choose their Church-wardens and they chose two the Parson chose a third The Official of the Bishop gave Oath to one of them chosen by the Parish but refused to swear the other and would have sworn the party chosen by the Parson but the Parish was against it upon which the Parson Libelled in the Ecclesiastical Court And a Mandat was here praid That the Official swear the other who was chosen by the Parish and a Prohibition to stay the Suit in the Ecclesiastical Court. Upon the Mandat the Justices doubted and desired that Presidents and Records might be searched and at length upon many Motions Presidents and Records shewed a Mandat was granted But there being Suit in the Ecclesiastical Court bâ— the other whom the Parson chose a Prohibition was granted without any difficulty But at first the Counsel prayed a Prohibition for not swearing the other which the Court refused to grant because there was no proceeding in the Ecclesiastical Court and a Prohibition cannot be granted where there is no proceeding by way of Suit Vaughan against Vaughan in Action upon the Case upon Assumpsit 51. THe Defendant did promise that he would make such a Conveyance of certain Lands and pleaded That he had made it but did not shew the place where it was made And the Court was clear of Opinion that he need not for it shall be intended upon the Land And so in case of performance of Covenants it is not needful to shew the place where c. Norrice and Norrices Case 52. COpy-holder for life where the custome is That if the Tenant die seised that he shall pay a Heriot The Lord granted the Seigniory for 99 years if the Tenant should so long live And after that he made a Lease for 4000 years Tenant for Life is disseised or more properly ousted and died Here were two Questions 1. Whether there were any Heriot to be paid and admitting there were yet who should have it whether the Grantee for 99 years or he who had the 4000 years And the Court was clear of Opinion in both points without any argument 1. That a Heriot was to be paid not withstanding that the Tenant did not die seised because he had the estate in right and might have entred although he had not the possession And Justice Barckley compared it to the Case in C. 3. Rep. 35. a. in Butler and Bakers Case where a man hath one acre of Land holden in Capite and a hundred acres of Socage Land and afterwards he is disseised of the Capite Land and afterwards makes his will of all his Socage Land in that case he is a person having of Capite Land as the Statute speaks And yet that right of Capite Land shall make the devise void for the third part for notwithstanding the disseisin yet he is Tenant in Law And as to the second point the Court was clear of Opinion also That he in remainder or he that had the Estate for 4000 years for note the Action was brought by him in the Remainder for the Heriot should not have it And their reason was because the Tenant for life was not the Tenant of him who had the future interest of 4000 years but of him who had the interest for 99 years But they were not clear of opinion that the Grantee for 99 years should have the Heriot Justice Barckley was that the Grantee for 99 years should have it But Justice Iones there being then none in Court but they haesitavit And the reason of the doubt was because that eo instante that the Tenant died eodem instante the estate of the Grantee for 99 years determineth Justice Iones put this Case A Seigniory is granted for the life of the Tenant the remainder over in fee the Tenant dieth Who shall have the Ward Justice Barckley said he who is Grantee of the particular estate but Iones seemed to doubt it Vide 44 E. 3. 13. Lewes against Jones in a Writ of Error 53. JUdgment was given for Iones against Lewes in an Action brought in the Common Pleas And Lewes here brought a Writ of Error and assigned for Error That he was an infant at the time of the Action brought against him And that he appeared by Attorney whereas he ought to appear by Guardian or procheine amy The defendant pleaded in avoidance of this Writ of Error That there was no Warrant of Attorney The Plaintiff allegando shewed the Error before And the Defendant pleaded in nullo erratum est And the Judgment was reversed But the Opinion of the Court was That the better way had been for the Plaintiff to have demurred in Law for there being no warrant of Attorney there was no appearance at all and so are the Books 38 E. 3. and 14 E. 4. 54. In Vtburt and Parhams Case it was agreed That a man may be Non-suit without leave of the Court but he cannot discontinue his Suit without consent of the Court. Davis and Bellamies Case in Attaint 55. THe Defendant brought Attaint and the Verdict was affirmed and Costs prayed upon this Rule that where the Plaintiff shall have costs there the Defendant shall have costs But they were denied by the Court for that ought to be taken in the original Action and not in case of Attaint But upon the restituatur there costs shall be given but that is in the original Action 56. If two joynt-tenants be of a Rectory and one sueth for Tithes by himself only it is nâ— cause of Prohibition So if a Feme Covert sue solely upon a desamation a Prohibition shall not be granted 57. The Sheriff of a County made a Warrant Balâ—ivis suis to arrest the body of such a man and the Bayliffs of the Liberâ—y return a Rescous And Exception was taken to it because that the Warrant was Ballivis suis and the Return was made by those who were not his Bayliffs and it was adjudged for the Liberty might be within his Bayliwick and so are all the Presidents And there was another Exception because the place of the Rescous was not shewed and for that the Book of 10 E. 4. was cited for there the Rescous was adtunc ibidem and did not shew the place To that it was answered by the Court and agreed that adtunc ibidem is altogether incertain if the place be not shewed but in the principal Case the place was shewed at the first and always after that tunc ibidem only without naming of the place and adjudgâ—d good For that tunc ibidem throughout the Declaration hath reference to the place first shewed and it was adjudged good 58. Outlawry was reversed for this Error because that the Exigent was Secund exactus ad Com' meum ibidem c. 59. A Hundred may prescribe in Non decimando and it is good for it is the custome of the County which is the best Law which ever was But a Parish or a particular Town cannot prescribe in Non decimando And
doubted thereof and did conceive that no costs should be given in this case and that upon Pilfords case 10 Rep. As to the Presidents he said that they did not bind him for perhaps they passed sub silentio And afterwards it was adjorned Johnson against Dyer 96. IN an Action upon the Case for words the Defendant having speech with the Father of the Plaintiff said to him I will take my Oath that your Son stole my Hens For which words the Plaintiff brought the Action But did not aver that he was his Son or that he had but one Son And it was holden by the whole Court Crooke being absent that the plea was not good Leake and Dawes Case 97. LEake brought a Scire facias in the Chancery against Dawes to avoid a Statute and the Case as it was moved by Serjeant Wilde was such Hopton acknowledged a Statute to Dawes and afterwards conveyed part of the Land liable to the Statute to I. S. who conveyed the same to Leake the plaintiff and afterwards the Conusor conveyed other part of the Land to Dawes the Defendant who was the Conusee by bargain and sale the Conusee extended the Lands of Leake the Purchaser who thereupon brought this Scire facias to avoid the Statute because that the Conusee had purchased parcel of the Land liable to the Statute and so exâ—inguished his Statute And this case came by Mittimus into the Kings Bench. And here it was moved by Serjeant Wilde for Dawes the Defendant in arrest of Judgment And taken by him for Exceâ—â—ion That the bargain and sale is alledged to be made to Dawes but it is not shewed that it was by Deed inrolled but yet it is pleaded That Virtute cujus viz. of Bargain and Sale the Conusee was seised and doth not shew that he entred And here it was said by the Court There are two points First Whether an Inrolment shall be intended without pleading of it Secondly Admitting not what Estate the Bargaineâ— hath as this Case is As to the first Justice Iones took this difference Where a man pleads a bargain and sale to a stranger and where to himself In the first case he need not plead an Inrolment but contrary in 〈…〉 Barckley agreed it and took another difference betwixt a Plea in Bar and a Count In a Count if a man pâ—â—ad a grant of a Reversion without attorâ—ment it is good contrary in Bar so in this Case The second question is admitting that the Deed shall be intended not to be inrolled without pleading What estate Dawes the Conusee hath before Entry the Deed not being inrolled For it was agreed by the whole Court That if he be a disseior or if he hath but an estate at will that the Statute is suspended And first whether he hath an estate at will at the common Law or not without Entry Barckley that he had But Iones and Bramston contrary and it seemed that he had an estate at will by the Statute And put the case of feoffment in Bucklers case 3. Rep. Where the Feoffee entreth before Livery that he hath an estate at will and Barckley agreed therein with him for the possibility of inrolment But Iones conceived that an estate at will could not be executed by the Statute And it was adjorned Curtisse against Aleway 98. THe Case was thus A woman was dowable of certain Land within the Jurisdiction of the Council of the Marches of which I. S. died seised She accepted a Rent by parol of the Heir out of the same Land in satisfaction of her Dower And afterwards there was a Composition betwixt them for defalcation of that Rent Afterwards there was an Action brought before the Council of the Marches for the Arrerages of the Rent where the question was Whether the Rent were in satisfaction of her Doweâ— or not and it was moved by Moreton for a Prohibition And it was granted by the Court because the same did concern Freehold of which they have not Jurisdiction for by the express Proviso of the Statute of 34 H. 8. of holding of plea of Lands Tenements Hereditaments or Rents But because that it appeared by the Bill that the woman was dead so as the realty was turned into the personalty viz. into Debt And therefore it was conceived by Evers Attorney of the Marches That although it was not within the Jurisdiction before yet being now turned into a personal Action that they have Jurisdiction But Iones and Barckley Justices were of a contrary Opinion and Iones said That an Action of Debt for Arrerages would not lie before them because it touched the realty which was denied by none but Evers Attorny Edwards against Omellhallum 99. IN a Writ of Error to reverse a Judgment given in Ireland in an Ejectione firme the Case was this as it was found by special verdict A Mortgager made a Lease for years by Deed indented and afterwards performed the Condition and made a Feoffment in Fee the Lessee entred upon the Feoffee who re-entred and the Lessee brought an Ejectione firme And the only question as it was moved by Glynn was Whether this Lease which did inure by way of Estople should binde the Feoffee or no and by him it did and Rawlyns case in the 4 Rep. 53. expresly and 1 2 Phil. Mar. Dyer agreeth And the whole Court Crooke only absent without any argument were clear That it should binde the Feoffee for all who claim under the Estople shall be bound thereby vid. Edriches case 13 H. 7. 100 Serjeant Iermayn came into the Court and shewed cause why a Prohibition should not be granted in the case of Skinner before who Libelled for Tythes of Coppice rooted up He agreed that for timber-trees above the growth of twenty no Tithes should be paid and so he said was the common Law before the Statute of 45 E. 3. which was but a confirmation of the Common Law And he said That as the body of the tree is priviledged so are the branches and root also which is a proof that where the body is not priviledged there neither shall be the root â—or branches And in our Case he Libels for roots of underwoods and the underwood it self being titheable therefore the roots shall be also tithable And he said that the 〈…〉 are not parcel of the Land But Justice Barckley was against it for they are not crescentia nor renovantia as Tithes ought to be and therefore no Tithes ought to be paid for them and he said that a Prohibition hath many times been granted in the like cases But Dr. Skinner did alledge a custome for the payment of Tithes of them And upon that they were to go to trial And here it was said that Dr. Skinner had used to have some special particular benefit of the Parishioners in lieu of Tithe of Roots And thereupon Barckley said That it is a Rule where the Parishioner doth any thing which he is not compellable by the Law to do
â—e conceived That if a man speak such words of another that if they were true would make him liable to a pecuniary or corporal punishment that they would bear an Action and here the Plaintiff was endamaged and therefore without question they will bear an Action Bramston Chief Justice as before also That the words are not Actionable neither of themselves nor for the damage not of themselves for no words which subject a man to a pecuniary Mulct if they were true either at the Common Law or by the Statute will bear an Action For by the same reason to say that a man hath erected a Cottage or to say that a man hath committed a Riot would bear Action 37 Eliz. in the Common Pleas. One said of another That he did assault me and took away my Purse from me and upon Not Guilty pleaded it was found for the Plaintiff and Judgment was stayed because he might take his purse from him and yet be but a Trespasser So as it appeareth that words ought to have a favourable construction to avoid multiplicity of Suits and if these words would bear an Action by the same reason words spoken against every penal Law should bear Action which against the reason given before should be a means to increase Suits And he took it for a rule If the words import scandal of themselves by which damage may accrue then the words will bear action without damage otherwise not and therefore the damage here shall not make the words Actionable which of themselves are not actionable as I conceive they are not Besides by this means the Act of a third person should prejudice me which is against reason as here the Act of the Ordinary by the Citation and damage thereupon accrued which perhaps might be ex officio only for which cause he conceived that Judgment should be stayed but because there were two Judges against one Judgment was given for the Plaintiff Mich. 17º of the King in the Common Pleas. 192. BAine brought an Action upon the Case against for these words viz. That he kept a false Bushel by which he did cheat and cosen the poor he said in his Declaration That he was a Farmor of certain lands and used to sow those lands and to sell the Corn growing on them and thereby per majorem partem used to maintain himself and his family and that those words were spoken to certain persons who used to buy of him and that by reason of those words that he had lost their custom the parties were at issue upon the words and found for the Plaintiff and it was moved by Serjeant Gotbold in arrest of Judgment that the words were not actionable because that the Plaintiff doth not alledge that he kept the false Bushel knowing the same to be a false Bushel for if he did not know it to be a false Bushel he was not punishable and by consequence no Action will lie and compared it to the case Where a man keeps a Dog that useth to worry sheep but he doth not know of it no Action lieth against him for it but yet notwithstanding Bankes chief Justice and Crawley were of Opinion that the words were Actionable for of necessity it ought to be taken that he kept the Bushel knowingly for otherwise it is no cousenage and here being special damage alledged which was the loss of his custom as he had pleaded it the maintenance of his livelihood they hold the words clearly actionable gave Judgment accordingly Note the other Judges were in Parliament 193. Doctor Brownlow brought an Action upon the case for words against 〈◊〉 spoken of him as a Physitian which words were agreed to be Actionable but yet Serjeant Gotbold conceived that although that the words were actionable that the Plaintiff had not well intitled himself to his Action because although that he said that he is in Medicinis Doctor yet because he doth not shew that he was licensâ—d by the Colledge of Physitians in London or that he was a Grâ—dâ—ate of the Universities according to the Statute of 14. H. 8. cap. 5. that therefore the action will not lie see Doctor Bâ—unchams case 8 Rep. 113. â— where he shewed the Statute aâ—orâ—said and pleaded it accordingly that he was a Graduate of the University of Cambridge wherefore he prayed that Judgment might be stayed Bankes Chief Justice and Crawley doubted whether the Act were a general Act or not for if it were a particular Act he ought to have pleaded it otherwise that they could not take notice of it but upon reading of the Statute in Court they agreed that it was a general Act wherefore they gave day to the party to maintain his Plea 194. By Bankes Chief Justice upon an Elegit there needs no Liberate otherwise upon a Statute and note the Elegit doth except Averia Corucae Dye and Olives Case 195. IN an Action of false Imprisonment the Defendant shewed that London hath a Court of Record by prescription and that the same was confirmed by Act of Parliament and that he was one of the Serjeants of the Mace of that Court and that he had a Warrant directed unto him out of that Court to arrest the Plaintiff pro quodam contemptu committed to the Court for not paying twenty shillings to K. B. and that in pursuance of the command of the Court he accordingly did arrest the Plaintiff Maynard that the justification was not good because the Defendant doth not shew what the contempt was nor in what Action so as it might appear to the Court whether they had Jurisdiction or not And if such general Plea should be tolerated every Court would usurp Jurisdiction and every Officer would justifie where the proceeding is Câ—ram non Iudice and void and thereby the Oâ—â—icer liable to false Imprisonment according to the case of the Marshalâ—ee in the 10 Rep. And here the pleading is incertain that the Jury cannot try it and he put the case of the Mayoâ— of Plymouth The Mayor hath Jurisâ—iction in Dâ—bt and Trespass is brought there which is Coram non Iudice But in this Action the parâ—y is imprisoned pro quodam contemptu shall this be a good Justification in a false imprisonment brought against the Officer certainly no. Serjeant Rolls contrary that the Plea was good because that the Defendant hath shewed that the Court was holden secundum consuetudinem and therefore it shall be intended that the contemptâ— was committed in a Case within their Jurisdiction and therefore he cited the 8 Rep. Turners Case to which Maynard replied that that doth not make it good because that issue cannot be taken upon it At another day the Judges gave their Opinions Justice Mallet That the Plea is not good because that it is too general and non constat whether within their Jurisdiction or not and where it was objected that he is a Minister of the Court and ought to obey their commands and therefore it should go hard that he
the Corporation spake these words of the Plaintiff to his Brethren of the Corporation He praedict the Plaintiff innuendo is an ignorant man and not fit for the place and he said that by reason of speaking of these words that they refused to elect him Steward and whether these words were actionable or no was the Question This case was argued twice in Trinity-Term by Callis and Gotbold Serjeants and the Judges seemed to incline to opinion That the words were Actionable but yet no judgment is given Selden against King in Common Pleas Trin. 17 Car. Regis 218. IN a Replevin the Case was thus A man granted a rent out of certain Lands and limited the same to be paid at a house which was another place off the Land and in the grant was this clause that if the rent were behind and lawfully demanded at the house that then it should be lawful for the grantee to distrein the Rent was afterward behind and the grantee distreined and upon traverse taken upon the demand whether this distress upon the Land which had been good in Law if there had not been a special limitation of demand at a place off the Land be a good demand as this Case is was the point Mallet Serjeant the distress is a demand in it self and there needs not any other demand although the rent be to be paid off the Land as here And it was adjudged in this Court about 3 years past that the distress was a sufficient demand but I confess that a Writ of Error is brought in the Kings Bench and they incline there to reverse it and there is no difference where the rent is payable upon the Land where not and so it was adjudged Trin. 3 Car. Rot. 1865 or 2865. betwixt Berriman and Bowden in this Court and he cited also Fox and Vaughans Case Pasch. 4 Car. in this Court and Sir Iohn Lambes case Trin. 18 Car. Rot. 333. in this Court both adjudged in the point and he cited many other Judgments Iermyn Serjeant contrary that the distress is no sufficient demand as this Case is he ought to demand it at the place appointed by the grant for it is part of the grant and the words of the grant ought to be observed 28 H. 8. Dyer 15. and in the Comment 25. a. it is said that Modus legem dat donationi and therefore by the same reason that the grantor may appoint the time and place of payment as here he hath done by the same reason he may appoint a place for the demand and that he shall make that demand before he distrein for the same is neither repugnant nor impossible nor against the Law and therefore good and by consequence ought to be observed and then he answered the Cases which were cited to be adjudged against him In Symmons Case in the Kings Bench there it was resolved that a distress was a demand in Law and a demand in Law is as strong as a demand in fact as it was said by Justice Barckley in debate of that Case But note that in that Case there was no time in certain limited and further in that Case the Rent was payable upon the land and therefore in that Case I agree that a distress will be a good demand because that the demand is to be made upon the land but it is not so in our Case In Sands and Lees case Trin. 20 Iac. in this Court there also the rent was payable upon the land Berriman and Bowdens Case Trin. 3 Car. cited before I agree was our very Case in point but there Judgment was given upon Confession and therefore doth not rule our Case and in Sir Iohn Lambes Case there was no Judgment given and therefore that doth not rule our Case but Melsam and Darbies case M. 6 Car. Rot. 389. in the Kings Bench a Case in the point where Judgment was reversed upon a Writ of Error there brought for want of demand and Selden and Sherleys case in that Court a Case also in the point was reversed Mich. 16 Car. in the Kings Bench upon a Writ of Error brought for want of demand wherefore I conclude that there ought to have been an actual demand at the house according to the grant in our Case and therefore the Traverse in this Case taken by the grantor is well taken Note that Justice Crawley said that Lambes Case was adjudged that there needed no demand and he said that there were three Judgments accordingly in this Court but Rolls Serjeant said that Darbies Case was reversed in the Kings Bench for want of a demand But note that Foster and Reeve Justices did incline that there should be a demand and so Bankes Chief Justice for he said that it is part of the contract and like a condition precedent for as in a condition precedent a man ought to perform the condition before he can take any thing by the grant so in this Case the grantee ought to make a demand to enable him to distrein for before the demand he is not by the manner of the grant which ought to be observed entitled to a distress wherefore he give direction to the Counsel that they would view the Records and shew them to the Court and further he said to them that where it appeareth that the Rent was demandable upon the land that those cases were not to the purpose and therefore wished that they would not trouble the Court with them Levet and Sir Simon Fanshawes Case in Common Pleas Trin. 17. Car. Regis 249. LEvett brought debt against Sir Simon Fanshawe and his Wife as Executrix of another and sued them to the Exigent and at the return of the Exigent the Defendant Sir Simon Fanshawe came in voluntarily in Court and prayed his Priviledge because he was an Officer of the Exchequer and whether he should have his priviledge in that case or not was the question and that rests upon two things First because he is sued as this case is meerly for conformity and necessity-sake and in the right of another viz. in the right of his wife as Executrix And secondly because he demands his priviledge at the Exigent Whitfield Serjeant that he ought to have his priviledge and he cited Presidents as he said in the point as Pasch. 44 Eliz. in the Exchequer Iames Ashtons case sâ—rvant to the Treasurer and Pasch. 23. Iac. Rot. 131. Stantons case also in the Exchequer in both which cases he said husband and wife were sued in the right of the wife and the husband had his priviledge But he cited a Case which was nearer our Case and that was Hill 8. Iac. in the Exchequer Wats and Glovers case where husband and wife were sued in the right of the wife as Executrix and he said that it was over-ruled that the husband should have his priviledge 22 H. 6. 38. and 27 H. 8. 20. in those Cases the husband and wife were sued in the right of the wife and yet the husband
by this way he might defeat the Lord of his services The custom was That a woman should have her widows estate the Copy-tenant made a Lease for one year and died and adjudged that the woman should have her widows estate as excrescent by Title Paramouns the estate made for one year see Hab. Rep. And as these the estate of the wife was derivative so here and although it be not the intire Copyhold estate yet it is part of it and a continuation of it and is liable to every charge of the Lord 6 Rep. Swaines case wherefore he concluded that the custom is good and that the avowant ought to have Judgment Justice Heath the custom is good both for the matter and form of it where it was objected that for a personal injury done by one the cattle of another cannot be disâ—teined I agree that it is unjust that where alius peccat alius plectitur but our case differs from that rule for this was by custom for Transit terra cum onere he who shall have the land ought to undergo the charge Besides wheresoever a custom may have a good beginning and ex certa rationabili causa it is a good custom Bracton lib. 1. cap. 3. But this might have a reasonable ground at the beginning for here the punishment is a qualification of the Law for where by the Law the Copyhold-tenant is to forfeit his copyhold-tenement for waste either voluntary or permissive now this penalty is abridged and made more easie and therefore is very reasonable 43 E. 3. 5. 44 E. 3. 13. custom that if a tenant be indebted to the Lord that he may distrein his other tenants for it is not good but if it were for Rent it should be good because it may be the tenants at the first granted it to the Lord 22 H. 6. 42. 12 H. 7. 15. 35 H. 6. 35. custom to sell a distress is good and yet it cannot be done but by Act of Parliament And where it was objected that the amercement is personal and therefore cannot extend to the Plaintiff to that he answered that it is not meerly personal but by custom as aforesaid is now made a charge upon the Land and therefore not meerly personal Besides if the custom in this case had been that the Plaintiff for waste should forfeit his Copyhold-tenement it had been reasonable à fortiori in this case that he shall be only amerced wherefore he concluded that the custom is good and therefore that the avowant should have judgment Bramston Chief Justice that the custom is good and that he conceived to be clear First he conceived that the custom is reasonable as to the Copy-tenant for clearly by the Common Law if he suffer or do waste he shall forfeit his Copyhold and therefore this custom is in mitigation of the penalty and therefore is reasonable and that is not denied but the only doubt here is whether the custom to distrein the under-tenant for an amercement layed upon the tenant be a good custom or not and he conceived it is for the custom which gives the distress knits it to the Land and therefore not meerly personal as it was objected And if the custom had not extended to the under-tenant he might have distreined him for otherwise the Lord by such devise as there is viz. by the making of a Lease for one year by the Tenant should be defeated of his services 3 Eliz. Dyer 199. resolved custom to seise the cattle of a stranger for a Heriot is not good because that thereby the property is altered But custom that he may distrein the cattle of a stranger for a Heriot is a good custom because the distress is only as a pledge and means to gain the Heriot and in our case the Land is charged with the distress and therefore the cattle of any one which come under the charge may be distreined for it and therefore he held clearly that the custom was good and that the avowant should have Judgment Justice Barckley at this time was impeached by the Parliament of High Treason 232. A man was indicted for murder in the County Palatine of Durham and now brought a Certiorare to remove the Indictment into this Court and it was argued by Keeling at the Bar that Br ' Domini Regis de Certiorare non currit in Com' Palatinum But the Justices there upon the Bench viz. Heath and Bramston seemed strongly to incline that it might go to the County-Palatine and they said that there were many presidents in it and Justice Heath said that although the King grant Iura Regalia yet it shall not exclude the King himself and he said their power is not independent but is corrigible by this Court if they proceed erroneously and he said that in this case the party was removed by Habeas corpus and by the same reason that a Habeas corpus might go thither a Certiorare might for which cause it was awarded that they return the Writ of Certiorare and upon the return they would debate it Hillary 17º Car ' in the Common Pleaâ— â—ayton against Grange in a second deliverance 233. JOhn Layton brought a second deliverance against Anthony Grange and declared of taking of certain Cattle in a place called Nuns-field in Swassam-Bulbeck and detainer or them against gages and pledges c. The defendant made conusance as Baylift to Thomas Marsh and said that long time before the taking alledged one Thomas Marsh the father of the Plaintiff was seised of the Mannor of Michel-Hall in Swassâ—â—-Bulbeck aforesaid of which the Land in which time 〈◊〉 of mind c. was parcel and that one Anthony Cage and Dorothy his wife and Thomas Grange and Thomasine 〈…〉 of the Land in which c as in the right of the saiâ— Dorothy and Thomasine their wives in deâ—esne as of sâ—e and that they held the Land in which c. as of his Mannor of Michel-Hall by soccage viz. fealty and certain Rent payable at certain days and that the said Thomas Marsh was sâ—iâ—ed of the said services by the hands of the said Anthony Cage and Dorothy his wife Thomas Grange and Thomasine his wife as by the hands of his very Tenants and he derived the Tenancie to one Sir Anthony Cage and the Seigniory to Thomas Marsh the son by the death of the said Thomas Marsh the Father and because that fealty was not done by Sir Anthony Cage he as Bayly of the said Thomas Marsh the son did justifie the taking of the said cattle ut insâ—a feoduâ—â— dominium sue c. The Plaintiff by Protestation said that Non 〈◊〉 the Lands aforesaid of the said Thomas Marsh as of his Mannor of Michel-Hall in Swassaâ—â—-Bulbeck aforesaid by soccage viz. fealty and rent as aforesaid and pro placito said that the Defendant took the cattle as aforesaid and detained them against gages and pledges and then traversed Absque hoc that the said Thomas Marsh
erect his Tavern For it is a disorderly Profession and not fit for every place And it was adjudged in this Court That a Brewhouse ought not to be erected in Fleet-street because it is in the heart of the City and would be annoyance to it And if one would set up a Butchers shop or a Tallow-Chandlers shop in Cheap-side it ought not to be for the great annoyance that would ensue And therefore the Mayor and Communalty may redress it And therefore the party was remanded and was advised by the Court to submit to the Government of the City Note the Recorder certified the Custom That the Mayor might appoint a place 35. Upon a Recovery in a Court-Baron against one he offered here to wage his Law And Justice Barckley doubted whether wager of Law would lie in such Case To which Justice Iones said Yes and Barckly agreed hereunto because the Recovery was in a base Court and not in a Court of Record Vide 2 E. 4. 36. No antient Mill is Tithable but Mills newly erected shall pay Tithes by the Statute of 9 E. 2. 5. Meade against Axe in a Writ of Error to reverse a Iudgment 37. THe Case was Axe brought an Action against Meade for these words spoken of the Plaintiff a Dyer by the Dâ—fendant Thou art not worth a Groat And the Plaintiff added that these words amongst Citizens of such place where they were spoken have the common acceptation and doth tant amount as the calling of him Bankrupt The Errors which were assigned by Meade Plaintiff in the Writ of Error were 1. Because it is added that the words were spoken inter diversos ligeos and doth not say Citizens of the place where they have such acceptation 2. Because that the Judgment is Consideratum est and the words per Curiam left out And the Court was clear that for these two Errors the Judgment should be reversed But the Court was clear of Opinion That the words of themselves are not actionable and that the averment in this Case was idle and to no purpose because the words of themselves imply a plain and intelligent sense and meaning to every man And it was compared to the Cases Where there is no Latine for words there where words of no signification are put to express them there they ought to be explained by an Anglicè but where the words are significant there needs not any Anglicè Now if you will explain significant words under an Anglicè contrary to the meaning and true intendment of the word it self the Anglicè is void So in our Case of Averment The reason which was conceived wherefore the words of themselves are not Actionable Because that many men in their beginnings are not worth a Groat and yet their credit is good with the world But if he had laid specially That he was damnified and haâ— lost his Credit and that none would trust him upon this special matter the words would be Actionable Bonds Case 38. IN Trespass the Plaintiff declared That the Defendant entred in his Land and did cut down and carry away two Loads of Grass in the Plaintiffs Soil in a certain piece of Ground in which the Trespass was supposed to be done to strow the floor of the Church and that he cut two Loadâ— there to estrew the floor of the Church and did not say that it is the same Trespass c. And it was adjudged Error But the Court was clear that the Prescription for cutting of grass to estrew the Church was good because it was but in the nature of an Easement And so to have a washing-place in the land of another and so the custom here in London to shoot in the land of another and so for the Inhabitants of a town to have a way over the land of another to their Church But Mr. Rolls who moved the Case at the Bar said That it was adjudged that Inhabitants of a town by custom should have an Easement over the Freehold or in the Freehold of a Stranger but not profit Apprender But as I remember the Plaintiffs Freehold lay near the Church and for that reason the Court might conceive the same to be but an Easement Vide 2 H. 3. cited by Justice Iones Vid. Gatewoods Case 6 Rep. 60. b. Conysbies Case 39. UPon the Lease of an House the Lessee Covenanted that he would Repair the House with convenient necessary and tenantable Reparations The Lessor brought Covenant and alleaged a breach of the Covenants in not repairing for want of Tiles and dawbing with Morter and did not shew that it was not Tenantable And the Opinion of the Court was that he ought to have shewed it for the house may want small Reparations as a Tile or two and a little Morter and yet have convenient necessary and tenantable Reparations 40. A Writ of Error was brought and the Error assigned was want of Pledges And the Judgment was reversed although it was after Verdict And so was it adjudged in Dr. Hussies case and Young and Youngs case in this Court and the Reason was given because that otherwise the King should lose his Amercement 41. Fish in the River are not Titheable if not by Custome 42. Two referred themselves to Arbitrement and the Arbitrators arbitrate that one of them should pay a certain sum to the other and the other in consideration thereof should acquit him of a Bond wherein they both were bounden to a third person in a 100 lib. eo circiter and it was objected That the Arbitrators had arbitrated a thing incertain by reason of these words eo circiter But the Opinion of the Court was That there was sufficient certainty because that in this Case it doth not lie in their power to know the direct sum and because a small variation is not material but if they as in Salmons case 5 Rep. will arbitrate that one shall be bound in a Bond to another and not express in what sum the same is utterly void for the incertainty Difference was taken where the Arbitrators arbitrate one party to do a thing which lieth in his power and where not without the help of a third person there the Arbitrament is void and in the principal Case the difference was taken by the Court where the Bond is forfeit and the penalty is incurred and where not or the day of payment is not incurred there payment at the day is a good discharge and acquittance but where it is incurred it is not But Justice Iones said That he might compel the Obligee upon payment although the Bond was forfeit to deliver the Bond by Subpoena in Chancery or that he suffer an Action to be brought against him and then to discharge it and pay it Goodman against VVest Debt upon the Statute of 5 Eliz. Cap. 9. 43. THere was an action brought against the Plaintiff in the Common Pleas who procured Process to issue against the Defendant for his Testimony in his Cause and a Note of
the greater part of their living thereby And he said that if a Gentleman buy and sell Land he is not within the Statutes for it ought to be taken those who buy and sell personal things The second point It was agreed by all that Copyhold is within the Statute of 13 Eliz. 1 Iac. First because it is no prejudice to the Lord because there ought to be composition with the Lord and the Vendee And although the sale ought to be by Indenture yet the Vendee ought to be admitted by the Lord. And the difference in Heydons case in 3 Rep. was agreed Secondly It is expresly within 13 Eliz. and therefore within 1 Iac. also by way of recital although the Statute of 1 Iac. hath new provisions And by the Statute of 21 Iac. it was said That these Statutes shall be construed most beneficial for the Creditors because their ground is suum cuique tribuere 5 Eliz. Dyer Vmpton and Hides Case The Acts of Explanation shall be taken most beneficial and liberally And the Statute of 13 Eliz. says expresly That the Commissioners shall dispose of Lands as well Copy as Free But although a Copyhold be not within the later part of 13 Eliz. expresly yet by connexion it is And the Statute of 13 Eliz. guides the Statutes 1 21 Iacobi Justice Iones did agree That the Copyhold is within 13 Eliz. but not the person of the Copyholder although the person be within 1 Iac. And the chief Justice said That his Opinion was that upon the Statute of 21 Iac. which is That these Statutes shall he taken liberally that Copyholds although they had not been named had been within these Statutes It was said by Justice Barckley who argued for the Defendant That the verdict hath not found within 13 Eliz. because the verdict hath not found fraud expresly but badges only thereof See Meriel Littletons Case in the Chancellor of Oxfords Case That the Fraud ought to be expresly found but so it is not here for here it is found that the Son was an Infant at the time of the purchase and also that the purchase was with the mony oâ— the Father which are only inducements of Fraud But he argued it was within 1 Iac. because the Father hath caused oâ— procured this conveyance to his child as the Statute speaks And here is Fraud apparent Et quod constat clarè non debâ—verificari And therefore if a man enfeoff his Son it is Fraâ—â— apparent ought not to be found particularly But it was resolved by all the other Justices That here was not fraud apparent and therefore it ought to be found by the Jury The third and chief point in this Case was He being no Inholder at the time of the purchase and afterwards becoming an Inholder whether he were within the Statute of 13 Eliz. And it was resolved he was not But here Justice Barckley who argued for the Defendant was against it And he argued that if a man purchase and sell and afterwards become a Tradesman and Bankrupt that that was not within the Statute but if he keepeth the Land in his hands there he conceived him within the Statute as it was in this case And he was against the Book of the Chancellor of Oxfords Case of relation to devest the Advowson and he said It is not like to the Case in 6 7 Eliz. there cited Iâ— Eriches Case in the 5 Rep. there is a Rule taken that A verbis legis non est recedendum and in our Case it is within the express words of the Statute which are That if any person which hereafter shall become a Bankrupt c. And here he after became a Bankrupt But it was resolved by the others with whom Justice Barckley did concur after that it was not within the Statute Justice Crook argued That it is not within the words of the Statute which are If the offender purchase and that the sale shall be good against the offender and here he was not offender at the time of the purchase and using no Trade shall he be punished for that after Besides here the soâ— should be punished for the offence of the Father which the Law of God will not suffer Smith and Cullamers Case 2 Rep. he ought to be endebted at the time otherwise he is no offender And he might give away his goods before he was in Debt And the mischief here will be That Lands purchased 40 years before should thereby be defeated And I hold that it a man ba a Tradesman and afterwards leaves his Trade and thâ—n purchaseth and afterwards becomes a Tradesman again and a Bankrupt that he is not within the Statute But Justice Iones was of opinion that iâ— he be a Tradesman at the time although not an offender yet he is within the Statute But the chief Justice did argue that he ought to be an offender and the thing which makes him to be an offender is his intent to defraud his creditors Iones It shall be hard in this Case to cause the estate to be reached by this Statute for perhaps it was for the marriage of the son and perhaps the son might sell it and after the father become Bankrupt it would be hard to void the sale The Chancellor of Oxfords case was a stronger case for there the party was Indicted And if a man be Accomptant to the King and afterwards sell yet the sale shall be avoided by the King But if he be not accomptant and â—ellâ—th and afterwards becomes Accomptant the sale shall not be defeated And here he became Inholder after the purchase and being a clear man at the time of the purchase he shall not now be within the Statute Chief Justice If that should be permitted all things which the party did should be defeated and therefore he agreed That although he be a Tradesman yet if he be not in debt if he purchase for another or give unto another if no fraud be found it is not within the Statutes And Judgment accordingly was given for the Plaintiff Young against Fowler 68. YOung brought an Action upon the Case against Fowler for disturbing of him to execute the Office of Register to the Bishop of Rochester and upon Not guilty pleaded the Jury gave a special verdict They found that the Office was granted by one Bishop to one for life which was confirmed by the Dean Chapter which Bishop died and afterwards Iohn Young was created Bishop And then they found that the Office was grantable in Reversion time out of mind c. And that Iohn Young Bishop did grant the said Office of Register to Iohn Young his son now Plaintiff in Reversion And that the Office was to be executed by the said Iohn Young or his Deputy which Iohn Young the son was but of the age of 11 years at the time of the Grant but they found that he was of full age before the Tenant for life died And then they found that Iohn Young
the Actions brought by the other Creditors But Justice Bramston contrà That the damages were well assessed because that the Actions brought by the Creditors were added for aggravation only and the cause of the Action was the Arrest and Imprisonment like the case where a man speaks words which are in part actionable and others only put in for aggravation and damages is assessed for the whole it is good There was a third Error assigned That the Venire facias was de Warda omnium Sanctorum de Bristow without shewing in what Parish Childe against Greenhil 77. CHilde brought Trespass against Greenhill for Fishing in seperali piscaria of the Plaintiff and declared that the Defendant pisces ipsius cepit c. And Verdict found for the Plaintiff And it was moved by Saint-Iohn in Arrest of Judgement because the Plaintiff declared of taking of pisces suos whereas the Plaintiff they being ferae naturae hath not property in them Register 94 95. and F. N. B. and Book Entries 666. No count that the Defendant cepit pisces ipsiuâ— but ad valentiam c. without ipsius So Fines Case in Dyer 7 H. 6. 36. 10 H. 7. 6. 12 H. 8. 10. by Brudnell 13 E. 4. 24. 7 Rep. case of Swannes And the Book of 22 H. 6. 59. is over-ruled by the case of Swannes 34 H. 6. 24. And the same is matter of substance and therefore not helped after Verdict An Action of Trover and Conversion against husband and wife quia converterunt is not good and it is not helped after Verdict because it is matter of substance Rolls for the Defendant I agree that lepores suos or pisces suos without any more is not good But where he brings an Action of Trespass for taking them in his Soil there it is good because it is within his Soil So in our case for taking pisces suos in his several Piscary and with this difference agree 22 H. 6. 59. 43 E. 3. 24. so Regist. 93 102. 23 H. 6. tit Tresp 59. 14 H. 8. 1. and the Book of 43 E. 3. saith That in Trespass the Writ shall not say Damam suam if he do not say that it was taken in his Park or Warren or saith damam domitam or as the Book is in 22 H. 6. in my Soil or Land and by Newton he shall say there damas suis. And admit that it was not good yet I hold that it is helped after Verdict because it is not matter of Substance for whether they be pisces suos or not the Plaintiff shall recover damages Justice Barckly It is true that in a general sense they cannot be said pisces ipsius but in a particular sense they may and a man may have a special or qualified property in things which are ferae naturae three ways ratione infirmitatis ratione loci ratione privilegii and in our case the Plaintiff â—ath them by reason of Priviledge And it was agreed by the whole Court That Judgment should be affirmed upon the very difference taken by Rolls that where a man brings Trespass for taking pisces suos or lepores suos c. and the like that the Action will not lie But if he bring Trespass for fishing in his several Piscary as in our Case or for breaking of his Close and taking lepores suos c. there it will lie Pitfield against Pearce 78. IN an Ejectione firme the Case was thus Thomas Pearce the Father was seised of Lands in Fee and by Deed in consideration of Marriage did give and grant this Land to Iohn Pearce the now Defendant his second Son and to his Heirs after his death and no Livery was made Thomas Pearce died the Eldest Son entred and made a Lease to the Plaintiff who entred and upon Ejectment by the Defendant brought an Ejectione firme Twisden The only question is whether any estate passeth to the Son by the Deed and it was said there did and that by way of Covenant And it was agreed That in this Case if Livery had been made it had been void because that a Freehold cannot begin at a day to come But I may Covenant to stand seised to the use of my Son after my death So a man may surrender a Copyhold to take effect after a day to come Com. 301. So a man may bargain and sell at a day to come 1 Mar. Dyer 96. Chudleighs Case 129. 20 H. 6. 10. A use is but a trust betwixt the parties and 7 Rep. 400. There need not express words of Covenant to stand seised to an use 25 Eliz. Blithman and Blithmans case 8 Rep. 94. Besides these words dedi concessi are general words and therefore may comprehend Covenant and words shall be construed that the Deed may stand if it may be 8 Ass. 34. 7 E. 3. 9. But I agree that if the intent appeareth that it shall pass by transmutation of possession that there it shall be so taken but here his intent doth not appear to be so for if there should be Livery then the son should take nothing for the reason before given which is against his meaning Mich. 21 Iac. Rot. 2220. Buckler and Simons Case Dyer 202. Vinions case The cases cited before are in the future tense but the words are here I give c. 36 Eliz. Callard and Callards Case Stand forth Eustace reserving an estate to my self and my wife I do give thee my Land and the better Opinion was That in that case it did amount to a Livery being upon the Land for his intent is apparent Mich. 41 42 Eliz. Trelfe and Popwells Case adjudged in such case That an use shall be raised For which it was concluded that in this case there is a good estate raised to Iohn Pearce by way of Covenant Rolls I conceive that not estate is raised to Iohn Pearce by this conveyance It was objected That it shall inure by way of Covenant to raise an use I agree that if the meaning of the party may appear that he intended to pass his estate by way of raising of an use otherwise not And here is no such appearance Foxes Case in 8 Rep. is a stronger case and here it doth not appear that he meant to pass it by way of use But by the word give he intended transmutation of possession 8 Rep. Bedells case Mich. 18. Car. Rot. 2220. in the Common Pleas it was adjudged That a gift of a Remainder after the death of the grantor was void wherefore he concluded for the Plaintiff and so Judgment was given by the whole Court And Justice Iones said When a man makes a doubtful Conveyance it shall be intended a Conveyance at the Common Law And it shall not be intended that the Father would make him Tenant for life only punishable of wast Mich. 15º Car ' in the Kings Bench. 79. IT was moved for a Prohibition to the Counsel of the Marches and the Case was such A man seised of Lands in Fee
made a Feoffment to the use of himself for life the remainder in tail to I. S. He in the remainder Levied a Fine And the Counsel of the Marches upon a surmise That the Tenant for life died seised according to their Instructions would settle the possession upon the heir of Tenant for life against the Conusee For their Instructions were made That where a man had the possession by the space of three years that the same should be settled upon him until trial at Law were had But the whole Court was against it because it doth appear that he had but an estate for life and so the possession appertained to him in the remainder And here it was said by Justice Barckley that their Opinion hath been That the possession of Tenant for life should be the possession of him in the Remainder as to this purpose Note that the Principal case here was although the Case before put was also agreed for Law thus Tenant in Tail levied a Fine to the use of himself for Life the remainder in Fee to I. S. and died In that Case the Council in the Marches would settle the possession upon the heir of Tenant in tail against the Purchaser who held in by the Fine which had bar'd the estate tail by which the Issue claimed and the whole Court was against it for which cause a Prohibition was granted 80. Habeas corpora was directed to the Porter of Ludlore to bring the bodies of Iohn Shielde and William Shielde into the Kings Bench the case shortly as appears upon the retorn was this Powell the Father brought a Bill in the nature of an Information against the said Iohn and William Shield before the Council of the Marches in Wales for an unlawful Practice Combination and Procurement of a clandestine Marriage in the night betwixt Mary Shield a Maid-servant and the Son of Powell who was a Gentleman of good credit and worth the Parson also being Drunk as he himself sware and the same also being without Banes or Licence for which offence they were severally Fined to the King and an hundred Marks damages given to the Plaintiff and farther ordered by the Council that they should be imprisoned till they paid their several fines to the King and damages to the Party and found Sureties to be bound in Recognisance for their good behaviour for one year and till they knew the farther Order of the Council and these were the causes which were retorned And upon this retorn Glynn who was of Counsel with the Prisoners moved many things and many of them as was conceived by the Court altogether impertinent But the Objections which were pertinent were these First That the Councel of the Marches as this case is have no Jurisdiction because the clandestine Marriage is a thing meerly Spiritual and therefore not within their instructions The second was That they have exceeded their Instructions in that they have given damages to the party above fifty pounds For by their Instructions they ought not to hold Plea where the Principal or Damages exceed fifty pounds But as to the first he said there may be this Objection That they did not punish them for the clandeâ—â—inâ— Marriagâ— which in truth is a thing meerly Spiritual but for the unlawful Practise and Combination and for the execution of it To which he answered That they have not Juristiction of the Principal and therefore not of the Accessory here note that it was afterwards said by Bramston Chief Justice That the unlawful Practise and Combination was the Principal and the clandestine Marriage but the Accessory which was not contradicted by any Farther it was objected by Glynn That they were Imprisoned for the damages of the Plaintiff and it doth not appear whether it was at the Prayer of the Party as he ought by the Law Bankes the Kings Atturny-General contrary And as to the first Their Instructions give them power to hold Plea of unlawful Practises and Assemblies And this is an unlawful Practise and Assembly and therefore within their Instructions And although that Heresie and clandestine Marriage and such offences per se are not within their Instructions yet being clad with such unlawful circumstances and practises they are punishable by them As to the second he said The Instruction which restraineth them that they do not hold Plea above fifty pounds is only in civil Actions at the several suit of the party But there is another Instruction which gives them power where the cause is criminal to assess damages according to the quality of the Offence and at their discretions As to the third Objection he said That the Retorn being that they were in execution for the damages it ought to be meant at the Prayer of the Party otherwise it could not be For which causes he prayed thâ—â— the Prisoners might be remanded And the whole Court Crooke being absent were clear upon this Retorn That they should be remanded because it appeareth that their Fines to the King were not payed And therefore although that the other matters had been adjudged for them yet they ought to be remanded for that one And as to the Objections which were made the Court agreed with Mr. Attorney except in the point of Damages and for the same reasons given by him But as to the point of the Damages whether they have gone beyond their Instructions and so exceeded their power in giving above fifty pounds damages or not It seemed to the Court they had and as it seemed to them if the Retorn had been That the Kings Fines were paid it would have been hard to maintain that the assessing above fifty pounds damages was not out of their Instructions but because the Kings Fines were not paid they were Remanded without respect had thereunto for the reasons given before 81. It was said by the Court That when Judgment is given in this Court against another and Execution upon it and the Sheriff levieth the mony the Lord Keeper cannot order that the mony shall stay in the Sheriffs hands or order that the Plaintiff shall not call for it for notwithstanding such Order he may call for it And it was farther said by the Court That an Attachment shall not be granted against the High Sheriff for the contempt of his Bayliffs And a Writ of Error is a Supersedeas to an Execution but then there ought to be notice given to the Sheriff otherwise if he notwithstanding serve the Execution he shall not run in contempt for which an Attachment shall be granted 82. Serjeant Callis came into Court and moved this case Chapman against Chapman in Trespass done in Lands within the Dutchy of Cornwal which were Borough-English where the custome was that if there were an estate in Fee in those Lands that they should go to the younger Son according tthe custome but if in Tail the should descend to the Heir at Common Law And it was moved by him that the custom was not good because it cannot
which cometh to the benefit of the Parson there if he demand Tithes of the thing in lieu whereof this is done that a Prohibition shall be granted And there is another rule That Custom may make that titheable which of it self is not titheable And here he said to Dr. Skinner being then in Court That he had two matters to help him and if any of them be found for him that a Prohibition ought not to be awarded 101. Justice Barckley said That if a man be living at the day of Nisi prius and dieth before the day in Banck the Writ shall not abate So if a man be living the first day of the â—â—rliament and dieth before the last day yet he may be Attainted and the reason is because in the eye and judgment of Law they are but one day by relation which the Law makes 102. There were three Brothers the Eldest took Administration of the goods of the Father and after Debts and Legacies paid the younger Brothers sued the eldest in the Ecclesiastical Court to compel him to distribute the Estate And thereupon a Prohibition was prayed and denied by the Court for they having Jurisdiction of the Principal may have Jurisdiction of the Accessary 103. A. Libelled against B. in the Spiritual Court for these words Thou art a Drunkard and usest to be Drunk thrice a week And upon that 150 Caroli in Easter-Term as you may see before a Prohibition was prayed and granted And now Littleton the Kings Sollicitor came in Court and moved for a Consultation and he said that the Statute of Articuli Cleri gave power unto the Ecclesiastical Court to have conusance of those and the like words Register 49 F. N. B. 51. They may hold plea for defamation as for calling Adulterer or Usurer 13 H. 7. Kellaway 27 H. 8. 14. And he cited many Judgments in the like cases where Prohibitions had not been granted and amongst others this Case Mich. 20 Iac. inter Lewis Whitton Libel in the Ecclesiastical Court for calling him Pander and no prohibition granted And the like Case was for calling another Pimp and no Prohibition granted Justice Iones That a Prohibition should be granted for they have conusance of defamation for any thing which is meerly Spiritual or which doth concern it where they have conusance of the principal else not as in Heresie Adultery and the like but in this Case they have not Conusance of the principal True it is that it is peccatum But if they should punish every thing which is Sin they would altogether derogate and destroy the Temporal Jurisdiction And therefore if I say that another is an Idle man or envious these are deadly Sins and yet they have not Conusance of them And he cited Coltrops Case adjudged in the Common pleas which was our very Case in point and there he said that upon solemn debate it was adjudged That a Prohibition should be awarded Bramston Chief Justice agreed Barckley contrary That a Consultation should be awarded and he said in many Cases although they have Jurisdiction of the principal yet they shall not have Conusance as in the Case of 22 E. 4. tit ' Consultation But he said that the Offence of Drunkenness is mixt and is an offence against the Spiritual and Common Law also and if it be mixt both may hold plea and Adultery and Murder are the common effects of Drunkenness which are offences against both Laws and therefore he shall be punished by both But yet Barckley yielded to the Judgment cited by Iones And therefore the whole Court Crooke being absent was That a prohibition should be awarded 104. Rolls moved this Case The Parishioners of a certain Parish in Devonshire did alledge a Custom to chuse the two Churchwardens of the Parish and they did so the Parson chose another and the Archdeacon swore one of the Church-wardens chosen by the Parish and refused to swear the other but would have sworn him who was chosen by the Parson And because they did refuse him they were Excommunicate Rolls prayed a Mandat to the Archdeacon to compel him to swear the other chosen by the Parish and a Prohibition also by reason of the Excommunication And he cited a preeedent for it which was the case of Sutton-Valence in Kent And the whole Court Crooke being absent inclined to grant them for they said they conceived no difference betwixt London and the Country as to that purpose for as in London they are a Corporation and may take Land for the benefit of the Church So throughout England they are a Corporation and capable to take and purchase Goods for the benefit of the Church And therefore they did conceive there was no difference See the case before the case of the Parish of Saint Ethelborough London 105. Keeling moved to quash an Indictment of Rescous because it is shewed that the Rescous was at W. and doth not shew that W. was within this County and if it was not within the County then it was an Escape and no Rescous And we cannot aver in this case that it was out of the County Farther it was not shewed where the Rescous was so that upon the matter it is no Arrest nor was the Indictment vi armis as it ought to be As to the first the Court strongly inclined that they might well intend it to be within the County because the Indictment says in Com. meo apud W. tent But for the other Exceptions the Indictment was quashed 106. In Trespass of Assault and Battery and Wounding the Defendant pleaded Not Guilty as to the Wounding and pleaded special matter of justification as to the Assault and Battery and found for the Plaintiff and it was moved in arrest of Judgment That the plea was repugnant for Assault and Battery doth imply Wounding and therefore it is repugnant for him to justifie it for it is a confession of wounding But Justice Crooke and Justice Barckley the others being absent were clear that the plea was good for so is the common form of pleading and farther he might be guilty of the Battery and not of the wounding for Crooke said Wounding implied Assault and Battery but not è contra Brookes against Baynton 107. IN a Writ of Error to reverse a Judgment given iâ— the Court of Common pleas in Trespass for assault battery and wounding it was assigned for Error by Maynard That there was variance betwixt the Original and the Declaration for the Original was only of Battery and Wounding of himself and he declared of Battery and wounding of him and his horse also for he said that quendam equum upon which the Plaintiff equitavit percussit its quod cecidit c. and that was not helped by the Statute But Rolls contrary and here is no variance for the alledging of striking of the horse was only inducement to alledge the Battery of himself for he doth not bring the Action for the beating of his horse for it was not alledged
the Kings Bench an Ejectione firme was brought for the Gate-house of Westminster and the Jury found the Defendant guilty for so much as is between such a room and such a room and adjudged good and here it is as uncertain as in our case Mich. 19 Iacobi Smalls case in Hobarts Rep. The Jury in an Ejectione firme found the Defendant guilty of a third part and good Mallet Serjeant that the Verdict is uncertain and therefore not good And it is not sufficient that the certainty appear to the Jury for it behooveth that certa res deducatur in judicium Institut 227. a. 3. E. 3. 23. b. 18 E. 3. 49. 40 E. 3. 5 Rep. Playtors case Secondly here is no certainty for the Sheriff to give execution for so much in length or in breadth that is quod stat super ripam doth not appear And thirdly thereupon great inconvenience will arise that no attaint will lie upon such uncertain Verdict so as the defendant shall be without remedy and the whole Court except Justice Crawley Banks Reeve and Foster did resolve that the Verdict was insufficient for the incertainty and all agreed That there is great difference betwixt Trespass and Ejectione firme for such Verdict in Trespass may be good for there damages are only to be recovered but in an Ejectione firme the thing it self And their reason in this Case was That although the certainty may appear to the Jury yet that is not enough for they ought to give judgment oportet quod certa res deducatur in judicium And they agreed that if they had found him guilty of a Room it had been good and so the Cases on the Acre of Land and of the third part of a Mannor is good for those are sufficiently certain for of them the Law takes notice The Opinion of Crawley wherefore the verdict should be good was because the demand here was certain although the Jury found it in tanto c. And where there may be certain description for the Jury it is good enough and the rather because the Verdict is the finding of lay gents and he compared it to the case of the Gate-house aforesaid but he agreed that if the Writ of Ejectione firme had been brought de tanto unius messuagii c. quod stat super ripam that it would not have been good but the Verdict is good for the reason aforesaid But Justice Reeve said that that which is naught in the demand is naught in the Verdict and therefore naught in the judgment and therefore the Court would not give judgment and therefore a Venire facias de novo was prayed and granted by the Court. 169. Couch libelled against Toll ex officio in the Ecclesiastical Court for Incontinencie without a Citation or presentment and for that the Defendant was excommunicated and Gotbold prayed a Prohibition which was denied by Crawley and Reeve Justices the others being absent and it was said by Reeve That where they proceed ox officio a Citation is not needful but put case it were yet they said that no Prohibition is to be granted as this case is because that where the Ecclesiastical Court hath Jurisdiction although they proceed erroneously yet no Prohibition lieth but the remedy is by way of Appeal and there he shall recover good costs and it was said by Crawley That if the party be retorned cited and he is not cited That an Action upon the case lieth 170. A woman libelled in the Arches against another for calling of her Iade and a Prohibition was prayed and granted because the words were not defamatory and do not appertain unto them And Reeve said that for Whore or Bawd no Prohibition would lie but they doubted of Quean 171. Bacon Serjeant prayed a Prohibition to the Court of Requests upon this suggestion That one Executor sued another to accompt there and an Executor at the Common Law before the Statute of West 2. cap. 11. could not have an accompt for cause of privity and now by that Statute they may have an accompt but the same ought to be by Writ and therefore no accompt lieth in the Court of Requests Secondly they have given damages where no damages ought to be given in an Accompt And lastly they have sequestred other Lands which is against the Law and for these reasons he prayed a Prohibition Whitfield Serjeant contrary 1. It is clear that an accompt by Bill lieth for an Attorney in this Court and so in the Kings Bench and Exchequer and as to damages it is clear that in an accompt a man shall recovâ—â— damages upon the second judgment but as to the sequestâ—â—ion he could not say any thing but further he said That it was not an accompt but only a Bill of discovery against Trustees who went about to defeat an Infant and upon the reading of the Bill in Court it appeared that the suit was meerly for the breach of a trust and for a confederacie and combination which is meerly equitable Wherefore a Prohibition was denied because it was no accompt but as to the Decree for sequestring other Lands the Prohibition was granted Trin. 17º Car ' in the Kings Bench. 172. EAste brought an Action upon the Case upon an Assumpsit against Farmer because that where the Plaintiff had sold to the Defendant so much wood the Defendant in consideration thereof did assume and promise to pay so much money to the Plaintiff and to carâ—â— away the wood before such a day the Defendant pleaded thâ— he paid the money at the day aforesaid but as to the carrying of it away before the day he pleaded non assumpsit and the Jury found that he did not pay the money at the day but as to the other they found that he did assume and promise as aforesaid and it was moved in Arrest of judgment that the finding of the Jury was naught for being but one Assumpsit and the same being an intire thing it could not be apportioned and therefore they ought to find the intire Assumpsit for the Plaintiff or all against him And the Court agreed all that and awarded that there should be a Repleader and the Chief Justice Bramston said That for the reason given before the Defendants plea was not good and therefore the Plaintiff might have demurred upon it which he hath not done and therefore they agreed that the Verdict was naught for the reason aforesaid 173. Williams was indicted at Bristow upon the Statute of 1 Iac. cap. 11. for having two wives and upon not Guilty pleaded the Jury found a special Verdict which was thus That the said Williamt married one wiâ—e and was afterwards divorced from her causa adulterii and afterwards married the other and if that were within the Proviso of that Statute which provides for those who are divorced was the Question And it was resolved without argument by Bramston Chief Justice and Heath Justice the other being absent That it is within the Proviso for the
it turns the Avowry into a Justification in our Case so as you shall not make us Trespassers but that we may well justifie to save our damages Crawley Justice that the Avowry is turned into a Justification and that there is sufficient substance in the Plea to answer the unjust taking the distress Justice Reeve that it is good by way of Avowry for the distress being lawfully taken at the time it shall not take away his avwry therefore he shall have Retorn for that was as a gage for the rent and therefore differs from the other Cases Justice Foster put this Case at the Common Law Distress was taken and before avowry Tenant for life died Whether he shall avow or justifie But all agreed that at the least the Avowry is turned into a Justification but it was adjourned 179. The Court demanded of the Protonotharies Whether a man might make a new assignment to a special Bar and they said no but to a common Bar only viz. that the Trespass if any were was in Bl. Acre there ought to be a new assignment by the Plaintiff but Reeve and Crawley Justices the other being absent held clearly that the Plaintiff might make a new assignment to a special Bar and further they said that the Plaintiff if he would might trise the Desendant upon his Plea but we will not suffer him to do so because that his Plea is meerly to make the Plaintiff to shew the place certain in his Replication in which the Trespass was done 180. The Disseisee levieth a Fine by Reeve and Crawley Justices it shall not give right to the Disseisor because that this Fine shall enure only by way of Estoppel and Estoppels bind only privies to them and not a stranger and therefore the Disseisor here shall not take benefit of it and therefore they did conceive the 2 Rep. 56. a. to be no Law Vid. 3 Rep. 90. a 6 Rep. 70. a. 181. Serjeant Callis prayed a Prohibition to the Court of Requests for cause of priority of Suit but by Foster and Crawley Justices the other being absent priority of Suit was nothing the Bill being exhibited there before Judgment given in this Court 182. The Case of White and Grubbe before being moved again it was said in this case by Reeve and Foster Justices that where a man is indebted unto another for divers wares and the debt is superannuated according to the Statute of 21 Iac. cap. 16. and afterwards they account together and the party found to be indebted unto the other party in so much mony for such wares in that Case although that the party were without remedy before yet now he may have debt upon accompt because that now he is not bound to shew the particulars but it is sufficient to say that the Defendant was indebted to the Plaintiff upon accompt pro diversis mercimoniis c. 183. A Prohibition was prayed unto the Council of the Marches of Wales and the Case was thus A man being posfessed of certain goods devised them by his will unto his wife for her life and after her decease to I. S. and died I. S. in the life of the wife did commence Suit in the Court of Equity there to secure his Interest in Remainder and thereupon this Prohibition was prayed And the Justices viz. Banks Chief Justice Crawley Foster Reeve being absent upon consideration of the point before them did grant a Prohibition and the reason was because the devise in the remainder of goods was void and therefore no remedy in equity for Aequitas sequitu◠legem And the Chief Justice took the difference as is in 37 H. 6. 30. Br. Devise 13. and Com. Welkden Elkingtons Case betwixt the devise of the use and occupation of goods and the devise of goods themselves For where the goods themselves are devised there can be no Remainder over otherwise where the use or occupation only is devised It is true that heir looms shall descend but that is by custome and continuance of them and also it is true that the devise of the use and occupation of Land is a devise of the land it self but not so in case of goods for one may have the occupation of the goods and another the Interest and so it is where a man pawns goods and the like For which cause the Court all agreed that a Prohibition should be awarded Trin. 17º Car. in the Kings Bench. 184. A Man was sued in London according to the custom there for calling a woman Whore upon which a Habeas corpus was brought in this Court and notwithstanding Oxfords case in the 4 Rep. 18. a. which is against it a Procedendo was granted and it was said by Serjeant Pheasant who was for the Procedendo and so agreed by Bramston Chief Justice and Justice Malle◠That of late times there have been many Procedendo's granted in the like case in this Court 185. An Orphan of London did exhibite a Bill in the Court of Requests against another for discovery of part of his estate And Serjeant Pheasant of Counsel with the Defendant came into this Court and Prayed a Prohibition upon the custom of London That Orphans ought to sue in the Court of Orphans in London but the whole Court which were then present viz. Chief Justice Bramston Heath and Mallet Justices were against it because that although the Orphan had the Priviledge to sue there yet if he conceive it more secure and better for him to sue in the Court of Requests then he may waive his priviledge of suing in the Court of Orphans and sue in the Court of Requests for quilibet potest renunciare juri pro se intraducto c. and Heath said that he always conceived the Law against the Case of Orphans 5 Rep. 73. b. But which is stronger in this Case the Court of Orphans did consent to the Suit in the Court of Requests and therefore there is no reason that the Defendant should compel the Infant to sue there wherefore they would not grant a Prohibition but gave day until Mich. Term to the Defendants Counsel to speak further to the matter if they could Trin. 17º Car. in the Common Pleas. Dewel against Mason 186. IN an Action upon the Case upon an Award the case was this The Award was that the Defendant should pay to the Plaintiff eight pound or three pound and Costs of suit in an Action of Trespass betwixt the Plaintiff and Defendant as appears by a note under the Plaintiffs Attorneys hand ad libitum defendentis c. And the Plaintiff doth not aver that a note was delivered by the Attorney of the Plaintiff to the Defendant and the Defendant pleaded Non assumpsit and it was found for the Plaintiff and it was moved in arrest of Judgment for the reason given before Rolls contrary that there needs no averment and he said it was Wilmots case adjudged in this Court Hill 15 Car. where the Case was that the Defendant should
time or not The first hath been granted that there ought to be assent for the great inconvenience which might happen to Executors if Legatees might be their own carvers and so are all our Books except 2 H. 6. 16. and 27 H. 6 7. which seem to take a difference where the Legacie is given in certain and in specie there it may be taken without assent but where it is not given in certain there it cannot but he held clearly the Law to be otherwise that although it be given in certain yet the Legatee cannot take it without assent of the Executor for so the Executor should be subject to a Devastavit without any fault in him or any means to help himself which should be very inconvenient Then the second thing here to be considered is Whether there be an assent or not It is clear that if an Executor enter generally he shall be in as Executor and not as Legatee for that is best for him to prevent a Devastaviâ— and it is as clear that if he declare his intention to be in as Legatee that then he shall be so then the Question here is Whether the words in our Case be a sufficient declaration of the mind of the Executor to take the same as Legatee in the right of his wife or not and I hold that it is He agrees that the second words are not so weighty as the first but he held the first words are sufficient of themselves to make an assent and when he saith that then it remains to the Holloways that proves that he took notice thereof as a Legacie and that he would have it in that right although in truth the devise by Iohn Holloway was void so as it could not remain to them For the third he held that the assent came in due time otherwise it might be very prejudicial to Legatees for else by that means they may be many times defeated of their Legacies for put Case that an Executor will not assent and the Legatee dieth before he can compel him to assent or that the Legatee dieth in an instant after the devisor in the 5 Rep. Princes Case it is resolved that an Infant under 17 may not assent to a Legacie nor the administrator Durante minori aetate then put case that the Legatees die during the administration durante minori aetate in whose time there cannot be an assent It would be a vâ—ry great mischief if that in any of these Cases the Legatees should be defeated of their Legacies when by possibility they could not use any means to get them wherefore he held clearly that the assent of the Executor after the death of the Legatee came in good time and therefore he concluded for the Plaintiff Bramston Chief Justice also for the Plaintiff For the first point he held that there is a good assent and he said that Mannings Case hath the very words which our Case hath but my Lord Cooke did not speak of these words in the Report of the Case because he conceived that the payment of the money was a sufficient assent to the Legacie but further I conceive that it differs fully from Mannings Case for there it is found expresly that the Executor had not Assets and therefore it should be hard to make him assent by implication thereby to subject himself to a Devastavit for as I conceive an Executor shall never be made to assent by implication where it is found that he hath not Assets but there ought to be an express assent by reason of the great prejudice which might come unto him but in our Case it is not found that Lowe had not Assets an Infant cannot assent without Assets but if there be then it shall bind him and perhaps that was the reason that my Lord Coke did not report any thing of these words whether they were an assent or not and his passing over them without saying any thing of them seems partly to grant and agree that they did not amount to an assent A man deviseth unto his Executor paying so much and he payeth it it is a good assent to the Legacie so is Matthew Mannings case 8 Rep. and Plowden Comment Welâ—den and Elkingtons case and he said that an assent is a perfecting act which the Law favours and therefore he said that it was adjudged that where an Executor did contract with the devisee for an assignment of the Term to him devised that it was a good assent to the Legacie For the second point also he held clearly that the assent came in due time for otherwise it should be a great inconvenience for by that means it should be destructive to all Legacies for of necessity there ought to be an assent of the Executor and if he will not assent and the Legatee dieth before he can compel him to assent or if the Legatee dieth immediately after the Devisor before any assent to the Legacie in the first Case it should be in the power of the Executor who is a stranger to prejudice me and in the latter Case the Act of God should prejudice me which is against two Rules of Law that the Act of a stranger or the act of God shall not prejudice me wherefore without question the assent comes in due time Besides If a Legatee dieth before assent to a Legacie the same shall be assets in the hands of his Executors and the Legatee before assent hath an interest demandable in the Spiritual Court An Executor before probate shall not have an Action but he may release an Action because that the right of the Action is in him so in this Case although that the Legatee before assent hath not an interest grantable yet he hath an Interest releasable A man surrenders copyhold-Copyhold-Land to the use of another and the surrenderee dieth before admittance yet his heir may be admitted and this Case is not like those Cases put at the Bar where there is but a meer possibility and not the least Interest as where the grantee of a reversion dieth before Attornment or the devisee before the devisor in those Cases the parties have but a meer possibility and therefore countermandable by death but it is otherwise in our Case as I have shewed before and therefore I conclude that here is a good assent and that in due time and therefore that the Ejectione firme brought by the Plaintiff well lieth Dale and Worthyes Case 212. DAle brought a Writ of Error against Worthy to reverse a Judgment given in the County-Palatine of Chester and the Writ of Error bore Teste before the Plaint there entred and whether the Record were removed by it or not was the Question and the Court viz. Mallet Heath and Bramston were clear of opinion without any solemn debate that the Record was not removed by that Writ of Error because that if there be not any plaint entred at the Teste of the Writ how can the Processus according to the Writ be removed
case that an Infant should have power to submit himself to that which should be final against him and no remedy for consensus tollit errorem wherefore he conceived that the submission was void and if that which is the ground faâ—ls all fails An Infant may take any thing for that is for is advantage and cannot prejudice him and the Church lâ—ke an Infant is in perpetual Infancie and conditionem meliorem facere potest but deteriorem nequaquam And where it was objected in this Case that this submission might be for the avail of the Infant and therefore should be good he answered and took this for a rule that an Infant shall never submit himself to any thing under a pretence of benefit which by possibility may prejudice him and with that agreeth the better Opinion of 10 H. 6. 14. that it shall not bind him because it may be to his prejudice for they may give greater damages than peradventure the Law would give in any Action brought against an Infant But 14 H. 4. is not any Authority Where it was objected that it shall be voidable at the election of the Infant To that he answered that it is absolutely void and therefore there cannot be any Election and it should be hard that the man of full age should be bound and the Infant not an Infant shall not be an accomptant because that Auditors cannot be assigned to him and he conceived that an Infant cannot bind himself an Apprentice but it is usual in such cases for some friend to be bound for him and as this Case is it appeareth by the Award that it might be for the prejudice of the Infant For the Arbitrators award that the Infant shall pay five pound for quit-Rents and other small things now what these small things were Non constat and they might be such things for which by the Law the Infant was not chargeable and by the same reason that they may assess five pound they might have set twenty pound and more and it should be inconvenient that an Infant should have such a power to submit himself to the Judgment of any which might charge him in such manner Besides part of the Award is void for the incertainty for it is said small things and it doth not appear what in certain and void in part void in all and for these reasons he gave Judgment against the Plaintiff Bramston Chief Justice agreed that the submission is void and not voidable only as it was objected for then it should be tale arbitrium until reversal of it 10 H. 6. and 14 H. 4. are no Authorities or if they be the best Opinion is for the Infant as it hath been observed and Knight and Stones Case cited before is no authority for no Judgment was given in the Case But all in that case agreed that the award was void because it was awarded that the Infant upon the payment of an hundred pounds should make a release which proves that the submission was also void because that if it should be good by the same reason the release Where it was objected that it shall be voidable at the Election of the Infant To that he answered that the submission ought to be either absolutely good or absolutely void for the end of an Arbitrament is to conclude and compose controversies and the Arbitrators are Judges to determine them which should never be done if it should lie in the power of the Infant to make good or frustrate the Arbitrament at his Election for which cause to say that it shall be conditional is against the nature of an Arbitrament and to say that it shall bind the Infant absolutely cannot be and to say that it shall bind the one and not the other is unequal Besides there can be no election in this case for if he were within age nothing binds him if at full age he ought to perform it Besides the Arbitrament it self as this Case is and as it was before observed by Heath is void for the award was That the Infant should pay five l. for quit-Rents and other small things and it doth not appear what those small things were so that for any thing that appeareth it might be for such things for which the Infant by the Law was not chargeable and therefore is void for the incertainty and void in part void in all and by the same reason as the Arbitrators might award five pound they might award twenty pound or more But he conceived that if it had appeared in certain that the things had been such for which the Infant is by the Law chargeable perhaps it had been good but here it doth not appear what the things were and therefore it was not good Trinit 4 Car. Pickering and Iacobs case it was resolved that a Bond taken for necessaries of an Infant was good 8 E. 4. Arbitrators Award more than the debt is the same is naught so here for any thing that appeareth to the contrary the Award was to pay such things as the Infant was not liable to pay and therefore void But note Reader I conceive that an Infant cannot submit himself to an Arbitrament for things for which by the Law he is chargeable for the reason given before because the Arbitrators may charge him farther than by the Law he is liable which should be to his prejudice and he hath not any remedy for it Judgment was given against the Plaintiff Quod nihil capiat per Billam The Case was entred Hill 15 Car. Rot. 313. The Serjeants Case Trin. 17 o Car. in the Common Pleas. 216. THe Serjeants Case was this A. seised of Land in see B. his Brother levied a Fine come ceo to C. B. had issue D. and died A. died without issue C. entred D. entred and gave it to C. and R. his wife and to the heirs of their two bodies C. levied a Fine come ceo with proclamations to D. C. and R. have issue L. C. dieth D. confirmeth to R. his estate to have to her and the heirs of her body by C. begotten R. dies D. enters L. oustes him D. brings entre in the Quibus In this Case there are two points First Whether the Fine levied by B. shall bar his Issue as this Case is or not and that is the very point of Edwards and Rogers Case Pasch. 15 Car. in the Kings Bench and admitting it shall not bar D. then the second point is what is wrought by the confirmation if by that the Issue in Tail shall inherit or not and that is the very point in the 9 Rep. Beaumonts Case Saunderson and Ruddes Case in Common Pleas Trin. 17 Car. 217. SAunderson brought an Action upon the Case for words against Rudde the Case was this The Plaintiff being a Lawyer was in competition for a Stewardship of a Corporation and the Corporation being met together for Election of a Steward the Plaintiff was propounded to be Steward and then the Defendant being one of
a difference where the party comes in by act of Law and where by the act of the party he who comes in by act of Law shall not be put to his Scire facias for so he should be without remedy and if that should be permitted it should a be subtile way for the conusor to avoid the possession of the conusee and then he himself to take benefit of it and that should be a fine way to defeat the Statute Besides by this way if the Statute should be satisfied by casual profit or if the time should be expired and the Statute satisfied by effluxion of time if in that Case the grantee should be permitted to distrein the beasts of the conusee for a great Rent perhaps before that the Conusee by possibility might remove from the Land it would be a great disturbance to the Conusee Besides if a stranger enter upon the conusee the conusee upon his regress may hold over but not so in this Case where the grantee of the Rent distreins and that should be also a great prejudice to the conusee But it was objected that the grantee of the rent could not have a Scire facias and therefore if he might not distrain he should be without remedy To which he answered that if it should be so it is his own fault for he might have provided for himself by way of covenant But he conceived that he might have a Scire facias for he said that it is a Judicial Writ issuing out of the Rolls which might be framed and made according to the case of any man and it is not enough to say thâ—â— there was never such a Writ granted in the like case but he ought to shew where it was ever denied besides it is not always necessary that he that shall have this Writ should be party to privy to the Record as appâ—areth by these Books 46 Ass. Scire facias 134. 32 E. 3. Scire facias 101. and 38 E. 3. 12. Br. Scire facias 84. Again it is not necessary that the Scirâ— facias should be either ad computandum or ad rehabendum terram as it was objected for as I have said before it may be framed according to the case of any man and vary accordingly wherefore he prayed Judgment for the Plaintiff and note that at this time Justice Heath seemed to incline for the Plaintiff Thorne against Tyler in a Replevin 231. THe Plaintiff shewed that the Defendant took certain Beasts of the Plaintiff such a time and place and detained them against gages and pledges c. The Defendant as Baily of the Mannor of the Lord Barckley made conusance of the taking of the cattle and said that long time before the taking of them the Lord Barckley was seised in see of a Mannor in Gloucestershire within which there were Copy-hold-Tenants time out of mind demiseable for one two or three lives that there was a custom within the same Mannor that if any copyhold-tenant did suffer his messuage to be ruin'd for want of repairing or committed waste that is presented by the homage that such tenant so offending should be amerced and that the Lord had used time out of mind to distrein the beasts as well of the tenant as of the under-tenant of such customâ—ry tenements levant and couchant upon such customary tenements for such amercement and further said that one Greening was tenant for life of a customary tenement within that Mannor and made a Lease unto the Plaintiff for one year and that 15 Car. the homage did present that Greening had suffered his Barn parcel of the customary Tenements aforesaid to fall for want of repair for which he was amerced to ten shillings and that in Iuly 16 Car. the Defendant as Bayly of the Lord Barckley did distrein the Plaintiffs cattle being under-tenant for the said amercement upon the said customary tenement and so he made conusance and justified the taking of the beasts as Bayly of the Lord Barckley The Plaintiff confessed that Greening was tenant and that he made a Lease to the Plaintiff for a year and further he confessed the want of repairing and presentment and the amercement upon it but he denied that there is any such custome upon which they were at issue and the Jury found for the Defendant that there was such a custom and it was moved in arrest of Judgment that the custom was not good because it was unreasonable for here the Tenant offended and the under-tenant is punished for it which is against all reason that one should offend and another should be punished for it Besides the under-tenant here is a stranger and the custom shall never extend to a stranger and therefore the custom to punish a stranger who is not a Tenant of the Mannor is a void custom Further it was said that the amercement properly falls upon the person and therefore being personal it cannot be charged upon the under-tenant But notwithstanding all these Objections it was resolved by all the Justices upon solemn debate that the custom was good and therefore that the avowant should have Judgment Justice Mallet custom si aliqua defalta fuerit in reparatione to amerce the tenant and to distrein averia sua vel averia subtenentis levant and coucbant upon the customary tenement is a good custom I agree that a custom cannot extend to a stranger who is not within the Mannor and therewith agreeth 3 Eliz. Dyer 194. b. pl. 57. Davis Rep. 33. a. 21 H. 6. and many other Books but the matter 〈◊〉 is whether the Plaintiff be a stranger or not and I conceive that he is no stranger but a good customary tenant and he shall have any benefit or priviledge that a customary tenant shall have although he holdeth but for one year and by the same reason that he shall enjoy the priviledge of a customary tenant he shall undergo the charge for Qui sâ—ntit commoduin sentire debeâ— â—nus and by the general custom of England every Copyholder may make a Lease for one year as is resolved in the 4 Rep. 26. â— and it is good and if so then the Plaintiff here cometh in by custom and is no stranger but a good customary tenant and therefore the custom may well extend to him as there is Dominus pro tempore so there is tenens pro tempore and such is the Plaintiff here and he held that the wife that â—ath her widows estate according to the custom of the Mannor is a good customary tenant A woman Copyholder for life where the custom is that the husband shall be tenant by the curtesie dieth I hold the husband in that case a good customary tenant In Gloucester where this Land is there is a custom that Executors shall have the profits for a year and I conceive them good customary tenants Besides this under-tenant here is distrainable by the Lord for the rents and services reserved by the Lord or otherwise
the Father was seised of the said services by the hands of the said Anthony Cage and Dorothy his wife and Thomas Grange and Thomasine his wife as by the hands of his very Tenants upon which the defendant did demur in Law and shewed for cause of demurrer that the Plaintiff had traversed a thing not traversable and if it were traversable that it wanted form and this Term this Case was debated by all the Judges and it was resolved by them all that the Traverse as it is taken is not well taken Justice Foster that the Traverse taken by the Plaintiff is not well taken at the Common Law the Lord was bound to avow upon a person certain but now by the Statute of 21 H. 8. cap. 19. he may avow upon the Land and this avowry clearly is an avowry upon the Statute for it is infra feodum dominium sua c. and so is the old Entries 565. then the Question here is whether the Plaintiff be privy or a stranger â—or iâ— he he a stranger then clearly at the Common Law he may plead no plea but out of his Fee or a Plea which doth amount to so much as appeareth by the Books 2 H. 6. 1. 17 E. 3. 14 15. 34 E. 3. Avowry 257. and many other Books as you may find them cited in the 9 Rep. 20. in the case of Avowry here it doth not appear but that the Plaintiff is a stranger and therefore whether he be inabled by the Statute of 21 H. 8. to take this traverse or not is the Question and I conceive that he is true it is as it was objected that this Statute was made for the advantage of the Lord but I conceive as it shall enable the Lord to avow upon the Land so it shall enable the Tenant to discharge his possession as if the avowry were upon the very tenant and so is the Institutes 268 b. and so is Brown and Goldsmiths case in Hobarts Rep. 129. adjudged in the point and the Plaintiff here who is a stranger is in the same condition as a stranger was at the Common Law where the Avowry was made upon the Land for a Rent-charge in such case he might have pleaded any discharge although he were a meer stranger and had nothing in the Land so may he now after the Stat. of 21 H. 8. Then admitting that the Plaintiff might take this Traverse by the Statute then the Question is whether the Plaintiff hath taken a sufficient Traverse by the Common Law or not for the Statute saith that the Plaintiff in the Replevin or second deliverance shall have the like Pleas as at Common Law and I conceive that this plea is not a good plea at the Common Law And now I will consider whether if the Plaintiff had been a very Tenant he might have pleaded this plea or not and I conceive that if this traverse had been taken by a very tenant it had not been good I agree the 9 Rep. 35 Bucknels case that Ne unque seisie of the services generally is no good plea but Ne unque scisie of part of the services is a good plea and so is 16 E. 4. 12. 22 H. 63. and the reason that the first Plea is not good is because that thereby no remedy is left to the Lord neither by avowry nor by writ of customs and services And therefore the plea here is not good because it is a traverse of the services generally Besides here the traverse is not good because that the Plaintiff hath traversed the seism and hath not admitted the tenure and it is a rule in Law that no man may traverse the seism of services without admitting a tenure and therewith agreeth 7 E. 4. 28. 20 E. 4. 17. 9 Rep. Bucknells case and then if the very tenant could not have taken this traverse much less a stranger here Further here the tenure was alledged to be by rent and fealty and the avowry was for the fealty and the Plaintiff hath traversed the seism as well of the rent which is not in demand as of the fealty and therefore the traverse is not good But it was objected that seism of rent is seism of fealty and therefore of necessity both ought to be traversed I agree that seism of rent is seism of fealty but it is no actual seism of the fealty in point of payment or to maintain an assise for it as is 44. E. 3. 11. 45 E. 3. 23. and the distress here is for actual seism of fealty Every traverse ought to be adidem as 26 H. 8. 1. 9 Rep. 35. but here the traverse is of the Rent which is not in question therefore is not good in matter of form Wherefore he gave Judgment for the avowant Justice Reeve the first thing here coâ—siderable is whether this be a conusance at the Common Law or upon the Statute and I hold clearly that it is within the Statute and for that see new Entries 597 599 27 H. 8. 20. and it is clear that the Lord hath Election either to avow upon the Statute or at the Common Law and that is warranted by Institutes 268. and 312. 9 Rep. 23. b. 36. a. 136. a. and then admitting that it be an avowry upon the Statute The second point is whether the Plaintiff be inabled by the Statute to take this traverse or not for it is clear that at the Common Law the Plaintiff could not have this Plea for a stranger could not plead any thing but hors dâ—â—son fee or a plea which did amount to as much I agree the Books of Br. Avowry 113. 61. 9 Rep. 36. 27 H. 8. 4. â—0 Br. Avowry 107. Instit. 268. which are against me yet I conceive undâ—r favour that notwithstanding any thing that hath been said that the Plaintiff is not enabled by the Statute to take this traverse and I ground my Opinion upon the Reason at Common Law as also upon the Statâ—â—e the first reason at the Common Law I ground upon the Rule in Law res inter alios actâ— alteri nocere non debet it is not reason that he who is a stranger shall take upon himself to plead to the Title of the Tenure with which he hath nothing to do in prejudice of the very Tenant and this reason is given by the Books of 22 H. 6 39 E. 3. 34. My second reason is grounded upon the maxime in Law which is That in pleading every man ought to plead that which is pertinent for him and his Case And that 's the reason that the Incumbent at the Common Law cannot plead to the right of the Patronage wherein he hath nothing but the Patrou shall plead it as appeareth by the 7 Rep. 26. and many other Books there cited and these are my reasons at the Common Law wherefore the Plaintiff being a stranger cannot plead this Plea Secondly I ground my self upon the purvieu of
not traversable because that the seism is not material 7 E. 4. 29. Com. 94. 8. Rep. 64. Fosters Case Secondly where the Seigniory is not in question there no traverse of seism so it is in Case of Writ of Escheat Cessavit Rescous c. and therewith agree the Books of 22 H. 6. 37. 37. H. 6. 25. 4. Rep. 11. a. Bevills Case Thirdly where the Lord and Tenant differ in the services there no traverse of the seism but of the tenure but where they agree in the services there the seism may be traversed and therewith agree the Books of 21 E. 4. 64. 84. 20 E. 4. 17. 22 Ass. p. 68. 9 Rep. 33. Bucknells Case and therefore the traverse here is not good First because it is a general traverse of the seism per manus the tenure not being admitted as it ought to be by the fourth rule in Bucknells Case and therewith agreeth 23 H. 6. Avowry 15. Besides it is a Rule in Law That a man shall never traverse the seism of services without admitting of a tenure and in this Case he took the tenure by protestation and therefore the traverse here is not good and therewith agreâ—â— 15 E. 2. Avowry 214. Further the traverse here is not good because he hath traversed a thing not in demand which is the rent for he ought to have traversed the seism of the fealty only for which the distress was taken and not the rent as here he hath done and therewith agreeth 9 Rep. 35. a. and 26 H. 8. 1. But as this Case is he could not traverse the fealâ—y only because that seism of rent is seism of fealty and therewith agreeth 13 E. 3. Avowry 103. 3 E. 2. Avowry 188. 4 Rep. 8. b. Bevills Case and therefore he ought to traverse the tenure True it is as it was objected by my Brother Foster that seism of Rent is not an actual seism of fealty as to have an assise but is a sufficient seism as to avow And we are here in Case of an avowry and therewith agreeth the 4 Rep. 9. a. Bevills Case wherefore I conclude that Judgment ought to be given for the avowant Here note that it was resolved by all the Judges of the Common Pleas that a traverse of seism per manus generally without admitting of a tenure is not good and therefore see 9 Rep. 34. b. 35. a. which seemeth to be contrary Hill 17º Car in the Kings Bench. Hayward against Duncombe and Foster 234. THe Case was thus The Plaintiff here being seised of a Mannor with an advowson appendant granted the next avoidance to I. S. and afterwards bargained and sold the Mannor with the advowson to the Defendants D. and F. and a third person and covenanted with them that the Land is free from all incumbrances Afterwards the third person released to the Defendants who brought a writ of Covenant in the Common Pleas and there Judgment was given that the Action would lie Whereupon Hayward brought a Writ of Error in this Court The point shortly is this Whether the Writ of covenant brought by the Defendants without the third person who released were good or not and that rests only upon this Whether this Action of covenant to which they were all intitled before the release might be transferred to the other Defendants only by the release or not And it was objected that it could not because it is a thing in Action and a thing vested which cannot be transferred over to the other two only by the release but that all ought to joyn in the Action of covenant notwithstanding Rolls contrary because that after this release it is now all one as if the bargain and sale had been made to those two only and now in an Action brought against them two they may plead a seoffment made to them only without naming of the third who released and so it is resolved in 33 H. 6. 4 5 6 Rep. fol. 79. a. Besides this covenant here is a real covenant and shall go to assignees as it is resolved in 5 Rep. Spencers Case and here is as violent relation as if the seoffment had been made to them two only It was objected by Justice Heath What if the other died It was answered perhaps it shall there survive because that it is an Act in Law and the Law may transfer that which the Act of the party cannot because that Fortior est dispositio legis quam hominis c. Booremans Case 235. BOoreman was a Barrister of one of the Temples and was expelled the house and his Chamber seised for non-payment of his Commons whereupon he by New digate prayed his writ of restitution and brought the writ in Court ready framed which was directed to the Benchers of the said Society but it was denied by the Court because there is none in the Inns of Court to whom the writ can be directed because it is no body corporate but only a voluntary Society and submission to Government and they were angry with him for it that he had waived the ancient and usual way of redress for any grievance in the Inns of Court which was by appealing to the Judges and would have him do so now Bambridge against VVhitton and his wife 236. IN an Ejâ—ctione firme upon Not Guilty pleaded a special Verdict was â—ound the case upon the special verdict this A Copyhold Tenant in fee doth surrender into the hands of two Tenants unto the use of I. W. immediately after his death and whether it be a good surrender or no was the question Harris that the surrender is void Estates of Copyholds ought to be directed by the rule of Law as is said in 4 Rep. 22. b. 9 Rep. 79. 4 Rep. 30. And as in a grant a grant to one in ventre sa mier is void so also in a will or devise and as it is resolved in Dyer 303. p. 50. so it hath been adjudged that the surrender to the use of an Infant in ventre sa mier is void and as at Common Law a Freehold cannot begin in futuro so neither a Copyhold for so the surrenderer should have a particular estate in him without a donor or lessor which by the rule of Law cannot be and he took a difference betwixt a Dâ—vise by Will a Grant executed in a devise it may be good but not in a grant executed and here he took a difference where the Grant is by one intire clause or sentence and where it is by several clauses 32 E. 1. taile 21. Dyer 272. p. 30. Com. 520. b. 3 Rep. 10. Dowties Case and 2 Rep. Doddingtons case For instance I will put only the Case in Dyer and the Comment A Termor grants his Term habendum after his death there the Habendum only is void and the grant good but if he grant his Term after his death there the whole grant is void because it is but one sentence So I say in our
Case because it is but one clause the whole grant is void Another difference is Where the distinct clause is repugnant and where not where it is repugnant there it is void and the grant good quia utile per inutile non vitiatur But in our Case as I have said before it is one intire sentence M. 13. or 23 Iac. in this Court Rot. 679. Sympson and Southwells Case the very Case with our Case There was a surrender of a Copy tenant to the use of an Infant in ventre sa mier after the death of the surrenderor and there it was resolved by all the Judges except Dodderidge that the surrender was void First because it was to the use of an Infant in ventre sa mier and Secondly because it was to begin in futuro which is contrary to the rule in Law and Copy-tenants as it was there said ought to be guided by the rules of Law but Dodderidge doubted of it and he agreed the Case at Common Law that a freehold could not commence in futuro but he doubted of a Copyhold and he put the Case of surrender to the use of a Will But he said that Judgment was afterwards given by Coke Chief Justice in the name of all the other Judges that the surrender was void and therefore Quod querens nihil capiat per billam wherefore he concluded that the surrender was void and prayed the Judgment of the Court. Langhams Case 237. LAngham a Citizen and Freeman of London was committed to Newgate by the Court of Aldermen upon which he prayed a Habeas corpus which was granted upon which return was mane First it is set forth by the return that London is an ancient City and Incorporate by the name of Mayor Comminalty and Citizens and that every Freeman of the City ought to be sworn and that a Court of Record had been held time out of mind c. before the Mayor and Aldermen And that there is a custom that if any Freeman be elected Alderman that he ought to take an Oath cujus tenor sequitur in haec verba viz. You shall well serve the King in such a Ward in the Office of Alderman of which you are elected and you shall well intreat the people to keep the Peace and the Laws and Priviledges within and without the City you shall well observe and duly you shall come to the Court of Orphans and Hustings if you be not hindred by Command of the King or any other lawful cause you shall give good counsel to the Mayor you shall not sell Bread Ale Wine or Fish by retail c. Then is set forth a custome that if any person be chosen Alderman he shall be called to the Court and the Oath tendred to him and if he refuse to take it then he shall be committed until he take the Oath Then is set forth that by the Statute of 7 R. 2. all the customs of the City of London are confirmed And lastly is set forth that the 11 of Ian. Langham being a freeman of London and having taken the Oath of a freeman was debito modo electus Alderman of Portsoken-ward and being habilis idoneus was called the first of February to the Court of Aldermen and the Oath tendred to him and that he refused to be sworn in contemptum Curiae contra confuetudines c. wherefore according to the custom aforesaid he was committed by the Court of Aldermen to Newgate until he should take the Oath haec fuit causa c. To this retorn many exceptions were taken Maynard the retorn is insufficient for matter and form for form it is insufficient for the debito modo electus without shewing by whom and how is too general then it is insufficient for the matter for he is imprisoned generally and not until he takes the Oath which utterly takes away the liberty of the subject for by this means he may be imprisoned for ever Besides here is no notice given to him that he was chosen Alderman but they elect him and then tender him the Oath without telling him that he was chosen Alderman and therefore the retorn not good for it ought to be certain to every intent Further the Oath is naught and unreasonable for he ought to forswear his Trade for if he sell Bread Ale Wine or Fish before now he must swear that he shall never sell them by retail after which is hard and unreasonable for perhaps he may be impoverished after and so necessitated to use his Trade or otherwise perish wherefore for these reasons he conceived that the Retorn was insufficient Glynn upon the same side that the Retorn is insufficient and he stood upon the same exceptions before and he conceived that notice ought to be given to him that he was chosen Alderman for this reason because of the penalty which he incurs which is imprisonment and he compared it to the Cases in the 5 Rep. 113. b. 8 Rep. 92. That the feoffâ—e of Land or a Bargain of a reversion by Deed indented and inrolled shall not take advantage of a condition for not payment of Rent reserved upon a lease upon a demand by them without notice given to the lessee for the penalty which insues of forfeiture of his Term. So in our Case he shall not incur the penalty of imprisonment for refusing to be sworn without notice given him that he 〈…〉 chosen Alderman He took another exception to the Oath because he is to swear that he shall observe all Laws and Customs of the said City generally which is not good for that which was lawful before pâ—radventure will not be lawful now for some Customs which were lawful in the time of R. 2. are now superstitious and therefore are not to be kept Further it is to keep all the customs within and without the City which is impossible to do Wherefore for these reasons he conceived the Retorn not to be good and prayed that the prisoner might be discharged Saint-Iohn Sollicitor of the same side The custom to imprison is not good Besides here the imprisonment is general so that he may be imprisoned for ever which is not good and the Statute confirms no customs but such as are good customs I agree that a custom for a Court of Record to fine and for want of payment to imprison may be good because the custom goes only to fine and not to imprisonment the Case of 1 H. 7. 6. of the custom of London for a Constable to enter a house and arrest a Priest and to imprison him for incontinencie comes not to our Case for that is for the keeping of the peace which concerns the Commonwealth as it is said in the Book and therefore may be good but it is not so in our Case A Corporation makes an ordinance and injoyns the observance of it under pain of imprisonment it hath been adjudged that the Ordinance is against the Statute of Magna Charta that Nullus
Statute of 12 E. 2. cap. 6. it is expresly ordained that no Officer of a City or Burrough should sell Wine or Victuals during his Office I confess this Statute is repealed by the Statute of 3 H. 8. but yet there is a Provision in that Statute that it extend not to London then the Law being that none of those things shall be sold by any Officer by retail during his Office the Oath which makes a man to abjure that which the Law forbids of necessity ought to be taken as lawful besides there is a Writ grounded upon the Statute of 12 E. 2. which you shall find in the Register 184. a. Fitz. N. B. 173. b. that the party grieved might have directed to the Justices of assises commanding them to send for the parties and to do right c. Wherefore I hold the Oath good and lawful notwithstanding this Objection For the point of notice I conceive it is not needful and if it be I ask who it is ought to give notice in this Case and I say that no person is tied to do it wherefore he ought to take notice of it at his peril For the debito modo electus I say that it is good being in a Retorn upon a Habeas corpus it is said that it was secundum consuetudinem which includes all things needful for the objection That it is averred in the retorn that he was idoneus habilis but that it is no part of the custom that it should be so for it is only in general Si aliquis liber homo and doth not say habilis idoneus and therefore the custom should not be good I answer that it is averred in the Retorn that it is so that he is elected and that is sufficient for us to ground our Judgment but further I conceive that the debito modo helps it wherefore upon the whole matter I conclude that the custom is good and the Retorn sufficient and therefore that the prisoner be remanded Pasch. 18º Car ' in the Common Pleas. Barrow against Wood in Debt 238. IN Debt upon an Obligation brought by Barrow against Wood the Defendant demanded Oyer of the condition ei legitur c. and the effect of it was this That the Defendant should not keep a Mercers-shop in the Town of Tewkesbury and if he did that then within three moneths he should pay forty pound to the Plaintiff upon which the Defendant did demur in Law and the point is only whether the condition be good or not Serjeant Evers the condition is good because it is no total restraint for it is a restraint here only to Tewkesbury and not to any other place wherefore I conceive the condition good I agree the Case in 11 Rep. 53. b. where a man binds himself not to use his Trade for two years or if a husbandman be bound he shall not plough his Land these are conditions against Law because where the restraint is total although it be temporal there the condition is not good but the condition is not totally restrictive in our Case and he compared this Case to the Case in 7 H. 6. 43. feoffee with warranty Proviso that the feoffee shall not vouch it is a good condition because not totally restrictive for although that the feoffee cannot vouch yet he may rebut so in this Case although the Obligor cannot use his Trade in Tewkesbury yet he may use it in any other place And the Condition is not against Law for if it were such a condition then I agree it would be naught but yet the Bond would stand good for this is not a condition to do an act which is Malum in se for there the condition is naught the Bond also as 2 E. 4. 2. b. by Cooke Instit. 206. b. But although a man cannot make a feoffmâ—â—t upon condition that the feoffee shall not alien yet the feoffee may bind himself that he will not alien and the Bond is good and so I say in our Case and if the condition in this Case should not be good it would be very inconvenient for it is a usual thing in a Town in the Country for a man to buy the shop of another man all his Wares in it and if the same being a small town where one of that profession would serve for the whole Town he who bought the shop and wares should not have the power to restrain him the same being the ground reason of the contract from using of that trade in that plaâ—e it would be very inconvenient wherefore he conceived that the condition was good and prayed Judgment for the Plaintiff Serjeant Clarke for the Defendant that the condition is not good for it is against the Law and void because it takes away the livelihood of a man that is one of the reasons against Monopolies 11 Rep. 86 87. And that I conceive is grounded upon the Law of God for in Deut. chap. 24. ver 6. it is said that you shall not take in pledge the nether and upper milstone for that is his life So that by the Law of God the restraining of any man from his Trade which is his livelihood is not lawful And surely our Law ought not to be against the Law of God and that is the reason as I conceive wherefore by our Law the Utensils of a mans Profession cannot be distreined because by that means the means of his livelihood should be taken away And 2 H. 5. fol. 5. b. by Hull the condition is against Law and yet the case there is the very Case with our case for there a man was bound that he should not use his Art in D. for two years whereupon Hull swore by God that if the Obligee were present he should go to prison till he had paid a fine to the King because the Bond is against Law and therewith agrees the 11 Rep. 53. b. 7 E. 3. 65. A Farmer covenants not to sow his land the covenant is void so as I conceive that although the condition be restrictive only to one place or for a time yet because it takes away the livelihood of a man for the time the condition is against Law and void and he cited a Case in the point against Clegat and Batcheller Mich. 44 Eliz. in this Court Rot. 3715. where the condition of a Bond was That he should not use his Trade in such a place and it was adjudged that the condition was against Law and therefore the Bond void and for these reasons he prayed that Judgment might be entred that the Plaintiff nihil capiat per billam Justice Reeve did produce some Presidents in the point and he said that the Law as it had been adjudged stood upon this difference betwixt a contract or Assumpfit and an Obligation A man may contract or promise that he will not use his Trade but he cannot bind himself in a Bond not to do it for if he
do so it is void And for that he cited Clegat and Batchellers Case before that the obligation in such Case is void and he said that the reason which was given by one why the Bond should be void was grounded upon the Statute of Magna Charta cap. 29. which wills That no freeman should be ousted of his Liberties but per legem terrae and he said that the word Liberties did extend to Trades and Reeve said that by the same reason you may restrain a man from using his Trade for a time you may restrain him for ever And he said that he was confident that you shall never find one Report against the Opinion of Hull 2 H. 5. For the other part of the difference he cited Hill 17 Iac. in this Court Rot. 1265. and 19 Iac. in the Kings Bench Braggs case in which Cases he said it was adjudged against the Action upon a Bond but with the Action of the Case upon a promise that it would lie But note that all the Judges viz. Foster Reeve and Crawley Bankes being absent held clearly that if the condition be against the Law that all is void and not the condition only as was objected by Evers and it was adjorned Apsly against Boys in the Common Pleas in a Scire facias to execute a Fine upon a Grant and Render Intrat Trin. 16 Car. Rot. 112. 239. THe Case upon the Pleading was this A fine upon a Grant and Render was levied in the time of E. 4. upon which afterwards a Scire facias was brought and Judgment given and a Writ of seisin awarded but not executed Afterwards a fine Sur coâ—usans de droit come ceo c. with Proclamations was levied and five years passed and now another Scire facias is brought to execute the first fine to which the fine Sur conusance de droit come ceo is pleaded so as the only Question is Whether the fine with Proclamations shall bar the Scire facias or not Serjeant Gotbold for the Plaintiff it shall not bar and his first reason was because not executed 1 Rep. 96 97. and 8 Rep. 100. If a disseisor at the Common Law before the Statute of Non-claim had levied a fine or suffered Judgment in a Writ of Right until Execution sued they were no bars and a fine at Common Law was of the same force as it is now and if in those Cases no bar at Common Law until Execution that proves that this interest by the fine upon grant and render is not such an interest as can bar another fine before execution Besides this Judgment by the Scire facias is a Judgment by Statute and Judgment cannot be voided but by error or attaint Further a Scire facias is not an Action within the Statute of 4 H. 7. and therefore cannot be a bar 41 E. 3. 13. 43 E. 3. 13. Execution upon Scire feci retorned without another plea and it is not like to a Judgment for there the party may enter but not here Besides it shall be no bar because it is executory only and in custodia legis and that which is committed to the custody of the Law the Law doth preserve it as it is said in the 1 Rep. 134. b. and he compared it to the Cases there put and a fine cannot fix upon a thing executory and the estate ought to be turned to a right to be bound by a fine as it is resolved in the 10 Rep. 96. a. 9 Rep. 106. a. Com. 373. And the estate of him by the first fine upon grant and render is not turned to a right by the second fine Lastly the Statute of 4 H. 7. is a general Law and in the affirmative and therefore shall not take away the Statute of West 2. which gives the Scire facias and in proof of that he cited 39 H. 6. 3. 11 Rep. 63. 68. and 33 H. 8. Dyer 15. I agree the Case which hath been adjudged that a fine will bar a Writ of Error but that is to reverse a Judgment which is executed but here the Judgment is not executed and therefore cannot be barred by the fine wherefore he prayed Judgment for the Plaintiff Note that it was said by the Judges that here is no avoiding of the finâ— but it shall stand in force but yet notwithstanding it may be barred and they all said that he who hath Judgment upon the Scire facias upon the first fine might have entred and they strongly inclined that the Scire facias is barred by the fine and doth not differ from the Case of a Writ of Error but they delivered no opinion Taylers Case 240. THe Case was thus The Issue in Tail brought a Formedon in Descend and the Defendant pleaded in Bar and confessed the Estate Tail but said that before the death of the Tenant in Tail I. S. was seised in fee of the lands in question and levied a fine to him and five years passed and then Tenant in Tail died whether this plea be a bar to the Plaintiff or not was the Question and it rested upon this Whether I. S. upon this general Plea shall be intended to be in by disseisin or by feoffment for if in by disseisin then he is barred if by feoffment not and the opinion of the whole Court was clear without any debate that he shall be intended in by disseisin and so the Plaintiff is Bar as the Books are 3 Rep. 87. a. Plow Com. Stowels Case and Bankes Chief Justice said that it shall not be intended that Tenant in Tail had made a feoffment to bar his issues unless it be shewed and it lies on the other part to shew it and a feoffment is as well an unlawful Act as a dissâ—isin for it is a discontinuance Commins against Massam in a Certiorare to remove the proceedings of the Commissioners of Sewers 241. THe Case upon the proceedings was thus Lessee for years of Lands within a level subject to be drowned by the Sea covenanted to pay all assessments charges and taxes towards or concerning the reparation of the premisses A wall which was in defence of this level and built straight by a sudden and inevitable Tempest was thrown down one within the level subject to be drowned did disburse all the mony for the building of a new wall and by the order of the Commissioners a new wall was built in the form of a Horshooe afterwards the Commissioners taxed every man within the level towards the repaying of the sum disbursed one of which was the lessee for years whom they also trusted for the collecting of all the mony and charge him totally for his land not levying any thing upon him in the reversion and also with all the damages viz. use for the mony Lessâ—e for years died the lease being within a short time of expiration his executor enters and they charge him with the whole and immediately after the years expired the executors brought this
therefore I did not stick upon the Certiorare because what was done was by consent consensus tollit errorem if any be Now for the points as they arise upon the proceedings of the Commissioners and for the first I hold that the covenant doth well extend to this new wall and the making of it in the form of a horshooe is not material so as it be adjoyning to the land as it here was for that may be ordered according to their discretions it is a rule in Law that the covenant of every man ought to be construed very strong against himself and although that in this Case the new wall be not parcel of the premisses as it was at the time of the covenant because that the wall then in esse and to which the covenant did extend was a straight wall yet according to the words of the covenant this tax is towards the reparation of the premisses and if it should not extend to this new wall the covenant should be idle and vain and clearly the meaning of the parties was that it should extend to all new walls For the second point I hold the covenant although it be a collateral thing within their Jurisdiction true it is as it is said in 28 H. 8. that contracts are as private Laws betwixt party and party but you ought to know that their Commission gives them power to charge every man according to his tenure portion and profit and he who is bound by custom or prescription to repair such walls is not within the words of their Commission yet it is resolved in the 10 Rep. 139 140. in Kighleys case that the Commissioners may take notice of it and charge him only for the reparations where there is default in him and the danger not inevitable and by the same reason you may exclude this covenant to be out of their Jurisdiction you may exclude prescription also I agree that where the covenant is meerly collateral as if a man who is a stranger covenants to pay charges for repairing of such a wall that that is not within their Jurisdiction because he is a meer stranger and cannot be within their Commission but in our Case it is otherwise for the covenantor is occupier of the land and it hath been adjudged that if lands or chattels are given for the reparation of a Sea-wall that it is within their Jurisdiction and they may meddle with it that is as collateral as the covenant in question wherefore I hold that the covenant is within their Jurisdiction For the third point I hold that they may well charge the executor for the executor here hath the lease as executor but it was objected That the term is now determined and peradventure the executor hath not assets To that I answer that it is admitted that he hath assets for the Commissioners cannot know whether he hath assets or not and therefore he ought to have alledged the same before the Commissioners and because he hath not done it he hath lost that advantage and it shall be intended that he hath assets by not gain-saying of it Fourthly for the damages I first chiefly doubted of that but now I hold that it is within their Jurisdiction Put case that one in extreme necessity as in this Case disburse all the money for the reparations or the wall or Sea-bank if the Case had gone no further clearly he shall be repaid by the tax and levy after and I conceive by the same reason they have power to allow him damages and use for his mony for if it should not be so it would be very inconvenient for who would after disburse all the money to help that imminent danger and necessity if he should not be allowed use for his money and the Lessee here is only charged with the damages for the money collected which he had in his hands and converted to his own use and therefore it is reasonable that he should be charged with all the damages Besides they having conusans of the principal have conusans of the accessory as in this Case of the damages and he urged Fitz. 113. a. to prove that before the Statute of 23 H. 8. they had a Court and were called Justices but he held as it was agreed before That no Writ of Error lieth after this Statute but yet he said that the party grieved should be at no loss thereby for he said that where the party cannot have a Writ of Error nor Audita querela there he shall be admitted to plead as in 11 H. 7. 10. a. Where a Recognisance of debt passed for the King upon issue tried and afterwards the King pardons it the party after Judgment may plead it because Audita querela doth not lie against the King and where a man is not party to a Judgment there he cannot have a Writ of Error but there he may falsifie so I conceive that he may in this Case because he cannot have a Writ of Error and I conceive as it hath been said before that after the Statute of 23 H. 8. the Commissioners of Sewers have a mixt Jurisdiction of Law and equity For the Certiorare I will advise hereafter how I grant it although I conceive as I have said before that a Certiorare lies after the Statute and is not taken away by the Statute and I conceive in some clearness that it may be granted where any fine is imposed upon any man by Commissioner which they have authority to do by their Commission as appeareth by the Statute to moderate it in Case that it be excessive But as I have said before because that the parties by agreement voluntarily bound themselves by Recognisance to stand to the judgment of this Court upon the proceedings as they are certified that made me at this time not to stand upon the Certiorare wherefore I do confirm the decree 242. Rolls moved this Case A. did suffer B. to leave a trunk in his house Whether B. might take it away without the special leave of A. was the Question Justice Mallet leave is intended but Rolls conceived that he could not take it without leave Hammon against Roll Pasch. 18. Car. in the Common Pleas. 243. IN an Action upon the Case upon Assumpsit the Case upon special verdict was this A. and B. were bound joyntly and severally in a Bond to C. who released to A. afterwards there being a communication betwixt B. and C. concerning the said debt B. in consideration that C. would forbear him the payment of the said mony due and payable upon the said Bond till such a day promised to pay it c. C. for default of payment at the said day brought this Action upon the Case B. pleaded the general issue and thereupon the whole matter before was found by the Jury Serjeant Clarke here is not any good consideration whereupon to ground an Assumpsit because by the release to one obligor the other is discharged and then there being no
same after by Copy that they agreed might be a Question Serjeant Rolls at another day argued that the Copyhold was destroyed by the Kings grant but he agreed that it is not reason that the Patent should be utterly void for that he said would overturn all the Kings grants for there is not any Patent that ever recited Copyhold and therefore the Question is whether the Copyhold be destroyed or not and he argued that it is because there needeth not auy recital of Copy-hold Br. Pat. 93. It is agreed that where the King grants Land which is in lease for term of years of one who was attainted or of an Abby or the like that the grant is good without recital of the lease of him who was attainted c. For he shall not recite any lease but leases of Record and therewith agreeth 1 Rep. 45. a. and Dyer fol. 233. pl. 10 11. Now he said there is no Record of these Copyholds and therefore there needs not any recital of them and therefore the King is not deceived Further he said that no man is bounden to inform the King in this Case and therefore the King ought to take notice and then the reason of the Case of a common person comes to the Kings Case because the Copyhold was not demiseable for time as before according to the nature of a Copyhold and therefore of necessity is destroyed and the Court as I said before did conceive the Case questionable Burwell against Harwell in a Replevin 247. THe Case was shortly thus A man acknowledged a Statute and afterwards granted a Rent-charge the land is extended the Statute is afterwards satisfied by â—ffluxion of time and the grantee of the rent did distrain and whether he might without bringing a Scire facias was the Question And the Case was several times debated at the Bar and now upon solemn debate by the Judges at the Bench resolved But first there was an exception taken to the pleading which was that the avowant saith that the Plaintiff took the profits from such a time to such a time by which he was satisfied that was said to be a plea only by argument and not an express averment and therefore was no good matter of issue and of this opinion was Justice Heath in his argument but Bramston Chief Justice that it is a good positive plea and the Plaintiff might have â—raversâ—d without that that he was satisfied modo forma and in Plowd Comment in Buckley and Rice Thomas 〈…〉 ut cum tam quam are good issues Now for the point in Law Justice Mallet was for the Avowant that the distress was lawful the grantee of the Rent cannot have a Scire facias because he is a stranger and a stranger cannot have a Scire facias either to account or have the land back again The Cases which were objected by my Brother Rolls viz. 32 E. 3. tit Scire facias 101. Br. Scire facias 84. Fitz. Scire facias 134. That the feoffee shall have a Scire facias do not come to our Case for here the grantee of the Rent is a stranger not only to the Record but to the Land which the feoffee is not Further it was objected that the Grantee of the Rent claims under the conusor and therefore shall not be in a better condition than the Conusor there are divers Cases where grantee of a rent shall be in better condition than the Conusor the Lord Mountjoyes Case a man makes a lease for years rendring rent and afterwards acknowledgeth a Statute and afterwards grants over the rent now it is not extendable Besides it was objected that if this should be suffered it would weaken the assurance of the Statute and disturb it I agree that may be but if there be not any fraud nor collusion it is not material and then he being a stranger if he cannot have a Scire facias he may distrain it is a Rule in Law Quod remedio distituitur ipsa re valet si culpa absit 21 H. 7. 33. Where there is no Action to avoid a Record there it may be avoided by averment c. 18 E. 4. 9. 5 Rep. 110. 32 Eliz. Syers Case a man indicted of felony done the first day of May where it was not done that day he cannot have an averment against it but his feoffee may 12 H. 7. 18. The King grants my land unto another by Patent I have no remedy by Scire facias 19 E. 3. Br. Fauxifer of recovery 57. F. N. B. 211. 20 E. 3. 6. 9 E. 4. 38. a. A man grants a rent and afterwards suffers a recovery the grantee shall not falsifie the recovery because he is a stranger to the recovery but he may distrain which is the same Case in effect with our Case for which cause I conceive that the distress is good and that the Replevin doth not lie Justice Heath the distress is unlawful for he ought to have a Scire facias clearly the conusor ought to bring a Scire facias See the Statute of 13 E. 1. Fulwoods Case 4 Rep. 2 R. 3. 15 H. 7. and the reason why a Scire facias is granted is because that when a possession is setled it ought to be legally evicted Besides it doth not appear in this Case when the time expired besides costs are to be allowed in a Statute as Fulwoods Case is and â—he same ought to be judged by the Court and not by a Jury which is a reason which sticks with me see the Statute of 11 H. 6. it is objected that the Grantee of the rent cannot have a Scire facias it will be agreed that the conusor himself cannot enter without a Scire facias and I conceive à fortiori not the Grantee of the Rent I do not say here there is fraud but great inconvenience and mischief if arrerages incurred for a great time as in this Case it was shall be all levied upon the conusee for any small disagreement as for a shilling without any notice given to him by Scire facias and he should be so ousted and could not hold over I hold that of necessity there ought to be a Scire facias and he ought to provide with the Grantor to have a Scire facias in some fit time but I hold that the Grantee here may well have a Scire facias I agree the Cases where it is to avoid a Record there ought to be privity as the Books are but here hâ— doth not avoid the Record but allows it for the Scire facias ought to be only to account 38 E. 3. The second conusee of a Statute shall have a Scire facias against the first conusee and I conceive that by the same reason the Grantee of the rent here shall have it and in that Case there is no privity betwixt the first conusee and the second conusee for which cause he did conclude that the distress was unlawful and that the Repleâ—in would
well lie Bramston Chief Justice for the Avowant that 〈◊〉 may well distrâ—in and cannot have a Scire facias but if he may have a Scire facias yet he may distrein without it There is no authority in the Law directly in the point in this Case I agree that if there be any prejudice to the conusee there it is reason to have a Scirâ— facias It was objected that it is a constant course to have a Scire facias in this Case But I believe you will never find a Scire facias brought by the Grantee of a rent or other profit apprender Besides the best way to judge this Case is to examine what the Scire facias is which ought to be brought and what the Judgment is which is given upon it whether he may recover the thing in demand or not vid. 32 E. 3. Fitz. Scire facias 101. 47 E. 3. 11. which are brought to have account and to shew cause wherefore he should not have the land see Fitz. Scire facias 43. v. The old Entries the Judgment which is given thereupon and the demand there is quod tenement praed redeliberatur and may the grantee in this Case have the land and thing in demand certainly not and that gives sufficient answer to the Cases objected by my Brother Heath where the second conusee shall have a Scire facias against the first Besides you shall never find in all our Books that a man shall have an attaint or a writ of error but he who may be restored to the thing lost by the judgment or verdict 2 R. 3. 21 Dyer 89. 9 Rep. the Lord Sanchars Case so in debt and erroneous Judgment upon it wherewith agreeth Doctor Druries Case 8 Rep. 12. 18 E. 3. 24. the feoffee shall have a Writ of Error because he shall have the land and see 32 E. 3. Scire facias 101. And the grantee shall not have a Writ of Error in this Case upon erroneous Judgment and for the same reason he shall not have a Scire facias and the grantee cannot have a Scire facias for want of privity and therefore I conclude that he cannot have a Scire facias for if he might certainly it would have been brought before this time either for this cause or for some other profit apprender It was objected that he shall not be in better condition than the conusor that is regularly true as to the right but he may have another remedy It was objected that the reason why that a Statute without a Scire fatias shall not be defeated is because he is in by Record and therefore shall not be defeated without Record but that is not the true reason but the reason is because the conusee ought to have costs and damages besides his debt as is Fullwoods Case 4 Rep and 15 H. 7. 16. is that the Chancellor shall judge of the costs and damages But 47 E. 3. 10. 46 E 3. Scire facias 132. by all the Judges that they lie in averment But here an inconvenience was objected that great arrerages should be put upon the conusee for a little mistaking to that he said that of a small mistake the Court shall judge and it shall not hurt him but if he hold over being doubly satisfied it is reason that he pay the arâ—erages and he put this Case A man acknowledgeth a Statute and afterwards makes a lease to begin at a day to come the lâ—ssee shall have a Scire facias for where remedy doth fail the Law will help him for which cause he concluded and gave Judgment for the avowant Trin. 18 Car ' in the Kings Bench. Paulin against Forde 248. AN Action upon the Case brought for words the words were these Thou art a thievish Rogue and hast stolen my wood innuendo lignum c. Gardiner the words are not actionable because it shall be intended wood standing or growing and not wood cut down and so he said it had been adjudged so if a man says of another that he hath stollen his Corn or Apples the words are not actionable because they shall be intended growing Bramston Chief Justice that the words are actionable because that wood cannot otherwise be meant but of wood cut down because it is Arbor dum crescit lignum dum crescere nescit for which cause he conceived that the words were actionable and it was adjorned Chambers and his wife against Ryley 249. ACtion upon the Case for words the words were these Chambers his wife is a Bawd and keeps a Bawdy-house for which words the Action was brought and the conclusion of the Plea is ad damnum ipsorum Wright the words are not actionable because it is not the wife that keeps the house but the husband and therefore the speaking the words of the wife cannot be any damage to him but admit the words were actionable the husband only ought to bring the Action because the speaking of the words is only to his damage Bramston Chief Justice the wife only is to be indicted for the keeping of a Bawdy-house and therefore she only is damnified by the words and the husband ought to joyn in the Action but that is only for conformity and the conclusion of the Plea is good for the damage of the wife is the damage of the husband and therefore ad damnum ipsorum good And here it was agreed that to say that a woman is a Bawd will not bear an Action but to say she keeps a Bawdy-house will Porter who was for the Action cited a Case which was thus One said of the wife of another that she had bewitched all his beasts and she and her husband joyned in an Action and upon debate it was adjudged good and there the conclusion also of the plea was ad damnum ipsorum Rickebies Case 250. RIckebie was indicted in Durham for Murder and afterwards the Indictment was removed into the Kings Bench where he pleaded his Pardon which Pardon had these words in it viz Homicidium feloniam felonicam interfectionem necem c. seu quocunque alio modo ad mortem devenerit And note there was a Non obstante in the Pardon of any Statute made to the contrary and whether these words in the Pardon were sufficient to pardon Murder or not was the Question Hales for the Prisoner said that the Pardon was sufficient to pardon Murder and in his argument first he considered whether Murder were pardonable by the King at the Common Law or not and he argued that it was the King is interessed in the suit and by the same reason he may pardon it It is true that it is Malum in se and therefore will not admit of dispensation nor can an appeal of Murder which is the suit of the Subject be discharged by the King but the King may pardon Murder although he cannot dispense with it see Bracton lib. 3. cap. 14. And the Law of the Jâ—ws differs from our Law
therefore iâ— the King be deceived either in point of profit or in point of Title his Grant is void 9 H. 6. Where he is not deceived in point of profit he shall not avoid the Grant 26 H. 8. The second reason That a Deed ought to be construed Vt res magis valeat quam pereat 34 H. 6. A man having a Reversion deviseth his land in Manibus thereby the Reversion passeth 9 E 4. 42. Release of all Actions against Prior and Covent shall be construed and intended all Actions against the Prior only for an Action cannot be brought against the Covent Farther by this construction you would avoid this deed and by the Rule of Law the deed and words of every man shall be taken very strong against himself ut res magis valeat as is said before And it is against reason to conceive that it was the meaning of the parties that nothing should pass A third reason was because the grant was a distinct clause of it self And the words which were objected at the Bar to be restrictive were in another distinct clause and therefore shall not restrain that which was before for words restrictive ought to be continued in one and the same sentence Wherefore they having granted all their Tithes in Chesterton by one clause the false recital afterwards in another clause shall not make the grant void See 3 4 Eliz. Dyer in Wast 31 Eliz. the Lord Wenworths Case in the Exchequer upon this Rule of distinct clauses And Atkins and Longs case in the Common Pleas upon which cases Justice Iones did rely The fourth reason was That construction ought to be made upon the whole Deed And it appeareth by the context of the Deed That it was the meaning of the parties to grant the Tithes by the Deed. Further the Exception of the four things sheweth That it was the meaning of the parties to grant all things not excepted as the Tithes in this Case For exceptio firmat Regulam And to what purpose should the Exception be if they did not intend to pass all other things not excepted See 4 Car. Hâ—skins and Trâ—ncars Case Sir Robert Napwiths Case 21 Iac. cited by the chief Jâ—â—tice to that purpose Wherefore it was agreed by the whole Court that Judgment should be given for the Defendant And the Opinion of the Court was clear also That although some of the Tithes had been in the Tenure of Margaret Petâ—e that yet the grant was good And that was after Argument upon the Demurrer to avoid all scruples to be after made by Counsel because it was conceived That some of the Tithes were in her Tenure Crisp against Prat in Ejectione firme 67. THe Case upon the four Statutes of Bankrupts viz. 34 H. 8. 13 Eliz. 1 Iac. and 21 Iac. was thus Ralph Brisco 9 Iac. purchased Copyhold to him and his Son for their lives the Remainder to the Wife in Fee 11 Iac. he became an Inholder and about twelve years after a Commission of Bankrupt is obtained against him And thereupon the Copyhold-land is sold by the Commissioners to the Defendant Ralph Brisco dieth and his Son Iohn Brisco entred and made the Lease to the Plaintiff The Defendant entred upon him and he brought an Ejectione firme And Judgment was given upon solemn argument by the Justices for the Plaintiff The first point was Whether an Inholder be a Bankrupt within these Statutes And it was resolved by all the Justices viz. Iones Crook Barckley and Bramstone chief Justice that an Inholder quatenus an Inholder is not within these Statutes Justice Barckley and Justice Iones one grounded upon the special Verdict the other upon the Statutes did conceive That an Inholder in some cases might be within these Statutes Justice Barckley did conceive upon this special Verdict that this Inholder was within them because it is â—ound That he got his living by buying and selling and using the Trade of an Inholder And he conceived upon these words Buying and selling in the verdict and getting his living thereby although that the Jury have also found him an Inholder that the same is within the Law And he agreed That he who liveth by buying or selling and not by both is not within the Law but in our case the Jury have found both And it hath been adjudged That he who buys and sells cattle and stocks his ground with them that he may be a Bankrupt within those Statutes I agree that a Scrivener was not within 13 Eliz. for he doth not live by buying and selling but by making use of the monies of other men but now he is within 21 Iac. But in our case the Inholder buys his grass hay and grains and provision also for his Guests and by selling of them he lives But he agreed That if the Jury had found that he was an Inholder only and not that he did get his living by buying and selling that in that case he was out of the Law And for these reasons he did conceive That this Inholder as by the special Verdict is found was within the Statutes of 13 Eliz. and 21 Iacobi Justice Iones An Inholder may be or not be within these Laws upon this difference That Inholder who gets his living meerly by buying and selling as many of the Inholders here in London do they are within these Statutes But those who have Lands of their own and have hay and grain and all their provisions of their own as many have in the Country those are not within the Statutes Farther he said That buying and selling doth not make men within these Statutes for then all men should be within the Statutes but they ought to be meant of them who gain the greatest part of their living thereby and live chiefly or absolutely thereby But Bramston chief Justice and Justice Crook were clear of Opinion that an Inholder could not be a Bankrupt neither by the Statutes nor according as it is found by the special Verdict And their reason was because that an Inholder doth not live by buying and selling for he doth not sell any thing but utter it He which sells any thing doth it by way of contract but an Inholder doth not contract with his Guests but provides for them and cannot take unreasonable rates as he who sells may and if he doth he may be Indicted of Extortion which the seller cannot Wherefore they concluded that an Inholder is not within the Statute of 13 Eliz. 1 Iac. Justice Crook remembred these Cases Webb an Inholder of Vxbridge brewed in his house and sold his Beer to his Guests And it was adjudged in the Exchequer that it was not within the Statute of Brewers And Bedells Case who being a Farmer bought and sold cattle and adjudged that he was not a Bankrupt within these Statutes And he put thâ—se cases upon this reason That where the Statutes said Get their living by buying and selling that it ought to bâ—â—or the greater part that they gain