alias Heriots with the appurtenances whereof the said Close called Pipers Down was parcell which tenement and Close were parcell of the said manour and was then and had been time out of mind demised and demiseable in Fee by Copy of Court roll of the said manour did build a new messuage upon the said Tenement and did afterwards by his Letters patents under the great seal grant the office of Keeper and keeping of the said messuage to Iohn Gate for term of his life with all the Lands Tenements c. thereto belonging or adjacent and did also by the same Letters patents give and grant unto the said Iohn Gate amongst other things the Lands belonging to the said new built messuage whereof the said Close called Pipers down was part for Term of his life for the exercising of the said office with an averment in the plea that before that time there was no such office of the keeping of the said house and that the King did not know nor was at the time of the grant enformed that the said Tenement and Lands whereof the said Close was parcell were Copyhold of the said manour After the grant made to Iohn Gate as aforesaid H. the 8. dyed seised of the said manour of the reversion of the said Messuage and Close after the death of Iohn Gate and thereby Ed. the 6. became sofâ—ed of them in like manner and from Ed. the 6. they came to Quéen Mary Then Iohn Gate dyes and after his death Quéen Mary enters upon the said manour and Messuage whereof the said Close was a parcell and afterwards by her Letters Patents under her broad Seal doth grant the Manour and Messuage and Premises unto Susan Tong and her heirs for ever From Susan Tong by mean conveyance the said Manour Messuage and Premises came to Humphry White and his heirs and afterterwards Humphrey White being seized thereof in Fée did by his indenture of lease demise the said Manour Messuage and Premises to Leigh for 60. years to begin from Mich. before the making of the indenture afterward Humphrey White grants away the reversion of the said Manour Messuage Premises to Sir John Branch afterwards Sir Iohn Branch grants this reversion to Vdall Vdall grants it to Bathurst and Bathurst grants it to Thomas Boothby the Ancestor of Thomas Boothby whose Baily doth here make the avowry Afterwards Robert Leigh who had the lease of the said Manour and Premises as aforesaid for 60 years deviseth the residue of this lease then unexpired by his last Will and Testament unto Robert Leigh his Son and dyes Robert Lee the son being possessed of the residue or remainder of this Term for 60. years by virtue of the said Will did at his court held for the said Manour of Chingford grant the said Messuage with the appurtenances and Lands thereunto belonging whereof the said Close was parcell unto Edmund Lee his brother to hold of the same Manour in Fée at the will of the Lord by Copy of Court Roll of that Manour Edmund Lee was thereupon admitted accordingly Afterwards the said lease for 60. years made by Humphrey White unto Robert Leigh the Father expires Afterwards Thomas Boothby who had the reversion of the said Manour and Premises as abovesaid entred as in his reversion upon the said Manour and Premises and dyed seised thereof leaving issue Thomas Boothby his Son Thomas Boothby the Son enters into the said Manour and Premises and claims the said Messuage with the apurtenances with the lands thereunto belonging whereof the Close called Pipers down was parcell and was granted by Robert Leigh unto Edmund Leigh by Copy of Court Roll as aforesaid as parcell of the demaines of the said Manour of Chingford and doth deny it to be Copyhold and to the intent to try the title thereof did by the Avowant his Bailiff distrein the Cattel in the said Close as damage feasant in his soil and Freehold This Case was argued first by Arthur Harris of Lincolnes Inn who argued for the Plaintiff viz. he that brought the replevin and in his argument he made the generall question in the Case to be whether the close called Pipers Down in which the distress was taken were at the time of the distress taken demiseable by Copy of Court Roll or whether the Custom was not destroyed and he held it was demiseable and that the custom was not destroyed and hereupon he made four questions 1. Whether the grant of the new house to Sr. Iohn Gate per nomen officii of keeper thereof were a good grant 2ly Whether the King not being enformed at the time of the grant that the house was Copyhold tenure he was not deceived in his grant 3ly Whether by this grant the Custom was not destroyed 4ly Whether the Kings Patentee hath not the same privilege to grant this house c. again by Copy of Court Roll after the death of Sr. Iohn Gate And as to the 1. of these 4. questions he cited 8 E. 4. by Chock and 21 E. 4.79 and Mich 5 Car. Banc. Reg. Monsons case and Pasc 14 Car. Banc. Reg. Messand and Butterfields Case and 5 E. 4. f. 8. and Dyer 269. Savages Case To the 2d question he held that the King was not here enformed of his right and consequently he was deceived and therefore ought not to be prejudiced by his grant which he should be if he had not liberty to demise this house again by Copy of Court Roll after the death of Sr. Iohn Gate and he said that there are two rights in the King 1. At the Common Law and 2ly a customary right and of this Customary right or his jus concedendi he was not enformed and he cited these books 3 H. 7.10 rep 49.8 H. 625 Br. Ayd 45 4. H. 6.1 2 R. 3. Hunsons Case and he said that the book of 5 H. 7. f. 1. which is objected is not to purpose for the protestation is not well taken 19 H. 6. a protestation is to supply a matter which is not so here 41 E. 3. Fitzh protest 9.22 H. 6.37 Br. protestation 6. Plowd Coment Gresbrooks and Foxes Case and 20 Eliz. Burrell and Holcrofts Case 2ly The King is not enformed here in his grant in matter in Law as he ought to be and therefore his grant shall not turn to his prejudice 1 rep 52.18 H. 8. Lovels Case Pasc 2 Eliz. Sr. Thomas Mores Case 1. rep â—3 16 Jac. Needlers case and whereas it is said that the words ex certa scientia in the patent do declare that the King was enformed I answer that those words do intend no more but that the King was enformed of matters of fact and not of matters in Law and the Kings grant shall only be taken secundum intentionem and whereas it may be objected that by the granting of the Estate for life unto Sr. Iohn Gate the custom is destroyed I answer that this being in the Case of the King it is an extraordinary Case and not
between what the Law directs and what the devise directs all the difference is in the manner how his Son Iohn shall come to the Estate 3 4 Phil. Mar. Dyer 134. 37 Eliz. A man seised in fee had issue two Daughters and devised the Lands to them and to their Heirs and it was questioned whether they were Ioynt tenants and I conceive they are and where one omits a thing in a conveyance which the Law supplies this shall not hurt and he cited Iennings and Pollards Case 6 Car. Hales on the other side argued that the Son takes by purchase and not by descent for the devise is not to the Son in present but after the death of the Testators wife and if he had the Lands by descent he should have them presently VVaiver It is true the Son might have waived the taking by purchase and might have taken by descent but here prima facie he shall be intended to be in by purchase and not descent for here doth not appear to be any actual waiver of the purchase and the Son doth here as I conceive take by way of remainder and not by way of reversion And as to the verdict I conceive it is not good for it doth not shew how the lands are held whether in Chivalry or Socage and so it appears not whether the Testator had power to devise all of them or not for if they be held in Chivalry he can devise but two parts of them as the Statute directs 2ly It appears not that the Testator had but one Son by his first wife 3ly It is not shewed that the Lands are parcel of the Mannor 4ly It doth not appear in whose possession the Lands are Roll chief Iustice said Lands that are given by Will shall be intended to be socage tenure Intention if the contrary do not appear And he held that the devise is void and that it is not in the power of Iohn the Son to make the election to take by descent or by purchase at his pleasure but he must of necessity take the Land as the Law directs which is by descent Maxim and it is against a maxim in Law to give a thing to such a person to whom the Law gives it if it had not been so given 3 4 Phil. Ma. Dyer 134. and therefore the Plaintif ought to have Iudgement And as to the verdict he hath primer possession Verdict and therefore if the other make no title the verdict is for him and good enough Bacon Iustice to the same intent viz. that the Heir doth here take by descent and not by purchase for this the Law says and he cannot alter it and cited Foscues Case 4 Car. and a Case in 7 Iac. And so judgement was given for the Plaintif Franck against Burt and others Mich. 24 Car. Banc. Reg. THe Plaintif brought an Action of Trespass for breaking of his House For costs for the Desendant upon non-sute of the Plaintif and carrying away his Goods at the Tryal the Plaintif was non-sute The Plaintif moved that there was error in the Declaration and therefore there could have béen no Iudgement and prays that he may be spared costs Roll chief Iustice answered that heretofore it hath been made a question whether the Plaintif being non-sute should pay costs Cests but since the Statute of 4 Iac. it is clear he ought to pay costs for the vexation of the Defendant and so it hath béen ruled here and you are out of Court now by being non-sute and therefore you must pay costs And therefore except better matter be shewed let them be paid Mich. 24 Car. Banc. Reg. THe Court was moved for a Prohibition to the great Sessions of Carnarvan in Wales to stop a sute in an English Bill of Equity exhibited there For a prohibition to the great Sessions at Carnarvan in Wales whereas by the Bill it appears there is no matter of Equity in the Case but only matter tryable at the Law The Court answered if they proceed there against Equity we cannot hinder them There was wont to be an Agent here from the Commissioners there for us to confer with in such cases as these but it seems there is not any here now Therefore give notice Prohibition and let them shew cause the next Term why a Prohibition should not be granted Mich. 24 Car. Banc. Reg. VPon reading of a retorn made by the Sherifs of the City of Norwitch upon a Habeas corpus directed unto them for one Chambers It was said by the Court How a Habeas corpus to an inferiour Court should be retorned Retorn that it hath been ruled That upon a Habeas Corpus to an inferiour Court to remove Corpus cum causa they ought to retorn all the causes that are depending there concerning the party that hath the Habeas Corpus if any of the causes depending be for above five pound of which they ought not to hold Plea and therefore because all the causes were not retorned here upon the retorn of this Habeas Corpus The Court held the retorn was not good and ordered that it should be amended upon pain of ten pounds by Monday next Raph against Davye Mich. 24 Car. Banc. Reg. RAph brought an Action of the Case against Davy for speaking these words of her to the Plaintifs mother Arrest of judgement in an action for words viz. Your Daughter innuendo the Plaintif is a brazen faced Whore and deserves to be hanged and for speaking these other words to the Plaintif herself viz. you Huswife are a Thief and have stollen my Purse The Plaintif had a verdict The Defendant moved in arrest of Iudgement Averment that the Plaintif doth not aver that her Mother had not any other Daughter besides herself and so it is uncertain whether the words were spoken of her or no. But the Court held it was well enough without such averment because the Declaration is that the Defendant habens colloquium of the Plaintif did speak the words and that makes it certain enough And therefore bid the Plaintif take her Iudgement Jennings against Lee. Mich. 24 Car. Banc. Reg. IEnnings brought an Action of Assault and Battery against Lee. The Defendant pleads a special plea Arrest of Iudgement in an action of assault and battery and justifies The Plaintif replies de injuria sua propria and upon this an Issue is joyned and a verdict found for the Plaintif The Defendant moved in arrest of Iudgement that the replication was not good because it answers not the special matter pleaded nor takes any traverse by an absque tali causa as it ought to do and so there is no issue joyned and consequently there can be no Iudgement Roll chief Iustice said that the replying de injuria sua propria Traverse Issue Ieofails and not traversing absque tali causa is not good for there is not an affirmative and a negative and so
Hill 24. Car. rot 1062. THis case arising upon a special verdict found in an Ejectione firmae Argument upon the Case concerning the Manor of Callidown given to Mr. Pym. touching the title of the Manor of Callidowne being part of Sir Thomas Morgans estate that was given to Mr. Pym by Ordinance of Parliament and heretofore argued on both parts was again spoken to First by Twisden who argued for the Plaintif who said the Question is Whether the estate setled by Sir Thomas Morgan before the year 1641. be forfeited by the Act of Parliament and consequently well given to Mr. Pym or no And he said the intent of the Parliament in making this Act is first to be interpreted and he held that according to the Act no estate passeth but such estate as Morgan had in the year 1641. and no more for no man can forfeit a thing that he hath not but only that which he hath but Morgan then had not this estate and therefore he could not forfeit it 2ly There is a priority of vesting the estate in the Parliament and next from the Parliament to the Trustees and the Trustees can have no more than is forfeited to the Parliament and the estate setled before the year 1641. is not forfeited to the Parliament 3ly The penning of the Act is considerable The Act saith all the said lands that is all the said lands that Morgan had in the yeart 1641. and not all the lands that Morgan ever had before that time and had setled for the precedent words are restrained by the words subsequent Althams case 8 Rep. Dyer 369. and from the preamble of the Act to make a construction to punish innocent persons is against the Law of God Man and Nature Nichols case f. 398. Of rewards and punishments consist the essence of Commonwealths and it could not be the intent of the Parliament to punish innocent persons 3 Ed. 4. 2. The Parliament did not intend to give more of Morgans estate than what he had 1641. for then they might give that which might be evicted which they intended not And whereas it is objected that there is a clause of Revocation in Morgans settlement and so the estate was not absolutely setled It is answered That notwithstanding this power of Revocation the estate is not given by this Act unto Pym for it cannot give a power 7 Rep. 13. and a power cannot be forfeited and Mary Morgan had an interest in the land notwithstanding the power of Revocation And notwithstanding there is no saving for Mary yet the estate is not passed for Mary Morgan is not intended to be punished Nichols case Com. f. 483. and so there needs no saving for her 14 H. 8. f. 2. and it cannot be intended because there is no saving for her that therefore she shall forfeit her estate and the saving is not therefore idle for it hath an operation another way The saving is not intended of the estate of a Collateral Auncestor only for this is the begging of the question for the saving saves not any thing and the penning of the words are against this exposition and so he concluded that nothing was given by the Statute to Mr. Pym but the estate of Morgan which he had in the year 1641 and prayed judgement for the Plaintif Steel the Recorder of London for the Defendant said he would only answer the argument of Twisden because he had heard no other arguments And first he held that the Ordinance reaches all the estates that Morgan had as well before as at the time 1641. and the estate setled by Morgan before 1641. was the estate of Thomas Morgan in the year 1641. 2ly The lands are expresly named which are given by the Statute it is not material who hath the estate in them for certitudo nominis tollit demonstrationem Dowbey and Dudingtons case and Mildmayes case 1 Rep. do interpret how the word others shall be interpreted And here cannot be said to be any injustice in the Parliament The Question here is Whether the estate be setled by the Parliament and if it be setled it would be a supposition of injustice to suppose it is not rightly done The Law hath invested the Parliament with a power to dispose of all lands and therefore it cannot be intended injustice And the estate is not in Mary Morgan notwithstanding the Conveyance because there is a clause of Revocation in it for it is a void Conveyance as to her estate by reason of the clause of Revocation for that makes it fraudulent And the estate of Mary Morgan is not passed by the Statute notwithstanding the clause of eviction in the Ordinance an if or an an are no saving of an estate and here is no eviction in the case and here is no saving otherwise their estate cannot be saved for then the lands are all passed And the saving extends to the lands descended to the Children of Thomas Morgan from Collateral Ancestors and not from Tho. Morgan the Father and as reasonable a Construction ought to be made of an Ordinance of Parliament as this is as of an Act of Parliament and so he praid Iudgement for the Defendant Roll chief Iustice said He did not doubt of the power of the Parliament in this case but of their meaning whether they intended these lands should be forfeited or not And the Ordinance was made by the House of Commons without any proviso in it and the proviso was put in by the House of Lords and he enclined that Mary Morgans estate was saved But Jerman Iustice said he conteived that Maries estate was not saved but only the estate of strangers The Court was divided and said they would consider till next Term and then give Iudgement in this and the Case of Garret and Blizard Quaere What Iudgement was given in both cases for I was not in Court at the day they were spoken to again Vincent against VVallis Hill 1649. Banc. sup Hill 24 Car. rot 966. rot 906. IN a Replevin for distraining of Cattel the Defendant emparled A Demurrer to a plea in a replevin after imparlance and afterwards pleaded that the lands are antient Demesne where the distress was taken and to this plea the Plaintif demurred Serjeant Parker for the Plaintif and against the Demurrer held that the plea is not to be admitted because that the party hath made his defence Plea and cannot therefore afterwards plead to the jurisdiction of the Court and cited 11 H. 4. f. 47. 2 H. 7. f. 17 b. That freehold only is to be sued for in antient Demesne And 2ly the plea is not sufficient for it doth not appear that the lands are held of the Manor but only are parcel of the Manor and such lands are pleadable in other Courts 20 H. 6. Nat. Brev. 11 M. 41 Ed. 3. 3ly It is not said that the lande are pleadable by Writ of Droit Close which ought to be 2 H. 7. f. 17. 3 H. 6. f.
14. 4ly He prescribes that the lands are not pleadable elsewhere which is not true for in some cases they are pleadable here in this Court Nat. Brev. 19 D. and so prayed judgement for the Plaintif Roll chief Iustice demanded why is there not a special demurrer here Special Demurrer After imparlance one may plead that the lands are antient demesne for a plea of lands in antient Demesne to the jurisdiction of the Court differs from other pleas pleaded to the jurisdiction of the Court It is true that parcel of a Manor of antient demesne is pleadalbe at the Common Law but lands held of the Manor are pleadable in the Court of the Lord. Adjourned to be heard Tuesday following Afterwards it was moved again and Roll chief Iustice said that after imparlance this plea is not good because by it he hath admitted the jurisdiction of the Court And therefore lâ—â— him shew cause why he should not plead in chief Pascall against Sparing Hill 1649. Banc. sup Pasch 1649. rot 75. A Writ of Error was brought to reverse a Iudgement given in an Action in Bristow upon a Concessit solvere by the Defendant Error to reverse a judgement in Debt for Concessit solvere Declaration Roll chief Iustice said that an Action of Debt did well lie upon a Concessit solvere by the custom of Bristow and so is it in London 28 H. 6. 1 E. 4. f. 6. Another Error assigned was that it is said that the party recovered the damages per juratores Compert whereas it ought to be Assess for this is the proper word but this exception was also over-ruled Latch took another exception that there wants the words pro misis et custagiis in the assessing the damages and so it doth not appear for what the damages are assessed And for this the Iudgement was reversed except better matter shewn Damages Iennings against Lee. Hill 1649. Banc. sup GEnnings brought an Action of Trespaâ—s of an assault and battery against Lee and his wife Whether an issue well joyned for an assault and battery made by the wife the Feme pleads a special plea of justification that it was in defence of her Husband The Plaintif replies de injuria sua propria upon this there was an issue joyned and a verdict for the Plaintif it was moved in Arrest of Iudgement that the issue was nor well joyned because the replication was not good and so the verdict not good and so there can be no Iudgement Serjeant Parker prays judgement for the Plaintif for he held the replication was good and so a good Issue joyned and if there be not yet it is helped by the Verdict Issue or else by the Statute of Ieofails or if not yet it is at least good in part And the issue here doth imply a negative although there be not a direct negative but an affirmative in the words of it And 6 E. 4 16 b. in a Replevin and 9 H. 5. f. 1. b. there are good issues joyned in the affirmative because they imply a negative Trin. 18 Jac. Banc. reg Aldridge and Walthalls case and here wants only a Traverse which is but only matter of form and not material 2ly The Verdict hath made the issue good although it be not well joyned 5 H. 7. f. 15. 3ly If the Verdict helps it not yet the Statute of Ieofails helps it 5 Rep. Nichols case 19 Eliz. Dallisons Reports 8 9 Eliz. Bendloes Reports and 14 Car. Banc. Reg. 4ly If the Statute help not yet it is well enough because it is good in part and for part it is well found and damages shall be intented to be given for that which is well found Damages 9 H. 7. f. 4. 16 H. 7. f. 1â— 10 Rep. James and Osburns case 3 Iac. Banc. Reg. Bigrane and Selling Mich. 1649. Desmond Osborn this case the Court denied Roll chief Iustice said Issue if there be 2 issues and one issue is not well joyned and damages be given entire this is not good but will make all naught 40 Ed. 3. f. 40. 18 Iac. Aldridges case 16 Iac. Iones and Gates adjudged and he said that the material thing is not here put in issue and so the issue is immaterial and there is a Ieofail and the damages being given entire there can be no judgement given Jeâ—â—ail Ierman Iustice did differ in opinion and said if the Defendant plead an immaterial thing and the Plaintif joyn issue and it be found for him he shall have judgement otherwise where the plea is partly material partly immaterial for there the issue ought to be upon the material thing otherwise there can be no judgement It was adjourned till Thursday following The Case was this An Action of Assault and Battery and wounding was brought the Defendant pleads non cul to the wounding and justifies the Assault and Battery in defence of her Husband in keeping possession of certain lands The Plaintif replied de injuria sua propria and doth not traverse absque tali causa The Iury find entire damages for all whereas there is not a perfect issue joyned as to the Assault and Battery for want of the Traverse Postea Hodges against Iane. Hill 1649. Banc. sup IN an Arrest of Iudgement in this case the question was Whether debt lie against an Executor sur concessit solve of the Testator Wager of Law Debt Executor Whether an Action do lie against an Executor upon a Concessit solvere of the Testator upon a special custom Roll chief Iustice held that it doth not for this would be to charge an Executor in an Action of Debt where he may by the Law wage his Law and an Action of Debt lies not against an Executor upon a simple contract made by the Testator And he said that the reason for Ley gager is because it is intended that as well as the contract to pay money may be in private so may also the payment be made in private Adjourned Giaves against Drake Hill 1649. Banc. sup IN an Action of Trover and Conversion for divers parcels of Houshold stuff an Exception was taken to the Declaration Arrest of Iudgement in a Trover and Conversion because the Plaintif amongst other things had declared pro sex parcellis plumbi cinerii Anglice Pewter Porringers whereas the word parcellis is uncertain for a parcel doth consist of many things in number and so sex parcelli cannot be properly applyed to six Porringers but if it had béen sex peciis it had been better though that be also incertain Hales held it was all one as if it had béen pro sex peciis plumbi Cinerii Roll chief Iustice enclined it was well enough because though the words are not so proper yet the description is good enough Declaration Words Ierman Iustice was of the same opinion But Nicholas Iustice held that the Latin is not good for if there be proper words for a thing they ought to
the goods were found by the Baron and Feme and were converted ad usum suum whereas it ought to be in the plural number to wit ad usum eorum or ad usum of Pew and his wife for as it was it supposed the Conversion to be made only by the Husband which is contrary to the Action it self which is brought against both Upon this Iudgement was stayed till the other should move Long and Bennet 23 Car. Banc. Reg. LOng brings an Action upon the Case against Bennet and declares that he would not suffer him to take unum Acrum ligni which he had sold to him in such a place Arrest of Iudgement in an Action upon the Case After a Verdict for the Plaintiff it was moved in Arrest of Iudgement that the Declaration ought to have been unum Acrum bosci and not ligni for that was uncertain The Court said they would Advise of the exception Declaration because it was in an Action of the Case The same Term Iudgement was given because Damages only were to be recovered and the words used were but inducements to describe the thing for which Damages only were demanded yet it might have been more properly expressed Barker and Martyn Pasc 23 Car. Banc. Reg. THe Plaintiff brings an Action of Trespasse Arrest of Iudgement in an Actâ—on of Trespass and declares against the Defendant for breaking his house and taking away quinque Instrumenta ferrea Anglice Fetters and a verdict was for the Plaintiff It was moved in Arrest of Iudgement that the word Instrumentum is not a word that signifies Fetters but that it is so general a word that it may expresse any other thing as well and that the Anglice joyned with it to interpret what it means cannot help it because there is a proper Latin word which might and ought to have been used to expresse Fetters by Rolle Iustice said that by the Statute all pleadings ought to be in Latine Pleadings and every particular thing therein ought to be expressed by a Latin word if there be a proper Latin word for it as here there is and therefore the proper Latin word being not used but another which cannot signifie the thing the Anglice doth no good but part of the Declaration shall be judged to be in English and so it cannot be good And judgement thereupon was stayed till the other sould move Curtice and Columbine Pasc 23. Car. Banc. Reg. Mich. 22 Car. rot 433. CUrtice brings an Action upon the Case against Columbine upon an Assumpsit by paroll to find meat drink lodging Error to reverse a Iudgement in an Action upon an Assumpsiâ—â— c. for the Plaintiff and to teach him the trade of a mercer This agreemet was afterwards by consent of both partyes put into writing Vpon the tryal the Plaintiff obteins a Verdict upon the paroll agreement and hath Iudgement thereupon The Defendant brings his Writ of Error in this Court and Assignes for Error that there was no Assumpsit declared upon or proved sufficient to warrant the Verdict and Iudgement because that by reducing the Agreement to writing the paroll agreement became ipso facto void and so no Action could be brought upon it but it ought to have been brought upon the Agreement expressed in the deed and the issue ought to have been joyned upon that and not upon the verball Agreement which is void The rule of Court was to shew cause why Iudgement should not be reversed Barker and Martin Pasc 23 Car. B. R. BArker brings an Action of Trespass for an Assault and Battery against Martin simul cum Arrest of Iudgement in Trespasse c. and hath a Verdict against him It was moved in Arrest of Iudgement that the Action ought to have been brought particularly against the other Trespassors together with the Defendant and not against the Defendant in particular with a general simul cum against the rest which is uncertain and signifies nothing against the rest and the rather because the Action is commenced by bill and not by original although it could not be good though it were by original but it was said by Rolle Iustice that it may be the Plaintiff could not Arrest the other Trespassors Trespasse and that he will do it when he can and that he may well proceed against them at divers times as he can take them but that whensoever he shall have had satisfaction for the Trespass done him from any one of them he cannot proceed against any of the rest and it was ruled that Iudgement should be entred Cook and Allen. Pasc 23 Car. Banc. Reg. A Iudgement given in an inferior Court was reversed in this Court Iudgement reversed because the Venire was ill inferior Court Common pleas because the Venire was Venire facias c. and did not shew from what place the Venire should bee which by Rolle Iustice ought to have been expressed at large it being in an inferior Court and not with an c. although the use of the Common pleas be to make the Venire short with an c. The King and Holland Entred 16 Car. Argued Pasc 23 Car. Banc. Reg. THe case was in effect this An argument upon a special Veâ—dict A Copyhold was surrendred to I. S. in trust that Holland an Alien should take the profits thereof to his own use and benefit upon this an inquisition was taken for the King and this matter found whereupon the lands were seised into the Kings hands and upon a tryall concerning these lands a special Verdict was found comprising the aforesaid matter The case was argued against the Kings Title by Mountague of the Middle Temple and for the Kings title by Hales of Lincolnes Inn. The substance of Mountagues Argument was 1. To consider the nature of the trust 2. The nature of the land out of which the trust was raised and for the first he held because it was a trust for an Alien to take the profits of the land and in that the Alien had no estate in the land therefore the King could not have it as he might have had the land if the Alien had had any Estate in it and he said that this trust was a thing only in Action and lies in privity and not to be seised upon by another and said a Villein was a parallel Person in law to an Alien in respect of purchasing of lands and had a Copihold been surrendred thus in trust for a Villein the Lord should not have seised it and this is but a trust not Executed which is in the nature of a use at the Common law and not as it is now by the Statute besides this trust is raised out of Copyhold lands and therefore the King cannot seise the lands which the Alien hath not for if he should the Lord of whom the land is held would be preiudiced and he cited Beverlyes case 4. rep 126 and a case in 23 Eliz
Patentee shall be in the same condition as the King was he said that it is not material whether he be or no as to the Case in question and rested upon the 3 question If the King hath free warren in land and grants the land and mentions not the warren yet the warren passeth by the grant And here out Avowry stands pro confesso because the Plaintif hath made no title A grant of a Manor per nomen maneriorum is a good grant of the Manor and here is a good grant and if not yet it is helped by the Statute of 3 4 Phil. Mar. C. 1. 1 H. 7. f. 28 and the Postea here refers not to the grant of the Copy and here is no ouster alleged and if there be there is do disseisin but it passeth an estate for will between the parties Roll chief Iustice It would be dangerous to make the Patent void because the King took no notice of the Copyhold estate and this point is not fit to be argued A thing not materially alleged in pleading is not necessarily to be answered and it is not necessary to create such an Office as this is for it is but an employment The great question is whether after the death of Sr. Iohn Gate the Copyhold estate can be revived or not in the case of the King It may be dangerous whether it be one way or the other As to the pleading we will not make it ill if it may be good Argue the great point again for it is a difficult point and of great consequence Ierman Iustice to the same effect and enclined that the King had no intent to destroy the Copyhold and he held that the Office was well granted because it was but an imployment Nicholas Iustice inclined that the Copyhold was destroyed At another day Wadham Windham argued for the Plaintif and first he put the case at large and then said that 1. It appears by the replication that the Avowant hath no title 2. He confesseth that the Plaintif hath a Title Queen Mary seised of the Manor of Chingford Comitis whereof Pipers Down is parcel grants it per nomen duorum illorum maneriorum and it is not averred that she had two Manors First it is considerable whether the Patent be good by the Common Law 2ly Whether if not yet it be made good by the Statute of H. 8. and he held 1. That it is not good at the Common Law because it is incertain and wants sufficient words and here is an apparent falsity for he hath two Manors and he grants but one and if the King have two Manors and grant them per nomen Manerii this is not a good grant As tithes belonging to a Rectory cannot pass by the name of a portion of tithes neither do all the Statutes of Confirmation of Patents confirm less or greater values granted than are comprised in the Letters Patents 41 Eliz. Pasons case in the Exchequer A presentation to a Rectory where it ought to be ad Medietatem Rectoriae is not a good presentation 2. rep Dodingtons Case Dyer â—31 An ill grant is not helped by the Statute because it is not named 2ly A false suggestion is not helped by the Statute of 34 H. 8. 3 Car. Sir Hatton Farmers case and in our case here is a mistake of a thing and not of the name for it is a Manor for Manors and so there is no true meaning and therefore it cannot be helped by the Statute Pasch 1 Iac. rot 216. C. B. Dawson against Pickering The Queen was seised of two Manors viz. of Rushworth and of Dale and granted the Manor of Rushworth habendum the Manor of Rushworth with the Manor of Dale and it was held an ill grant at the Common Law and not helped by the Statute But it is objected that this Manor may be known by the name of two Manors and so in our case although the King was seised of one Manor and granted this Manor habendum per nomen duorum Maneriorum this is good Mich. 22 H. 6. pl. 16. f. 13. To this the answer is that it cannot be pleaded per nomen without an averment that there are two Manors 2 Ed. 4. f 28. the last case There is a difference between a feofment and a release a feofment may be pleaded per nomen without an averment but a release cannot be so pleaded for in a feofment the livery operates to pass the land 22 H. 6. Hill f. 39. pl. 9.13 and Dyer the Serjeants Case where there is certainty there needs no averment but it is not so in our Case 1 H. 7. f. 28. and it is a forein intendment to suppose that one Manor of Chingford Comitis shall be known by the name of the two Manors of Chingford Comitis and we need not plead by a non concessit because the Avowant hath made no title and so he can have no return 1 H. 7. f. 28. 6 H 7. f. 6. and here is no certainty added to make it certain by the words illorum quod nuper perquisivimus de c. To the second point The Avowant hath confessed the Plaintifs title for he hath confessed that K. H. the 8th hath made it a Copyhold and if the Copy be good our title is good As to the question whether when a Copyhold comes to the King and he leaseth it this doth not so destroy the Copyhold that when the lease is out it may not be Copyhold again I hold that if a Common person lease a Copyhold the Copyhold is destroyed but it is not so where the King leaseth it as it is in our case which ought not to be measured by the Common rule of Law for the Law of the Crown over-rules the Common Law and the Law of Custom 22 E. 3. The King is not bound by Custom as a common person is 35 H. 6. The King having Gavelkind lands may destroy the Custom which runs with such lands pro tempore only and the Kings grant shall not enure to a secondary operation as Knights case is and here is no prejudice to any person that the Copyhold estate should be revived here the consequence may be severed and it is not necessary and therefore the lease of the Copyhold not naming it Copyhold is good As to the Objection made that it is no benefit to the King to make it Copy-hold again the answer is That it is a prejudice to take away a mans privilege and liberty if there were no other inconvenience but here is more for there may be prejudice by losing the Common c. And the rule that a Custom is an entire thing and cannot be apportioned shall not bind the King although it do bind common persons and the Statute makes not the grant good as to the reversion The Copyhold is demised and yet shall be demisable hereafter and so it may be pleaded for pleading follows the Law A Custom interrupted in the right is gone for ever
but if it be interrupted but in part it is not so as it is in the case cited where the King hath Gavelkind lands Com. Plowd 114. and so prays judgement for the Plaintif Adjourned Latch at another day argued for the Avowant and said that the Plaintif in his rejoynder hath made no title unto Susan Tong from whom he claims It is objected that by the grant of the Manor of Chingford Comitis per nomen duorum illorum maneriorum c. that Tong cannot be intituled It is answered that the other side hath confessed that Tong hath a title for they derive from her also and the contrary doth not appear to the Court and it being agreed the Court will not make a doubt of it He made 3 Questions 1. Whether the Manor of Chingford Comitis passeth per nomen duorum illorum maneriorum de c. 2ly Whether if the grant be ill it be aided by Statute 3ly Whether it be helped by the Averment For the 1. he held that here is a good grant without any averment or aid of the Statute for if the King grants two Manors one shall pass and e converso it shall not be so in the Case of the King but it is good in the case of a Common person with an Averment The grant of the Manor of Saperton cum Rippen is an ill grant for the incertainty of it but here is no such incertainty here is no non nosmer of the thing for the word nomina requires not a proper name but it is all one as if it had been expressed by words comprehending it and the word Manors doth comprehend it If the King grant his two Acres of Land lying in a Common field although but one Acre is to be found yet the grant is good and it is not like to the grant of a Manor with the Advowson where the King hath but a moyety of the Advowson or a moyety of the Manor for the Moyety is not actual in the whole but one is actually in two and so it is well named here 2ly Whether it be good without an averment that the land was in the Lord Darcy and he held it was If the words were general in the grant all of them ought to be true otherwise nothing will passe by the grant as Dodingtons case is but here is a proper name to express it and therefore the grant is not destroyed although the latter description do not agree to it 10. Rep. Harpers Case 2 H. 4. f. 2. If the King grant all the lands in the Patent annexed bearing date 10 of Iune though the Patent bear date the 10 of Iuly yet is the grant good for veritas nominis tollit errorem demonstrationis and if the grant should not be good at the Common Law yet it is ayded by the Statute of 3. 4 Phil. Mar. and here is a full and a strong averment in the pleading for it is Manerium praedictum and not Manerium generally and here is not only a possibility but also a facility for it to pass and it may be called Manor or Manors and in a feofment a thing may pass per nomen because that the livery passeth it where one pleads per nomen he is to make the Plea agree with the Record or specialty otherwise per nomen shall not be pleaded and Newtons opinion against this is but a single opinion 33 H. 8. Br. Averment 42. The word praedict makes an averment in the name of the Feoffor â—4 H. 4.30.22 H. 6.40 Barton and Escott here is also a full averment of the thing granted this is in grants 7 E. 4.24.33 H. 6. f. 22 26 Ass 2.24 Ass 6. so in Letters Patents Dyer 86. the Serjeants case and if this be authority it is in the very point Dyer 207. praedict per nomina is a good averment Pasch 7. Iac. Rot. 430. B. reg Stonehouse and Reeds case where there was not so much as a per nomina but only decimas praedict and yet adjudged to be a good intitling by the word praedict because it was held a good averment although it was not led on by a per nomina and there admitted to be clear if it had been with a per nomina as the Case here is so Tong is well intitled 2ly The Plaintifs title is well avoided and we have well destroyed his Copy without doubt if a Common person had granted the Copyhold for life the Copy-hold had been thereby extinguished and our case is not a prerogative case for the King is bound by the Custom of the Manor and the Custom is here destroyed and the prerogative cannot create the Custom anew and it is against the Kings Prerogative to have things drawn out of the King without matter of Record and it is prejudice to the King to have the Custom revived for the lands are now made free and shall never return again to the Vassalage The Kings Prerogative exalts him above a Common person but this custom makes him equal to a common person 2ly The Custom here cannot be supported but here is an absolute extinguishment of the Copyhold so that it cannot be regranted The law will confirm things necessary to the grant of the King in some cases where it is prejudicial to the King 16 H. 7. f. 8. Nicholas case Plowd 489. The king seised of a donative makes it presentative if he do but once present unto it so if he turn an Annuity into a rent charge by taking a distress And the nature of this Custom here ought not to be examined with other Customs for it is more strict than in other cases for if it be once destroyed it is always destroyed and cannot be suspended and it is not for the Kings dis-advantage to have the Copyhold destroyed but it is for his advantage and conveniency and so he prays judgement for the Avowant Roll chief Iustice All will come and rest upon the last point for all the other things are admitted The grant is good by the per nomen and it is only nominal and doth not imply that there are two Manors and it may stand well enough with reason that it may be known per nomen But the last point is considerable he enclined to Latch Nicholas Iustice to the same effect and that the praedict is a good averment The last point is considerable but prima facie here the custom is not destroyed Ask Iustice to the same effect and that it appears that the King intended to grant but one Manor Roll We will take time till the next term to speak to the last point which is only doubtfull and to deliver our opinions Ierman Iustice the pleading of the party per nomen helps not the Patent if it be not good in it self The next Term Roll chief Iustice for himself and the rest of the Iudges who he said concurr'd in opinion with him delivered the opinion of the Court to this effect 1. That they were agreed that
Crisp and Prats case doth somewhat resemble this Bankrupt The Law intends a Bankrupt which is so by fraud as well as a Bankrupt who becomes so by accident and for this cause is he called an Offender in the Statute and here the year of our Lord 1637 is the 13 year of the late King the recovery suffered by the Bankrupt was then and within half a year after the recovery he became a Bankrupt so that me thinks there plainly appears to be fraud in the Conveyance Fraud but the fraud is not expressed in the pleading as it might have been The Statute of 1 Iac. is somewhat doubtfull as I conceive and I do not sée any provision made in it against the wife if fraud do not appear for here is no valuable consideration mentioned Nicholas justice said it is doubtfull yet he conceived it within the Statute of 1 Iac. which ought to receive a large construction because it was made for the good of the Commonwealth Ierman and Ask agreed with Roll in omnibus Roll Here the matter in dispute is not in a special Verdict but comes in question upon point of pleading Pleading which shall be taken most strong against him that pleads it and he hath not expressed any valuable consideration as he might have done by saying in consideration of a portion or in recompence of mariage or in performance of Articles made upon mariage or that the wife had joyned in selling some part of the land The Court would advise but enclined judgement ought to be for the Avowant Afterwards judgement was given accordingly for the Court held the wife was within the Statute of 1 Iac. and the providing for wife and children to be providing for himself Chapman against Brook Trin. 1651. Banc. sup Trin. 1650. rot 200. IN an Action upon the Case the Plaintif declared upon a Custom of commoning in such a place The Defendant demurred to the Declaration Demurrer to a Declaration in an Action on the Case and for cause shews that the Custom was not well laid for the Plaintif declares of a Custom of commoning pro averiis viz. pro equis bobus equabus et pullis and the word pullis is of an uncertain signification for it may signifie a Calf a Lamb or any other young Beast or Foul and 23 Car. Segar and Dyers Case was cited The Court held the exception good and said that it is incertain what is meant by the word pullus and said that if the prescripsion had been pro omnibus averiis it had been good Prescription and the viz. should have been void but here it is only pro averiis Therefore nil capiat per billam Newton against Godard Trin. 1651. Banc. sup A Writ of Error was brought to reverse a judgement given in an Action of Debt at Ipswitch Error to reverse a judgement in debt The Case was this There issued out a Capias against the Principal and a judgement was given against him and after a scire facias issued out against the Bail and a judgement thereupon was given against the Bail Then the Plaintif takes out an Execution viz. a fieri facias against the Principal and Bail upon both the judgements to levy the debt recovered upon the goods and chattels of the Principal and Bail or either of them It was alleged that the execution thus taken out was not good for there ought to have been several executions upon the several judgements Execution and not one execution and to this the Court agreed and ordered the Defendant in the writ of Error to shew cause why the judgement should not be reversed In this Case Roll chief Iustice took an exception to the scire facias Abreviation because it was scire fac with a dash which might be as well scire faciatis as scire facias Spittlehouse against Farmery Trin. 1651. Banc. sup Hill 1650. rot 43. AN Action of accompt was brought against a Feme Covert an Administratrix and her Husband in the Common Pleas Error to reverse a judgment â— ven in an Action of Accompt and judgement given against the Defendants quod computent The Feme dies and the Husband brings a writ of Error in this Court to reverse this Iudgement Roll chief Iustice held that the writ of Error did not lie because the Record cannot be removed by it for that would disturb the proceedings in the Common Pleas and the party would have no fruit of his sute if the Record should be removed nor any remedy to recover the arrears due unto him Original Scire facias Yet the Original is determined by the Iudgement given quod computent and a scire facias lies by the Executor as the case here is Ierman Iustice to the same effect and cited 1 H. 7. f. 2. Nicholas Iustice to the same intent and said he did not much regard the Book of 21 Ed. 3. because there are other Books against it Ask Iustice ad idem Roll chief Iustice put these cases A judgement was given in Dower for the Demandant and another judgement that she shall recover her damages and this second judgement for the damages was reversed by a writ of Error because she did not aver that her Husband died seised in which case she is to have no damages Iudgement yet the first judgement for the Dower stood unreversed and Hill 43 Eliz. C. B. in one Williams and Whites case in an â—â—ction of Accompt 2 judgements were given and the second wâ—s reversed and the first stood unreversed In the principle case the rule was judicium nisi VVallis against Bucknal Trin. 1651. Banc. sup Trin. 1649. rot 600. VPon a special Verdict the case fell out to be this Sâ—ecâ—al verdict upon a Custom of a Manor One selfe d of Copy-hold lands of inhâ—ritance made a Letter of Attorney unto two joyntly and severally to surrender the lands after his death to certain uses according to the Custom of the Manor The question was whether this was a good Custom or no. Ellis of Councel with the Plaintif argued that it was not a good Custom because a Custom ought to be reasonable but this Custom is unreasonable because it is not only against a particular Law but it is against the general rule of Law to pass estates of inheritance in such a Manor and although particular Customs may be against publique interest pro boâ—o publico yet this is nothing to our case for this is not for the publique good and therefore it is not good 2ly An authority ought to be countermandable and to determine by the death of the party that gives the authority but here it is not so but it is to continue after his death Next no man can give authority to another to do a thing which he himself could not do but here it is otherwise and therefore it is not good Also by the death of the Copyholder the Law settles the lands in the
heir and an authority cannot divest them out of him this is not like to the surrendring of Copyhold lands into the hands of the Lord for such a surrender cannot be revoked but this authority may be revoked But which is more the Verdict here doth not find that the two Attorneys are customary Tenants of the Manor but only by way of recital which is not good for they ought to have been found to directly nor doth it appear that they were customary Tenants at the time of the admittance of the party neither is there any possession or title found in the Defendant and so the Plaintif having primer possession the Defendant is culpable neither is it found that the Customary Tenant who gave this authority had an estate in fee-simple in the lands and if he had but an estate for life he could not make such a Letter of Attorney neither is the authority given warranted by the Custom and so he prayed judgement for the Plaintif Wilmot for the Defendant As to the authority he said that it was good and did well enough survive the party that gave it because it is supported with a special direction from the party that gave it 1 H. 7.8 and this is the reason that an Executor may sell lands of the Testator after his death viz. because his authority is so supported 21 E. 4. f. 8. 31 E. 1. Fitz. Grants 45. And here in our case the heir hath neglected his advantage and therefore shall not now be admitted to take it But besides the authority here given is more than a bare authority for it is backed with the circumstances of time persons and of a Custom which is not of a slight esteem in Law and by such a Custom which is very reasonable for it is but to enable the party to dispose of his own lands and far more unreasonable Customs than this are allowed in our Law as that in Kent for an Infant of 15 years of age to have power to sell his lands neither is this Custom contrary to any positive rule of Law for it is here to create the authority to begin after the parties death that created it and so it is not to determine with his death for till then it begins not and the Custom here is but to alien lands which is no strange thing and this Custom extends but within the Manor which is but to a small compass of ground and so the publique is not much concerned in it and the case of 17 Car. in this Court Bambridge and Whaddons case differs from our Case for that was not supported with a custome as this is And it doth appear by the Record that Dalby the Attorney is a customary Tenant and the admission is also found by the Verdict to be secundum consuetudinem Manerii and so that is well enough and then one cannot gain a Copyhold estate by disseisin and so no primer seisin shall be intended as was urged on the other side and it is also found that the Copyholder was seised Roll chief Iustice It will be a hard matter to maintain the Custom Custom if it be not found that the Copy-holder was seised in fee of the Copyhold lands 2ly It is not here found that the land is demisable according to the will of the Lord and so it may be free land and then the custom doth not extend unto it nor is it found that the parties to whom the Letters of Attorney were made were Copyhold Tenants Disseisin And the primer possession will make a disseisin here by the Defendant if the custom be not-well found and so judgement must be for the Plaintif Devise And I cannot see how the Custom can be good it being against the rules of Law Surrender A man cannot devise Copyhold lands and this case is worse but he may surrender to the use of his last Will. If you will not consent to a new tryal we will advise for it is a hard case and my Brothers have not been attended with Books Mich. following Iudgement was given for the Plaintif nisi It was moved again and the Court would advise Postea Batchelour against Parsons Trin. 1651 Banc. sup Mich. 1652. rot 381. BAtchelour brings a writ of Error to reverse a Iudgement given against him for Parsons in an Action of Debt in the Common Pleas and the Error assigned was Error to reverse a judgement in debt that there are two Declarations in the Record one in the Emparlance Roll the other in the Plea Roll and the Original certified upon the writ of Error doth not warrant the first Declaration for it was filed after it Hales answered that the Record is good enough if the Original dowarrant the last Declaration for this is the common course used in the Common Pleas as the Clarks there do inform me there are many Cases like this in the Common Pleas. Wild of Councel on the other side answered that this is a strange course for they ought first to file the Original because it is the beginning and ground-work of the sute and it not being so done here the Iudgement is given without an Original this is a judgement by default and the imparlance is part of the sute Roll chief Iustice Imparlance Intendment Certiorari The Imparlance Roll is the principal part of the sute and to consound things by intendment that the imparlance may be touching another sute is not good and it matters not what the Custom is in the Common Pleas if it be against Law and both Rolls ought to be certified here Ierman Iustice ad idem Roll chief Iustice All the Record in the Common Pleas which is in the custody of the chief Iustice there ought to be certified by him upon the Retorn of the Writ of Error and here the Imparlance Roll is in his custody and therefore he ought to certifie it and if there be two writs of Error Error and one is good and the other naught we will take the best to affirm the judgement The Original ought not to be fitted to the Declaration but the Declaration to the Original because the Original is the foundation of the sute and therefore the course used in the Common Pleas is a preposterous course Original viz. to declare against the Defendant and after to file an original against him to warrant the Declaration It is here certifyed to be one Record and how can we take the emparlance Roll to be part of the Record it being not certyfied with it and if there be variance between the emparlance Roll and the plea Roll Variance it is Error We will advise but we must not suffer new wayes yet we are loth notwithstanding to reverse Iudgements given in the Common pleas Therefore shew cause next term why the Iudgement should not be reversed Kirman against Iohnson Trin. 1651. Banc. sup IN an ejectione firmae brought by Kirman against Iohnson a special verdict was found
Court Twisden on the other side confessed the Books were so but here the Battery is not apparent and the wound is internal and not to be viewed by the Court. Roll chief Iustice said 3 things are considerable 1. whether the Court can increase the damages 2ly Whether the wound be apparent and 3ly Whether the damages given be too small The Court upon view of the party and examination of Chirurgions and Witnesses on both sides upon Oath did conclude that they might increase the damages and that the wound was apparent and that the damages were too small and therefore they increased them to 400 l. and said they would not encrease them more because they could not inquire into all the circumstances of the fact as the jury might but they thought fitting to encrease them in some proportion because the offence was great and such outragious Acts are not to be slightly punished VVallis against Bucknal Hill 1651. Banc. sup VPon a special verdict found in an Ejectione firmae the case sell out to be this Special Verdict in an Ejectione firmse A Copyholder of inheritance made a Letter of Attorney to two joyntly and severally to surrender his Copyhold lands in Fee to certain uses after his death according to the Custom of the Manor The question made by Ellis of Councel with the Plaintif was whether the Custom was good or not he argued that it was not a good Custom In Sir Iohn Davis Reports it is said a Custom must be reasonable and a Custom may be reasonable when it is but against a particular Law and not a general Law but the Custom here thus to convey land is against a general Law Particular Customs may be against publique interest pro bono public but if they be not as in our case they are not they are not good Pro bono publico Next an authority given ought to be Countermandable and to determine at the death of the party but this is not so and therefore it is no good authority 19 E. 3. f. 5. 2ly None can give an authority to another to do a thing which he could not do himself but here it is otherwise and therefore it is not a good authority 3ly By the death of the Copyholder the lands are setled in the heir and this authority given shall not devest them and this is not like the surrendring of lands into the hands of the Lord for a surrender cannot be revoked but this authority is revokable Next the Verdict doth not find that the 2 Attorneys are Customary tenants but only by way of recital which is not good nor doth it appear they were customary tenants at the time of the admittance and here is not found any possession or title in the Defendant and so the Plaintif having primer possession the Defendant is guilty neither is it found that the customary Tenant had see-simple in the land And if he had but an estate for life he could not make such a letter of Attorney Also the authority given is not warranted by the Custom set forth Wilmot of Councel with the Defendant said That this authority here is supported with a special direction which may survive the party that gives it 1 H. 7.8 And an authority may survive the party that gives it else how can an Executor sell lands by the authority given unto him 21 E. 4. f. 8. 31. E. 1. Fitzherb 45. and as for the heir he hath neglected his advantage it he had any and cannot now take it But besides the authority here given is more than a bare authority for it is backed with circumstances of time and person and here is also a Custom to support it and this Custom is a reasonable Custom for it is but to enable a man to dispose of his own lands and there are far more unreasonable Customs than this allowed in our law as the Custom of Kent for one of the age of 15 years to be enabled to sell his lands and this Custom is not against any positive rule of Law for the custom is to create the authority to begin after his death and so it is not to determine by his death for till then it begins not and the Custom here is but to alien lands which is no strange thing and it is extended but within a small compass of land and so cannot be very prejudicial to the publique And Bambridge and Whaddons case 17 Car. in this Court cited on the other side doth differ from this case for tâ—ere was no Custom to support it And it doth appear here by the Record that Dalby the Attorney is a customary Tenant and the admission here is found to be secundum consuetudinem Manerii And one cannot gain a Copyhold estate by disseisin and so here can be no primer seisin intended and it is found the Copyholder is seised Roll chief Iustice said It will be hard to maintain the Custom Custom if it be not found that the party was seiâ—â—d in see of the Copyhold lands But 2ly it is not here found that the land is demisable according to the will of the Lord and so it may be free land then the custom doth not reach it Neither is it found that the 2 Attorneys were Copyhold Tenants and the primer possession here will make a disseisin by the Defendant if the Custom be not well found and then it is for the Plaintif and I cannot see how the Custom can be good it being against the rules of Law for a man cannot devise a Copyhold and here the case is worse Devise but he may surrender to the use of his last Will and Testament At another day Wilmot to the Exception taken That it is not found that the two Attorneys were Tenants of the Manor said there is so much found as shall make them be presumed to be Tenants of the Manor for it is found that the party is admitted secundum consuetudinem Manerii which cannot be a good admittance if they were not Tenants Roll chief Iustice answered to be admitted secundum consuetudinem goes â—o the Admittance not to the Letter of Attorney But we will advise At another day Twisden prayed judgement for the Plaintif and insisted upon the Exception that the two Attorneys were not found customary Tenants for one of them is not mentioned at all and the other is found so only by way of recital and so they have not entitled themselves to the Custom and then the Defendant hath no title The Court ruled to shew cause Saturday following why the Plaintif should not have judgement Antea Custodes against Tawny and Norwood Hill 1651. Banc. sup TAwny and Norwood were jointly endicted for blasphemous words severally spoken by them Endictment for speaking blasphemous words upon the late Statute made against blasphemy and were convicted the parties being removed hither by Habeas Corpus It was urged that the Endictment was not good because it was joynt whereas the words being
secrets of his Clyents cause Not to disclose a Clyents cause and thereupon he was forborn to be examined Pilkinton and Bagshaw Pasch 1655. Banc. sup VPon a tryal to be had at the Bar between Pilkington and Bagshaw Tryal at the Bar. the Plaintif would not put in his writ that the tryal might goe on Whereupon Roll chief Iustice bid the Cryer to call the Attorney of the Plaintif to appear and to bring in the writ upon pain of 20 l. and said Pain of 20 l. Attorney put out of the Roll. Non-sute upon the Record that if he brought it not in he should be put out of the Roll. Serjeant Maynard moved that if he brought not in the writ that the Plaintif might be called non-sute upon the Record which Roll chief Iustice answered might well be because the parties have day in Court by the Record or Roll afterwards the Sollicitor who had the writ brought it in yet Roll chief Iustice said There shall notwithstanding the writ be brought in be 20 l. fine set upon him for his trifling with the Court. The Protector and Sumner Pasch 165â— Banc. sup SErjeant Bernard moved that Sumner that appeared in Court upon his habeas corpus directed to the Kéeper of Northampton Gaol might be bailed To bail a prisoner denied for that having killed two men upon the Highway the Iury had found it Man-slaughter se defendendo Roll chief Iustice answered The Iuries conclusion is contrary to their premises Therefore let the prisoner be sent to Northampton Gaol whence he came yet that may not be for the fact was done in Peterborough Tryal Writ ad reâ—piendum and therefore he cannot be tryed at Northampton therefore let him be sent to Peterborough Gaol with a writ ad recipiendum to the Gaoler there to take charge of him Pilkington versus Bagshaw Pasch 1655. Banc. sup IN a Tryal at the Bar in a Trespass and Ejectment betwixt Pilkington and Bagshaw Trespass and Ejectment the question being whether Copyhold lands may be entailed by the custom of the Manor It was said that if Tenant in tail and the issue in tail of Copyhold lands in tail joyn in a surrender in a Court Baron of the Copyhold lands Estopel Copyhold lands in tail Customary entail Fine State enjoyed Seisure of Cepyhold lands that this is not an estopel for it ought to be by fine or deed indented And Roll chief Iustice said that Copyhold lands in tail are not within the Statute of Westm 2. but it is a Customary entail like in its nature to another entail and such an estate must be docked by fine or by some other customary way It was also said by him that if Copies of Court Rolls be shewed to prove a Customary estate the enjoynment of such estates must also be proved otherwise the proof is not good It was also said upon the evidence That a seisure by the Lord made of Copyhold entailed lands within the Manor of Wakefield in Yorkshire is in the nature of a recovery to deck the entail and that the manner of doing it is either for the Copyholder to let his Copyhold for more years than he ought or to refuse to do his service and then the Lord seifes the lands for a forfeiture and grants it to another by the consent of the Copyholder that made the forfeiture It was then also said by Roll chief Iustice Custom that a Custom cannot be urged for a thing that had its beginning since Rich. the 1. if a Record can be shewed to the contrary Common recovery Recompense in value Custom Copyhold destroyed It was also said by him that a common recovery suproseth a recompence in value to all persons who lost the estate by the recovery He said also that he conceived that there could be no such Custom to cut off entails of Copyhold lands by the forfeiture and seisure of the Lord for his seisure upon the forfeiture destroys the Copy-hold estate by the Common Law for it is in the Lords election after the seisure whether he will grant the estate again or no and you do not prove that the Custom binds him to it Nota. Harris and Pasch 1655. Banc. sup THe Court was moved in the Case of one Harris To amend an old judgement Denied that the entry of a judgement twelve years past might be amended upon the Roll. But Roll chief Iustice answered It cannot be after so long time past Pasch 1655. Banc. sup VPon a writ of Error brought to reverse a fine levied by an Infant being a Feme Covert Day to inspect an Infant The Court was moved for a day to bring in the party that levied the fine to be inspected by the Court which was granted and at the day she was brought into the Court and viewed and two witnesses deposed that she was within age at the time of the fine levied Entry upon the Roll. which was entred upon the Roll upon which the Issue was tryed Pasch 1655 Banc. sup IT was said by Roll chief Iustice Election That if there be two Kinsmen in equal degree of kindred to the Intestate it is in the election of the Ordinary to which of them he will grant Letters of Administration Pasch 1655. Banc. sup AN Outlawry was reversed Outlawry reversed because the place where the County Court was held is not shewed in the secundo exactus Pasch 1655. Banc. sup IT was moved that there was a judgement given in the Common Pleas To affirm a judgement a writ of Error depending and thereupon the Defendant brought his writ of Error to reverse the judgement in this Court and since pending the writ of Error the partses were agréed and therefore they desired the judgement might be affirmed because that otherwise satisfaction of the judgement cannot be acknowledged upon the Roll because the Court of Common Pleas were forclosed to do any thing further upon the judgement given there by reason of the writ of Error But Roll chief Iustice answered It cannot be Denied for you shew no cause why we should affirm the judgement and therefore we will make no rule in it but enter satisfaction upon the Roll if you will at your own peril Pasch 1655. Banc. sup IT was said by Roll chief Iustice that an Action upon the case will lie against one that brings vexatious actions against another Action upon the Case for vexation or for entring of Actions of a great value to force his adversary to put in great bail where he hath but small cause of Action Nota. Trevanian and Penhollow Trin. 1655. TRevanian brought an Action upon the case against Penhollow for speaking of these words of him Plea to an Action on the Case Thou hast taken a false Oath at the Assizes and art false forsworn The Defendant pleads that the Plaintif had agréed to accept of 3 Iuggs of Beer from him in satisfaction The Plaintif