have but one Elegit At another day the Iudges gave their Opinions severally that Iudgment ought to be given in this Court upon the whole Record for that it is an entire Record and the Execution one and if Iudgment were to be given there upon the demurrer there must be two Executions And because the Record shall not be remanded Twisden said the Record it self was here and that it had been so adjudged in King and Holland's case and in Dawkes Batter's case though my Lord Chief Baron being then at the Bar urged strongly that it was but the tenour of the Record that was sent hither And it is a Maxim in Law that if a Record be here once it never goes out again for that here it is coram ipso Rege so that if we do not give Iudgment here there will be a failer of Iustice because we cannot send the Record back The Iury that tries the Issue must assess the damages upon the demurrer The Record must not be split in this case Accordingly Iudgment was given here Willbraham Snow TRover Conversion Vpon Issue Not-guilty the Iury find a special Verdict viz. that one Talbot recovered in an Action of Debt against one Wimb and had a Fierr facias directed to the Sheriff of Chester whereupon he took the Goods into his possession and that being in his possession the Defendant took them away and converted them c. and the sole point was whether the possession which the Sheriff has of Goods by him levied upon an Execution is sufficient to enable him to bring an Action of Trover Winnington I conceive the Action does not lie An Action of Trover and Conversion is an Action in the right and two things are to be proved in it viz. a Property in the Plaintiff and a Conversion in the Defendant I confess that in some cases though the Plaintiff have not the absolute property of the Goods yet as to the Defendants being a wrong-doer he may have a sufficient property to maintain the Action against him But I hold that in this case the property is not at all altered by the seizure of the Goods upon a Fieri facias for that he cited Dyer 98 99. Yelvert 44. This case is something like that of Commissioners of Bankrupts they have power to sell and grant and assign but they cannot bring an Action their Assignees must bring all Actions It is true a Sheriff in this case may bring an Action of Trespass because he has possession but Trover is grounded upon the right and there must be a Property in the Plaintiff to support that whereas the Sheriff takes the Goods by vertue of a nude Authority As when a man deviseth that his Executors shall sell his Land they have but a nude Authority Cur. The Sheriff may well have an Action of Trover in this case As for the case in Yelvert 44. there the Sheriff seiz'd upon a Fieri facias then his Office determined then he sold the Goods and the Defendant brought Trover And it was holden that the Property was in the Defendant by reason of the determining of the Sheriffs Office and because a new Fieri facias must be taken out for that a venditioni exponas cannot issue to the new Sheriff They compared this case to that of a Carryer who is accountable for the Goods that he receives and may have Trover or Trespass at his Election Twisden said the Commissioners of Bankrupts might have an Action of Trover if they did actually seize any Goods of the Bankrupts as they might by Law Rainsford said let the Property after the seizure of Goods upon an Execution remain in the Defendant or be transferred to the Plaintiff since the Sheriff is answerable for them and comes to the possession of them by the Law it is reasonable that he should have as ample remedy to recover damages for the taking of them from him as a Carryer has that comes to the possession of Goods by the delivery of the party Morton said if Goods are taken into the custody of a Sheriff and the Defendant afterward become Bankrupt the Statute of Bankrupts shall not reach them which proves the Property not to be in the Defendant Twisd I know it hath been urged several times at the Assizes that a Sheriff ought to have Trespass and not Trover and Counsel have pressed hard for a special Verdict Morton My Lord Chief Justice Brampston said he would never deny a special Verdict while he lived if Counsel did desire it Gavell Perked ACtion for words viz. You are a Pimp and a Bawd and fetch young Gentlewomen to young Gentlemen Vpon Issue Not-guilty there was a special Verdict found Jones The Declaration says further whereby her Husband did conceive an evil Opinion of her and refused to cohabit with her But the Iury not having found any such special damage the question is whether the words in themselves are Actionable without any relation had to the damage alledged I confess that to call one Bawd is not Actionable for that is a term of reproach used in Scolding and does not imply any act whereof the Temporal Courts take notice for one may be said to be a Bawd to her self But where one is said to be a Bawd in such actions as these it is actionable 27 H. 8. 14. If one say that another holds Bawdry it is Actionable 1 Cro. 329. Thou keepest a Whore in thy House to pull out my Throat these words have been adjudged to be Actionable for that they express an act done and so are special and not general railing words In Dimock's case 1 Cro. 393. Two Iustices were of Opinion that the word Pimp was Actionable of it self But I do not relie upon that or the word Bawd but taking the words all together they explain one another the latter words show the meaning of the former viz. that her Pimping and Bawdry consisted in bringing young men and women together and what she brought them together for is sufficiently expressed in the words Pimp and Bawd viz. that she brought them together to be naught And that is such a Slander as if it be true she may be indicted for it and is punishable at the Common Law The Court was of the same Opinion and gave Iudgment for the Plaintiff Nisi c. Healy Warde ERror of a Iudgment in Hull Weston The Action is brought upon a promise cum inde requisitus foret and does not say cum inde requisitus foret infra Jurisdictionem Twisd Though the agreement be general cum inde requisitus foret yet if he does request within the Iurisdiction it is good enough and so it has been ruled and this Error was disallowed Boswill Coats TWo several Legacies are given by Will to Alice Coats and John Coats the Executors deposit these Legacies in a third persons hand for them and take a Bond of that third person conditioned That if the Obligor at the request of
take notice that he is a Bankrupt any Execution may be stopped at that rate by alledging that there is a Commission of Bankrupts out against the Plaintiff If he be a Bankrupt you must take out a special Scire facias and try the matter whether he be a Bankrupt or not Which Jones said they would do and the Court granted Twisden If a Mariner or Ship-Carpenter run away he loses his wages due which Hales granted Henry L. Peterborough vers John L. Mordant A Trial at Bar upon an Issue out of the Chancery whether Henry Lord Peterborough had only an Estate for Life or was seized in Fee-tail The Lord Peterborough's Counsel alledged that there was a settlement made by his Father 9 Car. 1. whereby he had an Estate in Tail which he never understood till within these three years but he had claimed hitherto under a Settlement made 16 Car. 1. And to prove a Settlement made 9 Car. 1. he produced a Witness who said that he being to purchase an Estate from my Lord the Father one Mr. Nicholls who was then of Counsel to my Lord gave him a Copy of such a Deed to shew what title my Lord had But being asked whether he did see the very Deed and compare it with that Copy he answered in the negative whereupon the Court would not allow his Testimony to be a sufficient Evidence of the Deed and so the Verdict was for my Lord Mordant Cole Forth A Trial at Bar directed out of Chancery upon this Issue whether Wast or no Wast Hales By protestation I try this cause remembring the Statute of 4 Henr. 4. And the Statute was read whereby it is Enacted That no Iudgment given in any of the Kings Courts should be called in question till it were reverst by Writ of Error or Attaint He said this cause had been tried in London and in a Writ of Error in Parliament the Iudgment affirmed Now they go into the Chancery and we must try the cause over again and the same point A Lease was made by Hilliard to Green in the year 1651. afterwards he deviseth the Reversion to Cole and Forth gets an under-Lease from Green of the premisses being a Brew-house Forth pulls it down and builds the ground into Tenements Hales The question is whether this be Wast or no and if it be Wast at Law it is so in Equity To pull down a House is Wast but if the Tenant build it up again before an Action brought he may plead that specially Twisden I think the Books are pro and con whether the building of a new House be Wast or not Hales If you pull down a Malt-mill and build a Corn-mill that is Wast Then the Counsel urged that it could not be repaired without pulling it down Twisden That should have been pleaded specially Hales I hope the Chancery will not Repeal an Act of Parliament Wast in the House is Wast in the Curtelage and Wast in the Hall is Wast in the whole House So the Iury gave a Verdict for the Plaintiff and gave him 120 l. damages Term. Mich. 25 Car. II. 1673. in B. R. AN Action of Debt was brought upon a Bond in an inferiour Court the Defendant cognovit actionem petit quod inquiratur per patriam de debito This pleading came in question in the Kings Bench upon a Writ of Error but was maintain'd by the Custom of the place where c. Hales said it was a good Custom for perhaps the Defendant has paid all the Debt but 10 l. and this course prevents a Suit in Chancery And it were well if it were established by Act of Parliament at the Common Law Wild. That Custom is at Bristow Randall versus Jenkins 24 Car. 2. Rot. 311. REplevin The Defendant made Conusance as Bayliff to William Jenkins for a Rent-charge granted out of Gavel-kind Lands to a man and his Heirs The question was whether this Rent should go to the Heir at Common Law or should be partible amongst all the Sons Hardres It shall go to the eldest Son as Heir at Law for I conceive it is by reason of a Custom time out of mind used that Lands in Kent are partible amongst the Males Lamb. Perambulat of Kent 543. Now this being a thing newly created it wants length of time to make it descendible by Custom 9 H. 7. 24. A feoffment in Fee is made of Gavel-kind Lands upon Condition the Condition shall go to the Heirs at Common Law and not according to the descent of the Land Co. Litt. 376. If a warranty be annex'd to such Lands it shall descend only upon the eldest Son Now this Rent-charge being a thing contrary to common right and de novo created is not apportionable Litt. Sect. 222. 224. it is not a part of the Land for if a man levy a Fine of the Land it will not extinguish his Rent unless by agreément betwixt the parties 4 Edw. 3. 32. Bro. tit Customs 58. if there be a Custom in a particular place concerning Dower it will not extend to a Rent-charge Fitz. Dower 58. Co. Litt. 12. Fitz. Avowry 207. 5 Edw. 4. 7. there is no occasion in this case to make the Rent descendible to all for the Land remains partible amongst the Males according to the Custom And why a Rent should go so to the prejudice of the Heir I know not 14 H. 88. it is said that a Rent is a different and distinct thing from the Land Then the language of the Law speaks for general Heirs who shall not be disinherited by construction The grand Objection is whether the Rent shall not follow the nature of the Land 27 H. 8. 4. Fitzherb said he knew four Authorities that it should Fitz. Avowry 150. As for his first case I say that Rent amongst Parceners is of another nature than this for that is distreynable of Common right As for the second I say the rule of it holds only in cases of Proceedings and Trials which is not applicable to his Custom His third case is that if two Coparceners make a feoffment rendring Rent and one dies the Rent shall not survive To this I find no answer given Litt. Sect. 585. is further objected where it is said that if Land be deviseable by Custom a Rent out of such Lands may be devised by the same Custom but Authorities clash in this point He cited farther these books viz. Lamb. Peramb of Kent and 14 H. 8. 7 8. 21 H. 6. 11. Noy Randall Roberts case 51. Den. cont I conceive this Rent shall descend to all the Brothers for it is of the quality of the Land and part of the Land it is contained in the bowels of the Land and is of the same nature with it 22 Ass 78. which I take to be a direct Authority as well as an instance Co. Lit. 132. ibid 111. In some Boroughs a man might have devised his Land by Custom and in those places he might have devised a Rent
2. Suppose the Defendant had taken issue upon the Statutes being burnt and it had been found to have béen burnt and yet had been found afterwards the Defendant could not have any benefit of this Verdict He said it was a proper case for Equity Slater Carew DEbt upon a Bond. The Condition was that if the Obligor his heirs Executors c. do yearly and every year pay or cause to be paid to Tho. and Dor. his wife during their two lives that then c. the Husband dies and the question was whether or no the payment should continue to the Wife Serjeant Baldwin argued that the money is payable during their lives and the longer liver of them he cited Brudnel's case 5 Rep. and 1 Inst 219. b. that whenever an Interest is secured for lives it is for the lives of them and the longer liver of them and Hill's case adjudged Pasch 4 Jac. Rot. 112. in Warburton's Reports Seyse contra The interest of this Bond is in the Obligee the Husband and Wife are strangers and therefore the payment ceaseth upon the death of either of them and of that Opinion was the whole Court and grounded themselves upon that distinction in Brudnel's case betwixt where the Cestuy que vies have an interest and the cases of collateral limitations They said also that in some cases an interest would not survive as if an Office were granted to two and one of them dyed unless there were words of Survivorship in the Grant So the Plaintiff was barred Term. Mich. 26 Car. II. in Communi Banco Farrer Brooks Administrat of Jo. Brooks THe Plaintiff had Iudgment in Debt against John Brooks the intestate and took out a Fieri facias bearing teste the last day of Trin. Term de bonis catallis of John Brooks before the Execution of which Writ John Brooks dies and Eliz. Brooks administers the Sheriffs Bayliff executes the Writ upon the Intestates Goods in her hands Vpon this Serjeant Baldwin moved the Court for Restitution for that a Fieri facias is a Commission and must be strictly pursued Now the words of the Writ are de bonis of John Brooks and by his death they cease to be his Goods The Plaintiff will be at no prejudice the Goods will still remain lyable to the Iudgment only let the Execution be renewed by Scire facias to which the Administratress may plead somewhat Wyndham The property of the Goods is so bound by the Teste of the Writ as that a Sale made of them bona fide shall be avoided which is a stronger case And since the Intestate himself could not have any plea why should we take care that the Administrator should have time to plead And of that Opinion was all the Court after they had advised with the Iudges of the Kings Bench who informed them that their practice was accordingly But Vaughan faid that in his Opinion it was clearly against the rules of Law But they said there were cases to this purpose in Cr. Car. Rolls Moor c. Liefe Saltingstone's Case EJect ' firmae The case upon a special Verdict was thus viz. Sir Rich. Saltingstone being seized in Fee of Rees-Farm on the 17th day of Febr ' in the 19th year of the King made his Will in writing in which were these words viz. for Rees-Farm in such a place I will and bequeath it to my Wife during her natural life and by her to be disposed of to such of my Children as she shall think fit Sir Richard dyed his Wife entred and sealed such a Writing as this viz. Omnibus Christi fidelibus c. Noveritis that whereas my Husband Sir Richard Salting-stone c. reciting that clause in the Will I do dispose the same in manner following that is to say I dispose it after my decease to my Son Philip and his heirs for ever The Wife died and Philip entred and dyed and left the Lessor of the Plaintiff his Son and heir The question was what Estate Philip took or what Estate the Testator intended should pass out of him This case was argued in Easter-Term last past by Serjeant Scroggs for the Plaintiff and by Serjeant Waller for the Defendant and in Trinity-Term by Serjeant Baldwin for the Plaintiff and Serjeant Newdigate for the Defendant They for the Plaintiff insisted upon the word dispose that when a man deviseth his Land to be disposed by a stranger it has been always held to be a bequeathing of a Feé-simple or at least a power to dispose of the Fee-simple 19 H. 8. 10. Moor 5 Eliz. 57. per Dyer Weston Welshe but they chiefly relyed on Daniel Uply's case in Latch The Defendants Councel urged that the heir at Law ought not to be disinherited without very express words That if the Devisor himself had said in his Will I dispose Rees-Farm to Philip that Philip would have had no more then an Estate for life and what reason is there that the disposal being limited to another should carry a larger Interest then if it had been executed by the Testator himself This Term it was argued at the Bench and by the Iudgments of Ellis Wyndham Atkyns Iustices the Plaintiff had Iudgment they agreed that the Wife took by the Will an Estate for her own life with a power to dispose of the Fee She cannot take a larger Estate to her self by implication then an Estate for life because an Estate for life is given to her by express limitation 1 Bulst 219 220. Whiting Wilkins case For cases resembling the case in question were cited 7 Ed. 6. Brook tit Devise 39. 1 Leon. 159. Daniel Uply's case Clayton's case in Latch It is objected that in Daniel Uply's case there are these words at her will and pleasure to which they answered that if she have a power to dispose according to her discretion and as she her self pleaseth and then expressio eorum quae tacite insunt nihil operatur If I devise that J. S. shall sell my Land he shall sell the Inheritance Kelloway 43 44. 19 H. 8. fol. 9. Where the Devisor gives to another a power to dispose he gives to that person the same power that himself had Vaughan Chief Justice differed in Opinion he said it is plain that the word dispose does not signifie to give for if so then it is evident that the Lessor of the Plaintiff cannot have any title for if the Wife were to give then were the Estate to pass out of her which could not be by such an appointment as she makes here but must be by a legal Conveyance Besides she cannot give what she has not and she has but an Estate for life If then it does not signifie to give what does it signifie let us a little turn the words and a plain certain signification will appear I will and bequeath Rees-Farm to such of my Children as my Wife shall think fit at her disposal at this rate
feigned names The first cause thereof was the ignorance of Sheriffs who being to make a return looked into some Book of Presidents for a form and finding the names of John Doo and Rich. Roo put down for examples made their return accordingly and took no care for true Sumners and true Manucaptors For Non-appearance at the return of the great Distress in a plea of Quare Impedit final Iudgment is to be given and our right bound for ever which ought not to be suffered unless after Process legally served according to the intention of the Statute In a case Mich. 23. of the present King Iudgment was entred in this Court in a plea of Quare impedit upon non-appearance to the great Distress but there the party was summoned and true Summoners returned upon non-appearance an Attachment issued and real Sumners return'd upon that but upon the Distress it was return'd that the Defendants districti fuerunt per bona catalla manucapti per Joh. Doo Rich. Roo and for that cause the Iudgment was vacated Cur ' The design of the Statute of Marlebridge was to have Process duly executed which if it were executed as the Law requires the Tenant could not possibly but have notice of it For if he do not appear upon the Summons an Attachment goes out that is a command to the Sheriff to seize his body and make him give Sureties for his appearance if yet he will not appear then the great distress is awarded that is the Sheriff is commanded to seize the thing in question if he come not in for all this then Iudgment final is to be given Now the issue of this Process being so fatal that the right of the party is concluded by it we ought not to suffer this Process to be changed into a thing of course It is true the Defendant here had notice of the Suit but he had not such notice as the Law does allow him And for his fourching in essoyn the Law allows it him Accordingly the Iudgment was set aside Anonymus FAlse Judgment out of a County Court the Record was vitious throughout and the Iudgment reversed and ordered that the Suitors should be amerced a Mark but the Record was so imperfectly drawn up that it did not appear before whom the Court was held and the County Clark was fined Five pounds for it Cessavit per biennium the Defendant pleads Non-tenure He commenceth his plea quod petenti reddere non debet but concludes in abatement Serjeant Barrell He cannot plead this plea for he has imparled Cur̄ Non-tenure is a plea in bar the conclusion indeed is not good but he shall amend it Barrell Non-tenure is a plea in abatement The difference is betwixt Non-tenure that goes to the tenure as when the Tenant denies that he holds of the demandant but says that he holds of some other person which is a plea in bar and Non-tenure that goes to the Tenancy of the Land as here he pleads that he is not Tenant of the Land and that goes in abatement only The Defendant was ordered to amend his plea. Addison versus Sir John Otway TEnant in tail of Lands in the Parishes of Rippon Kirby-Marleston in the Towns of A. B. C. Tenant in Tail makes a Deed of bargain and sale to J. S. to the intent to make J. S. Tenant to the Praecipe in order to the suffering of a common Recovery of so many Acres in the Parishes of Rippon Kirby-Marlestone Now in those Parishes there are two Towns called Rippon Kirby-Marlestone and the Recovery is suffered of Lands in Rippon Kirby-Marlestone generally all this was found by special Verdict and further that the intention of the parties was that the Lands in question should pass by the said recovery and that the Lands in question are in the Parishes of Rippon Kirby-Marlestone but not within the Townships and that the bargainor had no Lands at all within the said Townships The question was whether the Lands in question should pass by this Recovery or not Shaftoe They will pass The Law makes many strained constructions to support common Recoveries and abates of the exactness that is required in adversary Suits 2 Rolls 67. 5 Rep. Dormer's case Eare Snow Plo. Com. Sir Moyle Finche's case 6 Rep. Cr. Jac. 643. Ferrers Curson In Stork Foxe's case Cr. Jac. 120 121. where two Villes Walton Street were in the Parish of Street and a man having Lands in both levied a Fine of his Lands in Street his Lands in Walton would not pass but there the Conusor had Lands in the Town of Street to satisfie the grant but in our case it is otherwise He cited also Rolls Abridgm Grants 54. Hutton 105. Baker Johnson The Deed of bargain and sale and the Recovery make up in our case but one assurance and construction is to be made of both together as in Cromwells case 2 Report The intention of the parties Rules Fines and Recoveries and the intention of the parties in our case appears in the Deed and is found by the Verdict Rolls Abridgm 19. 2 part Winch. 122. per Hob. Cr. Car. 308. Sir George Symond's case betwixt which last case and ours all the diffreence is that that case is of a Fine and ours of a Common Recovery betwixt which Conveyances as to our purpose there is no difference at all He cited Jones Wait's case Trin 27 Car. 2. in this Court and a case 16 Reg. nunc in B. R. when Hide was Chief Iustice betwixt Thynne Thynne North. The Law has always stuck at new niceties that have been started in cases of Fines and Common Recoveries and has gotten over almost all of them I have not yet seen a case that warrants the case at Bar in all points Nor do I remember an Authority expresly against it and it seems to be within the reason of many former resolutions But we must be cautious how we make a further step Wyndham I think the Lands in question will pass well enough and that the Deed of bargain and sale which leads the uses of the Recovery does sufficiently explain the meaning of the words Rippon Kirby Marlestone in the recovery I do not so much regard the Iuries having found what the parties intention was as I do the Deéd it self in which he expresses his own intention himself and upon that I ground my Opinion Atkyns agreed with Wyndham Indeed when a place is named in legal proceedings we do prima facie intend it of a Ville if nothing appears to the contrary stabitur praesumptio donec probetur in contrarium In this case the Evidence of the thing it self is to the contrary The reason why prima facie we intend it of a Ville is because as to civil purposes the Kingdom is divided into Villes He do not intend it of a Parish because the division of the Kingdom into Parishes is an Ecclesiastical distribution to Spiritual purposes