determined and Hanbury and Cookrells case is not adjudged but if it be it is on my side and Mich. 37 38. C. B. rot 1149. It was adjudged upon solemn argument at the Bar and on the Bench contrary to the Iudgement in Pell and Browns case if lands be devised to one and his Heirs and if he dye without issue that the land shall be to another and his Heirs this is no Estate tail for it cannot stand with the rules of Law to devise â—uth an Estate for it is but a possibility and if it should be more it must be a Fee upon a Fee and so a perpetuity and it cannot be known within what bounds it shall end either in case of years or life or other contingencies and the comparison of Lampets case is not like to this case for that was or a Term but this is of a freehold and a contingent devise of a freehold is not good since the Statute of 32 H. 8. and Brook tit devise 2 Dyer 28 H. 8. f. 3â— is not an opinion against this And though there could be such a devise of other lands yet Copyhold lands cannot be so devised as the case is here for there cannot be so much as a possibility of reverter for there is no custom to warrant it Hill 5. Car. King and Leyden in this Court and Dyer 264. and though there might be a reverter yet he cannot devise it by will and if he could yet here the conbeyance is made up by surrender admittance and devise and the party is here in by the surrender and not by the devise and so is a Copyholder in by Act executed and not upon the contingency and the will is but to direct and though all this be otherwise yet the Plaintiff cannot have Iudgement for it appears not that the surrender is presented at any Court at all and here is nothing but a recitall found Ierman Iustice said by the Common Law there ought to be a presentment at the next Court Roll chief Iustice and Nicholas Iustice There is no certain time for the presentment but it is according to the Custom of the Manor so that it be within the life of the Tenant Roll chief Iustice said it is an inconvenience to devise such a contingent Estate Nicholas doubted for he said it would shake many wills if it might not be and so said Hales The Court would advise Hales confessed the verdict was imperfect but prayed it might be amended But Latch answered it is good enough for us the Defendants for we have primer possession The Court answered it would be good to have it amended and not to have a venire de novo Venire for that will be chargeable but if the verdict be imperfect to bring the matter in Law into question we can grant a new venire although it hath been heretofore doubted Therefore be advised so that it may be argued Antea Heal against Green Trin. 1651. Banc. sup Hill 1649. rot 370. THe case between Heal and Green upon a special verdict formerly argued by Latch was again spoken to and argued by Twisden Argument upon a special verdict upon construction of words of a Will and he held that the Feme had power by the Will to make the lease notwithstanding that she hath but an Estate for life and cited 11 Car. B. R. Hill rot 810. Iob and Whites case and 21 Iac. Danyel and Vgnel and he said that the remainder limited to the daughter doth not hurt for it may very well stand with the will and the intent of the Testator appears upon the whole to be to give such a power to his wife to make this lease and cited 8 Car. Perd and Bensams case And there is a clause in the will that shews that the Testator did intend to advance his wife by this devise And the Feme shall be in by the power which shall make the estate of the lease good and it is not necessary to recite the power as it is held in Rogers case Maynard on the other side said he would not dispute the power but here is no such power given to the wife as it appears by the expresse words of the Will which doth only describe that she shall only make Estates but for her life otherwise she might make Estates in Tail or in Fee and if this should be the last part of the Will which doth limit the remainder would be destroyed and generals in a Will shall not revoke an express devise but they ought so to be construed that all the Will may stand together as Bonhams case is 8. rep Roll chief Iustice It is a difficult thing to shew the meaning of the Testator here but the general must not destroy the particular devise to which Nicholas Iustice assented and Roll enclyned that the Feme had power by the Will to make this Estate otherwise the words of the Will must be idle and void and it may be the Baron intended to give his wife such a power that she might destroy the remainders and otherwise there cannot be any construction made of the Will Ask Iustice differed in opinion and said it was unreasonable the remainder should be destroyed which is expresly limited by the Will and a Will doth differ from a conveyance Nicholas Iustice said that the words shall be expounded to shew his bounty to his wife but not to give her power to destroy the remainder Ierman Iustice There are expresse words for the Feme and the daughter and the Feme hath a power but not to destroy the Estate of the daughter Curia advisare vult Antea Booth against Lambert Trin. 1651. Banc. sup Hill 1649. rot 201. VPon a speciall verdict upon these words Argument and judgement upon special verdict the question whether dower well assiâ—gâ—ed or not viz. I do endow you of a third part of all the lands my Cosen I. S. your husband dyed seised of The question was whether the feme were well endowed by these words because he doth not say that he endows her by metes and bounds Chase held she was not well endowed and cited 8 Ed. 2.15 and said that here is incertainty which begets dissention which ought not to be and the thing is not here entire but may be devided And this is an assignment of dower which differs from a demand of dower for a demand may be general as in the cases of Thyn and Thyn in this Court and of Fairefax and Fairefax and so the book of 8 E. 2. entry congeable S 5. which seems to prove the contrary that is not to our case for it differs from it Merifield of Councell on the other side held the feme was well endowed and agreed the cases put by Chase That of Common right a feme ought to be endowed by metes and bounds yet sometimes it is otherwise as 3 Eliz. Dyer 27. a feme endowed in Common And the feme that is to be endowed and the
the Arbitrators have all of it to agree in and till it is ended the Vmpire hath no power at all otherwise the submission would be repugnant in it self The rest of the Iudges concurred in all and so ruled That the Plaintif all capiat per billam nisi Theoballs against Newton Mich. 1651. Banc. sup ONe was sued upon the Statute of Inmates and the distringas jurata bare date on a Sunday and out of Term and so is erronious The question here was whether it be not helped by the Statutes of Ieofails of 18 Eliz. and 21 Iac. Roll chief Iustice held Ieofails that the Statutes extend not to penal Laws although it be ambiguously penned nor to any processes grounded upon them for the Proviso exempts the Original action and by consequence all processes depending upon it are excepted Venire de novo so that here is no good tryal but there shall be a venire de novo nisi Tayler and Webb Mich. 1651. Banc. sup THe Case of Tayler and Webb which arose upon a special verdict upon these words of Will Special Verdict upon the words of a Will viz. I make my Cosen Giles Bridges my soll ayere and yexecutor was again moved and argued by Hales and he made three questions 1. Whether any estate passeth by the words of the will 2ly If any what estate passeth 3ly Whether the false Orthography doth hurt the Will For the first he said that by making one his sole heir his land passeth to him The word heir is to be considered either in relation to an Ancestor and so one cannot make one his heir or it may be considered in relation to a thing to be inherited to wit lands or tenements and so one may make another his heir and thus a Custom may make one a mans heir as it is in Borough English and an accident may thus also make one a mans heir as it is in the Case of possessio fratris Coundens case Hob. Rep. Case 947. And here it is all one to make one his heir and to make hint heir of hislands and the reasons are First the word heir here cannot have any other relation than to the Testators lands for he cannot make him his heir otherwise and the words may be more reasonably intended so 2ly The words carry in them the plain intention of the Devisor that the party should have his lands although the words are not very proper â— H. 7. A devise of lands to his son after the death of his wife passed an Estate for life to the wife although no such Estate was expressed in the Will so here although no expresse Estate of land be devised yet the Devisee shall have the lands by the intent of the Devisor 3ly In ordinary speech if one make such an one his Heir it is intended that he gives him his lands 8 Car. in the C. B. in Spurt and Bents case A devise of his inheritance was held a devise of his lands and Trin. 3. Iac. in Terryes case A devise of all his rents in tayl passed his lands because in vulgar acceptance it is the rents of lands and in Pits and Sands case in this Court A devise of all his free lands in Holford did passe a portion of Tithes and in the case of one Iohnson a devise of all his estate passed all his lands And the words cannot bear the fence to make him Executor according to the Civill Law as hath been objected for the Will shall be intended as it is to be an English mans Will and so the word Heir in it shall he interpreted according to out Law and not the Civill Law and even in the Civill law to make one his Heir doth convey unto him all his lands for he is haeres testamentarius although not haeres legitimus And in this Will here are two expressions for the party is made Heir and Executor which two words cannot signifie one thing for that would be an idle expression 4ly There are some clauses in the Will which shew the intent of the Testator was to convey his lands if it were needful to make use of them 1. There are several annuities for the Devisee to pay 2ly He directs him where the conveyances and assurances of his lands were laid up which plainly shew he meant he should have his land 3ly The words Heir and Executor are joyned together to shew that he gives him all his lands and goods else one of the words must be imperfect and ineffectual which shall not be intended For Authority 7 E. 6. Br. devise 38. by devising that one Son shall be Heir to the other it shall be intended of lands so in construction of law it shall be here intended that the Devisor made him Heir of his lands Hob. Reports in Sparkes and Burnells case William and Anthony shall be each others Heir and it is not said of land yet adjudged that it shall be so meant and so is it in our case and if I have lands in see simple and make one my heir it shall be intended that he shall have my lands in see simple although I say not that I make him Heir of my lands For the second question the reasons before expressed do also shew that the lands are passed in Fee as it is in Purnells and Hambletons case for the word Heir shall relate to the same Estate that the party had in the land who makes the other his Heir 8 Iac. Inkersals case For the 3d point whether here shall be any good devise at all by reason of the false English he said it was all one and to as good effect as if the words were all true English and neither the incongruity nor the insufficiency of the words shall hurt the Will as it is pretended For 1. This is not in case of pleading or of writs but in conveyance of lands It is true that in the former it doth hurt because writs and pleadings may be amended if they be naught but it is fatal in conveyances for they cannot be amended as in Trotman and Standards case Trin. 1651. in this Court it was held that impropriety of words shall not hurt it they can admit of a good construction Desinet in piscem mulier formosa superne 2ly This is in a Will which is such an instrument that is much favoured in Law and therefore to be favourably construed 3ly This is an English Will and admits of much variety of dialects and therefore is not to be critically interpreted Neither are there here any insignificant or missignificant words as hath been objected but significant for the sound of the word as it is written is the same as if it had been rightly spelled for Ayer and Heir sound both alike As in 3 H. 4. f. 4 Baxter and Baxster sounded alike 2ly If the word Heir might receive any other sence yet it cannot do so here because there are other words joyned to it to declare and signifie that the
one as if the party had appeared for if he had appeared the Case would have béen otherwise So Iudgement was given for the Plaintif nisi c. Pasch 1652. Banc. sup MEmorandum One brought by Habeas Corpus from the Fleet remaâ—â—ed One was brought into the Court by the Mareschall of the Fléet by vertue of a habeas Corpus directed to him out of this Court and because it did appear upon Record that the party was charged with divers debts when he was turned over to the Fleet he was not suffered to put in Bail here but was remanded Gossage against Tayler Pasch 1652. Banc. sup Hill 1650. rot 117. IN an Ejectione firmae upon a Lease for years of a Messuage Special verdict in Trespass and Ejectrueâ—â— and certain lands in Hatfield Broad-Oak in the County of Essex upon a special verdict found the case fell out to be this Rich. Frank seised amongst other lands and Tenements of the Messuage and lands in question upon the mariage of his Son Leventhorp Frank with Susan Cotele levies a fine of the lands to the use of himself during his own life and the life of Leventhorp his Son and after during the life of Susanna Cotele the wife of Leventhorp the remainder to the use of the heirs to be begotten upon the body of Susanna by Leventhorp her Husband The question here was whether the word heirs shall be intended the heirs of Leventhorp and Susanna his wife or whether the estate shall be intended to be limited to the heirs of Susanna only and that Leventhorp shall have barely an estate for life in the lands Serjeant Glyn of Councel with the Plaintif held That Susanna Cotele hath an estate tayl executed in the lands and that the word heirs shall relate only to the heirs of Susanna and not to the heirs of Leventhorp 1. Because that here is an estate limited for life unto Susanna by an express limitation and her heirs shall take immediately after the estate for life ended and they shall not come in as purchasors By express Terms the word heirs is not limited to any person but it is left to the construction of the Law and that doth apply it to Susanna as to a person to whom Richard that setled the lands hath expressed most affection as appears by the Deed Lit. f. 6. Sect. 28. There is an expression of the party to whom the word heirs shall relate but so is not here and therefore the cases differ In 3 Ed. 3. f. 31 32. It is ruled that both parties have an estate tayl because the estate is limited to both but so it is not in our case so those books are not against me In our case it doth not appear that Richard did intend to advance the Husband of Susanna and therefore it is not reason that the word heirs should relate to him but to Susanna his wife only for in case of limitation of estates the intention of the party is to be considered and doth direct the matter and the preceding limiting of the estate to Susanna and not to Leventhorp doth shew that the party did mean to promote the heirs of Susanna Lit. Sect. 27. Dyer 27. A second reason is drawn from the penning of the déed which in the limitation of it doth encline more that the word heirs should be applyed to Susanna than to Leventhorp for the words upon her is as much as to say of her and then it is the same case with Littletons case 3ly The Intention of the Donor appears to be such by the circumstances of the entire limitations which do shew that he did intend that Leventhorp should not have such an estate whereby it should be in his power to deprive his issue and therefore the word heirs are to be applyed to Susanna and not to Leventhorp for if it should be applyed to both then Leventhorp might destroy the estate of the issue contrary to the Donors intent And whereas Dyer 99 is objected against me I answer that case is not against me for there the word heirs is expresly limited to a certain person viz. to the heirs of the body of both of them but so it is not in our case and whereas Hill 13 Iac. Lane and Panels case in this Court is also objected against me I answer that that case is in effect the same case with Dyer and the question in our case came not in dispute And the will of the Donor in deeds is to be ohserved Lit. 22. C. Tayl. 1. rep Shelleys case 103. 〈◊〉 Notwithstanding in gifts in tayl this rule holds not so that a gift in tayl may be limsted contrary to the rule of the Common Law And I know not of any authority in print or writing against me but in 13 Ed. 3. Fitz. tit variance 81 there is an expresse authority for me and 4 H. 4. Fitz. br 448. in my experience I have known many estates limited as this is in the Southern parts held good estates tayl if it should be otherwise many estates would be shaken Roll chief Iustice We have delivered our opinions before against you viz. that it was not the meaning of the donour to apply the word Heirs to the body of Susanna only for this construction would offer violence unto the words as appears by Littleton who interprets that they are to be applyed to the Heirs of both the partyes and your reason is founded upon a wrong ground and expresly against Litletons case and for your second reason it is of no waight for the words are all one as if he had said to the Heirs of the Husband and wife begotten upon the wife 3ly We are not to frame a meaning against plain words which shew the Donors intent to be against you And the Baron cannot Bar the Estate tayl as you suppose Tayl. for the Feme hath an Estate for life and if she survive she may revive the remaining Estate and we must not consider of inconveniences which possibly may happen against the expresse words of the deed and the multitude of conveyances made in this manner are of no force to alter the Law Ierman Iustice as Roll. That the word Heirs shall be applyed to the Heirs of both partyes because voluntas donatoris secundum formam chartae expressa est observanda Nicholas and Ask Iustices of the same opinion Garland against Yarrow Pasc 1652. Banc. sup THis case being in arrest of Iudgement formerly spoken unto in an Action upon the case for these words Arrest of Iudgement in an Act on for words you are a knave and keep a Bawdy house was again moved by Christ Turner who held that the words are not actionable 1. Because they are of spiritual cognisance 2ly It is not said that he kept a common Bawdy house 3ly here is no special damage laid 10 Car. These words he is a pimp adjudged not actionable in Lewis and Whittons case 4ly It is not alleged that he
the mony is not paid a Iudgement is obtained against White for the mony White makes his will and makes his Heir at law his Executor and dyes leaving lands to descend White as Heir brings a Writ of Error to reverse this Iudgement It was argued by the Councell of the Plaintiff in the Writ of Error that the Writ did lye because although the Action in the former Iudgement was but a personal Action yet in this Case the Land of the Heir may be charged by the Iudgement Heir Elegit for an elegit may be thereupon taken out to charge â—is Lands and therefore the Iudgement concerns him as Heir as well as Executor and therefore it is reason he should bring a Writ of Error to reverse the Iudgement because he may be prejudiced by it Executor And a Case in Trin. 29 Eliz. rot 631. Banc. Reg. was cited that the Heir is pridy to the Iudgement and therefore shall have a Writ of Error Error and he is not meerly terr-Tenant 13 E. 4.2 Roll Iustice the terr-Tenant sole shall not have a Writ of Error upon an extent Error And in the Case at the barr the Heir is not privy to the Iudgement and the extent is only upon him as terr-Tenant and he is not made privy to the Iudgement by the extent but after Execution he may have a Writ of Error and he said Bail the Bail cannot bring a Writ of Error upon the Iudgement given against the Principal and the same reason is here and it will be very hard to maintain this Writ of Error Adjourned to the next term Terry and Baxter Trin. 23 Car. Banc. Reg. Pasc 23 Car. rot 394. TErry brings an Action of Debt upon an Assumpsit against Baxter Demurrer upon an Dclaration in Assumpsit to stand to an award to stand to an Award The Defendant pleads nul arbitrement the Plaintiff sets forth the award and assigns a breach The Defendant demurs and for cause shews that part of the award was to pay 5 l. to the poor of the Parish of D. which was not within the submission and so the award was not good Rolle Iustice answered if the award be void to the 5 l. Award good in part i a good award awarded to be paid to the poor yet it is good to the rest for it is perfect as to the ending of all differences between them which are submitted and therefore shew cause on Monday next why judgement should not be given for the Plaintiff Morefield and VVebb Trin. 23 Car. Banc. Reg. Pasc 23 Car. rot 50. VVEbb brings an Action upon the Case against Morefield in the palace Court at Westminster Error to reverse a Iudgement in an Action upon the Case and hath a Iudgement Morefield brings a Writ of Error in this Court to reverse the Iudgement and Assigns these Errors 1. It is not shewed in the Declaration that the cause of Action was infra jurisdictionem palatii But Rolle Iustice answered Iurisdiction that it was shewed to be infra jurisdictionem Curiae and that was good enough for the Court is alleged to be held by Letters patents Retorn A 2d Exception was that there was not fifteen dayes for the retorn of the Venire facias as there ought to be But to this Rolle Iustice also answered that the Court is held by Letters patents and therefore it may be retornable within fifteen dayes though by the usual course of the Common law it cannot And therefore ordered the Plaintiff in the Writ of Error to shew better matter otherwise Iudgement should be affirmed against him The King and Holland Trin. 23 Car. Banc. Reg. THe Case between the King and Holland was moved again For quashing an inquisition for the King Inquisition and the Councell against the King moved that the inquisition found for the King to entitle him to the use of the Copyhold might be quashed because the King cannot be intitled to such a use because it is a thing in privity only and cited the Statute of 27 H. 8. of uses Vse and Cooks 1. rep 123 and said that the King cannot be intitled ot Copyhold lands of an Alien much lesse to the use of Copyhold lands Copyhold King VVrong Protection Trust if he should 1. The Lord would be wronged which the King ought not to do but to protect his subjects for the protection of the subject is not only matter of honour to the King but also of trust in the Crown 2ly A stranger is wronged by it 3ly The Copyholder of the Manor cannot have remedy for the injury done him Sute for he ought to sue in the Lords Court and not else where and here he cannot do it and the rule in law is de minimis non curat lex and it is much lesse for the honnour of the King to have a Copyhold estate Honour which is a base tenure But it may be objected that if the King shall not have this use he shall be in a worse condition than a subject To this it is answered that he shall be so in cases which touch his royalty and may be a disparagement to him Copyhold which indeed doth not make him in a worse condition though it may seem so but it is more for his honor and a Copyhold is an estate at the will of the Lord and ought to be protected by the Lord and the King cannot be Tenant at will to any Alien Trust and therefore cannot have a Copyhold estate and an Alien is not capable of a trust because it is a thing in Action which an Alien cannot have and therefore he cannot derive it from him Twisden for the King in his Argument considered 1. Whether the King can have a use at the Common law which is for an Alien 2. Whether a trust differs from a use for the first he said that an Alien may purchase lands Alien Praerogative and a use at the Common law but he cannot retain them therefore the King shall have them by his Praerogative and a use is not a thing in privity but is an Antient inheritance at the Common law 2ly There is no confidence annexed to cestui que use or to the Feoffor but may be disposed of 3ly Things privity in Action may be given to the King Privity and a use is an inheritance in the nature of a Chattell 4ly A use is grantable over Privity and therefore may be given to the King and the meaning of the word lost in the Statute is to be intended that it may be lost for the difficulty of finding such subtile conveyances and not that the right was really lost Trust And for a trust it is but a new name given to a use and invented to Defraud the Statute of uses and a trust of a Copyhold is all one with another trust for it is the taking of the profits of the land and not the Estate in
really a Copyholder and cited Shellyes case and prayed Iudgement for the Defendant Roll chief Iustice said This Case differs from surrendring into the hands of Tenants for it is into the hands of the Steward out of Court Surrend Admission which is good and the Lords acceptance of his rent is an admission But Bacon doubted and therefore the rule was for the Case to be argued again the next Term and then by reason of sicknesse I was absent But that Term held not by reason of the Kings death Dunch against Smith Mich. 24 Car. Banc. Reg. DUnch brought an Action of Debt as Executor for arrerages of a rent charge due to the Testator against Dunch Arrest of Iudgement in Debt brought by an Executor an occupyer of the land out of which the rent was issuing and hath a verdict The Defendant moved in arrest of Iudgement and for Cause shewed that the Plaintiff doth not shew any title that the Defendant hath in the Land but only sayes generally that he entred into the Lands and so it appears not that he is to pay the rent To this the Councel on the other side answered that the Plaintiff being but an Executor cannot know the title and therefore is not bound to shew it Roll chief Iustice said there can be no Iudgement for the Declaration is too generall But Bacon Iustice held the Declaration good enough Antea Brown against Poyns Mich. 24 Car. Banc. Reg. THe Case was this a man made his last Will and made two Executors For a prohibition to repeal an administration Prohibition Appeal the Executors dye in the life of the Testator the Testator dyes having two Sisters the eldest Sister procures Administration the younger Sister moves for a Prohibition to repeal the Administration because she being in equal degree of king ought to have equall share of the Administration But the Court answered that a prohibition lies not for you may appeal if the Administration be not rightly granted Mich. 24 Car. Banc. Reg. A Processe issued out of this Court for a Cart and Horses that were cause of a mans death as a deodand 12. Iac. To stay processe for a deodand and it was moved that there hath been a generall pardon by Parliament since that time by which deodands were pardoned and therefore it was prayed the processe might be stayed General pardon The Court asked whether there be not an exception of deodands or the Almoners interest in the pardon The Councell answered there is not The Court demanded by what words in the pardon are deodands pardoned The Councel answered by the generall words The Court ordered thereupon it should be stayed till the Almoner be heard what he can say Mich. 24 Car. Banc. Reg. THe Court was moved for a habeas Corpus for one that was taken in Execution by the Sheriff and was afterwards set at liberty For a habeas corpus for one taken upon one Execution Audita querela and after that retaken upon the same Execution The Court answered take it but you are in the wrong way for you ought to bring your audita querela The King against Bray Mich. 24 Car. Banc. Reg. THe Court was moved to quash an Endictment of forcible entry made upon a Lessee for years upon the Statute of 21 Iac. To quash an Endictment of forcible entry The exceptions taken to it were 1. It doth not appear by the Endictment that the Lessee had any title to the Land at the time of the force committed for the force is supposed to be done before the lease commenced 2ly The lease is supposed to be a lease for so many years if I. S. shall so long live and it is not averred that I. S. was alive at the time of the forcible entry made Averment Roll chief Iustice cited the Lady Morlyes case that there ought to be a direct allegation of the life Therefore let it be quashed Mich. 24. Car. Banc. Reg. THe Court was moved to quash an Endictment of Assault and Battery of an overseer of the poor villae de A. in executing of his office The exceptions taken to it were To quash an Endictment for assaulting a Collector for the poor 1. That there is no such officer as an overseer of the poor villae but it ought to be parochiae but the Court said it was well enough as it was though it had been more proper the other way 2ly The Endictment is for the Assaulting and beating a Collector for the poor in executing his office whereas there is no such office appointed for any one particular man by the Law for the Statute is that there shall be two Collectors for the poor in every Parish and so the office is joynt and not several But the Court over-ruled this exception also 3ly It wants vi et Armis Vpon this exception the Court bid the Councel move it again Gill against Crosse Mich. 24 Car. Banc. Reg. THe Plaintiff brought an Action of Debt against two as Administrators upon fully administred pleaded issue was ioyned Speciall verdict in Debt against Executors and a speciall verdict was found to this effect viz. that one of the Administrators had fully administred and that the other Administrator had assets It was urged against the Verdict that the issue that was found is impertinent and impossible Verdict Iudgement and so there can be no judgement given upon it But the Court answered that the verdict is good yet if Iudgement should be given upon it the Iudgement would be ill and Nevills and Greenwoods case Hill 7. Car. in the Exchequer rot 1189. was cited and it was said that Iudgement may be against that Executor who hath assets and nil capiat per billam against the other that hath fully administred But take Iudgement at your peril Preston against Holmes Mich. 24 Car. Banc. Reg. Trin. or Mich. 24 Car. rot 2052. VPon a special verdict found the Case in effect was this Arguments upon a special verdict upon a Will one in see having one Son by one venter and another Son by a second venter did by his last Will devise all his Lands to his wise for life and after her death to I. his eldest Son and to his Heirs and the question was whether the Son shall take these Lands by the devise or as Heir at Law and so the devise to be of no effect to make him come to the Lands by purchase Christopher Turner held that the devise is void because it sayes no more than the Law says for if there had been no such devise Iohn his Heirs should have had the Land and he cited Paramour and Yardlves Case in the Comentaries and Hob. rep Counden and Clarks case But it is objected that in this case the Law speaks one thing and the devise another thing and so the devise says not the same thing To this I answer there is no difference concerning the alteration of the Estate
to the Sheriff for his appearance and therefore it was prayed that the party arrested might be discharged and that the bond given to the Sherif might be delivered up Roll the chief Iustice answered Endict the Bailies that made the Arrest or bring your Action against them if you please Discharge for we will not discharge the party arrested Bois against Cranfield Mich. 1650. Banc. sup rot Q. BOis as Executor to another brought an Action of Debt upon divers Obligations made to his Testator Debt upon divers Obligations by an Execution The Defendant pleaded that he did pay a lesser sum than is expressed in the Obligations to the Testator during his life and that he did accept there of in full satisfaction of the said Obligations To this plea the Plaintif demurred Roll Chief Iustice upon opening the matter said that the question here is whether the payment or the acceptance of the money paid in satisfaction be to be traversed And he held it was indifferent to traverse either of them Traverse but he said it was more proper to joyn issue upon the payment but the Court would advise It was then also said that if one pay money in satisfaction of an Obligation and the party to whom it is paid saith that he will receive it for another cause Satisfaction payment yet if he receive it it shall be judged to be paid in satisfaction of the Obligation for he must receive it upon such terms as the other will pay it Brian against Stone Mich. 1650. Banc. sup STone moves the Court for an Attachment against Brian and others For an Attachment for that he was arrested by a Latitat out of this Court in the County of Wilts and thence carried into the Town of Malborow and there arrested by a Serjeant of that Town by a writ out of that Corporation and the Plaintif procéeds there against him upon that writ and not upon the latitat by which he was first arrested which is a contempt to this Court. Attachment Habeas Corpus cum causa The Court ruled the party should have an Attachment nisi c. and also should have a Habeas Corpus cum causa Mich. 1650. Banc. sup THe Recorder of London moved for the Inhabitants of Bishopsgate against one Withringes For the setting a moderate fine upon one that submitted to a fine who for refusing to serve upon the Ward mote Enquest was indicted for his refusal in London and convicted and fined 20 l. the Defendant being committed for not paying his fine removed himself hither by a Habeas Corpus but now hath submitted himself to a fine it was therefore prayed he may be moderately fined here The Court thereupon fined him 20 l. Beal against VVyman Mich. 1650. Banc. sup Trin. 1649. rot 849. VPon these words of a will Question upon words of a Will viz. I give and bequeath one half of my lands to my wife after her death I give all my lands to the heirs males of any of my Sons or next of Kin Latch made these questions in the Case 1. Whether there were a good estate created by these words of the will 2ly Whether the estate were destroyed by the fine levied of the lands For the 1. he held that the heirs males of any of his Sons are words certain enough to create an estate for it is all one as if he had said to the heirs males of all his sons if they have heirs males or to those who have heirs males and the words or to the next of Kin are also certain enough being joyned with the precedent words and shall be meant to the next of Kin and their heirs males if his sons have no heirs males For in a Win if there be words to express the meaning of the Testator it is sufficient enough though the words be not apt And he cited 21 Rich. 2. Devise 27. and 8 Rep. 46 and said that the case in 30 Ass pl. 47. is the same with this in terminis And here is no contingent remainder but only a contingent devise there is no necessity for a particular estate to support it for it ariseth out of the estate of the Devisor yet if there were néed of a particular estate here to support the remainder here is a particular estate in the wife who by implication of the will doth take all the land during her life as it is 13 H. 7.29 H. 8. Br. Devise 48. Trin. 3 Ed. 6. Bendloes Plow Com. 521. Whelpdales case Pasch 25 Eliz Com. Ban. To the 2 point he spake not holding it not material Hales of Councel on the other side held that the wife had not an estate for life in all the land by implication of the will but only an estate for life in a moyety of the land and so there is no particular estate to support the contingent remainder which he held was in this case that it is not a contingent Devise as Latch urged for the remainder here depends by way of remainder and not as a contingent Devise And he held the Devise it self to be void admitting all the precedent matter alleged to be true 1. Because the devise is uncertain for the intent of the deviser doth not appear for it appears not what heir male shall have the land whether the heir male of his son or the heir male of his next of Kin for the words are disjunctive 41 42 Eliz. Com. Banc. in the Case of Tayler Sawyer land devised to a Mans Issue was adjudged a void devise for the incertainty of it And he held that the intent was that the heir male of his son should inherit before the heir male of the next of Kin otherwise the further off of Kin should have the land before the nearer of Kin. And he said that Hill 2. Car. Rot. 1288. Com. Banc. in Hunt and Fishers case the case at the Bar was adjudged in point Roll chief Iustice said That the intention of the Testator here is coeca sicca Intention and senceless and cannot be known Will. and we ought not to frame a sence upon the words of a Will where we cannot find out the Testators meaning Ierman Iustice held that the devise was not void but that the words are to be interpreted as they may stand with Law and as the words will bear Nicholas Iustice prima facie that the devise is void but yet it is questionable Ask Justice to the same intent Roll chief Iustice said that there is too much way usually given to ambiguous devises But let it be argued again the next Term. Parker against Cook Mich. 1650. Banc. sup Hill 23 Car. rot 660. THe Action was an Action of Trespass quare Clausum fregit Upon a Demurrer the question was whether a Copyhold were forfeited or not The Defendant pleaded a special plea of justification viz. That the Plaintif was a Copyholder to his Manor and that for
words of a will which were these I give all my free lands wheresoever to my Brother Iohn Sanders and his heirs upon condition that he suffer my wife to enjoy all my Freelands in Holford for life the Testator having only a portion of tithes of inheritance in Holford and no lands The question here was whether this portion of tithes shall be accompted free lands within the intent of the will and so the wife be to have them during her life Twisden held the tithes were not devised by the will to the Feme for if I devise my fee-simple lands to Iohn a Stile and his heirs tithes do not pass by this devise for tithes are a collateral thing arising out of land and not part of the land it self 42 Ed. 3. f. 13. 10 Iac. Moyle and Ewers case 31 Eliz. Perkins and Hyndes case In the will here they pass not for there are no words in the will to devise them nor can the words he so expounded and here are other lands devised to satisfie the words of the will A term for years hath more relation to land than tithes and a term could not have passed by the words of the will Next the second Clause doth not pass the tithes for there is no such thing as is expressed in it but if it should pass to the wise by implication yet it cannot pass to Iohn Sanders the Brother for there are neither expresse words nor any implication to devise this portion of tithes to him but the contrary rather is to be collected from the Will Wadham Windham on the other side answered that the Testator calls the tithes in Holford his free lands It is true generally that by the devise of lands tithes do not pass but in a will by the intent of the Devisor they may pass and the word land includes all real things in common intention and legal construction as Lutrels Case is 1 Mar. Bro. Tit. Elegit An Elegit may be of a rent and tithes have a nearer relation to land than rent have 2ly Here is an apparent intention to devise the tithes for he explains his meaning in his second clause of the Will that he intends tithes by the word lands 44 Eliz. Com. Banc. Gery against Gery the question there was what passed by the word rents whether lands passed The words were as to all my lands in Dale I devise my rents c. and here the matter comes in by a Proviso which enlarges the matter Trin. 3 Iac. Fitz. Williams case One devised all his goods Iewels and Plate excepting his lease in C There it was adjudged that all his other Leases passed 4 Ed. â— Br. grants 51. Another circumstance in the Will enforceth this construction viz. the word wheresoever which word expresseth the intent of the Devisor to be so otherwise that word will be idle and to no purpose Hob. rep Stukely and Butlers case It may also appear out of the body of the Will for it appears thereby that his Daughter was provided for in his will by his personal estateâ— and that the intention was to dispose of his lands to the Heir and his Copyhold lands which he had in Holford were surrendred at the time of the making of the Will and so the devise cannot refer to them and besides this is called free lands which distinguisheth them from Copyhold lands and so he prayed judgement for the Plaintif Roll chief Iustice There is a Condition annexed to the Devise Condition that his wife shall enjoy this land though the words in the Will are not very proper to erpress it but we must consider them as used in a Will not in a conveyance Nicholas Iustice said the Devisor himself calls them free-holds and this distinguisheth them from Copyhold lands Adjourned till Saturday following to be argued again Dowse against Masters Pasc 1651. Banc. sup DOwse brought an Action of Debt upon an Indebitatus Assumpsit against Masters for five pound Demurrer to a plea in Debt upon Indebitatus assumpsit in which the Defendant pleaded that he did deliver bils to the Plaintif to the value of 6 l. in which the Plaintif was indebted to him which bills the Plaintif did accept in full satisfaction the Plaintif replyed protestando that he was not indebted to the Defendant that he did not receive bills to the value of 6 l. in satisfaction Vpon this a Demurrer was joyned Roll chief Iustice said Plea the Plea of the Defendant is ill for he doth not say that he delivered the Bills in full satisfaction but that the Plaintif received them in full satisfaction which is not good for the Plaintifs receiving of the Bills must be as they were delivered and not other ways and that is not expressed Therefore let the Plaintif take his judgement nisi c. Ross against Lawrence Pasch 1651. Banc. sup ROss brought an Action of the Case against Lawrence for speaking these Welch words of him viz. Dedingues Will Rols in mudon Arrest of Iudgement in an Action upon the case for Welch words Englished which are in English William Ross hath forsworn himself upon Issue joyned and a verdict for the Plaintif the Defendant moved in Arrest of Iudgement that the words are not actionable as they are rendred in English and so the Action lies not Roll chief Iustice If the words sound in Welch that the Plaintif was perjured yet if the Plaintif do English them in English which doth not amount to perjury it is ill Case and an action will not lie for them Therefore let judgement be stayed Peck against Ingram Pasch 1651. Banc. sup PEck brought an Action upon the Case upon an Assumpsit and declares Arrest of Judgement in an action upon the case upon an Assumpsit that the Defendant in consideration that she the Plaintif would leave her Fathers house and come to the House of the Defendant in such a place did assume and promise unto her that he would mary her and that thereupon she did leave her Fathers House and did come to the Defendants House et obtulit se in maritagium conjungi and because he had not performed his promise Actio accrevit Vpon issue joyned and a verdict found for the Plaintif the Defendant moved in Arrest of Iudgement and took Exceptions that the Plaintif did not shew in her Declaration when she left her Fathers House and came to the Defendants house nor that she gave him any notice thereof Wild moved for judgement notwithstanding the Exceptions for he said though it be not expresly said that she gave the Defendant notice when she came to his House yet it is said quod obtulit se in maritagium conjungi which implies the Defendant had notice and besides here is no need of notice for the Assumpsit is that if she will come to the Defendants house he will marry her and it is not said that when she comes he will marry her so that he is bound by
the judgement so in this Action Iudgement for by this course the Plaintif shall gain his possession of the land and the Defendant cannot bring his writ of Error until the writ of Enquiry returned and the Iudgement perfected Error which it may be will never be for when the Plaintif hath gotten possession of the lands he will little regard the damages Therefore let the judgement be reversed Antea Elyott against Blague Trin. 1651. Banc. sup ELyott brought an Action upon the Case against Blague for speaking these words of him viz. Thou art a Bastard getting Rogue Arrest of Iudgement in an Act on for words and hadst a Bastard at Oxford and art a pocky rogue and for ought I know thou hast filled my Bed full of the French pox and no such pocky rogues shall lie with me Vpon not guilty pleaded and a Verdict found for the Plaintif it was moved in Arrest of Iudgement that the words were not actionable because some of them were adjectively spoken and others uncertain and some of them clearly not actionable But Twisden answered that if the words were taken together as they were spoken they were very scandalous and actionable and cited one Colyers and Lydyers case 1 Can To which the Court agreed and ruled the Plaintif to take his judgement except better cause should be shewn Custodes against Iinkes Trin. 1651 Banc. sup SErjeant Bernard moved to discharge an Order of Sessions made against a Feme Covert to keep a Grand child of hers To discharge an Order of Sessions Order of Sessions because a Feme Covert was not bound by such an Order Roll chief Iustice answered that her Husband is bound to keep his wifes Grandchild by the Statute but in regard that the Husband is not charged by the Order but the wife who is covert is only charged Therefore let the Order be quashed Trotman against Standard Trin. 1651. Banc. sup Trin. 1650. rot 1768. IN an Action upon the case a special verdict was found Special verdict in an action on the case upon which the case fell out to be this Two being seised of lands in Fée did make a charter of feoffment unto two others and to their heirs and in the deed was a letter of Attorney to enter into the lands in the name of the seoffors and make livery and seisin according to the effect of the deed and livery of seisin was made to one of the Feoffees by the Attorney in the absence of the other Feoffee The question was whether here were a good livery and seisin or not 2ly Whether the letter of Attorney was good or no in regard it had false latin in it for the letter of Attorney was made by two and the words of it are pro me in nomine meo to make livery which are words of the singular number whereas they ought to be of the plurall Hales as to the 2d question held the letter of Attorney good enough because the authority given to the Attorney proceeds from both the Feoffors and therefore the words shall be intended to be the words of both of them as spoken by them severally And he also argued that the letter of Attorney was well executed to both the Feoffees because it was by deed and he cited 15 E. 4 f. 18. and he said if the livery had been made by the Feoffor himself it had been good without question and there is no difference between that and our case because it is made according to the effect of the deed and the Feoffee who is present is Attorney for the Feoffee that is absent to receive livery for him and the effect of the letter of Attorney is executed although the words are not Cooks Lit. f. 5. and Hoxon and Polts case in the Exchequer 34 Eliz. Boltons case Livery made to the husband was held a good Livery to the wife also Latch of Councel on the other side made two questions 1. Whether here was a good authority 2ly Whether it was well executed For the first he argued that here was no authority given to the Attorney to enter into the lands in the name of both the Feoffors for the words are that he should enter in nomine meo which cannot comprehend both of them the words being in the singular number and he agreed that Livery made by the Feoffor himself to one in the name of both had been good but here the livery is by Attorney and an Attorney hath nothing but a bare authority given him which ought to be strictly pursued especially it being to passe away an Estate He also took exceptions to the special verdict and said that the tryal upon which the verdict was found was directed out of the Chancery to discover a fraud and the verdict finds nothing according to the direction and so it ought to be set a side besides the verdict in it self is incertain for it is of 300 Acres of land generally which is incertain and so the Plaintiff can have no Iudgement for the Declaration warrants not the verdict for the Declaration mentions Houses and Cottages besides the 300 Acres of land 2ly The verdict doth not find the date of the Indenture and the Title to the land is to commence a die datus Hales answered 1. It shall be intended the day of the date 2ly It shall take effect after the delivery if there be no day of the date expressed And to that exception to the verdict that there are not so many Acres conteined in it as are expressed in the Declaration he answered that the Iudgement shall go to all which is land in kind only and shall not extend to Houses and Cottages and there appears to be a residuum or surplusage Verdict Roll chief Iustice said that it is incertain by the verdict what lands are meant for there are 400 Acres of land and four messuages and four Cottages and 40 Acres of medow in the Declaration and so there appears to be a residuum besides the land found in the verdict which makes it to be incertain what is found And though it should be a verdict for part and be uncertain for the rest although the Plaintiff will relinquish his damages for the rest this will not help it for there must be two Iudgements and the verdict is ill as to that which is found yet he held that it might be good without relinquishing the damages at all because the verdict is good for so many Acres as are in the Declaration and it shall be intended that the Iury mistook the number of the Acres and intended by the verdict no more than the arrable land Ierman and Nicholas Iustices doubted whether there be a verdict at all because the Iury have not found the things conteyned in the Declaration Roll chief Iustice and Nicholas mutate opinione held the verdict good but said it would have béen otherwise upon a demurrer and it was said that if one declare for 40 l. and the
in London and the Bill was found against him But Roll chief Iustice answered It cannot be granted upon a motion Good behaviour but you must prefer Articles against him here upon Oath and then you may move for it and if there appear cause in the Articles it shall be granted Mich. 1651. Banc. sup THe Court was moved for a writ to swear one in the Office of a Maior For a Writ to swear one in the Office of a Maior of a Town to which he was elected for the Borough of Trevenny in Cornewall because the old Maior did not swear him in due time as he ought to do but did adjourn the Court before it was done Roll chief Iustice answered that there is no president to swear such an Officer yet ordered that notice should be given to the Town and presidents to be brought into Court if any were to warrant it Whitway against Pinsent Mich. 1651. Banc. sup Pasc 1651. rot 61. A Man made a lease of lands for years by deed Demurrer to a plea in Covenants and covenanted that the Lessée his Assigns should enjoy them during the Term the Lessor made the Defendant his Executor dyed The Lessee assigns over his Term a Stranger enters upon the Assignee the Assignee takes 40 l. in satisfaction for his being ejected of the Assignor and afterwards brings an Action of Covenant against the Executor of the Lessor the Defendant The Defendant pleads the acceptance of the 40 l. of the Assignor in satisfaction of the wrong done him in Bar of the Action and to this plea the Plaintiff demurred Bar. The question here was whether the Action of Covenant did lye against the Defendant since that the Plaintiff had received 40 l. of his Assignor in satisfaction Roll chief Iustice said that here is a double Covenant one of the Lessor and the other of the Assignor and therefore the party may have two Actions Action and therefore he is not here barred to bring this second Action though he have barred himself by the acceptance of the 40 l. from bringing an Action against his Assignor and the Defendant hath not pleaded that the 40 l. was given in satisfaction of both the Covenants for then it had been otherwayes Ierman Iustice to the same effect That they are several Covenants by several deeds and both the parties are severelly bound and satisfaction given by one of them is not the satisfaction of the other And he said if Lessee for years assign over his Term the Lessor having notice thereof and he accept the rent from the assignee he cannot demand the rent of the Lessee afterwards yet he may sue other Covenants conteined in the lease against him as for reparations or the like The rule was for the Plaintiff to take his Iudgement nisi Mich. 1651. Banc. sup SErjeant Glyn moved for a certiorari to remove an endictment of forcible entry that was once before removed hither For a certiorari to remove an endictment and after sent down by a procedendo because the Iustices below will not grant restitution Roll chief Iustice answered There is a plea put in and in such case it is not usual to grant a certiorari yet it may be that it may be granted therefore let the other side shew cause on Monday next why it should not be granted Cantrell against Stephens Mich 1651. Banc. sup CAntreli brought an Action upon the case against Stephens for stopping his way in a Meoow called Madbrook in the parish of Redriff in Kent Arrest of judgement for an Action upon the case for stopping a way upon not guilty pleaded and a verdict found for the Plaintiff It was moved in arrest of Iudgement that the Plaintiff as Lessee to the Haberdashers company of London claimed to have a way for them whereas they having let the land cannot have the way but the Lessée in possession 2ly The prescription is not rightly applyed for it ought to be for them to have a way pro tenentibus et occupatoribus suis which is not so here Twisden answered it shall be intended Tenants and Occupyers to the Haberdashers though it be not said suis Latch said that a prescription per que estate is good in an Action upon the Case because no land is claimed and Green on the same side said the exception taken was helped by the verdict Wild on the other side said that it doth not appear that the Tenant who brings the Action comes in by the Haberdashers who claim the way and so he cannot prescribe to have it Prescription and the prescription ought to be laid pro tenentibus subtenentibus which Roll chief Iustice denyed and said that it is laid that the Haberdashers were seised in Fée postea huc usque and so they have the Fée at the time and may prescribe but it had been better for the party to have shewed that he was their Tenant but it being after a verdict the question is whether it be not helped Vpon reading the Record Roll chief Iustice observed that it appeared not whose Occupyer and Tenant the Plaintiff is but only by way of argument but said the question is whether the verdict do help it and he inclyned it did not Verdict because the Action is brought by the Tenant who hath not entitled himself to the Action for he hath made only a title to the way in the Haberdashers Title but hath derived no Estate from them to himself At another day Roll chief Iustice said we must not take things by intendment and here is a failer in the very gist of the Action for the Plaintiff hath not entitled himself to the Action for he hath no interest for it appears not how he is Ocupyer of the land for he doth not say he is Ocupator suus and as he hath laid the Declaration the Company ought to have brought the Action Ierman Iustice to the same effect and said that upon a demurrer it had been cleerly naught and the verdict here doth not help it for no title appears for the Plaintiff and the verdict cannot give him that he had not before Nicholas and Ask Iustices to the same effect Roll If it had been Ocupator suus I doubt it would not make the Declaration good because it shews not by what title So The rule was nil capiat per billam nisi Tayler against Web. Mich. 1651. Banc. sup Hill 1650. rot 240. IN an ejectione firmae upon a lease for 7 years there was a special verdict found Special verdict in an ejectione firmae and the questions in the Case grew upon the words of a Will that were false orthography viz. I do make my Cosen Giles Bridges my Solle Ayeare and my Yexecutor meaning my sole Heir and Executor Powis of Councel with the Plaintiff held that the Will was good to make Giles Briges the Testators Heir and Executor notwithstanding the mis-writing of the words
and that by the Will the Land and personal Estate passed unto him for he said if by my Will I make one my Heir This is a devise to him of all my Lands in Fee for the Devisee is put in loco haeredis and shall be like an Heir by descent for he is haeres factus although he be not haeres natus Mich. 31 32 Eliz. rot 235 Godfreys Reports Hob. rep f. 34. b. Coundens case Hob. new edition 75. Spark against Burrell the very case in point adjudged 7 E. 6. Br. Done 44. and Devise 48. and in this Case the Devisee had annuities to pay and monies for Legacies which shews the intent of the Testator to be that he shall have his Lands and Goods neither shall the misspelling of the word Heir hurt the Will for the intent of the Testator shall be followed if it may be known as it may well be here Hob. f. 32.15 H. 7. f. 12. Cooks Lit. f. 323. Dyer 325. 2ly Misnaming in a Will shall not hurt the Will Dyer 323.21 Rich. 2. Fitzh devise 27.10 rep 57. 3ly False Latin shall not destroy deeds nor pleadings though it will abate writs a fortiori false English shall not destroy a Will 9 H. 7.16.10 rep Osborns case Hob. 227.10 rep 133. a. 9. H. 6.7 a. and here is only vitium scriptoriâ— and that cannot destroy a Will Hob. f. 162. Walkers case f. 104 104.9 rep 48. a. Dyer 17 Eliz. f. 342. Digbyes case Another reason is the word Heir is here written according to the pronunciation and sound of the word though it agree not in letters and H. that is left out is no letter but an asperte note and the language in England as it differs in time so it differs in place for men speak not nor write English in all parts of England alike and a Will in latin or greek is a good Will within the Statute so that it is not necessary for a Will to be good English and the Testator was bred in France and could neither write nor speak good English and his Will so much the rather is to be favoured And false English hath been allowed in a Bond viz. senteen for seventeen pounds 9. rep 48. a. much more may it be in a Will and so he prayed Iudgement for the Plaintiff Latch for the Defendant argued that the Will was not good he considered 2. points 1. When a man makes one his solle Ayeare and Yexecutor what construction the words shall have 2ly What Estate is conveyed by them And first he said that Hoberts Case cited by Powis was not to the purpose 1. Because it is not the principal case And 2ly It is but an opinion there and an Heir may be without land And for Counden and Clarks case that was cited as it was urged it is for me and not against me and there can be no authority cited that if one make a man his Heir that his lands are thereby conveyed to him in Fee simple But in our case there can be no certain intent of the Testator found out and the making of one his Heir in France where the Testator was bred according to the Civil Law there used is but to make him his Executor and so the Testator might mean it And if one in his Will say I make one of my Daughters my Heir and do not say of his Lands this shall not disinherit the other Daughters and if there should be any Estate conveyed here it cannot be but an Estate for life Brook Done 44.8 Jac. C. B. Inkersalls case 3ly The ill orthogrophy here makes the Will naught for a Will cannot be made good by conjectures Hob. 34. Mich. 23 Car. Robinsons case the Iudgement was reversed for writing the word Aeris insteed of aeris with a dipthongue Trin. 17 Car. C. B. rot 74. and in Skirret and Skinners case libis with a dash over put for libris was adjudged ill and in our case here are divers words miswritten And for the variation of our English dialect which is objected it is to no purpose because this will was lately made the dialect alters not in so short a time and the dialect of the County where the Will was made viz. Glocester Shire agrees not with the Will And Hill 6. Car. this Will came in dispute in the Court of wards and a decree there passed against the Will in this point The Court said the case is doubtful Will. because the Will doth not say I make him heir of my Land but generally my heir and Executor but the false writing hurts not a Will if the Testators mind may be found out Adjourned to be argued again Wood against Topham Mich. 1651 Banc. sup VVOod brought an Action of Trespasse upon the case quare filium baeredem rapuit et maritavit against Topham Arrest of judgement in an Action on the case upon not guilty pleaded and a verdidict found for the Plaintiff the Defendant moved in arrest of Iudgement and takes these exceptions to the Declaration 1. That the Plaintiff doth not say cujus maritagium ad ipsum pertinet 2ly That he doth not say that the Heir was within age and Maynard of Councel with the Defendant said that the exceptions are not to the writ but to the Declaration and the Action being a Trespasse to recover the Damages the Plaintiff ought to entitle himself to the mariage for the losse whereof he would recover damages for the Heir it may be is not Heir apparent to him and then is no mariage due to him and here is a special Declaration for the losse of the mariage Roll chief Iustice answered Writs Declaration the writs are good both wayes and so may the Declaration be either with those words or without them and he makes not the ground of his Action to be that the mariage belonged to him Common right but of Common right it doth belong to him and the words are used to be alleged only to increase the Damages and the ground of the Declaration is only quare filium suum haeredem rapuit and for this the Plaintiff ought to have his Iudgement Ierman Iustice differed and said the Plaintiff doth not shew he had any damage by the mariage it may be that he had been maryed before or was of full age so no cause of Action Nicholas Iustice as Roll and said that by the Law the mariage belongs to the Father and it may prove a dishonour to the family to have his son taken away and maryed without the Fathers consent Ask Iustice to the â—ams effect and so Iudgement was given for the Plaintiff nisi Antea Mich. 1651. Banc. sup THe Court was moved to mitigate fines Motion to mitigate fines for riots that were to be set upon rioters that were found guilty upon an information exhibited against them for the riotous cutting down of wood But Wild on the other side prayed there might be good fines set
for another man he had unwillingly committed a Trespass against the Plaintif in taking away 2 or 3 wheele-barroughs of Earth of the Plaintifs soil and therefore it was prayed that the matter might be referred to the Secondary to tax the damages and Costs for the Trespass which he was ready to pay that the proceedings might be stayed But Roll chief Iustice answered It cannot be but you may confess the Action Reference He le against Green Hill 1651. Banc. sup IN an Ejectione firmae a special Verdict was found upon which the Case fell out to be this A man being Lessee of a Manor for 199 years Special Verdict in an Ejectione firmae deviseth the Term to his wife for life with power to make such estates in as ample manner as he himself might have done during her life and the remainder in Tall to his Daughter and dies the Feme proves the Will and accepts of the Legacy and after makes a Lease for 99 years and dies and the daughter brings an Ejectione firmae against the Lessee of the Feme The question was whether this Lease made by the Feme were a good Lease or not Merifield argued that the Lease was not good after the death of the Feme because she having but an estate for life Lease and the Lease for 99 years being derived out of it when the estate for life ends the estate derived out of it must end also And 2ly If the Feme had any power to dispose of any part of the Term longer than for her life by the same reason she might have disposed of all of it which cannot be intended for the Testator did not mean that she should have power to destroy the Entayl made upon his Daughter And as to the Objection that she hath dissposed of but part of the Term and therefore hath not destroyed the Entayl I answer It matters not what she hath done but what she might have done for by the same reason that she disposed of part she might have disposed of the whole The rest of the Argument I could not hear Henage Finch on the other side argued That the Lease made by the Feme continues after her death because the Feme had a power given her to make such a Lease and by vertue of that power the Lease continues for the power given unto her relates to the Estates to be made by her and not to the continuance of her life And here the intent of the Testator is to be considered which was that his wife should have the power to dispose of all the Term if she would for he trusted her with it because she was his Wife and Mother of his Daughter to whom the Entayl was made and the very subject matter shews his intent to be so and because there is no other power expressed against this in any other part of the Will and the words that give her this power would be idle and trifling if they should receive any other Construction 2 Car. Banc. Reg. Danyel and Ogleys case and Gibs and Whites case 1 Car. nor does the assent of the Feme to the Legacy to have the Term for life destroy her power to make estates 2ly She hath well executed this power for the Iury have found that it is the Lease of the Feme 9 Iac. Suckham and Hawkins case a power given to an Executor may be executed by parts Roll chief Iustice held Lease the Lease was good for a Will ought to be so interpreted that all the parts of it may stand together and if the Feme here have not power to make this Lease the Clause of giving her this Lease is idle and the meaning is so without doubt the Feme hath the sole estate in Law in her and the power given here is but a restoring to her of that which she had before by the Law and her consenting to the Legacy doth not take away her power to make Estates And this limited power and the remainder to his daughter may stand together for it might be that the wife would not make such a lease and then the daughter should have had the land in tayl but if she dispose of it the daughter shall not have it Ierman as Roll. Nicholas Iustice held that the Feme could only dispose of the land during her life and that the Testators intent by the words was that the Feme should not be tyed to occupy the lands her self during her life but might dispose of them Ask as Nicholas that she can dispose of the lands only during her life for the power is only given during her life and this interpetation will make all parts of the Will stand together better than the other interpretation Adjourned Antea Dekins against Latham Hill 1651. Banc. sup Entred Hill 22 Car. rot 946. IN an ejectione firmae a special verdict was found Special verdict in an ejectione firmae upon which the Case fell out to be this One seised of lands covenanted to levy a fine to the use of himself and his wife for life and after he leased the lands for 21 years for 3 l. rent per annum by equal portions and after the death of I.S. to pay a gross sum of 125 l. by way of fine payable by 5 l. a year quarterly with a proviso in the Indenture that for default of payment of the rent or fine or for want of reparations it should be lawfull for the Lessor to re-enter After the Lessor levyes a fine and assigneth over his interest in the reversion The question here was whether the condition of entry be transferred over to the Assignee by the transferring over of the reversion Hales of councell with the Plaintiff held that the lease proceeds from the Husband only and not from the Baron and Feme and the condition is transferred over for the condition runs joyntly as well to the fine reserved as to the rent and is as it were a several condition in Law although it be comprised but in one clause and not several clauses and the condition as to the rent is transferred though not as to the fine In 19 E 4. f. 7. The law makes a several distribution of one praecipe and so may it do here of one condition and Rawlins case in the â— rep cited against this comes not to this case for there the question was of the suspension of a condition but here it is of the transferring over of a condition 2ly If it be but one condition yet it is well transferred by the Statute of 32 H. 8. C. â—4 an extinguishment in part is not extinguishment of all although a suspension of part be a suspension of all and the Grantee of the reversion shall have advantage of the condition because 1. He is within the words of the condition as to the condition 2ly The clause of re-entry is within the words of the Statute and Knights case objected comes not to this case for there
his guardian and therefore let the Iudgement be reversed nisi Fortune against Johnson Hill 1651. Banc. sup THe Court was moved for an attachment against Iohnson upon an affidavit For an attachment for putting one out of possession that he had ejected one out of possession that was put in by a habere facias possessionem and that in a very riotous manner and had imprisoned the party so put out of possession and others Windham on the other side by way of answer said that the party came into the land by virtue of an eign Iudgement and an extent upon it Roll chief Iustice answered here is title against title therefore take your course in law for we will make no rule in it Crosthwayt and the Hundred of Lowdon Hill 1651. Banc. sup CRosthwayt brought an Action upon the Statute of Winchester of robberyes Arrest of Iudgement in an Action upon the Statute of Winchester for robbery against the Hundred of Lowdon for being robbed of 160 l. and had a verdict against the Hundred It was moved in arrest of Iudgement that the Action upon the Statute did not lye for the party that brought it for it appears that he was not robbed but that the mony was taken out of a portmantle which was carryed by the postboy and that only the Plaintiffs hand was upon one end of the portmantle so that the post-boy was robbed and not the Plaintiff But Roll chief Iustice answered Robbery Possession there is no question but that this was a robbery of the Plaintiff and it is all one as where my Servant is robbed in my presence and there the goods shall be said to be in my possession and so is it here and therefore let Iudgement be entred nisi Tayler and Web. Hill 1651 Banc. sup THis case formerly argued at the Bar and broken on the Bench Special Verdict upon the words of a will and some opinion delivered in it was again moved by Maynard and argued by him And he said that by the Will no land passeth because lands are not mentioned in it neither is there any necessary implication that the Testator intended to devise his lands for the making one his Heir and enjoyning him to pay an annuity doth not convey the lands to him and the Will doth not say that he makes him his Heir of his lands but generally his Heir which by the civill Law may be of goods and for the enjoyning him to pay the annuity this may be out of other lands in consideration of the personal estate given unto him In Danyel and Vblies case a gift made by a Feme coparcener of her purparty of land did not convey the lands in Fée In Marshes case the Father gave his lands to his two Sons to be equally divided it was adjudged there that only an Estate for life passed and here is nothing at all expresly given In Gilbert and Withers case Mich. 20 Iac. It was adjudged that there ought not to be made such a construction of a Will as is not agreable to Law And this is only a logical Will by way of argument and not a grammatical Construction or Interpretation and positive Will Roll chief Iustice answered to make a construction of a Will where the intent of the Testator cannot be known is intentio caeca sicca but here although the words of the Will be not proper yet we may collect the Testators meaning to be by making of the party his Heir that he should have his lands and it is all one as if he had said Heir of his lands and here he not only makes him his Heir but his Executor also Will. and therefore if he shall not have his lands the word Heir is meerly nugatory and to no purpose for by being Executor only he shall have the goods and as it hath been observed he is in this case haeres factus though not natus Ierman Iustice to the same effect and said that the word Heir implyes two things 1. That he shall have the lands 2ly That he shall have them in Fee simple Nicholas and Ask Iustices concurred and so it was ruled that Iudgement should be given for Sir Iohn Bridges the Devisee nisi Lockoe against Palfriman Hill 1651 Banc. sup Hill 1651 rot 1002. VPon a special verdict found in an ejectione firmae Special verdict in an ejectione firmae the case fell out to be this Tenant for life the remainder to Baron and Feme and their Heirs Baron and Feme suffer a recovery The question was whether the Heirs of the Feme were bound by this recovery because the Feme being covert it was conceived she was not Tenant to the praecipe because it appears not she was examined and so nothing was recovered from her It was argued that this recovery did bind the Feme 1. because if a precipe be brought against one who hath nothing in the land the writ only is abatable Fitz. Tit. Droyt 29. Next an Estople with recompence excludes not only parties and privies but also strangers as it is in Shellyes case and 3 Iac. C. B. in Duke and Smiths case 15 E. 4 f. 28 In 43 Ed. 3. f. â—8 was the first mention of examination of a Feme upon a Recovery and she shall be intended to be examined here if it be requisite for it is not found she was not examined and in Br. Abridg. recovery in value 27 23 H. 8. It is held that a Feme Covert is barred by a Common recovery and this hath been the continual practice since that time and whereas it is objected that a colourable recovery doth not bind a Feme Covert it is answered that this is not a colourable recovery but a judicial matter of Record and is brought upon an original and there is an intended recompence to the Feme and to urge that there is no Tenant to the praecipe is an objection which reaches to the common practice of assurances and therefore not to be admitted and in time they might have counterpleaded the voucher but now they cannot avert this matter against the Record 19 E. 3. estople 9. and though the Feme be not examined yet she shall be bound by this recovery though in a fine it is otherwise where there is no recompence in value as here there is and in a fine the Iudge ex officio is bound to examine the Feme but not in a recovery nor is there any practice of it in Law 13 Ed. 3 Iudgement 29. A partition made by writ shall bind a Feme Covert because she hath a recompence so is it upon a partition made upon Record in Chancery And by the Barons surviving the Feme here the recompence both not survive to the Baron but shall go to the Heirs of the Feme Br. recovery in value 27 2 Iac. C. B. here is a reall Estate in the Baron and Feme Hales on the other side made the question to be whether by a recovery
of recital and not material and you have confessed the deceit by your demurrer and therefore let the Plaintiff have his Iudgement nisi Vpon which rule Baâ—ington at another day moved the matter again and urged that here was an assignment of papers mentioned which could not be for that it is a thing in Action which is not assignable nor can the Ordinance of Parliament give authority to assign a thing in Action Roll chief iustice Assignment The ordinance of Parliament doth give authority to assign the papers Latch the paper may be assigned Green The Action is brought for the deceit grounded upon the ordinance and it is not necessary for the Ordinance to name the Aldermens Christian names and these may be true bills though not subscribed which is the deceit here alleged Twisden on the other side said that the acquâ—ittance is in nature of a bill according to the intent of the Ordinance for it is not only an acquittance of discharge but to recover monies upon them and so the Defendant calls them and by the assignment the paper is assigned and the Action is grounded on the deceit and not upon the Statute Iudgement was given for the Plaintiff Burcher and Orchard Mich. 1652. Banc. sup BUrcher brought an Action upon the Case for words Arrest of judgement in an Action on the case for words against Orchard and his wife the Iury find that the Baron was guilty but that the Feme was not guilty Wadham Windham moved in arrest of Iudgement because that the Action is joynt and one of them is found not guilty and said it might have been otherwise if the Feme had been found gvilty and the Baron not guilty and cited 9 Ed. 4. f. 51. Yard on the other side said that the verdict hath made this exception good and if the Defendant would have taken any advantage of it he should have demurred to the Declaration Roll chief Iustice denyed the difference taken by Windham and said if any of the Defendants spake the words and be found guilty the Action will well lye and it is all one here as if the Defendants were two strangers the Action being joynt but the doubt is whether it being after a verdict this matter may be offered in arrest of Iudgement At another day Hales moved for Iudgement and said it was all one if any of the Defendants be found guilty as if both of them were found so and although it do appear by the Declaration that the Action could not be brought joyntly against them both because the wrongs are several and now one is found guilty and the other is acquitted 8 Ed. 4. f. 21. 11 H. 4. f. 5. 9 E. 4. f. 1. and damages are assessed against one only And now the verdict hath madei the Declaration good otherwise it had béen if both had been found guilty and entire damages given against both joyntly Latch on the other side said that the speaking of the words cannot be a joynt Act and therefore ought not to be so laid in one Declaration for they are severall Acts and severall offences as the words do proceed from them severally and this case is not like the case of a decies tantum nor the case of a joynt endictment against two for a joynt endictment shall be accompted as severall endictments and here if the Feme had been found culpable perchance it might have béen good because though the wise only speak actionable words yet the Action ought to be brought against the Husband and the Wife Roll chief Iustice The Declaration is not well laid for this cannot be a joynt speaking of the words by the Husband and Wife and therefore they ought not to be joyned in the Action therefore there ought to be several judgements and damages if you recover viz. One against the Husband another against the wife but here is a verdict found which helps it and this case is all one with the Case of 9 Ed. 4. for there the Declaration was not good as it is not here and here is not a verdict against both but only a discharge and he cited Rethorick and Chappels case where an Ejectment terrae haered is did not lie yet there by releasing of damages to the heir judgement was given for the land and here might have been a release of damages as to the wife if both had been found guilty but here in effect is a judgement but against one of the Defendants Ierman Nicholas and Ask Iustices to the same effect and so judgement was given for the Plaintif Luddington and White Mich. 1652. Banc. sup Mich. 1651. rot 458. LUddington brought an Action of debt upon a bill against White Demurâ—er to a plea in debt up on a Bill the Defendant pleaded that after the money became due he and the Plaintif did by parol submit to an award and that there was an award made that the Defendant should pay 8 l. to the Plaintif at such a house and thereupon the Plaintif should give him a general release and accordly he tendred the money to this plea the Plaintif demurred and for cause shewed that here is a submission by paroll pleaded after the day of payment expressed in the Bill which is not good being by paroll to discharge a debt due by specialty Discharge But Wild answered here were other things submitted besides this and that may make the submission good Roll chief Iustice I see not what authority you have for this Reference nor how it can be and 4 H. 6. if one be awarded before auditors to accompt this cannot be referred and here would be an inconvenience to take away a duty created by bond by paroll therefore let the Plaintif have his Iudgement Neve and Cross Mich. 1652. Banc. sup NEve brought an Action upon the case against Cross for charging him with felony Arrest of Judgement in an â—ction upon the Câ—seâ— in nature of a Conspiracy and causing a Constable to carry him before a Iustice of Peace and accusing him to the Iustice in these words viz. He did come to my door and set a Pistol to my Brest and demanded money of me and I for safegard of my life did give him what money he desired Vpon not guilty pleaded and a Verdict for the Plaintif it was moved by Fletcher of Lincolns Inn that the words were not actionable and therefore that the Plaintif ought not to have judgment and that for these reasons 1. Because there is but a matter of Trespass alleged in the words 2ly They are but argumentative and do not charge the Plaintif directly with felony and it may be the money demanded was due to the Defendant and the Iury have found all that which sounds to charge the party with felony against the Plaintif Twisden on the other side said that the words ought to be taken together and so they are actionable and ought not to be severed And the ground of the Action is for charging
mony and thereupon the Defendant moved to have the moniés out of Court Roll chief Iustice Peremptory The Plaintiff hath lost his mony â—y this verdict therefore let him shew cause why the Defendant should not have them for it is peremptory to the Plaintiff Franklin Mich. 1653. Banc. sup IN an Action of Accompt the Defendant was adjudged to accompt Motion for Merchants to be joyned to Auditors assigned to receive an accompt and Auditors were assigned The Court was moved that they would order to joyn some Merchants to the Attorneys on either side to help them to mannage the Accompt because the Attorneys were not skilfull in such businesses Roll chief Iustice We can make no rule for this but you may by consent advise with Merchants to assist you in drawing up the Accompts Mich. 1653. Banc. sup BY Roll chief Iustice One burned in the hand may be a Witness one that hath been burned in the hand for Felony may notwithstanding be a witness in a Cause for he is in a capacity to purchase Lands and his fault is purged by his punishment Townsend and Barker Mich. 1653. Banc. sup Trin. 1653. rot 743. TOwnsend brought an Action upon the Case against Barker Arrest of judgement in an action for words that had béen a Copartner with him in trade for speaking these words of him You are a cosening Knave and did cosen me of 1200 l. at one time and that was in making an accompt in the year 1648. Vpon a verdict for the Plaintiff it was moved in arrest of Iudgement that the words are not actionable because though they he spoken of a Tradesman yet they are not spoken of him in reference to his Trade but in reference to an Accompt and although by way of reduction and consequence they may reflect upon his honesty yet they are not actionable and though his reputation be impaired by speaking them yet he cannot be endicted for cosening in his Trade by reason of them because they are spoken of a singular and particular abuse and not of a general cosening used in his Trade and an Action upon the Case lies not for words which are only scandalous by way of reduction and if the words should hinder the party to get a Partner hereafter to trade with him yet he may use his Trade and so cannot be prejudiced nor are the words that he cheated him but that he cosened him which are not of so violent a construction Wild on the other side said that here is a Partnership which is necessary to the driving of a Trade and without which it cannot be so well driven and the Accompt is incident to all Partnerships and prayed for Iudgement Roll chief Iustice If the Copartnership continued the words were actionable without doubt for then they must be spoken of him in the way of his Trade Case but here the Partnership being ended makes the matter more considerable but yet as it is the words are scandalous and may hinder him from getting a Partner for the time to come and it may be he cannot mannage his Trade without a Partner and although an Accompt be a private thing yet the Plaintiff is disgraced by the speaking of the words and none will deal with a man that will cosen his own Partner and we must countenance Trade and Traffique and mens credits and the Accompt is not so collateral a thing to trade as Hales objects as is the hiring of a shop to trade in or the like German Iustice ad idem and said that Copartnership is necessary to support Trade and the keeping of a true Accompt is the principal thing between Partners Nicholas and Ask Iustices ad idem Judicium nisi pro querente Bird and Christopher Mich. 1653. Banc. sup IN this Case upon giving of an evidence in a Trespass and Ejectment Extinguishment of a Proviso in a Deed. it was said by Roll chief Iustice that if I do enfeoff I. S. with a Proviso contained in the Deed that it shall be lawfull for me to revoke this Feoffment and afterwards I levy a fine to I. S. of the same Land this is an extinguishment of the Proviso of revocation Olive and Tong. Mich. 1653. Banc. sup Trin. 1651. rot 1426. Vpon a special Verdict in an Action of Trespass and Ejectment Special Verdict in a Trespass and Ejectment the Case in effect was this One whose Sirname was Mills seised of gavelkind-Gavelkind-lands in Kent in fee by his last Will and Testament devised these Lands to Elizabeth his Daughter in tayl with a Proviso in the Will that if his Daughter Elizabeth did mary one of his own Sirname that then she should have the Lands in fee-simple Elizabeth maried one whose Sirname was Mill but commonly called and known by the name Mills also The question was whether she had maried one of such a Sirname whereâ—â— according to the Proviso in the Will she had a fee-simple in the Lands â—evised unto her or whether his Sirname should be accompted a distinct name from the Testators so that Elizabeth by the Will could only have an Estate in tayl in the Lands devised unto her It was argued first that the name Mill and Mills shall not be said to be one and the same name no more than if she had maried one of a clear differing Sirname in sound yet commonly called also Mills could she have been said to have maried one of his own Sirname and the Proviso here is not a particular pointing out of the person whom his Daughter should mary but a general limitation directing her to mary one of his own Sirname and this ought to have been punctually followed because the name was used to induce the affection of the Devisor to enlarge the estate given by him If he had devised his Land to his Daughter E. if she shall mary a Protestant or an Earl she must mary one that is really so and not one called or only reputed so And as to the objection that this construction would make contrariety in the Will which is not to be admitted this will not be if the Will be taken compositive as it is penned or together and not abstractive and taken to pieces and if it should not be intended that she should mary one who in truth was of his name there would be a contradiction in the Will and here is an Emphasis in the word Own which must be meant his real name and not of a reputative name Roll chief Iustice If a Iuror be retorned by the name of Mills and is sworn by the name of Mill shall this be a mistryal quasi non and the words found alike as Baxter and Backster At an other day the Case was put again by Hales and argued for the Plaintiff and he made divers points in the Case but I could not well hear him but the only point insisted on was the point formerly spoken to and the sum of his Argument was that we are in
find it if they see cause to the contrary and that in the case at the barr the Action might be as well grounded upon the scandal which grew to the party who was Endicted as upon the trouble which might have befallen him by reason of the preferring the bill against him Hellena Pasc 23 Car. B. r. AN Action upon the Case was brought for these words Arrest of Iudgement in an Action upon the Case Hellena is a great Witch and a Verdict found for the Plaintiff It was moved to stay Iudgement because the words were not Actionable for they did not shew that the Plaintiff had bewitched any thing or done any thing that brought her within the compass of the Statute 1. Jac. against Witch-Craft Iudgement was hereupon stayed VVilliamson against Henley Pasc 23 Car. Banc. Reg. Trin. 21 Car. rot 362. AN Action of Debt was brought upon an obligation Arrest of Iudgement in Debt upon an obligation the condition was that if the Defendant did sell the tithes in Ransom more that he should pay the Plaintiff such a sum of money but if he sold them not that then he should deliver an obligation to the Plaintiff for the payment of a certain sum of money therein expressed at a certain day therein limited and for non performance of the condition is the Acion brought The Plaintiff obtains a Verdict the Defendant moves in Arrest of Iudgement Time that he ought to have convenient time for doing of the things expressed in the condition and that it appears not by the Record that he had convenient time and so there is no breach of the condition But the Court held that the time between the date of the obligation and the bringing of the Action was a conveninent time and that there being a second thing to be performed in case the former were not done that therefore that former thing ought to be done in some reasonable time elce the party would be too much prejudiced by staying to have the second thing performed and therefore ruled that Iudgement should be entred without better matter should be shewed Savages Case Pasc 23 Car. B. R. SAvage was Endicted for forging and publishing of Letters of credence to gather money Error upon a Judgement upon an Endictment and was convicted and Iudgement given against him upon his own confession and 100 l. fine set upon him et quod capiatur Exceptions were taken to this Iudgement 1. That it did not appear wher he received any money by virtue of these counterfeit Letters nor at what time But the Court answered that the substance of the offence for which he was Endicted was Endictment the forging and publishing of the Letters and not the collecting of the money for though he had not collected a penny yet the Endictment was good A second exception was that the Endictment did not say quod Counterfecit falso But the Court held that the word Counterfecit necessarily implyed in it the word falso and so not material whether falso were expressed or omitted 3ly It was objected that the party was committed before he was convicted But to this the Court answered Conviction that he was committed upon his own confession which is a conviction in Law and the Iudgement held good and affirmed Needler and Guest Pasc 23 Car. Banc. Reg. Entred Trin 1649. rot NEedler brings an Action of Covenant against Guest Artest of Iudgement in a breach of Covenant upon Articles amongst which one was to allow such a sum of money to an under Clerk in the six Clerks Office by the sheet for every quire of paper he should writein copying and engrossing of bills answers c. as was expressed in the said Articles and upon this Needler obtains a verdict against Guest In Arrest of Iudgement divers exceptions were taken and over-ruled but one was insisted upon which was this that there was more found in the breach of the Covenant assigned then was contained in the Covenant it self for it was found that he had not payed for 72 sheets which was 5 quire and a half and so damages were given for more than ought to be Breach for the Covenant was to pay so much the quire and mentions not any half Damages and for this the Iudgement was stayed for the Court said that the Law would not supply a casus omissus to bring it within the Covenant to ground a breach thereupon Supply what ever the intent of the partyes was that were parties to the Articles VVhitley and Fawsett Pasc 23 Car. Banc. reg VVHitley brings an Action of Trover Action of Proven for distraining selling his Cattel and Conversion against Fawsett for taking his Cattel by way of distress and selling them by virtue of a warrant of Commissioners of Sewers for not paying of a tax set by them towards the reparation of Sea walls the Defendant pleads all the speciall matter by way of justification the Plaintiff demurrs to this Plea and upon the demurrer takes these exceptions to it 1. To the setting forth of the Commission in that he shews not that three of the Commissioners were of the quorum The 2d exception was that in his Plea he had not sâ—t forth the Authority of the Commissioners To that the Court answered it was not necessary 3ly That the Plea was but argumentative which makes it naught 4ly It appears that there are 800. Acres of Land which are in the hands of the King Tax which are not taxed as by law they ought and so the tax is unjust because by the not taxing of them a greater burden was laid upon the rest of the Land than of right ought to be and this the Court held a good exception and said that the Kings Lands are taxable by the Statute 5ly The Statute is not pleaded as it ought to be 6ly It doth not expresse that Whitley in whose occupation the Lands are that are taxed is the Assignee to Lynsee the owner of the Lands but he may be a meer stranger and so not taxable nor his beasts to be sold 7ly It is not set forth that he shewed his warrant before he distrained as he ought to do Distresse In this case the Court first said that one may distrain and sell the Cattel of the owner of the Land taxed or his Assignee for non payment thereof Sale but doubted whether a strangers Cattel might be distrained and sold Roll Iustice took these Exceptions to the Plea 1. Plea That the Plea did not set forth the limits of the Commission as it ought to do and was therefore ill 2ly He said the Plea ought to have shewed that three of the Commissioners were of the quorum 3ly That it did not appear by the Plea that the Lands taxed where the distresse was made are within the Level to be taxed by the Commissioners 4ly The Tax is of the Land of such an one and his Assignes and this is
the goods were found by the Baron and Feme and were converted ad usum suum whereas it ought to be in the plural number to wit ad usum eorum or ad usum of Pew and his wife for as it was it supposed the Conversion to be made only by the Husband which is contrary to the Action it self which is brought against both Upon this Iudgement was stayed till the other should move Long and Bennet 23 Car. Banc. Reg. LOng brings an Action upon the Case against Bennet and declares that he would not suffer him to take unum Acrum ligni which he had sold to him in such a place Arrest of Iudgement in an Action upon the Case After a Verdict for the Plaintiff it was moved in Arrest of Iudgement that the Declaration ought to have been unum Acrum bosci and not ligni for that was uncertain The Court said they would Advise of the exception Declaration because it was in an Action of the Case The same Term Iudgement was given because Damages only were to be recovered and the words used were but inducements to describe the thing for which Damages only were demanded yet it might have been more properly expressed Barker and Martyn Pasc 23 Car. Banc. Reg. THe Plaintiff brings an Action of Trespasse Arrest of Iudgement in an Actâ—on of Trespass and declares against the Defendant for breaking his house and taking away quinque Instrumenta ferrea Anglice Fetters and a verdict was for the Plaintiff It was moved in Arrest of Iudgement that the word Instrumentum is not a word that signifies Fetters but that it is so general a word that it may expresse any other thing as well and that the Anglice joyned with it to interpret what it means cannot help it because there is a proper Latin word which might and ought to have been used to expresse Fetters by Rolle Iustice said that by the Statute all pleadings ought to be in Latine Pleadings and every particular thing therein ought to be expressed by a Latin word if there be a proper Latin word for it as here there is and therefore the proper Latin word being not used but another which cannot signifie the thing the Anglice doth no good but part of the Declaration shall be judged to be in English and so it cannot be good And judgement thereupon was stayed till the other sould move Curtice and Columbine Pasc 23. Car. Banc. Reg. Mich. 22 Car. rot 433. CUrtice brings an Action upon the Case against Columbine upon an Assumpsit by paroll to find meat drink lodging Error to reverse a Iudgement in an Action upon an Assumpsiâ—â— c. for the Plaintiff and to teach him the trade of a mercer This agreemet was afterwards by consent of both partyes put into writing Vpon the tryal the Plaintiff obteins a Verdict upon the paroll agreement and hath Iudgement thereupon The Defendant brings his Writ of Error in this Court and Assignes for Error that there was no Assumpsit declared upon or proved sufficient to warrant the Verdict and Iudgement because that by reducing the Agreement to writing the paroll agreement became ipso facto void and so no Action could be brought upon it but it ought to have been brought upon the Agreement expressed in the deed and the issue ought to have been joyned upon that and not upon the verball Agreement which is void The rule of Court was to shew cause why Iudgement should not be reversed Barker and Martin Pasc 23 Car. B. R. BArker brings an Action of Trespass for an Assault and Battery against Martin simul cum Arrest of Iudgement in Trespasse c. and hath a Verdict against him It was moved in Arrest of Iudgement that the Action ought to have been brought particularly against the other Trespassors together with the Defendant and not against the Defendant in particular with a general simul cum against the rest which is uncertain and signifies nothing against the rest and the rather because the Action is commenced by bill and not by original although it could not be good though it were by original but it was said by Rolle Iustice that it may be the Plaintiff could not Arrest the other Trespassors Trespasse and that he will do it when he can and that he may well proceed against them at divers times as he can take them but that whensoever he shall have had satisfaction for the Trespass done him from any one of them he cannot proceed against any of the rest and it was ruled that Iudgement should be entred Cook and Allen. Pasc 23 Car. Banc. Reg. A Iudgement given in an inferior Court was reversed in this Court Iudgement reversed because the Venire was ill inferior Court Common pleas because the Venire was Venire facias c. and did not shew from what place the Venire should bee which by Rolle Iustice ought to have been expressed at large it being in an inferior Court and not with an c. although the use of the Common pleas be to make the Venire short with an c. The King and Holland Entred 16 Car. Argued Pasc 23 Car. Banc. Reg. THe case was in effect this An argument upon a special Veâ—dict A Copyhold was surrendred to I. S. in trust that Holland an Alien should take the profits thereof to his own use and benefit upon this an inquisition was taken for the King and this matter found whereupon the lands were seised into the Kings hands and upon a tryall concerning these lands a special Verdict was found comprising the aforesaid matter The case was argued against the Kings Title by Mountague of the Middle Temple and for the Kings title by Hales of Lincolnes Inn. The substance of Mountagues Argument was 1. To consider the nature of the trust 2. The nature of the land out of which the trust was raised and for the first he held because it was a trust for an Alien to take the profits of the land and in that the Alien had no estate in the land therefore the King could not have it as he might have had the land if the Alien had had any Estate in it and he said that this trust was a thing only in Action and lies in privity and not to be seised upon by another and said a Villein was a parallel Person in law to an Alien in respect of purchasing of lands and had a Copihold been surrendred thus in trust for a Villein the Lord should not have seised it and this is but a trust not Executed which is in the nature of a use at the Common law and not as it is now by the Statute besides this trust is raised out of Copyhold lands and therefore the King cannot seise the lands which the Alien hath not for if he should the Lord of whom the land is held would be preiudiced and he cited Beverlyes case 4. rep 126 and a case in 23 Eliz
the land and the King shall have it And to that which is said that the King cannot be a Copyholder it is not so clear for I conceive the contrary for a surrender of a Copyhold to him is good and of a use too and he cited these books 9 H 6. fol. 25.20 B. 3. f. 3.11 rep 91. Rolle Iustice said that a Trustee or cestuy que trust cannot take the profits of the land Cestuy que trust Equity Outlawry Law Equity but hath only his remedy in equity for the Estate in the land is only in the party trusted and the King shall not have the profits of the land upon an Out-lawry against the cestuy que use or cestuy que trust And Law and Equity ought not to be confounded therefore if the King hath equity for a thing he ought not to sue for it at the Common law so is it in this case at the bar Adjourned Chapel and Drew 23 Car. Banc. Reg. Hill 11 Car. rot 921. IN this case the party being attainted of felony Exception to a pardon for Felony Pardon pleaded his Charter of Pardon and Claims thereby to be restored to his Goods and Chattels forfeited to the King by the felony and the Question was whether as the Pardon was penned he should be restored or no the words of the Pardon upon which the Question grew were these pardonavit remisit relaxavit and it was held that he was not by these words to be restored to his Goods and Chattels for the words do not amount to a Surrender in case of a ommon person much less in case of the King and there ought to have been the word restituit Roll Iustice said this Pardon was drawn by Noy Attorny General and was too short Felony Tryal and it was said by him that if one be committed to the Gaol for one felony the Iustices may enquire and try the party for another felony for which he was not committed Tylers Case Trin. 23 Car. Banc. Reg. AN action of Debt was brought against Tyler upon an Obligation to stand to an Award Demurrer to a Replication and the Plaintiff declares of an Arbitrement made the 28th day of May in such a year ready to be delivered up the nine and twentyeth day of May in the same year The Defendant pleads nullum Arbitrium The Plaintiff replies that the Award was made by the Vmpire the 28th of May ready to be delivered up upon the same 28th day of May and to this replication the Defendant demurs and shews for cause that the Plaintiff had set forth double matter one in his Declaration and the other in his Replication for the Award set forth in the Declaration and that set forth in the Replication cannot be intended to be one and the same But Roll Iustice answered that the Issue to be tryed is not to be taken upon the day of the Award made and therefore it requires no answer Demmurres and so cannot be double and one ought not to demur for the doubleness of the matter upon a thing upon which no Issue can be taken and â—â—led better matter should be shewn or else Iudgement should be given for the Plaintiff Estwick and the City of London Trin. 23 Car. Banc. Reg. THe Case of Estwick and the City of London was again argued by Serjeant Glynn for the City Argument in the Case of the VVrit of Restitution to a Common-Councel-mans place Restitution Custome in his Argument he insisted upon three particulars why Estwick could not be restored to his place of a common-Councel-man 1. That a common-Councel-man may be removed or suspended from his place at pleasure by the custome of the City 2ly That he cannot be restored by Law 3ly No restitution can be in this case as it now stands First the custom to remove a common-Councel-man is good for it first began by agreement and such a custome is good at the common law much more here and it is not an unreasonable custome although it may seem so prima facie like as it is in the case of a Lord that feiseth the Lands of his Villein and in the case of a Copyholder that for feiteth his Estate by the felling of Timber A second reason is it agrees well with the nature and condition of the office of a common-Councel-man to be subject to this Custome Tryal and we know that many things shall be tryed by Custome contrary to the course of the common law 3ly We see that the order of the Parliament is a rule to try matters concerning their Members and so it is here in the Citie to try their Members 4ly If it should not be so it would prove destructive to the City by waiting till such an offender might be removed by a course in Law which is far more tedious than this customary way To the second point he said that by Law there can be no restitution to this office and this is proved by the very nature of the Writ of Restitution which is to restore the party to a freehold or some other matter of profit neither of which can be in our case and a writ of Restitution is to restore one to a possession where one may not be restored by an ordinary way neither doth the Statute of Magna charta extend to our case for a common-Councel-mans place is merely grounded upon the custome of the City and not upon the Common law and he said there are three grounds for a Writ of Restitution 1. A contempt to the King 2ly A hurt to the Common-wealth 3ly Particular dammage to the party but none of these is in our cause and therefore there is no cause for a Writ of Restitution The case of Sir Iames Baggs having a Writ of Restitution was because he was deprived of his Trade and Freedom Constable Church warwarden free-hold and our case differs from the case of a Constable or a Church warden or any case that can be cited for a Church warden is an officer in relation to the Common wealth for the execution of Iustice wherof the Common law takes notice and likewise a Constable is a known Officer to minister Iustice in relation to the publique Recorder so is it of a Recorder of a Corporation and so they all differ from our case For authority to this point in 17. Iac. but moved first 16 Iac. Warren a common-Councel-man of Coventry was denyed upon the retorn of his Writ to be restored and our case and retorn is more strong against the Plaintiff and Burman a Gentleman of one of the Inne of Court being expelled could not be restored by a Writ of Restitution and lately a common-Councel-man was removed for not taking the Protestation For the third point whether upon the Writ it self as this case is there can be any restitution made I conceive not because it is directed to the Maior and Commonalty and Citizens of the City of London and so
E. s Brook Covenant 4. was cited Next the Plea doth not say that the Armed men with Prince Rupert were Aliens or Enemies of the King Allen. Enemy but only that Prince Rupert was so But to this exception Roll Iustice answered that they shall be so intended if they be his Army with which he invaded the Land Plea Another exception was taken that the Plea gives no answer at all for one Quarters rent demanded which incurred after the time that he was kept out by Prince Rupert The Councel for the Defendant in defence of the Plea urged that it was not necessary to aver that the Army with Prince Rupert were Aliens and cited 3 H. 6. 61. and the Councel took a difference between an Enemy and a Rebel Rebel and though in the case of a Rebellion this might not be a good Plea yet in case of an Invasion he conceived it was Remedy because he could have no remedy against the party and resembled this case to cases of like nature cited out of 9 E. 3. 7. 40 E. 3 6. 33 H. 6. 1. VVaste and said that where waste is done in the Lands let for years by one again whom the Lessee can have no remedy over there the Lessée for years is not chargeable for the waste except he be bound by a particular Covenant to keep the Lands let without waste Also by the Law of Reason it seems the Defendant in our case ought not to be charged with the rent because he could not enjoy that that was let to him and it was no fault of his own that he could not Civil law Canon Moral Innundation and the Civil-law and Canon-law and Moral Authors do confirm this and Dyer 56. 11. Ass 13. were cited and it was said there is no difference between an innundation and this invasion and had the Lands been surrounded by water the Lessee should not have been chargeable for the rent during that time neither as I conceive shall he be here Next consider the nature of the reservation 10. Rep. 1 28. Rent Payment A rent is not to be paid untill it may be intended that the Lessee might have received the profit of the thing for which the rent is to be paid 27 E. 3.81 8 H. 4.6 Fitzh Execution 146.9 E. 3.16 neither by the Martial law is the Defendant chargeable Martial Law Law of Nature Covenant and that Law is the Law of Nature as well as of Nations But Roll Iustice answered that the Plea was not good for he hath not pleaded that the Army were Aliens and unknown as he ought to have done and the pleading that it was hostilis exercitus makes not the Plea more certain than before and if the Tenant for years covenant to pay rent though the Lands let him be surrounded with water yet he is chargeable with the rent much more here Therefore let the Plaintiff take his Iudgement Fremling and Clutherbook Mich. 23 Car. Banc. Reg. FRemling and his Wise Arest of Judgment in Trover and Conversion Executrix of A. B. bring an Action of Trover and Conversion against Clutherbook for Goods of the Testators found and converted by the Defendant and obtained a verdict against him The Defendant moved in arrest of Iudgement and took these Exceptions 1. That the Declaration was of a joynt possession of Goods of the Husband and Wife and dammages are given to the Husband and Wife whereas the Goods properly belong to the Wife only as an Executrix and not to the Husband and Wife Possession 2ly It doth not set forth how the Feme came to the possession of the Goods But to this Roll Iustice answered that the possession of the Wife Dammages as Executrix was also the possession of her Husband and that the dammages recovered shall be to the estate of the Testatour and so may concern them both And for the second exception this being a possessary Action only it is not necessary to shew how the possession of the Goods was gained Stayed till the other should move Parmiter and Cressy Mich. 23 Car. Banc. Reg. PArmiter brings an Action upon the case upon an Assumpsit and declares Arest of Iudgment in an Indebitatus Astumpsit that the Defendant in consideration that the Plaintiff had sold and delivered unto him such a number of pieces of Stuffs the Defenant did assume and promise to the Plaintiff to deliver unto him the value of the Stuffs in such Pipes of Wine lying in Bradgates Cellar in London as the Plaintiff should make choise of and for not performing the same brings this Action The Plaintiff obtains a verdict The Defendant moves in arrest of Iudgement and shews these causes 1. That the Plaintiff doth not aver in his Declaration that he made any election of the Pipes of Wine Averment and before such election the Defendant was not bound to deliver them nay it was impossible for him to perform the agreement before the election 2ly Election The Plaintiff doth not set forth that he made his election where the Wine was which he ought to have done because of the insupportableness of the commodity to be brought to him to make his choice The Court held that here ought to be a special request made to deliver the Wines Request special because it is upon a Contract and an Action of Debt lies not for them and thereupon arrested the Iudgement till the Plaintiff should move The same Term Iudgement was given against the Plaintiff Quod nil capiat per billam Mich. 23 Car. Banc. Reg. THe Plaintiff brings an Action of the Case against the Defendant Arest of Iudgment in an action upon the Case forwords Words Tryal False Doctria for speaking these words against him being a Minister He is an Adulterer Whoremaster Drunkard a common Swearer and a Preacher of false Doctrine The Plaintiff hath a Verdict The Defendant moved in arrest of Iudgement that the words were not actionable because the matter expressed by them is merely Ecclesiastical and not tryable at the Common law and it was said that a man may preach false Doctrine and not be punished for it if he be not a beneficed man and it doth not appear here Heresie that the Plaintiff had any living and besides it is not said he was a Preacher of heretical Doctrine but of false Doctrine which words are more ambiguous The judgement was stayed till the Plaintiff should move Mack and Cubitt Mich. 23 Car. Banc. Reg. Pasc 23 Car. rot Q. MAck brought an Action upon the case against Cubitt for speaking these words of him Arest of Iudgment in an action upon the Case for words You are a branded Rogue and have held up your hand at the Bar VVords and deserve to be hanged and shall be hanged The Plaintiff hath a Verdict The Defendant moves in arrest of Iudgement that the words were not actionable for they are all but words
That the law doth take notice of an Arch-deacon being a publique Ordinary and therefore it is not needfull to expresse that the letters were granted per Archidiaconum of such a place Ordinarium illius loci or cui administratio pertinuit but otherwise it were if they were granted within a peculiar jurisdiction Therefore he ordered to shew better matter or elce Iudgement should be given for the Plaintiff Eeles and Lambert Mich. 23 Car. Benc Reg. vid. antea THe Case between Eeles and Lambert was again moved Argument up on a speciall verdict which upon a speciall verdict found was this Sir Molton Lambert makes a lease of certain lands to Eeles for 21 years by deed and Covenants for himself his Executors Administrators and Assigns that the lessee shall peaceably and quietly enjoy the lands let during all the Term the Lessor makes his Will and thereby makes Lambert the Defendant his Executor and dyes and by the Will divers goods in specie are devised to sundry persons Lambert the Executor delivers the goods bequeathed to the Legatees Eeles is ousted of the lands by I. S. and thereupon brings an Action of Covenant against Lambert the Executor who pleads fully administred The question was whether the paying of these legacies by the Executor were a devastavit Devastavit and so the Executor to be charged de bonis propriis to satisfie the Covenant broken or no Green of Council with the Plaintiff argues that it was a devastavit notwithstanding that the devise was of goods in specie and that the Executor had only delivered them because that the Legatees had no property in the goods bequeathed them Property before the Executor had delivered them no more than if they had never been devised and cited 2 H. 6. f. 16. and Cooks Lit. 111. and he said the finding of the Covenant broken was nothing to the purpose and he said it was a Devastavit because it shall be intended that the Executor might know of the Covenant made by the Testator which he was bound also to keep or else to satisfie for the breach of it Covenant and the contingency whether the Covenant would be broken or no makes no difference in the Case for if it should it would prove mischievous in destruction of Covenants which are to be accompted of as Debts Doct. Stud. lib. 2. C. 10. Dyer f. 324. Hob. â— 363 397. But it may be objected that if this should be a Devastavit then Legacies could not be paid which would be dangerous to Executors by reason of being lyable to sutes for them Executors 21 E. 4 f. 21. Brook Tit. Proces S. 10. To tâ—is I answer It may be dangerous yet it is not to the purpose for an Executor should consider of such dangers when he takes upon him an Executorship and take notice of them and he is not compellable to pay Legacies and the Law will not protect him if he pay them against Law Hob. 246. and if the Court Christian endeavour to compel him he may have a Prohibition Prohibition 3ly The Executor peradventure might conceive that there would be Assets afterwards and in that consideration did pay the Legacies and if the 5 Rep. Green and Harisons case and 15 Iac. Robsons case be objected I answer this Case differs from them for here the Question is betwéen Legacies and Debts and there between one Debt and another to wit betwéen a Debt of a higher nature and a Debt of a lower nature Hales for the Defendant argued that it was no Devastavit 1. He agrées Property that the Legatees have no property in the Goods by the devise 2ly If the Covenant had béen broken when the Legacies were paid it would have been a Devastavit 3ly He held that the matter is as well found in the special verdict as it might have béen pleaded and not put at all to the Iury to find The Question here is whether the administration of the Goods before the Covenant broken be good after it is broken and there is good matter before the Court found in the special verdict though it might have been found better The first Argument I will draw from the nature of that upon which the Action is founded namely the Covenant The Action depends partly upon the Déed of Covenant partly upon the breach of it and here is no ground of Action at the time when the administration of the Goods was made and Harisons case cannot be avoided for a Statute is a present duty Duty Star Obligation and ought to be paid before an Obligation Robsons case 14. 15 Iac. And it is as agréeable to Law to pay a Legacy as a Debt upon a Covenant and the mischief to the Lessee in our case is not so material as the mischief may be on the Executors part it is not materially objected that he might take security Security for he cannot compel it For the Objection that our Law takes notice of a Legacy I answer that the Law takes notice of a Legacy as to give an interest in it to the Legatee Interest although he may not take it without the Executors consent 2ly It takes notice of it as remediable by the Law of the Kingdom though not by the Common-law and therefore consider the Statute 21 H. 8. of Administrations Common law Civil law and the Common-law is Iudge of the Statute concerning Administration and not the Spiritual-law Hill 17 Iac. Hinson Buttons Case The Common-law gives not a remedy fora Legacy Legacy but the Spiritual-Court is supported by the Common-law to do it and by the antient Common-law there was remedy to recover a Legacy 2 Rich. 3. f. 14. Glanv lib 7. C. 6.7 and the power of the Ecclesiastical Court is derived from the Common-law and the Common-law will take notice of a compulsary way in the Ecclesiastical-Court to pay a Legacy And the payment in our case is executed and now the Law takes notice of it because the Defendant was compellable to it Pâ—omise If an Executor promise to pay a Legacy an Action upon the case will lye against him if he do not pay it Roll Iustice the Testator may defeat all Covenants by this means and Greens reason is not answered which is the great doubt in the case It was Necton Sharps case 38 Eliz. that Legacies ought to be paid conditionally viz. to be restored if the Covenant should be broken When you argue again argue to this point Bacon Iustice cited a Case 32 Eliz. in the Exchequer against the opinion of Roll and said if the Legacies should not be paid it might be a loss to the Common-wealth for it may be the Goods will perish with kéeping them and the keeping of them may be a charge to the Executor and no body shall have any benefit of them for they may cost more to keep than they are worth and a Devastavit lies not against an Executor of
assignment is of the debt of this man due to the Bankrupt be it more or be it lesse and hath no reference to the accompt and reckoning between them so the Assignment is good though it agree not in the sum with what is justly due and the issue is upon the Assumpsit Issue Admittance and not upon the Assignment for the Assignment is admitted by the Defendant and so not material whether it be an Assignment of the true sum or not Iudgement was given for the Plaintiff Bruer and Sowthwell Mich. 23 Car. Banc. Reg. THe Plaintiff in this Case moved again for judgement Arrest of Iudgement in an Action upon the case upon an Assumpsit notwithstanding what had been formerly spoken to arrest it for though the word discomputando in the Declaration be insensible yet there is enough in the declaration to ground the Action and that is the breach of the Assumpsit assigned to deliver the Currants bought of the Defendant and the word discounting shall not hurt it Bacon Iustice was of the same opinion But Roll Iustice said Assumpsit Contract all the bargain is here set forth upon which the Assumpsit was made and if the bargain be ill the Assumpsit is not good Hales of Councell with the Plaintiff said if part of the bargain be insensible and part not yet a good Assumpsit may be grounded upon that part which is good But Roll said the bargain here is intire and if part of it be not good it is all naught yet he said if part of a bargain be good and part void yet an Action may be brought upon it The rule was That it should be argued again on both parts Seaman against Edwards Mich. 23 Car. Banc. Reg. Trin. 23 Car. rot 920. SEaman brings an Action against Edwards Demurrer to a plea pleaded by an Executor Plea Executor and declares against him as Executor of I. S. whereas the truth was that I. S. made 3 others Executors and not the Defendant The Defendant pleads that he is not the same person named in the Will To this plea the Plaintiff demurs and for cause shews that he may be an Executor de son tort demesne though he be not named in the Will and so may be chargeable and therefore he ought to have pleaded ne unques Administred come Executor and of this opinion was the Court and ordered the Defendant to shew cause why Iudgement should not be given against him Iudgement was given for the Plaintiff Dod against Eaton Mich. 23 Car. Banc. Reg. DOd brings an Action upon the Case against Eaton for speaking these words of him thou hast the French Pox Exception to a special verdict the Defendant pleads not guilty the Iury upon this Issue find a special verdict viz. That the Defendant had said thou hast had the French Pox whereupon the Defendants Councell said that the Verdict doth not maintain the words laid in the Declaration and that the words that are found in the verdict are not actionable and so the Plaintiff can have no Iudgement and cited 15 Jac. Nutcombes Case Verdict and the words found are not issuable and so the verdict is imperfect 40 Ass 41. Kelway 6. 18 Ed. 3. fol. 19. Pasc 33 Eliz Banc. Reg. Dame Ratcliffs Case Dyer Sr Iohn Burges Case prove that the verdict is too short Roll Iustice said if the verdict be imperfect there may be a new venire facias Venire de novo and so it is against the Plaintiff for he cannot have Iudgement Panell of Councell with the Plaintiff cited Osborn and Brooks Case that the verdict was for the Plaintiff But Roll Iustice said that the Iury cannot find a thing that is not within the Declaration to maintain the Declaration for they ought to hold themselves to the issue and that they have not here done and therefore the verdict is imperfect and there must be a new venire facias to try the issue again for Iudgement cannot be given upon this verdict for they do not find that he spake not the words in the Declaration which are the most material so that the matter is not found fully enough for us to proceed to Iudgement one way or other Adjourned Poole against Coply Mich. 23. Ca. Banc. Reg. POole brings an Action of Trespasse against Coply Arrest of Iudgement in Trespasse and hath a verdict against the Defendant It was moved in arrest of Iudgement that the Declaration is incertain for the Plaintiff declares that the Defendant cepit et asportavit decem coria anglice hides and the word Coria is uncertain for it may be coria equorum or coria ovium or of any other Cattel To this Roll Iustice said Anglice that it is well enough for the Anglice had made the woord certain and it is the usual maner to plead it thus The Court ordered the Plaintiff should have his Iudgement if better matter were not shewn to the contrary Hull against Gurnet Mich. 23 Car. Banc. Reg. HUll brings an Action of false imprisonment against Gurnet Demurrer upon a special plea in false imprisonment the Defendant pleads a speciall justification that he took and imprisoned the Plaintiff by virtue of a Commission granted out of the Court of the Admiralty to examine the taking away of certain goods which were wracked by the Sea Custom To this plea the Plaintiff demurred and shewed for cause That the Defendant hath not set forth the Custom of the Admirall Court that the first processe thereof is a Capias and so it appears not whether he have proceeded right or no. Admiralty 2ly It doth not appear that the matter for which the Commission was granted is Maritime and other matter they ought not to medle withall The Rule of Court was to shew cause why Iudgement should not be given against the Defendant upon this plea. Smith against Stone Mich. 23 Car. Banc. Reg. SMith brought an Action of Trespasse against Stone pedibus ambulando Special justification in trespasse pedibus ambulando Trespass the Defendant pleads this speciall plea in justification viz. That he was carryed upon the land of the Plaintiff by force and violence of others and was not there voluntarily which is the same trepasse for which the Plaintif brings his Action The Plaintiff demurs to this plea In this case Roll Iustice said that it is the Trespasse of the party that carryed the Defendant upon the land and not the Trespasse of the Defendant as he that drives my Cattel into another mans land is the Trespassor against him and not I who am owner of the Cattell Mathew against Herle Mich. 23 Car. Banc. Reg. Trin. 23 Car. rot 1554. MAthew brought an Action of trespasse against Herle for breaking his Fence and entring into his Close c. Demurrer to a plea in trespass quare clausum fregit The Defendant pleads that I. S. was seised of this land wherein the Trespasse is
supposed to be done in fee and so seised did demise the same for years by deed to the Plaintiff reserving rent in which deed was a clause of reentry for non payment of the rent and afterwards made his last Will in writing and dyed by which will be gave the said land in qua c. to the Defendant and that after the rent was behind and that he for the non payment of the rent according to the Covenant in the deed by virtue of the clause of reentry did enter intot he lands which is the same breaking of the Fence and entry for which the Plaintiff brings his Action and demands Iudgement if the Plaintiff ought to have his Action To this Plea the Plaintiff demurs and shews for cause That it doth not shew that the lease made to the Plaintiff is a lease of the land in which the Trespasse is supposed to be done 2ly Licence The Defendant doth not shew that he did â—nter into the land by leave of the Executor which he ought to have done for though the land was devised to him by will yet he cannot enter into the land without leave of the Executor The Court ordered the Defendant to shew cause why Iudgement should not be given against him upon his plea. and Long. Mich. 23 Car. Banc. Reg. THe Plaintiff brought an Action upon the Case for these words spoken of him Arest of Iudgment in an action for words Long is a murtherer and hath bewitched my Child and was the death of my Child and obteins a verdict The Defendant moves in arrest of Iudgement and takes these exceptions to the Declaration 1. That it is not said that the Child was bewitched to death 2ly It doth not express whether the Child bewitched was born alive or not To this the Court said Felony that the bewitching of the Child is Felony though it do not dye by it And to the second exception That the Court doth not take notice of a Child if it be dead-born and they will intend it was born alive and Roll Iustice said that these words Thou didst kill my Masters Cook Averment have been adjudged actionable although the Plaintiff did not aver that his Master had a Cook Therefore let the Plaintiff take his Iudgement if better matter be not shewn Saturday next Carver against Pierce 23 Car. Banc. Reg. CArver brings an Action upon the Case against Pierce for speaking these words of him Arrest of Iudgement in an action for VVords Thou art a Thief for thou hast stollen my Dung and hath a Verdict The Defendant moved in arrest of Iudgement that the words were not actioanble for it is not certain whether the Dung be a Chattel or part of the Free-hold and if so it cannot be Theft to take it but a Tresspass and then the Action will not lye Chattel Bacon Iustice Dung is a Chattel and may be stollen But Roll Iustice answered Dung may be a Chattel and it may not be a Chattel for a heap of Dung is a Chattel but if it be spread upon the Land it is not and said the word Thief here is actionable alone Felony and there are no subsequent words to mitigate the former words for the stealing of Dung is Felony if it be a Chattel Bacon Iustice said It doth not appear in this Case of what value the Dung was and how shall it then be known whether it be Felony or pety Larceny To this Roll answered the words are scandalous notwithstanding and actionable though the stealing of the Dung be not Felony The rule was to move it again Tuesday next Mich. 23. Car. Banc. Reg. A Writ of Error was brought in this Court to reverse a Iudgement given in the Marshals Court Error to reverse a Iudgment for discontinuance in the Process Discontinuance and the exception taken was that there was a dicontinuance in the process and so there ought to have been no Iudgement and therefore the Iudgement given is erroneous and that there was a Discontinuance it thus appears The Continuance was ad proximam Curiam and it appears upon the retorn of the Venire facias that that was no Court day for it was the three and twentyeth day of the Month whereas Friday on which day the Court was held was not the 23 day and so there is Error in the continuance Roll Iustice said the former Continuance was to the 9th day and from thence to the 15th and that is but six daies and so wants of the time Iudgement Bacon Iustice Where there is a Discontinuance the Court hath no power to give Iudgement and so the Iudgement is here erroneous and therefore let it be reversed nisi causa c. Mich. 23 Car. Banc. Reg. LEssee for years of Lands by Deed Demurrer to a Plea in an action of Covenant brings an Action of Covenant against the Lessor and declares that the Lessor had covenanted that he should peaceably and quietly enjoy the Lands let during the Term and that a Stranger entred upon him and ousted him within the Term. To this Declaration the Defedant demurs Roll Iustice said that the Covenant in this Case is broken though it be a Stranger that entered and ousted the Lessee Walker of Councel with the Defendant took this difference where a Stranger enters upon the Lessee and doth a Trespass and where he enters and outs the Lessee in the former Case he said Covenant the Covenant is not broken but in latter it is broken Iudgement was given for the Plaintiff except cause should be shewn Monday next Thynn against Thynn Mich. 23 Car. Banc. Reg. Hill 23 Car. rot 1658. THynn brought an Action of Dower against Thynn Error to reverse a Iudgement in Dower Return Proclamation and hath a Iudgement by default and thereupon a Writ of Enquiry issued out to the Sheriff who delivered seisin of the Dower recovered and returned the Writ upon this Iudgement The Defendant brings a Writ of Error and assigns these Errors in the Record 1. The original Writ appears not to be returned according to the Statute for the year doth not appear when it was returned 2ly The Proclamation made by the Sheriff appears not to be where the Land lyes 3ly Summons The return doth not mention that the Proclamation was after the Summons as it ought to be as it is Hob. Reports in Allens Case 4ly It is not said that he did make Proclamation upon the Land 5ly It appears not that the Proclamation was in the Parish where the Summons was as the Statute directs To these exceptions Hales of Councel on the other side answered To the first Return that the retorn of the original Writ shall be intended to be in the year of the Reign and not of the Age of the King though the word Reign be omitted To the second the Lands lye in divers Parishes and Proclamation at the Church of any of the Parishes is good
enough 2ly It doth not appear that there are divers Churches in New-Sarum where the Proclamation was made To the third exception the Proclamation is said to he made prout breve postulaâ— and that shall be supposed duly done and implies all requisite circumstances and he cannot make another return and it is impossible to be otherwaies To the fourth it is not necessary to retorn the place of the Summons and it is said that it was made secundum formam Statuti which supplies the rest And to this the Court said that the words secundum formam Statuti extend far And Roll Iustice said that Proclamaiton in one place was good in all Holhead of Councel with the Plaintiff in the Writ of Error proceeded and took these exceptions in the demand of the Dower 1. The demand is generally de rectoria which is not good Demand Rector for the incertainty of it for there may be a Rector of a College of a Province of a Bishoprick as well as of a Parish-Church and therefore it ought to have been de Rectoria Ecclesiae parochialis de c. 12 H. 4. f. â—9 pl. 1. 2ly The demand decimarum is too general and not good and it ought to have been decimarum granorum soeni c. for the demand de omnimodis decimis quibuscunque is too general 11 Rep. Herberts case 1. To these exceptions Hales answered that a demand in a Writ of Dower need not to be so exact as in other original Writs for original Writs are not alterable but ought to answer the forms in the Register To the second he said that rectoria shall be intended the Rectory of a Church and the Statute extends not to this besides the place of the Rectory is described which makes it certain enough To the third it is not necessary to express the Tithes particularly and the demand being of the Rectory it compriseth all the Tithes also the demand is de omnimodis decimis which is a general demand and compriseth all and is not de decimis only for that might be incertain Holhead The demand is de rectoria de omnimodis decimis which is a demand of one thing twice and that is not convenient for by this means the party may recover dammages twice and the Court will be also inveagled by this means and it matters not though we have not pleaded to this for the Court ought to take notice of it Notice because it is in the original Writ Next there is no form in the Count for cum pertinentiis is informal for it refers to the Parish and not to the Mannour 27 E. 3. f. 86. Pl. 3. Haleâ— This is but a variance in form and is not material and also it shall be intended to refer to the Mannour and not to the Parish Holhead The demand is not warranted by the Writ for the Vill and Parish are not named in the Writ but are named in the demand 11 Rep. Arondels case Hales The demand is not de rectoria in Tymsbury but de Tymsbury and is the denomination of the thing demanded Tithes Parissi and not of the Vill where it lyes Holhead It is not said where the Tithes extend and they may extend to divers Vills as a Parish may 19 E. 3. f. 9. Hales Here is one demand and it includes all the Tithes Roll Iustice You have demanded the Rectory in Tymber and not the Rectory of Tymber and by the grant of ones Mannour in Dale no more of it passeth than what doth lye in Dale and here it shall be intended so much of the Tithes as are in Tymber Holhead Here is a demand of Dower of such things whereof Dower lyes not viz. of a quarry of Stones and it appears not that the Quarry was open in the life of her Husband and if it were yet it is improper to demand it by the name of a Quarry Hales the word Quarry is a good word well-known what it means for Quarrera is an old wel-known Latine word for it Dower and she is as well dowable of it as of a Mine of Coles and it shall be intended to be open because she demands it by that name of a Quarry Holhead The demand of the Dower is also of a Hundred of which a Woman is not dowable because it is an entire thing and cannot be divided and the demand should have been de tertia parte proficuorum hundredi To this Roll Iustice answered then by your reason she shall never keep a Court. Hales It is well enough demanded for a demand shall be of the thing it self and not of the profits of it for the profits were not in the Husband but he was seised of the Hundred and the profits are a thing incertain Holhead The execution of the Habere facias fesinam is not well executed for by it two third parts are assigned for Dower and that is more than the demand Hales That is but a repetition of the thing demanded Holhead A thing not demanded at all is assigned for Dower viz. view of Frank pledge Hales That is but an incident to another thing that is demanded viz. the Hundred and by the demand of the Hundred the view of Frank-pledge is demanded and all other incidents to the Hundred Holhead Here is an assignment also of all tenures and she cannot have Homage because she is a Woman Hales She shall have all tenures which she is capable of and so all shall be understood in this place and no other she shall have Holhead The Iudgement is also if 15 Copiholds Tenements which lately were Copiholds Roll Iustice This is good enough and what loss have you by it Holhead The Assignment is also of the 3d. part de Copicia de Structuris and other words there are which are also incertain And there is error in the assignment of dammages for the dammages are assigned ultra valorem terrae which is against the Statute Roll Iustice Dammages Iudgement the Statute is an addition of the value and dammages for the Iudgement is perfect without returning the Writ of the dammages and so hath been adjudged in the Common pleas Holhead Here is an ill suggestion of the Feme for the suggesteth that her Husband dyed seised in fee of all the Lands out of which she demands her Dower and that is not true for he dyed seised of part of them in tayl To this the Court said that is not material if he dyed so seised that she ought to have Dower Holhead Dammages are given ultra valorem which I conceive is not good Roll Iustice It is well enough for dammages are given and the value by the Statute Holhead The retorn of the Elegit is not good Hales That is another Record and appears not now in the Court Roll Iustice The Elegit hath no reference to the former Record Holhead There is one error in fact and that is confessed by your joyning in demurrer Doubleness Roll
Iudgement of Law it is presumed that the Covenant shall not be broken and that it shall not be respected in regard of the incertainty whether it shall be broken or no but the Law takes notice of the Will and it is of temporal conusans 2 Rich. 3. 11 H. 7. f. 12. and it takes notice of a legacie to try the right of it and to discharge it and the Executor here is compellable to pay the legacies and cannot refuse it neither by the Common law nor by the Spiritual law Covenant but it is objected that it is inconvenient that one shall avoid his own Covenant by his own devise To this I answer he might have done it in his life by giving away all his goods and 2ly There shall not be intended to be fraud in the Will and there are more inconveniences of our part in not paying the Legacies than on their part by paying them for by this means men shall have no power to dispose of their own Goods by Will by reason of Covenants in Leases and Déeds made by them and the Spiritual Court cannot compell a Legatée to put in security for his Legacy Security as is surmised Adjourned to the next Term to give Iudgement Mich. 23 Car. Banc. Reg. THe Court was moved to deliver their opinion in a Case formerly moved VVhether an Attornment good or not wherein the Question was whether an Attornment made by a Lessée for years the same day that the rent was due to be paid upon his Lease to him that had purchased the reversion of the Land let unto him and for which the Purchaser had brought his Action Attornment be a good Attornment Roll Iustice said that it is a good Attornment by the averment made and by the finding of the Iury and that Iudgement ought to be for the Plaintiff Bacon Iustice agrees and said the Attornment shall be intended to be before Sun set and not afterwards Therefore let the Plaintiff take his Iudgement Parmiter against Cressey Mich. 23 Car. Banc Reg. THe Defendants Councel upon a former rule of Court to shew cause Cause why Iudgement should not be given in an Action upon an Assumpsit Averment Notice Request offered for cause why the Plaintiff should not have Iudgement 1. Because the Plaintiff had not averred that he did make any election of the Wines that the Defendant was to deliver unto him 2ly He doth not aver that he gave the Defendant any notice of his election and there being a Condition precedent to be performed on the Plaintiffs part implyed the Defendant cannot perform the Bargain without notice of that performance 2ly Here is no good request expressed either in substance or circumstance for for the circumstance there is but two daies to do it in which it cannot be well intended it could be done 2ly It is said he did not deliver vinum praedictum which is an incertain implication of a Request for the word deliberare is not a proper term to express the Request and the verdict doth not help it Bacon Iustice There ought to be an election by the Plaintiff but the Defedant ought first to shew the Wines and it was of his part to have appointed the time when he would shew them Roll Iustice The Promise and Request was at Norwitch and it was sufficient for the Plaintiff to make the Request there but the Defendant ought to shew the Plaintiff the Wines Election without which the Plaintiff can make no election and the substance of the Declaration is to this intent Iudgement was given for the Plaintiff Mich. 23 Car. Banc. Reg. BY the rule of the Court VVâ—â— a Prohibition should not be granted this day cause was offered to be shewn why a Prohibition should not be granted to the Ecclesiastical Court for granting Letters of Administration to a Sister of the half-blood when there was a Brother of the whole-blood who sued for them and was denyed The cause shewed was that it is in the power of the Ordinary to grant Administration either to the Brother of the whole-blood or to the Sister of the half-blood at his election because they are in equal degrée of kin to the Intestate And to this the Court agreed But Bacon Justice said that in the Case at the Bur Letters of Administration are granted to the Husband and his Wife and so to one viz. the Husband who is no kin at all to the Intestate but a Stranger and if he survive his Wife he shall have all the Goods and all the kindred will be defrauded which is not reasonable and therefore the Administration is not good And for this reason a Prohibition was granted Mich. 23 Car. Banc. Reg. IT was moved in arrest of Iudgement Arrest of Iudgement in Trover and Conversion that the Plaintiff had declared of the Trover Conversson of a cetrain number expressed in the Declaration of pieces panni lanii Anglice of red yellow and black Coath which is incertain and cannot be used as it is here to expresse Cloaths of divers colours for panni lanii signifies only wollen Cloaths But Bacon Iustice said all is but wollen Cloath though they be of divers colours and therefore it is good enough Hodsden the Secondary said sometimes the colours are used to be expressed and sometimes not Bacon It is better to express the Colours than not yet it is good enough without the expressing of them Therefore let the Plaintiff take his Iudgement Willison and Crow Mich. 23 Car. Banc. Reg. VVillison brought an Action upon the Case against Crow Arrest of Iudgment in an action for words for speaking these words of him You are a bankrupt Skrub and hath a verdict it was moved in arrest of Iudgement that the words are not actionable because they are Adjective words and so are not positive enough to ground an Action But the Court held they were actionable for the word Banckrupt in it self was not an Adjective and the joyning of it with Skrub made it not so but it should be understood as much as to say You are a Skrub and also a Banckrupt And judgement was given accordingly The King against Holland Hill 23 Car. Banc. Reg. THe Court delivered their opinions in the Case betwéen the King and Holland formerly argued And first Bacon Iustice said Iudgement given in the Case between the King and Holland that there can be no Iudgement for there is a mis-tryal in it for first there is no Venire facias and secondly there is a discontinuance because the Venire should be to retorn duodecem probos legales homines quorum quilibet habet 40 s. lands by the year at the least it is every of whom having 4 l. lands by the year which is contrary to the direction of the Statute To this Roll answered that he held the Venire to be good and so the tryal good for if the Iury hath every of them 4 l. a year in
Executors in such cases 14 H. 4. fol. 29. Fitzh Tit. responder 7 E. 6. Dyer 81.10 rep 128. And said the verdict hath found it in the debet and detinet which shall be intended to be true 9 Ed. 4.41.17 Jac. Paul and Mordyes Case in the Common pleas and 7 Iac. Smith and Nicholas Case and prayes Iudgement for the Plaintiff Hales for the Defendant argued that the Declaration is not good 1. He said the Action is good in the detinet because the profits of the land let which are over and above the rent to be paid for it reserved upon the lease shall be only assets in the Executors hands Difference Contract 2. It cannot be good both wayes and the Term is in him as Executor not the rent and there is a difference between contracts Executory and contracts Executed but it may he said the rent to be paid may be more than the profits of the land is worth â— answer this shall not be presumed in law if it be not so shewed 43 Ass pl. 23.16 H 7. fol. â— The Action is brought for all the rent incurred therefore it shall not be presumed that the land is not worth the rent that is paid for it Verdict and as for the verdict it shall help nothing for a verdict shall not supply a necessary part of a Declaration omitted and if he owes then he detains and I conceive Hargraves Case to be good Law though denyed by the Councell on the other side and here the privity of the contract is not determined and so prayes Iudgement for the Defendant Roll Iustice It is for the advantage of the Executor to bring the Action in the detinet for then he sh ll be charged only for the goods of the Testator and not for his proper goods and it may be the land is lesse worth than the rent and that the partyes have consented the Action should be brought in this maner Bacon Iustice cited Pawls Case Mich. 17 Iac. But entred Pasc rot 346. That the Action may be brought in the debet and detinet and if the Plaintiff will bring his Action here in the detinet it is not for your disadvantage and he may at his election bring it either way Roll Iustice Here the verdict answers the point of the issue and therefore is good The Court ruled the Plaintif to take his Iudgement except better cause shewn to the contrary William against Tyrer Hill 23 Car. Banc. Reg. Pasc 23 Car. rot 224. VVIlliam brought an Action of Trover and Conversion against Tyrer for certain goods of the Plaintiff the Plaintiff hath a verdict Arrest of Iudgement in Covenant The Defendant moved in arrest of Iudgement and took these exceptions to the Declaration 1. The Plaintiff declares pro tribus duodenis fili Anglice dosens of thread Declaration which is incertain for it may be three dosen pound of thread or skenes of thread or ounces of thread To this it was answered that it cannot be otherwise expressed and the words dosens of thread is used amongst Merchants and well known unto them what is meant by them 2ly He declares for so many pounds Muscat in stead of Nucum Muscat ram Anglice Nutmegs But this exception was mistaken for the record was otherwise and besides it was with an Anglice which makes it certain The Court ruled Iudgement to be entred except cause shewed for the Plaintif Rawson against Bargue Hill 23 Car. Banc. Reg. THe Case between Rawson and Bargue being an Action of Debt upon the Statute of 2 E. 6. for not setting forth of Tithes â— Arguments whether a free Chapel or no and the Iudges opinions wherein upon a speciall verdict the question was whether the Church were a free Chapel given to the King within the Statute of 1 Ed. 6. was again argued by Latch for the Plaintiff and by Brown for the Defendant Latches argument was to this effect 1. He said that the Law sayes it is presentative although it be not and 2ly It is sufficiently found to be a parochial Church yet it is not material whether it be found so or no. Next the words of the Statute do not extend to give donatives to the King 3ly It is not given to the Crown and although the Declatation and verdict be that it is a free Chapell yet it is not comprehended as a Chapel presentative Lit. 94. The word free makes a distinction of things and the party ought not to confound things Free Chapel and a free Chapel is alwayes interpreted for a Church donative and not presentative The right investiture of Churches was challenged from the foundation of them untill within this 400 years it was altered by the Common law Seldens History of Tithes fol. 392. and upon that alteration the name of a free Chapel came Reg. 41. It is said to be free from ecclesiasticall jurisdiction Fitz. tit Brief 6.0.3 Ed. 3. Fitz. Tit. Ayde du roy 33.14 H. 4.11.22 H. 6.25.22 H. 6.27 by Danbye 26 H. 6. Fitz. grants 12. Nat. brev 33 E. 34. f. 27 E. 3.84 Cowels interpretor Tit. free Chapel And in all Statutes the word free Chapel is meant of donatives Stat. 26 H. 8. cap. 3. Stat. 37 H. 8. cap. 4. Stat. 1 Ed. 6. cap. 14. Regist 307. But it is objected that free Chapels extend to presentatives Presentation Donative because they are with cure Lit. Com. 344. a donative may be parochial 7 E. 3. f. 4. To this I answer Churches had cure of souls when they were donatives To the 2d point by the meaning of the Statute it appears Tenure Frank-almoigne that only donatives were intended as the preamble of it doth declare And all Chapels are held in Frank almoigne as well as donatives and so all may be given to the King by the same reason Another objection is that the word Capella is superstitious and therefore being of a superstitious foundation it is given to the King and Cowels Interpretor is urged to prove the word to be so derived To this I answer that Sir Henry Spelman as learned an Author as Cowell in his glossary rejects Cowells derivation of the word Capella and saith that Capella is used promiscuously for any upper covering And though the name were superstitious yet that makes not the Chapel to be so for so the Church of St. Andrew or St. Dunstan should be superstitious and given to the King by the Statute There is a double preamble of the Statute 1. A recitall of another Statute Preamble and the taking away of other superstitious uses Preamble of the Statute 37 H. 8.22 Ed 4. cap. 7.8 rep 137. beasts of the Forest are not Cattel 3. rep The marques of Winchesters Case Com. 204. That some generals may be taken in a restrained sence 9 H. 6.36 Interpretation Words of a Statute ought not to be interpreted to destroy naturall Iustice The stile also of the Act doth not shew that donatives are only intended
not in contempt to the Court. Roll Iustice said Then is the Execution now well executd Execution and the Sherif is in no fault Maynard of Councel with the Plaintif in the writ of Error moved that the Execution was awarded improvide and therefore the Court may restore the party to his goods taken in Execution although the Sherif be not in fault Roll Iustice The party ought to take notice of a recipitur upon the Record if it be entred and if the party take out Execution after the writ of Error is allowed he is in contempt to the Court else not and the Attorny is not bound to view the Record whether a writ of Error be brought but may take out Execution if there be not a Supersedeas Supersedeas or notice given to the party Therefore there is no help here for the proceedings have been according to the course of the Court for by the delivery of the writ of Error to the Officer of the Court the hands of the Court are closed Yet let us see the President that Wood ward hath to shew and let the Secondary examine it again Trin. 24 Car. Banc. Reg. AN Action of accompt was brought touching the fraight of a Ship For a scire facias against manucaptors and a Iudgement that the Defendant shall accompt and Auditors assigned and Manucaptors found to appear before the Auditors the Court was moved for a scire facias against the Manucaptors because that the Defendant did not appear at the day before the Auditors assigned and secondly it was moved that the Court would assigne a day peremptory Certificaâ—e Auditors for the party to appear before the Auditors But Roll Iustice said a day cannot be assigned untill a certificate be made to us from the Auditors for they are trusted and are Iudges of the cause and have power to excuse the non-appearance of the party at the day if they see cause and to give longer day or shorter for the party to appear as they think good end therefore till they certifie neither can you have a day assigned Scire facias nor a scire facias against the Manucaptors Clementson against Montford Trin. 24 Car. Banc. Reg. Hill 23 Car. rot 1493. A Writ of Error was brought to reverse a Iudgement in an Action upon the Case brought by an Administrator in the Court at Esham Error to reverse a Iudgement in an action upon the case The Errors assigned were 1. The Plaintiff doth not declare that the administration was granted unto him per loci illius ordinarium 2ly The Plaintiff saith in his Declaration producit litteras Administratorias intestati whereas it should be ordinarii and not intestati 3ly The Court cannot by its privilege being an inferiour Court Capias and that but newly erected award a Capias upon entring the plaint as it is here done 4ly The Court began first to be a Court but 9 Iac. and yet it is said to be held per usum et consuetudinem curiae Twisden to the 1. exception said that it is helped by the verdict Roll Iustice asked how doth it appear that Esham is within the Diocess of the Bishop that granted the Letters of Administration for if it be not the Letters are not well granted And said that in a Declaration it is not necessary to say that Letters of Administration are granted per loci illius ordinarium aut cui pertinuit Administration Declaration Plea although they ought to be so pleaded in a plea in Bar. To the second exception Twisden answered that the words mentioned are not necessary and the Declaration would be good enough without them and therefore they shall not hurt it though they he mistaken and if it should be otherwise yet they are helped by the verdict and to the first exception he said that the words secundum usum et consuetudinem shall be intended to be meant according to the Law and not according to ancient usage as is urged by the Councell on the other side The rule was that Iudgement be affirmed except better matter should be shewn Monday next Read against Palmer Trin. 24 Car. Banc. Reg. REad brings an Action upon the Case upon an Assumpsit to stand to an award against Palmer Arrest of Iudgement in an action upon the case and hath a verdict The Defendant moves in arrest of Iudgement and shews that there was an amendment in the consideration and the promise after the issue joyned Twisden answered it is not material though it be so for the matter of the Assumpsit is implyed and the words altered are idle and cited 37 â—l Heydons Case for it is de et super praemissis Amercement which implyes all the matter Roll Iustice said that the words de et super praemissis goe not to the time but to the matter submitted and said that the words postea scilicet eodem die Contract in law special contract upon a contract in Law shall be intended the time of the contract but here is a speciall contract and collateral and it ought to be otherwise intended and desired to see a book Freeborn against Purchase Trin. 24 Car. Banc. Reg. Hill 23 Car. rot 1575. FReeborn brought an Action upon the Case against Purchase Demurrer to a Declaration in an action upon the case and declares that the Defendant in consideration that the Plaintiff had paid unto him such a sum of money did assume and promise to joy in the surrender of certain Copyhold Lands and that for not performing this promise he brings his Action The Defendant demurs upon the Declaration Request and shews that the Plaintiff doth not allege that he made any request to the Defendant to joyn in the surrender which he ought to do for it was not a single Act to be done by the Defendant alone but he was to joyn in the Act with another Roll Iustice said the promise is that the Defendant shall joyn in the surrender Breach and he doth not say that he did request him to joyn which he should have done And besides the breach is not well assigned for you have assigned a particular way how he should surrender namely into the hands of 2 Tenants of the mannour whereas he did assume only to joyn in a surrender which may be in Court or into the hands of the Lord as well as into the hands of two Tenants so is Syms and Walkers Case 9 Car. Also the Plaintiff ought to have shewed that there is such a particular custom in the manour Notice that a Copyhold Tenant may surrender into the hands of two Tenants of the manour or else such a Custom cannot be taken notice of Therefore let a nil capiat per billam be entred against the Plaintiff Wright against Martin Trin. 24 Car. Banc. Reg. THe Court was moved to change the venue in an Action for an escape To change a venue in an action for an
a verdict and upon the Defendants motion the Iudgement was former y stayed The Plaintiff moves for Iudgement notwithstanding for that the words are actionable The Court said the words are scandalous and by them he is disgraced in his Trade Hales of Councel with the Defendant said that there were other words in the Declaration which are not actionable and yet dammages are given for both Dammages which ought not to be and therefore no Iudgement could be given The words said not to be actinable were these Have a care and do not trust him for he will run away and pay you nothing But the Court held that both the words taken together are actionable and ruled the Plaintiff to have his Iudgement for both the words if better matter be not shewed Nelson against Tompson Mich. 24 Car. Banc. Reg. Trin. 24 Car. rot 343. NElson brought an Action of Debt against Tompson upon an Obligation with a Condition to save the Plaintiff harmless Demurrer to a replication in Debt upon an Obligation The Defendant pleaded non damnificatus The Plaintiff replyed and shewed a breach on the Defendants part whereby he was damnified The Defendant demurs to the replication and for cause shews that the breach was assigned to be at Westminster Place and doth not shew in what County Westminster is The Court held that though Westminster be a City yet it ought to be shewed in what County it lyes because it is not a County of it self Therefore advise what you will do for the Action is fit to be discontinued Discontinuance Thyn against Thyn Mich. 24 Car. Banc. Reg. LAtch moved again in this case that the Summons doth not appear upon the retorn to be well made Whether a Summons well retorned for it is not said to be made at the Church-dore as the Statute directs To this nothing was answered But Bacon Iustice said the retorn was naught for another reason and so there is no Record before us to proceed upon in the Writ of Error the fault is this The Custos brevium ought to make the retorn here and it is mentioned to be made per unum deputatorum suorum Retorn whereas his Deputy had no authority to do it Therefore you had best to take a new Writ of Certiorari and certifie the same matter by it and this the Court may grant though it be very rare for if one will assign an Error in a Record and pray a Certificate and nothing be done upon it we cannot proceed Consider which way you can help this fault Tracye against Poole Mich. 24 Car. Banc. Reg. TRacye brought an Action upon the Case against Poole upon a promise Arrest of Iudgement in an action on the Case upon a promise and declares that Poole the Defendant in consideration of a mariage to be had between the Plaintiffs son and the Defendants daughter of setling so much Land upon him upon the mariage He did assume and promise that within such a time after the mariage had he and his Son should be bound per scriptum suum debita juris forma fiend unto the Plaintif for the payment for 3000 l. for a mariage portion assigns the breach that the Defendant his son did not become bound per scriptum suum Obligatorium for the payment of the 3000 l. and for this he brings his Action The Plaintiff had a verdict The Defendant in arest of Iudgment moves that the breach was not well assigned Breach for the Assumpsit was that the Defendant and his Son should be bound per scriptum suum debita juris forma fiend and the breach is that they did not give security per scriptum suum Obligatorium which agrees not with the Assumpsit for the Defendant might give security by a Iudgement which is not scriptum suum yet it is debita forma juris factum upon this the Iudgement was for that time stayed though then Bacon Iustice enclined that the breach was well assigned because in common construction it shall be intended that the Defendant assumed to give his own and his sons bond for security Hales of Councel with the Plaintiff at another day moved for Iudgement and held that the breach was well assigned for that it expresseth the substance of the promise though not the very words of it and this was held good 7 Car. in Michill and Cars case 2ly If the meaning of the promise be considered it will appear that the Defendant and his Son were to be bound by Obligation 6 Car. Courtny and Gavills Case and indeed the promise cannot be satisfied by any other way than by an Obligation for a Iudgment or a Statute will not do it for by them he is not said to be bound and though all this be admitted against me yet it is now after a verdict and the Iury have found the breach Maynard for the Defendant argued that the breach was not well assigned for the breach assigned tends to a personal engagement for paying the 3000 l. which is not so expressed in the promise but only a general security to be given for the monies and a recognisance and a judgement are not properly scriptum as in 9 Car. Goldsmith and Sydners Case and the Declaration doth not set forth the death of Sir Henry Poole by whom the security was to be given and so it cannot appear whether he had a convenient time to do it as he ought to have and he held that the Plaintiff was bound to do the first act viz. to tender the Obligation to the Defendant or else he is not bound to seal and deliver any Request and also he ought to make a particular request to him to seal and deliver it Hales replyed if a man plead a Statute it is true that he ought to say per scriptum suum Pleading but pleading ought to be more nice than common parlance 2ly The living of Sir Henry Poole is expressed and there appears time convenient between the promise and the time of his death for performing of it 3ly It is not necessary for us to tender a bond but the other ought to have done it at his own perill for it is to be done at his charge and not at ours Roll Chief Iustice held that Iudgement ought to be given for the Plaintiff and said that for the laying of the promise it is not necessary to pursue the very words of the promise but the substance so that there may appear to the Court that there is cause of Action 2ly He held that there is no variance in the substance for the intent of the parties is to be considered which was to have another act done by Sir Henry Poole and his Son per aliquod scriptum and not by a verbal promise and we are to consider if the breach assigned agree to this and he held that the promise will extend to a Iudgement or a recognisance for a Iudgement Statute or Recognisance
between what the Law directs and what the devise directs all the difference is in the manner how his Son Iohn shall come to the Estate 3 4 Phil. Mar. Dyer 134. 37 Eliz. A man seised in fee had issue two Daughters and devised the Lands to them and to their Heirs and it was questioned whether they were Ioynt tenants and I conceive they are and where one omits a thing in a conveyance which the Law supplies this shall not hurt and he cited Iennings and Pollards Case 6 Car. Hales on the other side argued that the Son takes by purchase and not by descent for the devise is not to the Son in present but after the death of the Testators wife and if he had the Lands by descent he should have them presently VVaiver It is true the Son might have waived the taking by purchase and might have taken by descent but here prima facie he shall be intended to be in by purchase and not descent for here doth not appear to be any actual waiver of the purchase and the Son doth here as I conceive take by way of remainder and not by way of reversion And as to the verdict I conceive it is not good for it doth not shew how the lands are held whether in Chivalry or Socage and so it appears not whether the Testator had power to devise all of them or not for if they be held in Chivalry he can devise but two parts of them as the Statute directs 2ly It appears not that the Testator had but one Son by his first wife 3ly It is not shewed that the Lands are parcel of the Mannor 4ly It doth not appear in whose possession the Lands are Roll chief Iustice said Lands that are given by Will shall be intended to be socage tenure Intention if the contrary do not appear And he held that the devise is void and that it is not in the power of Iohn the Son to make the election to take by descent or by purchase at his pleasure but he must of necessity take the Land as the Law directs which is by descent Maxim and it is against a maxim in Law to give a thing to such a person to whom the Law gives it if it had not been so given 3 4 Phil. Ma. Dyer 134. and therefore the Plaintif ought to have Iudgement And as to the verdict he hath primer possession Verdict and therefore if the other make no title the verdict is for him and good enough Bacon Iustice to the same intent viz. that the Heir doth here take by descent and not by purchase for this the Law says and he cannot alter it and cited Foscues Case 4 Car. and a Case in 7 Iac. And so judgement was given for the Plaintif Franck against Burt and others Mich. 24 Car. Banc. Reg. THe Plaintif brought an Action of Trespass for breaking of his House For costs for the Desendant upon non-sute of the Plaintif and carrying away his Goods at the Tryal the Plaintif was non-sute The Plaintif moved that there was error in the Declaration and therefore there could have béen no Iudgement and prays that he may be spared costs Roll chief Iustice answered that heretofore it hath been made a question whether the Plaintif being non-sute should pay costs Cests but since the Statute of 4 Iac. it is clear he ought to pay costs for the vexation of the Defendant and so it hath béen ruled here and you are out of Court now by being non-sute and therefore you must pay costs And therefore except better matter be shewed let them be paid Mich. 24 Car. Banc. Reg. THe Court was moved for a Prohibition to the great Sessions of Carnarvan in Wales to stop a sute in an English Bill of Equity exhibited there For a prohibition to the great Sessions at Carnarvan in Wales whereas by the Bill it appears there is no matter of Equity in the Case but only matter tryable at the Law The Court answered if they proceed there against Equity we cannot hinder them There was wont to be an Agent here from the Commissioners there for us to confer with in such cases as these but it seems there is not any here now Therefore give notice Prohibition and let them shew cause the next Term why a Prohibition should not be granted Mich. 24 Car. Banc. Reg. VPon reading of a retorn made by the Sherifs of the City of Norwitch upon a Habeas corpus directed unto them for one Chambers It was said by the Court How a Habeas corpus to an inferiour Court should be retorned Retorn that it hath been ruled That upon a Habeas Corpus to an inferiour Court to remove Corpus cum causa they ought to retorn all the causes that are depending there concerning the party that hath the Habeas Corpus if any of the causes depending be for above five pound of which they ought not to hold Plea and therefore because all the causes were not retorned here upon the retorn of this Habeas Corpus The Court held the retorn was not good and ordered that it should be amended upon pain of ten pounds by Monday next Raph against Davye Mich. 24 Car. Banc. Reg. RAph brought an Action of the Case against Davy for speaking these words of her to the Plaintifs mother Arrest of judgement in an action for words viz. Your Daughter innuendo the Plaintif is a brazen faced Whore and deserves to be hanged and for speaking these other words to the Plaintif herself viz. you Huswife are a Thief and have stollen my Purse The Plaintif had a verdict The Defendant moved in arrest of Iudgement Averment that the Plaintif doth not aver that her Mother had not any other Daughter besides herself and so it is uncertain whether the words were spoken of her or no. But the Court held it was well enough without such averment because the Declaration is that the Defendant habens colloquium of the Plaintif did speak the words and that makes it certain enough And therefore bid the Plaintif take her Iudgement Jennings against Lee. Mich. 24 Car. Banc. Reg. IEnnings brought an Action of Assault and Battery against Lee. The Defendant pleads a special plea Arrest of Iudgement in an action of assault and battery and justifies The Plaintif replies de injuria sua propria and upon this an Issue is joyned and a verdict found for the Plaintif The Defendant moved in arrest of Iudgement that the replication was not good because it answers not the special matter pleaded nor takes any traverse by an absque tali causa as it ought to do and so there is no issue joyned and consequently there can be no Iudgement Roll chief Iustice said that the replying de injuria sua propria Traverse Issue Ieofails and not traversing absque tali causa is not good for there is not an affirmative and a negative and so
although the thing demanded be entire for he may as well release after the writ brought as before and there was no question but he might have released part before and he may release where there is an ill demand as well as where a demand is good Jerman Iustice held that Iudgement ought not to be given for he said that the reasons of the cases cited are not like to the reason of this case for here the verdict is not given for the same sum which is demanded and it doth appear that here is an unjust demand and it is his own fault and if the Defendant had demurred upon the Declaration it would have been adjudged no good Declaration But Nicholas and Ask Iustices agreed with Roll chief Iustice and so judgement was given for the Plaintif except better matter should be shewn on Saturday next Avery against Kirton Mich. 1649. Banc. sup Mich. 23. Car. rot 239. KIrton brought an Action of trespass against Avery Error upon a judgement in trespass and declared upon an original for imprisoning him till he entred into a bond of 600 l. upon Not guilty pleaded the Plaintif had a verdict and a judgement The Defendant brought a writ of Error and upon the Certiorari to remove the Record the Record was certified and in nullo erratum pleaded but the original in the Record certified was that the Defendant kept the Plaintif in prison til he entred into 2. bonds of 300 l. a piece whereas the right original was till be entred into one bond of 600 l. whereupon the party brought a new writ of Error and by that had the true original certified The Councel for the Defendant in the writ of Error said That original after original may as well be certified before in nullo est erratum pleaded Certificate as afterward but here the parties are at issue and the first original is certified and issue joyned upon that and there cannot be a new original certified and the original here doth not agree with the other parts of the Record and so cannot support it and our original certified stands with the Record and here is no Certiorari to warrant the original here certified and it is a material variance 3 Iac. Banc. Reg. Cummins case 9 H. 6. f. 38. Pasch 1649. Kedgwins case Yard on the other side answered that now the original is certified and is before you in this Court and you ought to judge as it is and not as it ought to be and it is agreeing with the former process And both the originals were before the Declaration and the Court shall take the right original and the other shall be intended for another cause Roll chief Iustice said The Certiorari is general and not inter partes praedict but the certificate is inter partes praedict And the Court may take the right original that is certified and the Iudges are not bound by the plea in nullo est erratum that is pleaded but may grant a new original writ of Error but the party cannot require it for he is concluded by his own plea Original Certiorari and if he discontinue his original he may have a new but not if he plead and the Certiorari is good and well certified and therefore judgement ought to be affirmed Ierman Nicholas and Ask to the same effect and so judgement was affirmed except better matter should be shewed Saturday next Ratcliff and Dudeny Mich. 1649. Banc. sup Entred Hill 23 Car. rot 369. VPon a special verdict A question upon the case falling out upon a special verdict the case was this A lease of a house and lands was made to I S. for 99 years the remainder to I D. for 99 years the remainder to A. B. for 99 years provided that if the lessees doe not inhabit in the house let during the whole term that then the lease shall be void The question here was How long the lessees were bound to inhabit in the house whether for the first 99 years or for that term also during all the years in remainder and which of the lessees were to Inhabit Windham held that the two first lessees only ought to inhabit during the first 99 years and no longer But Roll chief Iustice held that those in the remainder were not bound to inhabit before the remainder falls to them but reddendendo singula singulis they ought to inhabit successively one after another And he took an exception to the verdict That the lease being to begin after the death of one Robert Dudeny it did not find that Robert was dead and so it appears not that the lease is yet begun and so there can be no question stirred as yet Venire and thereupon the case was not argued but a Venire facias de novo was to issue because the special verdict was imperfect Cane against Golding Mich. 1649. Banc. sup THis case Opinion of the Judges upon an arrest of Iudgement in an Action of the case formerly spoken to and argued being an Action of the case for slandering the Plaintifs title was now spoken to by the Iudges And first by Roll chief Iustice who held that the Action did not lye although it be alleged that the words were spoken salso et malitiose for the Plaintif ought to shew a special Cause But that the verdict may supply But the Plaintif ought also to have shewed a special damage which he hath not don and this the verdict cannot supply The Declaration here is too general upon which no good issue can be joyned and he ought to have alleged that there was a communication had before the words spoken touching the sale of the lands whereof the title was slandered and that by speaking of them Case the sale was hindred and he cited 13 Iac Tuer and Bailyes case B. R. 21 Iac. Doctor Edwards and Balls case and 4 Car. Roe and Harwoods case a Iudgement in it in Windsor Court and reversed here and 12 Jac. Sell and Paryes case B. R. Ierman Iustice to the same effect and he said that there ought to be damnum et injuria alleged to maintain the Action for one without the other is not enough and here doth not appear any damage because there appears no communication of selling of the land Nicholas and Ask Iustices of the same opinion So the rule was Nil capiat per billam except better cause shewn Roll Iustice said that there is digitus Dei in the case for there was a strange verdict found Mich. 1649. Banc. sup THe Court was moved for a Supersedeas for the Earl Rivers For a Supersedeas for a Peer of the Realm denyed Privilege Notice who was Arrested by a bill of Middlesex and is in custody of the Marshall of this Court because he is Peer of the Realm and ought not to be arrested The Court answered You must plead your privilege if it be so for we cannot take notice of it upon a motion
an Obligation of 2000 l. for the payment of 1000 l. The Defendant appears and imparls and after imparlance pleads in Abatement of the writ that he is Earl of Nova Albion in Ireland and ought to be impleaded by that name and not by the name of Edmund Plowden Knight upon this plea the Plaintif demurred 1. Because it came in after imparlance whereas a plea in abatement of a writ ought to be pleaded before imparlance 2ly Plea The plea is sâ—ivolous for he pleads that he was Earl of Nova Albion before he entred into the bond which he cannot now plead Estoppel for he is estopped to plead so by his own déed which testifies the contrary Roll chief Iustice said it is a dilatory plea for he is but a Knight here though he be an Earl in Ireland and his own Obligation stops him from pleading as he doth And therefore let him shew cause why he shall not plead in chief within a week otherwise let Iudgement be entred Vid. antea VVats and Dix Hill 1649 Banc. sup Entred Trin. 24 Car. rot 1529. AN ejectione firmae was brought for certain lands in Lincolne Shire and upon not guilty pleaded Argument upon a special verdict in an ejectione firmae there was a special verdict found to this effect I. S. being seised of the Lands in question in Fée made a Feoffment there of to A. B and C. D. and to their Heirs till they should maite a Lease of the said Lands for divers years to certain uses to begin at the Feast of Philip and Jacob next comming The Feoffees enter and make a lease for years of the Lands to begin from the Feast of Philip and Iacob next The question was whether the Feoffees have made such a Lease as the deed of Feoffment directs and so the uses are raised thereupon or whether it shall be intended another lease and not warranted by the Feoffment and so no uses raised Latch held that the Lease is not warranted by the deed of Feoffment and that there are no uses raised for the words at the Feast and the words from the Feast make several beginnings of the Lease and so here is another Lease made than the deed intended 2ly It is not in effect and intention the lease of the parties because it is not made according to their directions and so there are no uses raised for the authority is not pursued nor the precedent condition observed and so the lease hath another beginning and another ending and so it must be another Lease Fitzh graunts 63. And here is not the same reversion intended to the party viz. his Son Watson because it is upon another Lease and so a different reversion And although the Iury might have found the intent of the party and so the same Lease yet they have not found it 2. rep Crumwells case 5. rep Earl of Rutlands case and if the Iury find evidence only and not matter of fact the Court can give no Iudgement 9. rep Downhams case the meaning of the party ought to be found Oxfords case 10. rep 11. Iac. Banc. Reg. Isack and Clarkes case 3 Ed. 6. Bendloes Reports As to the second point viz. whether the use shall result to the Feoffor or remain in the Feoffees he held that it doth result to the Feoffor and remains not in the Feoffees For first there was no other thing intended to be in the Feoffees than to make the lease good and that is not here done and Dyer 300. cited is not to this purpose The intention of the parties is not prevalent in directing of uses and Dyer 300. may be applyed to our case to determine the use 4. rep 82. Barbers case Mich. 2 3 Eliz. Bendloes Reports the use reverted Dyer 16 Eliz. Humphrestons case An estate ought to be made in convenient time otherwise the use is to revert out of the Feoffees to the Feoffor according to his first estate 3ly For the question whether a good estate passe to Elizabeth and the others he held that there did a good Estate passe either by bargain and sale or otherwayes But it is good by bargain and sale notwithstanding it be upon consideration past which is no consideration and the other consideration expressed to raise the use hurts not and here is a good consideration Mich. 8 Iac. Gosman and Carington C. B. There was no good consideration but a curtesie 13. and 14 Eliz. Horwoods case there was a good consideration although there be no monies paid but land for land 2ly If it doe not pass by way of bargain and sale yet it shall pass by way of Covenant to stand seised to uses and the consideration expressed is good to raise the uses Bedles case 7 Rep. these considerations cannot be silenced by the considerations of bargain sale nor shall the intent to pass it by way of bargain sale hurt it if he take by way of use yet it makes not the joyn tenancy operate as a tenancy in Common so it is the same lease declared upon and not divers and there is no disseisin by the entry of the Lessee at election for though he be not Lessee by the Lease intended yet he is Lessee by the one Lease or the other for the Lease is made either by the Feoffor or by the Feoffee and so he prayed judgement for the Plaintiff Pannell for the Defendant put the case at large and made these questions 1. Whether here be such a Lease as the first Indenture doth direct 2ly If the use do not arise where the estate is 3ly Whether there be a good bargain and sale 4ly Whether there be a good consideration to make a bargain and sale 5ly If there be not a good bargain and sale whether it shall enure by way of Covenant to stand seised to a use and he said if all these points be not for the Plaintif all is against him and he held that the words at and from are all one as to signifie the intent of the parties The words have here an extraordinary signification according to time and place and at or in a place are all one and the word at may be satisfied with time precedent or subsequent quae incontinenter fiunt inesse dicuntur et instans est indivisibile and he denied Berwicks case in the 5th Report to be law And here is no need of a forced construction for the intent of the party appears by the case 8 rep 91. For the second point if the Lease be not good and no use raised then where the estate of the land is And he held that it is in the Feoffees not withstanding for here the use is limited but not in the cases put on the other side And here was a fee simple determinable but it being become impossible it is a fee absolute Trin. 18 Car. Roll and Bois and Dyer 300. is mistaken in putting of the case on the other side And it cannot result for
parts it will be naught in all Hill 1649. Banc. sup THe Case of the Vills of Newton and Tyd concerning the presentments made to the Comissioners of Sewers for the Hundred of Wisbitch For quashing presentments and Orders of Commissioners of Sewers and their order made thereupon was again spoken to Twisden against the presentment said That it is not a presentment by Iury as it ought to be by the Statute for the Iury have only power to enquire of things within the Hundred of Wisbitch and it doth not appear that Newton and Tyd are within that Hundred 2ly The substance of the presentment is not good for the Commissioners cannot order that Newton and Tyd which have no benefit by the repairing of the bank shall contribute to the reparations 18 E. 3. f. 22. 3ly They cannot order to make a new wall notwithstanding Callice his opinion in his reading upon the Statute of Seâ—â—ers 4ly The Tax is not well laid for it is not laid upon all the Lands within Newton and Tyd as it ought to be charged if any ought to be Holhead answered to this last exception that it does not appear there are more Lands in Tyd or Newton than are charged And Roll chief Iustice said that is well enough To the third exception Holhead said it is not wholly a new work and therefore they may order to make it To which Roll chief Iustice assented and said it was so notwithstanding the Case of the I le of Ely for that was for the making of a new work totally To the 2d Exception he read the words of the presentment by which it appears that because the adventurers had no Lands to be charged and it is found necessary to be repaired that therefore it is to be repaired by Newton and Tyd for the present necessity Maynard answered that they are not bound to repair for the Act of a Stranger Taxes Roll chief Iustice answered Newton Tyd may take there remedyes against the strange adventurers and it seems there was a present necessity to repair it for publique safety If one be bound by prescription to repair a wall yet to prevent the present and publique danger the Commissioners may tax others to do it and the Law is just that is here made by the Commissioners But the 1. Exception is not answered and so the Commissioners have exceeded their authority Therefore let their be a new Law made by consent and quash the presentments except better matter be shewed But we cannot order you to have your monyes again But for that take your remedy at Law Garret against Blisard Hil. 1649. Banc. sup Hill 24 Car. rot 983. VPon a special verdict found in an ejectione firmae The Case was this Grandmother Tenant for life Arguments upon a case upon a special verdict in an ejectione firmae the remainder to the Father for life the remainder to the Son for life the Son levyes a fine come ceo c. of the Land the question was whether it be a forfeiture of his estate or not Hales argued that it was a forfeiture but I could not here him well He cited these books 41 Ed. 3.10 24 E. 3. f. 70. Pasc 11. Car. Banc. Reg. Huttens reports Trin. 7 Car. Banc. Reg. and adjudged 11 Car. in King and Edwards case Dyer 339. And he said that a fine sur conisance de droit come ceo c. as it is in our case is a Feoffment upon Record and doth imply a Livery And said that a remainder may be forfeited by levying such a fine and concluded it was a forfeiture Wadham Windham on the other side argued that it was no forfeiture Forfeiture And cited Mich. 24 E. 3. and Dyer 139. and laid this for a ground that where a Feoffment in Fee made by a Tenant for lise doth displace any remainder that such a Feoffment is a forfeiture but it is not so in this Case and therefore it can be no forfeiture If Tenant for life of a rent or of an Advowson levy a fine it is a forfeiture although that no remainder be displaced this is the great objection 15 E. 4. f. 15 by Littleton and the fine fur conisance de droit implyes a Fee simple 40 Ed. 3. But there a Fee simple really passed with the estate for life But here it passes by way of interest and not by way of estopel and the Conusee may confesse and avoid and therefore here is no estopel and so it differs from the Cases objected 6 Rich. 2 Estopel 211. But it is objected that he hath taken upon him to passe all the estate which is more than he hath to passe and this makes it a forfeiture 43 E. 3. f. 22. It is good for the reversion in Fee and not for the other estate 37 H. 6. f. 5. 41 E. 3 f 14. by Thorpe It was answered that he hath not taken upon him to passe all the estate but only his own estate It is objected that the fine joyns all the estates together and purports the passing of them whole and entire It was answered that the fine doth not purport the entire estate 44 E. 3. f. 10. so much shall passe by the fine as may rightfully passe and no more and so the estate passes by fraction Cooks Instit 345. The Law construes the effect of the fine according to the intent of the parties and that wrong shall not be intended so is it here And if there be Tenant for life the remainder in fail the remainder in Fee to Tenant for life if Tenant for life levie a fine it is no forfeiture 10 H. 4. f. 2. Tenant for life may pray in ayd of all in the remainder and he said that in this case is no forfeiture nor estopel nor hath he passed more than he hath there is no wrong by the fine but it shall only passe what may be passed and he said a fine is a Feoffment when the thing to passe by it lyes in Livery otherwise it is but a grant and devests no estate as a Feoffment doth And in Baker and Hackers Case in this Court Bredons Case was denyed for Law by Bramston Iones and Barkley Hob. 388 389. It is no discontinuance and such estate shall first passe by which no wrong shall be done The Iudges ought to be Aâ—tuti to invent reasons to support estates and to defend from injuries and where the Conusee of the fine hath an interest to passe by it to satisfie the operation of it such a fine is good and doth no wrong as it is in our Case It is objected that there is a Fée simple here but it is of no value for it is after an estate tayl and shall not be assets in the Heir It was answered It is but of little value but it hath more than a right in it and so he prayed judgement for the Defendant Forfeiture Roll chief Iustice held it was a forfeiture although there be no
displacings of estates because it puts an estate in a stranger who ought not to have it as Bredons Case is where one doth acknowledge another to have the inheritance by the fine this is a forfeiture By the fine here the Conusor acknowledges more to the Conusee than he hath and he might have expressed in the fine the estate that he hath in the Land and no more and so there is an estate in possession here Ierman Iustice said the fine shall not be construed to do wrong but the Case is of consequence therefore he would advise Nicholas held it was no forfeiture Ask was of the opinion of the chief justice Roll chief Iustice said estopels will make forfeitures in many Cases Q. what Iudgement was given Meers against French Hil. 1649 Banc. sup Entred Hil. 24 Car. rot 24. AN ejectione firmae was brought for ejecting the Plaintiff out of a rectory Arrest of Iudgement in an Ejectione firmae and declares of a lease thereof made unto him by Indenture The Plaintiff had a verdict the Defendant moved in Arrest of Iudgement that the Plaintiff had declared of a lease per Indenturam Declaration and doth not say in curia prolatam The Court answered if an Indenture be pleaded but by way of inducement it is not necessary to say in cruia prolatam otherwise if it be pleaded to entitle the party by it 2ly He declares that the Defendant did eject him out of such a close and doth not say whether it was pasture or arrable land nor how many Acres it was Roll chief Iustice said it is not good if it be of a close of Land if he do not give it a name nor declare of what nature the land is 3ly He declares that the Defendant ejected him de uno Crofto which is incertain But Roll chief Iustice said That a writ of Dower and an Assise will lie de uno Crofto and so will an Ejectione firmae Dower Assise although a Formedon will not lie de uno Crofto And therefore let the Plaintif take his Iudgement except cause be shewed to the contrary Monday next Postea Hill 1649. Banc. sup Entred Trin. 24 Car. C. B rot 1010. A Writ of Error was brought to reverse a judgement given in the Common Pleas in an Action of Trover and Conversion of divers goods Error to reverse a Iudgement in Trovers Conversion for many improper words used in the Declaration to express several of them as 1. Argentum servitium is used to express a silver Salt-cellar which is not good for servitium is Latin for service And in Parker and Martyns case in this Court Instrumentum ferreum anglice a Horse-lock was held not good and 3 Iac. Robotums case Hama anglice a Crow of Iron was adjudged naught 2ly He declares de duobus Castoribus anglice two Hats 3ly De duobus Catents pro patinis anglice Dishes 4ly De duodecem Crinalibus et plagulis anglice Coifs and Crosscloaths Ed. Turner prayed for Iudgement notwithstanding these exceptions Because as to the 1. there is no proper word for a silver Salt-cellar and it is here well enough described by divers words 2ly There is no proper Latin word for Hats called Demy-Castors and therefore it is lawfull to frame words so for the rest being new things not known to the Romans there are no Latin words for them so words may be invented well enough to express them and servitium argenteum is here with an anglice and therefore it is a good description of the thing and de instrumento ligneo Composito anglice a skreen hath been adjudged good because there is not a proper word to express it But the Court doubted of the words used for Coâ—fs and Close-clothes because they are divers things Ierman Iustice said argenteum servitium anglice a silver Salt-cellar cannot be good for servitium is Latine for service But Roll chief Iustice said if servicium signifie nothing then the Iury gave no damages for that and then the rest may be good But yet the Iudgement was ordered to be reversed except cause shewed and was then at the prayer of the Councel pronounced which if it be not prayed the Iudge will not doe it Quod nota Peise against Mablye Hill 1649. Banc. sup Pasch 1649. rot 222. A Writ of Error was brought to reverse a judgement given at Launceston in an Action of trespass upon the case Error to reverse a judgement in an action upon the case for words for these words These Town weights in Georges possession meaning the Plaintif who was the Common weigher of the Town are false and cosening weights The 1. exception was that here was no Communication had of the Plaintif but the words are only spoken concerning the weights 2ly The judgement is not well entred Case Judgement for it is said to be given ad eandem Curiam whereas it ought to be per eandem Curiam Upon these exception the Iudgement was reversed Colson against Ree Hill 1649. Banc. sup Hill 24 Car. rot 561. A Writ of Error was brought to reverse a Iudgement given in the Court at Newcastle upon Tyne in an Assise of Novel disseisin Error to reverse a Judgement given in an Assise Assise of Nusance The Error assigned was that the Plaintif doth declare that the Defendant did disseise him de uno muro lapideo and that the Defendant had erected a house in the place to his nusance The Court answered The Plaintif ought to have brought an Assise of Nusance for this wrong which because he hath not done let the judgement be reversed Batisford against Yate Hill 1649. Banc. sup Pasc 1649 rot 289. A Writ of Error was brought to reverse a judgement given in an Action of Trover and Conversion for these errors Error to reverse a judgement given in a Trover and Conversion Venire 1. It is said of the Iurors in entring of their verdict Dixerunt pro querente and aly In the awarding of the Venire it is ideo praeceptum fuit with an and so it is not certain whence the Venire issued as it ought to be The rule was the judgement should be reversed if cause were not shewn to the contrary Cooke against More Hill 1649. Banc. sup Trin. 1649. rot 645. COoke brought an Action upon the case against More upon an Assumpsit Demurrer to a plea in an â—ction upon an Assumpsit to pay for certain barrels of béer sold and delivered unto him such a day The Defendant pleads specially that he did not assume as the Plaintif hath declared To this plea the Plaintif demurs because that by thus pleading the Plaintif is tied up to a particular day whereas he may give in evidence for any other baâ—rels of beer sold at any time before the Action brought The Court ordered cause to be shewn why the Plaintif should not have judgement upon this demurrer Banbury against Basely Hill 1649. Banc. sup
Hill 24. Car. rot 1062. THis case arising upon a special verdict found in an Ejectione firmae Argument upon the Case concerning the Manor of Callidown given to Mr. Pym. touching the title of the Manor of Callidowne being part of Sir Thomas Morgans estate that was given to Mr. Pym by Ordinance of Parliament and heretofore argued on both parts was again spoken to First by Twisden who argued for the Plaintif who said the Question is Whether the estate setled by Sir Thomas Morgan before the year 1641. be forfeited by the Act of Parliament and consequently well given to Mr. Pym or no And he said the intent of the Parliament in making this Act is first to be interpreted and he held that according to the Act no estate passeth but such estate as Morgan had in the year 1641. and no more for no man can forfeit a thing that he hath not but only that which he hath but Morgan then had not this estate and therefore he could not forfeit it 2ly There is a priority of vesting the estate in the Parliament and next from the Parliament to the Trustees and the Trustees can have no more than is forfeited to the Parliament and the estate setled before the year 1641. is not forfeited to the Parliament 3ly The penning of the Act is considerable The Act saith all the said lands that is all the said lands that Morgan had in the yeart 1641. and not all the lands that Morgan ever had before that time and had setled for the precedent words are restrained by the words subsequent Althams case 8 Rep. Dyer 369. and from the preamble of the Act to make a construction to punish innocent persons is against the Law of God Man and Nature Nichols case f. 398. Of rewards and punishments consist the essence of Commonwealths and it could not be the intent of the Parliament to punish innocent persons 3 Ed. 4. 2. The Parliament did not intend to give more of Morgans estate than what he had 1641. for then they might give that which might be evicted which they intended not And whereas it is objected that there is a clause of Revocation in Morgans settlement and so the estate was not absolutely setled It is answered That notwithstanding this power of Revocation the estate is not given by this Act unto Pym for it cannot give a power 7 Rep. 13. and a power cannot be forfeited and Mary Morgan had an interest in the land notwithstanding the power of Revocation And notwithstanding there is no saving for Mary yet the estate is not passed for Mary Morgan is not intended to be punished Nichols case Com. f. 483. and so there needs no saving for her 14 H. 8. f. 2. and it cannot be intended because there is no saving for her that therefore she shall forfeit her estate and the saving is not therefore idle for it hath an operation another way The saving is not intended of the estate of a Collateral Auncestor only for this is the begging of the question for the saving saves not any thing and the penning of the words are against this exposition and so he concluded that nothing was given by the Statute to Mr. Pym but the estate of Morgan which he had in the year 1641 and prayed judgement for the Plaintif Steel the Recorder of London for the Defendant said he would only answer the argument of Twisden because he had heard no other arguments And first he held that the Ordinance reaches all the estates that Morgan had as well before as at the time 1641. and the estate setled by Morgan before 1641. was the estate of Thomas Morgan in the year 1641. 2ly The lands are expresly named which are given by the Statute it is not material who hath the estate in them for certitudo nominis tollit demonstrationem Dowbey and Dudingtons case and Mildmayes case 1 Rep. do interpret how the word others shall be interpreted And here cannot be said to be any injustice in the Parliament The Question here is Whether the estate be setled by the Parliament and if it be setled it would be a supposition of injustice to suppose it is not rightly done The Law hath invested the Parliament with a power to dispose of all lands and therefore it cannot be intended injustice And the estate is not in Mary Morgan notwithstanding the Conveyance because there is a clause of Revocation in it for it is a void Conveyance as to her estate by reason of the clause of Revocation for that makes it fraudulent And the estate of Mary Morgan is not passed by the Statute notwithstanding the clause of eviction in the Ordinance an if or an an are no saving of an estate and here is no eviction in the case and here is no saving otherwise their estate cannot be saved for then the lands are all passed And the saving extends to the lands descended to the Children of Thomas Morgan from Collateral Ancestors and not from Tho. Morgan the Father and as reasonable a Construction ought to be made of an Ordinance of Parliament as this is as of an Act of Parliament and so he praid Iudgement for the Defendant Roll chief Iustice said He did not doubt of the power of the Parliament in this case but of their meaning whether they intended these lands should be forfeited or not And the Ordinance was made by the House of Commons without any proviso in it and the proviso was put in by the House of Lords and he enclined that Mary Morgans estate was saved But Jerman Iustice said he conteived that Maries estate was not saved but only the estate of strangers The Court was divided and said they would consider till next Term and then give Iudgement in this and the Case of Garret and Blizard Quaere What Iudgement was given in both cases for I was not in Court at the day they were spoken to again Vincent against VVallis Hill 1649. Banc. sup Hill 24 Car. rot 966. rot 906. IN a Replevin for distraining of Cattel the Defendant emparled A Demurrer to a plea in a replevin after imparlance and afterwards pleaded that the lands are antient Demesne where the distress was taken and to this plea the Plaintif demurred Serjeant Parker for the Plaintif and against the Demurrer held that the plea is not to be admitted because that the party hath made his defence Plea and cannot therefore afterwards plead to the jurisdiction of the Court and cited 11 H. 4. f. 47. 2 H. 7. f. 17 b. That freehold only is to be sued for in antient Demesne And 2ly the plea is not sufficient for it doth not appear that the lands are held of the Manor but only are parcel of the Manor and such lands are pleadable in other Courts 20 H. 6. Nat. Brev. 11 M. 41 Ed. 3. 3ly It is not said that the lande are pleadable by Writ of Droit Close which ought to be 2 H. 7. f. 17. 3 H. 6. f.
14. 4ly He prescribes that the lands are not pleadable elsewhere which is not true for in some cases they are pleadable here in this Court Nat. Brev. 19 D. and so prayed judgement for the Plaintif Roll chief Iustice demanded why is there not a special demurrer here Special Demurrer After imparlance one may plead that the lands are antient demesne for a plea of lands in antient Demesne to the jurisdiction of the Court differs from other pleas pleaded to the jurisdiction of the Court It is true that parcel of a Manor of antient demesne is pleadalbe at the Common Law but lands held of the Manor are pleadable in the Court of the Lord. Adjourned to be heard Tuesday following Afterwards it was moved again and Roll chief Iustice said that after imparlance this plea is not good because by it he hath admitted the jurisdiction of the Court And therefore lâ—â— him shew cause why he should not plead in chief Pascall against Sparing Hill 1649. Banc. sup Pasch 1649. rot 75. A Writ of Error was brought to reverse a Iudgement given in an Action in Bristow upon a Concessit solvere by the Defendant Error to reverse a judgement in Debt for Concessit solvere Declaration Roll chief Iustice said that an Action of Debt did well lie upon a Concessit solvere by the custom of Bristow and so is it in London 28 H. 6. 1 E. 4. f. 6. Another Error assigned was that it is said that the party recovered the damages per juratores Compert whereas it ought to be Assess for this is the proper word but this exception was also over-ruled Latch took another exception that there wants the words pro misis et custagiis in the assessing the damages and so it doth not appear for what the damages are assessed And for this the Iudgement was reversed except better matter shewn Damages Iennings against Lee. Hill 1649. Banc. sup GEnnings brought an Action of Trespaâ—s of an assault and battery against Lee and his wife Whether an issue well joyned for an assault and battery made by the wife the Feme pleads a special plea of justification that it was in defence of her Husband The Plaintif replies de injuria sua propria upon this there was an issue joyned and a verdict for the Plaintif it was moved in Arrest of Iudgement that the issue was nor well joyned because the replication was not good and so the verdict not good and so there can be no Iudgement Serjeant Parker prays judgement for the Plaintif for he held the replication was good and so a good Issue joyned and if there be not yet it is helped by the Verdict Issue or else by the Statute of Ieofails or if not yet it is at least good in part And the issue here doth imply a negative although there be not a direct negative but an affirmative in the words of it And 6 E. 4 16 b. in a Replevin and 9 H. 5. f. 1. b. there are good issues joyned in the affirmative because they imply a negative Trin. 18 Jac. Banc. reg Aldridge and Walthalls case and here wants only a Traverse which is but only matter of form and not material 2ly The Verdict hath made the issue good although it be not well joyned 5 H. 7. f. 15. 3ly If the Verdict helps it not yet the Statute of Ieofails helps it 5 Rep. Nichols case 19 Eliz. Dallisons Reports 8 9 Eliz. Bendloes Reports and 14 Car. Banc. Reg. 4ly If the Statute help not yet it is well enough because it is good in part and for part it is well found and damages shall be intented to be given for that which is well found Damages 9 H. 7. f. 4. 16 H. 7. f. 1â— 10 Rep. James and Osburns case 3 Iac. Banc. Reg. Bigrane and Selling Mich. 1649. Desmond Osborn this case the Court denied Roll chief Iustice said Issue if there be 2 issues and one issue is not well joyned and damages be given entire this is not good but will make all naught 40 Ed. 3. f. 40. 18 Iac. Aldridges case 16 Iac. Iones and Gates adjudged and he said that the material thing is not here put in issue and so the issue is immaterial and there is a Ieofail and the damages being given entire there can be no judgement given Jeâ—â—ail Ierman Iustice did differ in opinion and said if the Defendant plead an immaterial thing and the Plaintif joyn issue and it be found for him he shall have judgement otherwise where the plea is partly material partly immaterial for there the issue ought to be upon the material thing otherwise there can be no judgement It was adjourned till Thursday following The Case was this An Action of Assault and Battery and wounding was brought the Defendant pleads non cul to the wounding and justifies the Assault and Battery in defence of her Husband in keeping possession of certain lands The Plaintif replied de injuria sua propria and doth not traverse absque tali causa The Iury find entire damages for all whereas there is not a perfect issue joyned as to the Assault and Battery for want of the Traverse Postea Hodges against Iane. Hill 1649. Banc. sup IN an Arrest of Iudgement in this case the question was Whether debt lie against an Executor sur concessit solve of the Testator Wager of Law Debt Executor Whether an Action do lie against an Executor upon a Concessit solvere of the Testator upon a special custom Roll chief Iustice held that it doth not for this would be to charge an Executor in an Action of Debt where he may by the Law wage his Law and an Action of Debt lies not against an Executor upon a simple contract made by the Testator And he said that the reason for Ley gager is because it is intended that as well as the contract to pay money may be in private so may also the payment be made in private Adjourned Giaves against Drake Hill 1649. Banc. sup IN an Action of Trover and Conversion for divers parcels of Houshold stuff an Exception was taken to the Declaration Arrest of Iudgement in a Trover and Conversion because the Plaintif amongst other things had declared pro sex parcellis plumbi cinerii Anglice Pewter Porringers whereas the word parcellis is uncertain for a parcel doth consist of many things in number and so sex parcelli cannot be properly applyed to six Porringers but if it had béen sex peciis it had been better though that be also incertain Hales held it was all one as if it had béen pro sex peciis plumbi Cinerii Roll chief Iustice enclined it was well enough because though the words are not so proper yet the description is good enough Declaration Words Ierman Iustice was of the same opinion But Nicholas Iustice held that the Latin is not good for if there be proper words for a thing they ought to
judgement in a trover and conversion Prestwood moved that the record is not certified for it is returned by one who is not Iudge there Abatement for it is returned by the Maior Aldermen and Deputy-recorder whereas the writ of Error was to return a record before the Maior Aldermen and Recorder 1 E. 5. f. 3. Jordan and Tompkins case 1648. Upon this the writ of Error was abated Wats against Dix Hill 1649. Banc. sup Trin. 24. Car. rot 1529. THis case was again argued Argument whether a lease well made according to direction of Deed in trust by Hales for the Plaintif and by Twisden for the Defendant I could not hear Hales but imperfectly Therefore I omit his Argument Twisden that argued for the Defendant put the case briefly thus A Feofment was made of lands to I. S. in fee until he should make a lease of 21 years to A. B. from the feast of Philip and Iacob I. S. makes a lease for 21 years to begin at the feast of Philip and Iacob And he held this was a good Lease made according to the direction of the Deed. 2ly If it be not a good Lease yet the use shall not revert to the Feoffor 3ly He held that there is neither a good bargain and sale nor doth it work by way of use For the first point he held if it had been by way of pleading it had not been good in pursuance of the Agreement otherwise it is being found by verdict but here the agreement and the intention of the parties is satisfied and the variance is not considerable de minimis non curat lex 10 Iac. Hob. f. 120. 38 E. 3. f. 7. Waste 35. 2ly In the Iudgement and estimation of men at and from are accompted to be all one in signification In the Stat. of 32 H. 8. it is so taken and in the Stat. of 27 H. 8. of enrollments and words shall be construed according to common intendment And if there be a variance yet the use rests in the Feoffees and shall not revert to the Feoffor for the word until is an Adverb of time Borastons case Sir Andrew Corbets case â—1 Rep. f. 85. Dyer 300. 3 Eliz. Mores Reports 3 Iac. Sir Guy Fairfax case if they make not the estate the estate remains in them And if it do not remain in the Feoffees yet it cannot revert to the Feoffor for he hath conveyed from himself all the estate that he had and if it return to the Feoffor it is a disseisin 2 Rep. Butlers case And for the bargain and sale that cannot be good for here is no Consideration but that which is past and not continuing which is no good Consideration Plow Com. 302.15 Car. Burton and Sherly 2ly The Consideration if there be any is not meritorious for ought any thing appears the monies may not be discharged which are laid out and so the Defendant remains unsatisffed and so there can be no Consideration Allens case 23 Car. 3ly If the debt be discharged yet it cannot raise a use for here is no monies paid but a debt And a use is not raised here because it was the intent of the parties to pass the land by way of bargain and sale Ed. Foxes case 13 Eliz. Plowd 32. 11 Car. Whitfield and Pierce rot 438. And if one intend to pass an estate out of himself he may do it either by the Common law or by Statute law Roll chief Iustice said if lands are passed for money only the déed ought to be enrolled but if it be for money and natural affection Enrollment Vse it is not needfull to enroll it but the lands will pass without enrolment And so here the land passes one way or other and if the use will rise all the other points are out of dores And there is here a continuing consideration to raise a use But the main question is whether the use riseth to the Feoffor if not all the other points are gone And he held that here was only a meer matter of trust the intent is not that the Feoffees shall have any thing by the not performing the trust but the use shall be to the Feoffor And there can be no disseisin in the case And here is a material difference in point of law in the making of this lease Lease for it is made for one day more then was agreed by the deed for that lease was to begin from the feast of Philip and Iacob and this lease is made to be begin at the Feast of Philip and Iacob Ierman Iustice held that the intent of the parties is performed and that there is no material difference and held for the Defendant Nicholas Iustice said here is no performance of the agreement for all the parties agreed not to this Lease for it is made for longer time than was agreed and he held that the use shall be to the other parties by contingency and that here is no disseisin Ask Iustice said all the difficulty is whether the lease be made or not and he held it was a good lease according to the agreement and said that the intent is not that the Feoffees shall have any thing but that it shall result to the Feoffor Roll chief Iustice said Intent the intent of the parties shall not be implyed against the direct rules of Law Nil capiat per Billam nisi c. Pendarvis against Dawkes Hill 1649. Banc. reg PEndarvis brought an Action of Accompt against Dawkes for divers sums of mony as his receiver Arrest of Iudgement in Accompt The Defendant pleads that as to all except ten pounds ne unques receptor upon this an issue was joyned and a verdict found for the Plaintif The Defendant moved in arrest of Iudgement that it doth not appear what ten pounds they are that are menrioned in the plea and so it is incertain whether they be part of the monies for which the Action is brought Roll chief Iustice said he ought to have expressed what ten pounds it is for as it is it is incertain and so not good Venire de novo Therefore take a venire facias de novo for though the issue be not well joyned yet the Declaration is good Cowley against Locton Hill 1649. Banc. reg Trin. 24 Car. rot 932. IN a writ of Error to reverse a judgement given in an Action of Debt upon an Obligation the case was this Writ of Error to reverse a Iudgement ment in Debt One was bound in an Obligation for the payment of certain sums of money to a Feme sole the Feme takes Baron and dies I. S. takes out Letters of Administration of the goods and Chattels of the Feme and brings an Action of Debt upon the Obligation against the Obligor The Obligor pleads that by the entermariage of the Feme the Debt due upon the Obligation became due to the Baron and demands Iudgement Si Actio Chose in Action To this Plea the
him out of any County to the Courts at VVestminster notwithstanding the Statute Hamond against Kingsmill Pasc 1649. Banc. sup HAmond a Iustice of peace brought an Action upon the Case against Kingsmill Arrest of in an action â—â—r words for speaking these several words of him viz. Mr Hamond did of his own head put into Mores confession that he stole the Lambs And 2ly That he was a debauched man and is not fit to be a Iustice of Peace Vpon not guilty pleaded and a verdict for the Plaintiff The Defendant moved in Arrest of Iudgement that none of the words were actionable or at least the last words are not and so Iudgement cannot be given For the first words he said they ought to be taken in mitiori sensu and they may have a good construction viz. that he framed the confession without being helped by any other body And for the second words that he was a debanched man they cannot touch his office at the present Mich. 24 25. Eliz. C. Banc. 1. because they are spoken in the preterperfect tence not in the present tence The Court said that the words was a debauched man are incertain words Therefore take Iudgement for the first words and nil capiat per billam for the second except cause shewed to the contrary Iennings against Lee. Pasc 1649. Banc. sup IEnnings brought an Action of Assault and Battery against Lee For a repleader because an immaterial issue joyned The Defendant pleaded non cul to the Battery and pleaded a special justification as to the Assault It was prayed there might be a repleader granted because the issue joyned is immaterial The Councel on the other side prayed for Iudgement Wild held that there is an Issue joyned for the Record faith so and the Iury have found the Issue and if it be ill it is not helped by the Statute and so there can be no Iudgement All issues are not joyned by an expresse affirmative and an expresse negative for if it be but by implication it is good enough An immaterial Issue is not helped by the Statute but an informall issue is helped and here the issue is immaterial 32 Eliz. Lovelace and Griffin rot 934. Trin. 22 Car. Coles case rot 932 Banc. Reg. 23 Car. More and Clipson and prayes for a repleader Serjeant Parker on the other side said the cases cited were not to the purpose as to the Case at the Bar for here is a good issue joyned to one thing pleaded if not to the rest Roll chief Iustice held that where there is an immaterial issue there ought to be a Repleader and it is not helped by the Statute and there can be no Iudgment for the matter is not putin tryal Repleader and for this cause it would be unreasonable to give Iudgement Ieofail Issue and this is an immaterial issue Trin. 9 Car. entred Mich. 8 Car. rot 366. Tayler and Sparks an affirmative and an implyed negative make a good issue though it be not an express negative Therefore replead Hurd against Lenthall Hill 1649. Banc. sup Entred Mi h. 1649. rot 568. VPon a special verdict in an ejectione firmae Question upon the words of a will whether a joyntenancy or a tenancy in Common The Case upon the words of a Will was this Lands were devised to two daughters equally to be divided and to the Surviver of them and to the Heirs of the Body of the Surviver of them Maynard held that here is a joyntenancy because otherwise the Will cannot take effect in all parts Hales held that there is a tenancy in Common and not a joyntenancy nor any crosse remainders Roll Chief Iustice said That the words equally to be divided in a Will Ioyntenant Tenant in common do make a tenancy in Common by construction but in a grant it would be otherwise but here upon the entire Will it doth not appear that the Lands should be divided but that there should be a Surviver And the Land was intended for a security for a portion and that the devise should stand till the monyes should be paid And in a Will the last words of it do explain the first words but it is not so in a grant Will. Grant All the Iudges agreed in opinion with the chief Iustice and Iudgement was given for the Plaintiff nisi causa c. Pasc 1649. Banc. sup THe Court was moved for a Certiorari For a certiorari to the Lord Maiors court of London Certiorari to the Lord Maiors Court of the City of London to remove an information exhibited in that Court against a Woodmonger of London grounded upon an Act of Common Councell The Court answered we cannot do any thing in it if it should be removed hither if it be grounded upon an act of Common Councel but if the Act of Common Councell be against Law we may grant a Certiorari Adjourned till Friday next to hear Councell on both sides Lamb against Duff Pasc 16â—â— Banc. sup VPon an Affidavit the Court was enformed that Lamb had arrested Duff after a verdict found for Lamb against him to the intent For false practice that he may have him in Custody when the Iudgement is entred against him and for no other cause as appears by his own confession it was therefore prayed the party may be set at large The Court made answer that this was a strange and an irregular course and ought not to be If one take out a latitat against one and have no cause of Action against him the party may have an Action of the Case for it Case Attach nt Take an attachment if he will not discharge the party or else let him shew cause to morrow why he should not discharge him Hollingworth against VVhetstone Pas 1649. Banc. sup HOllingworth brought an Action of Debt upon a single obligation against Whetstone Demurrer to a plea in debt upon a single obligation Bar. Abatement The Defendant pleaded payment of part of the sum since the Action brought in Bar of the Action To this Plea the Plaintif demurred The Court answered the plea was not good in Bar of the Action but in abatement of the Writ it had been good Therefore let the Defendant shew cause why Iudgement should not be against him upon the demurrer Gibbon against Kent Pasch 1649. Banc. sup Pasch 24 Car. rot 60. A Writ of Error was brought to reverse a Iudgement given in the Common Pleas Error to reverse a judgement in debt upon the Statute of 2 Ed. 6 in an Action of Debt brought upon the Statute of 2. Ed. 6. for the not setting forth of Tithes The Errors assigned were 1. That it doth not appear that the Lands sowed do lye in the Parish that is laid in the Declaration 2ly The Plaintiff hath not intitled himself well to his Action for the Statute of 3â— H. 8. is taken away by the Statute of 13 Eliz. 3ly The Statute is
verdict in the case by which it is helped Ierman Iustice said there is only an implication to shew in what Parish the lands lie and that is not a violent implication neither and therefore the Declaration cannot be good But Roll Chief Iustice answered What if the Plaintif had only said that the tithes belonged unto him And it is here after a verdict and the Declaration is helped by it Declaration but if you had demurred to the Declaration it would have been ruled to be naught Demurrer And if the tithes do belong to the Plaintif why may it not be implyed that they belong to him as Parson of the Parish and are of lands lying within the Parish But let us see a Book and speak to it again the next Term. Robinson against VValker Trin. 1650. Banc. sup Pasc 1650. rot 251. WAlker brought an Action upon the Case upon an indebitatus Assumpsit for wares sold Demurrer for doubleness in a replication The Defendant pleaded the Statute of limitations of Actions in Bar. The Plaintif replyed that he is a Merchant and was in Ireland and did not return thence till such a time and shews precisely when and that within six years after his return he brought this action Vpon this Replication The Defendant demurred and upon the Demurrer Iudgement was given for the Plaintif The Defendant brought a writ of Error to reverse this Iudgement and assigned for Error 1. That the replication of the Plaintif upon which the Demurrer was joyned is double For first he allegeth that he is a Merchant so is a person out of the Statute of limitations And secondly he shews that he brought his Action within 6 years after his return which is needless 2ly He saith That he did not return into England whereas the Statute is general If he return and he may return into Wales But to that the Court answered that to return into England or into Wales was all one as to the intent of the Statute 3ly The Action was an Action upon the Case that Action is not mentioned in the Statute But Roll chief Iustice said this is no new Case for it hath been ruled that an Action upon the Case is within the Statute Case Ierman Iustice said the Proviso of the Statute is intended to be as large as the body of the Act. Nicholas Iustice to the same effect and said that the word Trespass mentioned in the Act doth comprise in it an Action upon the Case The Iudgement was affirmed nisi Trin. 1650. Banc. sup AN Endictment was quashed To quash an Endictment because it was said to be taken ad generalem Sessionem Pacis Custodum libertatis Angliae where it ought to be Sessionem Pacis publicae by Ierman Iustice absente Roll. Treton against Squire Trin. 1650. Banc. sup THe Court was moved that a Prisoner in the Marshalsea might have liberty by rule of Court to be at a tryal to give his testimony as a Witness in the cause To have a Prisoner to testifie at a Trial. Ierman Iustice absente Roll answered Bring him thither by a Habeas Corpus but take a good guard with him for it shall be at your peril if he escape Habeas Corpus and he shall be brought thither and carried back again at your own charge Gibs against Price Trin. 1650. Banc. sup GIbs a Barrester of Lincolns Inne brought an action upon the case against Price for speaking these words of him Arrest of Iudgement in an Action for words William Gibs hath dealt falsely with me being his Clyent and hath joyned with mine Adversary Vpon not guilty pleaded there was an issue joyned and a Verdict given for the Plaintif The Defendant moved in Arrest of Iudgement that the words were not actionable But the Court held clearly the words were actionable and were ordering judgement to be entred for the Plaintif Case but because another exception was taken That the Plaintif doth not aver that he was a Practiser at the time of the bringing of his Action Averment and because it was also objected that the Plaintif was now sequestred Therefore the rule was that the Record or the Postea should be brought into the Court and that Councel should again be heard This was moved again And Roll chief Iustice said That the Plaintif ought to aver he is a Practiser for he may be a Barrester and not practise But the Court would advise Boomer against Cleve Trin. 1650. Banc. sup IN this Case in Arrest of Iudgement upon a verdict given for the Plaintif in an Action upon the Stat. of Winch. 12 E. 1. of Hue Cryes Arrest of Iudgement in an Action upon the Statute of 12 E. â— of Hue and Cries Recital the question being whether the Plaintif in his Declaration had mis-recited the Statute or not Roll chief Iustice took this difference that if one bring an Action upon a Statute and in his Declaration mis-recite it in words which go to the ground of the Action though there be a Verdict in the case yet it is not helped but if the mis-recital be in words which doe not goe to the ground of the Action it is helped after Verdict by the Statute of Ieofails Ieofails Bynion against Trotter Mich. 1650. Banc. sup BYnion brought an Action upon the Case against Trotter for speaking these words of him Arrest of Iudgement in an Action for words He is a Thief and hath stollen my Turnips and my grass Vpon a Verdict given for the Plaintif The Defendant moved in Arrest of Iudgement that the words are not actionable because the grass might be growing upon the ground and the Turnips in the ground Case and so part of the Freehold But Roll chief Iustice held the words are actionable for the Turnips shall be intended to be pulled up and the Grass mowed the last words are not cumulative Therefore let the Defendant shew cause why the Plaintif shall not have his Iudgement Pinder against Dawkes Mich. 1650. Banc. sup PInder brought an Action of Trespass against Dawkes Error to reverse a Iudgement in Trespass quare clausum fregit and declares quare clausum fregit contra pacem publicam et postes et palos suos ibidem nuper inventos cepit et asportavit The Plaintif hath a Verdict and a judgement the Defendant brings a writ of Error to reverse the judgement and assigns for Error 1. That the Trespass was done in the late Kings time and therefore the Declaration should have been contra pacem Domini Regis and not publicam 2ly That the Declaration is incertain for it appears not whether the Posts and Pales were fixed to the ground or no nor how many of them there were and so the nature of the offence cannot be certainly known But the Court held that the first exception was but a mistake of the Clark and so may be amended and as it is there is no repugnancy in it
in Colton and by this demand the Kind of the Tithes demanded is not made certain for the word garba admits of divers constructions and so Lynwood the Civilian shews 3ly It is not expressed whether the Defendant be terr-Tenant or heir 4ly The demaund is ac etiam de rectoria de Acerstall Malvis which is incertain for it ought to be de rectoria ecclesiae Roll chief Iustice to the 1. Exception said Miscontinuance that the appearance of the party will help miscontinuance of proces and so it doth here Hales to the 2d exception said that decimae garbarum is certain enough to common understanding To the 3d. Exception he held it not necessary to say de rectoria ecclesiae for it must be so necessarily intended The Court desired to see books and so it was adjourned At another day the case was again moved and these spoken to and answered 1. As before that decimae garbarum is certain enough so common intendment 2ly That it is not necessary to expresse the setting forth of the dowr in the tithes by metes and bounds for tithes cannot be so set forth and it is not constant to use the expression per metas et bundas Latch took another exception that it was improperly expressed for one to enter into an Advowson And to the exception formerly taken he held that the Proclamation of summons ought to have been returned and that fault is not helped by the late Act because it is matter of substance and not meer matter of form and he said that appearance of the party doth salve a discontinuance of mean processes but not of originall processe as this is which is the very foundation of the Action and that though the want of a summons be helped by the partyes appearance yet the want of returning the summons is not helped by the partyes appearance Next he held as formerly that decimae garbarum is incertain and that the nature of the corn ought to be shewed Roll chief Iustice said Return that the not returning the proclamation of summons is not material for the summons is only to make the party appear and he hath appeared in this case and the late Act extends to it if it were not good without it And the demand of tertiam partem garbarum is certain enough by common intendment but it seems more certain here than so for it is tertiam partem garbarum granorum which signifies corn And it is not necessary to express the setting forth of the dowr per metas et bundas but it is well as it is without that expression And lastly It is well enough said ingressus est into the advowson although it be not so proper an expression as might have been used for it is good enough to make the party tenant Ierman Iustice to the same effect and said that if there be two Tenants in Common and one of them dye it is a great question how the wife shall be endowed viz. whether per metas bundas or no. And he doubted whether the Writ of error here brought were good or not for it is retornable coram custodibuâ— libertatis c. apud Westmonasterium whereas as it ought to be coram custodibus ubicunque for they are not fixed to Westminster Nicholas Iustice to the same effect Error Roll chief Iustice said it was a good exception that Ierman took to the Writ of error But the Court was here at Westminster at the return of the Writ and the Writ was made by the Custodes themselves and the partyes did appear upon it and therefore he questioned whether it might not be made good for these reasons Ierman Iustice held it could not Roll chief Iustice said that all the Latin presidents are agreeable to this Writ and it would be dangerous to alter them But let the cursitors attend Presidents and give their reasons why they do not alter this form and if the Writ be good me thinks the Iudgement should be affirmed Yet we will advise a little of the writ and whether the demand of decimam partem garbarum without granorum be good or not Postea Lumley against Nevil Mich. 1650. Banc. sup IN a writ of error brought upon a Judgement given in an ejectione firmae Error in an habere facias Possessionem It was said by Roll chief Iustice That if the writ of habere facias possessionem do contein more Acres of Land than are expressed in the Declaration that it is error But if the Sheriff do give possession of more Land than is conteined in the writ of habere facias possessionem an Action of the case lies against the Sheriff or an Assise lyes for the land It was also said that if a Iudgement be affirmed upon a writ of error in the Exchequer Chamber Error Case Assise Execution yet they cannot grant out execution there but it must be in this Court Hunt against Popham Mich. 1650. Banc. sup IT was moved for the Defendant to have the rule of Court for the Plaintiff to bring in the postea The court not to be moved for a rule where it may be given in the office Nonsuit that the Defendant may move in Arrest of Iudgement The Court answered they would make no rule for the Defendant may give rules in the office to force him to it and if he will not bring it in he is to be nonsuit Fairefax against Fairefax Mich. 1630. Banc. sup THe Case between Fairefax and Fairefax was moved again Whether a demand in down good or not and Hales held that the demand of dowr de decimis garbarum was certain enough though it be not garbarum granorum and he cited the Register 46. and Dyer f. 84. and one Cavendishes case 8. Iac. Roll chief Iustice took a difference between a demand of Tithes and the suing for a recompence for Tithes upon the Statute of 2 Ed. 6. and cited the Regist 165 and he held the demand here to be good with whom concurred the other Iudges Ask Iustice said that a garb is a french word and signifies any thing bound up into a bundle but by Cowell the Civilian it signifies Corn bound up and so is the word commonly used at the Common Law Demand Roll chief Iustice said that a demand in a praecipe ought to be more certain than it is necessary for a demand in dowr to be Latch said that the words coram nobis apud VVestmonasterium is part of the stile of the Court which Roll chief Iustice denyed yet he said it was well enough because the Court was there at the return of the writ of Error To which the other Iudges agreed and the rule was that the Iudgement should be affirmed nisi c. antea Mich. 1650. Banc. sup THe Court was moved that one was arrested upon a day of thanks-giving appointed by the Parliament Moved to discharge an arrest and that he was forced to put in bond
take a procedendo nisi causa ostensa fuerit in contrarium Antea Davis against Ockham Hill 1650. Banc. sup Mich. 1650. rot 557. DAvis brought an Action upon the Case against Ockham for speaking these words of him Demurrer to a plea in an Action for for words The knave the Apothecary that married my sister hath poysoned my Vncle and I will have him taken up again to hang him The defendant pleaded an accord betwixt him and the Plaintiff that whereas the Plaintiff had done a Trespass against him that one Trespass should be set against the other To this plea the Plaintiff demurred and Twisden said the plea was not good and cited 16 Ed. 4. f. 89. and prayed Iudgement for the Plaintiff Latch of Councell with the Defendant said that the Accord was executed on the Defendants part and therefore may be pleaded in Bar. To this Roll chief Iustice answered Bar. how have you discharged the Accord for you do not shew it Latch took Exceptions to the Plaintiffs Declaration 1. That the words set forth are not actionable for it doth not express that the Plaintiff wittingly poysoned the Defendants Vncle or that he did dye of the poyson and cited Hob. rep 8. Miles and Iacobs case and 275. Fleetwood and Caveleys case 2ly There is no Communication expressed in the Declaration to be of the Vncle and it may be spoken of another Vncle and the innuendo will not helâ— it because he may have divers Vncles Twisden answered that it is implyed in the sence of the words that he poysoned him feloniously and so consequently wittingly And 2ly He saith that he will have him digged up and so it must be intended that he dyed of the poyson Roll chief Iustice held that the words are actionable Case Bar. And 2ly That the Defendants plea in Bar is not good Ierman Iustice held the plea in Bar not good but he doubted whether the Declaration was good for it doth not appear thereby whether the party dyed of the poyson and the latter words help it not Nicholas Iustice and Ask Iustice agreed with 〈◊〉 Roll in all and thereupon the râ—le was Iudicium nisi Lundi Suivant Custodes c against Maine and Serjeant Hill 1650. Banc. sup A Ioynt Information was exhibited against Main Serjeant 2 Iustices of Peace for not enquiring of a Ryot and a verdict found against them Arrest of judgment upon an information found The Defendants move in Arrest of Iudgement and by Hales shew for cause that the information ought not to have béen joynt against them but several because their offences are several and not joynt and here one of them is acquitted and so judgement cannot be given against the other that is found guilty Roll chief Iustice answered That as an Attachment in a Prohibition is several Execution so the execution here may be several and it is not material though one be acquitted and the other found guilty Ierman Nicholas and Ask Iustices to the same purpose It was then said that it is not necessary that the next Iustices only should remove a force but all the Iustices of the County are bound to it Force And these words in the Statute viz. That the 2 next Iustices shall do it are put but for conveniency and the more speedy execution of Iustice Nicholas Iustice doubted of this Judicium nisi pro custodibus Ailet against Watless Hill 1650. Banc. sup Trin 1649. rot 200. IN an Action of Trespass and Ejectment Special Verdict in Trespass and Ejectment there was a special verdict found upon which the case fell out to be this An Infant bargains and sells land and is vouched to warranty and comes in upon the Voucher and thereupon a common recovery is had and upon this the question was whether this be such a recovery that the Infant cannot avoid by Entry Hales held it could not be avoided but did bind the Infant during his life but I could not hear his reasons Wild of Councel on the other side argued that the Infant was not bound by the recovery because as an Infant cannot alien his lands so neither can he suffer a common recovery and cited 6 rep 28. 2ly No record made by an Infant can bind him and for this he cited 26 Ed. 3. Fitz. per que serv 24.41 E. 3. f. 3.44 E. 3.10.9 Ed. 4 3â— and though it be breve Amicabile and by consent yet it binds not and 9 Car. Newports case where a recovery suffered by a Guardian was adjudged good comes not to our case and for the intended value in a recovery that is not material to make it binding for it is but a fiction and not a real value Roll chief Iustice demanded whether a fine be not breve amicabile Fine Error Recovery and yet he said that that binds an Infant until it be avoided by writ of Error And he said that the Infant is not bound here but the question is whether he can avoid the recovery by Entry or must bring a writ of Error to avoid it And he held that a recovery suffered by a Guardian is not good notwithstanding the opinion in Newports case Hales replyed that the recovery here is binding till it be avoided by a writ of Error and that the Infant cannot avoid it by his Entry though an Infant may avoid a deed by Entry although it be enrolled And here appears no consent of the parties and the party cannot shew it and here is a formal judgement given which binds till it be reversed by a writ of Error Roll chief Iustice Entry An Infant may avoid a matter in paiis by Entry but not a matter of Record and here is a proper way by the law to avoid it namely by a writ of Error which is also matter of record and of as high a nature Ierman Nicholas and Ask Iustices to the same effect and so judgement pro Defendente nisi Powell against Hopkins Hill 1650. Banc. sup Hill 23 Car. rot 787. IVdgement was given in an Action of Trover and Conversion for the Plaintif The Defendant brought a writ of Error Error to reverse a judgement given in a Trover and Conversion and the Exception taken was to the Declaration wherein the Plaintif among other things declared of a Trover de ducentis ponderibus aeris ducentis ponderibus plumbi Anglice of Brass and Lead and there wants an Anglice for the ponderibus so it is uncertain what the quantity of either are And upon this Exception the rule was that the Iudgement should be reversed nisi c. Denton against Caket Hill 1650. Banc. sup Trin. 1650. rot 150. DEnton brought an Action upon the Case against Caket for speaking these words Demurrer to a plea in Bar of an Action upon the case for words He and his fellows have stollen her having speech of a Cow of the Defendants and I do charge him with flat felony By reason of which words
he was taken and imprisoned The Defendant pleaded an award made by Sir John Rivers and Sir Nicholas Miller two Iustices of Peace between the parties in Bar. Twisden of Councel with the Plaintif said that the award doth not bind the Plaintif for the award concerns only the speaking of the words and speaks nothing of the imprisoment And 2ly the Award is not good for there is not satisfaction made by it on both parties Wild of Councel with the Defendant held that the Declaration was not good and that therefore he needs not to justifie the plea for though it should be ill yet the Plaintif can have no judgement and he said the Declaration was naught because it alleged no day when nor place where the Defendant charged the Plaintif with the felony and made him to be imprisoned Twisden answered that there is a place alleged and that though there were none yet it is well enough for part and judgement may be given for that To which Roll chief Iustice agréed Wild replyed then the plea is good But the Court answered it is not and what say you to the Arbitrement Wild answered it was good to which Ierman and Ask Iustices assented Roll chief Iustice answered It is a benefit to the Parish and so to the Overseers of the poor Nicholas Iustice to the same purpose Roll chief Iustice said that the Declaration is ill and the Plea also for the Plea is entire Declaration Plea and yet goes not to all the matter alleged in the Declaration but the plea is only to part of them and therefore if any part of the Declaration be good judgement ought to be given against the Defendant for that part and the plea in Bar is naught so judgement ought to be entirely for the Plaintif But it is to be considered concerning the damages Rosyer against Langdale Hill 1650. Banc. sup Pasch 1650. rot 100. ROsyer an Executor brought an Action upon the Case upon an Assumpsit against Langdale a Feme Administratrix Error to reverse a judgement in an Assumpsit by an Executor against an Administratrix and declares that the Defendant in consideration that he would forbear sute until she had taken out Letters of Administration did assume and promise to pay unto him the Plaintif a certain sum of money owing unto him by the Intestate Vpon Issue joyned and a Verdict and a Iudgement for the Plaintif The Defendant brought a writ of Error to reverse the Iudgement And Baldwin of his Councel took these Exceptions 1. That the Plaintif had set forth no consideration in his Declaration for the Assumpsit for all that is alleged is that the Plaintif should forbear sute till the Defendant had taken out Letters of Administration which is no consideration at all for the Defendant was not lyable to be sued as Administratrix until she had taken out Letters of Administration except there were a cause depending as here is not And he cited Hob. rep Bidwell and Cottons case That if there be a sute commenced though there be no cause for it yet forbearance to sue is a good cause to ground an Assumpsit upon Assumpsit A second Exception was that the Venire facias is not awarded per Curiam nec in Curia Roll chief Iustice held the 1. a good Exception for the Defendant was not chargeable before Letters of Administration taken forth if she do not intermedle with the goods of the Intestate and it doth not appear here that she did neither is the Defendant compellable to take forth Letters of Administration for they may be granted to the next of Kin if the Ordinary pleaseth according as the Statute ordains Ierman Nicholas and Ask Iustices to the same intent thereupon the rule was reversetur nisi c. But because Day being of Councel on the other side took some Exceptions to the writ of Error and the retorn thereof It was adjourned Staples Hill 1650. Banc. sup THe Court was moved to supersede a scire sacias brought by a prisoner of the Marshalsea For a Supersedeas to a Scire sacias upon the late Act for discharging of poor prisoners because the Certificate of the cause for which he was a prisoner was false and so the procéedings erronious for the party was in execution for Trespass which is not within the Statute made for the prisoners 2ly Because there was no due notice given to the party at whose sute he lay in execution as the Statute doth direct there should The Court ordered to view the Certificate 〈◊〉 Den uneâ— and to file it otherwise there should be no proceedings upon the scire facias and directed the party to demur upon the scire facias if it be not good because the matter alleged cannot be pleaded to it Custodes against Arskot Hill 1650. Banc. sup MAynard moved the Court for one Arskot that was outlawed for murther For time to bring a Writ of Error and had leave to bring his writ of Error that he may have longer time to bring it because the King uses to sign the writ and the Parliament had not ordered who shall do it now and therefore the Attorney General must advise with the Parliament about it which cannot spéedily be done Thereupon time was granted till the Attorney could conveniently do it Newcomin against Leigh Hill 1650. Banc. sup Pasch 16â—0 rot 52. LEigh did assume and promise unto Newcomin Whether a good Assumpsit that if Newcomin would take one Loe for his Debtor in the room of one Cooper and would spare Loe until such a time for the money that then he would pay the money to Newcomin if he did not and upon this Assumpsit Newcomin brought his Action against Leigh The question was whether this were a good Assumpsit And the Court held it was not because it is a collateral thing and he doth not say that he will discharge Cooper and so Newcomin may sue Cooper notwithstanding the Assumpsit For though it may be it was the intention of the parties to discharge Cooper yet it appears not so by the words of the Assumpsit set forth And it was then said by Roll. That if I promise to pay to Iohn a Down a Debt which Iohn a Stile oweth to Iohn a Down Nudum pactum this is nudum pactum Bawsy and Lowdall Hill 1650. Banc. sup Pasch 1650. rot 275. VPon a special verdict in an Action of Trespasse and Ejectment Special Verdict upon the devise of a Copyhold in Fee the case in effect was this A man seised of Copyhold lands in fée devisable by Custom deviseth them in this manner I give and bequeath my lands c. to my son Richard during his natural life and after to the heir of his body for ever Hales of Councel with the Plaintif made these questions 1. whether by the words of the Will a Fee-simple at the Common Law passeth because there is an estate to Richard for life and after
to his heir in the singular number And he argued that the word heir includes heirs because it is Nomen Collectivum Next Whether the devising the land to Richard for his natural life and after to his heir for ever makes any difference in the Case and he held it did not and said that Archers case that is objected by the other side differs much from this for there the words are restrained for it is Proximo Haeredi and not Haeredi generally as it is in our Case and there the words next heir are not words of limitation but of purchase and to decipher the person but not to limit the estate and in our case if there should not be a limitation Richard should only take for life which is not the intent of the Will as may appear by the passages and clauses of it And Thomas and Kemishes case in 5 Car. in this Court makes an end of our Case Neither doth the adding of the word in perpetuum make a difference in the Case for if the words had béen omitted the same estate had passed to the Tenant Richard and his Estate is not enlarged by them 2ly The words in perpetuum relate to all the Estate and not to any particular Estate and so the surrender made by R. Hunt is good Next of all supposing that it be a limited Estate and a contingent remainder the question will then be whether this contingent remainder be destroyed or no and I conceive it is because the particular Copyhold estate which must support this contingent remainder is destroyed and the Law is the same in that point in Copyhold cases as it is in other cases at the Common Law for Copyholds are directed by the rules of the Common Law 13 Iac. Banc. Reg. It is also held that there is the same rule to support a contingent remainder of a Copyhold as there is of Land at the Common Law Next it is to be considered whether the particular Copyhold estate be extinguished or not And it is cléer that it is for the customary Estate is in the Lord who hath the Fée simple which cannot both stand together and so there is no estate to support the contingent remainder Copyhold and consequently all objections are by this answered 1. That the surrender shall not do wrong 2ly That the surrender destroys not the Custom Turner on the other side argued that only an estate passeth to Richard for life and that the word Heir is not a word of limitation to make the Ancestor take a Fée simple neither shall the word Heir be taken Collective here but singulariter and so according to the common sence number and matter ought it to be construed And Nowns Collective in the singular number do not signifie the same thing that they do in the plurall number as may be proved by other examples and there is no proper name to signifie one particular Heir in Law if the word Heir in the singular number shall not do it Shellyes case 1. Rep. f. 101. â—ooks institut f. 8.1 Rep. Archers case And there are two Iudgements in the Common pleas in the very point as I am informed by the Attorney on our side In a Will the word Heir shall not be taken Coliective out in the natural grammaticall sence and not as a word of art but it is otherwise taken perchance in conveyances which are made by men of Art and learned in the Laws whereas wills are made commonly by lay gents and unskilfull in the Law And the rule is that words shall be interpreted to make all the parts of a déed in which they are to stand together and to bear sence and to be in esse and effectual which cannot be here if the word heir shall be taken Collective but may be if it be taken singulariter Hob. rep Stukely and Butlers case Next if the word heir should be taken Collective then the Estate for life would merge 30 El. C. B. Hill 3 Iac. C. B. Hiller and Lewis his case 3ly Rich. hath only an Estate for life if it were otherwise the Testator would have otherwise expressed it and he hath well expressed an estate for life and no other Estate in him If one grant 4. parts of his mannor it shall passe 4. parts of 5. and not all For the other poynt the contingent remainder is not here destroyed by the destruction of the Copyhold Estate for Copyhold Estates do not depend one upon another as Estates of the Common Law do and here is one in esse to take the Estate Another question he spoke to viz. whether a Lessee at will being ousted by a stranger can reenter and he held he cannot for he hath but a meer right 38 H. 6. f. 27. Fortescue and Yelverton 3. Iac. Banc. Reg. rot 501. Carpenter and Collins But to this Roll chief Iustice Entry and Nicholas Iustice answered that he may enter notwithstanding it hath been heretofore controverted and the reason is because he hath the primer posseâ—sion Roll chief Iustice enclined that the contingent remainder is not destroyed because it doth not here depend upon the particular Estate but it ought to expect till the remainder happen and he conceived that the word heir and heirs were all one here by the intent of the partyes and the frame of the conveyance Ask Iustice said that it is a good Estate of Fee simple conditionall executed in Richard Ierman Iustice The intent in a Will if it be not contrary to Law ought to be taken and there must be words to make the intent appear and these words must stand together and shall not be made void and he conceived the contingent remainder not destroyed Adjourned till the next Term. Postea Port against Midleton Hill 1650. Banc. sup A Writ of Error was brought to reverse a Iudgement given in an Action of debt upon an obligation Error to reverse a judgment in debt and the Error insisted upon was in the entring of the Iudgement which was quod recuperet Debitum suum and doth not say praedictum Roll chief Iustice answered Delivery Escrow that the debt is confessed by the party and the question is whether the deed was delivered as an escrow or not but it was delivered to the party himself and therefore could not be delivered as an escrow Ierman Iustice said that debitum suum without praedictum is not good for the word praedictum is verbum operativum Ask Iustice as Roll and there is but one debt Implication and the word ideo in the record implyes it to be the same debt Nicholas to the same effect The rule was affirmetur nisi causa die Iunae sequenti Hill 1650. Banc. sup AN administrator had a Iudgement against one to recover a debt due to the Intestate and then the Administrator dyed Intestate For a scire facias to revive a judgement denyed Scire facias and another took out new letters of administration de bonis non
the power for it ariseth partly out of her interest and partly out of her Authority and both may well stand together and the Estate made out of both is a good Estate or if not the Estate may be intended to arise out of the power given her to make such an Estate and not out of her interest and the joyning of her daughter is not materiall though no good estate be derived from her and so he prayed Iudgement for the Defendant Roll chief Iustice It is usual in the West of England to make Estates for lives upon the old rent but it is not here expressed of what nature this manor is or whether it used to be let and here is no limitation to let for lives But here either the laster words are idle or else the Feme hath such a power that she may destroy the remainder And itsh all not be intended that he trusted his Executrix with more than he gave her and the words of the Will do not express that and the question is how it shall be interpreted The words may be interpreted Cumulative Interpretation otherwise the feme hath power to destroy the remainder which would be a hard construction To which Nicholas assented Roll chief Iustie The intention of the Testator is not cleer to give this power to the Feme but if it did appear to be his meaning it might be otherwise and here it is in a Will And the Verdict is not well drawn up for the Case might have been made better for all the land may be in Demesite for ought appears by the Verdict Adjourned to be argued again Postea VVebb against Wilmer Pasch 1651. Banc. sup Hill 1650. rot 309. VVEbb brought an Action of Debt for rent reserved by him upon a lease for years made to Wilmer Arrest of Iudgement in Debt for rent reserved upon a Lease for years and obtains a Verdict The Defendant moved in Arrest of Iudgement and alleged for cause that the Plaintif had abated his writ The case was this Webb leaseth certain lands to Wilmer for years reserving a rent with a clause of re-entry for not payment the rent being behind the Lessor brings an Action of Debt for the rent and pending the sute re-enters into the land and after the Lessee re-enters The question here was whether the writ once abated by the Plaintifs entry Reviver Abatement pending the writ were revived by the Defendants re-entry Roll chief Iustice held it was not Twisden argued that the writ is not abated but only abatable by plea and so this matter is not to be offered to stay the Iudgement 5 H. 7. f. 47. and he hath pleaded nothing in abatement but to the Action only and he said that it now being after a verdict it is helped by the Statute Hales on the other side said that it doth here appear that the Plaintif hath no cause of Action for he was in possession when he brought the Ejectment Roll answered If one declare having no cause of Action Declaration Departure if there be cause afterward it is well enough But here is a departure and the 1. Ejectment is not revived for it is purged by the re entry The rule was nil capiat per billam nisi The Custodes Libertatis c. against Hall Pasch 1651. Banc. sup HAll was endicted for forestalling of Butter Error to reverse a judgment upon an Endictment for forestalling and pleaded and had judgement given against him whereupon he brought his writ of Error and took these exceptions 1. That it doth not appear that the Endictment was at the Quarter Sessions as it ought to be by the Statute of 5 Ed. 6. for it is only said to be ad generalem Sessionem Roll chief Iustice answered if it be ad generalem Sessionem it may be intended the Quarter Sessions Intendment 2ly It was objected that there is no Capiatur awarded in the judgement as there ought to be The Court answered they would advise VVillis against Bond. Pasch 1651. Banc. sup Mich. 1650. rot 86. BOnd an Administrator brought an Action of Debt in Bristow against Willis upon an indebitatus assumpsit Error to reverse a judgement in debt and had a judgement The Defendant brought a writ of Error and took these Exceptions 1. That the Plaintif declares for a thing the conusance whereof lyes out of the jurisdiction of the Court Iurisdiction for it is for wages to be paid upon the performance of a Voyage to be made in locis transmarinis Roll chief lustice said this was a good Exception for they cannot enquire at Bristow whether the party hath performed his Voyage or not The 2d Exception was that the Plaintif declares that the Defendant was indebted to him in such a sum of money to render him an accompt The Court answered this is not good Accompt Debt for in such case an Action of accompt lies and not an indebitatus assumpsit And for these causes the Iudgement was reversed nisi and pronounced by Ierman Iustice at the prayer of the Plaintifs Counsel in English being the first that was pronounced so in this Court according to the late Act for proceedings in Law to be in English Quod nota Gowr against Pasch 1651. Banc. sup IN Arrest of Iudgement upon a Verdict found for the Plaintif Arrest of Iudgement in a Trover and Conversion Demand Trover in a Trover and Conversion brought by Baron and Feme for goods of the Feme dum ipsa sola suit The Exception was that it is not expressed that the goods were demanded by the Feme Roll chief Iustice said the Demand of the Feme is good to found the Action and it was then also said that a Trover and Conversion lies for goods found and converted although they come afterwards to the hands of the party that lost them The Rule was judicium nisi Pasch 1651. Banc. sup MEmorandum The first rule of this Court made in English was between White and Keblewhite Pasch 1651. Pease against Shrimpton Pasc 1651. Banc. sup Hill 24 Car. rot 191. THe Court was informed by Councel that the Habeas Corpus and Bail-piece were lost and therefore it was prayed that there might be a new Habeas Corpus and that the old Bail put in may be allowed by the rule of Court Roll chief Iustice answered make a new Habeas Corpus Habeas Corpus Bail and a new Bail-piece but first let Tutt the Attorney that was Clark of the Bails attend here to be examined whether the Habeas Corpus Bail-piece be lost as is suggested Ritch against Sanders Pasch 1651. Banc. sup Hill 1649. rot 758. RItch brought an Action of Trespass against Sanders for taking away his Corn set forth for tithes Special verdict in Trespass for tithes upon the words of a Will upon issue joyned a special Verdict was found whereupon the case fell out to be upon the construction of the
his promise to take notice of her coming Roll chief Iustice answered if all the Declaration be considered together here is a good consideration expressed for this is not like to the case of tender of money And the words obtulit se in maritagium conjungi shall be intended to the Defendant himself Consideration and then he must néeds have notice of her coming thither D ves of Counsel with the Defendant took this Exception that the Plaintif in setting forth her offer of mariage doth not say tunc et ibidem soe there is neither place nor time set forth Roll chief Iustice answered it is after a Verdict and you move this Exception too late Advantage and you have now lost the advantage of taking it If there be a sufficient notice it is well if not it is not good for there ought to be a notice for she may come to his house in private so that he cannot take notice of her coming thither Notice The question only is this whether notice be sufficiently and necessarily imployed in the words obtulit se in maritagium conjungi Curia advisare vult Postea King against Weeden Pasch 1651. Banc. sup IN Arrest of Iudgement upon a Verdict found for the Plaintif in an Action upon the Case upon an Assumpsit brought by an Administrator Arrest of Iudgement in an Action upon the Case 2 Exceptions were taken 1. That the Plaintif did not shew his Letters of Administration and 2ly That there is no good consideration set forth to ground the Assumpsit upon for it is that the Defendant did promise that if the Plaintif would forbear to take his course for the monies he would pay them which words are uncertain and he should have said his course in Law and not generally his course Roll chief Iustice to the 1 answered It is not necessary here to shew the Letters of Administration for they are but inducements to the Actio◠and not the ground of it And for the second exception the consideration is certainly enough set forth Consideration although the Latine be not very proper Therefore let the Plaintif have his judgement nisi c. Sawyer against Russel Pasc 1651. Banc. sup SAwyer brought an Action upon the case against Russel Arrest of Iudgement in an Action upon the Case for taking away certain Cattel and obtained a Verdict against the Defendant The Defendant moved in Arrest of Iudgement and took exception to the Plaintifs Declaration for the incertainty thereof The Plaintif declared of a Trover and Conversion de ducentis Averiis viz. bobus juvencis Anglice Steers Iuvencis Anglice Runts Iuvencis Anglice Heifers which is uncertain and so judgement cannot be given for it is uncertain for what number of each of the Steers Runts and Heifers judgement should be given Roll chief Iustice enclined that it is certain enough Averment and that the number may be averred and the Cattel are all of one kind yet The Court would advise afterward it was ruled Iudicium nisi Shedlock and La. Pere Pasc 1651. Banc. sup Hill 1650. rot 211. IN a Writ of Error brought to reverse a Iudgement given in an inferior Court The Error assigned was Error to reverse a judgment in an interior Court Iudgement Error Abatement that the Iudgement is quod recuperare debeat whereas it ought to be recuperare debet Roll chief Iustice answered That if it be so there is no Iudgement given and so no Writ of Error lies therefore let the writ be abated For the Writ of Error supposeth a Iudgement for the words of it are si judicium redditum sit and in 3. Iacobi in the Exchequer Chamber the very case was adjudged so Collins against Sillye Pasc 1651 Banc. sup Hill 1650. rot 302. THe Case was this Demurrer upon an entry upon Lessee for years Lessée for years by indenture covenants with the Lessor that he will not assign over the land let nor any part thereof without the consent of the Lessor The Lessor during the term enters into part of the land let the Lessee assigns over the remainder of his term in the rest of the land without the consent of the Lessor and the Lessor thereupon brings an Action of Covenant against the Lessee the question was whether it did lye in regard that the Lessor had entred into part of the land Covenant Roll chief Iustice held that the Covenant was collateral and therefore it is broken by the assignment notwithstanding the Lessors entry into part of the land And the rule was judicium nisi Custodes against Monger Pasc 1651. MOnger was endicted for forgeing a presentment to a Iury in a Court held before Commissioners of sewers Exceptions to the setting forth of a presentment against Monger for casting of 10 loads of soil into the Thames Exceptions were taken that it doth not appear by the endictment by what authority the Court was held where the presentment was found 2ly It is not averred that the presentment did present the casting in the soil to be any annoyance 3ly There doth not appear to be any process in the case against the party upon the presentment To the first it was answered by councell on the other side that it is not necessary to shew by what authority the Court was held for their Authority is by Act of Parliament and it is a publique Act to be taken notice of Roll the chief Iustice answered That it is a private Act made for the City of London and concerned the Lord Maior though part of it be publique Statute for part of an Act may be publique and another part of it private and of that part which is private we are not bound to take notice and it was here said that in criminal causes Errors in proceedings are not helped by a verdict Notice Roll took an exception that the endictment was only contra pacem publicam Ieofail Indictment whereas at that time when it was preferred it ought to have been contra pacem nuper domini Regis contra pacem publicam nunc Adjourned 23 Car in the Kings Bench. Pasc 1650. rot 414. Cremer Plantiff in a Replevin Burnet Avowant in a Replevin THe Plaintiff complains for the taking of his Cattell Whether a copyhold estate be extinct by the Kings leasing it for life to wit a Horse Colt and three Mares the 13 of Ianuary 21 Car. at Chingford in the County of Essex in a close there called Pipers down THe Defendant avows the taking of the Cattel in loco quo c. as Bailiff unto Thomas Boothbye as damage feasant in the Close aforesaid being the soil and the freehold of the said Thomas Boothby Vpon the pleading the case appeared to be as followeth KIng Henry the 8. being seised in Fée in the right of his Crown in the maner of Chingford Comitis in the County of Essex of which manour a certain tenement called Lormiers
to be measured by ordinary rules of Law And 2ly Antient grants are to be construed as the Law was at that time when they were made 9. rep 27.6 rep 48. 〈◊〉 H. 7. 〈◊〉 14 E. 3. Fitzh Scire facias 23. and the King is not bound by a general custom as Common persons are 35 H. 6.29 by Prisot 22 Ed. 3. The King shall not pay a heriot upon the purchase of heriatable Lands and we shall find that many maximes of Law upon serious scanning of them are not so certain to be relyed on as they are commonly held to be 5. rep Knights Case Pasc 3 Eliz. B. R. Conisby and Risby Dyer 10 Eliz. and the patentee of the King shall have the same privilege that the King should have had if he had not granted the Letters patents 27 Eliz. Stubs and Rigfords case At another day Arthur Harris spake again to the point that the King had no legall intent to destroy the Copyhold Estate by his patent and therefore it should not be destroyed and cited Grotius de jure belli et pacis 343. and that no such intent can appear in the words of the patent and cited 7. rep Inglefields Case and 17 E. 3. f. 19. and Cooks Institutes 373. and 1. rep 46. and Plow 333. and as to the last point he argued that the Patentée of the King shall be in the same condition as to the reviving of the Copyhold Estate as the King should have been if he had not made the grant because that the King hath the Fee and he may grant it as he pleaseth Dyer 16 Eliz. 337.1 rep 31.10 Eliz. Dyer 266.24 Ed. 3. Fitz. Tit. guard 27. and no priority can be pleaded against the King nor against his Patentee Hill 30 Eliz. Stubs and Rightwayes Case an Action of Accompt against Executors doth lye only for the King It is true that prerogatives inseparable and annexed to the person of the King cannot be granted away by the King but prerogatives separable may be granted away 12 H. 4. Fitzh guard 81. The Grantee of the Grantee of the King shall have the prerogative of the King by reason of the thing granted by the King Brook praerog 17. 21 H. 7.2 Br. entre congeable 4â—â— The King may distrein for a rent seck but not his Grantee because it is a prerogative executory and not executed for in such case it is otherwayes and as to the objection to the cause of the demurrer set forth that the Concessit is not answered because it only sayes mentionat esse concessum I hold it well enough but if it should not be yet it is helped for both partyes do agree in the setting forth of the Letters Patents 34 Eliz. B. R. in Harâ— and Smiths case and the grant is confessed in our rejoynder and though the demurrer should not be good yet the Avowant cannot have Iudgement for he hath not entitled himself to the Action as appears by his grant for his grant is void and cannot take effect rep 46.8 rep 201.39 Eliz. in the Chequer Chamber Where 2. Manours are granted by the name of one of them the grant is not good And in our case Thomas Boothby had nothing in the land at the time of making of the deed of Covenant to stand seised to use as it appears by the Avowants own pleading and the postea cannot help it Dyer 111. Clarks Case Hill 15 Iac. entred Trin. 15 Iac. rot 29. Desmons case 20 H. 615. Hales on the other side argued for the Avowant and prayes a return of the Cattel distreyned first he put the Case at large And he said that the Plaintiff hath not well set forth the Kings grant in his bar and so it is all one as if he had not set it forth at all Plowd 563. and he hath disputed that which we have not alleged and the sur rejoynder is but argumentaive and not positive and nothing appears to the Court and he hath quite mistaken his course and way But admitting the case and the points to be as they are made viz. 1. Whether the new Office be well granted because the word Constituimus is omitted 2. Whether the grant for life be good 3. Whether the grant of the Copyhold for life be a suspension of the Copyhold estate or an extinguishment of it which is the great question in the Case For the 1 point I hold that here is a good grant of this new Office and that the word Constituimus is not necessary because that there are special fées also newly granted 2ly This is not an Office in gross consisting and resting upon it self but it is a relative Office or an imployment incident in the interest of the house granted and therefore the word Constituimus is not here necessary Dyer 200. 3ly If it be not a formal Office yet here is a good grant of an employment to which a recompence may be added although an Assize cannot be brought for it 3 Ass Trin. 6 Iac. Abercromies Case And here the protestation that the King was not informed that this was Copyhold land is unnecessarily alleged and therefore it is not of necessity it should be answered and if it be not well set forth it is not material For the 2 question whether the King was deceived in his grant he said that the King needed not to take notice of any former estates and that the Statute expresseth that it is not necessary to recite them 24 H. 8. 2â— To the 3 point the chief question whether the Copyhold estate be suspended or extinguished he held it was extinguished and cited Knights case Alton woods case and said that the rules of the Civil Law ought not to be applyed to the Common Law nor to be cited to perplex the proceedings thereof and were this in the case of a Common person without doubt the Copyhold estate would be destroyed 20 Eliz. by Popham and Fenn and the King here hath the Fee simple and there is no difference between the case of the King and of a Common person in this regard a thing which will not pass by the King without notice will not pass with notice and here is no prejudice to the King in not taking notice whether by the Patent the Custom to grant Copyhold estates be destroyed or not and here is a necessary consequence in Law that the custom is destroyed because the King that had the fee in the Manor hath suspended the Copyhold by his grant All the Arguments used on the other side are to destroy the Kings grant and the cases put do all differ from our case and do stand upon their own bottoms Nor shall the King be intended to be mis-conusant of his particular grant such as this is although he may be in a general grant lib. Ass 21. pl. 19. Pasch 12 Car. C. B. Glover and Edgars case and it would be a great mischief if the Copyhold estate should be revived As to the last point whether the
Patentee shall be in the same condition as the King was he said that it is not material whether he be or no as to the Case in question and rested upon the 3 question If the King hath free warren in land and grants the land and mentions not the warren yet the warren passeth by the grant And here out Avowry stands pro confesso because the Plaintif hath made no title A grant of a Manor per nomen maneriorum is a good grant of the Manor and here is a good grant and if not yet it is helped by the Statute of 3 4 Phil. Mar. C. 1. 1 H. 7. f. 28 and the Postea here refers not to the grant of the Copy and here is no ouster alleged and if there be there is do disseisin but it passeth an estate for will between the parties Roll chief Iustice It would be dangerous to make the Patent void because the King took no notice of the Copyhold estate and this point is not fit to be argued A thing not materially alleged in pleading is not necessarily to be answered and it is not necessary to create such an Office as this is for it is but an employment The great question is whether after the death of Sr. Iohn Gate the Copyhold estate can be revived or not in the case of the King It may be dangerous whether it be one way or the other As to the pleading we will not make it ill if it may be good Argue the great point again for it is a difficult point and of great consequence Ierman Iustice to the same effect and enclined that the King had no intent to destroy the Copyhold and he held that the Office was well granted because it was but an imployment Nicholas Iustice inclined that the Copyhold was destroyed At another day Wadham Windham argued for the Plaintif and first he put the case at large and then said that 1. It appears by the replication that the Avowant hath no title 2. He confesseth that the Plaintif hath a Title Queen Mary seised of the Manor of Chingford Comitis whereof Pipers Down is parcel grants it per nomen duorum illorum maneriorum and it is not averred that she had two Manors First it is considerable whether the Patent be good by the Common Law 2ly Whether if not yet it be made good by the Statute of H. 8. and he held 1. That it is not good at the Common Law because it is incertain and wants sufficient words and here is an apparent falsity for he hath two Manors and he grants but one and if the King have two Manors and grant them per nomen Manerii this is not a good grant As tithes belonging to a Rectory cannot pass by the name of a portion of tithes neither do all the Statutes of Confirmation of Patents confirm less or greater values granted than are comprised in the Letters Patents 41 Eliz. Pasons case in the Exchequer A presentation to a Rectory where it ought to be ad Medietatem Rectoriae is not a good presentation 2. rep Dodingtons Case Dyer â—31 An ill grant is not helped by the Statute because it is not named 2ly A false suggestion is not helped by the Statute of 34 H. 8. 3 Car. Sir Hatton Farmers case and in our case here is a mistake of a thing and not of the name for it is a Manor for Manors and so there is no true meaning and therefore it cannot be helped by the Statute Pasch 1 Iac. rot 216. C. B. Dawson against Pickering The Queen was seised of two Manors viz. of Rushworth and of Dale and granted the Manor of Rushworth habendum the Manor of Rushworth with the Manor of Dale and it was held an ill grant at the Common Law and not helped by the Statute But it is objected that this Manor may be known by the name of two Manors and so in our case although the King was seised of one Manor and granted this Manor habendum per nomen duorum Maneriorum this is good Mich. 22 H. 6. pl. 16. f. 13. To this the answer is that it cannot be pleaded per nomen without an averment that there are two Manors 2 Ed. 4. f 28. the last case There is a difference between a feofment and a release a feofment may be pleaded per nomen without an averment but a release cannot be so pleaded for in a feofment the livery operates to pass the land 22 H. 6. Hill f. 39. pl. 9.13 and Dyer the Serjeants Case where there is certainty there needs no averment but it is not so in our Case 1 H. 7. f. 28. and it is a forein intendment to suppose that one Manor of Chingford Comitis shall be known by the name of the two Manors of Chingford Comitis and we need not plead by a non concessit because the Avowant hath made no title and so he can have no return 1 H. 7. f. 28. 6 H 7. f. 6. and here is no certainty added to make it certain by the words illorum quod nuper perquisivimus de c. To the second point The Avowant hath confessed the Plaintifs title for he hath confessed that K. H. the 8th hath made it a Copyhold and if the Copy be good our title is good As to the question whether when a Copyhold comes to the King and he leaseth it this doth not so destroy the Copyhold that when the lease is out it may not be Copyhold again I hold that if a Common person lease a Copyhold the Copyhold is destroyed but it is not so where the King leaseth it as it is in our case which ought not to be measured by the Common rule of Law for the Law of the Crown over-rules the Common Law and the Law of Custom 22 E. 3. The King is not bound by Custom as a common person is 35 H. 6. The King having Gavelkind lands may destroy the Custom which runs with such lands pro tempore only and the Kings grant shall not enure to a secondary operation as Knights case is and here is no prejudice to any person that the Copyhold estate should be revived here the consequence may be severed and it is not necessary and therefore the lease of the Copyhold not naming it Copyhold is good As to the Objection made that it is no benefit to the King to make it Copy-hold again the answer is That it is a prejudice to take away a mans privilege and liberty if there were no other inconvenience but here is more for there may be prejudice by losing the Common c. And the rule that a Custom is an entire thing and cannot be apportioned shall not bind the King although it do bind common persons and the Statute makes not the grant good as to the reversion The Copyhold is demised and yet shall be demisable hereafter and so it may be pleaded for pleading follows the Law A Custom interrupted in the right is gone for ever
but if it be interrupted but in part it is not so as it is in the case cited where the King hath Gavelkind lands Com. Plowd 114. and so prays judgement for the Plaintif Adjourned Latch at another day argued for the Avowant and said that the Plaintif in his rejoynder hath made no title unto Susan Tong from whom he claims It is objected that by the grant of the Manor of Chingford Comitis per nomen duorum illorum maneriorum c. that Tong cannot be intituled It is answered that the other side hath confessed that Tong hath a title for they derive from her also and the contrary doth not appear to the Court and it being agreed the Court will not make a doubt of it He made 3 Questions 1. Whether the Manor of Chingford Comitis passeth per nomen duorum illorum maneriorum de c. 2ly Whether if the grant be ill it be aided by Statute 3ly Whether it be helped by the Averment For the 1. he held that here is a good grant without any averment or aid of the Statute for if the King grants two Manors one shall pass and e converso it shall not be so in the Case of the King but it is good in the case of a Common person with an Averment The grant of the Manor of Saperton cum Rippen is an ill grant for the incertainty of it but here is no such incertainty here is no non nosmer of the thing for the word nomina requires not a proper name but it is all one as if it had been expressed by words comprehending it and the word Manors doth comprehend it If the King grant his two Acres of Land lying in a Common field although but one Acre is to be found yet the grant is good and it is not like to the grant of a Manor with the Advowson where the King hath but a moyety of the Advowson or a moyety of the Manor for the Moyety is not actual in the whole but one is actually in two and so it is well named here 2ly Whether it be good without an averment that the land was in the Lord Darcy and he held it was If the words were general in the grant all of them ought to be true otherwise nothing will passe by the grant as Dodingtons case is but here is a proper name to express it and therefore the grant is not destroyed although the latter description do not agree to it 10. Rep. Harpers Case 2 H. 4. f. 2. If the King grant all the lands in the Patent annexed bearing date 10 of Iune though the Patent bear date the 10 of Iuly yet is the grant good for veritas nominis tollit errorem demonstrationis and if the grant should not be good at the Common Law yet it is ayded by the Statute of 3. 4 Phil. Mar. and here is a full and a strong averment in the pleading for it is Manerium praedictum and not Manerium generally and here is not only a possibility but also a facility for it to pass and it may be called Manor or Manors and in a feofment a thing may pass per nomen because that the livery passeth it where one pleads per nomen he is to make the Plea agree with the Record or specialty otherwise per nomen shall not be pleaded and Newtons opinion against this is but a single opinion 33 H. 8. Br. Averment 42. The word praedict makes an averment in the name of the Feoffor â—4 H. 4.30.22 H. 6.40 Barton and Escott here is also a full averment of the thing granted this is in grants 7 E. 4.24.33 H. 6. f. 22 26 Ass 2.24 Ass 6. so in Letters Patents Dyer 86. the Serjeants case and if this be authority it is in the very point Dyer 207. praedict per nomina is a good averment Pasch 7. Iac. Rot. 430. B. reg Stonehouse and Reeds case where there was not so much as a per nomina but only decimas praedict and yet adjudged to be a good intitling by the word praedict because it was held a good averment although it was not led on by a per nomina and there admitted to be clear if it had been with a per nomina as the Case here is so Tong is well intitled 2ly The Plaintifs title is well avoided and we have well destroyed his Copy without doubt if a Common person had granted the Copyhold for life the Copy-hold had been thereby extinguished and our case is not a prerogative case for the King is bound by the Custom of the Manor and the Custom is here destroyed and the prerogative cannot create the Custom anew and it is against the Kings Prerogative to have things drawn out of the King without matter of Record and it is prejudice to the King to have the Custom revived for the lands are now made free and shall never return again to the Vassalage The Kings Prerogative exalts him above a Common person but this custom makes him equal to a common person 2ly The Custom here cannot be supported but here is an absolute extinguishment of the Copyhold so that it cannot be regranted The law will confirm things necessary to the grant of the King in some cases where it is prejudicial to the King 16 H. 7. f. 8. Nicholas case Plowd 489. The king seised of a donative makes it presentative if he do but once present unto it so if he turn an Annuity into a rent charge by taking a distress And the nature of this Custom here ought not to be examined with other Customs for it is more strict than in other cases for if it be once destroyed it is always destroyed and cannot be suspended and it is not for the Kings dis-advantage to have the Copyhold destroyed but it is for his advantage and conveniency and so he prays judgement for the Avowant Roll chief Iustice All will come and rest upon the last point for all the other things are admitted The grant is good by the per nomen and it is only nominal and doth not imply that there are two Manors and it may stand well enough with reason that it may be known per nomen But the last point is considerable he enclined to Latch Nicholas Iustice to the same effect and that the praedict is a good averment The last point is considerable but prima facie here the custom is not destroyed Ask Iustice to the same effect and that it appears that the King intended to grant but one Manor Roll We will take time till the next term to speak to the last point which is only doubtfull and to deliver our opinions Ierman Iustice the pleading of the party per nomen helps not the Patent if it be not good in it self The next Term Roll chief Iustice for himself and the rest of the Iudges who he said concurr'd in opinion with him delivered the opinion of the Court to this effect 1. That they were agreed that
the grant of the Office of the Custody of the house is a good lease for life notwithstanding it was Copyhold and it is not necessary to recite in the grant that it is Copyhold 2. That after the estate for life is determined the King may grant the house and land again by Copy of Court Roll because the Kings grants shall be taken favourably and not extended to two intents where there is no necessity for it as there is not here and we are not here to intend a collateral intent and so the Copyhold is not destroyed for the Law takes care to preserve the inheritance of the King for his Successors and it may be a benefit to the King to have it continue Copyhold viz. to have Common c. and his election is also destroyed if he may not have it Copyhold So Iudgement was given for the Plaintif nisi Pawsey and Lowdall Pasc 1651. Banc. sup Pasc 1650. rot 275. IN this Case formerly argued Roll chief Iustice Iudgement reversed upon a special Verdict touching a Devise of Copyhold lands and Nicholas and Ask Iustices agreed that the devise of the Copyhold here is a devise to the Heirs of the Father and so a Fee-simple and that the party comes not in as a purchaser and for this cause the judgement was reversed nisi As to the other point whether the surrender of a Copyhold by a Tenant for life be good in this case the Court delivered no opinion Antea Trundall and Trowell Pasch 1651. Banc. sup Hill 1650. rot 670. IN this Case it was held that Tenant in antient Demesn cannot after imparlance plead antient Demesn for he hath made a full defence Where antient Demesne cannot be pleaded for he says Defendit vim et injuriam quando c. which implyes all the rest Mich. 22 Car. Banc. Reg. Yet it was ruled to be again spoken to Peck against Ingram Pasch 1651. Banc. sup THis Case formerly spoken in was moved again and Latch held Whether a good notice that the words obtulit se in maritagium conjungi was a good notice upon the whole matter and therefore that the Action did well lye Roll chief Iustice answered this is a personal thing and ought to be offered to the party himself otherwise it is no notice and that doth not appear here and if there be no notice implyed then the Action lies not and Holmes and Twists case is that there ought to be notice if the thing be to be done by the party himself otherwise if it be to be done by a stranger so is it here but the question only is if notice be implyed here or not Ierman Iustice said there is no tender of mariage if the other party be not there The rule was for the Plaintif to take his Iudgement Rooke against Smith Pasch 1651. Banc. sup ROoke brought an Action upon the case against Smith for speaking these words of him Thou art a poor fellow Arrest of Iudgement in an Action upon the Case for words and art not able to pay 2s in the pound and art not able to pay thy debts Vpon an Issue joyned and a Verdict for the Plaintif the Defendant moved in Arrest of Iudgement that the words are not actionable for 1. the Plaintif is not by them charged with the crime of being a Bankrupt and so there is no particular losse to him 2ly It is not showed that the Plaintiff got his living by buying and selling or that he is indebted and 11. Iac. Brook and Clarks case was cited Twisden on the other side answered that the Plaintiffs credit was impaired by the words and by his credit his livelyhood is in part mainteyned And he cited Viccary and Barns case Adjourned to the next Term. Wild afterwards moved again for Iudgement because the words being spoken of a tradesman he conceived them to be actionable Maynard on the other side held them not actionable because there is no particular damage alleged to grow to the Plaintif by speaking of them and because there is no crime objected against the Plaintiff for poverty is no crime but a man may be poor and honest at the same time and he cited two cases to be adjudged that a particular damage ought to be alleged And said that these Actions are not favoured in Law and therefore if the words be not cleerly Actionable it was not reason to make a forced construction of them to make them so Next the Plaintiff hath not averred that he was able to pay all his debts for all the things bought but only of a debt contracted by the buying of the Oyl mentioned Twisden denyed the cases put by Maynard of the particular damage and held the words actionable Roll chief Iustice said a man may be a Bankrupt and yet be honest for he may become so by accident Averment and not of purpose to deceive his creditors But here is no need for the Plaintiff to shew he had a particular losse by the words for it is enough that he is generally scandalised by them neither is it necessary for him to averr that he was able to pay all his debts as Maynard hath alleged Therefore let the Plaintiff have his Iudgement nisi Antea Owen against Jevon Trin. 1651. Banc. sup Pasc 1651. rot 211. OWen brought an Action of the case against Ievon for speaking these words of her Arrest â—f judgement in Action for words viz. This is the whore that my man Cowell begat a bastard on and spent all my mony upon and the quean hath been too long in Town to my ease Vpon an issue joyned and a verdict for the Plaintiff Twisden for the Defendant in arrest of Iudgment urged that the words are not actionable because there is no special losse or damage alleaged by the Plaintiff hapning to her by reason of the words said that in one Lighfoot and Pigots case it had béen ruled that an Action lies not for saying a woman had a Bastard and he cited also Winter and Barnards case Trin. 1650. in this Court. Vpon these reasons Iudgment was stayed till the other side should move Iay against Iay. Trin. 1651. Banc. sup Trin. 1650. rot 1350. THis case formerly put and spoken to Argument in a special verdict touching the consideration of the words of a will was again spoken unto by Latch wherein he made this question viz. whether the limitation to I. and his Heirs were good or not and he held it was not good for he said that such limitation in case of a freehold is void He confessed that in the case of Pell and Brown 17 Iac. rot 44. the contrary was adjudged but that there did appear such apparent inconvenience in it that upon it the Court was afterwards divided and 21 Iac. in the Serjeants case it was made a flat quaere and ever since it hath been disputable whether a contingent devise be good or not and in Iacob and Tellings case it is not
pacty who is to assign the dower may agrée that the dower shall be assigned without bounding it For consensus tollit errorem But dower ad ostium ecclesiae must be more certain Dower Mich. 43 44 Eliz. Bullock and Finches case Hill 4 Iac. C. B. Roll chief Iustice Of Common right a feme ought to be endowed per metas bundas where the Sheriff assigns dower who is an officer of the Law and ought to prevent incumbrance and disputes But it may be assigned generally of the third part in some cases Consent and the partyes may agree against Common right and here both partyes agreed to take dower in this Manor And though here the termer for years of the land who is a third person be prejudiced by this assignment yet this alters not the case because it is only an estate for years and toucheth no freehold Nicholas and Ask Iustices as Roll. Ierman Iustice If dower be of a third part it ought to be by metes and bounds generally but if it be of a moyety it is not so or if the partyes consent it shall be otherwise Roll if the Sheriff assign dower and do it not per metas bundas it is Error Error if it might have been so assigned and where a feme cannot be endowed per metas bund as she may enter without assignment Iudgement was given for the Defendant nisi c. Smith against the Earl of Dorset Trin. 1651. Banc. sup SMith moved the Court against the Earl of Dorset Motion for an attatchment for disobeying a rule of Court Attatchment for an attatchment for disturbing of him in the possession of certain Lands contrary to the rule of this Court for the Plaintiff to have possession The Court answered that for only disturbing his possession there ought not to be an attatchment granted but if he be put out of possession he shall have an attatchment The Councel replyed that the partyes cattel were driven off from the land which they conceived was an ousting of the party from his possession To this the Court answered that this seemed to be a putting out of possession And therefore ordered that the Defendant should shew cause why an attatchment should not be granted Owen against Ievon Trin. 1651. Banc. sup Pasc 1651. rot 211. THis case formerly spoken unto in arrest of Iudgement and then stayed Iudgement prayed in an Action for words was again moved and Iudgment prayed for the Plaintiff by Serjeant Glyn who argued that the words were actionable because if they were true the party of whom they are spoken is punishable by the Statute of 7 Iac. with corporal punishment and besides the words were spoken since the last Statute made against Adultery which doth aggravate the words and make them more actionable Iudgement was given for the Plaintiff nisi In this case it was said by the Court that it was adjudged in one Thecker and Duncombes case that a woman may have a child in 38. weeks and that a woman by cold or hard usage may go with child above 40 weeks Antea Nelson against Tompson Trin. 1651. Banc. sup Trin. 24 Car. rot 343. NElson brought an action of the Case against Tompson Demurrer in an Action upon the Case upon a promise and did declare that the Defendant in consideration that the Plaintif would cease to prosecute a sute in Law against him did assume and promise unto the Plaintif that he would pay unto him 8 l. the charges of sute which he had been at for breach of this promise Actio acrevit sets forth his damage To this Declaration the Defendant demurs in Law takes this Exception viz. That there is no time nor place set forth where or when he did forbear to sue the Defendant as it ought to be because it is a traversable matter But Roll chief Iustice answered It is not necessary to allege a place of a negative thing to be done viz. to say that he did not prosecute the sute in such a place or at such a time for he ought to surcease prosecution in all places and at all times Therefore let judgement be for the Plaintif except better matter be shewn Friday next Lydaâ—e and Lyster Trin. 1651. Banc. sup Mich. 1650. rot 387. AN Action of Debt was brought upon an Obligation made to a Bishop and his Commissary for the payment of Debts and Legacies Iudgement in Debt upon a Bond reversed the Action was brought by an Executor and judgement given by Default against the Defendant the Iudgement was reversed by a Writ of Error because the Action was brought in the Debet and Detinet whereas it ought to have been brought in the Detinet only because it was brought by an Executor Saunders against Ritch Trin. 1651 Banc. sup Hill 1649. rot 758. IN an Action of Trespass and Ejectment upon a special verdict found The Case fell out to be this Special Verdict in Trespass and Ejectment A man by his last Will and Testament devised all his Fée simple land wheresoever to his Brother upon condition that he suffer his wife to enjoy all his free lands in Holford during her life and the jury found that the Testator had only a portion of tithes in Holford The question was whether the portion of tithes did pass to the wife by this devise Merifield held That the Tithes passed not by the devise because the word lands cannot extend to tithes for that would be a very forced construction and cited Trin. 17 Iac. Banc. Reg. Knight and Knights case and Mich. 39 40 Eliz. Entred 38 Eliz. rot 269. Yow and Hardings case Banc. Reg. That Houses are not devisable by the name of lands and he said that the word wheresoever makes no difference as to make the tithes pass and though there be an implication and an intent in the Testator here to dedevise the tithes yet that will not serve because there wants words to express this intent and though this be in a will yet there must be words used to support the intent of the Testator for wills must be ruled by the rules of the Common Law Ashinghurst and Curtice his case Mich. 7 Iac. Hob. rep 34. the last Edition Mich. 42 43 Eliz. Banc. Reg. a devise of Lands extend not to tithes for tithes are not lands but a meer collateral thing to them and have no relation to them Mich. 1. Iac. rot 192. Mills and Hides case Banc. Reg. 11 Rep. Bridle and Napers case f. 13. b. Trin. 42 Eliz. B. Reg. Sherwood and Winston held that tithes cannot be appendant to a Manor 1 Rep. 111. Albanies case and here are no words in the Proviso to pass the tithes It is true that tithes may lie in tenure and that an Action of debt lies for them but that is by the Statute 19 Eliz Dyer f. 354. The word land in a will doth not extend to tithes and heirs ought not to be
dis-inherited by doubtfull and ambiguous words as it must be here if these tithes should pass Next as to the verdict he said that it is not thereby found that the Testator died possessed of the tithes as it ought to have been as it hath been adjudged 43 Eliz. and so he prayed judgement for the Plaintif Maynard of Counsel with the Defendant argued That the tithes did pass by the Will otherwise part of the Will must be void which ought not to be if all parts may be so construed that they may stand together and he agreed that lands and tithes are distinct things but in Wills it is not to be so much considered whether the words of them be proper but what was the intent of the Testator in them and whether they do declare his meaning or not and here by construction of the words by freelands inheritance is meant in opposition to Copyhold lands or terms for years 2ly Here is a positive assertion of the Testator himself that in his understanding he had free lands in Holford for he had no other lands there 35 Eliz. Robinsons case rot 504. Banc. Reg. by a will things of one nature may pass by words which are proper to pass things of another nature 44 45 Eliz. rot 125. A devise of lands and tenements will pass leases for years if there be no other lands to pass by those words in the place expressed in the Will and so prayed Iudgement for the Defendant Verdict Roll chief Iustice asked what he said to the exception that it is not found that the Testator dyed seised of the tithes without doubt it had been ill upon a Demurrer therefore see if you cannot help it by the notes by which the Verdict was drawn up But for the matter in Law me thinks it is a strong case that the tithes do pass for we are in the case of a Will where the meaning of the party shall be observed if it may be found out by any means though it cannot be collected ex vi Terminis and should it not be so here part of the Will would be void which may not be if we can make it otherwise by a reasonable construction But I will consider of the Verdict and do you consult with your notes Ierman Iustice The Verdict ought to find the dying seised and till I am satisfied from the Notes I will deliver no opinion Nicholas Iustice held both the devise good and the Verdict also but said it had been otherwise upon a Demurrer Demurrer Ask Iustice to the same intent Ierman Iustice It is clear that the Testator intended to devise the lands in Holford and it is a good devise but if the Verdict be imperfect it is for the Plaintif but if otherwise it is for the Defendant The Court would advise touching the Verdict Hayward against VVilliams Trin. 1651. Banc. sup Hill 1649. rot 824. THe Case was this a Feme was sued as a Feme sole but by the Sirname of her Husband Who may bring a Writ of Error who not she being then Covert The Feme appears and pleads and Iudgement is given against her and the Baron and Feme joyn in a writ of Error to reverse this judgement The question was whether the Baron who was a Stranger to the Record might joyn in the writ to reverse the Iudgement It was moved divers times and the Court advised and at last they said that a Stranger to a Record may not bring a writ of Error to reverse it but that is only where he may have another remedy to avoid the prejudice he may receive by it but in this Case the Baron hath no other remedy for his Wife is taken in Execution and by this means he shall lose her society And therefore reversetur nisi Antea Shann against Bilby Trin. 1651. Banc. sup Hill 1650. rot 1065. SHann brought an Action upon the Case upon a promise against Bilby Arrest 〈◊〉 Judgement in an Action upon the Case upon a promise and declares that in consideration that the Plaintif should surrender a Copyhold unto I. S. and his heirs according to the Custom of the Manor the Defendant did assume and promise to pay unto him 100 l. and that he did surrender the Copyhold into the hands of a Customary Tenant of the Manor according to the Custom of the Manor to the use of I. S. and his heirs and that the Defendant had not paid the hundred pound according to his promise and declares to his damage c. Vpon non Assumpsit pleaded and Issue thereupon joyned a Verdict was found for the Plaintif It was moved in Arrest of Iudgement by Latch of Councel with the Defendant that the Declaration is not good 1. Because it doth not set forth to whom the promise was made and if it do not appear to be made to the Plaintif it is nudum pactum for the promise here is the consideration 2ly The Consideration is Executory and the Plaintif doth not shew that he hath performed it and then he hath no cause of Action The Consideration was that the Plaintif should surrender a Copyhold to I. S. and his heirs according to the custom of the Manor and he only shews that he did surrender the Copyhold into the hands of a Customary Tenant according to the Custom of the Manor to the use of I. S. and his heirs and doth not shew that this surrender was presented at the next Court and so it appears not to be a good surrender Surrender for it is uncertain whether it shall be presented or no and till it be presented it is imperfect To which the Court assented and ruled against the Plaintif a Nil capiat per Billam nisi ◠c. In this case it was said that if a man covenant to convey lands Covenant it ought to be done at the charge of him that covenanteth to do it except the contrary be agreed Consideration And that if there be a double consideration alleaged for a promise if one of them be good and the other be not yet an action will lie upon the promise that is broken which was grounded upon these consisiderations Barcock against Tompson Trin. 1651. Banc. sup Mich. 1650. rot 444. A Writ of Error was brought by the Bail to reverse a judgement given against him upon a scire facias the Error assigned was Error brought by the Bad. that there was no Capias taken out against the principal and therefore the scire facias against the Bail is not good Hale answered that it was too late to urge this now for Error for the judgement is upon two nichils returned and cited 21 E. 3. f 13. 6 Roll chief Iustice said that two nichils is as much as a scire feci returned and it is no Error to give judgement upon it but it had been a good plea upon the scire facias to say that there was no Capias against the principal but now there
is a Iudgement well given Plea and it is too late to assign it for Error But the Court advised Postea Kerman against Iohnson Trin. 1651. Banc. sup Trin. 1649. rot 153. KErman brought an Action of Trespass and Ejectment against Johnson Special verdict in Trespass and Ejectment and upon a special Verdict found the Case was this A man devised to I. S. his whole estate paying his debts and Legacies and dies possessed of Goods and Chattels to the value of five pounds only and dyed also seised in fee of divers lands and was indebted forty pounds at the time of his death The question was whether the lands passed by the Devise Barry of Councel with the Plaintif argued that the lands did pass because that wills ought to receive a favourable construction And 2ly The intent of the Testator is to be considered who by the words all his estate did mean to comprehend as well his land as his goods and chattels for there is no restraint of the words here 7 Ed. 3.10 The word estate is a word of large extent and extends as well to the real as personal estate if it were in Case of grant much more in the case of a Will And there is another word used here to explain the Testators meaning to be to devise his lands as well as his goods and that is the word All which comprehends all manner of estates without exception Next if the land should not pass his debts and Legacies cannot be paid according to the express intent of the Testator and the intent of the party ought to be satisfied although the words be not proper because it is in a will though it might be other wise in a grant And whereas it is objected that the Iuries finding of the value of the debts and Legacies is to no purpose because the will cannot be helped by the averment of the Iury. I answer that averments if they stand with the will may be received to make the Testators intent to appear But besides this is not an averment only but a true stating of the Case to the intent to find out the Testators meaning 3ly The devisee of the land is not made Executor but Trustee or Devisee this is since the Statute of Devises 32 H. 8. The 2. question is what estate the Devisee hath in the lands I conceive he hath Fee simple because he hath all the Estate which must be the largest and that is Fee-simple Hob. rep pl. 280. The word whole goes both to the quantity and quality of an estate also And here the consideration that he is to pay all his Debts and Legacies is a good consideration to pass the fee-simple of his lands and though there may be a surplusage after the Debts and Legacies paid this hinders nothing for it is his intent that the Devisee shall have that surplusage and so he prayed Iudgement for the Plaintif Twisden for the Defendant argued that either nothing passeth by the Will or if any thing then only an estate for life passeth He agreed that improper words may sometimes pais things yet sometimes proper words will not passe things viz. if the intent of the party appear to be contrary 24 Eliz in the Earl of Northumberlands case A Devise of all his Iewels did not pass his Collar of Esses and his Iewels annexed to his Parliament Robes and the words here are not that he deviseth all his estate in his lands but his whole estate generally and if the words here should pass the lands yet the fee simple passeth not but only an estate for life in the lands which do pass nor do the words paying his Debts and Legacies cause the Fee-simple to pass for here is no likelyhood of any loss to the Executor for the words are not that he shall pay all his Debts and Legacies and if he be an Executor as the contrary appears not he shall not be charged with more than the personal estate will discharge The words do amount to a Condition and it is not found that there are any Debts or Legacies paid and so it is not performed and the heir may well enter into the lands in question for the Condition broken 2ly The Verdict doth not find how the lands are held whether in Socage or by Knights service and so it appears not whether they can be devised or no and they shall not be intended to be Socage lands Dyer f. 207. Hill 32 El. rot 2. and Pell and Browns case 3ly It is not found that the Testator dyed seised of the lands as it ought to have been and he prayed Iudgement for the Defendant Special Verdict Roll. chief Iustice to the second Exception to the Verdict answered that in a Special verdict it is not necessary to find whether lands be held in Sorage or by Knights Service and he said that the words in the Will do goe to the nature and extent of the estate as Barry urged and he doubted how the verdict shall supply the Will if it be defective for that is only to make the intent of the Will certain Adjourned to be argued again Postea Marshal against Ledsham Trin. 1651. Banc. sup MArshal as Administrator brings an Action of Debt for rent Arrest of Judgement in Debt and upon a Verdict found for the Plaintif the Defendant moved in Arrest of Iudgement and takes exception that the Plaintif had not shewn by whom the Letters of Administration were granted unto him as he ought to do but only says that the Administration debito more commissa fuit But it was answered that it is too late to move this Exception after a Verdict for the Iury have now found that the Administration was duly granted and the Letters of Administration were produced in Court and therefore not necessary to shew who granted them Declaration and it was said that in a Declaration it is not necessary to shew by whom Letters of Administration are granted or to say they were granted by him Cui pertinuit or per loci illius Ordinarium But in a Plea in Bar it is otherwise for this is not the cause of the Action Plea and effect of the sute but to shew they have been in the Spiritual Court Judicium nisi pro quaerente was afterwards given Antea Giles against Timberley Trin. 1651. Banc. sup Mich. 1650. rot 176. AN Ejectione firmae vi et armis was brought in the Common Pleas Error to reverse a judgement in an Ejectione firmae and a judgement given for the Plaintif upon a nihil dicit and in a writ of Error brought in this Court to reverse the judgement the Error assigned was in the judgement which was entred thus Ideo consideratum est quod recuperet and the word Capiatur was omitted which ought not to be because the Action is a Trespass vi et armis Roll chief Iustice said It is an ill course they use in the Common Pleas to enter
a Legacie and it may be there are debts owing which are to be paid before Legacies and here doth not appear to be any assets in the Executors hands besides this debt and if the Testator would have released it he ought to have done it by a deed Roll chief Iustice What shall the Executor do in this case I conceive it is a strong case for the Executor and that it is very unreasonable that the Testator should make such a devise and here is no consent of Mary the Executor expressed to this release besides a will cannot release a thing created by deed and so discharge Creditors Nicholas and Ask Iustices concurred But Ierman Iustice doubted For a fault in the writ of Error and imperfection in the record certifyed the Iudgment was not then affirmed Afterward Sir Humphrey Style preferred his bill in Chancery to be releived herein and obteyned an injunction till hearing but upon a hearing at the Rolls could get no relief but was ordered to pay 100 l. or else the injunction to be dissolved Q. Nota. Hamond against Ward Trin. 1651. Banc. sup Pasc 1650. rot 58. AN Action of debt was brought against the Defendant Error to reverse a judgment in debt upon an insimul computaverunt upon an insimul Computaverunt and a verdict and a Iudgement given against him whereupon he brought his writ of Error and assigns for Error that the Action was brought against him for rent as a Tenant of land and not as a receiver and that therefore an accompt did not lye Roll chief Iustice cited 20 H. 6. that rent alone lyes not in accompt because rent is a certain thing and it is also in the realty but if rent be mixed with other things an accompt will lye Accompt but here it appears the Action is brought against the Defendant as a receiver and if one receive mony due to me upon an obligation I shall have either an Action of accompt Debt or an Action of debt against him so if he receive my rents without my consent Therefore let the Iudgement be affirmed Alleyn against Holden Trin. 1651. Banc. sup Entred Pasc 1650. AN Action of debt was brought against an Heir who pleads riens per discent Error to reverse a judgment in debt against an Heir Iudgment was given against him upon a nihil dicit a writ of enquiry was awarded without the prayer of the party and a special Iudgement thereupon given against the Defendant Vpon a writ of Error brought to reverse this Iudgement it was alleaged for Error that the Iudgement ought to have been a general Iudgement and there ought not to have been a writ of enquiry except the party had prayed it and to this the Court enclined and Roll chief Iustice said that it is otherwise in an Action against an Executor for there assets may be found At another day Roll chief Iustice said Writ of inquiry if the Heir plead riens per discent and if it be a false plea a general Iudgement ought to be against him and there shall be no writ to enquire what lands he hath and it is not necessary as here it is to have a special Iudgement Iudgement that the Plaintiff shall recover of the lands discended for the Iudgement ought to be that the Defendants body and goods be lyable and half his lands and not as it is here a writ to enquire and find what lands he hath by discent Reverset nisi Barcock against Tompson Trin. 1651. Banc. sup THis case was again spoken unto Error brought by the Bail to verse a judgment given against the principal which was this A Iudgement was given in the Comon pleas against the principal without an original upon this Iudgment there issued out a scire facias against the Bail two nichils returned and thereupon Iudgment was given against the Bail a writ of Error was brought by the Bail to reverse this Iudgment And it was now argued by Hales of Councel for the writ of Error that the Iudgment was erroneous because it being given upon a scire facias which is a judicial writ it ought to be grounded upon an original and it not being so here it is Error in fact although it be not Error in Law To this it was answered that two nichils returned upon a scire facias amount to a scire seci and a judgment given thereupon is good and therefore it is too late now to say that the scire facias was not well executed Brook Sc. fac 96. 28. 17 Car. C. B. To this Hales said there was a Iudgement against us in the Common pleas so that we could urge nothing against the scire facias there but here we may Roll chief Iustice answered it is to some purpose to make up the record upon the two nichils otherwise there would be no end of things and the Iudgement is well given by the Iudges and how can you now make Error in it Iudgement and if you be inconvenienced by the Iudgement you are not without remedy Error for you may bring an Audita querela and you might have pleaded to the scire facias nul tief record for it is not matter of fact And therefore shew better matter why the Iudgement shall not be affirmed Audita querela and take liberty to bring an Audita querela Antea Tucker against Cosh Trin. 1651 Banc. sup Entred Trin. 1650. rot 388. TVcker brought a replevin against Cosh Special verdict in a replevin for distreining his Cattel The Defendant makes conusance as Baily to I. S. and upon the Avowry the case fell out to be this A tradesman in consideration of mariage made a conveyance of his lands to the use of himself and of his wife and afterwards becomes a Banckrupt and a commission of Bankrupt is taken out against him and the lands of the Bankrupt are sold by the Commissioners to the avowant that took the distress The question here was whether this conveyance made by the Bankrupt of his lands was within the Statute of fraudulent conveyances or not and the sale made by the Commissioners of this land were good Maynard for the Plaintif argued that it is not within any of the Statutes of Bankrupts The Déed here is without fraud and so it is not within the Statute for a valuable consideration is only expressed in the Statute and not a conveyance upon consideration of mariage as it was in our case 2ly The Feme is but one person with her Husband 3ly By comparing the Statutes together it appears that the wife is not comprised within the Statute of 1 Iacobi which looks back to other Statutes touching Bankrupts for the wife is not named in the Statute of 1 Iacobi but only children and other persons otherwise the words of the Act which do enumerate children and other persons would be frivolous and idle Roll chief Iustice said the Case is of great consequence and
Crisp and Prats case doth somewhat resemble this Bankrupt The Law intends a Bankrupt which is so by fraud as well as a Bankrupt who becomes so by accident and for this cause is he called an Offender in the Statute and here the year of our Lord 1637 is the 13 year of the late King the recovery suffered by the Bankrupt was then and within half a year after the recovery he became a Bankrupt so that me thinks there plainly appears to be fraud in the Conveyance Fraud but the fraud is not expressed in the pleading as it might have been The Statute of 1 Iac. is somewhat doubtfull as I conceive and I do not sée any provision made in it against the wife if fraud do not appear for here is no valuable consideration mentioned Nicholas justice said it is doubtfull yet he conceived it within the Statute of 1 Iac. which ought to receive a large construction because it was made for the good of the Commonwealth Ierman and Ask agreed with Roll in omnibus Roll Here the matter in dispute is not in a special Verdict but comes in question upon point of pleading Pleading which shall be taken most strong against him that pleads it and he hath not expressed any valuable consideration as he might have done by saying in consideration of a portion or in recompence of mariage or in performance of Articles made upon mariage or that the wife had joyned in selling some part of the land The Court would advise but enclined judgement ought to be for the Avowant Afterwards judgement was given accordingly for the Court held the wife was within the Statute of 1 Iac. and the providing for wife and children to be providing for himself Chapman against Brook Trin. 1651. Banc. sup Trin. 1650. rot 200. IN an Action upon the Case the Plaintif declared upon a Custom of commoning in such a place The Defendant demurred to the Declaration Demurrer to a Declaration in an Action on the Case and for cause shews that the Custom was not well laid for the Plaintif declares of a Custom of commoning pro averiis viz. pro equis bobus equabus et pullis and the word pullis is of an uncertain signification for it may signifie a Calf a Lamb or any other young Beast or Foul and 23 Car. Segar and Dyers Case was cited The Court held the exception good and said that it is incertain what is meant by the word pullus and said that if the prescripsion had been pro omnibus averiis it had been good Prescription and the viz. should have been void but here it is only pro averiis Therefore nil capiat per billam Newton against Godard Trin. 1651. Banc. sup A Writ of Error was brought to reverse a judgement given in an Action of Debt at Ipswitch Error to reverse a judgement in debt The Case was this There issued out a Capias against the Principal and a judgement was given against him and after a scire facias issued out against the Bail and a judgement thereupon was given against the Bail Then the Plaintif takes out an Execution viz. a fieri facias against the Principal and Bail upon both the judgements to levy the debt recovered upon the goods and chattels of the Principal and Bail or either of them It was alleged that the execution thus taken out was not good for there ought to have been several executions upon the several judgements Execution and not one execution and to this the Court agreed and ordered the Defendant in the writ of Error to shew cause why the judgement should not be reversed In this Case Roll chief Iustice took an exception to the scire facias Abreviation because it was scire fac with a dash which might be as well scire faciatis as scire facias Spittlehouse against Farmery Trin. 1651. Banc. sup Hill 1650. rot 43. AN Action of accompt was brought against a Feme Covert an Administratrix and her Husband in the Common Pleas Error to reverse a judgment â— ven in an Action of Accompt and judgement given against the Defendants quod computent The Feme dies and the Husband brings a writ of Error in this Court to reverse this Iudgement Roll chief Iustice held that the writ of Error did not lie because the Record cannot be removed by it for that would disturb the proceedings in the Common Pleas and the party would have no fruit of his sute if the Record should be removed nor any remedy to recover the arrears due unto him Original Scire facias Yet the Original is determined by the Iudgement given quod computent and a scire facias lies by the Executor as the case here is Ierman Iustice to the same effect and cited 1 H. 7. f. 2. Nicholas Iustice to the same intent and said he did not much regard the Book of 21 Ed. 3. because there are other Books against it Ask Iustice ad idem Roll chief Iustice put these cases A judgement was given in Dower for the Demandant and another judgement that she shall recover her damages and this second judgement for the damages was reversed by a writ of Error because she did not aver that her Husband died seised in which case she is to have no damages Iudgement yet the first judgement for the Dower stood unreversed and Hill 43 Eliz. C. B. in one Williams and Whites case in an â—â—ction of Accompt 2 judgements were given and the second wâ—s reversed and the first stood unreversed In the principle case the rule was judicium nisi VVallis against Bucknal Trin. 1651. Banc. sup Trin. 1649. rot 600. VPon a special Verdict the case fell out to be this Sâ—ecâ—al verdict upon a Custom of a Manor One selfe d of Copy-hold lands of inhâ—ritance made a Letter of Attorney unto two joyntly and severally to surrender the lands after his death to certain uses according to the Custom of the Manor The question was whether this was a good Custom or no. Ellis of Councel with the Plaintif argued that it was not a good Custom because a Custom ought to be reasonable but this Custom is unreasonable because it is not only against a particular Law but it is against the general rule of Law to pass estates of inheritance in such a Manor and although particular Customs may be against publique interest pro boâ—o publico yet this is nothing to our case for this is not for the publique good and therefore it is not good 2ly An authority ought to be countermandable and to determine by the death of the party that gives the authority but here it is not so but it is to continue after his death Next no man can give authority to another to do a thing which he himself could not do but here it is otherwise and therefore it is not good Also by the death of the Copyholder the Law settles the lands in the
and upon it the case sell out to be thus Special verdict in an ejectione firmae A having lands in see simple and also goods and chatels to the value of 5 l. only in Tavestock made his Will and devised to his wife totum statum suum viz. his whole Estate paying his Debts and Legacies and his Debts and Legacies did amount to the value of 40 l. Hales made 2 questions 1. Whether the lands passe to the wife by the Will or not 2ly If they do what estate passeth to her in the Lands For the first he argued that the lands do passe to the wife 1. Because the generality of the words do include the lands as well as the goods for the words are his whole Estate so that nothing is excluded 9 E. 4. a release of all Actions is held a release of all Actions that the party had in all his capacities 2ly The ordinary maner of spéech doth shew that he intended to devise his lands as well as his goods Riches case Mich. 45. Eliz. C. Banc. A devise of all his rents was held to passe all the partyes lands Also the subject matter in fact doth prove this to be his intent and although here is not a collateral averment to prove the intention but a collateral proof to declare the Testators intent this may be admitted to ascertain the Court of his meaning as it is in the case of proving an Act of Parliament In the Lord Cheneys case an averment standing with a Will was accompted allowable though an averment against a Will be not In Cooper and Lanes case 35 Eliz. a devise seigniori puero where the Testator had a Son and a Daughter was held a good devise to the Son although puer signifies as well a Daughter as a Son and the Daughter there was elder than the Son and Hill 8. Car. In Bartler and Rodes case in B. R. a devise of all his lands in Dale if he had leases as well as lands there passed not the leases For the 2d point he argued that a fee simple passed 1. Because his whole Estate is devised and that is to be applyed as well to the lands as to the goods 2ly Because in regard that there is a consideration for it to wit that the wife shall pay his Debts and discharge his Legacies and whereas it is objected that it is not said she shall pay all his Debts I answer that it shall be so intended Here is land and goods mentioned and not land only and it is found that the goods only are not sufficient to pay the Debts and also the goods were liable to the payment of the Debts without this expression in the Will and therefore the land must be intended to be devised And for the verdict it is not material to find the lands to be held in socage for they shall be intended to be so held because it is the most antient Tenure for where the Law creates a Tenure it shall be socage Tenure 2ly Lands may possibly be deviseable although they be not held in socage for if they be neither held by socage nor chivalry yet they are deviseable Dyer 307. Neither is it material to find the Debts and Legacies paid for it is a condition here an not a limitation and there is a person to take advantage if the condition be broken this is a special verdict the breaking of the condition if it had béen broken would have appeared upon evidence therefore it is not necessary to aver it it is in case of a Fee simple which is an Estate intended to continue Devise Roll chief Iustice held that the lands did passe for so he said the common understanding imports and the words do go to the value of the estate 1. It comprehends the thing to wit the land 2ly The extent of the Estate given viz. Fee simple and so it shall be here intended and the words paying his Debts and Legacies doth enforce this construction for they are to be paid presently which cannot be if the lands passe not in Fee and so the aberment it is but to supply the meaning of the Testator and stands very well with the Will and is not so collaterall as it is in Cheyneys case And for the verdict the lands shall be intended to be socage lands Intendment as being the most Common Tenure except the contrary were shewed on the other part Denham and Bakers case Mich. 24 〈◊〉 entred Trin. 23. rot 12.80 and the words paying his Debts and Legacies are words of condition and not of limitation Ierman ad idem and said Condition̄ Limitation when we say a man is a man of a great Estate we mean his Estate in lands as well as goods Nicholas and Ask Iustices to the same effect but Ask said he doubted of the verdict because no Legacies are found and this is part of the case Iudicium pro querente nisi Antea Pickering and Emma Trin. 1651. Banc. sup EMma obteined a Iudgement against Pickering For a supersedeas upon an audita querela brought and had satisfaction upon it and gave a release to the Defendant yet afterwards takes out a capias ad satisfaciendum against him whereupon he brings his Audita querela and moves the Court that he may have a supersedeas to the capias ad satisfaciendum The Court desired to see the release and upon view thereof The rule was that the party should proceed in his audita querela but said they would grant no supersedeas because the release was ambiguous Custodes c. against Rivett Trin. 1651. Banc. sup VPon a rule of Court to shew cause why an Attatchment should not be granted against one Cause why an Attatchment should not be granted for proceeding to a tryal in an iuferior Court notwithstanding a habeas corpus directed to remove the cause An Affidavit was made that the proceeding to tryal was because it was supposed the habeas corpus was against the Statute of 21 Iac. The Court answered you ought to have returned this matter upon your return and not to have proceeded against the habeas corpus but let the Secondary examine the matter and then move again Return But it is dangerous to execute the Iudgement if the Statute be not against the habeas Corpus The Custodes against my Lord Morley Trin. 1651. Banc. sup THe Court was moved on the behalf of the Lord Morley for a Certiorari to remove an Endictment preferred against him at the Sessions of Peaco at Hicks Hall upon the Statute against hearing of Mass For a Certiorari to remove an Endictment The Court answered that they would advise but that they did not see how a Certiorari could be granted at the prayer of the party but they said at the prayer of the Councel for the State it may be granted Baker against Smith Trin 1651. Banc. sup BAker brought an Action upon the Case against Smith and
supplyed by a forein intendment and the party shall be intended to be in custody according to the Custom of London and not by the Common Law Declaration Roll chief Justice held the Declaration good for the prisoner was in custody of both the Sherifs although he was in the Custody of Pack and it stands well enough with the Record and the words ut praefertur do not hurt the averment Averment and the words existent in custodia is a good averment that he was in custody as in an endictment Tunc existens tenementum is good and it is also here found by the Iury that he was in custody for how else could they find for the Plaintif Ierman ad idem But because the two other Iudges had no Books delivered them they would deliver no opinion then Afterward Iudgement was given for the Plaintif Cottrell and his VVife against Theoballs Mich. 1651 Banc. sup COttrell and his Wife brought an Action upon the Case upon an Assumpsit against Theoballs and declared that the Defendant Arrest of judgement in an Action upon an Assumpsit in consideration that the Plaintif would marry A. that is now the Plaintifs wife did assume and promise to the Plaintif to make good a Legacy given unto her by her Fathers Will and would also give unto her 40 l. more out of his own part given unto him by the said Will at her age of 18 years and declares further that thereupon he did marry her and that the Defendant had not performed his promise and so concludes to his damage so much Vpon non assumpsit pleaded and a Verdict for the Plaintif the Defendant moved in Arrest of judgement and took divers Exceptions but the Court insisted but upon one of them and that was held material and it was this That the Wife did here joyn in the Action with her Husband Action which she ought not to do because the promise was made to the Husband only and for his benefit and the sole consideration for the promise doth arise from the Husband namely his marying the Feme And Bafield and Collins his case 22 Car. and Cheesman and Wats case 23 Car. were cited and Roll chief Iustice put this case A promise was made by one to a Feme Covert that if the will procure her Husband to levy a fine of such lands that he would give her a riding suit And it was adjudged that the Baron and Feme cannot joyn in an action for breach of this promise and he said that in the case at Bar it was a meer covenant and no duty grew thereby to the Feme Case Postea Goodyer against Shaw Mich. 1651. Banc. sup Mich. 1650. rot 633. GOodyer brought an Action of Trespass for an Assault and Battery Demurrer to a plea in an Action of Trespass and wounding of his Servant and taking away 12 plate locks against Shaw The Defendant Shaw pleaded not culpable to the Assault and Battery and wounding and as to the taking away of the locks he pleaded a special plea of Justification by vertue of Letters Patents of incorporation granted to the Lock-smiths of Durham by Cutbert Bishop of Durham who had jura regaliâ— within the County Palatine of Durham and that by vertue of this Charter the locks being not good he as Warden of the Company did take them To this Plea the Plaintif demurred and for cause it was shewed that it appears not by the Plea that the Black-smiths are a Corporation created by the Bishop but only that the Customs used amongst them in Order to the regulating of their Trade were confirmed by the Bishop which doth not make them a Corporation Plow f. 199. Long quint. f. 40 41. 2ly It doth not appear by the Charter that they have any authority to take away ill made locks and therefore judgement was prayed for the Plaintif Roll chief Iustice said That here doth not appear any Order made by the Corporation to take away the Locks Corporation and therefore it was done without warrant though the Corporation had such a power But besides it will be very hard to maintain the Lock-smiths to be a Corporation because the Bishop confirmed their Orders Therefore let the Plaintif have his judgement nisi Bishop against Fitzherbert Mich. 1651. Banc. sup BIshop brought an Action upon the Case against Fitzherbert Arrest of Iudgement in an Action for words for speaking these words of him thou art a Theef and hast stollen Horses Vpon not guilty pleaded and a verdict found for the Plaintif It was moved in Arrest of Iudgement that as the words are laid in the Declaration they are not Aâ—ionable for it is incertain of whom they were spoken The Declaration was thus That the Defendant Colloquium habens cum querente in the presence of others dixit meaning the Plaintif Thou art a Theef and hast stollen Horses The Court at thâ— first moving of this Case enclined the words were actionable because it shall be intended they were spoken of the Plaintif though it be not directly said so And afterward it being moved again the Court held the words well enough laid to bear an Action because upon the whole Record the words plainly appear to be spoken of the Plaintif and therefore Iudgement was given for him Freeman against Childeress Mich. 1651. Banc. sup Entred Trin. 1651. rot 45. FReeman brought an Action upon the Case against Childeress for speaking these words of her She is a Whore and I will prove her a Whore Arrest of Iudgement in an Action for words and an arrant Whore Upon not guilty pleaded and a Verdict found for the Plaintif it was moved in Arrest of Iudgement that the words are not actionable because they are but words of choler and spoken in passion the judgement at the first moving of it was stayed yet it was then doubted whether the words did not import more in them than to say barely of a woman she is a whore But afterwards it being again moved Roll chief Iustice said that the words were too generally spoken to be actionable and that they are but words of passion and that before the Act made against Adultery prohibitions have been granted to the Prerogative Court for libelling against persons for calling of women whores Prohibitions and therefore Nil capiat per Billam nisi Preston against Mortlock Mich. 1651. Banc. sup AN Action of Trespass was brought against 4 Defendants and before a Verdict one of them dyed and the Verdict was found against the Defendant Iudgement Twisden prayed the Plaintif might have judgement against the other three Roll chief Iustice answered If you will relinquish your damages as to the person that is dead you may have judgement against the rest Davis against the Lord Foliot Mich. 1651. Banc. sup THe Court was moved to grant the good behaviour against the L. Foliot Motion for the good behaviour because he was endicted for a foul Battery at the Sessions
upon them according to the fact found upon the Record because it was a foul riot The Court answered they are found guilty of the riot Fine and therefore the fine cannot be lesse than ten pounds at the least for the principal there being a verdict in the case and so let it be and 4. marks a piece for the rest For we must preserve the peace of the County Baker against Smith Mich. 1651. Banc. sup THe case of Baker and Smith formerly spoken to was again moved In answer to a matter spoken in arrest of judgement and Maynard answered the exceptions offered in arrest of Iudgement 1. It was objected that here was not a mutual promise set forth between the partyes for there is no agreement made by the Feme for it is only said that she consented to marry the party which is not a binding agreement To this he answered here was a mutual and binding agreement though it be not so plainly expressed in words as it might have been 3 H. 6.36 37. A verbal promise may be discharged by words and so it is here London and Stokes case Trin. 10 Car. rot 236. Next it is not necessary here to give notice of the discharge of the promise though if there be notice it is well enough because the thing to be done upon it to wit the payment of the 1000 l. is certain and the discharge shall be intended to be in the presence of the party to whom it is given for the Declaration is exoneravit ipsum which shall not be intended in his absence Pasch 10 Car. Harvy and Inglethorps case and Mich. 8 Iac. Martin and Wilbie Hodges and More Pasch 1 Car. Banc. Reg. 7 Iac. Bradlyes case 14 Iac. Beedly and Goodrose Latch on the other side argued that here is no binding promise on the behalf of the woman to marry with the Defendant and so the discharge of it can be no consideration for this is not a reciprocal but a bare acceptation of the promise made by the other and an action of the case lay not against her if she had refused to marry with the Defendant because here is no repromission made by her 2ly It appears not that the discharge was in convenient time for it was 2 years after but admitting that to be so yet here is no notice of the discharge and that is necessary to be given and it shall not be intended to be given without shewing it for the Declaration ought to be certain and here is no inducement in it that there was any notice given in his presence and if it were given in his absence he ought to have notice given him of his discharge else how should he know it and it were unreasonable to charge him if he had no notice and by a third person he cannot receive notice as it is in the Cases put by Mr. Maynard on the other side In the Case of Peck and Ingram in this Court adjudged that the party ought to have notice when the Feme left her Fathers House and came to such a place Roll chief Iustice said here are two promises 1. The Feme assumed that if the Defendant would marry her she would consent to him Coâ—sideration Promâ—se in Law Mutual Coâ—tract Implication and here is a consideration although there be not an absolute mutual promise for it is a promise in law and the Action may be laid by way of consideration or by way of mutual Contract 2ly Here is but a promise de futuro and there may be a temporal loss although the thing to be done viz. the mariage be spiritual And the dis-engagement of the party doth not imply notice but the demand of the 1000 l. now implies a discharge nor can the party here take notice of a third person and therefore it is necessary to give him notice Notice for where the party cannot take notice from any but the party himself there notice must be given him Ierman Iustice held here was a good mutual promise to raise a consideration and by the words exoneravit ipsum it shall be intended to be to the person himself this implyes a notice especially it being after a verdict Nicholas Iust much to the effect as Roll chief Iust but he doubted whether the words do imply a personal notice for it may be it was in his absence and the verdict will not help it and so there can be no judgement Aâ—k Iustice said here was a good promise but the words exoneravit ipsum do not imply a notice so the Court was divided and would advise Hume against Hinton Mich. 1651. Banc. sup HUme brought an Action upon the Case against Hinton Aâ—rest of judgement in an Action upon the case upon a promise and declared That whereas the Son of the Defendant did in his life-time owe unto the Plaintif 8 l. and dyed intestate the Plaintif did demand the said 8 l. of the Defendant being Mother to the intestate whereupon she being satisfied of the justness of the debt did assume and promise unto the Plaintif that if he would stay for the money till Mich. next that then she would pay it Vpon non Assumpsit pleaded and a verdict found for the Plaintif the Defendant moved in Arrest of Iudgement that here was no consideration to ground the Assumpsit upon because it was not the debt of the party that assumed to pay it neither was she Executor or administrator nor consequently lyable any way by law to pay it and therefore an Assumpsit to pay a remediless debt if the Plaintif would stay for it is no good Assumpsit as in 6 Car. in this Court in Morgans Case An Assumpsit to pay the rent of the land behind if the party would forbear to distrain Corn in the shocks was adjudged no good Assumpsit because such Corn is not distreinable and it appears not here what person the Son was or where he lived or that he either had or lest any goods and the meer ground of the Action is the piety of the Mother and no other matter And here appears no person liable to pay this debt neither plainly nor by intendment and the Ordinary is not chargeable if no goods come to his hands And 2ly There is now no Ordinary for it is taken away by the Parliament and 9 rep Bains case is not like to this case neither is Iones and Smiths case Trin. 8 Iac. rot 192. like to this case for there was a person liable to be sued but it is not so here so that this is a stronger case But if there should be a good consideration yet the averment of the performance of it is not good for it is not certain how he stayed Wild for the Plaintif held that here is a good consideration because the Plaintif is hereby tyed not to sue any person whatsoever for the debt till Michaelmas and so it is a prejudice to him to forbear And it shall be intended
Court Twisden on the other side confessed the Books were so but here the Battery is not apparent and the wound is internal and not to be viewed by the Court. Roll chief Iustice said 3 things are considerable 1. whether the Court can increase the damages 2ly Whether the wound be apparent and 3ly Whether the damages given be too small The Court upon view of the party and examination of Chirurgions and Witnesses on both sides upon Oath did conclude that they might increase the damages and that the wound was apparent and that the damages were too small and therefore they increased them to 400 l. and said they would not encrease them more because they could not inquire into all the circumstances of the fact as the jury might but they thought fitting to encrease them in some proportion because the offence was great and such outragious Acts are not to be slightly punished VVallis against Bucknal Hill 1651. Banc. sup VPon a special verdict found in an Ejectione firmae the case sell out to be this Special Verdict in an Ejectione firmse A Copyholder of inheritance made a Letter of Attorney to two joyntly and severally to surrender his Copyhold lands in Fee to certain uses after his death according to the Custom of the Manor The question made by Ellis of Councel with the Plaintif was whether the Custom was good or not he argued that it was not a good Custom In Sir Iohn Davis Reports it is said a Custom must be reasonable and a Custom may be reasonable when it is but against a particular Law and not a general Law but the Custom here thus to convey land is against a general Law Particular Customs may be against publique interest pro bono public but if they be not as in our case they are not they are not good Pro bono publico Next an authority given ought to be Countermandable and to determine at the death of the party but this is not so and therefore it is no good authority 19 E. 3. f. 5. 2ly None can give an authority to another to do a thing which he could not do himself but here it is otherwise and therefore it is not a good authority 3ly By the death of the Copyholder the lands are setled in the heir and this authority given shall not devest them and this is not like the surrendring of lands into the hands of the Lord for a surrender cannot be revoked but this authority is revokable Next the Verdict doth not find that the 2 Attorneys are Customary tenants but only by way of recital which is not good nor doth it appear they were customary tenants at the time of the admittance and here is not found any possession or title in the Defendant and so the Plaintif having primer possession the Defendant is guilty neither is it found that the customary Tenant had see-simple in the land And if he had but an estate for life he could not make such a letter of Attorney Also the authority given is not warranted by the Custom set forth Wilmot of Councel with the Defendant said That this authority here is supported with a special direction which may survive the party that gives it 1 H. 7.8 And an authority may survive the party that gives it else how can an Executor sell lands by the authority given unto him 21 E. 4. f. 8. 31. E. 1. Fitzherb 45. and as for the heir he hath neglected his advantage it he had any and cannot now take it But besides the authority here given is more than a bare authority for it is backed with circumstances of time and person and here is also a Custom to support it and this Custom is a reasonable Custom for it is but to enable a man to dispose of his own lands and there are far more unreasonable Customs than this allowed in our law as the Custom of Kent for one of the age of 15 years to be enabled to sell his lands and this Custom is not against any positive rule of Law for the custom is to create the authority to begin after his death and so it is not to determine by his death for till then it begins not and the Custom here is but to alien lands which is no strange thing and it is extended but within a small compass of land and so cannot be very prejudicial to the publique And Bambridge and Whaddons case 17 Car. in this Court cited on the other side doth differ from this case for tâ—ere was no Custom to support it And it doth appear here by the Record that Dalby the Attorney is a customary Tenant and the admission here is found to be secundum consuetudinem Manerii And one cannot gain a Copyhold estate by disseisin and so here can be no primer seisin intended and it is found the Copyholder is seised Roll chief Iustice said It will be hard to maintain the Custom Custom if it be not found that the party was seiâ—â—d in see of the Copyhold lands But 2ly it is not here found that the land is demisable according to the will of the Lord and so it may be free land then the custom doth not reach it Neither is it found that the 2 Attorneys were Copyhold Tenants and the primer possession here will make a disseisin by the Defendant if the Custom be not well found and then it is for the Plaintif and I cannot see how the Custom can be good it being against the rules of Law for a man cannot devise a Copyhold and here the case is worse Devise but he may surrender to the use of his last Will and Testament At another day Wilmot to the Exception taken That it is not found that the two Attorneys were Tenants of the Manor said there is so much found as shall make them be presumed to be Tenants of the Manor for it is found that the party is admitted secundum consuetudinem Manerii which cannot be a good admittance if they were not Tenants Roll chief Iustice answered to be admitted secundum consuetudinem goes â—o the Admittance not to the Letter of Attorney But we will advise At another day Twisden prayed judgement for the Plaintif and insisted upon the Exception that the two Attorneys were not found customary Tenants for one of them is not mentioned at all and the other is found so only by way of recital and so they have not entitled themselves to the Custom and then the Defendant hath no title The Court ruled to shew cause Saturday following why the Plaintif should not have judgement Antea Custodes against Tawny and Norwood Hill 1651. Banc. sup TAwny and Norwood were jointly endicted for blasphemous words severally spoken by them Endictment for speaking blasphemous words upon the late Statute made against blasphemy and were convicted the parties being removed hither by Habeas Corpus It was urged that the Endictment was not good because it was joynt whereas the words being
was a grant but of part of the reversion of the land which case comes not within the Statute for the Grantor cannot have advantage by the Statute where he grants but part of the reversion and it is not literally without the Statute and therefore it is within the equity of it otherwise it would be mischievous to the Grantor and here is no disadvantage to the Lessée by the transferring of the condition for the same Statute that gives benefit of the condition gives benefit of the Covenants and the Grantée of a reversion shall have benefit of a Covenant to be transferred although they are entire in words at the beginning and hath one common conclusion Wild of Councel on the other side held the condition to be entire according to Rawlins case and goes to payment of the rent and the fine and reparations also and the reversion being assigned with which the rent passeth the condition is gone also to the fine Dyer 309. and this is a stronger case than that to destroy the entire condition by grant of the reversion 17 El. Brightmans case C. B. The fine here is a sum collateral and is not incident to the reversion and so the condition is collateral and cannot be apportioned 5. rep Spencers case 34.8 Br. Cov. 93. 2ly The Statute of 32 H. 8. cannot help it for the purview of the Statute explains the large preamble of the Statute and shews the intent of the makers of it to be for forfeitures incident to lands and reversions and a covenant is here as general as a condition and the Statute extends not to a collateral covenant and therefore not to a condition collateral 35 H. 6. f. 56. Condition and the cases put on the other side come not to our case And as for the mischief which may ensue by this it matters not for it might have been prevented by providence of the partyes and the inconveniences which may happen to them must not alter the Law Roll chief Iustice said if he release the fine the condition will not stand as to the rest otherwise if the fine expire by effluxion of time or if he release the reparations the condition is gone as to the rest for the condition here is entire and goes in the destruction of the Estate and it is the Act of the Lessor himself to assign over the reversion and by that all is passed away that is incident to it and by consequence the condition Ierman Iustice demanded What if the Lessor shall pay all the fine presently Roll chief Iustice answered it may be it will destroy the condition Nicholas Iustice said the condition is odious in Law because it goes in destruction of the Estate Adjourned to be argued again because held a case of consequence At another day the case was moved again and argued by Latch for the Plaintiff who made the question to be whether the condition as it is penned may be severed or no and said that as it respects the rent it is not a condition in grosse but as it respects the fine it is a condition in grosse and a condition which is entire in words may by acts of Law receive distributions Where the penalty of a condition is intire there the condition cannot be apportioned but the condition is not so here and therefore may be apportioned Dyer 30â— Knights case â— H. 7.6 Perkins 162. 7. H. 7 Kelm 60. Dyer 334. Popham in Dumports case is contrary to Dyer Cook Lit. 203. 2ly It is questionable whether the Statute may help in our case and he said it doth for the name of rent is not altered nor the condition attending upon it nor any thing done to alter the execution of the condition 3ly By the assignment there is no injury done to the Lessée for by it here is a freeing of a thing to be done and the Statute is a favourable Statute and to be extended with indifferency Finch on the other side argued much to the same effect as he did formerly Roll chief Iustice said it is not necessary for the party to express how the condition relates to all viz. the re-entry for non payment of the rent and of the fine and for not repairing and he said a man cannot by his own Act divide a condition for we must keep the rule of law which is not to divide a condition which goes in destruction of an Estate and this case is not within the Statute of 32 H. 8. All the rest of the Iudges concurred with Roll and so the rule was judicium pro defendente nisi Brown against Nelson Hill 1651. Banc. sup Trin. Hill 1650 rot 897. AN Action of Debt upon the Statute 7 Ed. 6. for selling of wine without licence Whether a Iudgement given against one of two Defendants were good was brought against 2. Defendants they both plead nil debâ—t whereupon issue being joyned a special verdict was found viz. that as to one nil debet and that as to the other he had drawn a pint of wine without licence and upon this Iudgement was given against him that was found culpable It was questioned whether this were a good judgment But Roll chief Iustice concluded it was à good Iudgement and cited many cases adjudged in point to prove it and one in particular in an action upon the Statute for dying with Logwood and he took a difference between an action grounded upon a joynt contract or a joynt trespasse and an Action brought joyntly upon a Statute against two or for a tort done by two as this is upon the Statute In the first case Iudgement cannot be given against one of the contractors in the other it may Weld against Rumney Hill 1651 Banc. sup Hill 1650. rot 1193. A Writ of error was brought to reverse a Iudgement given in an Action upon the case against two Executors Error to reverse a judgment in an action on the case and the error assigned was a matter in fact viz. that one of the Defendants was within age at the time of the Action brought and did appear and plead by his Attorney whereas he ought to have done it by his guardian Twisden for the Defendant in the writ of Error said that it is not all one to appear within age in his own right and in anothers right for where he appears in his own right he ought to appear by his guardian but where he appears in auter droit as he doth here being an Executor he may appear by Attorney and cited Draytons case 9 Car. Appearance But Roll chief Iustice denyed the difference and said it may be that the Executor may be charged of his proper goods as in case he have wasted the Testators goods and then it is not reason but he should plead by his guardian and he is not within the Statute of 21 Iac. for that Statute was made for the Plaintiff and this is in case of a Defendant therefore he should have appeared by
him Wild in Arrest of Iudgement takes these Exceptions to the Declaration 1. It saith that the Principal rendred himself in Execution to discharge his Bail and saith that afterwards he escaped whereby he could not have him in Execution which séems contradictory to what he formerly said 2ly He saith that he rendred himself to the Mareschall whereas he ought to say that he rendred himself to the Court for it is the Act of the Court that turns him over to the Mareschal Roll chief Iustice He cannot render himself to Sir Iohn Lenthal in discharge of his Bail Bail for only a Iudge can take and discharge a Bail and not Sir Iohn Lenthall but here it is that he did it in Court and therefore it is well enough for he may render himself to Sir Iohn Lenthall in Court though out of Court he cannot and therefore let the Plaintif have his Iudgement Rogers and Done Trin. 1652. Banc. sup Pasch 1652. rot 354. IN an Action of Trover and Conversion for 3 Cart loads of Dats Arguments upon a Demurrer to a Plea to the jurisdiction of this Court Barlie and Pease The Defendant pleaded a special Plea to this effect That the land where the Trover was supposed to be is 5 acres of land lying in B. and that is within the County Palatine of Chester and that he holds the land for term of years and by vertue thereof did sow and take the Corn thereupon growing and traverseth the Conversion out of the County Palatine and avers that there are Courts of Iustice held within the County Palatine so that Iustice may there be had and says that he ought to be sued within the County Palatine and not elsewhere and therefore demands Iudgement if he ought to be sued in this Court. To this plea the Plaintif demurred and shewed for cause that the Action being for a transitory matter it may be tryed out of the County Palatine as well as within although if it were for a local matter it would be otherwise and the party here hath pleaded not guilty which may be tryed any where Cooks Instit 282. In some Cases an Obligation hearing date at Chester may be sued in another place 19 E. 3. Fitz. Oar. 29.45 Ed. 3. Fitz. visne 50.9 Iac. C. B. Richardson and Meares a Battery in Chester tryable out of it 11 H. 4. f. 40. Crompton Iuriâ—diction of Courts f. 213. Transitory things emergent in the County Palatine of Chester may be tryed else-where 45 E. 3. f. 17. And so it was prayed the Defendant might plead over Serjeant Glyn on the other side held that this plea was a good plea to the Iurisdiction of the Court. Here are many matters of fact confessed and the matter in Law is whether the title of the land within Chester shall be tryed out of that jurisdiction In 31 Ed. 1. in the Exchequer it is clear they have conusance of Pleas. Roll chief Iustice to that answered but it is not that they shall not be removed thence Serjeant Glyn proceeded said that also upon a reference to 4 Iudges by Queen Elizabeth it was certified that all Actions real and personal arising in Chester are tryable there and not elsewhere 22 E. 4. Fitz. Iurisd 61. 21 H. 7. f. 23. 1 H. 7.26 10 H. 6.14 a H. 4. f. 25. As to the Objection that this is a clear personal Action and therefore transitory 1. I deny the authority of Cook in his 4 Institutes cited on the other side Next the Action here by the pleading of it is made real and then though Cooks opinion should be Law it comes not home to our case and a transitory action may be made real by the pleading of it 27 H. 6. f. 1. Hill 38 Eliz. Banc. sup Hill 2 Car. in Belamy and Bolthorps case in this Court 6 rep 14. A thing is tryable there where the best conusance of it may be had 6 H. 7. 3 2ly The averment of the party here is that all actions personal and real within Chester are tryable there and this being matter of fact is confessed by the Demurrer 9 H. 7. Porter Nicholls in the Exchequer 10 Car. And it would be a great inconvensence to try the title of lands lying within Chester out of it for so all causes real may as well be tryed in forein Counties even through all England which would be very mischievous Roll chief Iustice Tryall If we can avoid it it is not good to try causes in forein Counties but here you have by your demurrer confessed that all causes real and personal shall be tryed there and what say you to that 2ly Traverse Waiver Issue It is to be considered whether your Traverse be not repugnant to your Plea for you have waived the plea to the jurisdiction of the Court and put your self upon an issue by the traverse which you ought not to have done but you ought to have relyed upon your plea to the jurisdiction of the Court for as the traverse is taken untill a tryall be had in the cause we cannot tell whether the Trover and Conversion be within the County Palatine or out of it and this is matter of substance and tryable and therefore it would be hard to maintain your plea. At another day the case was argued again and first by Twisden for the Plaintiff and he took thrée things into consideration 1. Whether the plea were a meer plea to the jurisdiction 2ly Whether it be made good by the demurrer 3ly Whether the traverse have not spoiled the plea. 1. He held the plea was not good because the Action is meerly transitory and may be laid in any place 2. Mar. Br. traverse 983. Cooks Lit. f. 202. and the Defendant cannot plead that the cause of Action lyes in any other place than where the Plaintiff layes it Cooks Iurisd of Courts is full authority in point what ever is objected against it 30 H. 6. f. 6. I admit of the jurisdiction of the County Palatine but yet it must not entrench upon the Common Law and I admit all the books cited but they are of other local matters or of things transitory which are fixed to Chester by the pleading of them and Dyer 122 comes not to our case nor crosses the case of 10. Iac. 3. rep Ridgwayes case and here it shall be intended that the Iury may there have best conusance of the matter where the Action is laid and not else-where although the Action do savour of the Land For the second matter the demurrer makes not the plea good for the law sayes it is not good and the partyes cannot alter the Law Burtons case 5. rep f. 59. 5 H. 7.1 3ly The traverse makes not the plea good for the traverse is waived and he relyes upon another matter 5. Car. rot 817. Burton and Cornish the traverse taken took away the justification before pleaded so doth it here and the traverse here is not good because it is in a
expressed by them And how can we take notice here that there was not fair play in the running of the race and I doubt of the books cited by Latch Bar. Auditors Accompt for where matter may be pleaded in Bar the party shall not be compelled to come before Auditors for that were unreasonable If I deliver goods to deliver over and the party do it not he is accomptable to me but if he deliver them over he is not for he may plead this in bar of the Action and so is it in the Case at the Bar and you might have given the special matter in evidence here by the meal Act Plea and this plea here before the Auditors is cleerly void The main doubt here is whether there be apparent matter to the Court to hinder the Plaintiff from his Iudgement I conceive the Articles shall be interpreted fairly and that there ought not to be fowl play according to Common intendment and it is material to shew there was fowl play in the replication and so the issue is well joyned and Iudgement ought to be for the Plaintiff Ierman and Nicholas Iustices to the same purpose as Roll. Mich. 1652. Banc. sup IT was moved for Coronel Baxter that he was elected high Steward of the Town of Colchester in Essex Motion for a mandamus to Colchester to swear the high Steward there and therefore that the Court would grant a mandamus to be directed to the Maior there to swear him in that place Roll chief Iustice If he be duely elected and he refuse to swear him take a mandamus Iaques Mich. 1652. Banc. sup IN the case of one Iaques in an Action of Trespass quare vi et armis What plea amounts to not guilty for the entring into his Land It was said by Roll chief Iustice That if in an Action of Trespass vi armis for entring into land the Defendant plead his entry by virtue of a lease for years this amounts to no more than not guilty and the Plaintiff may demur upon the Plea Demurrer◠and shew it for cause of demurrer that it amounts to no more Mich. 1652. Banc. sup IN the case of one Poynes Mawrice it was said Where one cannot be declared against in Custodia that if one be committed to the upper Bench prison for a misdemenour and not for debt one cannot declare against him as against one in Custodia Mich. 1652. Banc. sup THe Court was moved on the behalf of the Defendant Motion for a certiorari to remove endictments for a certiorari to remove certain endictments preferred against him in London for selling of leather to the end he may have an indifferent tryall notwithstanding the Statute which directs that the endictment be preferred in the County were the offence was committed Roll chief Iustice The Statute was made for the ease of the Defendant and therefore he may remove the endictment otherwise he shall be in worse case than he was before the Statute Therefore take a Certiorari Yongue and Petit. Mich. 1652. Banc. sup Pasc 1652. rot 159. YOngue brought an Action of debt against Petit upon an Obligation and declares Demurrer to a replication in debt upon a Bond. that whereas at the request of the Defendant he did become bound with a third person for the payment of a certain sum of mony unto I. S. at a certain day the Defendant became bound in an Obligation to the Plaintiff the condition of which Obligation was that if the Defendant did pay the mony unto I. S. at the day limitted for which the Plaintiff was bound and in the mean time should save him harmlesse that then the Obligation should be void and for not performing this condition he brought his Action The Defendant pleads that he caused the party with whom the Plaintiff was bound to submit himself to Prison and that the Plaintiff was not damnyfied The Plaintiff replyes and denyes not the Bar but sayes that a latitat was sued out against him and that he feared to be arrested and upon this replication the Defendant demurs and these exceptions were taken to it 1. That he doth not say he took out a latitat prout patet per recordum 2ly It was questioned how the words in the mean time shall be understood For the first exception Latch held it not material Relation and for the second he held that they refer to the whole condition Roll chief Iustice said it is not necessary here to plead non damnificatus if the party be in prison and the words in the mean time refer to the last words only of the condition But one hath pleaded an ill plea and the other hath alleaged an ill breach therefore nil capiat per billam nisi Yet we will advise Mich. 1652. Banc. sup AN endictment was quashed for not repairing a highway Endictment quashed because it did not set forth from what place to what place the way did lead The Maior and Commonalty of London against Hatton Mich. 1652. Banc. sup THe Maior and Commonalty of London brought an Action of Covenant against Hatton Demurrer to a Plea in Covenant for not paying a rent reserved by them upon a lease for years made unto him of the Garblers office The Defendant pleaded that this office was an office of trust reposed in the City of London and could not be let for years and consequently there was no ground of Action To this plea the Plaintiff demurs Hales held that this office may be let for years because the Maior and Commonalty of London have a Fée simple in the office by their charter and that they have not only a meer trust reposed in them to execute it And 2ly If it could not be granted yet here is no forfeiture for this lease shall be accompted but a deputation and not a granting over of the office And 3ly The Lessees covenant shall bar him from pleading this plea. Wadham Windham prayed a day to be heard Roll chief Iustice It will be hard for you to maintain the Defendants plea Deputation Lease For without doubt the Maior may make a Deputy to execute this office But here he hath a Fée simple in it and may thereby make a lease of it and the Lessees Covenant will bind him to pay the rent Iudicium pro querente nisi At another day Wadham Windham put the Case and argued that the office of Garbler is not grantable because that this office is an office of trust reposed in a corporation and it is so reposed for the publique good and the office it self is not vested in the Maior and therefore he cannot grant it although he may make a Deputie to execute it for there the Acts of the Deputie do light upon the Master to be answerable for 29 H. 6 44. Dyer 238. a Maior of a Town may make a Deputie but he cannot grant this office or make a revenue of it Roll chief Iustice
be undestood eight hangings Roll chief Iustice A pair is properly when one of the things so called cannot be properly used without the other but yet the words may be also understood so many couple and here you cannot intend the words to mean so many suits of hangings and you might have expressed your meaning by so many pieces of hangings and therefore it seems doubtfull Ierman Iustice Here the words do not expresse the number of the things as they do when you say a pair of Oxen or the like Nicholas as Ierman Ask Iustice A pair is incertain for that word may be meant more than two in number as when you say a pair of cards and a pair of hangings in some places is meant a suit of hangings Roll chief Iustice If it be so then it is more incertain the word hangings may be good enough but how can the number be known Curia advisare vult Afterwards the Court moved the Defendant to suffer the Plaintiff to amend his Declaration and to plead anew and to consent to a new tryall Askwiths Case Hill 1652. Banc. sup THe Court was moved to quash an order of Sessions made at Durham against Askwith Motion to quash an order of Sessions for not serving the office of a Constable or finding an other able person to serve the place for him being elected according to the custom of the place where he was elected to serve The Exception taken was that it is not shewed that he was elected at a Court Leet and the Sessions have no power to elect a Constable Roll chief Iustice He is a Constable elected by a by-Law By Law it is not necessary there should be any other election then according to the custom and he must serve in his turn or contribute to the charge for another to serve for him Custom and this is a good custom used in many places and I do find one my self in my turn in one place and make no use of my privilege to avoid it Another exception was taken that the complaint made of the party was that he would neither serve the office nor contribute for another to serve it and the order is only that he refused to contribute and so is not warranted by the custom by which he hath an election to serve or contribute Quashed nisi c. Hill 1652. Banc. sup A Prisoner was brought into Court by a habeas corpus out of the Fleet to the intent to turn him over to the Marshalsea to charge him with an Action here Creditor examined upon oath it his debt were reall whereupon the creditor was examined upon his oath whether the debt was real for which he surmised he would bring his Action and upon making oath thereof the Prisoner was turned over accordingly Nota. Smith against Holyman Hill 1652. Banc. sup IT was moved in arrest of Iudgement in an Action upon the case upon an Assumpsit Arrest of Iudgement in Assumpsit False English and Exceptions taken 1. That the Defendants Christian name was mistaken And 2ly That the jurata was erroneous for it says in a plea of dept instead of a plea of debt and the Iudgement was arrested for dept written with a P. is no word though it sound like debt written with a B. Custodes and Howell Gwin Hill 1652. Banc. sup HOwell Gwin was brought to the Bar being convicted for forgeing of a deed Iudgement against one convicted of forgery and was demanded what he could say why Iudgement should not be given against him Boynton of Councel with the Prisoner moved the Court that in regard there was an information of perjury depending here against the witnesses upon whose Testimony the Prisoner was convicted of the perjury and that the Prisoner doth endeavour to proceed with all the speed that is possible against them in this information that the Iudgement may be stayed in the mean time against him Roll chief Iustice answered if they be found guilty of the perjury they shall be punished but we will give Iudgement against your Clyent in the mean time which was done accordingly in these words following Iudgement for forgery viz. you are convicted of forgeing a deed by putting a dead mans hand unto it therefore the Court gives this Iudgement against you that you are fined at a hundred pound and shall stand on the pillory two hours before the Hall dore with a paper on your head shewing the nature of your offence Memorandum the party cut off a dead mans hand and put a pen and a seal in it and so signed and sealed and delivered the deed with the dead hand and swore that he saw the deed sealed and delivered Mich. 1652 Banc. sup MRs. Lucy Fotherby was brought into Court to be turned over into the Marshalsea out of the Fleet with an intent to charge her with an Action of debt Against this it was urged that she was a Prisoner in the Fleet A Prisoner turned over committed thither by an order of the Court of Chancery Prisoner But Roll chief Iustice answered this order is nothing to hinder her turning over if the debt be reall and so upon proof that the debt was reall she was turned over Locky and Dumiloe Hill 1652. Banc. sup Hill 1650. rot 1462. VPon a special verdict in an ejectione firmae the case fell out to be this Special verdict in an ejectione firmae I. S. seised of lands in Fée makes a lease of it to I. D. at Will A. B. puts the Tenant at Will out of possession and after the Tenant at Will enters and takes a lease at Will of him that put him out of possession the question was whether he should hold the land by virtue of his first lease or by virtue of his second agreement To this Roll chief Iustice said if one make a lease at Will to one and he be ousted Will. Determination and then enter again and take a new estate the Will is determined but a stranger cannot determine his Estate without his consent but here he hath determined his first Estate by his new contract with the disseisor of his Lessor And he said if Livery and Seisin be made upon one Acre of land in the name of two Acres it is good for both the Acres for it is not necessary that the party that gives the livery should go to all the land mentioned in the deed of Feoffment Livery and Seisin And he also said that if Tenant at Will cuts down a tree upon the land which he holds at Will by this Act he hath determined his Will Drake and Drake Hill 1652. Banc. sup DRake brought an Action against Drake for these words Arrest of Iudgement in an Action for words viz. Thou hast preached lyes in the Pulpit the Plaintiff being a master of Arts and incumbent of a living Wadham VVindham held the words actionable because they were spoken of the Plaintiff in relation to his
Statute of 13 R. 2. C. 9. which is a generall Law and ought to be taken notice of but if not yet the Action is well brought for it is brought for the vexation the Plaintiff was put unto by reason of the presentment and the other matter alleged is but by way of inducement to the Action 2. Car. in Deâ—t and Oâ—ifes case in this court so held and though the conservators had no authority yet the Action lies for the malitious prosecution and for unjustly vexing him and so adjudged Trin. 16 Car. in this Court in Damon and Sheremans case Hales on the other side said that this Court is not bound to take notice that the Lord Maior of London hath this jurisdiction of conservatorship for the Statute which gave it him is a particular Law touching him only and so not to be taken notice of without it be shewn and then if he have no such authority all the proceedings against the Plaintiff are void Roll chief Iustice An Action upon the case lies for bringing an appeal against one in the Common Pleas though it be coram non judice Case by reason of the vexation of the party and so it is all one whether here were any jurisdiction or no for the Plaintiff is prejudiced by the vexation and the conservators took upon them to have authority to take the presentment And I hold that an Action upon the case will lye for maliciously bringing an Action against one where he had no probable cause and if such Actions were used to be brought it would deter men from such malitious courses as are to often put in practice Sherecroft and Weekes Trin. 1953. Banc. sup SHerecrost brought an Action upon the case against Weeks Arrest of Iudgement in an Action for words for speaking these words of him He meaning the Plaintiff got Mary Nab with Child and the Child is his and I have tryed it with a sieve and a pair of sheeres It was moved in arrest of Iudgement that the latter words are insensible and so the Action not maintainable to which it was answered that the first words are Actionable it matters not though the latter words be nonsence because they have no reference to the former words and therefore shall be rejected as sencelesse But Serjeant Barnard on the other side said the latter words do take off the force of the former words as the case is 4. rep f. 19. 2ly It is not said here when he got her with Child Nor 3ly Doth he aver that there was any such person as Mary Nab. Roll chief Iustice Case The Action doth well lye for the former words are positive scandalous words and the subsequent words are not material and if they be then they are in confirmation of the former for it seems he put confidence in the sieve and the sheeres and that made him speak the words and it matters not whether his confidence be true or false Therefore Iudicium nisi pro Querente VVeldon and Strudder Trin. 1653. Banc. sup IT was moved to the Court that the Plaintiff after he had obteyned a verdict and before Iudgement entred dyed Motion to enter the death of the Plaintiff on the Roll. and prayed that this might be entred upon the Roll but the Court denyed it and said it could not be VVhitehead and Buckland Trin. 1653. Banc. sup THe case of Whitehead and Buckland was again spoken unto Demurrer to a replication in Trespass by Original which was this Whitehead brought an Action of Trespasse by original writ for taking his Cattel the Defendant pleaded the Statute of limitations of Actions in Bar the Plaintiff replies that he took forth an original writ against the Defendant for this Trespass within the time limited by the Statute and upon this replication the Defendant demurred and for cause shews that he doth not shew what writ he sued forth as he ought to do otherwise it cannot be known whether he be rightly thereby intituled to his Action or no. 2ly He hath not shewed the continuances upon his proceedings and so it cannot be known whether his Action be discontinued or no that if it be we may take advantage thereof 3ly He doth not say that he hath taken out an Original prout apparet per Recordum as he ought to do for we do not agree the writ that he pleads he hath taken out 4ly He hath concluded his plea so that it amounts to a new assignment and hinders us from objecting against it by way of rejoynder and he joyns an issue of his own head of a matter not alleged before and 5ly The Action is for a Trespass done in 1645. and yet he concludes it to be contra pacem publicam which being in the late Kings time could not be but ought to have been contra coronam et dignitatem nostram Latch on the other side said that both parties agree to the Original and the disagreement is only in the time of the execution thereof and it is not necessary to say prout patet per recordum nor is it necessary to shew the continuances of the process for this would make the Record too long and here is no hinderance but they may rejoyn if they have cause Pâ—â—a Error Roll chief Iustice As to the first Exception it is not necessary to set forth the particulars of the writ and if the writ be not good you may have a writ of Error and for the second exception the plea is good without shewing the continuances and there is no inconvenience by not setting them forth and we will intend that all is rightly done because you have appeared and you are not hindred from replying but may do it if you will and have cause and the Record here shews that you have appeared to this writ but it is not good to conclude the plea super totam materiam as you have done for by this he is hindred from replying and then he hath good cause to demur because you have concluded him and what say you to that Latch The party may strike out the words Et querens similiter Roll chief Iustice He cannot strike out that which belongs not to him Replication Demurrer and you cannot go back and the other is compelled to demur Therefore Nil capiat per Billam nisi c. or waive the Demurrer Postea Trin. 1652. Banc. sup IT was said in the case of Homes and Bingley Who may make a lease to try a title that Tenant at will may make a lease for years to try a title of land and so may a Copy-holder Q. Trin. 1652. Banc. sup BY Roll chief Iustice What plea an Attorney may plead without a special warrant An Attorney who hath warrant to appear for his Clyent may plead for him without warrant But the Clarks in Court said he may plead no other plea without a special warrant but a non sum informatus ideo Q. Peck and Ewre Trin. 1653.
What Bayly must shew his Warrant A special Bayly is bound to shew his warrant to the party whom he is to Arrest otherwise the party to be arrested is not tyed to obey him but he is not bound to shew his warrant to a Stranger but a known Bayly is not bound to shew his Warrant to any Hill 1653. Upper Bench. BY Roll chief Iustice What Writ of Error is good If an Action be brought against three and one of them is an Infant and they all appear by Attorney and an entire Iudgement is given against them all and they all joyn in a writ of Error to reverse this Iudgement this writ is well brought for the judgement was erronious Iudgement because it is an entire judgement for as to the Infant it cannot be good so it is naught to the rest and he cited one Byres case 9 Iac. in the point Porter and Swetnam Hill 1653. Upper Bench. Trin. 1653. rot 723. A Writ of Error was brought to reverse a Iudgement given upon a non sum informatus in the Common pleas in an Action of Covenant brought upon a Lease for years for not paying the rent reserved Error to reverse a judgement upon a non sum informatus in debt for rent and not repairing and this was against an Executrix of the Assignee of the Lessée for years and it was brought as to the non-payment of the rent upon the words yielding and paying and not upon an express Covenant and for that the words yielding and paying are but a Covenant in Law and only an implyed Covenant and ariseth but from a personal Covenant and not upon a real contract as Latch held who argued for the Plaintif in the writ of Error Therefore he said the Action of Covenant could not here lie against the Execuirix as a warranty in Law binds only the party and not privies as Spencers case is Dyer 257. 2ly The Plaintif in the Action doth not declare that the Defendant was made Executrix and if she be but Executrix de son tort demesne she is not liable to this Action Wadham Windham on the other side held that the words yielding and paying in the Lease are an express Covenant and the Aâ—ion here is for rent become arrear in the time of the Executrix and this Covenant being a Covenant which makes the rent payable ratione terrae it doth concern her and an Executrix de son tort is bound to pay the rent Roll chief Iustice take time to answer both Exceptions but I conceive at present that the words yielding and paying are an express Covenant for if they were not what remedy else would there be to recover the rent Covenant for if she be a disseisor neither debt nor Covenant will lie against her At another day Windham argued that the Action was well brought because this is an express Covenant and not a Covenant in Law 2ly It is not material to shew how she is made Executrix and for the first this must be an express Covenant because it is by Indenture although the word Covenant be not expressed for that word is not a word of Art and so not essential to the constituting of a Covenant Dyer 57.27 E. 4. f. 6. And for the second it is well set forth that she is made Executrix for it is said she entred as an Executrix 2ly She hath admitted herself to be Executrix by pleading Latch on the other side held That here is only a Covenant in Law and so is the book in Dyer cited by Windham and the Executrix is not bound here because it is against the Assignee of a Term and the very words doe shew that here is no express Covenant for the words yielding and paying are not the words of the Lessee but only by construction of Law but are the words of the Lessor enjoyning the Lessee to pay the rent Roll chief Iustice How prove you that this Action lies not against an Assignee Latch The case of Overton Sidney proves it for it proves that Debt lies not and by consequence Covenant lies not And for the second matter the Defendant is not intitled to the lease in privity because it is not shewed that she is made Executrix and so she shall be taken but as an Executrix of her own wrong and so is not chargeable because she hath no privity of estate but by her entry nor is it any where ever mentioâ—ed that any can be Executrix de son tort of a Term. 2ly She cannot be a Termor but she must be a Disseiseress for she cannot apportion her own wrong 3ly She cannot make a title to the Term by her entry as it may be by a que estate and therefore it is against reason that she shall be a Termor and there is no authority against this Pasch 25 Eliz. in this Court King and Burges in Mores Reports Dyer 254. Vpon a Demurrer adjudged that it was not shewed how one was Executor Roll chief Iustice What say you to the Objection that the Action is brought against you as an Executrix and you appear and plead and so admit your self to be an Executrix And I hold that here is an express Covenant for the words are the agreement of both parties to the Indenture and then the Executor is chargeable by them and it is not like to the Case of a Demise and there is no difference here between a Covenant in Law and an express Covenant because it is touching a thing which ariseth from the land and so the Assignee is bound by it and this Case is not like the case cited out of Dyer for there the estate was determined but here it continues And as to the last point I conceive prima facie that she shall be accompted a true Executrix and you by pleading have admitted it and if one enter as an Executor upon a Term he may have the Term if the other will admit him to be a Termor and he shall not be accompted a Disseisor to the Lessor and to strangers he shall be accompted an Executor in Law if they bring Actions against him and the Term shall be assets in his hands As if one receive my rent without my consent I may charge him as my receiver Assets or make him a disseisor at my election Curia ad idem and so the Iudgement was affirmed But afterwards it was moved again and the writ of Error was quashed for a variance betwixt it and the Record for the Record is against the Assigns and the writ of Error is to remove a Record against the Assignee Postea Bromefield and Sir Iohn Williamson Hill 1653. Banc. sup Mich. 1651. rot 353. BRomefield brought an Action of Debt upon an Obligation to perform the Covenants of a Lease for years against Sir Iohn Williamson Demurrer to a replication in debt upon an Obligation the Defendant pleaded that he had performed the Covenants the Plaintif replyes and sets forth a breach
and upon this the Defendant demurred and upon the Demurrer the Case was this A Lease was made for one year the Lessee covenants for him and his Assigns to pay the rent so long as he and they shall have the possession of the thing let the Lessee assigns over his Term the Term expires the Assignee continues the possession after the Term expired and for rent behind by the Assignee after the expiration of the Term the Lessor brings the Action and the question was whether here be such an Assignee that the Action will lie against or not Roll chief Iust held that though here be not an Assignée strictly Assignee Covenant according to the rules of Law yet that he shall be accompted such an Assignee as is to perform the Covenants made between the parties and ruled the Defendant to shew cause why the Plaintif should not have judgement Nota. Wood and Markham Hill 1653. Banc. sup VPon an Ejectione firmae brought For a restitution after an habere facias possessionem executed and a Tryal thereupon had a Verdict was found for the Plaintif but upon an agreement made betwéen the Plaintif and the Defendant the Defendant was to hold the land recovered the remainder of his Term to come and according to this agreement he held it for 2 years but afterwards before his term expired the Plaintif takes out an habere facias possessionem and executes it Serj. Bernard moved for the Defendant upon this matter shewed to the Court That the Defendant might have a rule for restitution But Roll chief Iustice answered It cannot be Restitution but you must have your Action upon the Case against the Plaintif for not performing his agreement Case for the Act seems to be unconscionable Masters and VVallis Hill 1653. Banc. sup Pasch 1652. rot 581. A Writ of Error was brought in this Court to reverse a Iudgement given in the Common Pleas in an Action of Trespass quare vi et armis and the Error assigned was Error to reverse a judgement in Trespass quare vi et aâ—mis that the Trespass is concluded to be contra pacem c. but doth not say publicam Twisden answered that it is well enough because the Action was comment'd by Original but if it had been by Bill it would have been otherwise Roll chief Iustice It is the use in the Common Pleas to make such short recitals but in the beginning of the Record here it is recited at large and if it were not recited at large it would not be good Recital but for the matter it self it is matter of substance and generally it ought to be concluded to be contra pacem publicam yet it is good here as it is for the reasons before alleged Affirmetur judicium nisi c. Hill 1653. Banc. sup VVIld moved against a Sherif that he may not be admitted to file the retorn of a writ directed to him Against filing a return of a writ because an Action upon the Case is depending against him for not returning this writ and if he should now be admitted to file the return he would thereby abate our Action Roll chief Iustice If the writ be not filed it shall not be filed till the Court be moved but he cannot file it as of this Term though he should file it for the return of the writ as it seems is long since past but if the retorn be already filed you move too late Swan and Fenham Hill 1953. Banc. sup Trin. 1650. rot 1072. IN an Action of Trepass and Ejectment a special Vâ—rdict was found Special verdict in Trespass and Ejectment and in it this Custom viz. That the Owners of Houses in the Town of New-Castle in fee simple may devise them by Paroll but not Tenants in tayl and it was further found that the Testator was seised of the Houses in question in fee tayl in possession and of the remainder of them in fee-simple and so seised did devise them by Paroll The question was whether this devise was warranted by the Custom Shafto argued that the Custom did not warrant this devise because Customs are not to be enlarged by construction but are to be taken strictly and according to the letter because they run in abridgement of the Common-law and so are not to be favoured 9 E. 3. f. 38.11 H. 4. f. 33.5 H. 6. f. 51. Next here are immaterial words found in the Verdict for if it be the Custom for Tenant in fee-simple to devise yet this extends not to tenant in tayl 27 H. 6. f. 5.21 E. 4. f. 24. and a devise of rent to be issuing out of these Houses is not good within the Custom although that a rent doth follow the nature of the Land 22 Assis pl. 78.26 H. 8.54 It is true Cook in his Littleton f. 111. saith that one may devise a rent in remainder but I deny this for the authorities of the Books are against him An estate in remainder is not Assets nor can be devised 3 H. 7. f. 23 24. a condition goes to an Estate tayl not to a fée-simple in remainder 6 Rep. f. 33. And here is but a power of an Estate and not an Estate in possession Lit. sect 137. And the finding here that the Tenant in tayl did die without issue is not material for this could not be known at the time of the devise and the devise takes its effect in the time of the Devisor 27 H. 8. Dyer 45.5 Eliz. Dyer Bishops Case 1 Rep. Archers Case f. â—6 2ly Here is no Custom found to intitle the party for a Town cannot have a Custom as it is here found though a Borough may 22 Ass 178 and this is not found to be an antient Vill 7 H. 6. Dyer 22 H. 6. Fitzh praescript 47. Next the Custom is not found that Burgers may devise as it ought to be Turner Iohn on the other side held that some Estate doth pass by the Will and it matters not what Estate passeth and the Owners of Houses in our Case shall be intended to be Tenants in fee-simple and it is not necessary that they be Tenants in fee in possession Perkins devises Plowd 262. Dyer 22.22 Eliz 371. p. 5. and the Custom here found is no more but an ordinary Custom common to other Boroughs and it shall not be intended a special Custom And this case may be resembled to Cases upon the Statute of 32 34 H. 8. for devising of Lands 10 Rep. f. 81. Trin. 34 Eliz. Benefilds Case there cited and 35 Eliz. Howards Case which prove that reversions may be devised Nat. brev 199. a. Perkins Devises Pl. 540. is the very Case in question and the Cases put on the other side come not to our Case Roll chief Iustice It is not necessary in a special Verdict to be so precise as in pleading Special verdict but something may be supplyed and the verdict hath found that he was Owner and that the
seems should make the Law in this Case Dyer 33 H. 8. is the express case Attorney 20 H. 6.32 The Court advised At another day Roll chief Iustice said That the opinion of the Court was that an Attorney may plead his privilege by an Attorney and there is no inconvenience follows by doing it but it is true the Presidents are both ways and it is not contrary to any thing he hath done and it may be he is sick or hath business in another Court where he is necessarily attend Therefore let his plea be allowed nisi Leake and Reynolds Hill 1653. Banc. sup LEake brought an Action of Debt upon an Obligation against Reynolds Special verdict in debt upon a bond The Defendant pleads non est factum the Iury upon issue joyned find a special verdict to this effect That the Plaintifs Declaration is upon an Obligation dated the 24 day of the month and they find that the Obligation was sealed and delivered the 27 day of the month but bears date the 24 day and whether this shall be accompted the same Obligation upon which the Plaintif declares or not is left to the Court to determine Green for the Plaintif said that this case is the same with Goddards case and there it was adjudged a good deed 12 H. 6. f. 1. Dyer 247. and in the end of Goddards case the case in point is adjudged Roll chief Iustice This is a plea in Bar Plea and not in abatement therefore take your judgement Hill 1653. Upper Bench. BY Roll chief Iustice What is not slanderiâ—g a title If one hath colour of title to land an Action of the Case will not lie against him for saying I have better title to the land than you though his title be not so good as the others title is Nota. VVingfield and Valence Hill 1653. Banc. sup Hill 1650. rot 1409. LAtch moved to have restitution of monies out of the hands of a Sherif For resti ution of monies in the Sherif-hands which he had levied upon an execution taken out of this Court because it issued forth erroniously for before the Execution taken forth the Defendant brought his writ of Error in the Chequer Chamber to reverse the judgement and the Record was removed thither and although the late Statute say that a writ of Error shall be no supersedeas to stay execution yet the Record being removed into the Exchequer Chamber no execution can be granted out here for here is no Record to warrant it Roll chief Iust The case being moved again at another day till when the Court would advise said The Record is removed by a writ of Error in the Exchequer Chamber and is not now before us nor was at the time when the Execution issued forth and this being after a verdict and a judgement the writ of Error is no supersedeas and so it is mischievous both ways Mischief Supersedeas but how can we help it yet take a supersedeas quia erronice to supersede the execution for it was ill awarded and take the moneys out of the Sherifs hands Nota. The Protector and Captain Streeter Hill 1653. Banc. sup CAptain Streeter was brought in Court by habeas Corpus For delivery of a Prisoner appearing upon a Habeas Corpus and upon the return read and filed it appears that he was committed by an Order of Parliament for publishing scandalous and sedilious books Twisden moved that the prisoner might be bailed because that the Parliament is now dissolved and by consequence the Order by which he was committed is of no sorce Mr. Attorney General on the other side urged that the Parliament was not dissolved but only the meeting of those persons in Parliament was dissolved for the Parliament by the antient Law is to be every year so that this is but in effect an adjournment and not a dissolution and besides this matter for which the prisoner stands committed cannot be here inquired of and so the cause of his commitment shall be intended to be good and the Parliament may commit without shewing the cause of the commitment and this commitment may be in order to his Tryal and the Prisoner is not without remedy for he may apply himself to the supreme Authority to whom the Parliament have resigned their power Twisden for the prisoner confessed that this Court cannot be Iudge of the Parliament but this Order by which he is committed differs from an Act of Parliament for this is temporary and determineth and although the authority of Parliament ceaseth not yet a particular Parliament may be dissolved as this was Wad Windham When a Parliament is dissolved the procéedings there are determined Flowrdews case 1 H. 7. the Latine case and the Parliament is now dissolved and not adjourned and a Parliament dissolved is not like the Courts of Iustice here in the Vacation time Wild This case is not like to the case where this Court remaunded a prisoner committed by the Parliament sitting the Parliament for the prisoner here is coram Protectore who may deliver him Captain Streeter Mr. Attorney labours to afperse me but shews no cause or crime for my commitment and I am here before the Protector in his own Court Attorney General Only the persons and their convention is dissolved but not the Court no more than this Court is by the demise of the King or in the Vacation time and I must refer it to the Court how far you will intermeddle in this case and this Order by which he stands committed may be his judgement there and then he cannot be delivered and I know no difference betwéen an Order and an Ordinance of Parliament and the stamp and authority of Parliament is upon this order and if the prisoners Counsel say true then he may have an Action of false imprisonment against his Gaoler Twisden Here is no Order of the Parliament returned but it expresseth that he was committed by the Speaker by vertue of an Order of the Parliament Roll chief Iustice We examine not the Orders of Parliament but the question is whether the Order doth now continue Order of Parliament Dissolution and I conceive it is determined by the dissolution of the Parliament and so would it have done by prorogation of the parliament because there is another Session and we can judge no otherwise of Orders of Parliament but by the words of them Ask Iustice If one that is committed by Order of Parliament cannot be delivered until another Parliament the peoples liverty will be lost for there may not be a Parliament in many years Roll chief Iustice A new Parliament hath not reference to the old but it is a new Court created upon new Summons and why may not the Prisoner be bailed without these disputes although he may apply himself elsewhere But the Court would advise because they perceived the prisoner stubborn At another day Mr. Attorney upon the prisoners appearance again upon his Habeas
Iustice answered Denied It appears not to us but that the Parliament was sitting at the time and peradventure it will be made appear at the tryal Therefore plead and go to tryal and then move in Arrest of judgement if you have any thing to move Page and Parr Hill 1654. Banc. sup Trin. 1654. rot 1687. PAge brought an Action of Covenant upon a Covenant conteined in an Indenture of a demise for years Covenant upon an Indenture for the not paying the rent reserved by the Indenture according to the Covenant The Defendant pleads in bar that the Plaintif entred into part of the land demised before the rent due for which the Action was brought and so had suspended his rent The Plaintif replyed the Defendant did re-enter and so was possessed as in his former estate Suspension of ren and to this replication the Defendant demurred and for cause he shewed that here was no confession and avoidance or traverse of the plea in bar Roll chief Iustice Have you shewed that he continued in possession until the rent grew due for you ought to shew that he entred and was possessed untill after the rent-day but here you have only said that he was possessed in his former right Nil capiar per Billam Therefore nil capiat per Billam nisi Hill 1654. Banc. sup VPon an Affidavit read in Court Not to plead till costs paid assessed in a former Action that 20 l. costs were taxed upon a non-sute in an Action of Trespass and Ejectment brought to the Bar and that the Plaintif had not payed them nor was to be found and yet had brought another Action for the same land The Court was moved that the Defendant might not be ruled to plead to this second Action until the Plaintif had paid the costs taxed upon the former non sute and that another Plaintif might be named or that security might be given to pay the costs if the Plaintif should be non-sute again Shew cause The rule was to shew cause why it should not be so Hill 1654. Banc. sup DArcy moved that an Endictment of Michaelmas Term last might be amended in the Caption But Roll chief Iustice answered To amend an Endictment of a former Term denied It cannot be if it be of the last Term but had it been an endictment of this Term it might have been amended Hill 1654. Banc. sup THe Court was moved to quash an Endictment for entring forcibly upon a Tenant for years against the Statute of 21 Iacobi To quash an Endictment and the Exception was that the Endictment doth not say that he entred manu forti Roll chief Iustice answered The Statute is only that if one enter by force and the words manu forti are not expressed in the Act Therefore move it again if you will Hill 1654. Banc. sup A Habeas Corpus cum causa was granted for Elizabeth Bayne To discharge a prisoner turned over to the Mareschal For a habeas corpus ad subjiciendum to the intent to charge her with an Action and upon the return thereof she was committed to the Mareschal Wild moved that she might be discharged because the return of the Habeas Corpus is erronious But Roll chief Iustice answered It could not be whereupon he moved for another Habeas Corpus for her ad subjiciendum to be directed to the Mareschal which was granted Hill 1654. Banc. sup THe Court was moved to quash an Endictment preferred against one for practising Phisick not being skilfull in the profession To quash an Endictment for practising Phisick without licence and not having a License to practice from the College of Phisicians The Exceptions were 1. That no Endictment at the Common Law lies for the offence supposed to be committed for it is not an offence against the Common Law and 2ly an Endictment upon the Statute lies not and so no Endictment lies And upon these Exceptions it was quashed The Protector and Hart. Hill 1654. Banc. sup ONe Hart committed to the Gatehouse appeared in Court upon the return of a Habeas Corpus granted for him To remand a prisoner appearing upon a Habeas Corpus and turned over Denied and upon the prayer of his Councel the return was filed upon which it was moved on his behalf that he might be remanded to the Keeper of the Gatehouse and not turned over to the Mareschal to the intent to save his fees but the Court said it could not be because upon filing of the return there ought to be entred upon it a Committitur to the Mareschal whereby he becomes his prisoner Torret and Frampton Hill 1654. Banc. sup Trin. 1653. rot 178. VPon a special Verdict the Case was this Special verdict upon a Devise A man deviseth his lands to his wife for her life the remaindar to A. B. and C. and their heirs respectively for ever The question was whether A. B. and C. were joynt tenants or tenants in common Serjeant Twisden held that they were joynt renants Whether joynt tenancy or a tenancy in common and that this case differs from Radcliffs case and cited Wilds case in the 6 Rep. that a Will must be clear and conspicuous but so it is not here and here is no enforcement by these words respectively and they do relate to the persons and not to the lands bequeathed and a Covenant made by three respectively is a joynt Covenant and not a several Covenant and the word respectively hath relation to the survivorship which may happen betwixt the parties and a devise to one and his heir is a fee-simple Latch For the Defendant held that here is a tenancy in Common and not a joynt tenancy for the Estate ought to be whole out either a tenancy in Common or whole out a joynt tenancy and this of necessity for there cannot be a joynt tenancy for life and several inheritantes in the remainder and Littletons ground proves this to be so And 2ly It is against all construction to be otherwise as the word respectively is here placed and Ratclifs case which is not so strong a case as this case proves it to be so and although the word respectively may sometimes make a distribution of heirship as hath been objected viz. of several heirships yet here the placing of the word respectively shews it cannot be so Distribution of heirship and this using of the word is not operative but idle if here should be a joynt tenancy for the law says as much though the word respectively were left out and the word would be the more idle in explicating a thing so obvious to common understanding and no ways doubtfull and therefore we cannot think but that these extraordinary words do enforce an extraordinary construction and not a common one and an idle application and this comes not within the rule objected for the certainty for this word hath a proper meaning to make a several distribution
secrets of his Clyents cause Not to disclose a Clyents cause and thereupon he was forborn to be examined Pilkinton and Bagshaw Pasch 1655. Banc. sup VPon a tryal to be had at the Bar between Pilkington and Bagshaw Tryal at the Bar. the Plaintif would not put in his writ that the tryal might goe on Whereupon Roll chief Iustice bid the Cryer to call the Attorney of the Plaintif to appear and to bring in the writ upon pain of 20 l. and said Pain of 20 l. Attorney put out of the Roll. Non-sute upon the Record that if he brought it not in he should be put out of the Roll. Serjeant Maynard moved that if he brought not in the writ that the Plaintif might be called non-sute upon the Record which Roll chief Iustice answered might well be because the parties have day in Court by the Record or Roll afterwards the Sollicitor who had the writ brought it in yet Roll chief Iustice said There shall notwithstanding the writ be brought in be 20 l. fine set upon him for his trifling with the Court. The Protector and Sumner Pasch 165â— Banc. sup SErjeant Bernard moved that Sumner that appeared in Court upon his habeas corpus directed to the Kéeper of Northampton Gaol might be bailed To bail a prisoner denied for that having killed two men upon the Highway the Iury had found it Man-slaughter se defendendo Roll chief Iustice answered The Iuries conclusion is contrary to their premises Therefore let the prisoner be sent to Northampton Gaol whence he came yet that may not be for the fact was done in Peterborough Tryal Writ ad reâ—piendum and therefore he cannot be tryed at Northampton therefore let him be sent to Peterborough Gaol with a writ ad recipiendum to the Gaoler there to take charge of him Pilkington versus Bagshaw Pasch 1655. Banc. sup IN a Tryal at the Bar in a Trespass and Ejectment betwixt Pilkington and Bagshaw Trespass and Ejectment the question being whether Copyhold lands may be entailed by the custom of the Manor It was said that if Tenant in tail and the issue in tail of Copyhold lands in tail joyn in a surrender in a Court Baron of the Copyhold lands Estopel Copyhold lands in tail Customary entail Fine State enjoyed Seisure of Cepyhold lands that this is not an estopel for it ought to be by fine or deed indented And Roll chief Iustice said that Copyhold lands in tail are not within the Statute of Westm 2. but it is a Customary entail like in its nature to another entail and such an estate must be docked by fine or by some other customary way It was also said by him that if Copies of Court Rolls be shewed to prove a Customary estate the enjoynment of such estates must also be proved otherwise the proof is not good It was also said upon the evidence That a seisure by the Lord made of Copyhold entailed lands within the Manor of Wakefield in Yorkshire is in the nature of a recovery to deck the entail and that the manner of doing it is either for the Copyholder to let his Copyhold for more years than he ought or to refuse to do his service and then the Lord seifes the lands for a forfeiture and grants it to another by the consent of the Copyholder that made the forfeiture It was then also said by Roll chief Iustice Custom that a Custom cannot be urged for a thing that had its beginning since Rich. the 1. if a Record can be shewed to the contrary Common recovery Recompense in value Custom Copyhold destroyed It was also said by him that a common recovery suproseth a recompence in value to all persons who lost the estate by the recovery He said also that he conceived that there could be no such Custom to cut off entails of Copyhold lands by the forfeiture and seisure of the Lord for his seisure upon the forfeiture destroys the Copy-hold estate by the Common Law for it is in the Lords election after the seisure whether he will grant the estate again or no and you do not prove that the Custom binds him to it Nota. Harris and Pasch 1655. Banc. sup THe Court was moved in the Case of one Harris To amend an old judgement Denied that the entry of a judgement twelve years past might be amended upon the Roll. But Roll chief Iustice answered It cannot be after so long time past Pasch 1655. Banc. sup VPon a writ of Error brought to reverse a fine levied by an Infant being a Feme Covert Day to inspect an Infant The Court was moved for a day to bring in the party that levied the fine to be inspected by the Court which was granted and at the day she was brought into the Court and viewed and two witnesses deposed that she was within age at the time of the fine levied Entry upon the Roll. which was entred upon the Roll upon which the Issue was tryed Pasch 1655 Banc. sup IT was said by Roll chief Iustice Election That if there be two Kinsmen in equal degree of kindred to the Intestate it is in the election of the Ordinary to which of them he will grant Letters of Administration Pasch 1655. Banc. sup AN Outlawry was reversed Outlawry reversed because the place where the County Court was held is not shewed in the secundo exactus Pasch 1655. Banc. sup IT was moved that there was a judgement given in the Common Pleas To affirm a judgement a writ of Error depending and thereupon the Defendant brought his writ of Error to reverse the judgement in this Court and since pending the writ of Error the partses were agréed and therefore they desired the judgement might be affirmed because that otherwise satisfaction of the judgement cannot be acknowledged upon the Roll because the Court of Common Pleas were forclosed to do any thing further upon the judgement given there by reason of the writ of Error But Roll chief Iustice answered It cannot be Denied for you shew no cause why we should affirm the judgement and therefore we will make no rule in it but enter satisfaction upon the Roll if you will at your own peril Pasch 1655. Banc. sup IT was said by Roll chief Iustice that an Action upon the case will lie against one that brings vexatious actions against another Action upon the Case for vexation or for entring of Actions of a great value to force his adversary to put in great bail where he hath but small cause of Action Nota. Trevanian and Penhollow Trin. 1655. TRevanian brought an Action upon the case against Penhollow for speaking of these words of him Plea to an Action on the Case Thou hast taken a false Oath at the Assizes and art false forsworn The Defendant pleads that the Plaintif had agréed to accept of 3 Iuggs of Beer from him in satisfaction The Plaintif
he ought also to be heard to all the other crimes objected against him Therefore let him be restored nisi c. to morrow Iudgement nisi Howard and Howard Trin. 1655. Banc. sup MY Lord Howard being taken by a Latitat out of this Court appeared upon the day of the retorn of the Writ in Court Peerage pleaded and pleaded his privilege of Péerage and demands in judgement of the Writ and thereupon to be discharged Powis of Councel against him moved that he might put in special bayl Bayl. Demurrer Glyn chief Iustice You ought to demur to his Plea for he is now in Custodia and therefore he need not put in bayl Nota. The Protector and Norrice Trin. 1655. Banc. sup NOrrice being committed to prison for speaking words against the Parliament in the year 1650. was thereupon endicted To discharge a Prisoner upon the Act of Oblivion and was convicted and fined 100 l. and ordered to lye in prison untill he could find Sureties for his good behaviour afterwards he was brought into Court by vertue of a Habeas Corpus and his Councel moved on his behalf that he might be discharged because he was pardoned by the Act of Oblivion It was urged against this for the Protector that he may be a person excepted out of the Act Surmise and therefore ought not upon this surmise to be delivered Glyn chief Iustice It doth not appear to us that he is not excepted and therefore we cannot deliver him Thereupon it was moved for the Prisoner for a Certiorari to remove the Record hither Certiorari Entry whereby he stands convicted that he might enter the suggestion upon it that he is pardoned by the Act. Glyn chief Iustice Taxe it Webberly and Sir John Lenthall Trin. 1655. Banc. sup THe Court was moved for Webberly against Sir Iohn Lenthall Motion against Sir Iohn Lenthall for detaining a Prisoner discharged Action mony False imprisonment Endictment that whereas he being a Prisoner in the Vpper Bench prison for Debt and having agreed with his Creditors was discharged by them yet Sir Iohn Lenthall did keep him Prisoner till he should pay him Action mony Glyn chief Iustice You have two remedies against Sir Iohn Lenthall for this for either you may bring your Action of false imprisonment against him or you may endict him for extortion Yet let Sir Iohn shew cause why he should not discharge him paying his fees Strowd and Keckwith Trin. 1655. Banc. sup Mich. 1653. rot 119. STrowd brought an Audita querela against Keckwith Audita querela The Case was this Strowd acknowledged a Iudgement 17 Car. for 2000 l. upon which Iudgement an Elegit was taken forth against Strowds lands in the County of B. and lands thereupon were found and extended and delivered to the Counsee and the Elegit filed and the lands enjoyed accordingly for six years then the Counsee dies and makes his wife Executrix who takes out a Scire facias upon the Iudgment for 2000 l. directed the Sherif of the County of C. being another County and upon two Nichils retorned hath judgment and execution against Strowd for the same Debt who thereupon brings his Audita querela Wadham Windham held that the Audita querela did lye and cited 15 H. 7.7 L. Q. f. 40. and said this was an illegal proceeding against Strowd because that after an Elegit executed no other execution lies but where there bath been no execution of lands in the same County or in another upon the first Elegit but here is land found Execution and the Elegit filed and the lands enjoyed Elegit to divers Counties No Elegit after an Elegit Iudgement 18 E. 12. Fitzh tit Execution 240. Dyer 1â—2 an Elegit may be prayed to divers Counties Glyn chief Iustice The Case is adjudged in Hobardâ— Reports that one cannot have an Elegit after a former Elegit if lands be thereby found and the Elegit filed Therefore shew cause why judgement shall not be given for the Plaintif Price and Carr. Hill 1654. Banc. sup PRice brought an Action upon the Case against Carr for speaking these words of her A pox upon you for a Welsh whore Arrest of judgement in an Action on the Case for words for thou wentest into the Country and emptiedst thy Caâ—k of a Bastard After a verdict for the Plaintif it was moved in arrest of Iudgement that the former words videlicet the saying the was a VVelsh Whore are not actionable because no Action lyes at the Common-law for calling a woman Whore and the last words are uncertain words and less actionable The judgement was then stayed till the Plaintif should move Whereupon at another day the Plaintif moved for judgement and a Case in 1â— Iac. in this Court was cited and 41 Eliz. VVheeler and Aâ—â—gâ—ls case and it was urged that the words shall be interpreted according to common intention and understanding of the hearers and shall be adjudged very scandalous Wild on the other side said they are frivolous words and not to be regarded for they do not say positively she is a Whore nor that she had a Bastard but the words are of a very uncertain meaning for it appears not when the words were spoken or when she went into the Country nor is there any averment what is meant by the words Glyn chief Iustice Words actionable Now since the Act the calling of a woman Whore and saying the had a Bastard will bear an Action and here are words certain enough to fix a particular Scandal upon the party by application of the words and they are made more than general words or words of heat and passion for there is a general application of them and a sufficient averment and for the time of speaking them we will not presume they were spoken four years since which was before the late Statute made against Adultery Iudgement Therefore let the Plaintif have her Iudgement Davis and Matthews Pasch 1655. Banc. sup THe Case was this Bond put in sure in the Prerogative Court There being a controverste in the Prerogative Court between the Widow of one that died intestate and one of the intestates next kindred who should have Letters of Administration of the goods and Chattels of the Intestatè It was at length agreed betwixt the parties that the widow should have Letters of administration and that thereupon she should enter into Bond in the prerogative Office to make an equal distribution of the goods and chattels of the intestate amongst his kindred whereupon Letters of Administration were committed unto her and she afterwards entred into bond accordingly and for not performing the condition of the bond in making an equal distribution of the estate the bond was put in sute in the prerogative Court Prohibition upon which a prohibition was prayed and a rule thereupon made for the Defendant to shew cause why it should not be granted and af
to the surrender or otherwise the admittance is not good Thurle and Madison Mich. 1655. Banc. sup IN a Tryal at the Bar between Thurle and Madison Enrolment of a Deed. It was said by Glyn chief Iustice that if divers persons do seal a Deed and but one of them acknowledge the Déed and the Déed is thereupon enrolled this is a good enrollment within the Statute and may be given in evidence as a Deed enrolled Evidence at a Tryal It was then also said that if a deed express a consideration of money upon the purchase made by the Deed yet this is no proof upon a tryal Consideration that the monies expressed were paid but it must be proved by witnesses MEorandum Copy proved That upon the same Tryal an Act of Parliament produced in point for the selling of Delinquents estates was sworn to have been examined by the Parliament Roll and that it was a true Copy before it was read in evidence Nota. VVood and Gunston Mich. 1655. VPon a motion for a new tryal between Wood and Gunston Memorandum New tryal for miscarriage of the Iury. upon a supposition of excessive damages given by the Iury in an Action upon the case tryed at the Bar for words viz. Calling the Plaintif Traytor c. 1500 l. being the damages given It was said by Glyn chief Iustice that if the Court do believe that the Iury gave their verdict against their direction given unto them the Court may grant a new Tryal And a new Tryal was gronted in this Case after a full debate had by Councell on both sides Culliar and Iermin Mich. 1655. Banc. sup CUlliar brought an Action upon the Case upon a promise and declared Arrest of judgement upon a promise that the Testator of the Defendant in consideration that the Plaintif would mary such a Woman did promise that he would leave him half his Estate at his death and thereupon he did mary the party and yet he did not leave him half his estate at his death Vpon a verdict found for the Plaintif it was moved in arrest of judgement that the Declaration was not good for whereas the promise was that the Defendant should leave him half of all his estate which might be intended both of his real and also of his personal Estate and of any estate in reversion as well as of an estate in possession the Plaintif only says that the Testator died worth 3000 l. in possession and that he did not leave him half of that estate and it may be he left him part of his real estate or estate in reversion to the full value of half his whole estate But Glyn chief Iustice disallowed the exception and gave judgement for the Plaintif Iudgement Lance and Blackmore Mich. 1655. Banc. sup Hill 1654. rot 191. LAnce an Executor brought an Action upon the Case against Blackmore Arrest of judgement in an Action upon the Case upon a pro and declared that in consideration that the Testator would suffer the Defendant to enjoy such a Close of land the Defendant did assume and promise to pay 53 s. a year for the rent thereof for so long time as he should enjoy it and for so much rent due for it for so long time in the Testators life time and for so much rent due since his death he brings the Action Vpon non assumpsit pleaded a verdict was found for the Plaintif and entire dammages given It was moved in arrest of Iudgement That an Action of the Case doth not lie it being for the non-payment of rent which follows the nature of the land and doth sound in the realty for which a personal Action lies not 2ly Here doth not appear by the Daclaration Personal act on Consideration to the any consideration to ground the promise upon for the Declaration is that if the Testator in her life time would permit the Defendant to enjoy the Close then c. and it is not averred Averment that the Testator did in her life time suffer the Defendant to enjoy the Close Glyn chief Iustice If a promise be made to the Testator the Executor may have an Action Executor and it is a good consideration as to him for the executor is representative of the Testator And 2ly An Action upon the Case will not lie for rent upon a promise in law but upon a special promise of the party to pay it Promise in Law Special as our Case is it will lie Ingram and Fawset Mich. 1655. Banc. sup IN this Case it was said by Glyn chief Iustice Administratâ—r must shew how Administrator That if an Administrator bring an Action against an Administrator it is not necessary for the Plaintif to shew by whom the letters of Administration were granted unto the Defendant but he must shew by whom the letters of Administration were granted to himself to entitle himself to the Action for if it appear not to the Court that he is Administrator he cannot sue by that name Mich. 1635. Banc. sup IT was said by Wild and agreed by Whitwick one of the Masters of the Vpper Bench office How far special bayl is lyable for the principal that if an Attorny do appear for one in the Vpper Bench special bayl is entred for his Clyent to that Action that that Bayl is not bound to stand Bayl to all other Actions that shall be declared in against the party upon the by but the Attorny for him is bound to appear for him in all such Actions and to put in Common bayl Wagstaff and Tempest Mich. 1655. Banc. sup IT was said by Glyn chief Iustice upon evidence given in a Tryal at the Bar Dispensation with a forfeiture of an Estate bayl between VVagstaff and Tempest that if tenant for life do levy a Fine of the Lands he is so seised of whereby he should forfeit his estate yet if he in the remainder will joyn with the Tenant for life in declaring the uses this is a dispensation with the forfeiture and Le Gay Mich. 1655. Banc. sup THe Court was enformed For a time to accompt before Auditors that in an Action of Accompt brought there was a verdict that the Defendant should accompt before Auditors and that Auditors were assigned and the parties were now before the Auditors and thereupon it was moved on the Defendants part that this Court would grant him time to accompt for the reasons alleged But Wild answered that it was not proper to move here for the Auditors are now Iudges of the matter Auditors Iudges by the Statute and may give time if they see cause To which Glyn chief Iustice agreed and said the Auditors are Iudges by the Statute and therefore move before them and trouble not us with it Sergeant Bradshaw and Procter Mich. 1655. Banc. sup IN the Case of Sergeant Bradshaw and Mr. Procter of Grays Inne Challenge to an array no part of
Action cannot lye for a false retorn 2ly He sayes that the old Sherifs delivered the writ thus endorsed to the new but doth not say that they did deliver it to be retorned viz. by Indenture Indenture as the use is 3ly It doth not appear whether there were any retorn of the writ made either by the old Sherifs or the new 4ly The Action is brought in a wrong County Venue for it is not brought in the County where the endorsement and delivery over of the writ was Latch of councel on the other side answered that the Action was brought for delivering the goods back again to the Defendant after they had taken them by vertue of a Fieri facias and not for the endorsement made upon the writ The rule was to reverse the judgement except cause shewed to the contrary At another day the Court was moved to affirm the judgement and the councel on the other side insisted upon the former exceptions to reverse the judgement Glyn chief Iustice caused the Record to be read and upon Oyer thereof said I conceive it is well and according to the course in that kind for the old Sherifs to make the retorn and to deliver the writ over by Indenture to the new Sherifs and here is also a verdict in the Case and a retorn is not properly a retorn untill it be filed here yet it is the retorn of the Sherif in the County where he is Sherif Shew cause upon notice why the judgement ought not to be reversed Antea Q. Denton Mich. 1655. Banc. sup AN order of the publique Sessions made against one Denton for the kéeping of a Bastard child was removed into this Court by a Certiorari To quash a retorn of an order of Sessions and the party also who was committed to Ailsbury gaol for disobeying the order was brought into Court upon a Habeas Corpus granted unto him and upon the reading of the retorn of the Habeas Corpus this exception was taken to the retorn that it appears by the retorn that the order made for Denton to kéep the Bastard-child was made by the Iustices at the Quarter Sessions and that for not obeying this order he was committed to the Gaol by two Iustices at a private Sessions of the peace whereas the Iustices of the Quarter Sessions had no authority by the Statute to make such an order for it ought to have béen made by the next two Iustices of peace to the place where the Bastard was born And to this Glyn chief Iustice agréed but would not release the Prisoner till he was bound over with good bayl to the next Quarter Sessions for the County of Buckingham to appear there and to answer the fact Att Lee and the Lady Baltinglas Mich. 1655. Banc. sup THe Court was moved on the Defendants behalf To discharge a feme covert upon common bayl that there was an Action upon the Case brought against Baron and Feme and the Feme had appeared but the Baron would not and that the Plaintifs Attorney stood to have special bayl for her which she could not procure and therefore it was prayed that she might be delivered upon common bayl But Glyn chief Iustice answered Denied if there be cause to have special bayl the wife must lye in Prison untill the Husband appear and put in bayl for her for she cannot put in bayl for herself being Covert Baron Elmes and Martyn Mich. 1655. Banc. sup THe Court was moved For time to demur to a plea. for the Plaintif that in respect that the Defendant had put in a special plea and pleaded a very long Award which made the plea very long that therefore he might have time granted unto him by the Court to demur to this plea. But Glyn chief Iustice answered you need not have time to demur to the Plea for you may do that presently Denied Rejoynder but if you desire time to rejoyn in respect of the length of the Ples you shall have it Plummer and Sir Iohn Lenthall Mich. 1655. Banc. sup THe Plaintif shewed to the Court by his Councel that he had brought an Action of escape against Sir Iohn Lenthall the Mareschall of the Marshalsea of this Court To put Sir Iohn Lenthall out of his Office and had thereupon a judgement and an execution on against him but that Sir Iohn though as being Marshall he ought as an Officer of this Court daily to attend the Court did yet nevertheless absent himself so that the Plaintif could not take him upon the execution and that if he were present he doubted whether he might take him for fear it would be an escape of the Prisoners committed to him and therefore prayed that Sir John Lenthall might be put out of his place of Marescall that so he might take him in execution Glyn chief Iustice This is very mischievous Cause let Sir Iohn shew cause Friday next why he should not pay the monies Le Gross and Hall Mich. 1655. Banc. sup IN a writ of Error brought in this Court to reverse a judgement given in an Action of debt The Defendants Councel in the writ of Error moved To reverse a judgement for expedition that the Court would reverse the judgement because they conceived it was erroneons for their own expedition that they might bring a new Action Glyn chief Iustice You have not yet confessed the error upon the Record neither have you pleaded in nullo est erratum as you ought to do Denied for moving o◠soon and therefore you move too soon to have the Iudgement reversed Hamond and Thornhill Mich. 1655. Banc. sup IN the Case of one Hamond and Thornhill in a trespass and ejectment tryed at the Bar Whether gavelkind-Gavelkind-lands held by chivalry he deviseable upon the evidence given it was affirmed by Sergeant Twisden that Gavelkind-lands though they be held by Knight-service tenure might be all devised by Will by the custom of Kent Q. for other Councel doubted of it Arnold and Floyd Mich. 1655. Banc. sup THis Case formerly spoken unto and after a Nil capiat per billam nisi c. ordere◠to be entred against the Plaintif was again spoken unto and the Case put and the exception formerly taken that the Plaintif had declared of a general receiving of mony of such and such Customers and had not accompted for them whereas the Articles for breach of which the Action is brought do express that he should accompt for such monies as he should receive of the Customers which were in his charge only But Green answered that though it was not so expressed yet it should be intended that he had not accompted for all such monies as he had received of the Customers in his charge and as to another exception which was also formerly taken viz. that the Plaintif had not shewed what monies he had received for which the Defendant had not accompted and so he knew not what answer to
the same side said that here is a fact done to eradicate the whole government of the Town for doing whereof the parties justly deserve to be disfranchised and their entring of orders into the Register-book is a corrupting of the Customs of the Town and tends to the subversion of the Corporation and he cited 28 H. S. Maleverers case in Dyer Alleyn on the same side Here is sufficient cause shewed in the retorn to turn the parties out of their offices unto which they pray to be restored if there should not appear sufficient matter to disfranchise them Roll who when this case was first moved was chief Iustice said here is one Groves that prays to be restored concerning whom the retorn shews no cause at all why he was removed No cause of disfranchisement but only that he was endicted of Felony which is not a sufficient cause for he may be endicted falsely and it doth not appear that any thing hath been as yet done upon the Endictment and yet they allege this for cause why they will not restore him and if you have no cause to remove him then he is unjustly removed and ought to be restored and this cause you have shewed such as it is was after that he was removed and so could be no cause of his removal But for the rest there is no question but that here is a high contempt and just cause to disfranchise the parties for here is more than an opinion as hath been urged for them for there is an Act of a high nature tending to evert all government in hindring the proceedings of Iustice and the profit and wellfare of the Town and a greater offence of this nature cannot be imagined and therefore for the matter there is cause to disfranchise them But the question is whether the retorn be good and as to that I conceive it not necessary to set forth the whole Oath or to aver the swearing of the Attorney But the retorn ought to have been that by their Custome they have used to remove persons for such offences Have used to remove and not to say they are removeable and of this I doubt and will advise At another day Latch of Councel for Yates urged that the retorn was not good for they have not shewn any Act done to remove any person for misdemeanors according to the custom as they have alleged it for the return says only that such parties have been removable and this is only a possibility of an act and it appears not how they are removable Possibility of an Act. either by their Custom or by their Charter and consequently here is no ground for their removal returned Pasch 33 Eliz. C. B. a potential Custom returned is not good Potential custome not good possit potuislet adjudged not good in Sir William Hattons case and 21 Iac. usus fuit held naught And as to the Objection that it is not necessary to return their power to remove because it is a thing incident unto their Corporation I answer they have returned a power but have not made it good by the return Mag Chart. 25. and to the Objection that a return needeth not to be so formal as a pleading and that therefore if their power do appear upon the whole return it is good enough I answer that they have failed in the very matter of their prescription and not in the form only and they must certifie a good cause of their removal that the Court may judge of it and as to that which is objected that their Charter is a very antient Charter and therefore cannot be pleaded I answer Charter pleaded and not given in evidence that they may give it in evidence and also a Charter made time out of mind may be pleaded as an old deed may although you cannot plead that it was made time out of mind Serjeant Twisden on the same side All customs ought to be alleged in facto 9 Car. Fletcher and Bagnals case Licitum fuit for a Londoner to use any trade by the custom of London adjudged to be ill pleaded and though it may be good in an evidence yet it is not good in a return Alleyn on the other side said that the return is good in the returning of the custom though it would have been ill in the pleading Pleading Retorn which is stricter than a return need to be and here is matter enough returned to remove the parties and the whole customs need not to be returned and the informality of the return shall not make it ill for this Court is to judge of the matter of fact returned and so is Giles Bags and Wagoners case and they have returned a custom to remove and by consequence some have been removed or else the return is false which is not to be presumed Windham Every custom is presumed by the Law to have a lawfull beginning and shall be intended many times to be by antient Charter namely for such things as are not to be claimed without a Charter but if they may be claimed without a Charter it shall be intended otherwise Antient Charter An antient Charter doth not lose its force by not being confirmed in Eyre as Latch hath said 24 H. 6. and there may be a prescription for things which have never been acted if it began by Charter 22 E. 4. f. 9. Green on the same side The very words of the retorn do enforce that persons have béen removed Glyn chief Iustice I have no books delivered me in this case And this Exception was moved the last Term and it is very doubtfull to me and my Lord Roll would not deliver his opinion I could wish the business might be composed for the peace of the Corporation To say that the lands have been demised and demisable the words shall be taken distributive But me seems here is no matter of fact returned for removing of any At another day the case was spoken to again and against the return it was excepted as formerly Prescription in fieri that the Town had not by the return intitled themselves to any power to remove the parties for here is a prescription only in fieri and not in facto returned viz. That such persons have been accustomed to be removable and it doth not say they have béen removed and these cases viz 20 E. 4. and Mich. 7 Car. Flower case and Mich. 9 Car. Fletcher and Bagshaws case and Skipwiths case 25 Eliz. C. B. were cited by Wild on Councel for Yates Windham on the other side as formerly distinguished betwixt a pleading and a return which needs not be so formal as a pleading but shall be taken good to a common intent and said that Wagoners case which was as this is was adjudged to be well upon good advice and the substance of the prescription is well set forth in the return and the formality is not to be much stood upon Substance or regarded Alleyn