 18 E 4. 9. that Pledges may be entred at any time Hil. 2. Car. Rot. 565. Hilton versus Paule RIchard Hilton brought an action of Trespasse against Robert Paule Trespasse Which shall be said a Parish Church within the act of 43 Eliz. for the maintenance of thâ— poor for the taking of a Saddle at Stoke-Goldenham And upon Not guilty pleaded the Iury gave a speciall Verdict Viz. That the Parish of Hinkley was de temps dont memory c. and yet is an ancient Rectory and a Church Parochiall And that the Town of Stoke-Goldenham is an ancient Town and parcell of the Rectory of Hinkley And that from the time of H. 6. and afterwards untill this time there hath been and is in the Town of Goldenham a Church which by all the said time hath been used and reputed as a Parish And that the Inhabitants of Stoke-G by all the said time had had all Parochiall Rights and Church-wardens And that the Towâ—â— of Stoke-Goldenham is distant two miles from Hinkley And the Verdict concluded it it should seem to them that Stoke Goldenham is a Parish for the relief of Poor within the Statute of 43 Eliz. cap. 2. then they find for the Plaintiff if not for the Defendant And this Case was argued by Serjeant Barkley and he vouched Linwood fol 89. and said that there is Ecclesia major minor and a dependant Church upon the principall and another Church and which is found to be used and reputed ergo it is not a Parish And that the Exception of the Chappell of Foulnes which by the Statute is made a Parish proves that Chappell and Parish are not within the Statute he vouched 4 E 4. 39. and 5 E 4. to prove that divers Town may be one Parish And the Lord Richardson said that it is a clear case that this is a Parish within the intent of the Statute of 43 Eliz. for the relief of Poor And that the Church-wardens and Overseers of Stoke-Goldenham might assesse for the relief of the Poor And though it be found that after the time of H. 6. and untill now it had been used as a Parish Church that doth not exclude that it was not used so before And a Reputative Chantery is within the Statute of Chantries 1 E 6. And this Statute being made for the relief of the Poor and that they might not wander therfore the intent of the Statute is to confine the relief to Parishes then in esse and so used And every one of the Court delivered their opinion and concurred And so Iudgment was given for the Plaintiff Hil. 3 Car. Peto versus Pemmerton Mich. 3 Car. Rot. 414. Replevin SIr Edward Peto Knight brought Replevin against Robert Pemmerton and Giles Thompson The Defendants made Conusance as Bayliffs to Humphrey Peto Where Grantee of a Rent-charge takes a Lease of part of the Land and surrenders it the Rent shall be revived and that Humphrey the Father of the said Humphry was seised of the place in which c. in Fee and by his Deed granted the Rent of six pounds to the said Humphrey his Son for life out therof to Commence after the Death of the Grantor and shewed that Humphrey the Father died and for Rent arrear c. The Plaintiff in Bar to the Avowry confesse the grant and seisin of the Land and that the said Humphrey died seised of the Land out of which the Rent was granted and that that descended to William and from William to the Plaintiff who entred and demised to the said Humphrey the Son parcell of the Lands unde c. for five hundred years by force of which Lease the said Humphrey had entred and was possessed The Defendants replyed that afterwards and before any part for which they made Conusance was arrear the said Humphrey the Son surrendred the said Lease to Sir Edward Peto to which surrender the said Sir Edward agreed wherupon the Plaintiff demurred And this Case was argued by Henden and he said that when the act of him which had the Rent made the suspension his act alone could not revive it But a Rent suspended might be revived by the act of Law or by the joynt act or agreement of the parties by whom the suspension was made 21 H. 7. 7. 19 H 6. 4. 19 H 6. 45. 7 H 6. 2. As for the personall things when they are suspended they are extinct unlesse it be in auter droit as if Feme Executrix take the Debtor to Husband and the Baron dies the Wife shall have an action of Debt against his Executors One reason in this case is because that by the surrender which is accepted the Contract is determined and that is by the act of both And by the surrender the Estate for years is extinguisht to all purposes as to that to which the surrender was made as if he had granted a Rent now it shall
to him and he will pay for the making therof that is a good consideration vide Coke lib 8. fol 147. And in this case all the Court were of opinion that the consideration was good for wheras he might have detained the Horse untill he had been paid for the pasture and feeding he at the speciall request of the Defendant had delivered the Horse to him to the use of the Owner which is to the prejudice of the Plaintiff and alienest to him to whose use he was delivered And Iustice Harvey vouched a case which was in this Court adjudged which was in consideration that the Plaintiff had promised to pay to the Defendant ten pounds at a day according to the Condition of an Obligation the Defendant promised to deliver the Obligation and adjudged a good Consideration Turner versus Hodges THe Custom of the Mannor of _____ is found to be for the Copyholders without the License of the Lord of the Mannor they being seised in Fee may make any Lease for a year Custom in a Mannor to make aâ— Lease for years or many years and when they dye that â—â—e 〈◊〉 shall cease and that the Heir or Heirs may enter It was moved in Arrest of Iudgment that this was a bad Custom and that the Copyholders had by Custom an Inheritance and might by the generall Custom of the Ream make a Lease for one year And that tenor the generall Custom of the Realm but the Custom of every Mannor within the Realm vide Coke lib 4. fol 26. in Melwiches Case Custom creates the Estate and the Custom is as ancient as the Estate and is casuall and upon the Act of God and is reasonable that the Heir who is to pay the Fine should have the Possession And yet a Custom that if the Copyholder had surrendred to the Lord that the Lease should be void had been a 〈◊〉 Custom because that he might subvert and destroy by his own act that Estate that he himself had made and he which took the Lease haâ—ing notice of the Custom takes the Lease at his perill for otherwise he might have procured the License of the Lord and then by this License the Lord had dispenced therwith and that is as it were the Confirmation of the Lord For if a Copyholder makes a Lease for twenty years with the License of the Lord and after dies without Heirs yet the Lease shall stand against the Lord by reason of his License which amounts to a Confirmation And the Plaintiff had Iudgment Hil. 4 Car. EJectione firmae was brought and count upon a Lease made by Husband and Wife Lease by Baron and Feme without reservation of any Rent and that was by Indenture And upon Not guilty pleaded a speciall Verdict was given in which the sole question was Whether this Lease was made by Baron and Feme being there was no Rent reserved therby It was objected that this Lease could not be made good by the Feme by any acceptance and therfore it is not the Lease of the Feme no more then if the Verdict had found that the Lease was by an Infant and no Rent reserved that had been a void Lease But it is contrary of a Baron and Feme for the Baron had power and the Feme joyning in the Lease it is not void for she may affirm the Lease by bringing a Writ of Wast or she may accept Fealty And so was the opinion of the Court and Iudgment entred accordingly vide Coke lib 2. fol 61. in Wiscots case Count of a Lease by Baron Feme and shew not that it was by Deed and yet good vide Dyer 91. Pasch 5 Car. Paston versus Utber JOhn Paston brought Ejectione firmae against Barnard Utber upon a Lease made by Mary Paston And upon Not guilty pleaded a speciall Verdict was found at the Bar and the Case was thus Custom that the Lord have a Feild-course over the Lands of his Coppyholders if the Tenant inclose it is no forfeifture Barnard Vtber seised of the said Land to him and his Heirs by Copy of Court-Roll according to the Custom of the Mannor of Binham And that within that Mannor there is such a Custom that the Lord had had one field course for five hundred Ewes in the North-field and the West-field wherof these fifteen acres were parcell from the Feast of Saint Michael if the Corn were inned and if it were not then after the Corn were inned untill the Feast of the Annunciation if it were not before that time sown again with Corn in all the Lands of the Copyholders not inclosed And that it is a Custom that no Copyholder may inclose any Copyhold Land without the License of the Lord And if any be inclosed without License then a reasonable fine should be assessed by the Lord or his Steward for the Inclosure if the Lord would accept therof And it is also a Custom that if the Lord will not accept therof then the Copyholder which so incloseth shall be punished at every Court after untill he open that Inclosure And the said Vtber inclosed the 15. acres with an Hedge and Fence of Quick-set 3. feet deep and 6. feet broad and that he had left 4. spaces of 9. feet broad in the said 15. acres And that the said Vtber was required by the Steward to lay open the said Inclosure and he did it not whereupon there was a command to the Bayliff to seise them as forfeit which was done And the said Mary being Seignoress of the Mannor entred and leased to the Plaintiff and the Defendant entred upon him Serjeant Davenport argued that it is a forfeiture and against the Custom which creates the Feildage for the Lord as well as the Estate of Copyhold for the Tenant and that this leaving of four spaces is a fraud and device and that it is against his Fealty and is to the damage of the Lord and a thing unlawfull vide Dyer 245. 34 E. 1. Formedon 88. 15 A 7. 10. 29 E 3. 6. That if the Tenant inclose the Commoner may break his hedges And though by Littleton an Inclosure which is a Disseisin is a totall Inclosure wherby he which hath the rent cannot come to distrain yet this also is an Inclosure because that it obstructs the feild-course for they cannot come so freely without interuption or damage for the hedges may deprive the Sheep of their wooll And he compared it to the case of 3 H. 7. 4. One is obliged to make an Estate of his Mannor of Dale if he alien part and then make a Feoffment the Condition is broken and vide 5 E 3. fol 58. a Recognizance with Condition to make a Feoffment to I. S. of the Mannor if he alien part therof he forfeit his Recognizance he vouched 42 E 2. 5. and Coke lib 4. that deniall of Services or making of Wast is a forfeiture 22 H 6. 18. 41 E 3. Wast 82. Dyer 364. And though that the Lord may