the Kings Bench an Ejectione firme was brought for the Gate-house of Westminster and the Jury found the Defendant guilty for so much as is between such a room and such a room and adjudged good and here it is as uncertain as in our case Mich. 19 Iacobi Smalls case in Hobarts Rep. The Jury in an Ejectione firme found the Defendant guilty of a third part and good Mallet Serjeant that the Verdict is uncertain and therefore not good And it is not sufficient that the certainty appear to the Jury for it behooveth that certa res deducatur in judicium Institut 227. a. 3. E. 3. 23. b. 18 E. 3. 49. 40 E. 3. 5 Rep. Playtors case Secondly here is no certainty for the Sheriff to give execution for so much in length or in breadth that is quod stat super ripam doth not appear And thirdly thereupon great inconvenience will arise that no attaint will lie upon such uncertain Verdict so as the defendant shall be without remedy and the whole Court except Justice Crawley Banks Reeve and Foster did resolve that the Verdict was insufficient for the incertainty and all agreed That there is great difference betwixt Trespass and Ejectione firme for such Verdict in Trespass may be good for there damages are only to be recovered but in an Ejectione firme the thing it self And their reason in this Case was That although the certainty may appear to the Jury yet that is not enough for they ought to give judgment oportet quod certa res deducatur in judicium And they agreed that if they had found him guilty of a Room it had been good and so the Cases on the Acre of Land and of the third part of a Mannor is good for those are sufficiently certain for of them the Law takes notice The Opinion of Crawley wherefore the verdict should be good was because the demand here was certain although the Jury found it in tanto c. And where there may be certain description for the Jury it is good enough and the rather because the Verdict is the finding of lay gents and he compared it to the case of the Gate-house aforesaid but he agreed that if the Writ of Ejectione firme had been brought de tanto unius messuagii c. quod stat super ripam that it would not have been good but the Verdict is good for the reason aforesaid But Justice Reeve said that that which is naught in the demand is naught in the Verdict and therefore naught in the judgment and therefore the Court would not give judgment and therefore a Venire facias de novo was prayed and granted by the Court. 169. Couch libelled against Toll ex officio in the Ecclesiastical Court for Incontinencie without a Citation or presentment and for that the Defendant was excommunicated and Gotbold prayed a Prohibition which was denied by Crawley and Reeve Justices the others being absent and it was said by Reeve That where they proceed ox officio a Citation is not needful but put case it were yet they said that no Prohibition is to be granted as this case is because that where the Ecclesiastical Court hath Jurisdiction although they proceed erroneously yet no Prohibition lieth but the remedy is by way of Appeal and there he shall recover good costs and it was said by Crawley That if the party be retorned cited and he is not cited That an Action upon the case lieth 170. A woman libelled in the Arches against another for calling of her Iade and a Prohibition was prayed and granted because the words were not defamatory and do not appertain unto them And Reeve said that for Whore or Bawd no Prohibition would lie but they doubted of Quean 171. Bacon Serjeant prayed a Prohibition to the Court of Requests upon this suggestion That one Executor sued another to accompt there and an Executor at the Common Law before the Statute of West 2. cap. 11. could not have an accompt for cause of privity and now by that Statute they may have an accompt but the same ought to be by Writ and therefore no accompt lieth in the Court of Requests Secondly they have given damages where no damages ought to be given in an Accompt And lastly they have sequestred other Lands which is against the Law and for these reasons he prayed a Prohibition Whitfield Serjeant contrary 1. It is clear that an accompt by Bill lieth for an Attorney in this Court and so in the Kings Bench and Exchequer and as to damages it is clear that in an accompt a man shall recovâ—â— damages upon the second judgment but as to the sequestâ—â—ion he could not say any thing but further he said That it was not an accompt but only a Bill of discovery against Trustees who went about to defeat an Infant and upon the reading of the Bill in Court it appeared that the suit was meerly for the breach of a trust and for a confederacie and combination which is meerly equitable Wherefore a Prohibition was denied because it was no accompt but as to the Decree for sequestring other Lands the Prohibition was granted Trin. 17º Car ' in the Kings Bench. 172. EAste brought an Action upon the Case upon an Assumpsit against Farmer because that where the Plaintiff had sold to the Defendant so much wood the Defendant in consideration thereof did assume and promise to pay so much money to the Plaintiff and to carâ—â— away the wood before such a day the Defendant pleaded thâ— he paid the money at the day aforesaid but as to the carrying of it away before the day he pleaded non assumpsit and the Jury found that he did not pay the money at the day but as to the other they found that he did assume and promise as aforesaid and it was moved in Arrest of judgment that the finding of the Jury was naught for being but one Assumpsit and the same being an intire thing it could not be apportioned and therefore they ought to find the intire Assumpsit for the Plaintiff or all against him And the Court agreed all that and awarded that there should be a Repleader and the Chief Justice Bramston said That for the reason given before the Defendants plea was not good and therefore the Plaintiff might have demurred upon it which he hath not done and therefore they agreed that the Verdict was naught for the reason aforesaid 173. Williams was indicted at Bristow upon the Statute of 1 Iac. cap. 11. for having two wives and upon not Guilty pleaded the Jury found a special Verdict which was thus That the said Williamt married one wiâ—e and was afterwards divorced from her causa adulterii and afterwards married the other and if that were within the Proviso of that Statute which provides for those who are divorced was the Question And it was resolved without argument by Bramston Chief Justice and Heath Justice the other being absent That it is within the Proviso for the
choose their Church-wardens and they chose two the Parson chose a third The Official of the Bishop gave Oath to one of them chosen by the Parish but refused to swear the other and would have sworn the party chosen by the Parson but the Parish was against it upon which the Parson Libelled in the Ecclesiastical Court And a Mandat was here praid That the Official swear the other who was chosen by the Parish and a Prohibition to stay the Suit in the Ecclesiastical Court. Upon the Mandat the Justices doubted and desired that Presidents and Records might be searched and at length upon many Motions Presidents and Records shewed a Mandat was granted But there being Suit in the Ecclesiastical Court bâ— the other whom the Parson chose a Prohibition was granted without any difficulty But at first the Counsel prayed a Prohibition for not swearing the other which the Court refused to grant because there was no proceeding in the Ecclesiastical Court and a Prohibition cannot be granted where there is no proceeding by way of Suit Vaughan against Vaughan in Action upon the Case upon Assumpsit 51. THe Defendant did promise that he would make such a Conveyance of certain Lands and pleaded That he had made it but did not shew the place where it was made And the Court was clear of Opinion that he need not for it shall be intended upon the Land And so in case of performance of Covenants it is not needful to shew the place where c. Norrice and Norrices Case 52. COpy-holder for life where the custome is That if the Tenant die seised that he shall pay a Heriot The Lord granted the Seigniory for 99 years if the Tenant should so long live And after that he made a Lease for 4000 years Tenant for Life is disseised or more properly ousted and died Here were two Questions 1. Whether there were any Heriot to be paid and admitting there were yet who should have it whether the Grantee for 99 years or he who had the 4000 years And the Court was clear of Opinion in both points without any argument 1. That a Heriot was to be paid not withstanding that the Tenant did not die seised because he had the estate in right and might have entred although he had not the possession And Justice Barckley compared it to the Case in C. 3. Rep. 35. a. in Butler and Bakers Case where a man hath one acre of Land holden in Capite and a hundred acres of Socage Land and afterwards he is disseised of the Capite Land and afterwards makes his will of all his Socage Land in that case he is a person having of Capite Land as the Statute speaks And yet that right of Capite Land shall make the devise void for the third part for notwithstanding the disseisin yet he is Tenant in Law And as to the second point the Court was clear of Opinion also That he in remainder or he that had the Estate for 4000 years for note the Action was brought by him in the Remainder for the Heriot should not have it And their reason was because the Tenant for life was not the Tenant of him who had the future interest of 4000 years but of him who had the interest for 99 years But they were not clear of opinion that the Grantee for 99 years should have the Heriot Justice Barckley was that the Grantee for 99 years should have it But Justice Iones there being then none in Court but they haesitavit And the reason of the doubt was because that eo instante that the Tenant died eodem instante the estate of the Grantee for 99 years determineth Justice Iones put this Case A Seigniory is granted for the life of the Tenant the remainder over in fee the Tenant dieth Who shall have the Ward Justice Barckley said he who is Grantee of the particular estate but Iones seemed to doubt it Vide 44 E. 3. 13. Lewes against Jones in a Writ of Error 53. JUdgment was given for Iones against Lewes in an Action brought in the Common Pleas And Lewes here brought a Writ of Error and assigned for Error That he was an infant at the time of the Action brought against him And that he appeared by Attorney whereas he ought to appear by Guardian or procheine amy The defendant pleaded in avoidance of this Writ of Error That there was no Warrant of Attorney The Plaintiff allegando shewed the Error before And the Defendant pleaded in nullo erratum est And the Judgment was reversed But the Opinion of the Court was That the better way had been for the Plaintiff to have demurred in Law for there being no warrant of Attorney there was no appearance at all and so are the Books 38 E. 3. and 14 E. 4. 54. In Vtburt and Parhams Case it was agreed That a man may be Non-suit without leave of the Court but he cannot discontinue his Suit without consent of the Court. Davis and Bellamies Case in Attaint 55. THe Defendant brought Attaint and the Verdict was affirmed and Costs prayed upon this Rule that where the Plaintiff shall have costs there the Defendant shall have costs But they were denied by the Court for that ought to be taken in the original Action and not in case of Attaint But upon the restituatur there costs shall be given but that is in the original Action 56. If two joynt-tenants be of a Rectory and one sueth for Tithes by himself only it is nâ— cause of Prohibition So if a Feme Covert sue solely upon a desamation a Prohibition shall not be granted 57. The Sheriff of a County made a Warrant Balâ—ivis suis to arrest the body of such a man and the Bayliffs of the Liberâ—y return a Rescous And Exception was taken to it because that the Warrant was Ballivis suis and the Return was made by those who were not his Bayliffs and it was adjudged for the Liberty might be within his Bayliwick and so are all the Presidents And there was another Exception because the place of the Rescous was not shewed and for that the Book of 10 E. 4. was cited for there the Rescous was adtunc ibidem and did not shew the place To that it was answered by the Court and agreed that adtunc ibidem is altogether incertain if the place be not shewed but in the principal Case the place was shewed at the first and always after that tunc ibidem only without naming of the place and adjudgâ—d good For that tunc ibidem throughout the Declaration hath reference to the place first shewed and it was adjudged good 58. Outlawry was reversed for this Error because that the Exigent was Secund exactus ad Com' meum ibidem c. 59. A Hundred may prescribe in Non decimando and it is good for it is the custome of the County which is the best Law which ever was But a Parish or a particular Town cannot prescribe in Non decimando And
therefore iâ— the King be deceived either in point of profit or in point of Title his Grant is void 9 H. 6. Where he is not deceived in point of profit he shall not avoid the Grant 26 H. 8. The second reason That a Deed ought to be construed Vt res magis valeat quam pereat 34 H. 6. A man having a Reversion deviseth his land in Manibus thereby the Reversion passeth 9 E 4. 42. Release of all Actions against Prior and Covent shall be construed and intended all Actions against the Prior only for an Action cannot be brought against the Covent Farther by this construction you would avoid this deed and by the Rule of Law the deed and words of every man shall be taken very strong against himself ut res magis valeat as is said before And it is against reason to conceive that it was the meaning of the parties that nothing should pass A third reason was because the grant was a distinct clause of it self And the words which were objected at the Bar to be restrictive were in another distinct clause and therefore shall not restrain that which was before for words restrictive ought to be continued in one and the same sentence Wherefore they having granted all their Tithes in Chesterton by one clause the false recital afterwards in another clause shall not make the grant void See 3 4 Eliz. Dyer in Wast 31 Eliz. the Lord Wenworths Case in the Exchequer upon this Rule of distinct clauses And Atkins and Longs case in the Common Pleas upon which cases Justice Iones did rely The fourth reason was That construction ought to be made upon the whole Deed And it appeareth by the context of the Deed That it was the meaning of the parties to grant the Tithes by the Deed. Further the Exception of the four things sheweth That it was the meaning of the parties to grant all things not excepted as the Tithes in this Case For exceptio firmat Regulam And to what purpose should the Exception be if they did not intend to pass all other things not excepted See 4 Car. Hâ—skins and Trâ—ncars Case Sir Robert Napwiths Case 21 Iac. cited by the chief Jâ—â—tice to that purpose Wherefore it was agreed by the whole Court that Judgment should be given for the Defendant And the Opinion of the Court was clear also That although some of the Tithes had been in the Tenure of Margaret Petâ—e that yet the grant was good And that was after Argument upon the Demurrer to avoid all scruples to be after made by Counsel because it was conceived That some of the Tithes were in her Tenure Crisp against Prat in Ejectione firme 67. THe Case upon the four Statutes of Bankrupts viz. 34 H. 8. 13 Eliz. 1 Iac. and 21 Iac. was thus Ralph Brisco 9 Iac. purchased Copyhold to him and his Son for their lives the Remainder to the Wife in Fee 11 Iac. he became an Inholder and about twelve years after a Commission of Bankrupt is obtained against him And thereupon the copyhold-Copyhold-land is sold by the Commissioners to the Defendant Ralph Brisco dieth and his Son Iohn Brisco entred and made the Lease to the Plaintiff The Defendant entred upon him and he brought an Ejectione firme And Judgment was given upon solemn argument by the Justices for the Plaintiff The first point was Whether an Inholder be a Bankrupt within these Statutes And it was resolved by all the Justices viz. Iones Crook Barckley and Bramstone chief Justice that an Inholder quatenus an Inholder is not within these Statutes Justice Barckley and Justice Iones one grounded upon the special Verdict the other upon the Statutes did conceive That an Inholder in some cases might be within these Statutes Justice Barckley did conceive upon this special Verdict that this Inholder was within them because it is â—ound That he got his living by buying and selling and using the Trade of an Inholder And he conceived upon these words Buying and selling in the verdict and getting his living thereby although that the Jury have also found him an Inholder that the same is within the Law And he agreed That he who liveth by buying or selling and not by both is not within the Law but in our case the Jury have found both And it hath been adjudged That he who buys and sells cattle and stocks his ground with them that he may be a Bankrupt within those Statutes I agree that a Scrivener was not within 13 Eliz. for he doth not live by buying and selling but by making use of the monies of other men but now he is within 21 Iac. But in our case the Inholder buys his grass hay and grains and provision also for his Guests and by selling of them he lives But he agreed That if the Jury had found that he was an Inholder only and not that he did get his living by buying and selling that in that case he was out of the Law And for these reasons he did conceive That this Inholder as by the special Verdict is found was within the Statutes of 13 Eliz. and 21 Iacobi Justice Iones An Inholder may be or not be within these Laws upon this difference That Inholder who gets his living meerly by buying and selling as many of the Inholders here in London do they are within these Statutes But those who have Lands of their own and have hay and grain and all their provisions of their own as many have in the Country those are not within the Statutes Farther he said That buying and selling doth not make men within these Statutes for then all men should be within the Statutes but they ought to be meant of them who gain the greatest part of their living thereby and live chiefly or absolutely thereby But Bramston chief Justice and Justice Crook were clear of Opinion that an Inholder could not be a Bankrupt neither by the Statutes nor according as it is found by the special Verdict And their reason was because that an Inholder doth not live by buying and selling for he doth not sell any thing but utter it He which sells any thing doth it by way of contract but an Inholder doth not contract with his Guests but provides for them and cannot take unreasonable rates as he who sells may and if he doth he may be Indicted of Extortion which the seller cannot Wherefore they concluded that an Inholder is not within the Statute of 13 Eliz. 1 Iac. Justice Crook remembred these Cases Webb an Inholder of Vxbridge brewed in his house and sold his Beer to his Guests And it was adjudged in the Exchequer that it was not within the Statute of Brewers And Bedells Case who being a Farmer bought and sold cattle and adjudged that he was not a Bankrupt within these Statutes And he put thâ—se cases upon this reason That where the Statutes said Get their living by buying and selling that it ought to bâ—â—or the greater part that they gain
the Actions brought by the other Creditors But Justice Bramston contrà That the damages were well assessed because that the Actions brought by the Creditors were added for aggravation only and the cause of the Action was the Arrest and Imprisonment like the case where a man speaks words which are in part actionable and others only put in for aggravation and damages is assessed for the whole it is good There was a third Error assigned That the Venire facias was de Warda omnium Sanctorum de Bristow without shewing in what Parish Childe against Greenhil 77. CHilde brought Trespass against Greenhill for Fishing in seperali piscaria of the Plaintiff and declared that the Defendant pisces ipsius cepit c. And Verdict found for the Plaintiff And it was moved by Saint-Iohn in Arrest of Judgement because the Plaintiff declared of taking of pisces suos whereas the Plaintiff they being ferae naturae hath not property in them Register 94 95. and F. N. B. and Book Entries 666. No count that the Defendant cepit pisces ipsiuâ— but ad valentiam c. without ipsius So Fines Case in Dyer 7 H. 6. 36. 10 H. 7. 6. 12 H. 8. 10. by Brudnell 13 E. 4. 24. 7 Rep. case of Swannes And the Book of 22 H. 6. 59. is over-ruled by the case of Swannes 34 H. 6. 24. And the same is matter of substance and therefore not helped after Verdict An Action of Trover and Conversion against husband and wife quia converterunt is not good and it is not helped after Verdict because it is matter of substance Rolls for the Defendant I agree that lepores suos or pisces suos without any more is not good But where he brings an Action of Trespass for taking them in his Soil there it is good because it is within his Soil So in our case for taking pisces suos in his several Piscary and with this difference agree 22 H. 6. 59. 43 E. 3. 24. so Regist. 93 102. 23 H. 6. tit Tresp 59. 14 H. 8. 1. and the Book of 43 E. 3. saith That in Trespass the Writ shall not say Damam suam if he do not say that it was taken in his Park or Warren or saith damam domitam or as the Book is in 22 H. 6. in my Soil or Land and by Newton he shall say there damas suis. And admit that it was not good yet I hold that it is helped after Verdict because it is not matter of Substance for whether they be pisces suos or not the Plaintiff shall recover damages Justice Barckly It is true that in a general sense they cannot be said pisces ipsius but in a particular sense they may and a man may have a special or qualified property in things which are ferae naturae three ways ratione infirmitatis ratione loci ratione privilegii and in our case the Plaintiff â—ath them by reason of Priviledge And it was agreed by the whole Court That Judgment should be affirmed upon the very difference taken by Rolls that where a man brings Trespass for taking pisces suos or lepores suos c. and the like that the Action will not lie But if he bring Trespass for fishing in his several Piscary as in our Case or for breaking of his Close and taking lepores suos c. there it will lie Pitfield against Pearce 78. IN an Ejectione firme the Case was thus Thomas Pearce the Father was seised of Lands in Fee and by Deed in consideration of Marriage did give and grant this Land to Iohn Pearce the now Defendant his second Son and to his Heirs after his death and no Livery was made Thomas Pearce died the Eldest Son entred and made a Lease to the Plaintiff who entred and upon Ejectment by the Defendant brought an Ejectione firme Twisden The only question is whether any estate passeth to the Son by the Deed and it was said there did and that by way of Covenant And it was agreed That in this Case if Livery had been made it had been void because that a Freehold cannot begin at a day to come But I may Covenant to stand seised to the use of my Son after my death So a man may surrender a Copyhold to take effect after a day to come Com. 301. So a man may bargain and sell at a day to come 1 Mar. Dyer 96. Chudleighs Case 129. 20 H. 6. 10. A use is but a trust betwixt the parties and 7 Rep. 400. There need not express words of Covenant to stand seised to an use 25 Eliz. Blithman and Blithmans case 8 Rep. 94. Besides these words dedi concessi are general words and therefore may comprehend Covenant and words shall be construed that the Deed may stand if it may be 8 Ass. 34. 7 E. 3. 9. But I agree that if the intent appeareth that it shall pass by transmutation of possession that there it shall be so taken but here his intent doth not appear to be so for if there should be Livery then the son should take nothing for the reason before given which is against his meaning Mich. 21 Iac. Rot. 2220. Buckler and Simons Case Dyer 202. Vinions case The cases cited before are in the future tense but the words are here I give c. 36 Eliz. Callard and Callards Case Stand forth Eustace reserving an estate to my self and my wife I do give thee my Land and the better Opinion was That in that case it did amount to a Livery being upon the Land for his intent is apparent Mich. 41 42 Eliz. Trelfe and Popwells Case adjudged in such case That an use shall be raised For which it was concluded that in this case there is a good estate raised to Iohn Pearce by way of Covenant Rolls I conceive that not estate is raised to Iohn Pearce by this conveyance It was objected That it shall inure by way of Covenant to raise an use I agree that if the meaning of the party may appear that he intended to pass his estate by way of raising of an use otherwise not And here is no such appearance Foxes Case in 8 Rep. is a stronger case and here it doth not appear that he meant to pass it by way of use But by the word give he intended transmutation of possession 8 Rep. Bedells case Mich. 18. Car. Rot. 2220. in the Common Pleas it was adjudged That a gift of a Remainder after the death of the grantor was void wherefore he concluded for the Plaintiff and so Judgment was given by the whole Court And Justice Iones said When a man makes a doubtful Conveyance it shall be intended a Conveyance at the Common Law And it shall not be intended that the Father would make him Tenant for life only punishable of wast Mich. 15º Car ' in the Kings Bench. 79. IT was moved for a Prohibition to the Counsel of the Marches and the Case was such A man seised of Lands in Fee
doubted thereof and did conceive that no costs should be given in this case and that upon Pilfords case 10 Rep. As to the Presidents he said that they did not bind him for perhaps they passed sub silentio And afterwards it was adjorned Johnson against Dyer 96. IN an Action upon the Case for words the Defendant having speech with the Father of the Plaintiff said to him I will take my Oath that your Son stole my Hens For which words the Plaintiff brought the Action But did not aver that he was his Son or that he had but one Son And it was holden by the whole Court Crooke being absent that the plea was not good Leake and Dawes Case 97. LEake brought a Scire facias in the Chancery against Dawes to avoid a Statute and the Case as it was moved by Serjeant Wilde was such Hopton acknowledged a Statute to Dawes and afterwards conveyed part of the Land liable to the Statute to I. S. who conveyed the same to Leake the plaintiff and afterwards the Conusor conveyed other part of the Land to Dawes the Defendant who was the Conusee by bargain and sale the Conusee extended the Lands of Leake the Purchaser who thereupon brought this Scire facias to avoid the Statute because that the Conusee had purchased parcel of the Land liable to the Statute and so exâ—inguished his Statute And this case came by Mittimus into the Kings Bench. And here it was moved by Serjeant Wilde for Dawes the Defendant in arrest of Judgment And taken by him for Exceâ—â—ion That the bargain and sale is alledged to be made to Dawes but it is not shewed that it was by Deed inrolled but yet it is pleaded That Virtute cujus viz. of Bargain and Sale the Conusee was seised and doth not shew that he entred And here it was said by the Court There are two points First Whether an Inrolment shall be intended without pleading of it Secondly Admitting not what Estate the Bargaineâ— hath as this Case is As to the first Justice Iones took this difference Where a man pleads a bargain and sale to a stranger and where to himself In the first case he need not plead an Inrolment but contrary in 〈…〉 Barckley agreed it and took another difference betwixt a Plea in Bar and a Count In a Count if a man pâ—â—ad a grant of a Reversion without attorâ—ment it is good contrary in Bar so in this Case The second question is admitting that the Deed shall be intended not to be inrolled without pleading What estate Dawes the Conusee hath before Entry the Deed not being inrolled For it was agreed by the whole Court That if he be a disseior or if he hath but an estate at will that the Statute is suspended And first whether he hath an estate at will at the common Law or not without Entry Barckley that he had But Iones and Bramston contrary and it seemed that he had an estate at will by the Statute And put the case of feoffment in Bucklers case 3. Rep. Where the Feoffee entreth before Livery that he hath an estate at will and Barckley agreed therein with him for the possibility of inrolment But Iones conceived that an estate at will could not be executed by the Statute And it was adjorned Curtisse against Aleway 98. THe Case was thus A woman was dowable of certain Land within the Jurisdiction of the Council of the Marches of which I. S. died seised She accepted a Rent by parol of the Heir out of the same Land in satisfaction of her Dower And afterwards there was a Composition betwixt them for defalcation of that Rent Afterwards there was an Action brought before the Council of the Marches for the Arrerages of the Rent where the question was Whether the Rent were in satisfaction of her Doweâ— or not and it was moved by Moreton for a Prohibition And it was granted by the Court because the same did concern Freehold of which they have not Jurisdiction for by the express Proviso of the Statute of 34 H. 8. of holding of plea of Lands Tenements Hereditaments or Rents But because that it appeared by the Bill that the woman was dead so as the realty was turned into the personalty viz. into Debt And therefore it was conceived by Evers Attorney of the Marches That although it was not within the Jurisdiction before yet being now turned into a personal Action that they have Jurisdiction But Iones and Barckley Justices were of a contrary Opinion and Iones said That an Action of Debt for Arrerages would not lie before them because it touched the realty which was denied by none but Evers Attorny Edwards against Omellhallum 99. IN a Writ of Error to reverse a Judgment given in Ireland in an Ejectione firme the Case was this as it was found by special verdict A Mortgager made a Lease for years by Deed indented and afterwards performed the Condition and made a Feoffment in Fee the Lessee entred upon the Feoffee who re-entred and the Lessee brought an Ejectione firme And the only question as it was moved by Glynn was Whether this Lease which did inure by way of Estople should binde the Feoffee or no and by him it did and Rawlyns case in the 4 Rep. 53. expresly and 1 2 Phil. Mar. Dyer agreeth And the whole Court Crooke only absent without any argument were clear That it should binde the Feoffee for all who claim under the Estople shall be bound thereby vid. Edriches case 13 H. 7. 100 Serjeant Iermayn came into the Court and shewed cause why a Prohibition should not be granted in the case of Skinner before who Libelled for Tythes of Coppice rooted up He agreed that for timber-trees above the growth of twenty no Tithes should be paid and so he said was the common Law before the Statute of 45 E. 3. which was but a confirmation of the Common Law And he said That as the body of the tree is priviledged so are the branches and root also which is a proof that where the body is not priviledged there neither shall be the root â—or branches And in our Case he Libels for roots of underwoods and the underwood it self being titheable therefore the roots shall be also tithable And he said that the 〈…〉 are not parcel of the Land But Justice Barckley was against it for they are not crescentia nor renovantia as Tithes ought to be and therefore no Tithes ought to be paid for them and he said that a Prohibition hath many times been granted in the like cases But Dr. Skinner did alledge a custome for the payment of Tithes of them And upon that they were to go to trial And here it was said that Dr. Skinner had used to have some special particular benefit of the Parishioners in lieu of Tithe of Roots And thereupon Barckley said That it is a Rule where the Parishioner doth any thing which he is not compellable by the Law to do
erect his Tavern For it is a disorderly Profession and not fit for every place And it was adjudged in this Court That a Brewhouse ought not to be erected in Fleet-street because it is in the heart of the City and would be annoyance to it And if one would set up a Butchers shop or a Tallow-Chandlers shop in Cheap-side it ought not to be for the great annoyance that would ensue And therefore the Mayor and Communalty may redress it And therefore the party was remanded and was advised by the Court to submit to the Government of the City Note the Recorder certified the Custom That the Mayor might appoint a place 35. Upon a Recovery in a Court-Baron against one he offered here to wage his Law And Justice Barckley doubted whether wager of Law would lie in such Case To which Justice Iones said Yes and Barckly agreed hereunto because the Recovery was in a base Court and not in a Court of Record Vide 2 E. 4. 36. No antient Mill is Tithable but Mills newly erected shall pay Tithes by the Statute of 9 E. 2. 5. Meade against Axe in a Writ of Error to reverse a Iudgment 37. THe Case was Axe brought an Action against Meade for these words spoken of the Plaintiff a Dyer by the Dâ—fendant Thou art not worth a Groat And the Plaintiff added that these words amongst Citizens of such place where they were spoken have the common acceptation and doth tant amount as the calling of him Bankrupt The Errors which were assigned by Meade Plaintiff in the Writ of Error were 1. Because it is added that the words were spoken inter diversos ligeos and doth not say Citizens of the place where they have such acceptation 2. Because that the Judgment is Consideratum est and the words per Curiam left out And the Court was clear that for these two Errors the Judgment should be reversed But the Court was clear of Opinion That the words of themselves are not actionable and that the averment in this Case was idle and to no purpose because the words of themselves imply a plain and intelligent sense and meaning to every man And it was compared to the Cases Where there is no Latine for words there where words of no signification are put to express them there they ought to be explained by an Anglicè but where the words are significant there needs not any Anglicè Now if you will explain significant words under an Anglicè contrary to the meaning and true intendment of the word it self the Anglicè is void So in our Case of Averment The reason which was conceived wherefore the words of themselves are not Actionable Because that many men in their beginnings are not worth a Groat and yet their credit is good with the world But if he had laid specially That he was damnified and haâ— lost his Credit and that none would trust him upon this special matter the words would be Actionable Bonds Case 38. IN Trespass the Plaintiff declared That the Defendant entred in his Land and did cut down and carry away two Loads of Grass in the Plaintiffs Soil in a certain piece of Ground in which the Trespass was supposed to be done to strow the floor of the Church and that he cut two Loadâ— there to estrew the floor of the Church and did not say that it is the same Trespass c. And it was adjudged Error But the Court was clear that the Prescription for cutting of grass to estrew the Church was good because it was but in the nature of an Easement And so to have a washing-place in the land of another and so the custom here in London to shoot in the land of another and so for the Inhabitants of a town to have a way over the land of another to their Church But Mr. Rolls who moved the Case at the Bar said That it was adjudged that Inhabitants of a town by custom should have an Easement over the Freehold or in the Freehold of a Stranger but not profit Apprender But as I remember the Plaintiffs Freehold lay near the Church and for that reason the Court might conceive the same to be but an Easement Vide 2 H. 3. cited by Justice Iones Vid. Gatewoods Case 6 Rep. 60. b. Conysbies Case 39. UPon the Lease of an House the Lessee Covenanted that he would Repair the House with convenient necessary and tenantable Reparations The Lessor brought Covenant and alleaged a breach of the Covenants in not repairing for want of Tiles and dawbing with Morter and did not shew that it was not Tenantable And the Opinion of the Court was that he ought to have shewed it for the house may want small Reparations as a Tile or two and a little Morter and yet have convenient necessary and tenantable Reparations 40. A Writ of Error was brought and the Error assigned was want of Pledges And the Judgment was reversed although it was after Verdict And so was it adjudged in Dr. Hussies case and Young and Youngs case in this Court and the Reason was given because that otherwise the King should lose his Amercement 41. Fish in the River are not Titheable if not by Custome 42. Two referred themselves to Arbitrement and the Arbitrators arbitrate that one of them should pay a certain sum to the other and the other in consideration thereof should acquit him of a Bond wherein they both were bounden to a third person in a 100 lib. eo circiter and it was objected That the Arbitrators had arbitrated a thing incertain by reason of these words eo circiter But the Opinion of the Court was That there was sufficient certainty because that in this Case it doth not lie in their power to know the direct sum and because a small variation is not material but if they as in Salmons case 5 Rep. will arbitrate that one shall be bound in a Bond to another and not express in what sum the same is utterly void for the incertainty Difference was taken where the Arbitrators arbitrate one party to do a thing which lieth in his power and where not without the help of a third person there the Arbitrament is void and in the principal Case the difference was taken by the Court where the Bond is forfeit and the penalty is incurred and where not or the day of payment is not incurred there payment at the day is a good discharge and acquittance but where it is incurred it is not But Justice Iones said That he might compel the Obligee upon payment although the Bond was forfeit to deliver the Bond by Subpoena in Chancery or that he suffer an Action to be brought against him and then to discharge it and pay it Goodman against VVest Debt upon the Statute of 5 Eliz. Cap. 9. 43. THere was an action brought against the Plaintiff in the Common Pleas who procured Process to issue against the Defendant for his Testimony in his Cause and a Note of
Common Law there notwithstanding he shall recover costs also So in our Case these being Acts of Creation which give remedy where there was no remedy before shall be taken strictly according to the Letter and shall not extend to such penalties as in our case And upon this difference he cited the Cases in Pilfords case and especially the Case upon the Statute of 5 E. 6. of Ingrossers the Plaintiff shall not recover costs but only the penalty given by the Statute grounded upon 37 H. 6. 10. I agree That there be many Presidents in the Common 〈◊〉 That damages have been allowed in our very Case but that is the use of the Clerks and passed sub silentio without any solemn debate or controversie Vide Greislies case and the first Case of the Book of Entries Presidents and Judgments in this Court Pasch. 33 Eliz. Rot. 292. Halesworth against Chaffely A Judgment of the Common Pleas was reversed for this very point M. 36 Eliz. Ruddal and Wilds Case M. 44 45 Eliz. Rot. 22. Shepwiths Case Avowry for relief a stronger case Judgment was reversed because damages was assessed Hill 14 Iac. Rot. 471. Leader against Standwell in a Replevin Avowry was made for an Amercement in a Leet and found â—or the Dâ—fendant and damages assessed But the Entry upon the Record was thus Super quo nullo habito respectu c. The Plaintiff was discharged of the damages because nulla damna debent esse adjudicanda per Legem terrae but he shall have his costs But it was objected by Justice Crook That by the Statute of 4 Iac. c. 3. which giveth costs and damages to the Defendant in certain Actions there specified where the Plaintiff shall recover damages and that where the Plaintiff is Non-suit or verdict pass against him That Demurrer hath been construed to be within that Statute Notwithstanding that it is an Act of Creation I agree that and answer that Demurrer is within that Statute and the mischief of it but it is not so in our Case for in our Case there is no such mischief For there is no colour to extend it beyond the words of the Statute For which cause I conclude that the Judgment in this case ought to be reversed 65. A Clerk of the Court dwelling in London was chosen Churchwarden and prayed a Writ of Priviledge which was granted And it was agreed by the whole Court That for all Offices which require his personal and continual attendance as Churchwarden Constable and the like he may have his Priviledge but for Offices which may be executed by Deputy and do not require attendance as Recorder and the like from which the Justices themselves shall not be exempt for them he shall not have his Priviledge And where he hath his Priviledge for the not obeying thereof an Attachment lieth Swift against Heirs in Debt upon the Statute of 2 E. 6. for setting out of Tythes 66. THe doubt in this Case did arise upon two several Indentures found by special verdict which were made by the Vicar and Subchauntors Corrols of Lichfield one 2 E. 6. the other 2 3 Phil. Mar. The Question upon the Indenture of 2 E. 6. was Whether the Grant upon the Habendum be a grant of a Freehold to begin at a day to come or not The chief Justice Justice Crooke and Justice Barckley were clear of Opinion That it was a grant of a Freehold to begin at a day to come And for that the Case is thus In the Indenture of 2 E. 6. there is a recital of a former Lease for years And by this Indenture in 2 E. 6. another Lease was to begin after the first Lease determined the remainder in Fee to another And upon that the three Justices before were clear in their Judgments That it was a Grant of Freehold to begin at a day to come which without doubt is void 8 H. 7. 39 H. 6. and Bucklers case 3 Rep. And in 8 H. 7. the difference is taken betwixt the grant of a Rent in esse and Rent de novo A Rent de novo may be granted in futuro but not a Rent which is in being But Justice Iones in this Case was of Opinion That here is not any grant of a Freehold to begin at a day to come because in this case the Lease doth begin presently because the Lease recited is not found by the Jury and therefore now it is all one as if there had been no Lease at all contrary in the case of the King because it passeth a good estate of Inheritance to the Grantee And therefore if I make a Lease for years unto a man after the expiration of such a Lease where in truth there is no such Lease in being the Lease shall begin presently The Question upon the Indenture of 2 3 P. Mar. was no more but this The Vicar and Subchauntors of Lichfield made a Grant of all their Tithes in Chesterton and name them in certain and in specie as Tithe-wool Tithe Geese Pigs Swans and the like and that in a distinct clause with especial Exception of four certain things After which came this clause All which were in the Tenure of Margaret Pâ—toe And the Jury sound that none of these Tithes were in hâ—r Tenure And whether that Grant were void or not was the Question And resolved by the whole Court nullo contradicente That the Grant notwithstanding this fallâ— reciâ—al was good For these reasons But first it was resolved That where they grant all their Tithes in Chesterton that it is a good grant and hath sufficient and convenient certainty 13 E. 4. and â—â—â—lands Case There are two Generalities 1. Absolute 2. Genâ—â—al in particular â—o here And in our Case it is as câ—râ—ain that demand in an Action may be for them by the name of all their Tithes in Chesterton So in the like manner an Action of Ejectione firme will lie For an Ejectione firme will 〈◊〉 for Tithes as it hath been adjudged here If the King grant all his Lands it is altogether incertain and void but if the King grant all his Lands in Dale or which came to him by the dissolution of such an Abby it is good because it is a generalâ—y in particular And it was agreed that convenient certainty is sufficient And therefore it was said by Justice Iones That if I grant all my Rents in Dale which I have of the part of my Mother that he conceives the same to be good The first reason wherefore this grant shall be good notwithstanding the false recital was this because the words here All which c. are not words of denotation or restriction but of suggestion or affirmation and therefore shall not make void the Grant And here the difference was taken between the Case of a common person and of the King Suggestion which is false in the Case of the King makes the Patent void but contrary in the case of a common person And
â—e conceived That if a man speak such words of another that if they were true would make him liable to a pecuniary or corporal punishment that they would bear an Action and here the Plaintiff was endamaged and therefore without question they will bear an Action Bramston Chief Justice as before also That the words are not Actionable neither of themselves nor for the damage not of themselves for no words which subject a man to a pecuniary Mulct if they were true either at the Common Law or by the Statute will bear an Action For by the same reason to say that a man hath erected a Cottage or to say that a man hath committed a Riot would bear Action 37 Eliz. in the Common Pleas. One said of another That he did assault me and took away my Purse from me and upon Not Guilty pleaded it was found for the Plaintiff and Judgment was stayed because he might take his purse from him and yet be but a Trespasser So as it appeareth that words ought to have a favourable construction to avoid multiplicity of Suits and if these words would bear an Action by the same reason words spoken against every penal Law should bear Action which against the reason given before should be a means to increase Suits And he took it for a rule If the words import scandal of themselves by which damage may accrue then the words will bear action without damage otherwise not and therefore the damage here shall not make the words Actionable which of themselves are not actionable as I conceive they are not Besides by this means the Act of a third person should prejudice me which is against reason as here the Act of the Ordinary by the Citation and damage thereupon accrued which perhaps might be ex officio only for which cause he conceived that Judgment should be stayed but because there were two Judges against one Judgment was given for the Plaintiff Mich. 17º of the King in the Common Pleas. 192. BAine brought an Action upon the Case against for these words viz. That he kept a false Bushel by which he did cheat and cosen the poor he said in his Declaration That he was a Farmor of certain lands and used to sow those lands and to sell the Corn growing on them and thereby per majorem partem used to maintain himself and his family and that those words were spoken to certain persons who used to buy of him and that by reason of those words that he had lost their custom the parties were at issue upon the words and found for the Plaintiff and it was moved by Serjeant Gotbold in arrest of Judgment that the words were not actionable because that the Plaintiff doth not alledge that he kept the false Bushel knowing the same to be a false Bushel for if he did not know it to be a false Bushel he was not punishable and by consequence no Action will lie and compared it to the case Where a man keeps a Dog that useth to worry sheep but he doth not know of it no Action lieth against him for it but yet notwithstanding Bankes chief Justice and Crawley were of Opinion that the words were Actionable for of necessity it ought to be taken that he kept the Bushel knowingly for otherwise it is no cousenage and here being special damage alledged which was the loss of his custom as he had pleaded it the maintenance of his livelihood they hold the words clearly actionable gave Judgment accordingly Note the other Judges were in Parliament 193. Doctor Brownlow brought an Action upon the case for words against 〈◊〉 spoken of him as a Physitian which words were agreed to be Actionable but yet Serjeant Gotbold conceived that although that the words were actionable that the Plaintiff had not well intitled himself to his Action because although that he said that he is in Medicinis Doctor yet because he doth not shew that he was licensâ—d by the Colledge of Physitians in London or that he was a Grâ—dâ—ate of the Universities according to the Statute of 14. H. 8. cap. 5. that therefore the action will not lie see Doctor Bâ—unchams case 8 Rep. 113. â— where he shewed the Statute aâ—orâ—said and pleaded it accordingly that he was a Graduate of the University of Cambridge wherefore he prayed that Judgment might be stayed Bankes Chief Justice and Crawley doubted whether the Act were a general Act or not for if it were a particular Act he ought to have pleaded it otherwise that they could not take notice of it but upon reading of the Statute in Court they agreed that it was a general Act wherefore they gave day to the party to maintain his Plea 194. By Bankes Chief Justice upon an Elegit there needs no Liberate otherwise upon a Statute and note the Elegit doth except Averia Corucae Dye and Olives Case 195. IN an Action of false Imprisonment the Defendant shewed that London hath a Court of Record by prescription and that the same was confirmed by Act of Parliament and that he was one of the Serjeants of the Mace of that Court and that he had a Warrant directed unto him out of that Court to arrest the Plaintiff pro quodam contemptu committed to the Court for not paying twenty shillings to K. B. and that in pursuance of the command of the Court he accordingly did arrest the Plaintiff Maynard that the justification was not good because the Defendant doth not shew what the contempt was nor in what Action so as it might appear to the Court whether they had Jurisdiction or not And if such general Plea should be tolerated every Court would usurp Jurisdiction and every Officer would justifie where the proceeding is Câ—ram non Iudice and void and thereby the Oâ—â—icer liable to false Imprisonment according to the case of the Marshalâ—ee in the 10 Rep. And here the pleading is incertain that the Jury cannot try it and he put the case of the Mayoâ— of Plymouth The Mayor hath Jurisâ—iction in Dâ—bt and Trespass is brought there which is Coram non Iudice But in this Action the parâ—y is imprisoned pro quodam contemptu shall this be a good Justification in a false imprisonment brought against the Officer certainly no. Serjeant Rolls contrary that the Plea was good because that the Defendant hath shewed that the Court was holden secundum consuetudinem and therefore it shall be intended that the contemptâ— was committed in a Case within their Jurisdiction and therefore he cited the 8 Rep. Turners Case to which Maynard replied that that doth not make it good because that issue cannot be taken upon it At another day the Judges gave their Opinions Justice Mallet That the Plea is not good because that it is too general and non constat whether within their Jurisdiction or not and where it was objected that he is a Minister of the Court and ought to obey their commands and therefore it should go hard that he
harmless and doth not shew how as he ought to have done but he ought to have pleaded non damnificatus and that had been good without any further shewing which he hath not done and therefore the Plea was not good and it was agreed that the same was not helped by the Demurrer because the same was matter of substance but the Plaintiff might take advantage of it notwithstanding and therefore Judgment was given for the Plaintiff 201. In Debt Judgment was given against the principal whereupon a Scire facias issued forth against the Bail and Judgment upon Nihil dicit was given against them whereupon a Writ of Error was brought and Error assigned that there was no warrant of Attorny filed for the Plaintiff and upon debate whether the warrant of Attorny ought to be filed or on the Court seemed to incline their opinion upon these differences but gave not any Judgment First where it may appear to the Court that there was a warrant of Attorny and where not If there was not any warrant of Attorny there they cannot order the making of one but if there was one they conceived that they might order the filing of it Second difference Where the warrant wanting were of the part of the Defendant and where of the part of the Plaintiff in the Writ of Error if it be of the part of the Plaintiff such a warrant of Attorney shall not be filed because he shall not take advantage of his own wrong the last thing was where the Record by the lachess of the Plaintiff in the Writ of Error is not certified in due time there the warrant of Attorny shall be filed And the Books cited to warrant these differences were 2 H. 8. 28. 7 H. 4. 16. 2 Eliz. Dyer 180. 5 Eliz Dyer 225. 1 2 Phil. Mar. Dyer 105. 15 Eliz. Dyer 330. 20 Eliz. Dyer 363. and 6. El. Dyer 230. Note that it was said by Crawley That it is all one wheâ—e there is no warrant of Attorney and where there is and he said there are many Presidents accordingly and that the same is holpen by the Statute of 8 H. 6. cap. 1 2. But Bankes Chief Justice contrary That it is not helped by the Statute of H. 6. and so it is resolved in the 8 Rep. 162. And he caused the Proâ—onotharies so search Presidents but yet he said they should not sway him against the printed Law because they might pass sub silentio And the Chief Justice observed also that the same is not holpen by the Statute of 18 Eliz. for that helps the want of warrant of Attorny after Verdict only and not upon Nihil dicit as this case is or upon wager of Law or upon confession or non sum informatus And the Court said That it shall be a mischievous case that Attornies should be suffered to file their warrants of Attorny when they pleased and therefore they gave warning that none should be filed after the Term and willed that the Statute of 18 Eliz. cap. 16. should be put in execution Mich. 17º Car. in the Kings Bench. 202. ACertiorare was directed to the Commissioners of Sewers who according to the Writ made a Certificate to which Certificate divers exceptions were taken by Saint-Iohn the Kings Sollicitor First that it appeareth not by the Certificate that the Commission was under the Great Seal of England as it ought to be by the Statute of 23 H. 8. cap. 5. Secondly the Certificate doth not express the names of the Jurors nor shew that there were twelve sworn who made the prâ—sentment as by the Law it ought to be but only quod praesentatum fuit per Iurator ' so that there might be but two or three Thirdly it appears by the Certificate that it was presented by the Jury That the Plaintiff ought to repair such a Wall but it is not shewed for what cause either by reason of his Land prescription or otherwise Fourthly they present that there wants reparation but doth not shew that it lies within the Level and Commission Fifthly there was an Assesment without a presentment contrary to the Statute for it is presented that such a Wall wanted reparation and the Commissioners assessed the Plaintiff for reparation of that Wall and another for which there was no presentment Sixthly the Tax was laid upon the person whereas by the Statute it ought to be laid upon the Laâ—d Seventhly there was no notâ—ce given to the Plaintiff which as he conceived ought to have been by reason of the great penalty which folâ—ows for non-payment of the Assesment for by the Statute the Land ought to be sold for want of payment These were the Principal exceptions taken by the Sollicitor Lane thâ— Princes Attorney took other exceptions First because they assess the Plaintiff upon information for they said that they wâ—re credibly informed that such a Wall wanted reparation and that the Plaintiff ought for to repair it whereas they ought to have done it upon presentment and not upon information or their private knowledge Secondly that they assessed the Plaintiff and for not payment sold the distress which by the Law they ought not to do for that enables them only to distrein and it was intended by the Statute that a Replevin might be brought in the Case for it gives Avowâ—y or Justification of a distress taken by reason of the Commission of Sewers and there ought to be a Replevin otherwise no avowty and if Sale of the distress should be suffered then that priviledge given by the Parliament should be taken away which is not reasonable Keeling of the same side and he said that it was adjudged Pasch. 14 Car in this Court in Hungers case That the certificate of the Commissioners was insufficient because that it was not shewed that the Commission was under the Great Sâ—al of England as by the Statute it ought to be and the Judges then in Court viz. Mallet Heath and Bramston strongly inclined to many of the exceptions but chiefly to that that there wanted virtute Literarum Paten But day was given to hear Counsel of the other side 203. A man acknowledgeth a Statute and afterwards grants a Rent-charge the Statute is afterwards satisfied Whether the grantee of the rent may distrein without suing a Scire facias was the Question which was twice or thrice debated at the Bar but because it was before that Mallet the puisne Judge was Judge the Court gave order that it should be argued again Thornedike against Turpington in the Common Pleas. 204. IN Debt upon a Bond the Defendant demanded Oyer of the Condition and had it which was that the Defendant should pay so much in a house of the Plaintiffs at Lincoln The Defendant pleaded payment at Lincoln aforesaid upon which they were at issue and the Venire facias was De Vicines civitatis Lincoln and found for the Plaintiff And now it was moved in arrest of Judgment that it was a mis-trial because the Venire
time or not The first hath been granted that there ought to be assent for the great inconvenience which might happen to Executors if Legatees might be their own carvers and so are all our Books except 2 H. 6. 16. and 27 H. 6 7. which seem to take a difference where the Legacie is given in certain and in specie there it may be taken without assent but where it is not given in certain there it cannot but he held clearly the Law to be otherwise that although it be given in certain yet the Legatee cannot take it without assent of the Executor for so the Executor should be subject to a Devastavit without any fault in him or any means to help himself which should be very inconvenient Then the second thing here to be considered is Whether there be an assent or not It is clear that if an Executor enter generally he shall be in as Executor and not as Legatee for that is best for him to prevent a Devastaviâ— and it is as clear that if he declare his intention to be in as Legatee that then he shall be so then the Question here is Whether the words in our Case be a sufficient declaration of the mind of the Executor to take the same as Legatee in the right of his wife or not and I hold that it is He agrees that the second words are not so weighty as the first but he held the first words are sufficient of themselves to make an assent and when he saith that then it remains to the Holloways that proves that he took notice thereof as a Legacie and that he would have it in that right although in truth the devise by Iohn Holloway was void so as it could not remain to them For the third he held that the assent came in due time otherwise it might be very prejudicial to Legatees for else by that means they may be many times defeated of their Legacies for put Case that an Executor will not assent and the Legatee dieth before he can compel him to assent or that the Legatee dieth in an instant after the devisor in the 5 Rep. Princes Case it is resolved that an Infant under 17 may not assent to a Legacie nor the administrator Durante minori aetate then put case that the Legatees die during the administration durante minori aetate in whose time there cannot be an assent It would be a vâ—ry great mischief if that in any of these Cases the Legatees should be defeated of their Legacies when by possibility they could not use any means to get them wherefore he held clearly that the assent of the Executor after the death of the Legatee came in good time and therefore he concluded for the Plaintiff Bramston Chief Justice also for the Plaintiff For the first point he held that there is a good assent and he said that Mannings Case hath the very words which our Case hath but my Lord Cooke did not speak of these words in the Report of the Case because he conceived that the payment of the money was a sufficient assent to the Legacie but further I conceive that it differs fully from Mannings Case for there it is found expresly that the Executor had not Assets and therefore it should be hard to make him assent by implication thereby to subject himself to a Devastavit for as I conceive an Executor shall never be made to assent by implication where it is found that he hath not Assets but there ought to be an express assent by reason of the great prejudice which might come unto him but in our Case it is not found that Lowe had not Assets an Infant cannot assent without Assets but if there be then it shall bind him and perhaps that was the reason that my Lord Coke did not report any thing of these words whether they were an assent or not and his passing over them without saying any thing of them seems partly to grant and agree that they did not amount to an assent A man deviseth unto his Executor paying so much and he payeth it it is a good assent to the Legacie so is Matthew Mannings case 8 Rep. and Plowden Comment Welâ—den and Elkingtons case and he said that an assent is a perfecting act which the Law favours and therefore he said that it was adjudged that where an Executor did contract with the devisee for an assignment of the Term to him devised that it was a good assent to the Legacie For the second point also he held clearly that the assent came in due time for otherwise it should be a great inconvenience for by that means it should be destructive to all Legacies for of necessity there ought to be an assent of the Executor and if he will not assent and the Legatee dieth before he can compel him to assent or if the Legatee dieth immediately after the Devisor before any assent to the Legacie in the first Case it should be in the power of the Executor who is a stranger to prejudice me and in the latter Case the Act of God should prejudice me which is against two Rules of Law that the Act of a stranger or the act of God shall not prejudice me wherefore without question the assent comes in due time Besides If a Legatee dieth before assent to a Legacie the same shall be assets in the hands of his Executors and the Legatee before assent hath an interest demandable in the Spiritual Court An Executor before probate shall not have an Action but he may release an Action because that the right of the Action is in him so in this Case although that the Legatee before assent hath not an interest grantable yet he hath an Interest releasable A man surrenders copyhold-Copyhold-Land to the use of another and the surrenderee dieth before admittance yet his heir may be admitted and this Case is not like those Cases put at the Bar where there is but a meer possibility and not the least Interest as where the grantee of a reversion dieth before Attornment or the devisee before the devisor in those Cases the parties have but a meer possibility and therefore countermandable by death but it is otherwise in our Case as I have shewed before and therefore I conclude that here is a good assent and that in due time and therefore that the Ejectione firme brought by the Plaintiff well lieth Dale and Worthyes Case 212. DAle brought a Writ of Error against Worthy to reverse a Judgment given in the County-Palatine of Chester and the Writ of Error bore Teste before the Plaint there entred and whether the Record were removed by it or not was the Question and the Court viz. Mallet Heath and Bramston were clear of opinion without any solemn debate that the Record was not removed by that Writ of Error because that if there be not any plaint entred at the Teste of the Writ how can the Processus according to the Writ be removed
by this way he might defeat the Lord of his services The custom was That a woman should have her widows estate the Copy-tenant made a Lease for one year and died and adjudged that the woman should have her widows estate as excrescent by Title Paramouns the estate made for one year see Hab. Rep. And as these the estate of the wife was derivative so here and although it be not the intire Copyhold estate yet it is part of it and a continuation of it and is liable to every charge of the Lord 6 Rep. Swaines case wherefore he concluded that the custom is good and that the avowant ought to have Judgment Justice Heath the custom is good both for the matter and form of it where it was objected that for a personal injury done by one the cattle of another cannot be disâ—teined I agree that it is unjust that where alius peccat alius plectitur but our case differs from that rule for this was by custom for Transit terra cum onere he who shall have the land ought to undergo the charge Besides wheresoever a custom may have a good beginning and ex certa rationabili causa it is a good custom Bracton lib. 1. cap. 3. But this might have a reasonable ground at the beginning for here the punishment is a qualification of the Law for where by the Law the Copyhold-tenant is to forfeit his copyhold-tenement for waste either voluntary or permissive now this penalty is abridged and made more easie and therefore is very reasonable 43 E. 3. 5. 44 E. 3. 13. custom that if a tenant be indebted to the Lord that he may distrein his other tenants for it is not good but if it were for Rent it should be good because it may be the tenants at the first granted it to the Lord 22 H. 6. 42. 12 H. 7. 15. 35 H. 6. 35. custom to sell a distress is good and yet it cannot be done but by Act of Parliament And where it was objected that the amercement is personal and therefore cannot extend to the Plaintiff to that he answered that it is not meerly personal but by custom as aforesaid is now made a charge upon the Land and therefore not meerly personal Besides if the custom in this case had been that the Plaintiff for waste should forfeit his Copyhold-tenement it had been reasonable à fortiori in this case that he shall be only amerced wherefore he concluded that the custom is good and therefore that the avowant should have judgment Bramston Chief Justice that the custom is good and that he conceived to be clear First he conceived that the custom is reasonable as to the Copy-tenant for clearly by the Common Law if he suffer or do waste he shall forfeit his Copyhold and therefore this custom is in mitigation of the penalty and therefore is reasonable and that is not denied but the only doubt here is whether the custom to distrein the under-tenant for an amercement layed upon the tenant be a good custom or not and he conceived it is for the custom which gives the distress knits it to the Land and therefore not meerly personal as it was objected And if the custom had not extended to the under-tenant he might have distreined him for otherwise the Lord by such devise as there is viz. by the making of a Lease for one year by the Tenant should be defeated of his services 3 Eliz. Dyer 199. resolved custom to seise the cattle of a stranger for a Heriot is not good because that thereby the property is altered But custom that he may distrein the cattle of a stranger for a Heriot is a good custom because the distress is only as a pledge and means to gain the Heriot and in our case the Land is charged with the distress and therefore the cattle of any one which come under the charge may be distreined for it and therefore he held clearly that the custom was good and that the avowant should have Judgment Justice Barckley at this time was impeached by the Parliament of High Treason 232. A man was indicted for murder in the County Palatine of Durham and now brought a Certiorare to remove the Indictment into this Court and it was argued by Keeling at the Bar that Br ' Domini Regis de Certiorare non currit in Com' Palatinum But the Justices there upon the Bench viz. Heath and Bramston seemed strongly to incline that it might go to the County-Palatine and they said that there were many presidents in it and Justice Heath said that although the King grant Iura Regalia yet it shall not exclude the King himself and he said their power is not independent but is corrigible by this Court if they proceed erroneously and he said that in this case the party was removed by Habeas corpus and by the same reason that a Habeas corpus might go thither a Certiorare might for which cause it was awarded that they return the Writ of Certiorare and upon the return they would debate it Hillary 17º Car ' in the Common Pleaâ— â—ayton against Grange in a second deliverance 233. JOhn Layton brought a second deliverance against Anthony Grange and declared of taking of certain Cattle in a place called Nuns-field in Swassam-Bulbeck and detainer or them against gages and pledges c. The defendant made conusance as Baylift to Thomas Marsh and said that long time before the taking alledged one Thomas Marsh the father of the Plaintiff was seised of the Mannor of Michel-Hall in Swassâ—â—-Bulbeck aforesaid of which the Land in which time 〈◊〉 of mind c. was parcel and that one Anthony Cage and Dorothy his wife and Thomas Grange and Thomasine 〈…〉 of the Land in which c as in the right of the saiâ— Dorothy and Thomasine their wives in deâ—esne as of sâ—e and that they held the Land in which c. as of his Mannor of Michel-Hall by soccage viz. fealty and certain Rent payable at certain days and that the said Thomas Marsh was sâ—iâ—ed of the said services by the hands of the said Anthony Cage and Dorothy his wife Thomas Grange and Thomasine his wife as by the hands of his very Tenants and he derived the Tenancie to one Sir Anthony Cage and the Seigniory to Thomas Marsh the son by the death of the said Thomas Marsh the Father and because that fealty was not done by Sir Anthony Cage he as Bayly of the said Thomas Marsh the son did justifie the taking of the said cattle ut insâ—a feoduâ—â— dominium sue c. The Plaintiff by Protestation said that Non 〈◊〉 the Lands aforesaid of the said Thomas Marsh as of his Mannor of Michel-Hall in Swassaâ—â—-Bulbeck aforesaid by soccage viz. fealty and rent as aforesaid and pro placito said that the Defendant took the cattle as aforesaid and detained them against gages and pledges and then traversed Absque hoc that the said Thomas Marsh
the Father was seised of the said services by the hands of the said Anthony Cage and Dorothy his wife and Thomas Grange and Thomasine his wife as by the hands of his very Tenants upon which the defendant did demur in Law and shewed for cause of demurrer that the Plaintiff had traversed a thing not traversable and if it were traversable that it wanted form and this Term this Case was debated by all the Judges and it was resolved by them all that the Traverse as it is taken is not well taken Justice Foster that the Traverse taken by the Plaintiff is not well taken at the Common Law the Lord was bound to avow upon a person certain but now by the Statute of 21 H. 8. cap. 19. he may avow upon the Land and this avowry clearly is an avowry upon the Statute for it is infra feodum dominium sua c. and so is the old Entries 565. then the Question here is whether the Plaintiff be privy or a stranger â—or iâ— he he a stranger then clearly at the Common Law he may plead no plea but out of his Fee or a Plea which doth amount to so much as appeareth by the Books 2 H. 6. 1. 17 E. 3. 14 15. 34 E. 3. Avowry 257. and many other Books as you may find them cited in the 9 Rep. 20. in the case of Avowry here it doth not appear but that the Plaintiff is a stranger and therefore whether he be inabled by the Statute of 21 H. 8. to take this traverse or not is the Question and I conceive that he is true it is as it was objected that this Statute was made for the advantage of the Lord but I conceive as it shall enable the Lord to avow upon the Land so it shall enable the Tenant to discharge his possession as if the avowry were upon the very tenant and so is the Institutes 268 b. and so is Brown and Goldsmiths case in Hobarts Rep. 129. adjudged in the point and the Plaintiff here who is a stranger is in the same condition as a stranger was at the Common Law where the Avowry was made upon the Land for a Rent-charge in such case he might have pleaded any discharge although he were a meer stranger and had nothing in the Land so may he now after the Stat. of 21 H. 8. Then admitting that the Plaintiff might take this Traverse by the Statute then the Question is whether the Plaintiff hath taken a sufficient Traverse by the Common Law or not for the Statute saith that the Plaintiff in the Replevin or second deliverance shall have the like Pleas as at Common Law and I conceive that this plea is not a good plea at the Common Law And now I will consider whether if the Plaintiff had been a very Tenant he might have pleaded this plea or not and I conceive that if this traverse had been taken by a very tenant it had not been good I agree the 9 Rep. 35 Bucknels case that Ne unque seisie of the services generally is no good plea but Ne unque scisie of part of the services is a good plea and so is 16 E. 4. 12. 22 H. 63. and the reason that the first Plea is not good is because that thereby no remedy is left to the Lord neither by avowry nor by writ of customs and services And therefore the plea here is not good because it is a traverse of the services generally Besides here the traverse is not good because that the Plaintiff hath traversed the seism and hath not admitted the tenure and it is a rule in Law that no man may traverse the seism of services without admitting a tenure and therewith agreeth 7 E. 4. 28. 20 E. 4. 17. 9 Rep. Bucknells case and then if the very tenant could not have taken this traverse much less a stranger here Further here the tenure was alledged to be by rent and fealty and the avowry was for the fealty and the Plaintiff hath traversed the seism as well of the rent which is not in demand as of the fealty and therefore the traverse is not good But it was objected that seism of rent is seism of fealty and therefore of necessity both ought to be traversed I agree that seism of rent is seism of fealty but it is no actual seism of the fealty in point of payment or to maintain an assise for it as is 44. E. 3. 11. 45 E. 3. 23. and the distress here is for actual seism of fealty Every traverse ought to be adidem as 26 H. 8. 1. 9 Rep. 35. but here the traverse is of the Rent which is not in question therefore is not good in matter of form Wherefore he gave Judgment for the avowant Justice Reeve the first thing here coâ—siderable is whether this be a conusance at the Common Law or upon the Statute and I hold clearly that it is within the Statute and for that see new Entries 597 599 27 H. 8. 20. and it is clear that the Lord hath Election either to avow upon the Statute or at the Common Law and that is warranted by Institutes 268. and 312. 9 Rep. 23. b. 36. a. 136. a. and then admitting that it be an avowry upon the Statute The second point is whether the Plaintiff be inabled by the Statute to take this traverse or not for it is clear that at the Common Law the Plaintiff could not have this Plea for a stranger could not plead any thing but hors dâ—â—son fee or a plea which did amount to as much I agree the Books of Br. Avowry 113. 61. 9 Rep. 36. 27 H. 8. 4. â—0 Br. Avowry 107. Instit. 268. which are against me yet I conceive undâ—r favour that notwithstanding any thing that hath been said that the Plaintiff is not enabled by the Statute to take this traverse and I ground my Opinion upon the Reason at Common Law as also upon the Statâ—â—e the first reason at the Common Law I ground upon the Rule in Law res inter alios actâ— alteri nocere non debet it is not reason that he who is a stranger shall take upon himself to plead to the Title of the Tenure with which he hath nothing to do in prejudice of the very Tenant and this reason is given by the Books of 22 H. 6 39 E. 3. 34. My second reason is grounded upon the maxime in Law which is That in pleading every man ought to plead that which is pertinent for him and his Case And that 's the reason that the Incumbent at the Common Law cannot plead to the right of the Patronage wherein he hath nothing but the Patrou shall plead it as appeareth by the 7 Rep. 26. and many other Books there cited and these are my reasons at the Common Law wherefore the Plaintiff being a stranger cannot plead this Plea Secondly I ground my self upon the purvieu of
in Bar of this conusance or not Secondly admitting that he be inabled by the Statute to plead this plea whether the traverse be here welâ— taken or not To the first I hold that he is inabled by the Statute to take this traverse but for the second I hold clearly that the traverse is not well taken here the Plaintiff and Defendant are both strangers so as here is neither the very Lord nor the very Tenant And now I will consider what the Common Law was before the Statute it is clear that by the Common Law a stranger might plead nothing in discharge of the Tenancie nor could plead a release as the Books are 34 E. 3. Avowry 257. and 38 E. 3. Avowry 61. he could not plead rien arrere or levied by distress he could plead no Plea but hors de son fee or a Plea which did amount to so much I confess that the Book of 5 E. 4. 2. b. is that the Tenant in a Replevin could not plead hors de son fee but the Book of 28 H 6. 12. is against it True it is that in some special Case as where there is Covin or Collusion in the avowant there the Tenant shall set forth the special matter as it is in 9 Rep. 20. b. Now there are two Reasons given in our Books wherefore the Plaintiff in a Replevin being a stranger could not plead in Bar of the Avowry The first is that the Seignory being in question it is matter of privity betwixt the Lord and the Tenant The second that the Law doth allow unto every man his proper plea which is proper to his Case and that he ought to plead and no other as appeareth by the Books 12 Ass. p. 2. 13 H. 8. 14. 2. H. 7. 14. 13 H. 7. 18. Lit. 116. 35 H. 6. 13. 45 E. 3. 24. Now seeing that the Plaintiff being a stranger could not plead this Plea at the Common Law the Question now is Whether he be inabled by the Statute to take this Plea or not the words of the Statute are That the Plaintiff and Defendant shall have the like Pleas and Aid-prayer as at the Common Law and therefore it was objected that it doth not give any new Plea true it is that by the express words thereof that it gives not any new Plea but yet I conceive that any stranger is enabled to plead any plea in discharge of the Conusance by the equity of this Statute at the Common Law avowry was to be made upon the person and therefore there was no reason that the Plaintiff being a stranger should plead any thing in Bar of the Avowry of Conusance but now the Statute enables the Lord to avow upon the Land not naming any person certain it is but justice and equity that the Plaintiff should be inabled to plead any thing in discharge of it I compare this Case to the Case in the 3 Rep. fol. 14. Harberts Case where it is resolved that sâ—ossce of a Conusor of a Statute being only charged may draw the other in to be equally charged and if execution be sued against him only that he may discharge himself by Audita querela for so much 8 E. 4. 23. a. there the Defendant avowed for a rent-charge the Plaintiff shewed how that one E. leased the Land to him and prayed in aid of him and resolved that he should not have aid because the avowry is for Rent-charge so as thâ— Plaintiff might plead any plea that he would in dischâ—â—ge of the land now by the same reason where the lands of the Plaintiff were charged with a rent-charge he might at the common Law have pleaded any thing in discharge of his land by the same reason where there is an avowry upon the Land according to the Statute the land being charged the Plaintiff may plead any thing in discharge thereof and this is my first reason My second reason is that this Law hath been construed be equity for the benefit of the Lord and therefore it shall be construed by equity for the benefit of the Tenant also Instit. 286. b. My third reason is Although the Plaintiff be a stranger and claimeth no interest in the Land yet for the saving of his goods he may justifie this plea I may plead an assault upon another who endeavoreth to take away my goods and I may justifie maintenance where it is in defence of my interest as it appeareth in 15 H. 7. 2. and 34 H. 6. 30. Fourthly and lastly upon the authorities in Law after the making of this Statute I conceive that the Plaintiff may well take the Plea 27 H. 8. 4. The plaintiff prayed in aid of a stranger and had it which could not be â—t the Common Law as appeareth by 3 H. 54. and 34 H. 6. 46. and many other Books and for Books in the point 34 H. 8. Petty Brooke 235. Institutes 268. 9 Rep. 36. Hobarts rep 150 151. Brown and Goldsmiths Case wherefore I hold that the Plaintiff may by the equity of the Statute plead this plea. But it was objected by my brother Reeve that by the Statute of 25 E 3. c. 7. It is enacted that the possessor shall plead in Bar and therefore the incumbent before induction cannot plead in Bar as it is resolved in 4 H. Dyer 8. 1. and 31 E. 3. Incumbt 6. and upon the same reason he conceived it should be hard in our Case that the Plaintiff who is but a stranger not taking upon him any estate should be admitted to plead this plea especially the Statute in this Case saying that the Plaintiff shall have the like pleas as at the Common Law To that I answer that by the Statute of 25 E. 3. it is enacted that the possessor shall plead in Bar and therefore clearly there he ought to shew that he is possessor otherwise he cannot plead in Bar and therefore not like to our Case and the Novel Entries 598 599. doth not make against it for there it was not upon the Statute and 26 H. 8. 6. is express that the Plaintiff being a stranger is enabled by the Statute of 21 H. 8. to take this plea Wherefore I conclude this point that the Plaintiff is inabled by the Statute to plead any thing in Bar of the avowry But for the second point I hold clearly that the traverse as it is here taken is not well taken it is only an equitable construction that the Plaintiff shall plead this plea as I have argued before and therefore he ought to pursue the form of the Common Law in the form of his traverse which he hath not here done and therefore the traverse is not good and where the seism is not material there it is not traversable and in this Case the seisim of the fealty is not material for it is out of the Statute of Limitations and therefore not traversable and so is it in the Case of a gift in tail and grant of a Rent-charge it is
do so it is void And for that he cited Clegat and Batchellers Case before that the obligation in such Case is void and he said that the reason which was given by one why the Bond should be void was grounded upon the Statute of Magna Charta cap. 29. which wills That no freeman should be ousted of his Liberties but per legem terrae and he said that the word Liberties did extend to Trades and Reeve said that by the same reason you may restrain a man from using his Trade for a time you may restrain him for ever And he said that he was confident that you shall never find one Report against the Opinion of Hull 2 H. 5. For the other part of the difference he cited Hill 17 Iac. in this Court Rot. 1265. and 19 Iac. in the Kings Bench Braggs case in which Cases he said it was adjudged against the Action upon a Bond but with the Action of the Case upon a promise that it would lie But note that all the Judges viz. Foster Reeve and Crawley Bankes being absent held clearly that if the condition be against the Law that all is void and not the condition only as was objected by Evers and it was adjorned Apsly against Boys in the Common Pleas in a Scire facias to execute a Fine upon a Grant and Render Intrat Trin. 16 Car. Rot. 112. 239. THe Case upon the Pleading was this A fine upon a Grant and Render was levied in the time of E. 4. upon which afterwards a Scire facias was brought and Judgment given and a Writ of seisin awarded but not executed Afterwards a fine Sur coâ—usans de droit come ceo c. with Proclamations was levied and five years passed and now another Scire facias is brought to execute the first fine to which the fine Sur conusance de droit come ceo is pleaded so as the only Question is Whether the fine with Proclamations shall bar the Scire facias or not Serjeant Gotbold for the Plaintiff it shall not bar and his first reason was because not executed 1 Rep. 96 97. and 8 Rep. 100. If a disseisor at the Common Law before the Statute of Non-claim had levied a fine or suffered Judgment in a Writ of Right until Execution sued they were no bars and a fine at Common Law was of the same force as it is now and if in those Cases no bar at Common Law until Execution that proves that this interest by the fine upon grant and render is not such an interest as can bar another fine before execution Besides this Judgment by the Scire facias is a Judgment by Statute and Judgment cannot be voided but by error or attaint Further a Scire facias is not an Action within the Statute of 4 H. 7. and therefore cannot be a bar 41 E. 3. 13. 43 E. 3. 13. Execution upon Scire feci retorned without another plea and it is not like to a Judgment for there the party may enter but not here Besides it shall be no bar because it is executory only and in custodia legis and that which is committed to the custody of the Law the Law doth preserve it as it is said in the 1 Rep. 134. b. and he compared it to the Cases there put and a fine cannot fix upon a thing executory and the estate ought to be turned to a right to be bound by a fine as it is resolved in the 10 Rep. 96. a. 9 Rep. 106. a. Com. 373. And the estate of him by the first fine upon grant and render is not turned to a right by the second fine Lastly the Statute of 4 H. 7. is a general Law and in the affirmative and therefore shall not take away the Statute of West 2. which gives the Scire facias and in proof of that he cited 39 H. 6. 3. 11 Rep. 63. 68. and 33 H. 8. Dyer 15. I agree the Case which hath been adjudged that a fine will bar a Writ of Error but that is to reverse a Judgment which is executed but here the Judgment is not executed and therefore cannot be barred by the fine wherefore he prayed Judgment for the Plaintiff Note that it was said by the Judges that here is no avoiding of the finâ— but it shall stand in force but yet notwithstanding it may be barred and they all said that he who hath Judgment upon the Scire facias upon the first fine might have entred and they strongly inclined that the Scire facias is barred by the fine and doth not differ from the Case of a Writ of Error but they delivered no opinion Taylers Case 240. THe Case was thus The Issue in Tail brought a Formedon in Descend and the Defendant pleaded in Bar and confessed the Estate Tail but said that before the death of the Tenant in Tail I. S. was seised in fee of the lands in question and levied a fine to him and five years passed and then Tenant in Tail died whether this plea be a bar to the Plaintiff or not was the Question and it rested upon this Whether I. S. upon this general Plea shall be intended to be in by disseisin or by feoffment for if in by disseisin then he is barred if by feoffment not and the opinion of the whole Court was clear without any debate that he shall be intended in by disseisin and so the Plaintiff is Bar as the Books are 3 Rep. 87. a. Plow Com. Stowels Case and Bankes Chief Justice said that it shall not be intended that Tenant in Tail had made a feoffment to bar his issues unless it be shewed and it lies on the other part to shew it and a feoffment is as well an unlawful Act as a dissâ—isin for it is a discontinuance Commins against Massam in a Certiorare to remove the proceedings of the Commissioners of Sewers 241. THe Case upon the proceedings was thus Lessee for years of Lands within a level subject to be drowned by the Sea covenanted to pay all assessments charges and taxes towards or concerning the reparation of the premisses A wall which was in defence of this level and built straight by a sudden and inevitable Tempest was thrown down one within the level subject to be drowned did disburse all the mony for the building of a new wall and by the order of the Commissioners a new wall was built in the form of a Horshooe afterwards the Commissioners taxed every man within the level towards the repaying of the sum disbursed one of which was the lessee for years whom they also trusted for the collecting of all the mony and charge him totally for his land not levying any thing upon him in the reversion and also with all the damages viz. use for the mony Lessâ—e for years died the lease being within a short time of expiration his executor enters and they charge him with the whole and immediately after the years expired the executors brought this